Mediation strives to stem foreclosures (OR: April 2010)

Ohio Chief Justice Thomas J. Moyer, the longest serving state chief justice in the United States, was the keynote speaker at the Ohio Association of REALTORS Annual Legislative Conference on March 2. Moyer, who has served as Chief Justice since 1987, offered the following insights on an array of important topics, including the state’s response to the foreclosure crisis and judicial elections, among others:

Look at the business section any day of the week and on the first page…there might be reason for optimism. Perhaps it was the news that the GM plant in Lordstown might restart its third shift…but when you turn the page you see that national employment numbers fail to rebound.

In real estate news, I don’t need to tell you this, the news is a similar mix. Prices in major markets continue to hold their own but new housing starts continue to decline.

As Kenneth Harney writes… “real estate numbers this week suggest its…two steps forward, one step back and one step sideways.”

What you see coming across your desk…will eventually come across the desks of judges and clerks of courts. Court dockets in Ohio have been inundated with foreclosure filings…with 89,053 foreclosure filings in 2009, the 14th consecutive annual increase reported by Ohio courts.

In response to recommendations by Gov. (Ted) Strickland’s Foreclosure Prevention Task Force, I directed the Supreme Court Section on Dispute Resolution to create a model mediation program that could be adapted by trial courts to meet local circumstances.

The goal was to give courts another tool in the struggle to keep up with the flood of foreclosure filings. Coupled with an intensive training program for mediators and court personnel…foreclosure mediation has been successful in some instances of encouraging lenders and homeowners to sit across the table from each other, to work on a solution together.

Thinking of mediation sessions such as these reminds me of Gregory Peck’s character in;

“To Kill A Mockingbird.”  It’s a classic.

Peck portrays Atticus Finch, a southern lawyer who defends an African American accused of rape. In the closing arguments of the trial, Finch declares, “in this country, our courts are the great levelers. In our courts, all men are created equal.”

Mediation places all parties on equal ground. The banker and the borrower who come to the realization that their mortgage is unaffordable…are given an equal opportunity to address the situation and develop a solution.

Think of this elderly woman in Cuyahoga County:

At the onset of the recent economic downturn she was afraid, like many of us, that the banks would collapse. So she withdrew her money, nearly all of her life savings and gave it to a granddaughter for safe keeping.

One problem, the granddaughter ran off with the money…leaving the woman on the brink of foreclosure.

While the lender was preparing to file a foreclosure action, the Cuyahoga County Common Pleas Court established a specialized mediation program to manage the onslaught of foreclosure cases.

With her notice of the case filing the woman received a post card informing her that mediation is available to help resolve the matter…a mediation process that would bring together all the affected parties, including a representative of the lender.

Once in mediation the parties were able to verify the woman’s monthly income from Social Security and the lender decided to modify the terms of her mortgage…allowing her to stay in the home that had been in her family for more than a century.

We have heard similar stories across the state.

In foreclosure cases where it is not economically feasible for the owner to stay in the home…mediation remains an effective option…creating an orderly mechanism for the hand-over of the home.

Some mediations have resulted in what is called a “Cash For Keys” agreement whereby the lender pays the homeowner to hand over the home.

The expansion of court-related mediation programs could someday lead to a change in the public’s perception of the judiciary.

The current perception that courts are a venue of conflict will be replaced with the view that courts are places of agreement and consensus.

The judiciary is viewed by most people as a venue for the fair and efficient resolution of disputes…a venue where both the so-called winners and losers in a case are able to say they were given a fair hearing in a forum that values truth and the application of principles to dispute resolution.

Today, judges are working with partners in the fields of mental health and substance abuse to address some of the core reasons that some people find themselves standing before a judge on a repeated basis.

Today, the courts are working with child welfare agencies in new and collaborative ways to dramatically reduce the number of days a child spends in foster care….placing children in safe and nurturing homes years earlier than the practice just a few years ago.

Today, judges in Ohio…clerks of courts, court administrators, bailiffs and security personnel receive more on-going training than was customary just a few years ago. The goal is to assure the public that every position in the court system is filled by a person who meets appropriate high standards.

