Summary
In Schenck v. Shattuck, supra, 1 Ohio St. 3d 372, the court concluded that service as a trial referee constituted the practice of law for purposes of a minimum practice requirement for service as a judge.
Summary of this case from Bysiewicz v. DinardoOpinion
No. 82-1101
Decided September 15, 1982.
Quo warranto — Ouster of judge from office — Writ denied, when — Employment as referee constitutes "practice of law" — R.C. 2301.01, construed.
APPEAL from the Court of Appeals for Greene County.
Respondent-appellant, Honorable Judson L. Shattuck, Jr., was appointed to the office of Judge of the Court of Common Pleas for Greene County on April 19, 1982. On June 15, 1982, relator-appellee brought this action in quo warranto in the Court of Appeals for Greene County to oust appellant from office, alleging that appellant had not engaged in the practice of law for six years as required by R.C. 2301.01 in order to qualify for the office of common pleas court judge.
Appellant was admitted to the practice of law in the state of Ohio on May 6, 1972. The parties agree that appellant was engaged in the practice of law from the date of his admission to the Bar until October 1976. During this four and one-half year period, appellant was employed by the Internal Revenue Service, Intelligence Division; as an associate corporate counsel for KDI Corporation; as a sole practitioner; and as attorney-director of the Greene County Public Defender's Office. During the last five and one-half years before he was appointed judge, appellant was employed full-time as a referee with the General Division of the Court of Common Pleas of Greene County.
The Court of Appeals found that appellant's employment as a referee did not constitute the practice of law for purposes of R.C. 2301.01 and allowed the issuance of a writ of quo warranto, to oust appellant from the office of judge of the court of common pleas.
The cause is now before this court upon an appeal as of right.
The Court of Appeals granted appellant's motion for Stay of Judgment or Order Pending Appeal to this court.
Mr. William F. Schenck, prosecuting attorney, pro se. Messrs. Brandabur, Campbell, Finlay, Johnson, McCormick, Weckstein Beard and Mr. J. Timothy Campbell, for appellant.
The sole issue raised by this appeal is whether employment as a referee constitutes the "practice of law" for purposes of R.C. 2301.01. That statute provides, in part:
"There shall be a court of common pleas in each county held by one or more judges, each of whom has been admitted to practice as an attorney at law in this state and has, 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 or served as a judge of a court of record in any jurisdiction in the United States, or both, resides in said county, and is elected by the electors therein."
In holding that appellant's employment as a referee did not constitute the practice of law, the Court of Appeals relied on State, ex rel. Flynn, v. Bd. of Elections (1955), 164 Ohio St. 193 [57 O.O. 402]. There, this court construed a similar provision in R.C. 1901.06 setting forth the qualifications for the office of municipal judge. At the time, R.C. 1901.06 required that a municipal judge "* * * shall have been actively engaged in the practice of law as his principal occupation for at least five years * * *." In Flynn, the court noted that judges are prohibited from practicing law under R.C. 4705.01 and determined that, "[s]ince a Judge of the Cleveland Municipal Court in the performance of his judicial duties can not, by this statutory definition, be considered as practicing law, then neither can relator's services, as a referee, in assisting a judge in the performance of judicial duties be considered the practice of law." Id. at 201.
Although the Court of Appeals felt judicially bound to follow the Flynn holding, it requested that we re-examine the question in light of the fact that R.C. 2301.01 is a "qualifications" statute. We have done so, and recognize as the Court of Appeals stated, that "[t]he decision in Flynn would permit a candidate who has engaged in a minimal practice of law with little or no exposure to the common pleas court practice to be deemed qualified, while [permitting] a fulltime referee of the common pleas court who daily confronts vexing legal problems of the court * * * to be rendered unqualified." For this reason, we share in the disquietude expressed by the court below.
We find that the better-reasoned approach was taken by the Supreme Court of Georgia in Gazan v. Heery (1936), 183 Ga. 30, 187 S.E. 371. Construing a similar qualifications statute, that court stated, at page 42: "* * * The words `practice of law' may have an entirely different meaning in a statute designed to prevent the practice of law by one not qualified to do so, from that which the same expression should have in determining qualification to hold judicial office. * * * The purpose of section 6 of the statute creating the municipal court of Savannah was not to place an arbitrary and technical barrier against a person who might possess in reality the knowledge, training, experience, and soundness of judgment such as would qualify him to fill the office of chief judge of the municipal court. Words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of choice from all those who are in fact and in law qualified."
Adopting this rationale, we hold that employment of a lawyer as a referee constitutes the practice of law for purposes of R.C. 2301.01 and overrule Flynn insofar as it is inconsistent with today's decision.
The judgment of the Court of Appeals is reversed and the writ of quo warranto denied.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.