State ex rel. Nasal v. Miami Cty. Bd. of Elections (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Nasal v. Miami Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-2993.]
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SLIP OPINION NO. 2021-OHIO-2993THE STATE EX REL. NASAL, JUDGE, v. MIAMI COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Nasal v. Miami Cty. Bd. of Elections, Slip Opinion
No. 2021-Ohio-2993.]
Prohibition—Writ of prohibition sought to prevent judicial candidate’s name from
appearing on ballot—Relator alleges candidate failed to satisfy R.C.
1901.06’s six-years-of-practicing-law requirement—Board of elections did
not abuse its discretion or act in clear disregard of applicable law by
denying the protest—Writ denied.
(No. 2021-0962—Submitted August 25, 2021—Decided August 31, 2021.)
IN PROHIBITION.
__________________
Per Curiam.
{¶ 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
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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.
I. Background
{¶ 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:
 Between 2006 and 2009, she worked as an attorney in two law firms, Lopez,
Severt and Pratt, Co., L.P.A., and the Law Offices of Scott D. Rudnick.
 Between 2009 and 2013, she operated her own practice, serving as guardian
ad litem (“GAL”) in juvenile and domestic-relations cases in Miami, Darke,
and Shelby Counties.
 From 2013 to the present, she has been the Miami County recorder.
{¶ 4} At the conclusion of the hearing, the board unanimously denied the
protest without explanation. On August 5, Judge Nasal commenced this action for
1. R.C. 1901.06 also requires that the person be a qualified elector and a resident of the territory to
which the judge is elected or appointed. These requirements are not at issue.
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a writ of prohibition to prevent the board from certifying Lopez’s candidacy to the
November 2021 ballot.
II. Legal analysis
A. Standard of review
{¶ 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, 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.
{¶ 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.
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B. What constitutes the practice of law?
{¶ 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.
“The practice of law is not limited to the conduct of cases in court.
It embraces the preparation of pleadings and other papers incident
to actions and special proceedings and the management of such
actions and proceedings on behalf of clients before judges and
courts, and in addition conveyancing, the preparation of legal
instruments of all kinds, and in general all advice to clients and all
action taken for them in matters connected with the law.”
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 cases
involving ballot-access cases, see Emhoff at ¶ 21 (discussing how the standards
articulated in former Gov.Bar I(9)(B) coincide with this court’s statements in
ballot-access cases involving practice-of-law requirements). 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,
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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)
(construing similar language in the Westlake city charter). Lopez produced
evidence of three categories of work.
C. Lopez’s employment between 2006 and 2009
{¶ 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.
D. Lopez’s solo practice and service as guardian ad litem from 2009 to 2013
{¶ 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
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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. “The role of
guardian ad litem is to investigate the ward’s situation and then to ask the court to
do what the guardian feels is in the ward’s best interest. The role of the attorney is
to zealously represent his client within the bounds of the law.” 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
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documents as appropriate, and call, examine, and cross-examine witnesses pursuant
to the applicable rules of procedure.” A nonattorney-GAL, by contrast, is enjoined
by the rules to “avoid engaging in conduct that constitutes the unauthorized practice
of law.” Sup.R. 48.03(A)(7). And the nonattorney-GAL must ask the court to
appoint counsel who can file pleadings and motions and engage in the other
quintessential litigation activities listed above. Sup.R. 48.03(A)(10). As an
attorney appointed to serve as a GAL, Lopez was engaged in the practice of law.
{¶ 19} Given these facts, the board did not abuse its discretion in concluding
that Lopez was engaged in the practice of law during the time she spent building a
solo practice and serving as an attorney-GAL, which totaled at least 42 months.
E. Lopez’s service as county recorder from 2013 until the present
{¶ 20} Lopez also contends that her service as the Miami County recorder,
a position she has held since 2013, constitutes the practice of law. But we need not
consider this argument, because Lopez’s 30 months working for law firms and 42
or more months in solo practice are sufficient to satisfy the six-year-practice
requirement in R.C. 1901.06.
