State of the JudiciaryRetired Chief Justice Maureen O'Connor
September 15, 2016
Chief Justice Maureen O\'Connor
State of the Judiciary
Sept. 15, 2016
Thank you Jack for that introduction and for the invitation to deliver the State of Judiciary for the sixth time. Thank you as well for choosing a theme of access for justice for the annual meeting. Justice for all is indeed a promise we need to keep and deliver to every Ohioan.
I add my congratulations for Judge (Linda Tucci) Teodosio upon receiving this year's Moyer Award and for the Delaware County Probate/Juvenile Court for its innovative court practices award.
Thank you for pushing forward with ideas and solutions that ensure justice for all in all parts of Ohio. Thanks as well to the state bar for annually recognizing worthy programs and strong judicial leadership.
To my colleagues on the Supreme Court, thank you for your resolve to decide the tough cases, no matter what the issue. And, as you know, the easy cases are resolved before they reach us. It is a challenge, and one that we welcome.
I also would like to publicly acknowledge two departing colleagues.
Ohio's constitutional age restrictions make it impossible for Justice Paul Pfeifer and Justice Judy Lanzinger to continue in their present positions after the end of the year.
Justice Pfeifer began his service on the Ohio Supreme Court on January 2, 1993, while Justice Lanzinger began her service on the Supreme Court on January 1, 2005.
Thank you for your combined 36 years of dedicated service on the Supreme Court bench. Your impact on the state's jurisprudence will resonate long after you hang up your robes. You, and the depth of your institutional knowledge, will be sorely missed. We have said farewell to several colleagues over the years and it doesn't get any easier. I'd wish you both well in your retirement however I know that neither of you will give anyone the ability to use the word retirement when describing the next phase of your lives.
On behalf of my colleagues, the Supreme Court staff, and Ohio's judiciary thank you and we wish you the very best.
This morning, I'm going to discuss some of the more important developments in the judiciary in the past year, all of which touch on different aspects of access to justice.
I also urge you to keep in mind the special responsibility we have to our communities and to society to ensure access to justice.
We have a duty to use the judicial powers that are entrusted to us to promote the health, safety, and welfare of the public and to ensure the justice system is fair both in perception and reality. There is a difference between constitutional legitimacy and public relevance. One is anchored in common understandings of the constitutional order. The other, equally important, is anchored in public trust and confidence in how we realize our role in that order. We cannot exist and fulfill our responsibilities without both.
I urge you to think about this each and every day. We - you and I - are tied together and what we do individually reflects upon each of us in this room. When we exercise our powers responsibly, humbly, with due regard for the people we serve, we build trust. When we act arrogantly, irresponsibly, with disregard for the people who stand before us, we erode that trust across the entire system. With the Internet and social media, what happens in one courthouse of this state is easily transmitted to every courthouse in this state - sometimes instantly. We live in an era of great public cynicism about public service and government. We do not, by our actions, need to feed that cynicism by taking our eyes off the reason for our existence. And that is to do justice.
State courts are where 95 percent of the country's disputes arrive and are resolved. State courts are where the action is. There is virtually no litigation that can't be initiated in our state courts. There is virtually no past, present or emerging issue that we can avoid. Again, Americans have vested great power and responsibility in their courts of justice. This is a heavy load, but a burden worth shouldering for the good we can do and the impact we can make not only on Ohioans' lives, but even beyond our borders.
Sometimes access to justice means access to treatment and directly challenging one of society's greatest problems currently. That is our opioid addiction problem.
Last month, delegations from nine states across the region and many national partners gathered over three days in Cincinnati at the opening summit of the Regional Judicial Opioid Initiative. We met to meaningfully engage with one another on a regional level on ways to combat this epidemic.
It is well-documented that America's opioid problem exists nationwide, but our region has been particularly hit hard.
In fact, two of the states involved in the initiative - Ohio and West Virginia - have the two highest heroin fatality rates in the nation according to the "Prescription Nation 2016: Addressing America's Drug Epidemic." That report was produced by the National Safety Council.
A select few national statistics are also staggering:
The initiative's partners include Chief Justices, State Court Administrators, judges, executive branch leaders, legislators, behavioral health treatment providers, medical experts, and child welfare leaders. Judge Durkin, Clermont County Juvenile Court Judge James Shriver, the Supreme Court Administrative Director Mike Buenger, and myself attended, believing strongly in this initiative.
We discussed and created state and regional action plans to more effectively rehabilitate those offenders that enter the criminal justice system because of an opioid use disorder. The action-oriented plans include taking into account what happens when offenders move across state lines and the interstate challenges that movement presents.
Elements of the action plans include incorporating best practices of other states, installing reciprocity agreements for treatment services and accessing other states' drug prescription databases, and giving judges access to those databases to uncover offenders crossing state lines to avoid detection when trying to obtain prescription drugs.
