Ohio National Federation of Independent Business Small Business Day at the CapitolRetired Chief Justice Maureen O'Connor
September 15, 2021
(The following was presented at the Athletic Club in Columbus.)
Good morning, everyone.
Thank you, Ms. Roudebush for your introduction.
And thank you to the NFIB for inviting me here today.
It’s a pleasure to speak to all of you in person, and not via Zoom, despite the fact that we remain on shaky ground with COVID after 19 months.
It’s pretty much established that when it comes to the economic sector, small businesses have borne the brunt of the COVID crisis.
Businesses big and small crave stability more than any other attribute – and that’s the main ingredient that’s been missing for most of you.
I hope for your sake and for the sake of our society that stability returns as soon as possible to the business sector overall, and to small businesses in particular.
The impact of Ohio’s courts on small businesses is an interesting equation.
Businesses certainly see many types of civil cases as being important to their business plans. Oftentimes, survival is on their minds. We know this by the number and content of amicus briefs filed by businesses in a variety of cases.
The term “American business’’ encompasses all sorts of enterprises and all kinds of funding measures, asset accumulation, expenditures, and on and on.
Businesses require capital flows, so banking and investment matters are involved. Most businesses rely on supply chains, and that can involve transportation systems or manufacturing standards.
Businesses need human resources, and that means issues such as workers’ compensation and regulations on working conditions.
The list goes on and on because new conflicts arise all the time.
There are no well-defined borders defining what we call business in this country.
That’s a good thing, overall. I think we can agree that it’s good for society when stable older businesses and innovative new ones co-exist and serve our citizens.
So, what about the question of our courts and business?
The best answer I can give is that the American judicial system, which is unique in the world, is based on fairness and access for all.
I’m not saying it works that way all the time. It is up to judges and justices, and judicial leaders like me, to be vigilant when it comes to access and fairness.
You might ask if judges should be – or can be – pro-business or anti-business.
In my view, judges need to follow the law.
I also want to note that this question becomes moot when businesses sue each other.
Sure, we see cases where, for example, a consumer group sues a business, or a government entity goes up against a business on regulatory grounds. It can become a well-defined “us versus them” scenario for the business community.
But in so many other cases, the adversaries in court are both business-related. Their views about a contract, for example, can be at issue.
Another type of situation is created when one party is seeking a ruling that would change a business practice. One business group might see a ruling one way to be to their disadvantage, while another sector would have the opposite view.
This is why fairness and following the law are solid guiding principles in business cases.
When you hear someone allege that a certain judge is pro-business or anti-business, please remember that judges are charged with interpreting and applying the law. We don’t write the laws.
That’s the work of the legislature. The way legislation is crafted, and the way legislators try to express the intentions of their handiwork when their words are placed on paper, serve as guides for the judge.
Of course, judges and justices can determine whether laws – or parts of laws – conform to that other big guidebook known as the Ohio Constitution.
One area to note for you today is judicial education.
Judges need to understand the issues before them, and the ramifications of the rulings they will make on all parties coming to their court.
The Supreme Court of Ohio is heavily engaged in the continuing education of judges, magistrates, and court staff.
Continuing education is mandatory for them.
There are two other important avenues that have been created by the Supreme Court to level up the expertise on the bench.
One is the assignment of commercial docket judges. These are common pleas court judges who must complete a minimum amount of legal education focused on business affairs.
The courses are those approved by the National Judicial College or the Judicial College of Ohio.
Another avenue offered at the Supreme Court level is the unique system of subject matter experts on our Legal Resources staff whom we call Master Commissioners.
The Supreme Court of Ohio has 12 master commissioners. Among their ranks are experts working in three fields critical to business – workers’ compensation, taxation, and public utilities.
Three of your favorite subjects, I know!
Others work on issues as wide-ranging as attorney discipline, extraordinary writs, the death penalty, and so on.
These experts spend significant time with the briefs and reviews of the lower court record. They consider the legal issues and the parties’ competing arguments.
