Speeches

Chief Justice Maureen O'Connor
State of the Judiciary
Aug. 31, 2017

Good morning everyone.

Thank you Judge (James Shriver, Ohio Judicial Conference chair and Clermont County Probate/Juvenile Court) for that introduction and to the Ohio Judicial Conference for the invitation to address you and deliver the State of Judiciary for the seventh time.

I want to add my congratulations to (retired) Judge (Charles) Kurfess upon receiving this year’s Moyer Award – well deserved – and to the Franklin County Municipal Court for its Online Dispute Resolution program that won the Innovative Court Practices Award. Very, very well deserved.

Thanks, too, to the state bar for annually recognizing worthy programs and strong judicial experience.

It’s no surprise to me – and shouldn’t surprise anyone in this room – that Ohio’s judicial excellence is recognized beyond the boundaries of our state. Our judiciary has a national reputation for excellence and innovation. I want to mention three members of the bench in particular who have assumed significant leadership roles in our nation.

First, Montgomery County Juvenile Court Judge Tony Capizzi, who assumed the leadership of the National Council of Juvenile and Family Court Judges earlier this summer.

Ohio has a long tradition of leading this important national organization that is so committed to improving the lives of juveniles and families. But I want to mention Tony for another reason.

He is an example of recognizing and embracing change, the kind of change that can be intimidating on one hand and yet incredibly helpful on the other.

He is on the leading edge nationally through his work with IBM Watson and its artificial intelligence capacity to achieve better outcomes for participants in his juvenile treatment court.

Next, we have Cuyahoga County Common Pleas Court Judge Michael Jackson, who received two national awards this summer from the Vietnam Veterans of America and the Justice for Vets. The awards recognize his work to rehabilitate veterans and connect them with services.

And Franklin County Common Pleas Court Judge Guy Reece was chosen chair-elect of the National Conference of State Trial Judges. Judge Reece will take the reins of the conference starting in August 2018.

Congratulations to all.

These are just a few examples of Ohio judges leading our state and our nation. Please join with me in congratulating them.

Speaking of judicial excellence, I want to once again thank my colleagues on the Supreme Court for their work – day in and day out – on the always complex, always challenging legal questions that we must resolve.

I believe that we have Justices Kennedy, French, and Fischer with us today.

On a more serious note, special recognition is in order for Common Pleas Judge Joseph Bruzzese, whom all of us have had in our prayers since he was ambushed just steps from the Jefferson County Courthouse.

Thankfully, I’m happy to report that Judge Bruzzese is out of the hospital and is recovering, and the Supreme Court and all judges in Ohio are looking forward to his return to the bench.

Judge Bruzzese was about to get an early start to his day on August 21st. Instead, a cowardly, would-be assassin, who had a pending civil matter in the judge’s court, shot him in the alleyway leading to the courthouse. The judge managed to return fire and quick action by a probation officer brought down the assailant.

His Common Pleas Court colleague, Judge Michelle Garcia Miller – a former nurse – came to his aide as well. It’s an incredible story that we’re more used to seeing on TV or in the movies rather than having happen to one of our colleagues.

This incident reminds us of the very real potential for violence that each of us could face simply for carrying out our duties as members of the judiciary.

Attacks like this are attacks on the Rule of Law, which is the foundation of our society.

They are also an attack on a judge’s family, and on the judicial family.

And they are a call for us to remember how dangerous our work can be and how all of us must take measures to ensure our safety and that of our families and staff.

Courthouse safety audits conducted by our security team at the Supreme Court are one major way that we can be of assistance to you. Let us know in what other ways you believe we can assist you in security matters.

I don‘t want to be an alarmist, but ensuring the safety of the judiciary should be a primary, not secondary, concern for you, for us, and for the state. In this day and age, it‘s not a quantum leap for a disturbed individual to think that violence against a judge or a family member or court staff is an appropriate way to deal with a problem.

Again, Godspeed to Judge Bruzzese.