We also discussed a goal of making heroin a thing of the past in five years. Thankfully, our governor and legislature are fully engaged on this issue. Governor Kasich spoke during the opening summit and truly impressed the audience with his dedication to helping the opioid abuser recover and rejoin their families, their communities, and the workforce.
I am grateful for the involvement of the executive and legislative branches and all the resources they bring to bear, but we judges cannot sit this one out. We cannot do this alone and the solutions don't all fall to the judges, but standing on the sidelines is not an option.
It's also important to note that the opening summit represented a kickoff, and not a destination. In fact, each state was assigned homework. We just began a yearlong, first-of-its kind initiative of regional policy planning and development across state criminal justice, public health, family support, and medical and behavioral treatment systems.
Outcomes will no doubt impact drug courts across the state, so I would encourage you to stay informed about our efforts. And think of ways to stay steps ahead of it. I would encourage all drug courts - make that all courts AND all probation departments throughout the state - to include, if you don't already do so, fentanyl screening. We all know that fentanyl and other forms of illicit opioids are making their way onto the streets. Basic opioid testing may not reveal the breadth of a person's abuse. Without additional screening, a person could be using yet remain off the radar. This could happen even under court supervision. Loopholes like this need to be closed - and fast.
Keep in mind, however, that the opioid problem is not restricted to drug courts. All types of courts will be affected. Lest you think otherwise: It will visit your courtroom too. From delinquency proceedings in juvenile courts to allocating parental rights in domestic relations courts to traffic issues that you may have.
All that to say that the opioid problem is an elephant and an octopus at the same time. It's hard to know where to start, but we must start somewhere. And by starting with the opioid summit, we intend to make this 9-state region a blueprint for policy and practice for others to follow.
Another ongoing, pervasive access to justice issue is fines, fees, and restitution collected by courts.
You may have heard about so-called "debtors' prisons" in reference to Ferguson, Missouri and the U.S. Dept. of Justice findings that the city focused on raising revenue rather than public safety needs.
So, what is the judiciary doing about the problem of collecting fines and fees from offenders?
The most recent activity involves the formation of a National Task Force on Fines, Fees and Bail Practices. It was formed on February 3 by the Conference of Chief Justices and the Conference of State Court Administrators.
The task force seeks to address the ongoing impact that court fines, fees, and bail practices have on communities - especially economically disadvantaged communities - across the United States.
I serve as co-chair with Kentucky State Court Administrative Director Laurie Dudgeon. As co-chairs, we created three working groups. We're going to examine:
Here is a sampling of issues the task force is also addressing:
The task force held its first two-day meeting in March of this year.
The Department of Justice is also deeply involved, as you can imagine. The DOJ has sponsored two workshops/meetings. The last being just yesterday in Washington, which I attended, where we discussed the momentum of the reform efforts and the identification of justice system practices that contribute to the cycle of poverty and prevent successful reentry efforts.
In Ohio, we've been hard at work attacking this problem for a while.
In April 2013, the ACLU of Ohio met with me, our staff, and judges to discuss its findings in "The Outskirts of Hope." The report alleged unconstitutional practices of the collection of fines and costs in seven of our counties. None of us want the public to perceive justice in this manner, so engaging our critics was essential to solving this problem.
We took an active role on several fronts to educate judges and court personnel regarding state statutes and case law about the collection of court costs and fines. Courses were presented at judicial association meetings to raise awareness of the problems and to present solutions.
We developed an adult court bench card for judges in February of 2014. I might add that it was the first one in the nation that many states have copied. It was developed in consultation with a workgroup that included Lakewood Municipal Court Judge Pat Carroll, Defiance Municipal Court Judge John Rohrs, and Fairborn Municipal Court Judge Beth Root.
It is intended as a reference guide. It also includes citations to state statutes and court cases.
The bench card begins with a general statement about fines and court costs and appropriate collection methods.
"Fines are separate from court costs. Court costs, restitution and fees are civil, not criminal, obligations and may be collected only by the methods provided for the collection of civil judgments. Sole authority exists under R.C. 2947.14 for a court or magistrate to commit an offender to jail for nonpayment of fines in criminal cases. An offender CANNOT be held in contempt of court for refusal to pay fines. Accordingly, unpaid fines and/or court costs may neither be a condition of probation, nor grounds for an extension or violation of probation."
Earlier this year, we made available a similar bench card for juvenile courts.
The juvenile bench card briefly explains the fine schedule per type of offense, assessing obligations on parents for the delinquent acts of a child, and the process for a court to substitute community service as payment for court costs. It also includes the citations to the state statutes and to court cases.
Thanks to the following judges who worked on this bench card: Judge Shriver, Judge Hejmanowski, Juvenile Court Judge Jan Michael Long, Ottawa County Probate/Juvenile Court Judge Kathleen Giesler, Erie County Juvenile Court Judge Robert DeLamatre, and Marion County Family Court Judge Robert Fragale. Thank you very much for your efforts on this new projects.
