text:
    The STATE of Ohio, Appellee, v. UPKINS, Appellant.
    No. 2016-1742
    Supreme Court of Ohio.
    Submitted December 5, 2017 Decided May 10, 2018.
    Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Peter T. Reed, Deputy Solicitor; and Timothy S. Sell, Shelby County Prosecuting Attorney, and Melissa L. Wood, Assistant Prosecuting Attorney, for appellee.
    Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant.
    {¶ 1} This cause is dismissed as having been improvidently accepted.
    O'Connor, C.J., and O'Donnell, Kennedy, Rice, and DeWine, JJ., concur.
   Fischer, J., dissents, with an opinion joined by French, J.

Cynthia Westcott Rice, J., of the Eleventh District Court of Appeals, sitting for O'Neill, J.

{¶ 2} I disagree with the decision to dismiss this case as improvidently accepted. There are a number of problems regarding Anders briefs in this state that should be resolved by this court, and this case presents an opportunity to resolve several of those problems.

I. Background

{¶ 3} Appellant, Lamone Upkins, was charged with four counts of fifth-degree-felony drug trafficking, seven counts of fourth-degree-felony drug trafficking, and one count of third-degree-felony drug trafficking. Upkins, assisted by counsel, negotiated a plea agreement in the Shelby County Court of Common Pleas whereby he pleaded guilty to two counts of fifth-degree-felony drug trafficking, two counts of fourth-degree-felony drug trafficking, and one count of third-degree-felony drug trafficking. In exchange for his plea, the state dismissed the remaining counts. The agreement included a joint sentencing recommendation of four years of incarceration.

{¶ 4} The trial court accepted Upkins's guilty plea and sentenced him to an aggregate sentence of four years and ten months of incarceration.

{¶ 5} Upkins appealed, and the same counsel that represented him in his trial-court proceedings represented him before the Third District Court of Appeals. Upkins's counsel subsequently filed a no-merit brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw as counsel. Upkins filed a pro se brief alleging, among other claims, that his plea was not voluntary because he did not understand that the court could reject the sentence that was jointly recommended, that the sentence was based on incorrect information regarding prior convictions, and that his trial counsel was ineffective in multiple ways. Upkins also argued that he should have been appointed new counsel because his present counsel had a conflict of interest.

{¶ 6} The appellate court conducted an independent review of the record and determined that there was no nonfrivolous claim. The court permitted counsel to withdraw, and it dismissed Upkins's appeal.

{¶ 7} Upkins filed a pro se jurisdictional appeal with this court. The court rephrased Upkins's fourth proposition of law and accepted jurisdiction over that proposition: "When appellate counsel also served as trial counsel and moves to withdraw pursuant to Anders v. California , the court shall permit counsel to withdraw and must then appoint new appellate counsel to review the record and raise any nonfrivolous appealable issue." 149 Ohio St.3d 1405, 2017-Ohio-2822, 74 N.E.3d 464.

II. Anders v. California

{¶ 8} In Anders v. California , the United States Supreme Court ruled that a defendant's due-process and equal-protection rights are violated when defense counsel files a no-merit letter with the appellate court and does no more. 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. The court held that counsel is required to file a brief referring the appellate court to anything in the record that might arguably support the appeal. Id. The defendant must be furnished a copy of his counsel's brief and must be given the opportunity to raise his own arguments. Id. The court must then conduct an independent review of the record and determine whether the case is wholly frivolous. Id. Only after these multiple levels of review are complete can an appellate court dismiss an appeal under Anders . Id.

{¶ 9} The Anders procedure is a constitutional floor and not a constitutional ceiling. Smith v. Robbins , 528 U.S. 259, 265, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). In other words, states may impose greater duties on a defendant's attorney but may not allow counsel to fall short of this level of duty.

III. The Anders procedure creates an ethical problem for appellate courts

{¶ 10} Under Anders , the appellate court must complete an independent review of the record and then appoint counsel to argue that appeal if the court finds that a claim of arguable merit exists. This procedure places the court in the role of both advocate and adjudicator. In Ohio, how can a judge who has reviewed a record and identified issues of arguable merit then rule on the actual merits of the claims he or she previously identified without there being an appearance of impropriety, which is barred by the rules of judicial ethics? See Canon 1 of the Ohio Code of Judicial Conduct.

IV. Anders in other states

{¶ 11} Several other states have either decided to not accept Anders briefs or have adopted a modified version of the procedure.

{¶ 12} The Idaho Supreme Court has entirely barred defense counsel from filing Anders briefs, noting that Anders is a constitutional safeguard, not a constitutional mandate. State v. McKenney , 98 Idaho 551, 552-553, 568 P.2d 1213 (1977). The New Hampshire Supreme Court has adopted the "Idaho rule" and has noted that provided appellate counsel has a good-faith basis for bringing an appeal, defense counsel would not run afoul of any ethical duties because wholly frivolous appeals are "extremely rare." State v. Cigic , 138 N.H. 313, 316-317, 639 A.2d 251 (1994). The Georgia Supreme Court has stated that Anders briefs will no longer be considered and has specifically noted that there is nothing to suggest that defense counsel should be disciplined or subject to disapproval for filing a "frivolous" merit brief when representing an indigent client. Huguley v. State , 253 Ga. 709, 710, 324 S.E.2d 729 (1985). {¶ 13} The Massachusetts Supreme Court has ruled that Anders created confusion for appointed counsel by requiring counsel to argue against the client's wishes and best interests. Commonwealth v. Moffett , 383 Mass. 201, 205-206, 418 N.E.2d 585 (1981). The court determined that counsel should not be permitted to withdraw but should represent the client succinctly and in a way that will do the client the least harm. Id. at 207-208, 418 N.E.2d 585. Counsel may also disassociate from the arguments in the brief but must send a copy of the brief to the client if counsel does so. Id. at 208, 418 N.E.2d 585.

{¶ 14} The Missouri Supreme Court has determined that it will not permit appointed counsel in criminal appeals to withdraw under the Anders procedure and that counsel should " 'communicate to the court the issues and whatever can be said in support of them.' " State v. Gates , 466 S.W.2d 681, 683-684 (Mo.1971), quoting Advisory Committee Notes to ABA Standards, The Prosecution Function and the Defense Function 301 (1970 tentative draft). Similarly, the Colorado Supreme Court has looked to the ABA Standards for Criminal Appeals, which state that counsel cannot withdraw but should inform the client of the chances of success, eliminate arguments that lack any merit, and suggest the case be submitted on the briefs. McClendon v. People , 174 Colo. 7, 481 P.2d 715, 718 (1971), citing ABA Standards, Criminal Appeals 3.2 (1970).

{¶ 15} The North Dakota Supreme Court has found that adopting the Anders procedure violated the state constitution. State v. Lewis , 291 N.W.2d 735, 738 (N.D.1980). The court ruled that counsel could move to withdraw but that replacement counsel should be appointed. Id.

{¶ 16} In addition to the seven states discussed above, nine other states have barred a defense attorney from filing an Anders brief. See In re Attorney's Fees of Mohr , 97 Haw. 1, 11, 32 P.3d 647 (2001) ; Mosley v. State , 908 N.E.2d 599, 607 (Ind.2009) ; State v. Junkins , 2001 ME 133, 779 A.2d 948, ¶ 8 ; Ramos v. State , 113 Nev. 1081, 1084, 944 P.2d 856 (1997) ; State v. Talley , 103 N.M. 33, 1985-NMCA- 058, 702 P.2d 353, ¶ 23 ; In re Bailey , 187 Vt. 176, 2009 VT 122, 992 A.2d 276, ¶ 64 ; Revised Iowa R.App.P. 6.1005(1) and Iowa R.Prof.Cond. 32:3.1, comment 4; N.J. Court R. 3:22-6(d) ; W.Va.R.App.P. 3(d)(2). Kansas and Minnesota have not specifically barred the filing of Anders briefs by rule or case law, but neither state has adopted the Anders procedure, and Anders briefs are not filed by defense counsel in those two states. Martha C. Warner, Anders in the Fifty States: Some Appellants' Equal Protection is More Equal Than Others , 23 Fla.St.U.L.Rev. 625, 651, and fn. 212 (1996) ("Kansas has an unwritten policy of not accepting Anders briefs"; "Minnesota does not have Anders briefs because of its centralized public defender system"). Rhode Island does not permit defense counsel to file an Anders brief when the defendant has been sentenced to life imprisonment without the possibility of parole. See Motyka v. State , 172 A.3d 1203, 1205, 1208 (R.I.2017).

