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

Citation: 2021 Ohio 2993Docket: 2021-0962

Court: Ohio Supreme Court; August 31, 2021; Ohio; State Supreme Court

Original Court Document: View Document

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Citations for the opinion are provided as State ex rel. Nasal v. Miami Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-2993, pending formal publication. The case involves a writ of prohibition filed by Judge Gary A. Nasal against the Miami County Board of Elections, challenging the certification of Jessica A. Lopez as a candidate for municipal-court judge. Nasal contended that Lopez did not meet the six-year law practice requirement under R.C. 1901.06. 

After a public hearing on July 27, 2021, where evidence of Lopez's legal experience was presented, the board unanimously denied Nasal's protest without explanation. Lopez was admitted to the Ohio bar in November 2006 and had various legal experiences leading to her current position as Miami County recorder. 

Nasal's subsequent action for a writ of prohibition sought to prevent Lopez's candidacy certification. The court determined that prohibition is an appropriate remedy for challenging a board's decision post-evidentiary hearing. The review standard requires evidence of fraud, corruption, abuse of discretion, or clear disregard for the law. No such allegations were found in this case, leading to the denial of the writ.

Judge Nasal recommended a de novo review of the board’s decision, asserting this court’s exclusive jurisdiction over the definition of the practice of law in Ohio, citing *Cleveland Bar Assn. v. CompManagement, Inc.* However, referencing *State ex rel. Carr v. Cuyahoga Cty. Bd. of Elections*, the court concluded that the board of elections did not overstep its jurisdiction by determining if a judicial candidate was engaged in the practice of law. The critical task is to assess whether the board abused its discretion regarding Lopez’s fulfillment of the six-year practice requirement under R.C. 1901.06.

The definition of the practice of law encompasses not only court case management but also legal document preparation and providing legal advice, as established in *State ex rel. Devine v. Schwarzwalder*. A key consideration is whether specific tasks necessitate legal analysis. Gov.Bar R. I(10)(B) outlines standards for practicing law relevant to bar admission without examination, indicating that practice includes tasks primarily focused on legal counsel, document drafting, and case representation.

R.C. 1901.06 mandates that a municipal judge candidate must have practiced law for at least six years before the judicial term begins. The statute’s language permits qualification based on any six years of prior practice. Lopez presented evidence of her work experience from 2006 to 2009, including legal research and drafting complaints at Lopez, Severt, and Pratt, and providing legal advice and court representation at the Law Offices of Scott D. Rudnick. Lopez's activities during this period, totaling about 30 months, were acknowledged by Judge Nasal's counsel as constituting the practice of law, a conclusion the court affirmed.

D. Lopez established her solo legal practice after leaving the Rudnick firm in 2009, operating from home and obtaining an Interest on Lawyers Trust Account and malpractice insurance. She completed the necessary background checks to serve as a guardian ad litem (GAL) and received GAL appointments in multiple counties by 2012. There was a dispute regarding whether her GAL service constituted the practice of law. Judge Nasal argued it did not, suggesting that Lopez needed to be appointed as legal counsel for her wards to be considered practicing law. However, the board accepted Lopez’s testimony that she was indeed engaged in building her practice and serving as a GAL during this period. 

Lopez's responsibilities as a GAL included gathering information, preparing reports, attending hearings, and filing motions, which are recognized as legal activities. The Rules of Superintendence indicate that an attorney serving as a GAL may engage in practices typical of legal representation, while non-attorney GALs are restricted from such activities. Consequently, the board concluded that Lopez’s actions during her time as a GAL constituted the practice of law.

In total, Lopez’s time spent in solo practice and as a GAL exceeded the required six-year practice threshold, making her qualifications sufficient. The court found no abuse of discretion by the board in denying the protest regarding Lopez’s candidacy for the November ballot. The writ of prohibition was denied, with concurrence from several justices and dissent from Fischer, J.

Ohio law mandates that municipal-court judges have a minimum of six years of legal practice experience (R.C. 1901.06). Jessica A. Lopez does not meet this requirement. The dissenting opinion argues that the court applies an overly deferential standard of review in election cases concerning judicial candidates, which has led to Lopez being allowed on the ballot despite her insufficient experience. 

The dissenting judge suggests adopting a de novo standard of review, asserting that Lopez lacks the requisite experience. Although Lopez has approximately 2.5 years of legal practice from her time at two law firms and her role as a guardian ad litem, the dissent disagrees with the lead opinion's assessment that her sporadic guardian ad litem work constitutes an additional 3.5 years of practice. The record shows she only served in 12 cases over four years, with minimal hours dedicated to each, resulting in just over a year of relevant experience. 

The dissent emphasizes that transforming this limited work into 3.5 years undermines the statutory requirement for judicial candidates and cautions against equating infrequent legal work with full-time practice, which could render the experience requirement meaningless.

The term "practice" implies more than minimal activity, as defined by Webster’s dictionary, which distinguishes between actual engagement in a career versus mere knowledge. Consequently, Ohio's rules require out-of-state lawyers seeking to practice in Ohio to demonstrate at least five years of full-time legal practice in another jurisdiction. The distinction is also made between full-time and part-time law professors, with only the former counted as practicing law. 

The author critiques the lead opinion's interpretation of minimal legal activity as equivalent to substantial experience, comparing it to educational and professional standards in other contexts. For instance, a college student cannot earn a degree with only 24 credit hours after four years, analogous to treating limited legal work as comparable to years of practice. Similarly, a professional baseball player must meet specific criteria to earn service time, highlighting the inadequacy of recognizing minimal legal engagement.

The author argues against the trend of equating part-time practice with full-time practice, suggesting that Lopez’s limited work as a guardian ad litem does not equate to the necessary experience to qualify for a judicial candidacy. Additionally, work as a county recorder is not considered practice under Ohio rules unless it is exclusively available to attorneys. Ultimately, the author concludes that Lopez has only 3.5 years of practice, falling short of the required six years, and advocates for granting the requested writ of prohibition, expressing dissent from the lead opinion.