State ex rel. Emhoff v. Medina 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. Emhoff v. Medina Cty. Bd. of Elections, Slip Opinion No. 2018-Ohio-1660.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-1660THE STATE EX REL. EMHOFF v. MEDINA COUNTY BOARD OF ELECTIONS ET AL.
THE STATE EX REL. LOWERY v. MEDINA COUNTY BOARD OF ELECTIONS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Emhoff v. Medina Cty. Bd. of Elections, Slip
Opinion No. 2018-Ohio-1660.]
Prohibition—Writ of prohibition sought to prevent judicial candidate’s name from
appearing on ballot—Relators allege candidate failed to satisfy R.C.
2301.01’s six-years-of-practicing-law requirement—Secretary of state did
not abuse his discretion in breaking tie in favor of certifying candidates
name to the ballot—Writ denied.
(Nos. 2018-0436 and 2018-0437—Submitted April 19, 2018—Decided April 27,
2018.)
IN MANDAMUS and PROHIBITION.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} To be eligible to serve as a judge on a court of common pleas, a person
must satisfy certain requirements, among them that he or she “has, for a total of at
least six years preceding the judge’s appointment or commencement of the judge’s
term, engaged in the practice of law in this state.” R.C. 2301.01. In these
consolidated expedited election cases, relators, Allen Lowery and Mary E. Emhoff,
seek writs of mandamus and/or prohibition to prevent respondent Heidi R. Carroll
from appearing on the May 8, 2018 ballot as a candidate for the Republican Party
nomination for Medina County Common Pleas Court judge, Domestic Relations
Division. The question these cases present is whether respondent Secretary of State
Jon Husted abused his discretion or acted in clear disregard of applicable law when
he determined that Carroll has the requisite 72 months of legal-practice experience
to qualify for a seat on the common-pleas-court bench. For the reasons set forth
below, we hold that he did not abuse his discretion, and thus, we deny the writs of
prohibition. We dismiss the claims for writs of mandamus for lack of jurisdiction.
I. Background
{¶ 2} Heidi Carroll was admitted to the Ohio bar in 2002. On April 7, 2017,
she filed a Declaration of Candidacy Petition with respondent Medina County
Board of Elections seeking to appear on the May 8, 2018 primary ballot as a
Republican judicial candidate for the Medina County Common Pleas Court,
Domestic Relations Division.
{¶ 3} On February 8, 2018, the board officially certified Carroll’s petition.
On February 13, the board received three separate protests to Carroll’s candidacy,
one from Lowery, one from Emhoff, and one from Mary L. Guilfoyle, alleging that
Carroll lacked the years-of-practice experience required to be a judicial candidate.
The protests relied primarily on Carroll’s resume, which showed the following
professional experience after her graduation from law school in 2001:
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 September 2001 to June 2003: Medina County School District, substitute
teacher
 September 2003 to December 2007: Cleveland Clinic Foundation, senior
compliance specialist
 December 2007 to December 2008: Reminger Co., L.P.A., associate
attorney
 June 2010 to November 2010: MetroHealth, associate director of health-
information management
 May 2012 to present: University Hospitals, clinical-research regulatory
specialist III
The protesters accepted Carroll’s one year at the Reminger law firm as experience
in the practice of law. They rejected Carroll’s time with the Cleveland Clinic as
the practice of law because, they alleged, the position did not require a law degree
or law license and her primary duties were “data collection, auditing and reporting,”
not “ ‘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,’ ”
protesters’ letters, quoting Gov.Bar R. I(9)(B)(2). However, they noted that she
appeared as attorney of record in three Medina County domestic-relations cases
between June 2015 and May 2016. Even assuming that that activity should count,
they alleged that Carroll was well short of the six-year requirement.
{¶ 4} Carroll filed a written response to the three protest letters with the
board on February 23, 2018. In her response, Carroll asserted that she had been
engaged in the practice of law “for at least eight years and five months” and would
exceed nine years by the start of her judicial term on January 1, 2019. She identified
the following work experience:
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 Cleveland Clinic Foundation, senior compliance specialist (four years and
four months)
 Reminger Co., L.P.A., associate attorney (one year)
 Akron General Hospital, corporate compliance specialist (three months)
 OhioGuidestone, director of corporate compliance/chief privacy officer,
(one year and six months and counting)
 pro bono attorney for Legal Aid (one year and two months and counting)
(overlapping with her time at OhioGuidestone)
Carroll’s response included an affidavit from John E. Steiner Jr., her supervisor at
the Cleveland Clinic, attesting that she had “actively engaged in the practice of law”
at the Cleveland Clinic and describing her work responsibilities.
