Chief Justice Maureen O'Connor
Ohio Association of Magistrates Fall Conference
Sept. 26, 2018

(Remarks prepared for delivery on Wednesday Sept. 26, 2018, at the Crowne Plaza Columbus North in Worthington, Ohio.)

Thank you, President Freeman.

Good morning, everyone.

On behalf of the judiciary of our state, I welcome you to Columbus. I want to start by saying how grateful I am, as your Chief Justice, for the work that all of you do. Your work is appreciated, by me, for sure. But importantly by the judges you serve.

I know ... and I know that they know ... that the wheels of justice in Ohio couldn’t turn without you.

I was quite fortunate two weeks ago to have received the Thomas J. Moyer Award for Judicial Excellence from the OSBA, which honors our late, great chief justice who passed away eight years ago.

Getting that award was humbling for me and I wouldn’t bring it up except that it allows me to talk a bit about Chief Justice Moyer and his admiration for the work that you do.

It was under his leadership that your titles changed from referee to magistrate ... which I think we all agree is a much more professional and dignified term ... too many ad jokes about striped shirts and whistles.

In Ohio, we have more than 720 judges.

But we have 800 magistrates working in Ohio’s court of record– and 600 of them are members of your organization. That’s a statistic that would surprise most Ohioans, I think. But we all know that the hard work that our judiciary needs to carry out is vast.

That’s why you’re performing this role and why your profession has grown to become such a vital part of justice in our state.

Since its inception in 1989, the Ohio Association of Magistrates, its members, and the Supreme Court have had a strong partnership.

That partnership continues.

Your conference agenda is very strong again this year with timely topics and excellent faculty.

Thanks to the education committee for partnering with our Supreme Court Judicial College to make this education program a success.

Special recognition goes to Magistrate Bill Rickrick of the Licking County Domestic Relations Court who continues to serve as Education Chair and has for several years.

Over his three decades as a magistrate, Bill has been a dedicated and exemplary educator and leader.

O-A-M is blessed to have so many members that have helped grow your profession and so ably represent your organization.

Just to name a few — Magistrate David Jump of Franklin County Municipal Court, and Michelle Edgar of Fairfield Juvenile and Probate Court, have been frequent faculty for new magistrates and others, such as Guardians Ad Litem and served on numerous advisory and task force committees.

The world of the magistrate is dynamic. That’s a term that fits because it speaks to growth and change.

One big change is coming that I believe will vastly help the world of the magistrate and the efficiency of our judicial processes.

Today the public comment period closes on a proposed amendment to Civic Rule 53 (Civ.R.53), which is titled Magistrate Jury Trials; Decisions/Orders.

Our Commission on the Rules of Practice and Procedure has recommended important changes in how you operate ... to clarify how a jury trial conducted by a magistrate is to proceed.

Specifically, the amendment directs a trial judge to file a final judgment in accordance with the legal findings of the magistrate and the factual findings of the jury, in accordance with Civil Rule 58 (Civ.R. 58.) The amendment specifies that all of the magistrate’s legal rulings cannot be objected to or taken before the judge. The only recourse is to file an appeal after a final order has been issued. Furthermore, the rule specifies that any post-trial motions will be decided by the magistrate.

This amendment would only come into play when both parties unanimously consent to a magistrate conducting a jury trial (as provided under current Civ.R. 53(C)(1)(c)).

The commission also proposes an amendment to clarify that a magistrate’s decision is required on any motion that could be potentially dispositive.

The commission was made aware of some discrepancy between courts as to whether a denied motion for summary judgment was treated as a magistrate’s decision or a magistrate’s order. Some courts treated a denied summary judgment as an order, which uses a separate objection process.

Under this rule change, a denied motion for summary judgment would require a magistrate’s decision.

I agree with the recommendations of the commission and when the public comment period ends the justices will consider the opinions coming in and their own judgements, of course.

As many of you know, I am a former probate court magistrate. So, I know your challenges – scheduling hearings, managing cases, and writing orders and decisions.

And I know the large role you play in the administration of justice.

Like I said, your world is a dynamic one, and being dynamic means that changes and improvements must be considered on an ongoing basis.

You are in your roles for a very good reason.

A judge made a ruling – about you – and found you knowledgeable about the law and trustworthy in your decision-making.

I am confident that our magistrate system is working well and I want to thank you again for your service as integral members of the Ohio judiciary ...

I’m certain that like too many judges, you see cases, too many cases, which involve drug abuse.   

You’ve seen the destruction of families, the loss of lives, the violence and personal loss that is part of the opiate crisis. You’ve also seen the recovery of a father or the mother in court ordered treatment that enables each to be part of the lives of their kids again.  What do you think would happen if a judge did not have the ability to impose graduated sanctions that include jail time when leading the treatment team in drug court or as part of the conditions of probation?  We all know what would happen ... people would not get the help they need and would not be successful in sticking with the treatment and conditions.