III. Conclusion
{¶ 21} Judge Nasal has failed to show that the board abused its discretion
or acted in clear disregard of applicable law by denying the protest and placing
Lopez’s name on the November ballot. We deny the writ of prohibition.
Writ denied.
O’CONNOR, C.J., and DONNELLY and BRUNNER, JJ., concur.
DEWINE and STEWART, JJ., concur in judgment only.
FISCHER, J., dissents, with an opinion.
KENNEDY, J., not participating.
_________________
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FISCHER, J., dissenting.
{¶ 22} Ohio law requires a municipal-court judge to have at least six years
of experience practicing law as a licensed attorney prior to taking the bench. R.C.
1901.06. In this case, Jessica A. Lopez falls well short of that statutory requirement.
Because, however, this court adheres to an overly deferential standard of review in
this specific type of election case and computes the time an attorney spends
practicing law in a rather confusing way, the lead opinion has ignored that fact and
cleared the way for Lopez’s name to appear on the ballot as a judicial candidate
anyway. Accordingly, for the reasons that follow, I respectfully dissent.
I. THE STANDARD OF REVIEW
{¶ 23} Traditionally, this court has reviewed a board of elections’ decision
regarding whether a judicial candidate has engaged in the practice of law for an
abuse of discretion. State ex rel. Emhoff v. Medina Cty. Bd. of Elections, 153 Ohio
St.3d 313, 2018-Ohio-1660, 106 N.E.3d 21, ¶ 14. However, as I have stated in the
past, that approach seems inconsistent with our approach when determining
whether a person has engaged in the practice of law in other contexts and with our
superintendent authority over the practice of law under Article IV, Section 2(B) of
the Ohio Constitution. Id. at ¶ 44-49 (Fischer, J., concurring in judgment only).
Consequently, I would adopt a de novo standard of review, giving no deference to
the determination made by a board of elections as to what constitutes the practice
of law.
II. 2.5 + 1 = 3.5, NOT 6
{¶ 24} Taking a fresh look here, I would conclude that Lopez lacks the
experience practicing law that is required to qualify as a judicial candidate in Ohio.
{¶ 25} I agree with the lead opinion that Lopez no doubt has at least 2.5
years (30 months) of experience practicing law from her time working at two
different law firms between November 2006 and April 2009. I also agree with the
lead opinion that Lopez’s work as a guardian ad litem constitutes the practice of
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law. After all, she could undertake certain actions in that role that a nonlawyer
could not, Sup.R. 48.03(A)(9), and she also could have been disciplined for
violating the Rules of Professional Conduct while serving in that role, Disciplinary
Counsel v. Pullins, 127 Ohio St.3d 436, 2010-Ohio-6241, 940 N.E.2d 952, ¶ 17-
27.
{¶ 26} Where I part ways with the lead opinion, though, is in its concluding
that Lopez’s sporadic and infrequent work as a guardian ad litem amounts to the
additional 3.5 years (42 months) of practice that Lopez needs to reach the 6 years
of practice required by law.
{¶ 27} The record in this case indicates that Lopez served as a guardian ad
litem in just 12 cases between 2009 and 2013. It also indicates that her work in
each of those cases did not involve more than a handful of hours. In fact, in one
representative case, it appears that she performed just 15.8 hours of work. And
contrary to the lead opinion’s suggestion that Lopez was building a practice beyond
that, there is very little in the record that would suggest that Lopez did anything
besides serve as a guardian ad litem in those dozen or so cases during the time
period in question.
{¶ 28} Despite that, the lead opinion has transformed what can charitably
be described as a little over a year’s worth of work (assuming we give Lopez a
month of credit for each case in the record that she worked on) into 3.5 years’ worth
of work.
{¶ 29} I understand that this court has “never established a minimum
threshold for the amount of work [an] attorney must perform” to qualify as a
judicial candidate, Emhoff, 153 Ohio St.3d 313, 2018-Ohio-1660, 106 N.E.3d 21,
at ¶ 41, and has declined to read a “full-time” practice requirement into the statutory
text, State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections, 70 Ohio St.3d 413, 415,
639 N.E.2d 78 (1994), but this court should not continue down this road of treating
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sporadic and infrequent work the same as full-time practice unless it wishes to
render the practice requirement for judicial candidates completely meaningless.
