Akron Bar Association's Bench Bar ConferenceRetired Chief Justice Maureen O'Connor
October 14, 2022
Good afternoon. Thank you, Maura [Scanlon] for that kind introduction. And thanks to the Bench Bar conference for inviting me to speak to you today.
It is always good to be home to deliver remarks.
As many of you know, I spent my early legal career in Summit County. And I am always proud to talk about the opportunities and experience I got here as an attorney, magistrate, judge, and prosecutor.
I have great memories of those years. Great friends with whom I still enjoy life. I loved every position I was privileged to hold. Lots of serious cases and decisions…but also a lot of very lighthearted moments.
I remember early on as a common pleas judge I had a slew of defendants on the docket made up of those arrested at the Grateful Dead Concert.
They were charged with felonies but for the most part they plead to misdemeanors w/o jail time.
I do remember one fellow who wouldn’t plead because he was afraid he’d go to jail and have to cut his hair. I assured Larry Whitney that I wouldn’t send his client to jail…just convince him to plead and he can be one his way. He did. And I’m sure his first task was to find out where he could catch up to the Dead as they continued their tour.
First and foremost, I learned early on that most all of society’s problems show up in your law offices and in your courtrooms.
And while you can’t solve all the world’s problems, I want to encourage you to embrace what you can change. Make change for the people in front of you in the moment, and for a better legal profession.
Together, you are already doing it in many ways.
While there are bigger cities, bigger counties in our great state, this county is among the most innovative and forward-thinking bench-bar environment.
Allow me to point to some of what I’m talking about.
Juvenile Court Pilot Project
Judge Linda Tucci Teodosio leads an initiative focused on families involved in the child welfare system. The Supreme Court -- through our Court Improvement Program Grant-- is providing funds to the Juvenile Court for the multi-disciplinary pilot project. A defense attorney, a social worker, and a person that has life experience in the child welfare system make up a team to work with families that have open cases with Summit County Children Services.
The team works together to address the underlying issues that brought the family to child protective services. The goal is for families to reunify and exit the system quicker. As of their last report they had an active caseload of 21 cases.
I applaud the work. Finding new ways to attack old problems is really important. Your capacity to promote change lifts us up as a profession.
As Chief Justice, one of my commitments has been improvement of the justice system through technology. Technology can improve our service to our citizens and reduce the burden on both attorneys and court staff.
Many of you remember when the Supreme Court docket was completely on paper as were the local courts. Then a mini revolution occurred…We brought e-filing to the Supreme Court 7 years ago and haven’t looked back.
Through grants the Supreme Court assisted in funding its implementation in a lot of the local courts. It’s hard to imagine -- really incalculable -- the vast amount of time it has saved attorneys and the money it has saved parties. The work of the clerks’ offices -- while still a staggering volume -- is so much more efficient and error-free.
Ensuring courts around the state had funding to take on technology advancements is important to me because it’s an expensive initial outlay and local governments don’t always fund the courts in ways to allow innovation. County funds are limited. Priorities are many.
Judges and court administrators have to be resourceful and look for outside opportunities to seek funding.
There can be federal grants for pilot projects…volunteering for those is not easy but they are rewarding. State dollars through various agencies such as M,H, & Addiction Services.
Private grants and grants from the Supreme Court.
As chief justice, I took money from my budget each year to award grants to local courts who needed technology.
Since I created the Technology Grants program in 2015, we have helped courts across the state with almost $40 million for technology.
Over the years, Summit County courts have benefitted from the program. Just last year, Judge Ron Cable and the Akron Municipal Court was awarded more than $76,000.00 for an electronic display for the lobby, so that people can find their way around the courthouse more easily. And to replace and upgrade the audio recording systems in courtrooms.
When the pandemic arrived in 2020, we went from being technology-driven to technology dependent. The rapid deployment of digital and online systems was the silver lining to that COVID cloud.
People tend to think first of video conferencing, but the pandemic also created unique opportunities for courts to try new ways of managing caseloads.
Eviction pilot project
The Akron Municipal Court volunteered for the Supreme Court’s Online Dispute Resolution pilot project. Through the pilot, Akron and other courts use Online Dispute Resolution as an additional way for parties in eviction and small claims cases to negotiate a resolution. The negotiations can be on zoom, by text, or email. It can be with and without the direct involvement of a mediator. That makes it more accessible for participants and saves court time.
Since inception of the pilot program in 2021, the Akron court referred nearly 3,000 eviction cases and nearly 500 small claims cases to Online Dispute Resolution.
Technology, with all its fast-developing capabilities, can never replace the minds at the bar or on the bench. But it can provide the capacity to improve the operation of courts, thereby improving service to us all.