{¶ 5} On February 21, counsel for the protestors served a subpoena on the
Cleveland Clinic, demanding:
1. a job description of the Senior Compliance Specialist
position during any of the time September 2003 to December
2007 * * *;
2. an authentication of the attached job description];
3. a current job description for a similar job as to the Senior
Compliance Specialist job; or
4. a copy of a policy of the Cleveland Clinic about who may
engage in the practice of law for the Cleveland Clinic
Foundation.
{¶ 6} On February 26, the protesters filed a joint reply in support of their
protests. Among other points, they noted that Carroll’s own description of her job
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duties at the Cleveland Clinic did not include the tasks identified by Steiner as the
duties she performed that constituted the practice of law. The protesters formally
requested that the board continue its hearing because the Cleveland Clinic had not
yet responded to their subpoena and requested that if the Cleveland Clinic did not
respond to the protesters’ subpoena, the board issue a subpoena to the Cleveland
Clinic for records concerning Carroll’s employment and require an attorney from
the Cleveland Clinic’s Office of General Counsel to appear and testify at the
hearing.
{¶ 7} Also on February 26, the board held an evidentiary hearing on the
protests. The transcript indicates that the protestors had presented a request for a
subpoena to be issued to OhioGuidestone and that the board declined to issue the
subpoena. The protestors again requested a continuance, which was effectively
overruled because the board went ahead with the hearing.
{¶ 8} At the close of the testimony, a motion was made and seconded that
the board find that Carroll did have the requisite six years of experience to appear
on the ballot. Board members Larry Cray and Sharon Ray voted in favor of the
motion. Board members John Welker and Pam Miller voted against the motion.
Confronted with a tie vote, the board submitted the matter to Husted to break the
tie. Board members Miller and Welker submitted a letter defending their
conclusion that Carroll is not qualified for the position, and members Ray and Cray
submitted a letter defending their conclusion that she is.
{¶ 9} In a letter dated March 14, 2018, Husted broke the tie in favor of
placing Carroll’s name on the ballot. Husted concluded that her four years and four
months at the Cleveland Clinic did constitute the practice of law, based on Carroll’s
testimony and on the description of her work responsibilities set forth in John
Steiner’s affidavit. He also found that Carroll had been an associate at a law firm
for at least eight months beginning in December 2007 and that starting in 2015, she
represented clients on a pro bono basis for at least 14 months. In conclusion, Husted
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wrote, “[t]he four years and four months Ms. Carroll spent at the Cleveland Clinic
Foundation, coupled with her prior legal practice of 22 months amounts to a total
of 74 months (i.e., six years two months) of active engagement in the practice of
law.” (Footnote deleted.) In a footnote, Husted noted that the actual total might be
larger, but that because she exceeded the threshold based on those three jobs, it was
unnecessary to consider other facets of her work history. He therefore broke the tie
in favor of the motion to certify her name to the May 8 ballot as a candidate for the
Republican nomination to the Medina County Common Pleas Court, Domestic
Relations Division.
II. Procedural History
{¶ 10} On March 22, Emhoff filed a complaint in this court for writs of
mandamus and/or prohibition against Husted, the board, its individual members
(Cray, Welker, Ray, and Miller), and Carroll (case No. 2018-0436). Later that day,
Lowery filed a second complaint for writs of mandamus and/or prohibition, naming
the same respondents with the exception of Carroll (case No. 2018-0437). Pursuant
to S.Ct.Prac.R. 12.08, the cases were automatically expedited because they were
filed within 90 days of the May 8 election.
{¶ 11} On March 30, 2018, Carroll filed a motion for leave to intervene as
a respondent in case No. 2018-0437. We denied the motion, but sua sponte ordered
the two cases consolidated. __ Ohio St.3d __, 2018-Ohio-1271, 94 N.E.3d 577.
The cases are now fully briefed.