{¶ 17} Finally, Oregon and South Dakota allow Anders briefs but offer an alternative in which counsel does not seek to withdraw but files a modified brief, see State v. Balfour , 311 Or. 434, 448-449, 451-452, 814 P.2d 1069 (1991), and State v. Korth , 2002 SD 101, 650 N.W.2d 528, ¶ 17, and Utah accepts Anders -type briefs but has created more rigorous requirements than those set forth in Anders , see Dunn v. Cook , 791 P.2d 873, 877 (Utah 1990). In sum, Anders has received far from universal approval.

V. Anders in Ohio

{¶ 18} Ohio courts have applied the procedures announced in Anders since at least 1970. State v. Toney , 23 Ohio App.2d 203, 207, 262 N.E.2d 419 (7th Dist.1970). But the results have not been without flaws, and the procedures have not been uniformly applied. Additionally, in certain situations, such as the one presented in the case at bar, in which the same counsel represented the defendant before both the trial and appellate courts, concerns of constitutional magnitude arise regarding the representation afforded the defendant.

A. Anders briefs are sometimes filed in cases when there are meritorious claims

{¶ 19} Anders briefs have proved a less-than-effective method to determine whether a defendant has meritorious claims on appeal. In Ohio, there are many examples of defense counsel filing Anders briefs that were later rejected by appellate courts because there were nonfrivolous issues for appeal. Indeed, there are multiple examples of trial courts being reversed on one issue or another after Anders briefs were filed but rejected. In other words, not only were the appeals not wholly frivolous, as required for the submission of an Anders brief, but assignments of error were eventually sustained. See, e.g. , State v. Williams , 6th Dist. Fulton No. F-08-008, 2010-Ohio-391, 2010 WL 405134, ¶ 3, 16-17 ( Anders brief rejected and sentence vacated because plea was not made knowingly, intelligently, and voluntarily); State v. Branham , 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, 2014 WL 6090404, ¶ 4, 14-16 ( Anders brief rejected and conviction reversed because defendant had not been apprised that consecutive sentences were mandatory); State v. Hall , 4th Dist. Lawrence No. 14CA21, 2015-Ohio-4975, 2015 WL 7759718, ¶ 4, 10-11, 21 ( Anders brief rejected and consecutive sentences vacated); State v. Mack , 1st Dist. Hamilton No. C-140054, 2015-Ohio-1430, 2015 WL 1737552, ¶ 13, 30 ( Anders brief rejected and sentence halved on appeal); State v. Jones , 2d Dist. Montgomery No. 25688, 2014-Ohio-5574, 2014 WL 7224690, ¶ 3, 15 ( Anders brief rejected and conviction reversed because guilty plea was invalid); State v. Tsibouris , 1st Dist. Hamilton Nos. C-120414 and C-120415, 2014-Ohio-2612, 2014 WL 2750365, ¶ 14, 31, 37 ( Anders brief rejected and conviction reversed because jury was instructed only on the lesser offense); State v. May , 2d Dist. Montgomery No. 25359, 2014-Ohio-1542, 2014 WL 1419568, ¶ 2, 56 ( Anders brief rejected and sentence reversed); State v. Roberson , 2d Dist. Greene No. 2010-CA-66, 2012-Ohio-5106, 2012 WL 5383082, ¶ 11, 29-31 ( Anders brief rejected, fruits of warrantless search suppressed, and conviction reversed); State v. Herron , 2d Dist. Montgomery No. 24033, 2011-Ohio-5021, 2011 WL 4527482, ¶ 2, 9 ( Anders brief rejected and trial-court judgment reversed because murder convictions and felonious-assault convictions merged); State v. Freeders , 2d Dist. Montgomery No. 23952, 2011-Ohio-4871, 2011 WL 4424833, ¶ 6-7, 28 ( Anders brief rejected and sentence vacated); State v. Polus , 6th Dist. Ottawa No. OT-08-040, 2010-Ohio-25, 2010 WL 53483, ¶ 2, 12 (same); State v. Wilkinson , 178 Ohio App.3d 99, 2008-Ohio-4400, 896 N.E.2d 1027, ¶ 6, 20-21 (2d Dist.) ( Anders brief rejected and conviction reversed because indictment was improperly amended); see also State v. Strickland , 2d Dist. Montgomery No. 25673, 2014-Ohio-5451, 2014 WL 7004814, ¶ 10, 30-31 ( Anders brief rejected and new hearing ordered on plea withdrawal; defendant's Sixth Amendment rights were violated because defendant was not represented by counsel while defense counsel testified during hearing on motion to withdraw guilty plea); State v. Smith , 2d Dist. Montgomery No. 24402, 2013-Ohio-1586, 2013 WL 1701909, ¶ 12-13, 30, 39 ( Anders brief accepted, but defendant successfully had case reopened and conviction reversed because juror was improperly excluded).

{¶ 20} In State v. Gilbert , this court affirmed an appellate court's judgment reversing a trial court's decision in a case in which an Anders brief was filed and was rejected by the appellate court. 143 Ohio St.3d 150, 2014-Ohio-4562, 35 N.E.3d 493, ¶ 13-14. The court of appeals in Gilbert had rejected counsel's Anders brief and appointed new counsel to represent the defendant. 1st Dist. Hamilton No. C-110382, 2012-Ohio-1366, 2012 WL 1072749. In its subsequent decision, the appellate court held that it had been improper for the trial court to vacate the defendant's original sentence and order a longer sentence. 1st Dist. Hamilton No. C-110382, 2013-Ohio-238, 2013 WL 359660, ¶ 4, 18. The appellate court reinstated the defendant's 18-year sentence and vacated the trial court's 18-years-to-life sentence. Id. at ¶ 3, 21. This court accepted the state's discretionary appeal and affirmed the appellate court's judgment.

{¶ 21} This sampling of the many cases with similar processes and outcomes demonstrates that the Anders -brief system is not effective in protecting the appellate rights of defendants. It would be almost impossible to determine the number of cases in which an Anders brief was filed and a reversible error went undetected by the court, attempting to act in an unnatural role as an advocate for the defendant, and by the pro se defendant, attempting to make his case on appeal without the benefit of legal training.

B. Two Ohio appellate districts do not accept Anders briefs

{¶ 22} In June 2017, the Fourth District Court of Appeals decided that it would no longer accept Anders briefs. State v. Wilson , 2017-Ohio-5772, 83 N.E.3d 942 (4th Dist.). As a basis for its decision, the court cited the prejudice that the client faced, the conflict of interest and ethical problems that counsel faced, the burden on the judiciary to perform the role of both advocate for the defendant and adjudicator of potential claims, the lack of uniformity among the states, and alternative procedures that avoid at least some of those pitfalls. The court also noted that the Anders -like procedure utilized in Ohio varies among the appellate courts. Describing the Fourth District's approach, the court stated that " 'in the context of Anders review, * * * we fully examine the trial court proceedings,' " Wilson at ¶ 21, quoting State v. Wright , 4th Dist. Scioto Nos. 15CA3705 and 15CA3706, 2016-Ohio-7795, 2016 WL 6835304, ¶ 18. The court contrasted this approach with that used in State v. Taylor , 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, 2015 WL 479063, ¶ 15-20, in which the Eighth District reasoned that "a completely independent examination of the entire record to determine if there are any colorable issues on appeal is 'overkill' and makes the court the defendant's counsel," Wilson at ¶ 22. The Fourth District decided that it would adopt the Idaho rule. Id. at ¶ 23.

{¶ 23} Even more recently, the Seventh District Court of Appeals adopted a rule and procedure similar to those the Fourth District adopted in Wilson . State v. Cruz-Ramos , 7th Dist. Mahoning No. 17 MA 0077, 2018-Ohio-1583, 2018 WL 1905969, ¶ 16. The court specifically stated its approval of the Fourth District's reasoning. Id. at ¶ 14.

{¶ 24} Given that the Fourth and Seventh Districts no longer accept Anders briefs and that many other districts in Ohio continue to accept Anders briefs, there appears to be a conflict among the appellate courts. While this case did not squarely present the conflict issue, this court will likely have to address the conflict in the future. Indeed, Judge McFarland of the Fourth District made a request for his colleagues to certify a conflict on this exact issue in State v. Gillian , 4th Dist. Gallia No. 16CA11, 2017-Ohio-7386, ¶ 11 (McFarland, J., dissenting). This court could have ordered additional briefing or delayed final adjudication in the instant case until the conflict was resolved. Dismissing this case as improvidently accepted leaves Upkins without redress for a claim that at least two Ohio appellate districts would hold meritorious. C. Same counsel, res judicata, and the Sixth Amendment

{¶ 25} As the parties note in their briefs, in Ohio, when appellate counsel has also served as trial counsel, record-based claims of ineffective assistance of trial counsel need not be presented on direct appeal and can be presented in postconviction proceedings. State v. Cole , 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982), fn. 1. This rule is an exception to the doctrine of res judicata, and it exists to eliminate the conflict of interests that would arise if counsel were required to argue their own ineffectiveness. Id.