Now, this conference’s there is, “Adapting Justice to a Dynamic Society” and could not have been better-timed.

Webster’s defines the adjective as “constant change, activity, or progress.” I think all of you would agree that short phrase fits the current life on the bench to a “T.”

I’ve just noted the danger and security issues we face, a constant dynamic of our profession. But there are other dynamics that are impacting our work. We know that the opioid epidemic has put a stranglehold on Ohio, challenging all of society – including the judiciary – as we confront this problem in our communities.
We know that access to justice and our fines, fees and bail systems are in urgent need of reform.

And we know that in this nation the judiciary, and especially its state courts, is at the center of dealing with many of society’s problems and change.

For quite some time you’ve heard me talk about the burdensome costs and fees that fall heaviest on those who can least afford them.

The failure of courts to levy appropriate financial sanctions and obligations raises concerns of due process and equal protection.

Monetary sanctions are as old as our criminal justice system itself. But as I noted in the past, the Department of Justice Ferguson Commission’s report has brought attention to the financial exploitation that can occur at the quest for municipal revenue. Ferguson was not an isolated example of abuse.

The Supreme Court of Ohio Judicial College is initiating a course that will examine the role of court costs and fees as a critical part of the work that we as judges do.

The course will include advice on how you can communicate with funding authorities so that they understand their role in underwriting the cost of justice.

Our role in the judiciary is clear. We have a responsibility to maintain neutrality and to ensure that the system is perceived by the public as both fair and equitable. Offenders must face consequences for their behaviors, which may include a financial sanction. But other options must be available when an individual lacks the ability to pay.

The courts must never be considered an ATM for local government funding. I have personally stressed this with Ohio’s mayors, Ohio’s county Commissioners and with the Auditor of State. Many judges have received a copy of the letter I sent to the auditor in mid-July after a report from his office was released that was critical of Findlay Municipal Court’s collection of fines and fees. I’m happy to say that after speaking with Auditor Yost, he understood the shortcomings of that report and that type of report should no longer be a problem.

When the public’s view of the justice system is that we’re only interested in raising revenue, the system loses public trust and confidence.

Please add our forthcoming class, “The Cost of Justice in Ohio” to your schedule when it becomes available. So please stay tuned for those details.

Access to, and fairness in, our legal system is one of the many dynamic challenges.

In fact, I propose that like no other time in the history of America’s state courts we have faced so many new challenges, so many new opportunities – or even new threats.

We face new “market entrants” who are seeking to offer dispute resolution services cheaper, faster and more confidentially than our current models can.

We are interacting with a new generation of Americans who have different expectations of government and difference expectations of courts.

And I would submit that judges, particularly state judges, are becoming less “referees” and more problem-solvers today than at any time in the past. I don’t think we were ever referees assigned to call “balls and strikes” as once described by Chief Justice Roberts.

People’s lives are significantly changed by what we do and we must be aware of the tremendous responsibility assigned to us as judges.

To reference the Book of Wisdom, we are to be wise and focused on doing the best we can because in the end we are dealing with real people, with real problems, seeking real help. That should humble each of us in ways that referees never have to worry about.

So “dynamic” – “a force that stimulates change or progress within a system or process” – has to be US – you and me and all of our colleagues throughout the judicial system.

There are two subjects – that are intertwined – which make my point clear. One is an example of why I am currently meeting with numerous judges around the state to understand the challenges and expectations of our fellow citizens and the changing nature of our courts.

The other is no surprise to anyone in this room.

Ohio is front and center in the opioid crisis. We have received appropriate, but unfortunate national attention on this front.

Montgomery County is predicted to have the largest per capita opioid deaths in the nation, exceeding 800 people this year.

Yesterday, the Ohio Department of Health reported that 4,050 Ohioans died last year from drug poisoning and overdose deaths.

This substance abuse crisis has hit us like no abuse crisis ever before. And while I have spoken about this crisis in the past, even in this setting, it’s important to speak about it again and particularly to you and to our state.