III. Legal Analysis
A. Mandamus and prohibition
{¶ 12} To be entitled to a writ of mandamus, a party must establish, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio
St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. If the allegations of a complaint
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indicate that the real objects sought are a declaratory judgment and a prohibitory
injunction, then the complaint does not state a claim in mandamus and must be
dismissed for lack of jurisdiction. State ex rel. Grendell v. Davidson, 86 Ohio St.3d
629, 634, 716 N.E.2d 704 (1999).
{¶ 13} Mandamus is not the appropriate method for challenging a decision
of the secretary of state or a board of elections to place a candidate on the ballot.
Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923,
778 N.E.2d 32, ¶ 8-10 (dismissing mandamus claim for lack of jurisdiction, finding
that the relator’s “mandamus claim [was] an ill-disguised request for prohibitory
injunctive relief: to prevent Nelson’s candidacy at the November 5, 2002 general
election”). Rather, prohibition is the appropriate remedy for these circumstances.
Id. at ¶ 11. We therefore dismiss Lowery’s and Emhoff’s claims for writs of
mandamus for lack of jurisdiction.
{¶ 14} With respect to the claims sounding in prohibition, when we review
the decision of a county board of elections in a prohibition action, our standard is
whether the board engaged in fraud or corruption, abused its discretion, or acted in
clear disregard of applicable legal provisions. Id. When a board of elections arrives
at a tie vote, the matter must be submitted to the secretary of state to break the tie
and decide the question. R.C. 3501.11(X). The decision of the secretary “shall be
final.” Id. However, as with a decision by a board of elections, the secretary’s
decision is subject to review in an extraordinary action “to determine whether the
Secretary of State engaged in fraud, corruption, abuse of discretion, or clear
disregard of statutes or applicable legal provisions.” State ex rel. Herman v.
Klopfleisch, 72 Ohio St.3d 581, 583, 651 N.E.2d 995 (1995).
B. Allegations of bias
{¶ 15} Patricia Pietrasz is an employee of the Medina County Board of
Elections. Pietrasz also circulated one of Carroll’s candidacy petitions. Husted’s
permanent directive, issued on August 8, 2017, states that employees of the boards
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of elections shall not “[c]irculat[e] a petition for any candidate * * * when that
employee’s regular or intermittent duties involve the processing of the petitions in
question, including but not limited to the determination of the sufficiency and
validity of the petition in question.” Directive 2017-11, Section
1.02(C)(5)(c)(iii)(02), available at https://www.sos.state.oh.us/globalassets
/elections/directives/2017/dir2017-11_eom_ch_02.pdf (accessed Apr. 24, 2018).
Lowery seeks to invalidate the board’s tie vote due to Pietrasz’s alleged violation
of this directive.
{¶ 16} However, Lowery waived this matter by failing to raise it in his
protest. An issue that is not raised administratively cannot be raised in a subsequent
writ action. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81-82,
679 N.E.2d 706 (1997). This rule applies to proceedings before a county board of
elections. See State ex rel. Holwadel v. Hamilton Cty. Bd. of Elections, 144 Ohio
St.3d 579, 2015-Ohio-5306, 45 N.E.3d 994, ¶ 47; see also State ex rel. Tam
O’Shanter Co. v. Stark Cty. Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167,
86 N.E.3d 332, ¶ 11 (holding that evidence that was not presented to a board of
elections is not relevant to whether the board abused its discretion or clearly
disregarded applicable law).
{¶ 17} Alternatively, Lowery asserts that Larry Cray, one of the board
members who voted in favor of certifying Carroll’s candidacy to the ballot, had
undisclosed conflicts of interest. In his merit brief, Lowery bases the allegation on
the fact that Cray serves on the Republican Party Executive Committee with
Pietrasz and the fact that Cray is Facebook friends with Carroll. But in his reply
brief, he adds a new allegation: Cray did not disclose that he had signed one of
Carroll’s petitions. Attached to the reply brief is a copy of a part-petition indicating
that the signers certify that Carroll “is, in [the signers’] opinion, well qualified to
perform the duties of the office or position to which [she] desires to be elected.”
The third signature on the first page is Cray’s. Based on these facts, Lowery asserts
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that the court should vacate Cray’s vote and enter a decision on the protest based
on the three remaining votes.