{¶ 26} This rule makes a lot of sense, but it creates two unintended problems. First, I believe that there are deeply troubling Sixth Amendment implications. Criminal defendants have a constitutional right to counsel on direct appeal. Douglas v. California , 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). When trial counsel also serves as appellate counsel, ineffective-assistance-of-counsel claims, which are normally presented in the direct appeal, are preserved for postconviction proceedings. See Cole at 113, 443 N.E.2d 169, fn. 1, and syllabus. While we do not phrase it in this manner, the reality is that the direct appeal is split into two, with the first part being the traditional direct appeal and the second being a postconviction action raising the issue of ineffective assistance of trial counsel. The problem is that criminal defendants are not guaranteed counsel during postconviction proceedings. Thus, under the current system, some indigent defendants' direct appeals are split into two distinct actions and, in one of those actions, counsel is not appointed as a matter of course.

{¶ 27} Many questions could be raised as to whether such a procedure would withstand constitutional scrutiny, particularly as some Ohio appellate districts do not permit counsel to assert their own ineffectiveness on appeal-rendering ineffective-assistance-of-trial-counsel claims unreviewable in the traditional direct appeal, see, e.g. , State v. Tinch , 84 Ohio App.3d 111, 126, 616 N.E.2d 529 (12th Dist.1992) ; State v. Fuller , 64 Ohio App.3d 349, 356, 581 N.E.2d 614 (2d Dist.1990).

{¶ 28} In states such as Ohio, where a defendant has the right to appeal a criminal conviction, indigent defendants are constitutionally entitled to counsel for that appeal. This constitutional protection is significantly eroded if a state can devise a procedure that bars traditional direct-appeal claims from being presented in a direct appeal and provides an alternative action for those claims to be heard but then fails to provide indigent defendants with counsel for those alternative actions. In other words, the Ohio procedure arguably robs criminal defendants of some of their Sixth Amendment protections. This case presents an opportunity to review that arguably unconstitutional procedure.

{¶ 29} The second problem is more particular to this case and other cases in which Anders briefs are filed. Upkins filed a pro se brief raising the claims that he believed were not wholly frivolous. Upkins argued that his trial counsel was ineffective. Upkins's counsel was not required to raise that argument because he had a conflict of interest. See Cole , 2 Ohio St.3d at 113, 443 N.E.2d 169, fn. 1, and syllabus. The appellate court determined that there were no nonfrivolous claims and that the Anders brief filed by defense counsel should be accepted and the case dismissed. This leaves the status of Upkins's claim of ineffective assistance of trial counsel in an unusual and problematic position. The appellate court represents that there are no nonfrivolous claims that could be raised, Upkins has argued that there is a nonfrivolous ineffective-assistance-of-trial-counsel claim, but Upkins's counsel, who filed the Anders brief, was not expected to raise that argument because it is preserved for postconviction. This logically leads to a question: is the ineffective-assistance claim, which was raised pro se by Upkins and reviewed and then dismissed by the appellate court, res judicata for purposes of postconviction proceedings, or are claims presented and adjudicated by the appellate court preserved for postconviction proceedings because Upkins did not have constitutionally required counsel to represent him regarding these claims? Either answer is unsatisfactory and demonstrates exactly why appellate counsel, who also served as trial counsel, should not be permitted to file an Anders brief. This situation, while perhaps unusual, should be addressed by this court. Adopting Upkins's proposition of law would be one potential resolution. The state argued that rulemaking is an alternative method by which these problems can be resolved. Whether it be through case law or by rulemaking, a resolution is needed sooner rather than later.

VI. Conclusion

{¶ 30} For the above-stated reasons, I disagree with the court's decision to dismiss this case as improvidently accepted. I would address the proposition of law presented, as I have doubts regarding Anders briefs in general and the propriety of counsel filing an Anders brief after representing a defendant in both the trial court and the appellate court.

French, J., concurs in the foregoing opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The STATE of Ohio, Appellee, v. BOWSHIER, Appellant.
    No. 2017-0936
    Supreme Court of Ohio.
    Submitted April 11, 2018 Decided June 6, 2018
    D. Andrew Wilson, Clark County Prosecuting Attorney, and Andrew P. Pickering, Assistant Prosecuting Attorney, for appellee.
    Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant.
    {¶ 1} This cause is dismissed as having been improvidently accepted.
    O'Connor, C.J., and O'Donnell, Kennedy, DeWine, and DeGenaro, JJ., concur.
   Fischer, J., dissents, with an opinion joined by French, J.

{¶ 2} I respectfully disagree with the decision to dismiss this case as improvidently accepted.

{¶ 3} The court accepted the following issue for review: a court of appeals must not dismiss a case pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), when the appellant presents case law in support of his or her position. See 150 Ohio St.3d 1451, 2017-Ohio-8136, 83 N.E.3d 938. No proposition of law was asserted or accepted regarding the Sixth Amendment rights of an incarcerated criminal defendant when the only issue remaining in the case relates to forfeiture of property. However, appellee, the state of Ohio, argues that this Sixth Amendment issue is a necessary threshold question because Anders is applicable only when Sixth Amendment rights have attached. The state adds that Sixth Amendment rights do not attach to forfeiture proceedings, and the appeal in this case is taken from a "post-sentence" forfeiture proceeding.

{¶ 4} There could be good reasons to dismiss a case as improvidently accepted when no proposition of law was accepted on a threshold question. I would find, however, that the state's failure to present its Sixth Amendment argument to the lower courts constitutes a waiver of that argument. Indeed, the state should be judicially estopped from arguing that the Sixth Amendment does not apply in this case; not only did the state fail to argue that appellant, Jeffrey Bowshier, had no right to counsel, but the state represented at oral argument that the state requested that counsel be appointed for Bowshier after he filed a pro se brief in the court of appeals. For these reasons, I believe the court should proceed to rule on the accepted proposition of law but should do so without deciding whether Sixth Amendment rights attach in this factual scenario.

{¶ 5} This case is simple. The state conceded at oral argument that Bowshier has assignments of error that are not "wholly frivolous" and that should have been raised by counsel on appeal. Under these circumstances, and assuming but without deciding that Bowshier's Sixth Amendment rights attached to the proceeding, the Second District Court of Appeals should have rejected defense counsel's Anders brief and appointed new counsel to represent Bowshier.

{¶ 6} Moreover, I would hold, seemingly uncontroversially, that a court of appeals should not dismiss a case pursuant to Anders when the appellant presents precedential case law in support of his or her argument. I would also emphasize that this holding does not determine whether Sixth Amendment rights attach to forfeiture proceedings.

{¶ 7} Finally, this is the second case that this court has recently dismissed as improvidently accepted that challenged the manner in which Ohio applies Anders . See State v. Upkins , 154 Ohio St.3d 30, 2018-Ohio-1812, 110 N.E.3d 1249. As I stated in my dissent in Upkins , the Anders landscape in Ohio has been evolving and this court needs to determine whether Ohio's appellate courts should continue to accept Anders briefs. Upkins at ¶ 24 (Fischer, J., dissenting). At a minimum, this court must provide guidance to the lower courts as to how to apply Anders consistently and correctly.

{¶ 8} For these reasons, I respectfully dissent.

French, J., concurs in the foregoing opinion.


author: Kennedy, J.

text:
    The CITY OF TOLEDO, Appellee, v. The STATE of Ohio et al., Appellants.
    No. 2017-0327
    Supreme Court of Ohio.
    Submitted April 24, 2018 Decided June 20, 2018
    Dale R. Emch, Toledo Law Director, and Adam W. Loukx and Joseph V. McNamara, Assistant Law Directors, for appellee.
    Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, Stephen P. Carney, Deputy Solicitor, and Halli Brownfield Watson, Assistant Attorney General, for appellants.
   Kennedy, J.

{¶ 1} In this case, the Lucas County Court of Common Pleas found appellants, the state of Ohio and the attorney general (collectively, "the state"), to be in contempt of a court order that permanently enjoined them from enforcing several statutes that the court had previously declared unconstitutional. The contempt finding was based on the General Assembly's enactment of new statutes that reduced funding to cities that were not acting in compliance with the statutes that had previously been declared unconstitutional. As penalty for the contempt, the court enjoined the state from enforcing the new laws. The Sixth District Court of Appeals affirmed the trial court's judgment. This discretionary appeal from the Sixth District's judgment presents the question whether the trial court had authority to enjoin the state from enforcing the new statutes as punishment for contempt of court.

