Marysville Exempted Village School District Board of Education v. Union County Board of Revision

[Cite as Marysville Exempted Village School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision,
136 Ohio St. 3d 146, 2013-Ohio-3077.]
MARYSVILLE EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF EDUCATION,
APPELLEE, v. UNION COUNTY BOARD OF REVISION ET AL., APPELLEES;
CONNOLLY CONSTRUCTION COMPANY, APPELLANT.
[Cite as Marysville Exempted Village School Dist. Bd. of Edn. v. Union Cty. Bd.
of Revision, 136 Ohio St. 3d 146, 2013-Ohio-3077.]
Taxation—Real property—R.C. 5715.19(A)(1)—Legislature did not substantially
interfere with Supreme Court’s authority to regulate practice of law by
permitting nonlawyer salaried employees of corporate property owner to
file valuation complaint on corporation’s behalf—Jurisdiction of board of
revision properly invoked by complaint filed by salaried employee on
behalf of corporate owner.
(No. 2012-1648—Submitted April 23, 2013—Decided July 17, 2013.)
APPEAL from the Board of Tax Appeals,
Nos. 2011-K-4087 through 2011-K-4096.
____________________
Per Curiam.
{¶ 1} This real-property tax case presents an issue of the jurisdiction of
the boards of revision: Does a valuation complaint validly invoke jurisdiction
when the property owner is a corporate entity and the complaint was prepared and
filed by a salaried employee of the entity who is neither an officer nor a lawyer?
{¶ 2} In this case, ten valuation complaints were filed by a salaried
employee on behalf of Connolly Construction Company as the property owner.
In each case, the Union County Board of Revision (“BOR”) apparently ordered a
decrease in value, after which the Marysville Exempted Village School District
Board of Education (“school board”) appealed to the Board of Tax Appeals
(“BTA”). The school board asked the BTA to order that the original complaints
be dismissed in each case because the complaints were allegedly signed by a
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salaried employee of the corporation who is not himself a lawyer, but who
nonetheless purported to act on behalf of the corporate owner. In support, the
school board cited Sharon Village Ltd. v. Licking Cty. Bd. of Revision, 78 Ohio
St.3d 479, 678 N.E.2d 932 (1997), and Worthington City School Dist. Bd. of Edn.
v. Franklin Cty. Bd. of Revision, 85 Ohio St. 3d 156, 707 N.E.2d 499 (1999).
While acknowledging that R.C. 5715.19(A)(1) now explicitly authorizes salaried
corporate employees to file on behalf of the corporate owner, the school board
argued that the statute cannot be given effect because that kind of filing
constitutes the unauthorized practice of law.
{¶ 3} On September 25, 2012, the BTA issued a consolidated decision
granting the school board’s motion. The BTA ordered that the appeals be
remanded to the BOR to be dismissed for want of jurisdiction. Connolly
Construction has appealed, and we now reverse the BTA.
{¶ 4} Because the BTA erroneously ordered dismissal, the valuation
complaints have not received a determination on the merits from the BTA. We
therefore remand to the BTA for further proceedings.
Facts
{¶ 5} The record in this case is sparse. The BTA has certified the
transcript of its proceedings to this court pursuant to R.C. 5717.04, but that record
does not contain any affidavits or testimony. Moreover, the transcript from the
BOR that would ordinarily be certified to the BTA pursuant to R.C. 5717.01 and
included in the record before this court is absent. Accordingly, the record does
not contain the actual valuation complaints at issue or any other evidence bearing
on the jurisdictional issue.
{¶ 6} What the record does contain is the school board’s motion to
dismiss filed at the BTA and Connolly Construction’s memorandum in
opposition. The motion asserts that “[t]he person who filed the complaints is only
a salaried employee of the company, not the owner or a corporate officer with a
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fiduciary duty to the company. Likewise, [the filer] is not an attorney and signing
and filing the complaints was improper as an unauthorized practice of law.” The
memorandum in opposition does not dispute those facts; instead, the
memorandum argues that (1) the filing by the salaried employee was proper
because the complaint is a fact affidavit and the employee is the person with
knowledge, (2) R.C. 5715.19(A)(1) as amended in 1999 specifically permits a
salaried employee of a corporate property owner to file on behalf of the owner,
and (3) the BTA has no authority to decline to apply the statute on constitutional
grounds.