Without courts like Akron Municipal willing to try new case management approaches, we would not be able to learn what works and what doesn’t. In addition to service to your community, you are serving the profession.
Limited Scope Representation
Another area where you are innovating is in Limited Scope Representation. Also known as “unbundled” or “a la carte” legal services, this is an alternative way that self-represented litigants can get legal advice where otherwise they might not. Though it has been permissible since 2007, Limited Scope Representation is not widely used. That may be because of a lack of awareness by both the attorneys and the public, or because of lingering questions by members of the bench and bar on how it works in practice. Now, the Supreme Court of Ohio and the Ohio State Bar Association are collaborating to develop a resource on limited scope representation.
A toolkit developed by the Akron Bar Association is one of only a few resources available to Ohio attorneys on how to engage in Limited Scope Representation. Your toolkit outlines the ethical considerations, probably the most troublesome aspects for attorneys. It contains a sample engagement agreement, notice of appearance, and other beneficial documents. It is a model for the resource that the Supreme Court and OSBA will develop and publish. The goal is greater understanding of the benefits that limited scope representation has for attorneys, litigants, and courts, as well as provide practical strategies for attorneys on how to engage in and communicate this option to the public.
Limited Scope representation will not be the answer for everyone. But understanding options and information is a key to smart decisions.
Overall, there is evidence – historical, statistical evidence -- that the U.S. Criminal Justice System is fairer and more effective than ever.
Yet, we can do better.
We can do better by collecting and examining data.
Data allows analysis of a system that heretofore has had limited analysis. Data can guide us in so many areas of the judiciary. Most importantly, the establishment and widespread use of databases can advance the fair and equitable administration of justice.
I know there is no substitute for the discretion that comes with human understanding -- of the unique circumstances of a legal situation and the individuals involved.
Yet, an experienced attorney or judge who also has data can be more effective and part of a more trusted system. They can be informed about trends. What works and what does not. For example, how do sentencings fall compared to norms. The data is anonymized because the big picture is what is captured…not the individual judge or defendant.
The justice system is complex, multi-faceted and often complicated. Without data there is truly no way to know how well all segments of the system are doing. And if we can’t examine and justify our system, how can we petition the legislature for needed dollars? How can the legislature allocate taxpayer money for a system with programs that we can't offer empirical data are working.
The pilot starts with sentencing data collected thru a uniform sentencing entry but I envision a much bigger network.
I envision data collected from the time of the arrest -- to the prosecutor’s charges- the setting of bond - to the pre-trial proceedings -- to the disposition – to the sentencing if needed-- post sentence -- community control -- and beyond.
Where are people who experienced specialty dockets 5 years later? Compared to those who were in the regular docket? Incarcerated vs community control?
It is our moral responsibility to answer these questions…otherwise we in the criminal justice system may very well be flying blind.
My time is limited. I am not going to see that vision come to fruition in my term. It’s just not going to happen. However, some first steps are underway now. The Criminal Sentencing Commission led by Sara Andrews, along with judges, and the University of Cincinnati are working to standardize the way we collect felony sentencing data.
Summit County Common Pleas Judge Christine Croce is a leader in this area. She is among the 97 judges in 42 courts and 48 counties that have volunteered to participate in various ways. More are signing on every month. That’s because attorneys and judges, know that sentencing is one of the most complex parts of the criminal justice system. The Ohio Revised Code that covers sentencing has grown in the last 25 years. It has grown from 16 sections to 39 sections – with 46 subsections today. As I said sentencing is complex.
Recognizing it is an intricate process and ensuring clear, comprehendible sentences is of the utmost import for the administration of justice and promoting confidence in our system.
Whether you sit on the bench or are a member of the bar, this should be of interest to you. Data can advise how you represent your client, and it can advise and confirm how we dispense justice. Data analysis can often suggest a better path forward.
For the public to be informed and for truth to win out over rumor and fiction, people must be able to see justice administered fairly, and understand how we measure that. The very foundation of our American justice system rests on the belief – by the people – that they will be treated fairly, equitably under the law.
Those of you who know me know I am committed to civic education.
In the classroom and beyond. With the election just a few weeks away it’s a good time to tout Judicialvotescount.org Data shows that among voters, there is a falloff in choosing judicial candidates. They say they don’t vote for judges because they don’t know enough to select.
I have worked diligently to convince Ohioans of the importance of voting in judicial races. Each and every one of you needs to do that, too.
Educated voters are good for democracy. And believe me we need educated voters now more than ever.
In Ohio there is a pattern called voter drop off.
Voters who don’t vote for judges because they don’t have enough information…and they don’t know the judges.