{¶ 2} The General Assembly is vested with the legislative power of this state, and it may enact any law that is not in conflict with the Ohio and United States Constitutions. Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 36. For this reason, no court may permanently enjoin the enforcement of a statute without first finding it unconstitutional. Further, a court order cannot be enforced in contempt unless the order was "clear and definite, unambiguous, and not subject to dual interpretations." State ex rel. Cincinnati Enquirer v. Hunter , 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, ¶ 25. And if a court were to clearly, definitely, and unambiguously order the legislature not to enact specific legislation, that order could not be enforced, because the separation-of-powers doctrine precludes courts from enjoining the General Assembly from exercising its legislative power to enact laws. See State ex rel. Grendell v. Davidson , 86 Ohio St.3d 629, 633, 716 N.E.2d 704 (1999)

(the legislature has exclusive control over duties that are purely legislative in character).

{¶ 3} Accordingly, we reverse the judgment of the court of appeals, vacate the contempt order, and dissolve the injunction against enforcing the spending provisions enacted by 2015 Am.Sub.H.B. No. 64 ("H.B. 64").

Facts and Procedural History

S.B. 342

{¶ 4} Since 1999, the city of Toledo has used traffic cameras to civilly enforce traffic laws, specifically speed and traffic-signal laws. See generally Toledo Municipal Code 313.12.

{¶ 5} In 2014, the General Assembly enacted 2014 Am.Sub.S.B. No. 342 ("S.B. 342"), effective March 23, 2015, to regulate the use of traffic cameras by local governments. The act provides, among other things, that a law-enforcement officer must be present whenever a camera is in operation, R.C. 4511.093(B)(1), that speeding tickets may be issued only if the driver exceeded the speed limit by specified amounts, R.C. 4511.0912, and that cities must conduct safety studies and give public notice before placing a new camera at a particular location, R.C. 4511.095. See generally Dayton v. State , 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, ¶ 4-9 (lead opinion).

{¶ 6} The city sued the state and the attorney general seeking injunctive relief and a declaration that S.B. 342 violates the Home Rule Amendment, Article XVIII, Section 3, of the Ohio Constitution. On April 27, 2015, the trial court declared portions of S.B. 342 unconstitutional and permanently enjoined the state "from enforcing Ohio Revised Code Sections 4511.093(B)(1) and (3), 4511.095, 4511.096, 4511.097, 4511.098, 4511.099, 4511.0911(A) and (B), and 4511.0912."

{¶ 7} The court of appeals affirmed. Toledo v. State , 2016-Ohio-4906, 56 N.E.3d 997 (6th Dist.). We accepted the state's appeal and stayed the briefing schedule. Toledo v. State , 147 Ohio St.3d 1411, 2016-Ohio-7455, 62 N.E.3d 184. We later vacated the court of appeals' judgment and remanded the matter to the trial court for application of Dayton v. State , 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176. Toledo v. State , 152 Ohio St.3d 496, 2017-Ohio-8955, 98 N.E.3d 222. A majority of this court in Dayton held that R.C. 4511.093(B)(1) (the officer-present provision), 4511.0912 (the speeding-leeway provision), and 4511.095 (the study and notice provisions) are unconstitutional. Dayton at ¶ 1 (lead opinion); id. at ¶ 36 (French, J., concurring in judgment only).

H.B. 64

{¶ 8} While the state's appeal was pending in the court of appeals, the General Assembly enacted R.C. 4511.0915 and 5747.502 and amended R.C. 5747.50(C)(5), all of which were effective September 29, 2015, as part of H.B. 64, the biennial budget bill. R.C. 4511.0915 requires each municipality operating traffic-law-enforcement cameras to provide either a statement that the municipality is in compliance with the S.B. 342 regulations or, if not in compliance, a report detailing the amount of civil fines billed as a result of the cameras. R.C. 5747.50(C)(5) and 5747.502 direct the tax commissioner (1) to cease providing for payments from the local-government fund to municipalities that fail to file the statement or report and (2) to reduce local-government-fund payments to municipalities that are not in compliance with S.B. 342 "in an amount equal to one-third of the gross amount of fines" imposed using traffic cameras.

{¶ 9} In response to this new legislation, Toledo moved the trial court for an order to enforce the April 2015 permanent injunction and to enjoin enforcement of the new spending provisions. On October 7, 2015, the trial court found that H.B. 64 had the effect of nullifying the April 2015 permanent injunction by withholding local-government funding from the city unless it complied with the statutory provisions in S.B. 342 that the court had declared unconstitutional. The court held the state in contempt for violating the permanent injunction and enjoined enforcement of the spending provisions as punishment for that contempt.

{¶ 10} The Sixth District Court of Appeals affirmed, holding that the trial court had not abused its discretion "in finding that the budget bill provisions violated its April 27, 2015 order and that action to enforce those provisions constitutes contempt of court." 2017-Ohio-215, 72 N.E.3d 692, ¶ 26. According to the court of appeals, "[t]his act of the General Assembly essentially amounts to an end-run around the trial court's injunction in an effort to enforce S.B. 342, which, if permitted, would unconstitutionally deprive the court of its inherent power to enforce its injunction." Id. at ¶ 25. The appellate court concluded that the city had not needed to file a new complaint to challenge the constitutionality of the spending provisions, because the trial court had exercised its continuing jurisdiction to enforce the permanent injunction through its powers of contempt and did not need to review the statutes' constitutionality. Id. at ¶ 12, 14. It also decided that "a trial court does not implicate separation of powers issues by preventing the enforcement of the newly enacted provisions because the court is not acting as an arbiter of public policy, but is instead policing the parties' compliance with its prior court order." Id. at ¶ 17.

{¶ 11} The state appealed to this court, presenting two propositions of law:

A trial court has no jurisdiction to issue a post-judgment order finding the State in contempt and enjoining a new law, such as the Set-Off Law here, when the new law was not challenged in the complaint and not named in the trial court's original order.
The General Assembly's discretionary spending power can be limited only by an express constitutional limit on the spending itself, not by objections to goals indirectly achieved by the spending. In particular, a court cannot affirmatively order spending without a constitutional mandate for such spending, and doing otherwise violates separation-of-powers principles.

Positions of the Parties

{¶ 12} On appeal to this court, the state contends that the contempt order was inappropriate because the April 2015 permanent injunction does not directly prohibit new legislation and H.B. 64 was a spending provision that does not enforce the traffic-camera regulations invalidated by the trial court but rather incentivizes compliance with them. The state maintains that the trial court did not have authority to grant the injunction, because the case had proceeded to final judgment and therefore the city had to file a new complaint in order to challenge the constitutionality of H.B. 64. It also argues that a statute cannot be enjoined unless the court first finds that it is unconstitutional, and it contends that it is a violation of the separation-of-powers doctrine for the judiciary to enjoin the legislature from passing laws. Lastly, the state maintains that H.B. 64 cannot be enjoined, because it is a constitutional exercise of the General Assembly's spending power.

{¶ 13} The city responds that the General Assembly was bound by the injunction and violated the prohibition against enforcing the traffic-camera regulations by imposing an economic penalty on the municipalities that fail to comply with them. It contends that the city was not required to file a separate action to specifically challenge the constitutionality of H.B. 64, because the trial court had continuing jurisdiction to enforce the injunction and the new enactment incorporated statutes that the court had declared unconstitutional. According to the city, it is the General Assembly that violated the separation-of-powers doctrine and encroached on the power of the judicial branch by reenacting statutes invalidated by the judiciary: "Instead of enacting new legislation to replace the unconstitutional regulation of automated-traffic cameras, it doubled down, by passing legislation that enforces the existing laws." Moreover, the city contends, the legislature's discretionary spending power does not permit the General Assembly to pass laws that interfere with a municipality's home-rule authority granted by the Ohio Constitution and the spending provisions are therefore unconstitutional because they coerce the city into complying with regulations that conflict with the Home Rule Amendment.

{¶ 14} Accordingly, we are asked to decide whether the trial court's equitable power to issue an injunction or its inherent power to hold a litigant in contempt of court authorized it to enjoin the enforcement of the H.B. 64 provisions relating to traffic cameras.

Law and Analysis

The Power to Enjoin

{¶ 15} "An injunction is an extraordinary remedy in equity where there is no adequate remedy available at law. It is not available as a right but may be granted by a court if it is necessary to prevent a future wrong that the law cannot." Garono v. State , 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988). "The grant or denial of an injunction is solely within the trial court's discretion and, therefore, a reviewing court should not disturb the judgment of the trial court absent a showing of a clear abuse of discretion." Id.