{¶ 7} In its September 25, 2012 decision, the BTA observed that the
BOR had failed to certify the transcript of its proceedings, yet held that the record
was “adequate to resolve [the school board’s] motion.” Marysville Exempted
Village School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision, BTA Nos. 2011-K-
4087 through 2011-K-4096, 2012 WL 4766420, *1 (Sept. 25, 2012), fn. 1. The
complaints had been “prepared and filed on behalf of Connolly Construction by
its employee, John R. Connolly,” who was neither a lawyer and nor an officer. Id.
at *1.
{¶ 8} Relying on McDonald’s Corp. v. Union Cty. Bd. of Revision, 2012-
Ohio-3751, 974 N.E.2d 133 (3d Dist.), appeal accepted, 133 Ohio St. 3d 1489,
2012-Ohio-5459, 978 N.E.2d 909, the BTA concluded that salaried employees
who are not lawyers could not be authorized to file a complaint on behalf of the
corporation. Accordingly, the BTA ordered remand to the BOR for dismissal.
Analysis
A. Connolly’s admissions permit the jurisdictional issue to be determined
{¶ 9} The BTA determined that the record was “adequate” to permit it to
determine the jurisdictional issue the parties presented. 2012 WL 4766420, *1,
fn. 1. At first blush, this finding is puzzling. Apparently, the BTA lacked any
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record—and therefore any factual basis for determining whether the asserted
jurisdictional issue was in fact presented and, if so, how it should be resolved.
{¶ 10} There is a danger in such a situation that the parties are asking the
BTA (and on appeal, the court) to render an advisory opinion on an issue that is
not actually presented. Nonetheless, the BTA was justified in reviewing the legal
issue that the parties presented in spite of any deficiencies of the record. That is
so because of the elementary proposition that “when jurisdictional facts are
challenged, the party claiming jurisdiction bears the burden of demonstrating that
the court has jurisdiction over the subject matter.” Ohio Natl. Life Ins. Co. v.
United States, 922 F.2d 320, 324 (6th Cir.1990). If Connolly Construction
believed that a state of facts existed that established the BOR’s jurisdiction over
its complaints, it had the burden to assert those grounds in opposition to the
motion to dismiss and to offer concomitant proof as necessary in support of its
assertions. See Rapier v. Union City Non-Ferrous, Inc., 197 F. Supp. 2d 1008,
1012 (S.D.Ohio 2002); accord Oak Hills Local School Dist. Bd. of Edn. v.
Hamilton Cty. Bd. of Revision, 134 Ohio St. 3d 539, 2012-Ohio-5750, 983 N.E.2d
1295, ¶ 16-18 (affirming jurisdictional dismissal of appeal to the BTA when
appellant failed to produce sufficient evidence of alleged facts supporting
jurisdiction).
{¶ 11} This burden is very much attendant here because a valuation
complaint initiates an administrative proceeding that is specially created by
statute. Indeed, we have held that the complainant in a special statutory
proceeding must affirmatively plead the jurisdictional facts. See Haskins v. Alcott
& Horton, 13 Ohio St. 210, 216 (1862) (“where a statute, upon certain conditions,
confers a right, or gives a remedy, unknown to the common law, the party
asserting the right, or availing himself of the remedy, must, in his pleadings, bring
himself, or his case, clearly within the statute”); see also S. Christian Leadership
Conference v. Combined Health Dist., 191 Ohio App. 3d 405, 2010-Ohio-6550,
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946 N.E.2d 282, ¶ 28 (2d Dist.). This principle comports with the overarching
doctrine that the proponent of jurisdiction must shoulder the burden of showing
that the tribunal—here, the board of revision—may proceed to hear its complaint.
