State ex rel. Schenck v. Shattuck
| Decision Date | 15 September 1982 |
| Docket Number | No. 82-1101,82-1101 |
| Citation | 1 OBR 382,439 N.E.2d 891,1 Ohio St.3d 272 |
| Parties | , 1 O.B.R. 382 The STATE, ex rel. SCHENCK, Prosecuting Attorney, Appellee, v. SHATTUCK, Jr., Judge, Appellant. |
| Court | Ohio Supreme Court |
William F. Schenck, Pros. Atty., Xenia, pro se.
Brandabur, Campbell, Finlay, Johnson, McCormick, Weckstein & Beard and J. Timothy Campbell, Xenia, for appellant.
The sole issue raised by this appeal is whether employment as a referee constitutes the "practice of law" for purposes of R.C. 2301.01. That statute provides, in part:
"There shall be a court of common pleas in each county held by one or more judges, each of whom has been admitted to practice as an attorney at law in this state and has, for a total of at least six years preceding his appointment or commencement of his term, engaged in the practice of law in this state or served as a judge of a court of record in any jurisdiction in the United States, or both, resides in said county, and is elected by the electors therein."
In holding that appellant's employment as a referee did not constitute the practice of law, the Court of Appeals relied on State, ex rel. Flynn, v. Bd. of Elections (1955), 164 Ohio St. 193 , 129 N.E.2d 623. There, this court construed a similar provision in R.C. 1901.06 setting forth the qualifications for the office of municipal judge. At the time, R.C. 1901.06 required that a municipal judge " * * * shall have been actively engaged in the practice of law as his principal occupation for at least five years * * *." In Flynn, the court noted that judges are prohibited from practicing law under R.C. 4705.01 and determined that, "[s]ince a Judge of the Cleveland Municipal Court in the performance of his judicial duties can not, by this statutory definition, be considered as practicing law, then neither can relator's services, as a referee, in assisting a judge in the performance of judicial duties be considered the practice of law." Id. at 201, 129 N.E.2d 623.
Although the Court of Appeals felt judicially bound to follow the Flynn holding, it requested that we re-examine the question in light of the fact that R.C. 2301.01 is a "qualifications" statute. We have done so, and recognize as the Court of Appeals stated, that "[t]he decision in Flynn would permit a candidate who has engaged in a minimal practice of law with little or no exposure to the common pleas court practice to be deemed qualified, while [permitting] a fulltime referee of the common pleas court who daily confronts vexing legal problems of the court * * * to be rendered unqualified." For this reason, we share in the disquietude expressed by the court below.
We find that the better-reasoned approach was taken by the Supreme Court of Georgia in Gazan v. Heery (1936), 183...
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