Speeches

Chief Justice Maureen O'Connor
OSBA & Metro Bar Annual Meeting
July 16, 2018

(Remarks prepared for delivery on Monday, July 16, 2018, at the OSBA Headquarters.)

Thank you, Randall (OSBA President Comer) for your warm introduction.

The first topic I want to address this morning is one that I am especially concerned about--Unjust Legal Financial Obligations imposed by courts in the form of fines, fees and bail.

A brush with the criminal justice system for something as small as a speeding ticket, or broken tail light, can have huge implications for people who can’t pay the fines, fees, and surcharges associated with a court appearance.

Earlier this year, I sent a letter to all judges in the state of Ohio to alert them of a recent decision in Washington that you should know about.

The U-S Department of Justice recently rescinded its March 2016 guidance to state court leaders concerning fines, fees, and bail practices.

That guidance was a reminder to state court leaders of our obligation as judges and justices to follow the constitutional standards articulated in Bearden versus Georgia.

You know that under Bearden, a trial court cannot deprive a probationer of conditional freedom when —through no fault of his or her own — he or she cannot pay a fine, or a fee.

The letter that I sent to Ohio judges was a reminder that the guidance from the DOJ is not the basis for our judges to follow the Constitution.  We do so because of our authority and our oaths to uphold the laws and the constitutions of both the U-S and Ohio.

As many of you may know, I have co-chaired a national task force examining fine, fee, and bail practices ... to make recommendations for how state courts can bring practices into alignment with constitutional standards.

The need for the task force was a result of unfortunate practices in some state and local courts where fine, fee, and bail systems operated on “automatic pilot” with little-to-no regard for fundamental constitutional rights.

This keeps people locked up and stuck within the system.

80 percent of the counties average daily jail population — staying in jail for days, weeks, even months at a time, because they can’t post bail and afford a lawyer.

Here in Ohio, I have tried to point out that courts are centers of justice, NOT automatic teller machines whose purpose is to generate revenue for governments.

This is such a critical issue that I directed our staff to prepare bench cards containing the legal guidelines for appropriate fine and cost collection methods.

In fact, the Ohio Judicial College created a bench card for fines, fees, and costs.

As you know, we can’t create a bench card for bail because it’s an Access to Justice issue.

Fines, Fees, and Costs is such an important topic, in fact, in mid-August, we are offering a Judicial College course on the subject.

This course is just for judges and magistrates.

I want you as bar leaders to know that we — in the judiciary —are quite focused on this very critical issue and focused on changing this system to comply with Bearden and bring fairness to our system.

Next is the opioid crisis.

While we wait for the Department of Health to release its August report, the most recent data puts Ohio’s fatality rate from drug overdose and poisoning deaths as running 39 percent ahead of the data from a year earlier.

These statistics measured a period from the middle of 2016 to the middle of 2017. The number of deaths was placed at 5,232, or about 14 Ohioans a day.

The data are from the Centers for Disease Control and Prevention.

I don’t need to tell you, this continuing crisis has tremendous implications on our society, courts and the practice of law.

The justice system is a key component of not only dealing with the problem, but in solving it.  Ohio’s Medicaid director stated the other day that in her estimation, drug courts are one of the most important responses to this crisis that we have in the tool chest.

 Why? Because they combine treatment with judicial oversight – that is, treatment accountability and consequences.  You can’t just walk away as you can in a voluntary program. 

While law enforcement needs to continue working on the supply end of the equation, courts, state and federal agencies and aid groups need to work on the demand side. That means the person, the user.

The mission of drug courts is to turn users in to non-users.  I’m referring to fathers, mothers, kids — families.

This crisis is truly frightening. But it’s scarier to think about what happens if we don’t move more quickly to solve the problem.

So, I want to share with you what we are doing to combat this crisis.

We have established a multi-state front to battle this crisis, and share best practices across state lines.

It’s called the Regional Judiciary Opioid Initiative.

It’s the first-of-its-kind regional task force.

Eight states — Illinois, Indiana, Kentucky, Ohio, Michigan, North Carolina, Tennessee, and West Virginia — are working together, identifying the core problems, and splitting up the tasks.

There were more than 150 delegates at our initial meeting in Cincinnati two years ago, representing the courts, law enforcement, treatment providers and policy makers.

There is now a national spin-off.

Our regional group has a meeting scheduled in Indiana later this month to refocus the regional and judicial/court aspects of the initiative.

This most likely will result in a restructuring of the initiative as a whole.

We need to share the judicial, legislative and executive power of our states – and do so efficiently. We don’t want to share bureaucracy, or duplicate efforts.