Our seven justices decide the cases. But the advice and recommendations of the master commissioners are highly valued, believe me.
Ohio’s master-commissioner system is fairly unique among states.
It reflects our Court’s long-held belief that when it comes to ruling fairly and accurately on cases, there is no substitute for deep knowledge of complicated issues.
There are ways, too, that the Ohio court system benefits businesses by benefiting everyone.
All of you seek business stability. You need to know what the legal and regulatory landscape will look like so you can make accurate business plans.
You can’t make efficient commitments to human resources, supply chains and asset investments without the freedom to create well-grounded business direction.
Courts in Ohio are helping your ability to forecast by getting more efficient in finishing their work.
Delays in court decisions lead to uncertainty – and that can be costly when it comes to business planning.
The Supreme Court monitors local courts’ performances and provides them resources to be as efficient as they can be.
This monitoring function, along with interpretation of the data, has stepped up greatly in the past several years.
A good example comes from the Supreme Court’s Case Management Section. It trains new judges and new magistrates on how to optimize busy dockets. They use case-flow management for maximum efficiency.
One technique is “proportional allocation of judicial resources.” This simply means that instead of assigning resources on a one-size-fits-all basis, each case is analyzed for resource needs with justice in mind.
Justice, fairness, and adherence to the law come first, of course.
But speedy outcomes are designed into this initiative.
Some cases are relatively simple while others are complex.
Our case management techniques free judicial calendars so that the complex cases, where more judicial intervention is required, receive the proper level of resources.
Shorter disposition times translate to fewer hours in court, reduced attorneys’ fees, and a quicker turnaround on enforcing judgments.
You may ask, “How is this working at the Supreme-Court level?”
The answer is, “Quite well” – due to some modifications we have made.
First, the background.
Those who lose a case in Ohio at the trial-court level have the right to appeal to our Court of Appeals, which has 12 districts.
But the vast majority of cases going higher, to the Supreme Court, are discretionary. We can decline to hear a case and let the appeals court ruling stand.
We agree to hear cases where the matter at issue is of great public interest, involves a constitutional question, or if the appeals districts have issued conflicting rulings in similar cases.
In a typical year, these discretionary appeals make up close to three-fourths of the Court’s entire incoming caseload. And many of those cases involve Ohio businesses eager to achieve finality of their litigation.
The process of deciding whether to hear one of these appeals involves the Court reviewing memoranda in support of and in opposition to the Court granting jurisdiction.
In 2018, we conducted a comprehensive examination of the way in which we manage our workload. We found that historically it took an average of 146 days to decide whether or not to hear a discretionary appeal.
To address that delay, the Court adopted a new approach to speed up the process while ensuring a fair, thorough, and effective review.
We have since reduced the jurisdictional decision time to an average of 72 days – cutting our average processing time in half.
Before 2018, only 36 percent of these appeals were decided within 90 days. Now, we are getting nearly 90 percent finished within 90 days.
This is quite a turnaround.
I would like to see data from other states to see how we measure up. I’m thinking we are at – or very near – the top when it comes to efficiency at the Supreme Court.
Another path to efficiency being enlarged by the Supreme Court and are staff is mediation and online dispute resolution.
The Supreme Court provides regular education to attorneys and mediators on best practices for mediating cases. This means helping parties work together to resolve their disputes and avoid costly and time-consuming litigation.
In a variety of ways, the COVID-19 pandemic forced the judiciary to rethink the way our courts do business. Online and remote hearings have become a big part of that.
Currently, the Supreme Court is working with a set of pilot courts to implement an online dispute resolution system.
It would allow parties to begin immediate negotiations when it’s most convenient for them, using perhaps nothing more than a smart phone.
If the parties choose, their discussions can be guided at no cost by specially trained mediators.
If these pilot implementations are successful, we will look to increase online dispute resolution so that litigants across Ohio can benefit from this modern and efficient way to settle disputes.
Many of the beneficiaries will be businesses waiting anxiously for a dispute to be settled.