{¶ 12} In this case, Connolly Construction never contested the factual
assertions made by the school board, nor did it set forth alternative grounds for
jurisdiction. Instead, Connolly Construction acquiesced in the school board’s
factual assertions as a basis for determining the BOR’s jurisdiction. Indeed, the
only basis that Connolly Construction offered in support of jurisdiction was the
provision in R.C. 5715.19(A)(1) permitting a salaried employee to file a valuation
complaint on behalf of its employer, a corporate property owner.1
{¶ 13} We conclude that under these circumstances, we may proceed to
review the BTA’s legal determination that despite R.C. 5715.19(A)(1)’s explicit
authorization, a salaried employee may not file a valuation complaint on behalf of
a corporation if that employee is not a lawyer.
B. The BTA may decline to apply a statute when the board relies on an
appellate court decision declaring the statute unconstitutional
{¶ 14} Connolly Construction argues that the BTA has no authority to
declare a statute unconstitutional, because the BTA “ ‘is an administrative agency,
a creature of statute, and is without jurisdiction to determine the constitutional
validity of a statute.’ ” Castle Aviation, Inc. v. Wilkins, 109 Ohio St. 3d 290,
1. Our decision in Worthington City School Dist. Bd. of Edn., 85 Ohio St. 3d 156, 707 N.E.2d 499,
established that even before the 1999 amendments to R.C. 5715.19(A)(1), the complaint did not
have to be signed by an attorney as long as an attorney had substantial involvement in preparing
and filing it. Id. at 160. This is important in this case in two respects. First, Connolly
Construction notably did not assert or offer to prove that the company’s legal counsel was
involved in preparing and filing the complaint, which would have constituted an alternative
ground for rejecting the motion to dismiss—one that would obviate any consideration of the
constitutionality of the 1999 amendments to R.C. 5715.19(A)(1). Second, the holding of
Worthington shows why it does not matter that the Department of Taxation’s complaint form is
in the form of an affidavit, which would properly be signed by a fact witness rather than an
attorney: under Worthington, the lawyer’s involvement in preparing and filing means that there is
no unauthorized-practice problem, even when the client is the one who signs the complaint.
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2006-Ohio-2420, 847 N.E.2d 420, ¶ 35, quoting Cleveland Gear Co. v. Limbach,
35 Ohio St. 3d 229, 520 N.E.2d 188 (1988), paragraph one of the syllabus; accord
Global Knowledge Training, L.L.C. v. Levin, 127 Ohio St. 3d 34, 2010-Ohio-4411,
936 N.E.2d 463, ¶ 16; see also MCI Telecommunications Corp. v. Limbach, 68
Ohio St. 3d 195, 198, 625 N.E.2d 597 (1994) (in an as-applied challenge, the
BTA’s limited role is to “receive evidence for [the court] to make the
constitutional finding”).
{¶ 15} While the general proposition Connolly Construction relies upon is
true, we do not agree that it applies in this context. To be sure, the BTA’s status
as a creature of statute does prevent it from declining to apply a pertinent statute
on constitutional grounds based merely upon its own determination of the
statute’s constitutionality. But in this case, the BTA pointed to and relied on a
decision from the Third Appellate District, McDonald’s Corp., 2012-Ohio-3751,
974 N.E.2d 133, and the limits on the BTA’s jurisdiction as an administrative
tribunal do not preclude it from attending to, and giving effect to, the
pronouncements of the courts that review its decisions. Indeed, no one has argued
that a ruling issued by this court could be ignored by the BTA; the BTA would
not only have jurisdiction to apply this court’s precedent—it would have a duty to
do so.
{¶ 16} We conclude that the BTA had jurisdiction to apply the
McDonald’s decision from the Third District and to order dismissal in this case
based on the authority of that appellate decision. We now turn to the merits of
whether the BTA should have done so.
C. The potential conflict between legislative power and this court’s
duty to regulate the practice of law
1. The Sharon Village doctrine
{¶ 17} More than 15 years ago, we issued a consequential decision that
addressed whether a corporation that owned real property could authorize a
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nonattorney to file a valuation complaint on its behalf. In Sharon Village, 78
Ohio St. 3d 479, 678 N.E.2d 932, the court applied (1) the former version of R.C.
