Report of the Ohio State Bar Association Special Committee to Review the Report of the Ohio Courts Futures Commission
To Chief Justice Thomas J. Moyer and the Supreme Court of Ohio:
On behalf of the Ohio State Bar Association, I am pleased to submit the results of the OSBA's study of the report of the Ohio Courts Futures Commission. We appreciate having the opportunity to provide our perspectives as the Supreme Court of Ohio continues its efforts to prepare Ohio's court system for the challenges of a new millennium.
In 1999, OSBA President Thomas J. Bonasera formed the OSBA Special Committee to Review the Report of the Ohio Courts Futures Commission. In May, 2001, the report of the Special Committee, chaired by Judge Thomas Zachman, was adopted by the OSBA Council of Delegates and forwarded to President Reginald S. Jackson, Jr.
The report identifies areas of agreement and disagreement and areas we believe merit further consideration. The OSBA was mindful that while the report of the Ohio Courts Futures Commission consisted of eight chapters and 63 overriding recommendations, the report actually contained 123 specific recommendations, many of which were aspirational in nature. The OSBA responded to each of the recommendations, following the original charge to the Futures Commission to disregard financial considerations in its analysis of the recommendations.
The OSBA looks forward to working with the Court in the implementation of the recommendations.
Mary Jane Trapp
REPORT OF THE OHIO STATE BAR ASSOCIATION SPECIAL COMMITTEE TO REVIEW THE REPORT OF THE OHIO COURTS FUTURES COMMISSION
In 1997, Chief Justice Thomas J. Moyer appointed the Ohio Courts Futures Commission. In announcing the Commission, the Chief Justice said: "As an independent branch we know it is our responsibility not to simply cope, but to lead. To be effective, courts must determine how they provide justice today and in the future."
The Chief Justice charged the Commission with conducting a comprehensive review of the court system, "its strengths, its weaknesses and possibilities for the future."
Chief Justice Moyer also stated: "The system of government passed down to us from the Founding Fathers has flourished because it is, above all else, 'a government of laws, not men.' If we want to pass on that legacy to our descendents intact, we need to plan a 21st century court system that will uphold historic standards and principles of justice, but be flexible enough to meet the needs and earn the confidence of a rapidly changing society."
The basic structure of Ohio's court system has changed very little since 1851. However, during the last 150 years, much has changed about the society in which the courts operate, including vast new areas of law and government, and technological changes that have taken us from the days of horse and buggy to trains, airplanes, and space travel, plus telephone, fax, e-mail, and the Internet in the computer age. In addition, there have been significant demographic and cultural shifts that have changed the face of American society.
The Ohio Courts Futures Commission
The Ohio Courts Futures Commission was comprised of 52 members, a majority 27 nonlawyers, plus 10 judges and 15 attorneys. The Commission was chaired by the former Supreme Court of Ohio and federal Judge Robert M. Duncan and Cleveland Foundation Executive Vice President Susan Lajoie Eagan.
The Commission membership included representatives of large and small business, government, education, and a wide variety of other occupations.
Beginning in June 1997, the Commission was divided into five task forces: Access and Quality, Organization and Structure, Public Education and Awareness, Rules and Procedures, and Technology.
The Commission conducted substantial research on demographic, cultural, and technological changes, as well as a "top-to-bottom" review of Ohio's court system. The task forces gathered data, conducted research, and sought the advice of leading experts on a wide variety of issues, including technology, dispute resolution, and jury reform. The Commission also searched nationally for "state-of-the-art" and innovative programs.
In January 1999, the Commission released a "Progress Report and Summary of Concepts" outlining issues that had been discussed, not as recommendations, but as "what if" propositions to generate discussion. From February to June 1999, the Commission sought public input through a variety of mechanisms: public hearings, roundtable discussions, informal focus groups, and traditional means such as letters, telephone calls, and e-mails.
During the summer of 1999, the Commission developed vision statements and formal recommendations. The final report, released May 1, 2000, included eight chapters and 123 recommendations.
The OSBA Special Committee to Review the Report of the Ohio Courts Futures Commission
In 1999, Ohio State Bar Association President Thomas Bonasera appointed the 19 member Special Committee to Review the Report of the Ohio Courts Futures Commission. The Committee consisted of the Chair, Judge Thomas F. Zachman of Brown County, and 18 members representing each of the OSBA's geographic districts. President Bonasera charged the Committee, asking the members to "carefully review and comment" on the Futures Commission report.