One of our earliest targets – and a point of ongoing success right now – is working to beef-up prescription drug monitoring.

Allowing each state to remain an island works against our efforts to solve doctor-shopping and pharmacy-shopping, particularly in places like Cincinnati, which spans multiple state borders. We knew we had to work across borders, and we are.

Here are a few of the things that we have accomplished, just here in Ohio:

The Ohio Board of Pharmacy and Jobs and Family Services have signed what’s called a memorandum of understanding to extract child welfare data that will be provided to the Board of Pharmacy for matching.

The benefit of this is to identify those most at risk.  It will allow priority categorization of folks involved in either system.

For example, here’s a groundbreaking step: if a parent has risk indicators in the Ohio Automated Prescription Reporting System and has an open case in child welfare, they could be identified as a priority for intervention.

The last state budget bill allowed specialized docket courts treating substance abusers to access the Prescription Drug Monitoring Program data as a monitoring tool.

Here’s more groundbreaking: we are working on a project that would add a flag to the PDMP system to alert prescribing doctors and dentists and health care providers that the patient is participating in a specialized docket program.

We are meeting with many executive branch agencies to support their agenda and programs.  For example, the Ohio part of the eight-state team is promoting the need for more robust testing for Neonatal Abstinence Syndrome (NAS) in infants by targeting mothers.

We are supporting efforts to prevent what is happening in other states with so-called “pop-up” drug treatment clinics that operate on a cash-only basis, have no standards of care, and provide no meaningful treatment.  In other words, they are shake-down clinics.

We are working to expand best practices in our drug courts and expand treatment.

We are working with Medicaid and Child Protective Services to ensure treatment is available to addicts and support services available to their children.  If no other reason should motivate us, consider that our foster care case numbers and costs are skyrocketing. 

Our judges are telling us that they are dealing with families in which children, because of neglect, utterly fail to meet even the most basic development targets for their age group.  This has long-term consequences for their lives, our society and our resources for healthcare, education and unfortunately juvenile dockets.

And as President of the Conference of Chief Justices I sent a letter to every governor, every speaker of a state house, and every president of a state senate urging them to adopt the new Interstate Compact on the Placement of Children. 

The current system utterly fails to serve many of our most vulnerable children. Fortunately, Ohio has ratified the compact ... that’s only 12 out of the 35 states necessary for its adoption.

We know we have a long way to go — but we feel good about the steps we’re taking and the buy-in we’re receiving from the seven other states.

It is a shared mission. We are connected as states.

We also feel good about the work being done in our drug courts.

The number of drug courts in Ohio -- 116 – gives you some perspective on the size of the crisis. Drug courts hold non-violent drug-addicted people in intensive substance abuse treatment in lieu of jail.

I don’t have to tell you that we’re a long way from solving this problem, but progress is being made.

As a society, we’re attacking this from many angles. We have to.  But we cannot rest.

As Director John Born of our Department of Public Safety has shared with our state team, we are dealing with powerful cartels that are as sophisticated as any multi-national corporation in their business planning and execution.  Meth is making a comeback because many of these cartels have concluded that flooding the market with such drugs as fentanyl-laced heroine and fentanyl-laced cocaine is literally killing the customer base and cutting into profits. 

Another issue in front of us is the changing nature of what you do every day—helping your clients seek justice.

I can’t recall a time that will be more challenging than 2018 and 2019 beyond.

You are dealing with “new market entrants” like LegalZoom and other online legal services that promise cheaper and faster services. It has been called the Uberization of the practice of law. 

These online quick-fixers seek to penetrate the legal field and offer a variety of alternatives to the traditional practice of law.

We as the judiciary are part of the problem and the reason ‘clients’ choose an alternative to the traditional civil justice path.  We are in a competition for our services, and must rise to the occasion. 

Identifying the areas that need to improve, the innovation that needs to happen, and the use of technology in the processing of cases is essential to our system remaining relevant.

The National Center for State Courts has an information-rich website showcasing the Civil Justice Initiative that is worth your time (NCSC.org) as is of course the Futures Commission Report.

I cannot stress enough the development of a culture of pro bono in our profession.  It has to be part of the legal culture; one that is given birth in law school and nurtured every step of the way. 

Pro bono is part of the Supreme Court mentoring program that takes place between an experienced lawyer and a newly admitted lawyer.

We cannot solve the problem with pro bono alone.  There has to be an increase in the funding for Legal Services Corporation.  This year we were fortunate just to hang on to funding.  I understand that in the second Trump-proposed budget, LSC is again attempted to be zeroed out.  Conference of Chief Justices sent a delegation and thru connections to powerful senators in D.C. our voice has been heard.  How many times can that rabbit be pulled from the hat?  It is incumbent upon all of us to inundate lawmakers with unbridled support of LSC.