Six years ago, I started a cooperative partnership among myself, the bar, academia –the University of Akron -- media organizations, and the League of Women Voters. The mission was to provide unbiased, access to information about candidates for judicial office -- in their own words -- in one place. Judicial Votes Count -dot-org - was born. Each judicial candidate shares their information. This year, judicial votes count – dot-org has moved to the Ohio State Bar Association. The OSBA, with the help of dollars provided by the legislature is spreading the word and making it bigger than ever.
We also owe thanks to the legislature, in particular, Speaker Cupp. Last year I had a conversation with Speaker Cupp. This year I don't have conversations with Speaker Cupp. But when I had a conversation with Speaker Cupp. To his credit, I asked for money for this program so we could advertise it. There was a little glitch in the legislation that had the allocation. He fixed it right away. And so, we had the funding that we needed to advertise judicial votes count. So, I am grateful. I'm grateful to him and the legislature for doing this because I think this is a tool that will only continue to grow.
So, if you are a judge who is on the ballot this year, please fill out Judicial Votes Count -- even if you are unopposed. And I say that because people will go there and they'll look, and they'll learn about you. And that is extremely important.
People need to know who you are even if you are unopposed.
The website will be used by media across the state. The bar association has a media campaign behind it. Voters will know where to go to find out who is running on their ballot in their county.
Again, if you are a candidate, fill it out.
Please encourage the people in your community to get educated and vote for judges. Tell them about Judicial votes count – dot -org. Tell them every chance you get because an informed electorate means good government.
In a recent webinar by the National Center for State Courts, experts talked about the value of civic education to combat misinformation, disinformation, and growing mal-information. Yes, MAL-information. A newer definition in the information conversation. The ‘experts’ talked about facts that are used in a way that misleads. The context creates the bad information.
The solution, however, is good, reliable information from a variety of trusted sources. Be a trusted source in civic education.
Start with clients and community organizations.
Speak in classrooms, at the Rotary luncheon and at every other opportunity you can find.
You are a trusted voice…use it.
I also want to mention Issue 1 on the November ballot. Judges and attorneys are expressing confusion. And it is confusing. I encourage you to take a look at the language about Bail. Become knowledgeable.
Members of your community will ask you about it. Because they look to you as the “subject matter expert” on the judicial system.
Fairness is the central issue when we examine bail. The purpose of bail is to provide the accused a means of leaving detention while awaiting resolution of a case. In our state and others, most jail detainees have not been convicted of anything. The state’s bail task force in 2019 found 60% of prisoners in Ohio jails were awaiting adjudication. They were not convicted of anything.
But there they were. People waiting for their case to be resolved. People who cannot afford bail. In many cases, it might seem like a nominal amount to you or me. The inability to pay a bail of $250 is a reality for many Ohioans.
And we know that even 3 days in jail may mean the loss of a job. After being fired, they lose their place to stay. There may be repercussions with children services. It is a spiral that only goes down.
The Sup Court has revised rules regarding bail as a result of a task force on bail reform I created in 2019. When considering bail, the first step is to ask if there is the need to even impose a cash amount. The first inclination is personal reconnaissance. And of course condition of bail are important.
There has been a lot of discussion about the DuBose case. And I would like to set the record straight. DuBose did not take options from judges. It does not make Ohio less safe. Unfortunately, it is being weaponized for political purposes to benefit the three republican justices on the ballot. It has been used as a fundraising call and has falsely created a sense in insecurity for those who listen to the candidates.
Here is what DeBose says:
judges must consider each case on the facts. That isn’t a change in the law or constitution.
Today, a prosecutor or law enforcement officer can present information at a bond hearing. This is where a judge evaluates community safety.
The very first decisions that are made by a judge should take into consideration community safety.
If an individual is charged with a certain category of violent felony -- and that's statutorily listed – and after a bond hearing, if that defendant is determined to be a flight risk -- or is a threat to the community, a threat to witnesses, a threat to victims or their families or other solid reasons, then the court can determine that that individual does not get a bond. And that person is detained until the resolution of their case after a bond hearing.
News flash: no amount of bond will compensate for the risks I just mentioned.
Another reality is that prosecutors balk at having to go thru a bond hearing. Too burdensome for the system and if judges fail to realize its constitutionally mandated and instead just set a high bond` to keep someone in jail I guarantee there are constitutional problems.
If a judge decides to set bond, then an amount that is sufficient to assure the return of the defendant to court can be set. Again, the amount is to ensure a return to court not an amount to keep the defendant in jail… other conditions such as electronic monitoring, drug testing, etc. are often imposed as well. All the while following the constitution mandate that all are innocent until proven guilty. And that’s what Dubose says.
