State ex rel. Nasal v. Miami Cnty. Bd. of Elections
| Decision Date | 31 August 2021 |
| Docket Number | No. 2021-0962,2021-0962 |
| Citation | 165 Ohio St.3d 126,176 N.E.3d 44 |
| Parties | The STATE EX REL. NASAL, Judge, v. MIAMI COUNTY BOARD OF ELECTIONS. |
| Court | Ohio Supreme Court |
Bieser, Greer & Landis, L.L.P., David C. Greer, and Kevin C. Quinlan, Dayton, for relator.
Anthony E. Kendell, Miami County Prosecuting Attorney, and Christopher L. Englert, Chief Civil Assistant Prosecuting Attorney, for respondent.
{¶ 1} Relator, Miami County Municipal Court Judge Gary A. Nasal, filed a protest with respondent, the Miami County Board of Elections, challenging its decision to certify Jessica A. Lopez to the ballot as a candidate for municipal-court judge in the November 2021 election. After an evidentiary hearing, the board denied the protest. Judge Nasal then commenced this original action for a writ of prohibition. For the reasons set forth herein, we deny the writ.
{¶ 2} Lopez submitted a declaration of candidacy to appear on the November 2021 ballot as a candidate for Miami County municipal-court judge. Judge Nasal, who is seeking reelection to the same court, filed a protest with the board challenging Lopez's candidacy on the ground that she did not have sufficient experience practicing law in Ohio. To serve as a municipal-court judge, a person must be admitted to the practice of law in this state and "shall have been, for a total of at least six years preceding appointment or the commencement of the judge's term, engaged in the practice of law in this state."1 R.C. 1901.06.
{¶ 3} On July 27, 2021, the board held a public hearing on Judge Nasal's protest. The evidence established that Lopez was admitted to the Ohio bar in November 2006. According to her resume, Lopez's professional experience consists of the following:
{¶ 4} At the conclusion of the hearing, the board unanimously denied the protest without explanation. On August 5, Judge Nasal commenced this action for a writ of prohibition to prevent the board from certifying Lopez's candidacy to the November 2021 ballot.
{¶ 5} Prohibition is the appropriate remedy to challenge a board of elections’ decision to place a candidate on the ballot following an evidentiary protest hearing. State ex rel. Emhoff v. Medina Cty. Bd. of Elections , 153 Ohio St.3d 313, 2018-Ohio-1660, 106 N.E.3d 21, ¶ 13. When we review the decision of a county board of elections in a prohibition matter, the standard of review is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable law. Id. at ¶ 14. In this case, there is no allegation of fraud or corruption.
{¶ 6} Judge Nasal suggests that we should review the board's decision de novo because this court has exclusive jurisdiction to define the practice of law in Ohio. See Cleveland Bar Assn. v. CompManagement, Inc. , 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 39. However, in State ex rel. Carr v. Cuyahoga Cty. Bd. of Elections , 63 Ohio St.3d 136, 138, 586 N.E.2d 73 (1992), superseded by statute on other grounds as stated in Whitman v. Hamilton Cty. Bd. of Elections , 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 21, we held that a board of elections "did not usurp the exclusive jurisdiction of this court" when it decided whether a judicial candidate was engaged in the practice of law. Id. at 138, 586 N.E.2d 73.
{¶ 7} Accordingly, we must determine whether the board of elections abused its discretion or acted in clear disregard of applicable law when it concluded that Lopez satisfies the six-year-practice requirement in R.C. 1901.06.
{¶ 8} Whether a judicial candidate's past activities constituted the practice of law is a mixed question of law and fact. Emhoff , 153 Ohio St.3d 313, 2018-Ohio-1660, 106 N.E.3d 21, at ¶ 19.
State ex rel. Devine v. Schwarzwalder , 165 Ohio St. 447, 453, 136 N.E.2d 47 (1956), quoting Land Title Abstract & Trust Co. v. Dworken , 129 Ohio St. 23, 193 N.E. 650 (1934). "The critical enquiry is whether a particular task or activity ‘require[s] legal analysis.’ " Emhoff at ¶ 22, quoting Columbus Bar Assn. v. Verne , 99 Ohio St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, ¶ 5.