For more than three years, the Supreme Court has used judge association meetings, Judicial College courses, and less formal settings to educate judges and court personnel about the issue.
To be clear, I know that Ohio's judges agree with me that courts are not to be used as ATMs for city council. You know, as well as I do, that it is the role of the local funding authority to provide adequate funds for courts to operate. Courts should not be mandated to self-fund from fines and fees.
Ensuring access to justice also includes maintaining the public trust and confidence in other systems we have. One of those systems is the grand jury system.
Public comment regarding the final report and recommendations of the Task Force to Examine Improvements to the Ohio Grand Jury System closed August 31. We received 16 comments.
The task force issued its recommendations in July of this year.
I appointed a diverse 18-member statewide task force that included judges, a prosecutor, a defense attorney, law professors, legislators, a member of law enforcement, and community leaders.
Among the report's 10 recommendations are those that would:
And those are just some of the recommendations.
While it remains to be seen which recommendations the General Assembly tackles, the Supreme Court voted to publish for public comment several amendments to Criminal Rule 6, which concerns the grand jury.
The proposed amendments would outline what constitutes a grand jury's "record," who may have access to that record, and establish a process and set the standards a petitioner must meet to obtain access to records when a grand jury returns a no bill.
The Supreme Court will accept public comment until October 26 on those amendments. If you have an opinion, put it in writing and let us know.
After taking action on other rules, the Supreme Court directly addressed improvements recommended by the Access to Justice Task Force. We've had a lot of task forces, but they've been productive.
Amendments to the Rules for the Government of the Bar of Ohio to increase attorney fees to help fund legal aid services took effect on July 1.
Pro hac vice registration fees, which out-of-state attorneys pay if they want to appear in an Ohio court proceeding, increased from $150 to $300.
The new rules also implemented a $50 voluntary "add on" fee to the biennial attorney registration. The $350 registration fee hasn't been raised since 2007.
The Court will use the money collected from these two fees to help fund civil legal aid services for low-income or disadvantaged Ohioans. The task force recommended the fee increases in 2015.
The third Access to Justice recommendation takes effect today. Additional amendments to the Rules for the Government of the Bar of Ohio allow non-active attorneys to engage in limited legal practice to provide pro bono service.
After taking public comments into consideration, the Court revised the original proposal, including:
The last access to justice opportunity I want to speak to you about is not new. In fact, it was referenced by OSBA President Kopp earlier. By now, you have become accustomed to me touting the benefits of Judicial Votes Count. Once again, I urge you to participate and spread the word.
Despite what the media may think, we will elect candidates for government posts other than the president this November. In fact, we will elect judges at all levels of court.
For many years I have bemoaned the fact that we have to find a way to focus attention on electing our judges.
This year it will be particularly difficult for anyone to appreciate that - and have their messages heard. We will elect three justices to the Supreme Court ... of course one doesn't have anything to worry about.
In addition to our Court, there are also 27 judges to the Courts of Appeals, 116 Common Pleas Court judges, and 11 County Court judges to be elected.
I've said that no matter the election cycle, judges get short shrift. The fact that anywhere from 25 percent to 40 percent or more of voters fail to vote for judges on the ballot speaks to the obvious ... a need for ways to encourage voters to educate themselves about the candidates for judge and to vote accordingly. We want people to vote and to be educated voters.
That's where JudicialVotesCount.org comes in. Each candidate on the ballot is on the website. It's a one-stop shop to learn about the office, the candidate's background, and what they would bring to the office. The website also offers the voter a short video tutorial by retired judges explaining the responsibilities of each level of the judiciary. Most people don't know the powers and limitations of judges, and this feature really lays it out.
It would be a wonderful thing if you could contact your family, your friends, and your colleagues by any means, but most specifically via social media, to let all know of the website and to encourage voters to log on and learn more. And once you've exhausted your social media contacts, ask all of them to resend the message to their social media contacts. I understand that works. This thing really could grow significantly if the social media campaign takes hold.
We have great partners, but we need more word of mouth by judges. I believe this is a public service, and if we judges don't plug the website, who will? It's frankly in all of our best interests - the public and our republic - that more Ohioans know what judges do, how they are important to their lives, and to vote for them.
I want to thank you for allowing me the time to speak with you today. And thank you for all you do each day to ensure justice for all.
We have a difficult job but with its challenges comes enormous satisfaction that you've helped folks who could not help themselves and, in doing so, hopefully instilled in them a respect for you and a respect for our judicial branch of government. I hope we instill in every citizen that comes before us - and even those citizens who have never entered a courthouse - that their judicial branch of government stands to serve them competently, respectfully, and with due regard to the rule of law that anchors our society.
Thank you and God bless.