{¶ 16} Nonetheless, "[a] court should exercise great caution regarding the granting of an injunction which would interfere with another branch of government," id. , and we have recognized that a court "cannot employ equitable principles to circumvent valid legislative enactments," Lake Hosp. Sys., Inc. v. Ohio Ins. Guar. Assn. , 69 Ohio St.3d 521, 526, 634 N.E.2d 611 (1994), citing Patterson v. Lamson , 45 Ohio St. 77, 12 N.E. 531 (1887).

{¶ 17} In Ohio, a statute cannot be invalidated or enjoined unless it is unconstitutional. This is so because Article II, Section 1 of the Ohio Constitution confers all legislative power of the state on the General Assembly. "The General Assembly has plenary power to enact legislation" (emphasis added), Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce , 127 Ohio St.3d 511, 2010-Ohio-6207, 941 N.E.2d 745, ¶ 10, and therefore it may "enact any law that does not conflict with the Ohio or United States Constitution" (emphasis added), Kaminski v. Metal & Wire Prods. Co. , 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 60. For this reason, " '[b]efore any legislative power, as expressed in a statute, can be held invalid, it must appear that such power is clearly denied by some constitutional provision.' " Boyce at ¶ 10, quoting Williams v. Scudder , 102 Ohio St. 305, 307, 131 N.E. 481 (1921).

{¶ 18} The power to invalidate and enjoin a statute is further "circumscribed by the rule[s] that laws are entitled to a strong presumption of constitutionality and that a party challenging the constitutionality of a law bears the burden of proving that the law is unconstitutional beyond a reasonable doubt."

Yajnik v. Akron Dept. of Health, Hous. Div. , 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16. And the General Assembly has prescribed specific procedures for attacking the constitutionality of a statute. R.C. 2721.12(A) requires that a party seeking a declaration that a statute is unconstitutional assert that claim in a complaint and serve it on the attorney general. See Cicco v. Stockmaster , 89 Ohio St.3d 95, 728 N.E.2d 1066 (2000), syllabus. Compliance with R.C. 2721.12(A) is required to invoke the trial court's jurisdiction over a constitutional challenge. See id. at 97, 728 N.E.2d 1066.

{¶ 19} In this case, however, the city did not file a complaint challenging the constitutionality of the new statutes. It did not prove that the spending provisions enacted by H.B. 64 are unconstitutional beyond a reasonable doubt, and it has not rebutted the presumption of constitutionality accorded to these statutes. Moreover, neither the trial court nor the court of appeals decided that these provisions are unconstitutional-in fact, the appellate court "agree[d] with the city that the trial court did not determine the constitutionality of the budget bill provisions." 2017-Ohio-215, 72 N.E.3d 692, ¶ 14.

{¶ 20} Accordingly, the H.B. 64 spending provisions are presumptively constitutional, and the trial court's equitable powers did not authorize it to enter the permanent injunction against enforcing those statutes.

The Contempt Power

{¶ 21} Whether the trial court had authority to enjoin the enforcement of these statutes as punishment for contempt presents a separate question of first impression for this court.

{¶ 22} "The power of contempt is inherent in a court, such power being necessary to the exercise of judicial functions." Denovchek v. Trumbull Cty. Bd. of Commrs. , 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988). We have explained that "the primary interest involved in a contempt proceeding is the authority and proper functioning of the court," id. at 16, 520 N.E.2d 1362, and a litigant can be held in contempt of court for conduct " 'which brings the administration of justice into disrespect, or which tends to embarrass, impede or obstruct a court in the performance of its functions,' " id. at 15, 520 N.E.2d 1362, quoting Windham Bank v. Tomaszczyk , 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph one of the syllabus. A contempt order is reviewed for an abuse of discretion. Cincinnati Enquirer , 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, at ¶ 29.

{¶ 23} "If a valid restrictive order has been issued, a court has the statutory and inherent power to entertain contempt proceedings and punish disobedience of that order." Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho , 52 Ohio St.3d 56, 61, 556 N.E.2d 157 (1990). But a court order cannot be enforced in contempt unless the order was "clear and definite, unambiguous, and not subject to dual interpretations." Cincinnati Enquirer at ¶ 25. A litigant cannot be punished for violating a court order that is indefinite or uncertain in its meaning. Id.

{¶ 24} Here, the April 2015 permanent injunction did not clearly, definitely, and unambiguously prohibit the General Assembly from passing future legislation relating to traffic cameras. It stated only, "Defendants [the state of Ohio and the attorney general] are permanently enjoined from enforcing Ohio Revised Code Sections 4511.093(B)(1) and (3), 4511.095, 4511.096, 4511.097, 4511.098, 4511.099, 4511.0911(A) and (B), and 4511.0912." (Emphasis added.) It is a basic precept of our tripartite form of government that the General Assembly enacts, amends, and repeals laws but does not enforce them; that power belongs to the executive branch. Article II, Section 1, and Article III, Section 5 of the Ohio Constitution.

{¶ 25} But more fundamentally, separation-of-powers principles prevent the judiciary from enjoining the legislative branch of government from enacting laws.

{¶ 26} In framing the Ohio Constitution, the people of this state conferred on the General Assembly the legislative power. This lawmaking prerogative cannot be delegated to or encroached upon by the other branches of government. See State v. Bodyke , 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 46 ; Cent. Ohio Transit Auth. v. Transport Workers Union of Am., Local 208 , 37 Ohio St.3d 56, 62, 524 N.E.2d 151 (1988) (plurality opinion); Matz v. J.L. Curtis Cartage Co. , 132 Ohio St. 271, 279, 7 N.E.2d 220 (1937).

{¶ 27} The separation-of-powers doctrine therefore precludes the judiciary from asserting control over "the performance of duties that are purely legislative in character and over which such legislative bodies have exclusive control." Grendell , 86 Ohio St.3d at 633, 716 N.E.2d 704. A court can no more prohibit the General Assembly from enacting a law than it can compel the legislature to enact, amend, or repeal a statute-"the judicial function does not begin until after the legislative process is completed." State ex rel. Ohio Academy of Trial Lawyers v. Sheward , 86 Ohio St.3d 451, 469, 715 N.E.2d 1062 (1999) ; see also State ex rel. Slemmer v. Brown , 34 Ohio App.2d 27, 28, 295 N.E.2d 434 (10th Dist.1973) ("The judiciary has no right or power to command the General Assembly to adopt joint resolutions").

{¶ 28} Accordingly, we agree with the prevailing rule that under a tripartite form of government, "a court cannot enjoin the legislature from passing a law. 'This is true whether such action by the legislature is in disregard of its clearly imposed constitutional duty or is the enactment of an unconstitutional law.' " State ex rel. Morrison v. Sebelius , 285 Kan. 875, 899, 179 P.3d 366 (2008), quoting State ex rel. Stephan v. Kansas House of Representatives , 236 Kan. 45, 51, 687 P.2d 622 (1984) ; see also New Orleans Water Works Co. v. New Orleans , 164 U.S. 471, 481, 17 S.Ct. 161, 41 L.Ed. 518 (1896) ("a court of equity cannot properly interfere with, or in advance restrain, the discretion of a municipal body while it is in the exercise of powers that are legislative in their character"); State ex rel. Ozanne v. Fitzgerald , 334 Wis.2d 70, 2011 WI 43, 798 N.W.2d 436, ¶ 1, 8-9 (holding that the separation-of-powers doctrine is violated when a court enjoins publication of a bill enacted by the legislature on grounds that its enactment violated the Open Meetings Law); Magnus v. Carr , 350 Ark. 388, 394, 86 S.W.3d 867 (2002) (holding that the judiciary lacks authority to enjoin a legislator from voting on a bill); Perdue v. Ferguson , 177 W.Va. 44, 47, 350 S.E.2d 555 (1986) (noting that the separation-of-powers doctrine precludes an injunction against the enactment of legislation); Horry Tel. Coop., Inc. v. Georgetown , 408 S.C. 348, 353, 759 S.E.2d 132 (2014), fn. 5 (explaining that the separation-of-powers doctrine would be violated if a court compelled a legislative body to enact a law); Brown v. Owen , 165 Wash.2d 706, 206 P.3d 310 (2009), ¶ 32 ("we will not interfere with the internal workings of the senate to examine the procedures by which a bill failed").

{¶ 29} The judiciary may not impede the General Assembly's plenary power to enact laws. Courts may intervene only after a legislative enactment has been passed and challenged in an action properly before it, New Orleans Water Works at 481, 17 S.Ct. 161 ; Associated Gen. Contrs. of Am. v. Columbus , 172 F.3d 411, 415 (6th Cir.1999). And even then, "the court intervenes only when the legislative act is clearly incompatible with some express provision of the Constitution." State v. Parker , 150 Ohio St. 22, 24, 80 N.E.2d 490 (1948).