{¶ 30} Indeed, the word “practice” necessarily implies something more than
de minimis activity. See, e.g., Webster’s Third New International Dictionary 1780
(2002) (defining “practice” as the “actual performance or application of knowledge
as distinguished from mere possession of knowledge” and “practicing” as “actively
engaged in an indicated career”).
{¶ 31} That reality, that practicing requires regular and active work, is likely
why our own rules—the same ones the lead opinion looks to here—ask out-of-state
lawyers seeking to practice law in Ohio without taking the bar exam to demonstrate
that they were engaged in the practice of law in another jurisdiction on “a fulltime
basis” for at least five years. (Emphasis added.) Gov.Bar R. I(10)(A)(2)(b) and
(c). It is also why our rules seem to distinguish between full- and part-time law
professors, counting only the former as practicing law. Gov.Bar R. I(10)(B)(5).
{¶ 32} Of course, the puzzling result that the lead opinion reaches here can
be seen best not through a dictionary definition or this court’s own rules, but with
a couple of examples in other settings where it is doubtful that minimal engagement
in an activity would be recognized to the same extent that the lead opinion has
recognized Lopez’s activity from 2009 to 2013.
{¶ 33} Take, for instance, a college student enrolled in a typical four-year
bachelor’s degree program. A program like that usually requires students to
successfully complete 120 credit hours. Now, there may be some students enrolled
in the program who finish those requirements in less time and still others who take
a little longer. However, no college or university will ever confer a degree upon a
student who signs up for 3 credit hours a semester and has a total of just 24 credit
hours by the end of his or her fourth year. But that is exactly what the lead opinion
is doing here when it treats a handful of hours practicing law as if they were worth
years of practice.
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{¶ 34} Next, and similarly, consider a professional baseball player who
makes it to the big leagues and starts accruing “service time.” To earn a single year
of service time, that player must spend 172 days out of the 187-day season on the
major-league roster or injured list. https://www.mlb.com/glossary/transactions/
service-time (accessed Aug. 30, 2021) [https://perma.cc/X3VQ-WZ5P]. In other
words, a minor-league player who receives a September call-up, when the season
is winding down and the number of roster spots is expanded from 25 to 40, does
not get a full year’s worth of credit for the 30 or so days he spends on the big-league
roster. With the way we do things here, those players might want to explore a career
in the law. If they did, they’d be sitting on a much more comfortable bench in no
time.
{¶ 35} Accordingly, I would back away from the trend this court started in
Kelly, 70 Ohio St.3d 413, 639 N.E.2d 78, and Emhoff, 153 Ohio St.3d 313, 2018-
Ohio-1660, 106 N.E.3d 21, of treating part-time practice the same as full-time
practice, and I would say in this case that Lopez’s seemingly infrequent work as a
guardian ad litem, while practice, does not get her the remaining 42 months of
experience practicing law that she needs to qualify as a judicial candidate.
{¶ 36} And because I would not consider her work as a county recorder the
practice of law, see Gov.Bar R. I(10)(B)(4) (stating that employment as a local
government official counts as the practice of law only when it is exclusively
available to attorneys), I would hold that Lopez has at most 3.5 years of practice
under her belt and falls short of the 6 years of practice required under R.C. 1901.06.
Therefore, I would grant the writ requested.
III. CONCLUSION
{¶ 37} Thus, because I would apply a different standard of review from the
one employed by the lead opinion and because that leads me to a different
conclusion about whether a writ of prohibition should issue here, I respectfully
dissent.
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_________________
Bieser, Greer & Landis, L.L.P., David C. Greer, and Kevin C. Quinlan, for
relator.
Anthony E. Kendell, Miami County Prosecuting Attorney, and Christopher
L. Englert, Chief Civil Assistant Prosecuting Attorney, for respondent.
_________________
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