The Ohio Modern Courts Amendment: 45 years of progress.

• Author: O'Connor, Maureen
• Position: PERSPECTIVES

One of Ohio's greatest sons, Ulysses S. Grant, was not known for his dapper appearance. (1) Upon entering an inn one stormy night, he is said to have encountered a group of lawyers. (2) They were there for court--as was the custom in that day--and they were huddled around the fire. (3) One of the attorneys cracked that Grant looked like he had come through hell to get there and asked the future President what it was like in the underworld, to which Grant replied, "[just like here:] lawyers nearest the fire." (4)

Unfortunately, this is a common sentiment. The eminent legal scholar Roscoe Pound famously said in a 1906 speech to the American Bar Association that "[d]issatisfaction with the administration of justice is as old as law." (5) "[A]s long as there have been laws and lawyers," Pound said, "conscientious and well-meaning men have believed that laws were mere arbitrary technicalities, and that the attempt to regulate the relations of mankind in accordance with them resulted largely in injustice." (6) Pound went on in his seminal--and at the time controversial--speech to detail the reasons for this persistent and insidious misperception of the law and to offer his recommendations for countering it. Pound's speech came at the height of the Progressive Movement and served as the catalyst for salutary reforms in the U.S. legal establishment. (7)

Indeed, while Pound may have been right that there have always been "conscientious and well-meaning men" who have lamented what's wrong with the law, there also have always been equally conscientious and well-meaning men and women who have worked tirelessly to improve the administration of justice. In Ohio, the history of this struggle is one of slow, incremental progress punctuated by specific moments of major advancement.

When I consider the question what makes the Ohio Supreme Court great, there is one specific improvement of our legal system that stands out. It is a major reform that was led by the bench and bar--that celebrates its forty-fifth anniversary this May--and that put into place a new framework for the administration of justice, which resulted in a process of reform and improvement that continues to this day. It is the Modern Courts Amendment.

On May 7, 1968, the people of Ohio passed the Modern Courts Amendment by an overwhelming margin, approximately sixty-two percent to thirty-eight percent, with the ballot initiative passing in seventy-nine of Ohio's eighty-eight politically diverse counties. (8) It was the first major revision of Article IV of the Ohio Constitution governing the judicial branch since the Ohio Constitution of 1851. (9)

In many ways, the Ohio Modern Courts Amendment was the direct progeny of Pound's 1906 address. While he had initially been chastised for his frank criticism of the U.S. judicial system, ultimately, there was a groundswell of support for judicial reforms around the country. It took several decades for this to translate into action, and in the 1950s and 1960s, a plurality of states, including Ohio, began initiating many of the reforms Pound had promoted. (10) These included proposals for so-called merit selection of judges, court consolidation, centralized management of state judicial systems, and adequate court funding. (11) In Ohio, the Ohio State Bar Association, the Legislative Service Commission, the Ohio Judicial Conference, and leaders in the General Assembly worked for the better part of a decade studying the Ohio court system, examining reforms in other states, and crafting a concrete proposal for reform that ultimately became the Modern Courts Amendment. (12)

The amendment made a number of relatively minor changes, like establishing that the Chief Justice's six colleagues on the bench would be designated "justices" as opposed to the previous designation of "judges." (13) It also made changes that, at the time, were of keen interest to the judges and other parties but that did not have broad effects on the administration of the court system. For example, the amendment eliminated a previous constitutional prohibition on judges receiving compensation adjustments midterm. (14) This had caused uncomfortable and needless disparities among the compensation levels for judges, with new judges on the bench often earning more than senior members of the same court. (15) Also of significant note is what is not in the amendment. As is often the case with reform packages on their way to enactment, major pieces of the original package were removed by the legislature before it went to the ballot. These included a proposal for consolidating all Ohio trial courts into courts of common pleas, one for each county, divided into specific divisions as dictated by local need, and also a proposal for abolishing competitive judicial elections in favor of an appointive system with retention elections for judges of the courts of appeals and supreme court justices. (16)

There were those at the time--and perhaps still today--who lamented the removal of these substantive provisions. (17) But, it is a valid question whether the measure would have received the backing of Ohio's judges and ultimately been approved by Ohio voters if it had still contained the merit-selection and court consolidation proposals. Arguably, the measure passed by the comfortable margin that it did because it took the less sweeping--though still comprehensive and substantial--form that it did. Certainly, the Modern Courts Amendment that we ended up with is more in keeping with the general political tendency Ohioans have that "gradualism [i]s the better part of valor." (18) Incremental change as a general principle is more feasible in most cases, and the Modern Courts Amendment gave us the best of both worlds: significant, immediate, fundamental reform that put in place a structure for continued, gradual improvement.

This structure came in the form of the amendment's most significant central feature: the establishment of the Ohio Supreme Court's authority to establish Rules of Superintendence. (19) The amendment established:

[i]n addition to all other powers vested by this article in the supreme court, the supreme court shall have general superintendence over all courts in the state. Such general superintending power shall be exercised by the chief justice in accordance with rules promulgated by the supreme court. (20) It was clearly understood at the time the amendment was passed that the establishment of the supreme court's authority and responsibility of general judicial superintendence would be the beginning of a gradual process of reform that would unfold for years, if not decades. (21) That is precisely what ensued.

Since the passage of the amendment, working with the Ohio Judicial Conference (the statewide association of Ohio's judges), the organized bar, the legislature, and interested parties, the court has established rules on a wide range of issues, including courthouse security, facilities standards, jury standards, and...