5715.19(A), (2) R.C. 4705.01, a statute prohibiting the practice of law by
nonlawyers, and (3) case law defining the practice of law. We held that preparing
and filing a valuation complaint on behalf of another constituted the practice of
law. As a result, a person who is not a lawyer could not be authorized to file a
valuation complaint on behalf of a corporate entity that owned real property
because any such filing constituted the unauthorized practice of law and,
accordingly, would not validly invoke the board of revision’s jurisdiction to hear
the complaint. Id. at 483.
{¶ 18} Sharon Village relied on case law that had expansively interpreted
the practice of law. The practice of law is not “ ‘limited to the conduct of cases in
court,’ ” but it encompasses as well “ ‘the preparation of pleadings and other
papers incident to actions and special proceedings,’ ” along with “ ‘the
management of such actions and proceedings on behalf of clients before judges
and courts.’ ” Id. at 480, quoting Land Title Abstract & Trust Co. v. Dworken,
129 Ohio St. 23, 193 N.E. 650 (1934), paragraph one of the syllabus. 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’ ” fell under this broad definition of the practice of law. Sharon Village at
480-481, quoting Dworken at paragraph one of the syllabus. On that basis,
Sharon Village held that the preparation and filing of valuation complaints on
behalf of others constituted the practice of law. Id. at 482.
2. Anti-Sharon Village legislation
{¶ 19} Significantly, during the time at issue in Sharon Village and its
progeny, R.C. 5715.19(A) did not specify persons who may file on behalf of a
corporate property owner. Am.Sub.H.B. No. 603, 142 Ohio Laws, Part III, 4583,
4589. But R.C. 4705.01 did expressly prohibit a nonlawyer from “using or
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subscribing his own name” to commence, conduct, or defend any “action or
proceeding” when the nonlawyer is not a party to the case. Am.Sub.S.B. No. 219,
140 Ohio Laws, Part I, 662, 680-681. Thus, at the time Sharon Village was
decided, the statutes themselves did not authorize anyone but a lawyer to file on
behalf of a corporate entity. That circumstance makes it understandable that the
filing of a valuation complaint by a nonlawyer was deemed to constitute a
jurisdictional defect in the complaint itself.
{¶ 20} In 1999, however, the General Assembly enacted Sub.H.B. No.
694, which amended R.C. 5715.19(A)(1) to permit certain specified persons to
file valuation complaints on behalf of the property owner without regard to
whether those persons are lawyers. 147 Ohio Laws, Part III, 5373, 5375.
Permitting nonlawyers to file as the agent of a property owner raised the issue
“whether the legislative enactment can constitutionally be enforced in light of the
duty to regulate the practice of law that the Ohio Constitution vests in this court.”
Columbus City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 134
Ohio St. 3d 529, 2012-Ohio-5680, 983 N.E.2d 1285, ¶ 11.
3. This court has upheld two H.B. 694 provisions
{¶ 21} In two cases, this court has addressed different portions of the 1999
amendments to R.C. 5715.19(A)(1). First, in Dayton Supply & Tool Co., Inc. v.
Montgomery Cty. Bd. of Revision, 111 Ohio St. 3d 367, 2006-Ohio-5852, 856
N.E.2d 926, we considered the statutory provision authorizing nonlawyer
corporate officers to file on behalf of the corporate property owner. In that case,
we set forth the relevant factors to consider in determining, on a case-by-case
basis, whether a particular activity may be performed by nonlawyers. Id. at ¶ 7-
13. We concluded that “a corporate officer does not engage in the unauthorized
practice of law by preparing and filing a complaint with the board of revision and
by presenting the claimed value of the property before the board of revision on
behalf of his or her corporation, as long as the officer does not make legal
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arguments, examine witnesses, or undertake any other tasks that can be performed
only by an attorney.” Id. at syllabus.