{¶ 30} Accordingly, we hold that the trial court lacked authority to enjoin the H.B. 64 spending provisions as punishment for contempt and that it abused its discretion in doing so.

Conclusion

{¶ 31} The Ohio Constitution " 'is primarily a limitation on legislative power of the General Assembly [as opposed to a grant of power]; therefore, the General Assembly may pass any law unless it is specifically prohibited by the state or federal Constitutions.' " Johns v. Univ. of Cincinnati Med. Assoc., Inc. , 101 Ohio St.3d 234, 2004-Ohio-824, 804 N.E.2d 19, ¶ 35, quoting State v. Warner , 55 Ohio St.3d 31, 43, 564 N.E.2d 18 (1990). The court's function in reviewing legislative enactments is limited to interpreting the meaning of statutory provisions and determining whether they are in accord with the federal and state Constitutions. Acme Eng. Co. v. Jones , 150 Ohio St. 423, 433, 83 N.E.2d 202 (1948).

{¶ 32} Here, the trial court lacked authority to enjoin enforcement of the spending provisions relating to traffic cameras enacted in H.B. 64 because no action has been filed challenging their constitutionality and no court has found them unconstitutional. Moreover, the April 2015 permanent-injunction order relied upon for the contempt order did not enjoin the General Assembly from enacting new legislation relating to traffic cameras, nor could it have, since the separation-of-powers doctrine precludes a court from enjoining the General Assembly from exercising its legislative power to enact laws. The trial court therefore abused its discretion when it issued its October 7, 2015 order, which neither its equitable powers nor its inherent powers of contempt authorized it to issue.

{¶ 33} Accordingly, we reverse the judgment of the Sixth District Court of Appeals, vacate the contempt order, and dissolve the injunction entered as punishment for that contempt.

Judgment reversed, contempt order vacated, and injunction dissolved.

O'Connor, C.J., and Klatt, French, Fischer, DeWine, and DeGenaro, JJ., concur.

William A. Klatt, J., of the Tenth District Court of Appeals, sitting for O'Donnell, J.


author: Per Curiam.

text:
    DISCIPLINARY COUNSEL v. MANCINO.
    No. 2017-1079
    Supreme Court of Ohio.
    Submitted November 21, 2017 Decided August 2, 2018
    Scott J. Drexel, Disciplinary Counsel, and Michelle R. Bowman, Assistant Disciplinary Counsel, for relator.
    Mancino Co., L.P.A., and Brett M. Mancino, for respondent.
   Per Curiam.

{¶ 1} Respondent, Paul Anthony Mancino Jr., of Cleveland, Ohio, Attorney Registration No. 0015576, was admitted to the practice of law in Ohio in 1963.

{¶ 2} On December 6, 2016, relator, disciplinary counsel, filed a complaint in which he alleged that Mancino violated eight professional-conduct rules by filing and prosecuting an appeal of Raymond Miller's criminal conviction and accepting compensation for that appeal from a third person-all without Miller's knowledge or consent.

{¶ 3} After conducting a hearing, a three-member panel of the Board of Professional Conduct unanimously dismissed five of the alleged rule violations based on the insufficiency of the evidence. But the panel found that Mancino's conduct violated Prof.Cond.R. 1.2(a) (requiring a lawyer to abide by the client's decisions concerning the objectives of representation and to consult with the client as to the means by which they are to be pursued), 1.4(a)(1) (requiring a lawyer to inform the client of any decision or circumstance with respect to which the client's informed consent is required), and 1.8(f) (prohibiting a lawyer from accepting compensation for representing a client from someone other than the client without the client's informed consent). After considering the relevant aggravating and mitigating factors and the sanctions we have imposed for comparable misconduct, the panel recommended that we publicly reprimand Mancino. The board adopted the panel's report in its entirety.

{¶ 4} Mancino objects and argues that the board's findings of misconduct cannot stand because there can be no violation of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.8(f) in the absence of an attorney-client relationship. He therefore urges us to reject the board's findings of misconduct, dismiss relator's complaint, and not require him to pay the costs of the proceedings. For the reasons that follow, we sustain Mancino's objection and dismiss relator's complaint.

{¶ 5} Mancino represented Michael Jirousek in a criminal action. Subsequently, Jirousek's father, Robert, approached Mancino and told him that Miller-a man who had been jailed with Michael Jirousek-wanted to appeal his criminal conviction and sentence. Robert Jirousek offered to pay Mancino a $1,000 flat fee and the costs of Miller's appeal. Relying on Robert Jirousek's word and his offer of payment, Mancino filed a notice of appeal and a brief on Miller's behalf and identified himself on both as "Attorney for Defendant-Appellant." Mancino later orally argued the case in the court of appeals, which affirmed Miller's conviction and sentence. Robert Jirousek paid Mancino for the representation and also paid the costs associated with the appeal.

{¶ 6} Although the board recognized that Miller had testified at the disciplinary hearing that "he had not been harmed in any way" by Mancino's actions and it found that Mancino had acted in good faith on Robert Jirousek's representations that Miller wanted to appeal his conviction, it also found that neither Mancino nor Robert Jirousek ever received any direct communication from Miller of any type. Ultimately, it was Mancino's admitted failure to communicate with Miller that led the board to find that he violated Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.8(f).

{¶ 7} Despite finding that Mancino committed those ethical violations by failing to communicate with his "client," the board noted that Miller testified at the disciplinary hearing that he had been "unaware" of Mancino's representation of him. The board also acknowledged that Miller had signed an affidavit stating that Mancino was not his attorney and that Miller had never asked him or anyone else to appeal his conviction. Indeed, the board recognized that Miller's testimony and affidavit "could arguably support a dismissal" of two of the violations it found-those under Prof.Cond.R. 1.2(a) and 1.4(a)(1)-on the ground that no attorney-client relationship existed.

{¶ 8} On these facts, it is obvious that there was no express agreement for Mancino to represent Miller. Therefore, if an attorney-client relationship did exist, it could have arisen only by implication. We have held that "[a]n attorney-client relationship may be created by implication based upon the conduct of the parties and the reasonable expectations of the person seeking representation." Cuyahoga Cty. Bar Assn. v. Hardiman , 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, syllabus.

{¶ 9} In a case in which some of the alleged violations arose in a factual context similar to the facts of this case, Disciplinary Counsel v. Mamich , 125 Ohio St.3d 369, 2010-Ohio-1044, 928 N.E.2d 691, ¶ 13, we dismissed stipulated violations of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the status of a matter) leveled against an attorney who represented a woman in a debt-collection proceeding at the request of the woman's father but without her knowledge or consent. We reasoned that the violations of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.4(a)(3) were not established because the charges required an attorney-client relationship between the attorney and the daughter. Because the daughter was unaware of the case and had no reasonable expectation that the attorney was representing her, there was no attorney-client relationship, either express or implied, with the daughter.

{¶ 10} Just as an attorney-client relationship is necessary to establish violations of Prof.Cond.R. 1.2(a) and 1.4(a)(1), which require a lawyer to consult with a client, abide by the client's decisions regarding the objectives of the representation, and obtain the client's informed consent, such a relationship is necessary to establish a violation of Prof.Cond.R. 1.8(f), which requires a lawyer to obtain a client's informed consent before accepting compensation for the representation from someone other than the client. In light of Miller's testimony and averments, however, it is evident that no attorney-client relationship existed here. Consequently, we reject the board's findings that Mancino violated Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.8(f).

{¶ 11} We do not condone Mancino's decision to undertake legal representation without making any attempt to communicate with the intended client until after the case was decided by the court of appeals. But we are constrained from considering whether his conduct violated any other professional-conduct rules because the panel unanimously dismissed the balance of the violations alleged in relator's complaint based on the insufficiency of the evidence. See Gov.Bar R. V(12)(G) ; Cincinnati Bar Assn. v. Wiest , 148 Ohio St.3d 683, 2016-Ohio-8166, 72 N.E.3d 621, ¶ 19, quoting Disciplinary Counsel v. Hale , 141 Ohio St.3d 518, 2014-Ohio-5053, 26 N.E.3d 785, ¶ 22 (a unanimous dismissal of a count of a complaint by a panel of the board " 'precludes further review of the dismissal by either the board or this court' ").

{¶ 12} Accordingly, we sustain Mancino's objection and dismiss relator's complaint against him with prejudice.

Judgment accordingly.

Kennedy, French, Pietrykowski, and DeWine, JJ., concur.

Fischer, J., concurs, with an opinion joined by O'Connor, C.J., and O'Donnell, J.

Mark J. Pietrykowski, J., of the Sixth District Court of Appeals, sitting for O'Neill, J.

