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Justice Speeches

Akron Round Table
Retired Chief Justice Maureen O'Connor
April 21, 2011

Chief Justice Maureen O\'Connor

Akron Round Table

April 21, 2011

Thank you very much Patrick for that introduction, and I want to thank my friend John Adams for the invitation to attend this afternoon and to speak with you. I'm honored to do so, and especially pleased looking around the room at how many people are here that I have interacted with and friends and colleagues over my many years in Summit County. It's wonderful to see you all again, and I'm going to say this and I mean it: \'None of you has changed a bit.\'

I'm very pleased to be here at the Akron Roundtable, as this forum is noted for bringing together leaders of our community, our state and nation to discuss topics of common interest. And of course this work would not be possible without support of the sponsors, and I want to recognize those as well the Akron Beacon Journal, the Akron Downtown Kiwanis Club, and the Greater Akron Chamber of Commerce. Thank you for your commitment to this extremely important forum.

It's very encouraging to see the number of attendees this afternoon that there's a large public interest in the topic that I'm especially interested in and that's making a good system even better when we are referencing our judicial system here in the state of Ohio. Today I want to share some of my ideas that I have talked about over several months now since I've taken office as Chief Justice and it's a wonderful bully pulpit for talking about improvements to the court. And that's one of the most enjoyable and exciting things about this job.

Innovation and collaborative problem solving are occurring throughout Ohio in our court systems, and I'm excited about what we can do together to improve the administration of justice here in our state. During my swearing-in remarks in January, I outlined several areas and initiatives for the Supreme Court for the improvement of the judicial system.

One of the things that I discussed was my belief that the challenges we face in the Ohio judicial system can be met, but we can only be successful in addressing those challenges if we work together.

I have begun to contact leaders throughout the state in the judicial and legal communities. My plan is to visit all of the counties and talk with the bar associations of all of the counties and the members of the judiciary of all of the counties. I have been able to do that on several occasions and am very pleased with our interaction and very pleased to listen to their concerns.

And of course we have a very large and diverse state, and the problems and concerns of the judiciary are diverse. It's extremely rewarding to sit down with a group of judges that represent all of the courts of the county and to sit down with members of the bar association and talk about their challenges and talk about their issues and talk about what we can do for them as members of the Supreme Court and how we can work collaboratively. We have a wonderful judiciary in our state, and I'm very proud to be part of it.

I think that there are four areas that we need to come together and address. One, of course, is the budget. Another is an initiative that I championed and have championed for some time now and that is supporting diversity and access to justice. Third, is supporting impartial courts free from political influence. And finally, supporting collaboration and community involvement from our judiciary.

Today, I'm only going to focus on one of those areas, and that is supporting fair and impartial courts by improving the way we select judges here in the state of Ohio. Now let me say at the outset: This is not a discussion about the so-called "merit selection" versus the elective process of how we select our judiciary.

We are now one decade into the 21st century, and I believe that we need to improve beyond the old debate about appointed judges versus elected judges. We must find a way to transcend the old rhetoric, to recast the old question and quite literally think outside the box.

Very well-meaning, thoughtful, and committed people have worked to replace our current system of general judicial elections with some type of appointive system. My very good friend and mentor the late Chief Justice Moyer was a champion of that cause. He brought together leaders of the legal community, the legislative community and the judicial community for a "Forum on Judicial Selection" in the fall of 2009. This group proposed that Ohio, once again, pursue an appointive system, at least starting with the Justices of the Ohio Supreme Court.

But an appointed system had been presented to the electorate in Ohio twice before, once in 1939, and again in 1987, and it was soundly rejected by nearly a 2 to 1 margin. If it were to come up again today, I believe that those margins would be very similar if not greater when it comes to the selection process. Ohioans want to retain their ability to select judges. They believe in judicial accountability, and articulate that they want to retain the ability to vote for their judges whether it be on the local level, the appellate level, or the Supreme Court.

So, what I have proposed, and what I want to talk about to you today, is that we go beyond the merit-selection discussion and instead examine a series of changes we can make to the present elective system that we operate with right now.

You might ask the first question, why do we need to make changes? Certainly we have as I said earlier an excellent judicial system in Ohio, and we manage to attract and retain men and women of the highest caliber to sit on the bench. But the system is not perfect, and there is always room for improvement.

If nothing else, we need to address the public's perceptions - or perhaps I should say misperceptions. Here are a few statistics from public opinion polls that I find troubling:

In one survey 76 percent of voters believe campaign contributions affect a judge's courtroom decisions, and according to another survey 79 percent of business leaders report a belief that campaign contributions made to judges have at least some influence on their decisions in the courtroom. Eighty two percent of Americans surveyed in a Zogby poll said they were very or somewhat concerned that judges are subject to undue influence by political special interest groups.

No matter what the basis for the public perception or the misperceptions of politics affecting the judiciary, we can and should examine the institution of judicial selection and discover ways to improve it.