There are many more examples of how Ohio is focusing on the knowledge level of judges while increasing court efficiency.
You’ve all heard that justice delayed is justice denied. In your case, it could be business plans delayed, too.
If we see a gap in knowledge or efficiency in court processes, we address it.
Sometimes we do that through the Supreme Court’s rules-making powers granted in our state constitution.
These are court rules that many attorneys and certainly most parties are often unaware of.
This is because the rules governing the general operations of local courts are directed at judges and court professionals. These upgrades don’t get a lot of attention outside those two groups.
In our many training sessions and judicial education activities, we make sure that judges, magistrates, and court staff understand that the purpose of these rules is to ensure that our courts operate effectively – and without undue delay.
We collect routine caseload and performance statistics from the courts and publish that data online within interactive dashboards.
This exercise allows the general public and court observers to see how well our courts are keeping up with their caseloads and disposing of cases in a timely manner.
You should call up the Supreme Court website, place Data Dashboards in the Search area and see the kind of data we are collecting.
I think you’ll be impressed with the amount of available data and with the transparency of our system.
Yes, we hear all kinds of cases of critical importance to businesses.
From insurance cases to utility disputes, the Supreme Court of Ohio hears all sorts of matters that directly affect your business, and ultimately, your bottom line.
And we work to ensure that judges at the local level are receiving the education they need to stay abreast of all the demands society places upon them.
One complex case that was solved amicably involved tax returns.
One interest group said that it’s common for contractors who work in numerous cities to file 20, 30, or even 40 different tax returns.
A ruling by our court will, they said, “allow plumbers, electricians, and other Ohioans who work for themselves or own small businesses to file their local income taxes in one place, saving them time and money, and cutting unnecessary government bureaucracy.”
Speaking of taxes, one role the state tax panel and courts play is determining the constitutional limits of state and local taxing authorities.
We also rule on utility cases that impact, for example, how much in fees can be added to bills.
We regularly hear cases involving the Public Utilities Commission of Ohio, the agency that regulates utility businesses in Ohio.
In fact, PUCO cases bypass local courts and come directly to the Supreme Court.
One case we decided found that the PUCO improperly excluded revenue from a “grid modernization” charge to Ohio Edison customers when conducting an annual earnings review.
Another utility rate case allowed for more incentives for businesses that invest in energy efficiency.
One of the most difficult matters right now is evictions.
Many landlords are businesses. Many tenants are businesses.
Last month, the U.S. Supreme Court ruled that the CDC exceeded its authority with its most recent eviction extension, ending the moratorium.
Our Supreme Court staff was planning for the moratorium to end at some point. They created a toolkit for judges and mediators to seek the best outcomes for all parties in the eviction cases before them.
Our toolkit lets judges and mediators know that federal dollars are being distributed to states and transferred to local community action agencies for direct assistance to individuals.
Courts provide a venue to connect tenants and landlords with emergency assistance and resources to prevent displacement of families and lessen financial burdens for both parties.
The toolkit points out that early intervention in eviction cases is the key to preserving tenancy.
Ideally, efforts by courts and clerks of courts would divert parties to services prior to an eviction action being filed.
With the end of the federal eviction moratorium, now more than ever courts need to be proactive in their efforts to divert tenants and landlords away from formal court action and instead seek rental assistance or alternatives forms of dispute resolution.
Judges can also engage community stakeholders to collaborate on their relief efforts and encourage them to launch a coordinated public awareness campaign regarding the availability and eligibility of rental assistance.
The pandemic has been a difficult time for you, as small-business owners.
Many of you are having trouble hiring people to keep the lights on. The pandemic has affected your customers.
Groups like yours are critical in helping smaller businesses remain aware of cases moving through the judicial system that could affect them.
That’s especially true in times like these.
I hope I’ve provided you with some new perspectives on our judiciary.
We are committed to working diligently and quickly to resolve disputes, as we maintain our independence and impartiality.
Thank you, for the opportunity to speak to you today.
And God Bless.