{¶ 18} Once again, however, Lowery has waived the issue by failing to raise
it at the earliest opportunity, that being before the board itself.
C. Carroll’s experience in the practice of law
{¶ 19} Whether a judicial candidate was engaged in the practice of law is a
mixed question of law and fact. A board of elections has the right to determine
what “the practice of law” means as a statutory qualification for judge. State ex rel.
Kelly v. Cuyahoga Cty. Bd. of Elections, 70 Ohio St.3d 413, 415, 639 N.E.2d 78(1994). However, that determination is subject to our review in accordance with
Article IV, Section 2(B)(1)(g) of the Ohio Constitution, which confers “exclusive
jurisdiction over all matters related to the practice of law” upon this court.
Disciplinary Counsel v. Alexicole, Inc., 105 Ohio St.3d 52, 2004-Ohio-6901, 822
N.E.2d 348, ¶ 8; see also Cleveland Bar Assn. v. CompManagement Inc., 104 Ohio
St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 39 (“This court has exclusive
power to regulate, control, and define the practice of law in Ohio”).
{¶ 20} In his decision letter, Husted expressly cited Gov.Bar R. I(9)(B) as
giving “persuasive guidance” for determining the time period in which Carroll had
engaged in the practice of law. Indeed, in a recent decision involving a practice-
of-law requirement in the Westlake City Charter, the lead opinion looked
specifically to the definition of “the practice of law” in Gov.Bar R. I(9)(B). State
ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections, 151 Ohio St.3d 306, 2017-Ohio-
4466, 88 N.E.3d 924, ¶ 19 (lead opinion).
{¶ 21} Gov.Bar R. I(9)(B) provides that the “practice of law,” for purposes
of admitting an applicant to practice law in Ohio without examination, includes:
(1) Private practice as a sole practitioner or for a law firm,
legal services office, legal clinic, or similar entity, provided such
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practice was performed in a jurisdiction in which the applicant was
admitted * * *.
(2) Practice as an attorney for a corporation, * * * provided
such practice was performed in a jurisdiction in which the applicant
was admitted, * * * and 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.
The standard articulated in Gov.Bar R. I(9)(B) coincides with our statements in
prior ballot-access cases involving practice-of-law requirements:
“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.”
(Emphasis added.) 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, 1932 N.E. 650 (1934), paragraph one of the syllabus. These are the
same parameters we use to identify conduct by nonattorneys that constitutes the
unauthorized practice of law. See Disciplinary Counsel v. Harris, 137 Ohio St.3d
1, 2013-Ohio-4026, 996 N.E.2d 921, ¶ 7, citing Cleveland Bar Assn v.
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CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, 857 N.E.2d 95,
¶ 22.
{¶ 22} The critical inquiry is whether a particular task or activity
“ ‘require[s] legal analysis.’ ” Miami Cty. Bar. Assn v. Wyandt & Silvers, Inc., 107
Ohio St.3d 259, 2005-Ohio-6430, 838 N.E.2d 655, ¶ 12, quoting Columbus Bar
Assn. v. Verne, 99 Ohio St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, ¶ 5. Filling
in a preprinted form contract for the purchase of real property is a purely clerical
service that does not require “the exercise of legal skill” and may therefore be
performed by nonattorneys. Gustafson v. V.C. Taylor & Sons, Inc., 138 Ohio St.
392, 397, 35 N.E.2d 435 (1941). However, a certified public accountant cannot
advise clients regarding how best to structure their business, because those clients
“need to know the legal differences between and formalities of available structures
and then be advised according to their best interests, taking into account personal
and practical concerns, not just tax consequences.” Verne at ¶ 5; see also
Disciplinary Counsel v. Robson, 116 Ohio St.3d 318, 2007-Ohio-6460, 878 N.E.2d
1042, ¶ 10 (holding that the respondent engaged in the unauthorized practice of law
by advising another person in corporate-structuring strategies).
{¶ 23} By relying on the standards we have articulated, and specifically, on
Gov.Bar R. I(9)(B), Husted employed the correct legal framework in making his
decision. What remains for our review is whether the record supports his factual
conclusions or whether he abused his discretion in reaching the conclusions he did.