The problem with this crisis is that it seems to be so intractable, so costly, and so endless. It’s easy to become cynical and lose hope; to see opioid addicts as untreatable at best and unredeemable at worst.

But we cannot forget that those people who appear in our courtrooms are real people; they’re not just statistics. If we lose hope, if we become so cynical about humanity and people in trouble, well, then, this crisis will never end and we will continue to lose more people.

And it is not just the addicts that we must address. Opioid addiction hits families hard, and particularly children.

Through the Regional Judicial Opioid Initiative, we continue to work at the state and national level to bring resources to bear on this problem. In addition to making access to the state’s prescription drug monitoring program available to drug courts, we continue to work with other states in our region to:

Improve emergency placement for children.

Examine and publish best practices for the use of Medication Assisted Treatment.

Press the federal government to make more resources available to state courts so that we may respond more effectively to this crisis;

And explore other ways that we can cooperate with partners in our state and in our region to respond to this epidemic. There are several of you in this room who are working in this area.

I would particularly like to acknowledge the tremendous work of a non-judicial public servant, Steve Scherholtz, Executive Director of the Ohio Pharmacy Board, for his cooperation, insight and support for the Ohio judiciary. This is not a crisis that any one branch, any one agency or any one person can address alone.

The problem is not only an indication of the present challenges we face, but of the future challenges you may well have to confront shortly.

Now, another tool in the box to address is the pharmaceutical rule that is taking effect shortly and this is a limitation on the doctor’s ability to prescribe opiates for pain management. We know that heroin, fentanyl and carfentanil are at the front and center, but now we have other drugs that are equally as deadly.

Cocaine laced with opioids, are major components of the abuse and are being more frequently seen on the drug scene. And now the Ohio State Highway Patrol reports that we are seeing an increase in cocaine seizures and methamphetamine is making another appearance.

America’s drug abuse culture seems to know no bounds.

Why do I raise this issue? For two reasons. First, to use whatever pulpit I have to call us all into action. We are not just judges. We are also community leaders. We cannot sit behind the bench thinking this is someone else’s problem to deal with. Judges – you and I – have a special place in our communities. We are “looked at” and “looked up to” for leadership in times of crisis. And make no mistake, we are in crisis.

Secondly, over the last few months, I’ve been meeting with sub-sets of Ohio judges to gauge how their work has changed. The opioid crisis is just one of several examples of what I have heard over the last few months. But it is an important indicator of how society changes and problems impact our work.

We all know that as case numbers have fallen, the amount of work involved in individual cases have risen however. Anyone who thinks otherwise should sit down with a judge running a special court docket -- a juvenile judge, a probate judge, or any other judge. They should sit down with judges confronting human trafficking. Or judges that are dealing with mental health crises, veterans in turmoil, juveniles who have lost their parents to opioid poisoning. The fact is that the judiciary is often the best opportunity for many.

That may seem odd, perhaps inappropriate to those who see the art of judging as merely calling the balls and strikes. That is not what we do and that is not what you do, nor should you do.

There is today, I would submit, only a marginal correlation between our caseloads and our work.

No longer can we look to raw case numbers to get an idea of the amount of work it takes for a judge to fulfill his or her obligation to society.

Case numbers never were a true-blue measure of demands on the judicial system. Because no two cases are ever alike. Still, in the days gone past, those numbers did carry some relevance.

But our dynamics have changed.

Never has there been a greater need for a deeper dive into the new dynamics of the bench and the work that it takes to deliver justice to our society, our fellow citizens to whom we are ultimately accountable and responsible to for the delivery of effective justice.

You are working hard for the citizens of Ohio, administering justice at many levels. Yet, our citizens do not grasp the depth of your efforts by looking at the scoreboards we provide.

This is why I have embarked on a series of visits and discussions with judges around the state – to get a better understanding of your service and your work.

What I have found so far isn’t surprising. The criminal justice system is tied more and more to public health, family issues and community and governmental obligations. Court supervision seems to be the order of the day for so many. Efforts to change our corrections system frequently mean dealing with criminal offenders in our communities, rather than sending them somewhere elsewhere.