I am motivated by some of the same factors that drove the late Chief Justice Tom Moyer and others to call for judicial selection reform. In 2006, Chief Justice Moyer addressed the Columbus Metropolitan Club, a group with a mission and format very similar to the Akron Roundtable. And he said at that meeting he was concerned with quote "attacks from organizations and public officials on judges for their decisions in specific cases attacks that threaten retribution and urge changes in jurisdiction of courts."

If we fast forward to today and take a look at what is happening across our country in the same arena, you have judges in Colorado, in Iowa, in Wisconsin and other jurisdictions who have faced highly organized political ouster campaigns in a response to specific controversial decisions.

Since the earliest days of the republic, and to the present, there has always been the threat of politics corrupting the sanctity of judicial impartiality. Chief Justice Moyer made the case for vigilance in this area in his Metropolitan Club address when he asked: "Why should Americans be concerned? The foundation of a constitutional democracy is impartial courts courts adjudicating civil and criminal cases free from political and other influences. Consistent standards and principles guide the decisions of impartial courts. Partial justice as opposed to impartial justice is decision-making in response to the popular will or the inclination of the decision-maker. Partial justice is decision-making subject to inappropriate influence and partial justice is no justice at all."

I could not agree with my colleague Tom Moyer more. I feel a special duty to carry forward his work and do what I can to support impartial courts here in Ohio. But as I said earlier, I see it a little differently. I feel that there is a different path that we can take to make significant improvement to the system we have in Ohio. And I see a model for doing this that has been developed up the Cuyahoga River in Cuyahoga County in Cleveland.

And I'm going to mention just briefly what the Cleveland Metro Bar has put in place which I find to be very exciting. But before I do that I'd like to recognize the man who is the brains behind the program I'm going to talk about. I just want to thank Cleveland Bar President Michael Ungar and I think that you will see why.

In his inaugural speech as the incoming president of the Cleveland Metro Bar Association, Mike outlined what he called the "evolutionary, indeed revolutionary" work of the Cleveland Metro Bar in this area. The Cleveland Metro Bar has two initiatives, including the Task Force on Judicial Excellence and their newly formed Judicial Qualifications Committee. I'm particularly interested in this Judicial Qualifications Committee.

Together, these two innovative initiatives are making great progress in improving judicial selection in Cleveland and could serve as models for the entire state. It is instructive to examine the task force's fundamental mission because it illustrates how we can make great progress on this issue by recalibrating our thinking.

The Cleveland Metro Bar's Task Force started by asking the following questions: Are we attracting the best qualified candidates to run for judge in northeast Ohio? Are we as an organized bar, with a vested interest in judicial excellence, taking appropriate measures to identify and encourage qualified candidates to run? If not, why not? And what are the root causes of the problem? And what realistically can be done to address the problem?

Notice they don't ask: Should we have elected judges versus merit-selection, because this disjunction has lead to gridlock and inaction for decades.

Instead, our friends on the lake have drilled deeper than this and asked the more fundamental questions that are more likely to lead to a consensus and to progress and ultimately an increased level of public confidence in the judiciary.

There are few things that distinguish the Cuyahoga County effort and mark it for success. First and probably foremost, it is highly inclusive. In a county that has had its share of partisan political conflict, last year the chairs of both the Cuyahoga County Republican and Democratic parties signed on to participate in both the Task Force on Judicial Excellence and the Judicial Qualifications Committee. They have held open public forums in communities throughout the county to discuss ways to improve the system. They have truly collaborated on reform and improvement.

Second, the Cuyahoga County model includes a public education component. Through an active Web site and other initiatives, the Cuyahoga County Task Force on Judicial Excellence recognizes that in addition to finding innovative ways the county can attract, elect, and train a highly qualified judiciary, we must also focus on informing and educating the public about both the need for a qualified judiciary and the actual qualifications of specific candidates for judicial office.

Finally, and perhaps most substantively, under the Cuyahoga County model, the Judicial Qualifications Committee, created by President Mike Ungar in December 2010, is working cooperatively with the chairs of both local political parties to substantively screen candidates for judicial office without regard to politics.

That's right, the current mission of the panel is to bring people together from both parties and recommend qualified candidates for judicial office - for gubernatorial appointment.

Criteria considered to determine if a candidate is qualified or not qualified include professional ability; work ethic; character, independence and integrity; reputation for fairness and lack of bias; temperament, including courtesy and patience.

Also considered are: the number of years of experience practice; specific experience in the court to which the applicant aspires; community and bar activities; and the need for diversity.