In making our determination, we adhere to the well-settled principle that a legally
sound decision based on substantial but conflicting evidence cannot be an abuse of
discretion. State ex rel. Mann v. Delaware Cty. Bd. of Elections, 143 Ohio St.3d 45,
2015-Ohio-718, 34 N.E.3d 94, ¶ 16.
{¶ 24} While leaving room for the possibility that other items in her
background would qualify as practicing law, Husted concluded that Carroll
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satisfied the 72-month requirement by totaling her experience in three venues: the
Reminger law firm, the Cleveland Clinic Foundation, and Legal Aid.
1. Carroll’s employment at the Reminger law firm
{¶ 25} Carroll testified that she began to work at the Reminger law firm in
December 2007. Between September and December 2008, she was on maternity
leave, and at the end of her leave, she did not return to the firm. Based on this
testimony, Husted concluded that she had engaged in the practice of law “for a
period of at least eight (8) months.”
{¶ 26} In their complaints, Emhoff and Lowery both concede that Carroll’s
employment with the Reminger law firm constitutes eight months of practicing law.
Husted’s conclusion that she is entitled to credit of at least eight months for this
work has therefore not been challenged.
2. Carroll’s employment at the Cleveland Clinic Foundation
{¶ 27} The heart of this case is Husted’s decision that Carroll’s work at the
Cleveland Clinic Foundation constituted the practice of law, because if her time at
the Cleveland Clinic is not included, then the total of all her other alleged legal-
practice experiences falls short of the required 72 months.
{¶ 28} At the protest hearing, Carroll testified: “I provided legal advice
while at the Cleveland Clinic. I analyzed and provided regulatory advice at the
Cleveland Clinic.” She worked for the Corporate Compliance Department, and in
that position, she “had to be able to say, based on [her] interpretation of the law,
[whether particular situations needed] to be reported to the government entities.”
And she testified that the Cleveland Clinic paid for her continuing-legal-education
courses and her biennial attorney-registration fees “because it was recognized that
[her] legal degree was important at the Cleveland Clinic.”
{¶ 29} John Steiner, her supervisor at the Cleveland Clinic through 2006,
did not testify. But in his affidavit, he attested:
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In her position as a Compliance Specialist, and later as a Senior
Compliance Specialist for the Cleveland Clinic from September
2003 to December 2007, Ms. Carroll actively engaged in the
practice of law by:
a. providing legal opinions to the internal customers,
through her development and review of policies and procedures to
ensure that they met the necessary legal and regulatory
requirements;
b. advising Clinic employees about legal and regulatory
issues related to vendors, projects, and sales and marketing;
c. advising clients on complex reimbursement issues
arising under Medicare and Medicaid Services (CMS), and
Medicare intermediaries and carriers;
d. providing legal advice and guidance on the
implementation of the Compliance Plan, accreditation standards,
and Institutional Review Board;
e. providing advice and counsel on gap analysis and
documentation that the processes implemented are compliant with
rules and regulations; and
f. conducting numerous legal training sessions to
Clinic employees on federal and state regulatory law topics such as
HIPAA, the Federal Food and Drug Regulations (FDA), CMS
regulations and the Federal and State False Claims Act, and/or Anti-
kickback statute.
In addition, Steiner cited two legal articles coauthored by Carroll while he was her
supervisor at the Cleveland Clinic.
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{¶ 30} Carroll’s testimony and Steiner’s affidavit establish that she was
engaged in the practice of law. It is clear from Carroll’s testimony quoted above
that while working for the Cleveland Clinic, Carroll provided legal advice based on
her analysis of the law, which is the hallmark of practicing law, Verne, 99 Ohio
St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, at ¶ 5.
{¶ 31} In her merit brief, Emhoff lists 14 facts that she claims support the
conclusion that Carroll was not engaged in the practice of law when she worked as
a compliance specialist for the Cleveland Clinic. Some of these facts are of dubious
relevance. There is, for example, no requirement that a job title contain the word
“attorney” in order for the job holder to be engaged in the practice of law, nor must
the job holder be employed in or report to the employer’s law department. And it
is not surprising that Carroll did not maintain professional-malpractice insurance,
considering that she provided legal advice primarily, if not exclusively, to other
employees at the large organization for which she worked.