I could talk for hours about the work of judges, court administrators and clerks…who work to ensure that the courts of Ohio are fair and efficient. It is very encouraging to see what is being done.

Despite these innovative and efficient efforts…the public’s trust and confidence in the judiciary has been threatened in recent years by expensive and often times misleading campaigns for judicial office.

Some contested judicial campaigns are indistinguishable from the highly political campaigns for the other branches of government.

Spending for campaign advertisements in contested Supreme Court races is increasing at an ever expanding rate. From 1999 to 2007…$165 million was raised by candidates for state Supreme Courts…more than two-and-a-half times the amount raised in a similar period between 1991 and 1998.

In that time period, candidates for the Ohio Supreme Court raised $18.7 million…placing Ohio third in the nation in the amount raised by Supreme Court candidates.

In one race for a seat on the Illinois Supreme Court, candidates raised more than $9.3 million dollars…a record amount. Similar campaigns…expensive and contentious…have been waged in Michigan, Wisconsin, Alabama and West Virginia.

Before I continue I wish to point out that I serve as a board member of the Justice at Stake Campaign, an independent Washington-based organization that monitors judicial campaigns and is the primary source for information regarding judicial selection in the United States.

Many of the statistics I will use are the product of research by Justice at Stake.

Nationally, in the most recent election cycle in 2008, $17 million was spent on Supreme Court races with $5 million spent on television advertising in the last week of the campaigns.

As Justice Sandra Day O’Connor recently warned, “In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution.”

When did this phenomenon begin?

Most observers say the tipping point came in the 2000 elections when Supreme Court candidates in several states raised a record $45.6 million, a 61 percent increase over the previous election cycle.

New fundraising records have been established by campaign committees in 15 of the 20 states that hold contested Supreme Court elections.

And these totals do not include ads sponsored by third parties or what I call un-authorized campaigns that inflict their own message on voters.

Spending by outside groups is difficult to tabulate because for most of this period unauthorized campaigns were not required to report donors or expenditures.

But according to Justice At Stake, outside groups spent $27.3 million on television advertisements in just four states…Ohio, Illinois, Michigan and Wisconsin…between 1999 and 2006.

Ohio holds the record…airing more judicial campaign ads since 1999 than any other state. With a population of 11 million, we have nine TV markets.

In the 2000 elections, five candidates for the Ohio Supreme Court raised $3.3 million. But it was the unauthorized campaigns that set the tone that year…spending an estimated $2.7 million.

Since 2004 Ohio has required third party campaigns to report donor names. We have had no negative unauthorized television advertising since 2004.

A new tactic by special interest groups is the use of aggressive questionnaires that seek to force judges to announce their position on controversial issues such as abortion and same sex marriage.

This activity has increased since the Supreme Court decision in Minnesota v. White.

Would-be judges know that their answers could trigger significant money, political ads and grass-roots campaigns for or against their candidacy.

By-in-large, voters reject negative campaigns.

I believe voters understand the importance of an impartial judiciary.  They instinctively know that many of the issues raised in negative campaigns have little, if nothing, to do with a judge’s ability to preside over cases.

I have worked with various organizations to develop proposals to ensure the independence and impartiality of the judiciary…including proposals to lengthen the terms of judges and increase the minimum qualifications required for judicial candidates. I continue to work with legislative leaders on these matters.

In November, I joined with leaders of the Ohio State Bar Association and the League of Women Voters of Ohio Education Fund to sponsor a two-day Forum on Judicial Selection…bringing together leaders of legal, civic and political groups…business and labor organizations…as well as leaders of the General Assembly.

Those in attendance agreed to take the next step…to develop proposed language for changing the way Ohio selects justices of the Supreme Court. Contrary to some news reports, no specific plan was distributed and discussed at the Forum. The conversation at the Forum pointed to a broad outline of what must be included in possible changes to the way Ohio selects justices of the Supreme Court:

  • The appointment process will be open and transparent.
  • A majority of the appointment panel will be non-lawyers.
  • The nominating commission will be representative of the diversity of Ohio’s population.
  • Retention election will ensure voters will still have a voice.
  • Judicial evaluations by a committee provide voters information to make informed decisions.