{¶ 9} Gov.Bar R. I(10)(B) (formerly Gov.Bar R. I(9)(B) ) provides standards for the practice of law for purposes of admitting an applicant to the Ohio bar without examination. We have looked to these standards for guidance in ballot-access cases, see Emhoff at ¶ 21 (). Those standards provide that the practice of law includes work for an entity so long as the work "involved the primary duties of furnishing legal counsel, drafting legal documents and pleadings, interpreting and giving advice regarding the law, or preparing, trying, or presenting cases before courts, tribunals, executive departments, administrative bureaus, or agencies." (Emphasis added.) Gov.Bar R. I(10)(B)(2).
{¶ 10} R.C. 1901.06 requires a municipal-judge candidate to have engaged in the practice of law "for a total of at least six years preceding" the commencement of the judicial term. Because the statute does not use the definite article—the six years preceding—a candidate may qualify based on six years of practice any time prior to taking the bench. See State ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections , 151 Ohio St.3d 306, 2017-Ohio-4466, 88 N.E.3d 924, ¶ 17 (lead opinion) (). Lopez produced evidence of three categories of work.
{¶ 11} Lopez was hired in 2006 by the law firm of Lopez, Severt, and Pratt. While working for the firm, Lopez performed legal research and drafted collection complaints. From May 12, 2007, until April 24, 2009, she worked as an associate with the Law Offices of Scott D. Rudnick. That law office focuses on real estate, banking law, and civil litigation. During that time, Lopez provided legal advice to clients and represented clients in court.
{¶ 12} Counsel for Judge Nasal conceded at the protest hearing that these activities, totaling approximately 30 months, constituted the practice of law. We agree that this activity constituted the practice of law.
{¶ 13} Lopez testified that after she left the Rudnick firm in 2009, she decided to open her own practice and work out of her home. She opened an Interest on Lawyers Trust Account, secured malpractice insurance, began seeking clients, and underwent a background check and precertification to serve as a GAL. In 2012, she received GAL appointments in Miami, Darke, and Shelby Counties.
{¶ 14} Judge Nasal contends that Lopez's service as a GAL is not the practice of law. But that formulation misstates the issue. We recognized in Emhoff that a new attorney may be engaged in the full-time practice of law as she builds a practice, even though she will not yet have much business. 153 Ohio St.3d 313, 2018-Ohio-1660, 106 N.E.3d 21, at ¶ 41. It was not an abuse of discretion for the board to accept Lopez's testimony that from May 2009 through December 2012 she spent time building a solo practice and therefore engaged in the practice of law.
{¶ 15} During this time, Lopez also engaged in the practice of law by virtue of her GAL appointments. As a GAL, she gathered information in each case by meeting with the child, the parents, and other witnesses, and she used the information to assess the child's best interests and prepare a report. She attended all hearings, testified, and "typically at the end of the case * * * ask[ed] follow-up questions." In addition to questioning witnesses in hearings, she undertook another quintessential legal activity: filing motions on her own behalf.
{¶ 16} Judge Nasal questions whether serving as a GAL constitutes the practice of law, given that a person does not have to be an attorney to serve as a GAL. According to the judge, in order to have engaged in the practice of law, Lopez would have had to have been appointed as legal counsel for her wards, in addition to GAL. And by her own admission, Lopez never received an appointment as legal counsel for a ward.
{¶ 17} Judge Nasal is correct that the two roles are different. In re Baby Girl Baxter , 17 Ohio St.3d 229, 232, 479 N.E.2d 257 (1985) ; see also Sup.R. 48.01(B) and (C). But his conclusion—that a GAL cannot be engaged in the practice of law—is incorrect.
{¶ 18} The Rules of Superintendence, which govern GALs, make clear that service in that role may constitute the practice of law. Sup.R. 48.03(A)(7) contemplates that an attorney-GAL will "file pleadings, motions, and other documents as appropriate, and call, examine, and cross-examine witnesses...
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