{¶ 32} Other facts cited by Emhoff relate to the weight of the evidence. For
example, her allegation that Carroll’s primary duties were those set forth in the
Cleveland Clinic’s description of the job or in Carroll’s resume or on her Facebook
page is wholly based on Emhoff’s subjective view as to which evidence is most
credible. It is not the province of this court to reweigh the evidence.
{¶ 33} However, Emhoff and Lowery present one argument as to why
Husted and/or the board erred as a matter of law, and it relates to the board’s and
Husted’s consideration of the Steiner affidavit. Emhoff and Lowery argue that it
was error for the board and Husted to consider the affidavit because it was not
admitted into evidence at the protest hearing. And as a companion to this argument,
they assert that the board erred in failing to grant their request that it continue the
hearing and issue a subpoena to the Cleveland Clinic. These omissions, Lowery
suggests, violated the board’s duty to “maintain the regularity of the proceedings
* * * and afford due process” to all concerned.
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{¶ 34} As a preliminary matter, we note that the challenge to Husted’s
reliance on Steiner’s affidavit is moot because even without the affidavit, Carroll’s
testimony was sufficient to support the secretary’s decision. And we further note
that it is unclear from the record which entity Lowery and Emhoff actually asked
the board to subpoena. The hearing transcript reveals that their counsel asked the
board to issue a subpoena to OhioGuidestone, not to the Cleveland Clinic. The
only time they asked the board to issue a subpoena to the Cleveland Clinic was on
the third page of their letter in reply to Carroll’s response to their protest letters,
and that reply letter was submitted the same day as the hearing. Given that the
protesters did not renew this request at the hearing itself, we cannot say that the
board abused its discretion by failing to grant a continuance and issue the subpoena.
{¶ 35} Moreover, Lowery’s claim of a due-process violation based on the
consideration of the Steiner affidavit, the denial of the protesters’ continuance
request, and the failure of the board to subpoena the Cleveland Clinic has no merit.
As Husted notes in his merit brief, the first requirement for a procedural-due-
process claim is an allegation that one has a right or interest that is entitled to due-
process protection. See, e.g., Ludt v. Youngstown, 7th Dist. Mahoning No. 15 MA
0084, 2016-Ohio-8553, ¶ 21, 24 (holding that a trial court should have granted
summary judgment in favor of the defendants on a procedural-due-process claim,
in part because the plaintiff had “made no claim or asserted any facts that he had a
right or interest that was entitled to due process”). Lowery has not identified a
constitutionally protected interest that was compromised.
{¶ 36} R.C. 3513.05 does not mandate specific procedures or formalities
that a board of elections must follow in hearing a protest. Lowery and Emhoff cite
no authority for the proposition that a board of elections (or the secretary) may not
consider documents attached to a protest letter or a letter in response to a protest
unless those documents are formally moved into evidence at the hearing. And the
determination whether to grant a continuance is a matter within the discretion of
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the tribunal, see Harmon v. Baldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, 837
N.E.2d 1196, ¶ 22-23, and as discussed above, Lowery and Emhoff have not
established that the board abused its discretion. We therefore hold that there was
no due-process violation.
{¶ 37} Based on the foregoing, we hold that Husted did not abuse his
discretion in determining that Carroll’s work for the Cleveland Clinic qualified as
the practice of law. The final question, then, concerns Husted’s determination of
the length of time that Carroll worked for the Cleveland Clinic. In her reply brief,
Emhoff asserts that Carroll worked at the Cleveland Clinic for only 50 months and
21 days, not the full 52 months for which Husted gave her credit, and she suggests
that this is “another example of the inaccurate data that was used by [Husted].” To
substantiate this claim, Emhoff attached to her brief an affidavit by Nancy Tichy,
senior director of human resources at the Cleveland Clinic Foundation. Tichy
signed this affidavit on March 28, 2018, a full month after the protest hearing before
the board, and two weeks after Husted’s decision letter. This evidence is therefore
not part of the record, and we cannot say that Husted abused his discretion by failing
to consider evidence that was not submitted to him.
3. Carroll’s work for Legal Aid
{¶ 38} In her written response to the protest, Carroll claimed that from June
2015 to the present, she served as a “Pro Bono Attorney for Legal Aid provid[ing]
legal assistance for individuals that are impoverished and going through divorces
in Medina County.” Husted counted this as the practice of law, writing that,
“beginning in 2015, [Carroll] represented clients in a pro bono capacity for a period
of at least (14) months.”