{¶ 13} In this case, the hearing panel of the Board of Professional Conduct unanimously dismissed five of the eight alleged disciplinary-rule violations-those involving Prof.Cond.R. 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the status of a matter), 3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal), 8.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter), 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice), and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law)-for lack of sufficient evidence pursuant to Gov.Bar R. V(12)(G). The per curiam opinion, relying on this court's caselaw and Gov.Bar R. V(12)(G), concludes that we are constrained from considering the dismissed allegations. While I join the per curiam opinion and agree that this conclusion is appropriate given the current state of the law, I write separately to express my concerns regarding unanimous hearing-panel dismissals under Gov.Bar R. V(12)(G).

I. Unanimous Hearing-Panel Dismissals Pursuant to Gov.Bar R. V(12)(G)

{¶ 14} Pursuant to Gov.Bar R. V(12)(G), a hearing panel may dismiss a count or a complaint that the panel unanimously determines is unsupported by sufficient evidence. When less than the entire complaint is dismissed, the hearing panel need only include the unanimous dismissal of a count in the body of its report to effectuate the dismissal. Cincinnati Bar Assn. v. Fernandez , 147 Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724, ¶ 15.

{¶ 15} When a hearing panel unanimously dismisses counts pursuant to Gov.Bar R. V(12)(G), the dismissal order is effectively insulated from any type of review. See Disciplinary Counsel v. Maciak , 153 Ohio St.3d 185, 2018-Ohio-544, 102 N.E.3d 485, ¶ 20. Reading Gov.Bar R. V(12)(G) in conjunction with Gov.Bar R. V(11)(D), V(12)(H), and V(17)(B) compels this conclusion.

{¶ 16} Gov.Bar R. V(12)(G) provides:

If, at the end of the evidence presented by the relator or of all evidence, a unanimous hearing panel finds that the evidence is insufficient to support a charge or count of misconduct, the panel may order on the record or in its report that the complaint or count be dismissed. If a unanimous hearing panel dismisses a complaint in its entirety, the director shall send a dismissal entry to the relator, respondent, and all counsel of record.

The rule provides no mechanism for the Office of Disciplinary Counsel or a certified grievance committee to submit objections or for the board or this court , which has the constitutional duty to oversee the practice of law in this state under Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio Constitution, to review a dismissed count or a dismissed complaint.

{¶ 17} In contrast, Gov.Bar R. V(11)(D) permits the Office of Disciplinary Counsel or a certified grievance committee to appeal to the full board the decision of a probable-cause panel to dismiss a complaint in its entirety. Additionally, Gov.Bar R. V(17)(B) permits the parties in a disciplinary case in which this court has issued a show-cause order under Gov.Bar R. V(17)(A) to "file objections to the findings or recommendations of the Board and to the entry of a disciplinary order or to the confirmation of the report on which the order to show cause was issued."

{¶ 18} If this court were to deem that a unanimous dismissal of some counts pursuant to Gov.Bar R. V(12)(G) could be reviewed by this court, despite the rules providing no mechanism for doing so, the explicitly provided mechanisms for the filing of appeals and objections pursuant to Gov.Bar R. V(11)(D) and V(17)(B) would be rendered superfluous. Thus, Gov.Bar R. V(12)(G)'s lack of a mechanism for review demonstrates that appeals and objections from a unanimous hearing panel's dismissal order are not permitted under the rule. See, e.g., Fernandez , 147 Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724, at ¶ 15 (court declined to entertain objections to counts that hearing panel unanimously dismissed in body of its report); see also Cuyahoga Cty. Bar Assn. v. Marosan , 109 Ohio St.3d 439, 2006-Ohio-2816, 848 N.E.2d 837, ¶ 13.

{¶ 19} Furthermore, Gov.Bar R. V(12)(H) provides that as an alternative to a unanimous dismissal, a hearing panel can refer its findings of fact and recommendations for dismissal to the board for review. To permit review by the board of unanimous Gov.Bar R. V(12)(G) dismissals would render Gov.Bar R. V(12)(H) superfluous. For these reasons, I agree with the conclusion stated in the per curiam opinion that a count that is unanimously dismissed by a hearing panel is currently precluded from review by the board or by this court. See also Maciak , 153 Ohio St.3d 185, 2018-Ohio-544, 102 N.E.3d 485, at ¶ 20 ; Fernandez at ¶ 14-15 ; Cincinnati Bar Assn. v. Wiest , 148 Ohio St.3d 683, 2016-Ohio-8166, 72 N.E.3d 621, ¶ 19 ; Disciplinary Counsel v. Hale , 141 Ohio St.3d 518, 2014-Ohio-5053, 26 N.E.3d 785, ¶ 22 ; Disciplinary Counsel v. Doellman , 127 Ohio St.3d 411, 2010-Ohio-5990, 940 N.E.2d 928, ¶ 31 ;

Marosan at ¶ 13 ; Columbus Bar Assn. v. Dougherty , 105 Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094, ¶ 9.

II. Issues for this Court

{¶ 20} Under Gov.Bar R. V(12)(G), we are precluded from reviewing counts that are unanimously dismissed by hearing panels. The practical consequences of this preclusion, however, present at least three serious obstacles to this court's performance of its duties.

{¶ 21} First, this court is constitutionally required to regulate all matters related to the practice of law. Article IV, Section 2(B)(1)(g), Ohio Constitution. Although this court has original jurisdiction in such matters, Gov.Bar R. V(12)(G) precludes this court from acting as the final arbiter of these matters related to attorney discipline despite our caselaw making clear that the responsibility is uniquely ours. See Cincinnati Bar Assn. v. Heitzler , 32 Ohio St.2d 214, 220, 291 N.E.2d 477 (1972) (this court makes the ultimate conclusion "as to the facts and as to the action, if any, that should be taken" in disciplinary cases); Lorain Cty. Bar Assn. v. Johnson , 151 Ohio St.3d 448, 2017-Ohio-6869, 90 N.E.3d 837, ¶ 19 (this court is the final arbiter of misconduct in disciplinary cases even though we ordinarily defer to the expertise of the board and the panel and their first-hand observation of witness testimony); Gov.Bar R. V(2)(B) (the board's hearing authority is that it shall "submit recommendations" to this court).

{¶ 22} Second, the primary purpose of the disciplinary process is to protect the public from lawyers who are unworthy of the trust and confidence essential to the attorney-client relationship. Disciplinary Counsel v. Agopian , 112 Ohio St.3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10. But when a count is unanimously dismissed by a hearing panel for insufficient evidence under Gov.Bar R. V(12)(G), this court's hands are tied and we are unable to exercise our constitutional authority. See Maciak , 153 Ohio St.3d 185, 2018-Ohio-544, 102 N.E.3d 485, at ¶ 20 ("Review of the dismissed counts, for any reason, is not permitted").

{¶ 23} Third, if a hearing panel erroneously applies the professional-conduct rules to the facts or errs in interpreting the elements of a disciplinary rule that the attorney has allegedly violated and unanimously dismisses some counts based on that misinterpretation, we cannot revive the dismissed counts even though the dismissals would not have occurred but for the legal error.

{¶ 24} Here, we are presented with a situation in which an attorney who did not represent an individual filed, on behalf of that individual, a brief stating to a court that he was in fact the individual's attorney. The hearing panel found violations that were based on the existence of an attorney-client relationship and unanimously dismissed some other counts that were arguably supported by the facts of this case regardless of whether an attorney-client relationship existed. On review, we recognize that the hearing panel and the board erred in recommending that we find that the attorney committed violations that were based on an attorney-client relationship, because it is evident that the attorney did not have an attorney-client relationship with the individual. Therefore, we cannot agree with the board that the attorney violated those particular professional-conduct rules.

{¶ 25} But the attorney's conduct, despite the lack of an attorney-client relationship, arguably violated several professional-conduct rules, most notably Prof.Cond.R. 3.3(a) and 8.4(h); the counts concerning those rules, however, were unanimously dismissed by the hearing panel, and the board and this court are precluded from reviewing them. Had the hearing panel properly discerned the lack of an attorney-client relationship, it may not have unanimously dismissed those counts for lack of sufficient evidence. Regrettably, we cannot revive or review those dismissed counts, and our responsibility to protect the public from the attorney's possible misbehavior has been thwarted. III. Conclusion

{¶ 26} The practice of hearing panels unanimously dismissing counts based on insufficient evidence-which most often occurs after a hearing is already over-may, on some occasions, expedite the disciplinary process, but the practice allows for legal mistakes to sometimes be made that this court is never able to correct. A hearing panel should not have the power to totally insulate its own possible errors from review; rather, this court should and constitutionally must be in a position to bear the burden as the ultimate arbiter of attorney discipline. Given the restraints that have been placed on this court's ability to review Gov.Bar R. V(12)(G) unanimous dismissals, I caution hearing panels against easily and unanimously dismissing counts based on a lack of sufficient evidence, especially in cases in which the complexities make it difficult to determine exactly which rules an attorney may have violated, as inherently shown by the situation in this case. I also encourage this court to review Gov.Bar R. V(12)(G) and determine whether amending the rule would allow us to better protect the public.