We have today over 100 drug courts in Ohio. If you add four other categories of specialized courts that deal with drug issues, the number rises to over 160 courts. There are Family Dependency Treatment Courts, Veterans’ Courts, OVI Courts and Substance Abuse Mental Illness Courts, and the list goes on. But we also now must deal with human trafficking, in essence a form of slavery. Let that sink in for a minute. In 2017 in a nation noted across the planet for individual freedoms and rights, we are seeing human slavery emerge as a critical issue in society, and, therefore, our courts.

Who would have thought that in this day and age, in a nation of this wealth and sophistication, our judges would have to deal with what is unquestionably issues of human trafficking and slavery. Where are we going? What have we come to, to accept this as part of our society? It is tragic.

Now, having over 160 courts is a giant number. But as shocking as it is, it’s a number with a story that we’re not telling often enough.

As judges you meet with young offenders. You meet with addicts. You get together with their families. You set schedules and timetables for their treatments. You meet with law enforcement. You consider alternatives involving child welfare and health care. You address truancy, mental health issues, human trafficking, child support, re-entry programs – along with community needs and education.

Caseload numbers do not include the number of hearings conducted in a case or the number of parties to whom you interact.

Caseload numbers do not reflect the number of extrajudicial activities in which you participate as well in your communities.

I have visited courts and watched how a single day can encompass countless issues for a judge who’s attending to dozens of citizens. When I read a news story quoting one of our municipal court colleagues saying her work made her feel like a social worker, I nodded my head in agreement and I’m sure many of you did, too.

This is not the judicial system of the ‘60s, the ‘70s, or even the early two-thousands.

If we give Ohioans a better picture of the judicial system, they will have a better understanding of what we do – and the importance of what we do. And that will lead to more support for what we do. And, we will be able to handle our caseloads more efficiently and effectively.

So, how do we fill in the story? Your story. One way is to look at what other states have done and many have made progress in accounting for judicial workloads.

In fact, over 37 states have conducted studies on workloads. In Ohio, we have been talking about the possibility of a study for some time.

Is it right for Ohio? I believe it is.

The question has been answered for us – in the form of specialized dockets and the complexities of our social ills.

As we continue this discussion, it is important that I put two rumors to rest.

I am not suggesting that we undertake a workload study to disadvantage, minimize, or put any judge out of work.

In fact, of the over 37 weighted workload studies that have happened in this country, no judge – let me repeat that – no judge has lost their job.

I am suggesting that we need to understand the dynamic changes in the system so that we can more effectively identify and advocate for resources. A workload study may also identify ways that we can work more efficiently together in service to our citizens.

A workload study is not a repeat of the futures commission of the late 1990s that caused such discord. I am not interested in remaking the face of the justice system. But I am interested in better explaining the work that we do in a world that is increasingly “data driven.”

So let me paint the context for this:

Since 2007 the caseload in Ohio’s courts has dropped by 2 percent each year. Caseloads nationally have dropped on the average of about 3.5 percent annually.

We can likely attribute these declines to a number of factors:

Mediation is displacing courts as a centerpiece for resolving a number of disputes.

Statutory changes in areas such as juvenile corrections have resulted in the reduction in caseloads. Criminal cases across all courts are down.

Traffic cases are down.

In addition, new “market” entrants I mentioned earlier are competing with the practice of law and with the judiciary.

LegalZoom seeks to penetrate the legal field and offer a variety of alternatives to the traditional practice of law.

Several commercial lawyers are discussing changes that would implement a rapid arbitration process for commercial litigation.

I just found out yesterday that the newest twist on this is Senate Bill 183 that was introduced by Senator Frank LaRose to create a committee to study the efficacy of a separate commercial court – not a docket – a specially elected commercial court.

What would that mean? I don’t know. If they put together that study commission, you can bet that I’m going to put judges on that so that they can report what the direction will be.