{¶ 39} At the protest hearing, Carroll testified that during her time at Legal
Aid, she handled only three cases that ended in divorce or annulment. The clerk’s
docket sheets for those cases were introduced into evidence, and they show that at
least two of the cases were disposed of fairly quickly:
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 Feier v. Nixon, Medina C.P. case No. 15DR0529: The complaint for
divorce was filed on October 9, 2015, and a decree of annulment was
entered on March 8, 2016.
 Perciak v. Perciak, Medina C.P. case No. 16DR0242: The complaint for
divorce was filed on May 24, 2016, and a decree of divorce was entered on
August 9, 2016.
The third case, Hartman v. Hartman, Medina C.P. case No. 15DR0310, lasted
somewhat longer: Carroll first appeared and filed an answer and counterclaim in
mid-September 2015, and the case concluded with a divorce decree on June 21,
2016. Thus, the total span of her legal work for Legal Aid was, at most, 11 months
(September 2015 to August 2016).
{¶ 40} There is no evidence in the record that Carroll provided additional
legal services through Legal Aid or its clients during that timeframe. Carroll was
not an employee of Legal Aid. Her statements at the hearing about her work for
Legal Aid were vague:
A: * * * [W]ere there other questions that I took phone
calls and things? Yes.
***
Q: You’re talking about more than somebody calling
you up on the phone and then you talking to them for a few
minutes—
A: Yes.
Q: —and that’s the end of it?
A: Yes.
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SUPREME COURT OF OHIO
There was no evidence to establish how often she went to the Legal Aid office, how
often she answered the phone, or whether in answering the phone, she provided
legal advice or merely gathered information for scheduling and intake purposes.
{¶ 41} Emhoff contends that Carroll’s time performing legal work for these
Legal Aid clients should not count toward her time practicing law, because her
work on these cases was sporadic, not continuous. However, R.C. 2301.01 does
not require that a candidate for common-pleas-court judge show that she has
practiced law full time for six years, State ex rel. Kelly v. Cuyahoga Cty. Bd. of
Elections, 70 Ohio St.3d at 415, 639 N.E.2d 78, and we have never established a
minimum threshold for the amount of work a qualifying attorney must perform.
Under Emhoff’s argument, a new attorney struggling to establish a law practice
would not be engaged in the practice of law until she succeeds in attracting some
arbitrary number of clients or in maintaining a certain volume of legal work. The
record supports the conclusion that for an 11-month period in 2015 and 2016,
Carroll maintained attorney-client relationships with three clients, drafted
pleadings and appeared in court on their behalf, and presumably met with them at
other times to discuss their cases. Husted did not abuse his discretion in concluding
that she was engaged in the practice of law throughout this period.
{¶ 42} Nor was it an abuse of discretion for him to conclude that she had
practiced law for 14 months, rather than the 11 months described above. Carroll
testified that she began providing legal services to Legal Aid clients prior to
October 7, 2015, though she was uncertain of the exact date she started. In her
written response, she claimed to have started at Legal Aid in June 2015. Using
June 2015 as her start date and August 2016 (when the last of her three divorce
cases concluded) as her end date would yield a total of 14 months.
{¶ 43} Because these three positions add up to 74 months of legal
experience, two more than the minimum amount required, we hold that Secretary
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January Term, 2018
Husted did not abuse his discretion in breaking the tie vote in favor of placing
Carroll’s name on the May 2018 ballot as a judicial candidate.
Claims for writs of mandamus dismissed
and writs of prohibition denied.
O’CONNOR, C.J., and O’DONNELL, FRENCH, and DEGENARO, JJ., concur.
KENNEDY and DEWINE, JJ., concur in judgment only.
FISCHER, J., concurs in judgment only, with an opinion.
_________________
FISCHER, J., concurring in judgment only.
{¶ 44} I agree with the decision to deny the writ of prohibition sought by
relators. I write separately, however, to identify an issue that was not raised by the
parties in this case but that I think this court should address in the near future. It is
not clear to me that this court should be applying an abuse-of-discretion standard
in this narrow band of election cases in which the issue is whether certain conduct
constitutes the practice of law.
