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-1660

THE 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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January Term, 2018

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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