Additionally, we have our eye on House Bill 182 and Senate Bill 120 that would authorize debt settlement companies to operate in Ohio.

Both bills involve authorizing non-attorneys to engage in certain debt collection activities. Our staff has reviewed both bills, and we know the OSBA’s position. (That such practices constitute an unauthorized practice of law.)

We are examining this issue in light of the Supreme Court’s duty to protect the interests of the public – and to protect the constitutional authority of the judiciary.

Now I want to update you on the Uniform Bar Exam. 

As many of you may know, I appointed a task force to examine the current state of our bar examination process and whether we should adopt the UBE.  More than thirty states have adopted the UBE.  Its attraction is the obvious portability of exam results, the broader base, then, of employment opportunities and a state’s ability to attract a larger pool of applicants for jobs.

Your past president Ron Kopp served on the task force we established last August to get a sense on your thoughts. 

The task force was charged with evaluating the feasibility and efficacy of implementing the UBE as an alternative to the current bar examination process.

The recommendations include:

Adopting the UBE, yet we need to be careful of how it impacts gender passage rates.

For example, research shows that women and minorities don’t do well on multiple choice questions.

For that reason, we will study the demographic concerning bar exam applicants.

We will also implement an Ohio-specific component to supplement the UBE, but only in the limited form of a post-examination course.

We will accept UBE exam scores for up to five years after the exam was taken.

And finally, applicants transferring a UBE score would still need to undergo a complete character and fitness examination.

Briefly, I would like to give you an update on proposed rules changes.

I want to touch on a few significant rules that have been adopted.

Starting September 29th, a new mandatory reporting law will go into effect for those who suspect elder abuse, including legal professionals. (R.C. 5101.61)

Any person with reasonable cause to believe that an adult is suffering abuse, neglect, or exploitation who makes a report, shall be immune from civil or criminal liability.

A new amendment will go into effect that will help promote legal aid societies. This rule (Civ.R. 3 and 5) would allow attorneys to more easily provide services to those without the means.  

Specifically, attorneys can provide unbundled legal services that will allow them to enter a case for a specific period of time, then exit without leave of Court.

The Case Assignment System (Sup.R. 36- .018) was effective January First. It’s a rule amendment that updates the process for the designation of trial attorneys and the procedure by which trial courts assign filed cases … to better ensure random assignment.

The Military Spouse Attorney Certification (Gov. Bar R. I) amendment took effect last July 1. This amendment allows attorneys who are licensed outside of Ohio, and are spouses of active duty military members, to be temporarily admitted to the practice of law in our state if their spouse is stationed here.

As for rules currently under consideration ...

We are looking at a potential amendment that would create the definition of what constitutes a “candidate” for office from the judicial branch.

The proposed change seeks to clarify when a judge seeking a non-judicial office must resign from the bench.

Another advised change is when an attorney resigns or retires. That lawyer would need an order from the Supreme Court. This would reinforce the ban against the retired of resigned attorney practicing law.

Another proposed amendment is changing the CLE requirements from 60 minutes down to 30 minutes.

I understand the OSBA and the Court’s Judicial College have asked for the change.

An amendment to Guardians ad Litem (Sup.R. 48 through 48.07) would update its rules of governance, including the factors courts should consider when making appointments and requirements for orders of appointment.

Also of note is a proposal from the Ohio Judicial Conference that would prohibit videotaping, recording, or photographing jurors or prospective jurors unless approved by the judge.  In courtrooms where camera work is impossible without including the jury as part of the background, general shots would be permitted, but close-ups would not. The proposal is being reviewed by a subcommittee.

There are more changes that you will be asked to comment on as they are put out.  Please don’t think that your comments go unread.  They are made available to each justice before we take a final vote on the Rule change.

One of the more problematic areas recently identified is the limitations of our disciplinary system for lawyers and judges.  We need to look into revamping the system to be more responsive in a much faster way.

Ohio is the only state that has a joint disciplinary board.  The system is neither nimble nor one that instills a level of confidence and that is precisely because of the delay inherent in our current process.  The case of my former colleague illustrated the limitations of our reach and the frustration felt by lawyers, judges, and the media, but more importantly the public.

We have promulgated the Rules that govern the judiciary and the bar.  They of course should be reviewed but more importantly, the mechanism by which we, as profession, police our own is under attack.

I welcome the partnership with the OSBA and other stakeholders to address this problem.

I appreciate the invitation to speak today.

... And I’m ready to entertain your questions ...