Opinion
No. 91-2097
Submitted October 31, 1991 —
Opinion released February 12, 1992.
Reporter's Note: The appeal in this cause was affirmed in an entry dated October 31, 1991, "consistent with the opinion to follow." See 62 Ohio St.3d 1450, 579 N.E.2d 1389. The "opinion to follow" is announced today.
APPEAL from the Court of Appeals for Cuyahoga County, No. 62567.
Appellant, Cathleen V. Carr, was admitted to the practice of law by this court on May 13, 1985. By rules and orders then in effect, she was required to file a certificate of registration under Gov. Bar R. VI before September 1, 1985, but did not do so until October 23, 1986.
In 1991, she filed with appellee, the Cuyahoga County Board of Elections ("board"), nominating petitions for election to the office of judge of the Cleveland Municipal Court for the term beginning January 1, 1992. The board accepted the petitions. However, a protest was filed on either September 3 or September 4, 1991, raising a question as to Carr's residence. After a September 16, 1991 hearing, the board voted to place Carr's name on the November 5 ballot. However, during that hearing, a second question was raised as to Carr's compliance with R.C. 1901.06, which states in pertinent part:
"A municipal judge * * * shall have been admitted to the practice of law in the state and shall have been, for a total of at least six years preceding his appointment or commencement of his term, engaged in the practice of law in this state * * *."
A second protest was filed on September 24, 1991, based on the six years' experience requirement of R.C. 1901.06. On October 1, 1991, the board held a hearing on that protest. There, the protestor argued that Carr had not practiced law for six years because the nearly fourteen months she was not registered under Gov. Bar R. VI could not be counted. The board agreed and refused to place Carr's name on the November 5 ballot. Thereafter, Carr sought a writ of mandamus in the court of appeals to compel the board to place her name on the November 5 ballot, but the court denied the writ.
The cause is before the court upon an appeal as a matter of right.
Armstrong, Gordon, Mitchell Damiani, Louis C. Damiani and Bruce A. Zaccagnini, for appellant.
Stephanie Tubbs Jones, Prosecuting Attorney, Patrick J. Murphy and Michael P. Butler, for appellee.
Carr first argues that both protests were untimely filed under R.C. 3513.263, that the second protest was not filed by a qualified elector eligible to vote for the candidate, as required by R.C. 3513.263, and that the board abused its discretion by hearing the protests. However, we have allowed the board to examine and act on petitions regardless of the timeliness of the protest, see State, ex rel. Hinkle, v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 580 N.E.2d 767, and even absent any protest, State, ex rel. Ehring, v. Bliss (1951), 155 Ohio St. 99, 44 O.O. 117, 97 N.E.2d 671. Therefore, these arguments are not well taken.
R.C. 3513.263 states in part:
"Written protests against such nominating petitions may be filed by any qualified elector eligible to vote for the candidate whose nominating petition he objects to, not later than the sixty-fourth day before the general election. * * *"
Carr also asserts that the board abused its discretion by (1) finding that failure to register timely under Gov. Bar R. VI terminates an attorney's right to engage in the practice of law, (2) usurping the exclusive jurisdiction of this court to regulate and define the practice of law, and (3) denying her rights to due process and equal protection of the law.
In State, ex rel. Flynn, v. Cuyahoga Cty. Bd. of Elections (1955), 164 Ohio St. 193, 57 O.O. 402, 129 N.E.2d 623, overruled in part on other grounds in State, ex rel. Schenk, v. Shattuck (1982), 1 Ohio St.3d 272, 1 OBR 382, 439 N.E.2d 891, we upheld the constitutionality of R.C. 1901.06, insofar as it sets an experience requirement, and also upheld a board of election's determination that experience as a municipal court referee did not constitute the "practice of law." (This latter holding was overruled in Schenk.) Flynn, thus, implicitly upheld a board's right to determine what the "practice of law" means under R.C. 1901.06.
In the instant case, both the board and the court of appeals relied on Section 2 of Gov. Bar R. VII, which at all relevant times defined "unauthorized practice of law" as the "rendering of legal services for others by anyone not registered under Rule VI or Rule XI of the Rules for the Government of the Bar of Ohio." The board also had before it evidence that from July 1, 1986 until July 1, 1991, Gov. Bar R. VI(7) stated in part:
"An attorney who is not listed on the roll of registered attorneys is not entitled to practice law nor hold himself out as authorized to practice law in this State."
The standard for reviewing a decision of a board of elections is whether the board engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions. State, ex rel. Beck, v. Casey (1990), 51 Ohio St.3d 79, 80, 554 N.E.2d 1284, 1285. We find no abuse of discretion or disregard of applicable legal provisions where the board apparently considered evidence of two plain rules of this court then in effect (and still in effect in the case of Gov. Bar R. VII as amended January 1, 1989) when applying R.C. 1901.06.
Moreover, the board did not usurp the exclusive jurisdiction of this court or deny Carr due process or equal protection of law. Flynn, supra, established the principle that boards of election may decide what is the practice of law for purposes of applying R.C. 1901.06. Such cases as Schenk, supra, and State, ex rel. Devine, v. Schwarzwalder (1956), 165 Ohio St. 447, 60 O.O. 95, 136 N.E.2d 47, permit courts of common pleas and appellate courts to make the same determination in quo warranto actions. Thus, we have never required a prior finding of unauthorized practice of law pursuant to the procedures of Gov. Bar R. VII before a board of elections or court of original jurisdiction could apply R.C. 1901.06. Obviously, the proceeding before a board of elections in an R.C. 1901.06 case is different from the proceeding outlined in Gov. Bar R. VII for a finding of unauthorized practice of law. However, both proceedings require notice and an opportunity to be heard, which, in this case, appear to have been fully accorded.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.