{¶ 45} As the majority opinion notes, in our line of cases concerning what
constitutes the “practice of law” for purposes of determining whether a judicial
candidate meets the requirements necessary for his or her name to appear on a
ballot, we have held, at least implicitly, that a board of elections has the right to
determine what constitutes the practice of law. See, e.g., State ex rel. Kelly v.
Cuyahoga Cty. Bd. of Elections, 70 Ohio St.3d 413, 415, 639 N.E.2d 78 (1994),
citing State ex rel. Carr v. Cuyahoga Cty. Bd. of Elections, 63 Ohio St.3d 136, 137-
138, 586 N.E.2d 73 (1992), citing State ex rel. Flynn v. Cuyahoga Cty. Bd. of
Elections, 164 Ohio St. 193, 129 N.E.2d 623 (1955). But Flynn predates the 1968
Modern Courts Amendment and thus predates the addition of Article IV, Section
2(B)(1)(g) of the Ohio Constitution.
{¶ 46} Article IV, Section 2(B)(1) of the Ohio Constitution expressly states,
“The Supreme Court shall have original jurisdiction in the following: * * * (g)
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SUPREME COURT OF OHIO
Admission to the practice of law, the discipline of persons so admitted, and all
other matters relating to the practice of law.” (Emphasis added.) Unlike the other
grants of original jurisdiction conferred by Article IV, Section 2(B)(1), such as
jurisdiction over mandamus actions, this court does not share with any other entity
the jurisdiction granted to it in subsection (g). Compare Ohio Constitution, Article
IV, Section 2(B)(1), with Article IV, Section 3(B)(1), and Article IV, Section 4(B).
Moreover, Article IV, Section 2(B)(1)(g) of the Ohio Constitution uses the
broadest—indeed, the completely encompassing—term: “all other matters relating
to the practice of law.” (Emphasis added.)
{¶ 47} As the majority also notes, in our line of disciplinary cases
addressing the unauthorized practice of law, we have interpreted Article IV, Section
2(B)(1)(g) of the Ohio Constitution to confer on this court “exclusive jurisdiction
over all matters related to the practice of law.” (Emphasis added.) Disciplinary
Counsel v. Alexicole, Inc., 105 Ohio St.3d 52, 2004-Ohio-6901, 822 N.E.2d 348,
¶ 8. In that same line of cases, we have noted that “[t]his court has exclusive power
to regulate, control, and define the practice of law in Ohio.” (Emphasis added.)
Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St.3d 168, 2004-Ohio-
6506, 818 N.E.2d 1181, ¶ 39.
{¶ 48} Comparing these two lines of cases reveals an apparent
inconsistency. It is far from clear to me that under the Ohio Constitution, a board
of elections has any authority to make the determination whether a candidate
engaged in the practice of law. If boards of elections do have authority to make
that determination, then as a matter of logic, this court’s jurisdiction to make such
determination is not exclusive.
{¶ 49} Alternatively, assuming arguendo that a board of elections does have
the authority to make the determination, should we review that determination for
an abuse of discretion or, given the constitutional mandate, should we review it de
novo?
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January Term, 2018
{¶ 50} As previously noted, the parties did not raise this issue in this case.
Moreover, regardless of whether I apply an abuse-of-discretion or a de novo
standard of review or whether I determine that the board of elections and secretary
of state have no authority to deny a candidate her right to have her name placed on
the ballot when that denial requires a practice-of-law-related determination, I reach
the same result as the majority in this case. Nonetheless, this court should reconcile
its determination that we have exclusive jurisdiction over all matters relating to the
practice of law, Alexicole at ¶ 8, with its decisions applying an abuse-of-discretion
standard in cases in which a board of elections or the secretary of state has
determined that a candidate has engaged in the practice of law.
_________________
Walker & Jocke Co., L.P.A., and Patricia A. Walker, for relator Mary
Emhoff.
Patricia F. Lowery, for relator Allen Lowery.
Heidi R. Carroll, respondent, pro se.
S. Forrest Thompson, Medina County Prosecuting Attorney, and Michael
K. Lyons and Tom J. Karris, Assistant Prosecuting Attorneys, for respondents the
Medina County Board of Elections and its members.
Michael DeWine, Attorney General, and Sarah E. Pierce and Andrew
Fraser, Assistant Attorneys General, for respondent Jon Husted.
_________________
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