I envision a system similar to Texas, where you have judges only doing criminal cases and some of them only doing civil cases. I have heard judges often over many, many years that that is not the model they want here in Ohio.

So, we are going to be paying close attention to Senate Bill 183 and be deeply involved in that discussion.

If adopted, such a change could remove a significant amount of future commercial litigation from our courts.

Residents in other states now mediate divorces through Equitable Mediation. Mediate.com also provides a list of emerging online dispute resolution services.

Fairclaims.com provides online dispute resolution services on a sliding scale for disputes up to $15,000.

There are online arbitration services and private judging as options for litigants who wish to avoid the courtroom.

Each of these has a very real impact on our caseloads. We don’t know where these changes are heading. We don’t know if this will be good for our fellow citizens.

But what I do know is that there is competition for our services. For many cases, especially civil matters, courts are not the first and only stop. Courts are one of several possibilities. It’s fundamentally naïve, therefore, to think that we are immune from these developments – that they will not impact us. We are not immune and they are impacting us as I speak.

I have another, unproven theory. I think these competitors siphon off the easy matters and leave the judiciary with the tough cases. Divorce cases may be down significantly, but I suspect that what our Domestic Relations judges are left to deal with are the cases that 60 minutes of mediation and $500 can’t resolve because they will require years of judicial oversight.

The same can be said for your specialized dockets – your drug courts, your veteran’s courts and mental health courts. Think about a fifth-degree felony drug case in terms of the amount of time and effort that you personally invest to each success. How do you show that? After the case number, what does that chapter of your book say?

For those of you handling the juvenile docket: Has your workload dropped to match the drop in caseloads? Are you working less or are you working just as hard or even harder because the cases of today are more involved, the problems more intractable, and the resources to achieve positive outcomes limited?

The same can be said for virtually every type of case. For those of you on the trial bench, do you find that even if you aren’t in the courtroom as much – that what free time you have is now consumed by administrative matters dealing with county commissions, municipal governments, and the public?

Just the other day I heard a judge say that while her caseload is down she finds herself spending entire afternoons dealing with nothing but administrative matters from staffing issues, to working with local funders, to participating in criminal justice committee meetings – and so forth.

We cannot ignore the changing nature of judging whether it is in the result of outside forces or internal demands. And we cannot act as if these forces are of no importance, because they are.

We can either better work to understand them and to explain their impact or we can be overtaken by them. This is why I am interested in continuing the conversation. I think there is a powerful message to be told:

And that message is that you are working harder because you are required to do more things as members of the judiciary. You are now required to wear many hats.

To put it bluntly, we need to look at various ways to identify and articulate the importance of the judiciary to the state and to its citizens. We live in a data-driven world that demands immediate results.

We need to tell anecdotes – but we need hard data to tell our stories and get the complete picture.

A working group of about 30 judges was identified by your associations. That working group has met twice, to learn about the weighted-workload study, which is the vehicle for creating the data we need to tell our story.

Subsequent to the work groups, I have met with associations, with the executive committees of the OJC, with your associations’ boards and I have really had some interesting conversations.

But in the end, I am delighted to report that all judicial associations – of the court of appeals, the common pleas courts, the domestic relations, juvenile and probate, and municipal and county judges – have given me their support to move ahead with this study. So thank you very much ladies and gentleman.

A study tailored to Ohio’s judiciary with the measurements created by Ohio judges in conjunction with the National Conference of State Courts. And that’s important to emphasize. Whatever the tool is that is developed for Ohio will be developed by your colleagues, by Ohio judges. It is not an organization coming from the outside telling you how to do your job.

So with that assurance, I will be meeting with my colleagues to discuss this matter further and what path we take forward.

Thank you all for all you’ve done for our state by continuing to adapt to a dynamic society with all its challenges.

I think challenges are important, but I think that if we look at those challenges as new opportunities – opportunities to move forward for the benefit of the judiciary and the people we serve, I think that we will make the progress that this dynamic change demands of us.

So thank you ladies and gentlemen. Thank you members of the judiciary.

And God bless you all.