{¶ 22} Next, in Columbus Bd. of Edn., 134 Ohio St. 3d 529, 2012-Ohio-
5680, 983 N.E.2d 1285, we addressed the amended statute’s provision that
authorizes a property owner’s spouse to file on behalf of the owner. Concluding
that the legislature did not substantially interfere with this court’s authority to
regulate the practice of law by permitting a spouse to file a valuation complaint on
behalf of the property owner, the court deferred to the General Assembly’s
decision regarding how the jurisdiction of an administrative board may be
invoked. We also declined to apply the case-by-case test used in Dayton Supply
& Tool to decide who may file on another’s behalf, based on our perception that
the legislature did not intend that any such test be applied.
{¶ 23} Thus, the decision in Columbus Bd. of Edn. provides a roadmap for
considering the issue in this case, i.e., whether salaried employees of a corporate
property owner may prepare and file a valuation complaint on behalf of the
owner.
D. The General Assembly did not exceed its authority when it authorized
salaried employees to file complaints on behalf of the corporation
{¶ 24} At the outset, we note that Connolly’s heavy reliance on our
decision in Toledo Pub. Schools Bd. of Edn. v. Lucas Cty. Bd. of Revision, 124
Ohio St. 3d 490, 2010-Ohio-253, 924 N.E.2d 345, is misplaced. In Toledo, a
lawyer for a property-management company prepared and filed a valuation
complaint on behalf of the property owner, pursuant to an agreement granting the
management company that authority. We confronted the issue whether a
contractor could act as an agent of the property owner and held that it could. Id.
at ¶ 24, 28, and 30. We specifically noted, however, that the issue of the
unauthorized practice of law (which is at the heart of this case) did not arise,
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because a lawyer—the contractor’s lawyer—had been involved in preparing and
filing the complaint. Id. at ¶ 22. Accordingly, Toledo is inapposite.
{¶ 25} Because Toledo does not control, we must apply the test articulated
in Columbus Bd. of Edn. Under that case, three principles guide the court’s
determination. First, we decline to adopt an as-applied approach with a
multifactor constitutional test that the legislature itself did not enact and did not
intend. Columbus Bd. of Edn. calls for reviewing each of the particular provisions
added to R.C. 5715.19(A)(1) by Sub.H.B. No. 694 on an all-or-nothing basis,
because “[l]itigants and agencies should be able to rely on the statute at all times
or, alternatively, know that they may never rely on it.” Id. at ¶ 20.
{¶ 26} Second, we accord deference to the General Assembly’s authority
to create administrative tribunals such as the boards of revision and to define how
their jurisdiction may be invoked. Id. at ¶ 22. It follows that we will invalidate
the filing of a complaint that complies with R.C. 5715.19(A)(1) only if we find
that enforcing the statute would substantially interfere with this court’s duty to
regulate the practice of law. Id.
{¶ 27} Third, we uphold the legislative decision to authorize the filing of a
complaint on behalf of the owner if the person so authorized may, by virtue of his
or her relationship with the owner, be held accountable by the owner for his or her
actions. Id. at ¶ 24.
{¶ 28} Applying these principles compels the conclusion that the General
Assembly had authority to authorize salaried employees, though not lawyers, to
file on behalf of the corporate property owner. Although the salaried corporate
employee does not necessarily have the same degree of fiduciary duty toward the
corporation that an officer possesses, the relationship of a salaried employee to
the corporate employer does “tend to involve an ongoing relationship between the
owner and the filer” that “allow[s] the owner to hold the filer accountable for his
or her actions.” Columbus Bd. of Edn., 134 Ohio St. 3d 529, 2012-Ohio-5680, 983
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N.E.2d 1285, at ¶ 24. Nor does allowing the salaried employee to file constitute
any greater intrusion on our duty to regulate the practice of law than those
authorizations that we have already upheld.