The tools to guide judges’ determinations are in the Eighth Amendment to the U.S. Constitution, Section 9 of the Ohio Constitution, Rules of Criminal Procedure 46 and 46(B), and in the revised Code at 2937.22.
But a constitutional amendment on the ballot this fall would require judges to consider public safety when setting bail.
If a judge is setting bail, he or she had better already have considered public safety because that was the first thing that they had to consider. The bond at that point is only to ensure that the defendant returns to court.
To manufacture fear and continue a pattern of jailing the people who can least afford to be released does not protect society. It only assures that money determines the level of freedom and civil rights that one enjoys.
Being good stewards of the legal system means supporting judicial leadership that follows the law and the constitution.
Benefit to Bar
Through the pandemic, when people could not meet in person, CLE changed. We temporarily lifted the self-study cap on CLE, because it was necessary. Going forward, the cap has been raised or lifted entirely -- permanently. Now, you can now stay current in the way that best suits your style, the way you learn, and your practice.
The one thing that has the potential to get lost is the exposure to a variety of ideas outside of our own. Don’t just select courses that lock you into an echo chamber. Seek out opportunities to learn about ideas alternative to your own. Cast a wide net. Make specific commitments to engage with a wider circle of colleagues.
The work you do impacts public confidence in the legal system, our courts, and our system of justice.
Studies tell us that most people will have two or fewer interactions with the legal system in their lives. Often it is anticipated: buying their home, having a will prepared, divorce, or an estate.
Other times it is not: Involvement with the legal system takes on the trappings of an emergency.
Join me in reminding them that ours is a justice system that is transparent, fair, and provides equal access to every citizen.
Make the point in your words and in your deeds. Commit to improve the civility of our profession with your every interaction: judge and parties on both sides of a case, attorney to attorney, attorney to client, and person to person in every facet of life.
Manners, decorum, and politeness are good habits both in the courtroom and out. We can’t always control the other guy. But we can each commit to civility in our own interactions.
And take the opportunity to pass your professionalism to up-and-coming attorneys.
Lawyer to Lawyer Mentoring
A month from today, I will admit a new group of young lawyers to the Ohio bar.
The Supreme Court Commission on Professionalism is always in need of mentors in our lawyer-to-lawyer mentoring program. The program has been around for about 14 years, and the Commission provides extensive resources to guide mentoring discussions. But they only need what you already have to share: your experience. More than half the mentees (57%) in a recent survey say they’re looking for advice and encouragement. The added benefit to you is the connection with another young attorney who may show you new ideas. You’ve certainly got one hour a month to give support and encouragement. And to the future of the profession.
The United States is the longest continuously operating democracy in the world. Pretty darned good. And by nearly every measure, Ohio is a leader.
But we are not perfect and there is always room for improvement.
There is so much left to do. And I leave it to you.
I have encouraged the administrative staff of the Supreme Court to help you do your job with the best support that we can offer. And I encourage you to work together to make each other’s jobs easier by communicating and sharing information.
So, to recap …
Try new approaches to solve old problems.
Keep up with technology.
Encourage data-driven decision making.
Educate the electorate about the judiciary.
Embrace civility and advance the legal profession by your example.
Keep democracy safe and leave it better than you found it.
I hope I have.
And now, I cannot say I have really looked ahead and pictured retirement. The odds were against it. After all, I am the first chief justice to “age out”.
What does that mean? I'm the first since the creation of the elected chief justice position in 1912 to leave office by retirement. All the others have unfortunately died in office, or 4 had their career end when they lost election.
Now, I'm not going to lose an election. We know that for sure. And if I can stick out about 78 more days, I think I will have set a new record for the state of Ohio.
Then, I plan to turn down the ringer on the phone for the first time in – forever.
I want to see what it’s like to not have a schedule, a mountain of reading, and days of meetings. I’ll take 4 months to try that on…as the Italian phrase goes: il dolce far niente
The sweetness of doing nothing.
Then I’ll figure out what I want to be involved in…definitely I want to be involved in drumming up support for a new constitutional amendment to replace the current constitutional provision that established the make-up of the redistricting commission…let’s eliminate members who are elected and therefore not impartial. Let’s instead have people who are not political not elected and who only want good fair government to draw constitutional and legislative districts.
Whatever the legacy of these last two decades, it is not mine alone. For there is little I have done on my own. I truly feel that the history of the Court in this time – the reforms and the accomplishments – have been a result of all the people – including so many of you -- who have stepped up and given selflessly of your time, talent, and intellect, to make life better for Ohioans.
I will not forget the legal community that has given me so much, and the Akron community that has supported me over the years. Next year, when you see me in the grocery store, or on the street, I’ll be Maureen O’Connor, private citizen. And I’m excited to see what life’s next adventure holds.