The OSBA Special Committee was divided into three subcommittees, which completed an analysis of assigned chapters of the Ohio Courts Futures Commission report. Draft subcommittee reports were then circulated to all subcommittee members in July, and based on their final review, a draft report was prepared in August. Subsequently, the full OSBA Special Committee reviewed and adopted this report at its meeting on September 8, 2000, and forwarded the report to the OSBA Council of Delegates for its consideration. The OSBA Council of Delegates approved the report, with amendments, on May 9, 2001.
The Committee members were as follows:
||Terrence M. Donnellon, Cincinnati|
||Gary L. Brown, Greenville|
||Denise H. McColley, Napoleon|
||Kathleen L. Giesler, Port Clinton|
||Susan M. Bruder, Marion|
||Albert Stewart, Springfield|
||Stephen C. Fitch, Columbus|
||Michael H. Mearan, Portsmouth|
||Thomas F. Zachman, Ripley|
||Mark J. Howdyshell, New Lexington|
||J. Jeffrey Heck, Mansfield|
||Orlando J. Williams, Akron|
||Kenneth A. Bravo, Cleveland|
||Stephen T. Bolton, Youngstown|
||Thomas P. Moushey, Alliance|
||Mark A. Thomas, St. Clairsville|
||Kraig E. Noble, St. Marys|
||William W. Henderson, Logan|
||Kevin P. Murphy, Warren|
Summary of Findings
The OSBA commends the Futures Commission on its work.
Key Findings; Recurring Themes
- The OSBA strongly urges the adoption of clear, written, uniform, statewide rules of practice and procedure, court procedures, and forms, consistently applied to achieve predictable outcomes. There is too much variation from county to county, city to city, and even within courts. Lawyers and litigants should be permitted to operate under the same rules and file the same forms in every county in Ohio, with uniform and general application. Local rules, while important, should be consistent with statewide rules.
- The OSBA encourages the simplification of many court rules, forms, and procedures so that they are, to the extent practicable, understandable to the general public.
- The OSBA strongly supports making information about the courts and court rules, procedures, and forms widely available through a broad range of media.
- The OSBA supports the Commission's recommendations regarding the structure of trial courts, particularly so that there is some measure of uniformity in court structure across the state while preserving local flexibility.
- The OSBA supports local control and authority for courts within the framework of uniform statewide rules, procedures, and forms.
- The OSBA notes that Ohio has become a leader in dispute resolution. The OSBA supports the recommendation that each case be evaluated as early as possible so that it can be directed to the most efficient and effective process for resolution. In addition, research has demonstrated that dispute resolution may promote "faster, more efficient, less costly, and mutually satisfactory resolution of disputes." Therefore, since dispute resolution has proven successful in Ohio, the OSBA recommends statewide implementation of dispute resolution as soon as possible as a priority of the Supreme Court of Ohio, consistent with the constitutional right to a trial by jury.
- The OSBA strongly supports uniform mandatory statewide jury procedures and standards.
- Areas of Disagreement
- The major issue of disagreement within the Ohio Courts Futures Commission report is in the area of judicial selection. In the context of its review of the Futures Commission's recommendations, the OSBA notes that the Commission did not take a position on judicial selection. The OSBA will continue its long-standing efforts in support of merit selection, a method of selecting judges by appointment with a retention election.
For more than 60 years, the OSBA has urged the adoption of a merit plan for the selection of judges, a plan that combines an appointive and elective system. The merit selection plan is designed to expand the pool of prospective candidates to women and minorities and attract the best and brightest candidates for review by nonpartisan advisory councils, who then make recommendations to the Governor. After appointment, the judge faces the voters in a retention election where the voters ultimately evaluate performance, thus providing accountability to the public.
The OSBA also recommends the exploration of public financing of judicial elections if Ohio is to continue to elect judges.
- The OSBA strongly opposes permitting jurors to discuss evidence during a trial.
- The OSBA strongly opposes permitting the appointment of neutral experts at the request of jurors.
- The OSBA would retain the current number of non-lawyer members of the Board of Commissioners on Grievances and Disciplinary Counsel.
- The OSBA strongly opposes the creation of a statewide jury commission.
- The OSBA urges caution in permitting court personnel to respond to questions from self-represented persons in civil cases. The OSBA opposes permitting court employees to engage in conduct that could be construed as giving legal advice to litigants, including answering procedural questions and explaining court rules, procedures, and forms. However, the OSBA supports uniform written statewide information for litigants and others, such as pamphlets and brochures, sample completed forms, and the development of easy-to-use software to facilitate compliance with court rules and procedures.