{¶ 29} Moreover, we find the school board’s arguments to the contrary
unavailing. The school board first argues that “the legislature cannot widen the
pool of people who may practice law.” It is true that, because this court bears the
ultimate constitutional responsibility to oversee the practice of law, the legislature
can go no further in authorizing legal practice by nonlawyers than we permit. But
it is equally true that we have permitted nonlawyers to engage in a properly
limited range of activity, even though that activity falls within the broad definition
of legal practice. We have held that “ ‘there are multiple interests to consider in
determining whether a particular legal activity is acceptably performed by
nonlawyers,’ ” so that even though “ ‘all representative conduct at the
administrative level falls within the broad definition of the practice of law, yet
[we may] still authorize lay representatives to perform certain functions in the
administrative setting when the public interest so demands.’ ” Dayton Supply &
Tool Co., 111 Ohio St. 3d 367, 2006-Ohio-5852, 856 N.E.2d 926, ¶ 13, quoting
Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St. 3d 168, 2004-Ohio-
6506, 818 N.E.2d 1181, ¶ 69.
{¶ 30} In CompManagement, we upheld the standards of Industrial
Commission Resolution No. R04-1-01, which defined what certain nonlawyers
(third-party administrators and union representatives) may do in connection with
assisting claimants and employers with workers’ compensation claims before the
Industrial Commission. Those standards authorized nonlawyers, among other
things, to assist parties “ ‘in the administration of a claim and the filing of claims
and appeals.’ ” Id. at ¶ 21, quoting paragraph (A)(2) of the Resolution. Accord
Henize v. Giles, 22 Ohio St. 3d 213, 217, 490 N.E.2d 585 (1986) (“With this
authority [to control the practice of law] is the concomitant responsibility to
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protect the public by preventing the unauthorized practice of law, while at the
same time not exercising this authority so rigidly that the public good suffers”).
{¶ 31} This background demonstrates that there is ample precedent for
exercising deference to laws or policies that, in properly limited contexts,
authorize nonlawyers to engage in activities that fall into the broad category of the
practice of law. Because the authorization of salaried employees to file on behalf
of their corporate employers satisfies the relevant criteria, we uphold it.
{¶ 32} Next, the school board attempts to distinguish this case from
Dayton Supply & Tool by contrasting the duties of a corporate officer and those of
a salaried employee. The school board asserts that the person who prepares and
files the valuation complaint must have a “fiduciary duty” to the corporate
property owner and states that unlike corporate officers, salaried employees are
not typically regarded as fiduciaries of the corporation.
{¶ 33} We do not find this argument persuasive. It has long been
acknowledged that an employee is party to an “ ‘implied agreement * * * that he
will faithfully serve and be regardful of the interests of his employer during the
term of service and carefully discharge his duty to the extent reasonably implied
by the relation of employer and employee.’ ” (Emphasis deleted.) Fremont Oil
Co. v. Marathon Oil Co., 26 O.O.2d 109, 92 Ohio Law. Abs. 76, 192 N.E.2d 123,
126 (C.P.1963), quoting 35 Ohio Jurisprudence 2d, Section 78, 500; see also
Fugo v. Summit Cty. Bd. of Commrs., 9th Dist. Summit No. C.A. 8380, 1977 WL
198883 (June 2, 1977) (same); accord Columbus & Xenia RR. Co. v. Webb’s
Admr., 12 Ohio St. 475, 492 (1861). This legal relationship makes the salaried
employee sufficiently accountable to the property owner under the Columbus Bd.
of Edn. test. That is particularly true since, in that case, the spousal relationship
met the test even in the absence of a business-fiduciary component.
{¶ 34} In sum, we hold that the legislature acted within its authority in
amending R.C. 5715.19(A)(1) to permit a salaried employee of a corporation who
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is not a lawyer to file a complaint on behalf of the corporation. The complaints in
this case therefore properly invoked the jurisdiction of the BOR, and dismissal
was not warranted.
Conclusion
{¶ 35} For the foregoing reasons, the BTA erred by ordering that the
valuation complaints at issue be dismissed for lack of jurisdiction. We therefore
reverse the decision of the BTA and remand for further proceedings.
Additionally, the pending motion to consolidate this case with other cases is, with
respect to this case, denied as moot.
Decision reversed
and cause remanded.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Britton, Smith, Peters & Kalail Co., L.P.A., Karrie Marie Kalail, and Paul
J. Deegan, for appellee Marysville Exempted Village School District Board of
Education.
Luper, Neidenthal & Logan, Luther L. Liggett Jr., and David M. Scott, for
appellant.
________________________
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