{¶ 27} I agree with the majority on the application of the current law to this case, and I therefore join the per curiam opinion. Nonetheless, I feel compelled to highlight the consequences of an erroneous, but unanimous, hearing-panel dismissal of some counts of a complaint under Gov.Bar R. V(12)(G). Under the current rules and our precedents, which we created, an attorney may go unpunished for his misconduct-and the public will remain unprotected-in a situation in which the panel, the board, and this court agree that an attorney has violated one or more of the professional-conduct rules but disagree on which specific rule or rules the attorney has violated.

O'Connor, C.J., and O'Donnell, J., concur in the foregoing opinion.


text:
    CLEVELAND METROPOLITAN BAR ASSOCIATION v. THOMAS.
    No. 2017-1730
    Supreme Court of Ohio.
    Submitted January 24, 2018 Decided August 16, 2018
    Weston Hurd, L.L.P., Columbus, and Steven L. Wasserman ; and Heather M. Zirke, Cleveland and Kari L. Burns, Bar Counsel, for relator.
    Sam Thomas III, Cleveland, pro se.
   Per Curiam.

{¶ 1} Respondent, Sam Thomas III, of Shaker Heights, Ohio, Attorney Registration No. 0067848, was admitted to the practice of law in Ohio in 1997. In 2010, we imposed a stayed six-month suspension on him for filing a misleading document in a client's bankruptcy proceeding and neglecting a different client's personal-injury case. See Cleveland Metro. Bar Assn. v. Thomas , 125 Ohio St.3d 24, 2010-Ohio-1031, 925 N.E.2d 959. In August 2017, relator, Cleveland Metropolitan Bar Association, filed a complaint alleging that Thomas had violated the professional-conduct rules in another client matter. The Board of Professional Conduct considered the case on the parties' consent-to-discipline agreement. See Gov.Bar R. V(16).

{¶ 2} In the agreement, Thomas admitted that while representing a married couple in a foreclosure case, he filed a brief in opposition to a summary-judgment motion six days past the deadline and he later failed to respond to the court's order to show cause as to why he filed the brief late. Noting that Thomas had failed to respond to the show-cause order, the court ultimately granted summary judgment against Thomas's clients. The clients paid Thomas a flat fee to represent them on appeal. Thomas's fee agreement, however, indicated that "no part [of the fee] shall be returned to the Client," and Thomas failed to simultaneously notify the client who signed the agreement that she may be entitled to a refund of all or a part of the fee if he did not complete the representation. The court of appeals ultimately affirmed the trial court's summary-judgment decision.

{¶ 3} Based on this conduct, the parties stipulated that Thomas violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client) and 1.5(d)(3) (prohibiting a lawyer from charging a fee denominated as "nonrefundable" without simultaneously advising the client in writing that the client may be entitled to a refund of all or part of the fee if the lawyer does not complete the representation).

{¶ 4} The parties agreed to the existence of one aggravating factor-that Thomas has prior discipline. See Gov.Bar R. V(13)(B)(1). In mitigation, the parties stipulated that Thomas lacked a dishonest or selfish motive, he made full and free disclosures to the board and had a cooperative attitude toward the disciplinary proceedings, and he instituted office-management practices designed to prevent similar misconduct in the future. See Gov.Bar R. V(13)(C)(2) and (4). The consent-to-discipline agreement also indicated that Thomas had signed a three-year mental-health contract with the Ohio Lawyers Assistance Program ("OLAP") and that he was in counseling for issues relating to depression, anxiety, and organizational problems.

{¶ 5} As a sanction, the parties jointly recommended that Thomas serve a one-year suspension, stayed in its entirety on conditions, including a one-year period of monitored probation. To support this recommendation, the parties cited several cases with similar misconduct and aggravating and mitigating factors, including Disciplinary Counsel v. Simon , 146 Ohio St.3d 44, 2016-Ohio-535, 51 N.E.3d 605 (imposing a stayed six-month suspension on an attorney who failed to reasonably communicate with clients in two separate matters; the attorney had a prior disciplinary record but lacked a dishonest or selfish motive), and Mahoning Cty. Bar Assn. v. Hanni , 145 Ohio St.3d 492, 2016-Ohio-1174, 50 N.E.3d 542 (imposing a conditionally stayed one-year suspension on an attorney who neglected a client's child-custody matter; the attorney had a prior disciplinary record but lacked a dishonest or selfish motive and cooperated in the disciplinary process).

{¶ 6} The board found that the consent-to-discipline agreement conformed to the requirements of Gov.Bar R. V(16), and it recommends that we adopt the agreement. The board noted that a conditionally stayed one-year suspension is the appropriate sanction here-although it may be more severe than would otherwise be warranted for Thomas's misconduct-because this is his second disciplinary case. The board also concluded that Thomas's efforts to institute improved office-management practices, his willingness to submit to monitored probation, and his participation in counseling for his mental disorder weighed against the imposition of an actual suspension.

{¶ 7} We agree that Thomas violated Prof.Cond.R. 1.3 and 1.5(d)(3) and, in accord with the precedents cited in the parties' agreement, that a conditionally stayed one-year suspension is the appropriate sanction in this case. We therefore adopt the parties' consent-to-discipline agreement.

{¶ 8} Sam Thomas III is hereby suspended from the practice of law for one year, with the entire suspension stayed on the conditions that he (1) serve a one-year term of monitored probation pursuant to Gov.Bar R. V(21), (2) complete at least six hours of continuing legal education relating to law-practice management, in addition to the requirements of Gov.Bar R. X, within one year of this court's disciplinary order, (3) maintain compliance with his three-year OLAP contract dated May 17, 2017, and (4) engage in no further misconduct. If Thomas fails to comply with any condition of the stay, the stay will be lifted and he will serve the full one-year suspension. Costs are taxed to Thomas.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, French, Fischer, and DeWine, JJ., concur.

Kennedy, J., concurs in judgment only, with an opinion.

DeGenaro, J., not participating.

{¶ 9} I concur in the majority's decision to suspend respondent, Sam Thomas III, from the practice of law for one year, with the entire suspension stayed on satisfaction of the stated conditions. I write separately because the Board of Professional Conduct improperly considered Thomas's mental-health issues as a mitigating factor.

{¶ 10} When imposing sanctions for attorney misconduct, we consider the mitigating factors listed in Gov.Bar R. V(13)(C). Disciplinary Counsel v. Pickrel , 151 Ohio St.3d 466, 2017-Ohio-6872, 90 N.E.3d 853, ¶ 10. Relevant currently is Gov.Bar R. V(13)(C)(7), which permits the existence of a mental disorder or chemical dependency to be considered a mitigating factor "when there has been all of the following":

(a) A diagnosis of a disorder by a qualified health care professional or qualified chemical dependency professional;
(b) A determination that the disorder contributed to cause the misconduct;
(c) In the case of mental disorder, a sustained period of successful treatment or in the case of substance use disorder or nonsubstance-related disorder, a certification of successful completion of an approved treatment program;
(d) A prognosis from a qualified health care professional or qualified chemical dependency professional that the attorney will be able to return to competent, ethical professional practice under specified conditions.

If any one of these four requirements is not established, the mental disorder or qualified chemical dependency may not be considered as mitigation. See , e.g. , Disciplinary Counsel v. Joltin , 147 Ohio St.3d 490, 2016-Ohio-8168, 67 N.E.3d 780, ¶ 22 (board did not consider attorney's mental-health issues to be mitigating factors in absence of proof that they caused his misconduct).

{¶ 11} In this matter, the parties entered into a consent-to-discipline agreement, which set forth stipulations of aggravating and mitigating factors. One of the stipulations of mitigation was the fact that Thomas had entered into an Ohio Lawyers Assistance Program contract, was in compliance with its terms, and was working with a counselor for issues related to depression and anxiety. While the board recognized that the stipulation did not satisfy Gov.Bar R. V(13)(C)(7), it nevertheless found it "appropriate to give some weight in mitigation to the diagnosed disorder for which [Thomas] has sought counseling." Because the stipulation fails to satisfy Gov.Bar R. V(13)(C)(7), I would not afford Thomas's mental-health issues any weight in mitigation.

{¶ 12} Therefore, I respectfully concur in judgment only.