Drug Courts are the most powerful tool in dealing with an addict. And an addict on probation with the threat of jail or even prison will be a person, more likely than not, who will stick with the program.

I don’t come out on ballot issues, but I am coming out on Issue 1. This is different. The Code of Professional Conduct permits and encourages judges to educate and speak about issues that affect the administration of justice.  Believe me, Issue 1 affects the administration of justice.

Make no mistake, there are parts of the ‘reform’ agenda that we can all agree upon…no judge wants or does sentence a first time low level drug addict to prison for possession.  Treatment instead of incarceration is always the way to go for those addicts.

We also agree the we need more drug courts and  more treatment facilities.

We differ on what is the path forward.

Proponents would have all believe that Ohio has stood still for the past 50 yearsand the only solution in place is incarceration ... either they are intentionally misleading or they haven’t done their homework.

Here are some facts:

Ohio is a leader in the number of drug courts and the quality of those courts (over 170)

Ohio is the recipient of over 100 million Federal dollars to expand capacity for treatment;

T-Cap in place to divert defendants to local facilities rather than DRC; There is a presumption against F-4s and F-5s being incarcerated.

This proposed constitutional amendment would be a disaster.

In a nutshell, Issue 1 would mandate that F4 & F5 drug possession charges be misdemeanors without the ability of the judge to impose local jail time.

Only after a third conviction would a judge be able to impose jail time…but it’s still a misdemeanor.

It would allow F4 & F5 inmates in prison now to have their sentences commuted and transformed into misdemeanors (not just drug addicted inmates) and to be released from prison.  Oh and no supervision ... no probation or parole ...literally get out of jail free.

I don’t have to explain to you what the influx to muni court of all now F4’s and F-5’s will do to local courts ability to function.

The money formula doesn’t make any sense on diverting funds from DRC to local treatment.

Other states have reformed the treatment of low-level felony addicts and downsized their crimes to misdemeanors ... but how they did it is the difference.

Only Ohio will have a constitutional amendment written in stone ... all other states (12) used statutory changes and retained in the judiciary the ability to impose incarceration when appropriate. 

The money promised to these states in cost savings from the prisons is little more than a trickle and woefully short of the hundreds of millions promised.

You, as magistrates serve in all types of Ohio’s courts.

Obviously those of you who do arraignments in criminal matters in municipal or county courts will face a large increase in handling defendants with serious matters involving dangerous drugs with few, if any, arrows in your quiver to see that these defendants get help for a drug problem.  

Those magistrates serving in juvenile or family law courts know full well the ramifications of dangerous drugs devastating families.

You also see the dysfunction of drug addicted parents overloading our foster care system.

Issue 1 will do immeasurably more of this type of damage to families.

Issue 1 is being billed as a safe neighborhood initiative ... There’s nothing safe about our neighborhoods if Issue 1 happens.

I call on you, as magistrates, to speak out against Issue 1.

This is a non-partisan issue.

Magistrates and Judges need to speak up because of the proponents’ campaign.

We will be up against voices that may very well swamp our voices unless we speak loud and often

On its surface Issue 1 looks progressive. It purports to help addicts by reducing drug possession penalties.

But it’s actually regressive and impedes the success of an addict when that person is involved with the criminal justice system.

Two milligrams of fentanyl – that’s two one-thousandths of a gram – will kill you.

Issue 1 allows for possession just under 20 grams to be treated as a misdemeanor – an amount that could kill up to 10,000 people.

Probation would be automatic, which leads us to another major flaw: The removal of the key motivating factor for drug court participation – the specter of prison time.

Who would want to go through a year of drug court if all they are facing is a misdemeanor charge – even though the drug they are possessing could kill thousands of people?

Proponents of Issue 1, when faced with this stark reality, say that, any problems with Issue 1 can be fixed by statute.

No. That’s not how it works. This is a proposed constitutional amendment. It’s not a proposed statute. It would become a fixture in our state constitution, and a legislative road to fixing it wouldn’t exist. It would take another constitutional amendment to amend or repeal this flawed proposal.

Proponents are wrong when they say Issue 1 is a way to deal with “small amounts” of drugs. I’ve seen it reported this way in news stories. That’s wrong.

What do we get as Ohioans from Issue 1? We get destruction of our drug courts – and we get the very real possibility that unimagined leniency toward killer drugs would draw more dealers to set up in our state.

I am speaking out because of a sense of duty as your chief justice, to educate Ohioans about this Issue Gone Wrong.

In many previous addresses before you I have urged you to become involved in dialogues at your local levels and speak up on issues of law and justice.

You need to speak up locally on this potential menace.

I need your help, in spreading the word.

That’s why I’m happy we have conferences like this where we can talk together, share ideas, and collaborate solutions ... to this threat to our state.

Thank you for all you do.

God Bless.