And this group has a broad diversity of membership: Members of the Qualification Committee include representatives from the Cleveland Metro Bar Judicial Selection Committee, the Asian American Bar Association, the Cuyahoga Criminal Defense Lawyers Association, Judicial Candidates Rating Coalition, Human Rights Campaign, Norman S. Minor Bar Association, Ohio Women's Bar Association, Cleveland-Marshall College of Law, Case Western Reserve University School of Law, both as I said the Democratic and Republican party chairs. Membership includes large firm attorneys, small firm attorneys, prosecutors, defense lawyers, government lawyers, public representatives, etc. And I found out recently that they have just received the participation of the Hispanic bar from Cleveland.

The beauty of this judicial qualification committee is that it has buy-in in participation by both chairs of the parties. Both have promised that no candidate will be offered to the governor for appointment to fill a vacancy who has not been qualified worthy of the appointment to the judiciary. I've spoken with both chairs, and cannot speak highly enough, cannot commend them highly enough, for being involved in this process and in keeping their word about this selection. The Judicial Qualifications Committee identifies three candidates who are deemed qualified by this bipartisan group, and only those names have been submitted to the governor for appointment in Cuyahoga County.

Some cynics would say that politics would still play a part in the process, but they are wrong. The numbers bear this out. When candidates are screened, the committee is made up of members of both political persuasions and independents. The votes are overwhelmingly unified, often 30 to nothing. If politics entered into the process you would see votes divided along the potential candidates' party affiliation. And that does not take place when these tallies are made. The members of the qualification committee merely want good judges, yes free from political influence. But also smart, temperate, patient, congenial, and how about humble, public servants who understand that it is a privilege to serve.

I commend the many dedicated lawyers and judges of Cleveland who have come together in this effort, and I encourage you to nurture similar efforts here in Summit County.

Now, that brings me to the specific package of reforms that I have proposed statewide that I hope to carry forward with input and assistance from the judiciary and from the bar.

I see four specific things that we can do that would result in significant substantive improvement in the selection process and would at the same time help address the public's misperception about judicial independence and impartiality.

I am in preliminary discussions with legislative leaders on some of these reforms, and I would welcome your input either this afternoon or in some other format that would help us either improve or modify the suggestions. They are not set in stone; I do not have all the answers. But I believe these proposals are a good starting point for a healthy discussion on how we improve the system.

The first and possibly the most controversial, I believe we should eliminate partisan primaries for judicial offices and move to a system of non-partisan primaries that removes party affiliations from the names of judicial candidates on the primary ballot. Ohio is the only state in the country that elects judges in partisan judicial primaries, followed by non-partisan general elections. History teaches us that less partisan politics - not more - supports fair and impartial courts.

Ohio should join the other states that hold nonpartisan primary elections to select two candidates, the two top vote getters who would face off in the general election in November. Party affiliation would not appear on the ballot in either election because party affiliation is irrelevant to judging.

The two-party system has a storied tradition in the United States and in Ohio politics, and political parties have played an important role in shaping public policy, in recruiting people to serve, and in motivating everyday citizens to participate in the elective process.

But party affiliation is irrelevant to judging and should not play a role in judicial balloting. The current system was implemented as a political compromise in the Progressive Era in the early part of the 20th Century. I believe the time has come for Ohio to remove party affiliation entirely from the ballot both in the primary and the general election for the judiciary.

My second proposal is to set up some type of statewide system for vetting candidates for judicial appointment. Nearly half of Ohio judges first take the bench by gubernatorial appointment to fill a vacancy, and this is a critical piece in the process. By establishing an objective process for screening candidates and making recommendations to the governor, judicial selection panels would involve more members of the community in the important process and strengthen the public's confidence in the process.

As Cuyahoga County works to set up this type of system at the local level, my hope is that we can develop a model that will work in other communities across this state. These appointments are too important to be subject to even the hint of politics.

Third, I support amending the Ohio Constitution to require the advice and consent of the Senate in filling Supreme Court vacancies. This simple change would bolster public confidence in the judicial system by adding a sensible check on gubernatorial power. Ohio would make it less likely that these important appointments are made on an overtly political basis.

Finally, I support increasing qualifications and training for judges and judicial candidates. This is something that has been proposed and discussed in legislation in recent General Assemblies over the past years but has not moved forward. Under this proposal, the basic qualifications for judicial office would be increased including the number of years it would take to be eligible to run for the judiciary: from six to 10 years for common pleas, six to 12 years for appellate judges and from six to 15 years for the Supreme Court. The Supreme Court would also establish a judicial candidate education program for candidates preparing to seek judicial office.

These are sensible reforms that only enhance the judiciary in the state of Ohio. As lawyers, all of us are called to uphold the ideals of the Lawyers' Creed which states quote, "I shall strive to improve the law and our legal system and to make the law and our legal system available to all." Together, we can meet this obligation by working to improve the judicial selection system, further insulating the courts from even the perception of political influence and thus increasing public confidence in the system.

Before we launch into the question-and-answer session, I want to reiterate my thanks for the invitation to speak with you this afternoon and also my thanks to the work of the Akron Roundtable.

I'd be glad to take questions, thank you very much ladies and gentlemen.

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