text:
    MAHONING COUNTY BAR ASSOCIATION v. MCNALLY.
    No. 2017-1743
    Supreme Court of Ohio.
    Submitted January 24, 2018 Decided September 18, 2018.
    Bonezzi, Switzer, Polito & Hupp Co., L.P.A., and David C. Comstock Jr., Canfield, for relator.
    Maro & Schoenike Co. and Lynn A. Maro, Boardman, for respondent.
   Per Curiam.

{¶ 1} Respondent, John A. McNally IV, of Youngstown, Ohio, Attorney Registration No. 0067328, was admitted to the practice of law in Ohio in 1996.

{¶ 2} In a complaint certified to the Board of Professional Conduct on February 14, 2017, relator, Mahoning County Bar Association, alleged that McNally committed multiple ethical violations while serving as a Mahoning County Commissioner in 2006 and 2007. The complaint focused on actions McNally took to oppose a property acquisition that had been approved by his fellow commissioners. McNally pleaded guilty to four misdemeanor charges: one count of attempted unlawful use of a telecommunications device, one count of attempted disclosure of confidential information acquired in the course of public duties, and two counts of making false statements in an official proceeding.

{¶ 3} The parties submitted stipulations of fact, misconduct, and aggravating and mitigating factors and sought to dismiss six of the eight violations alleged in the complaint. The matter proceeded to a hearing before a panel of the board. The panel adopted the parties' stipulations of fact and agreed that McNally's conduct violated former DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) and Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that reflects adversely on the lawyer's honesty or trustworthiness) and unanimously dismissed the remaining allegations of the complaint. Based in part on the panel's findings that McNally did not in fact disclose confidential information and that his false testimony did not pertain to a material matter in the underlying lawsuit, the panel recommended that he be publicly reprimanded for his misconduct. The board adopted the panel's findings of fact, conclusions of law, and recommended sanction, and no objections have been filed.

{¶ 4} We agree that McNally's conduct violated DR 1-102(A)(4) and Prof.Cond.R. 8.4(b). But for the reasons that follow, we believe that McNally's conduct warrants a greater sanction. We therefore suspend McNally from the practice of law for one year with six months of the suspension stayed on the condition that he engage in no further misconduct.

Misconduct

{¶ 5} McNally was elected to the three-member Mahoning County Board of Commissioners in 2005. At that time, the Mahoning County Department of Job and Family Services ("JFS") had been leasing offices from the Ohio Valley Mall Company ("Ohio Valley") for approximately 18 years. Although the commissioners had begun to discuss moving the agency when the lease expired and became a month-to-month tenancy in 1998, they did not take any action until they sought to purchase the Oakhill Renaissance Center ("Oakhill") from the Southside Community Development Corporation ("SCDC") in 2006.

{¶ 6} The commissioners had declined SCDC's offer to donate Oakhill to the county in 2004. But in May 2006, SCDC filed for bankruptcy, and the bankruptcy trustee offered the property for sale. Over McNally's dissent, a majority of the commissioners authorized the county to assume a $430,000 debt to the Ohio Department of Development that was related to the Oakhill facility and later authorized county officials to make an offer to purchase Oakhill. The trustee sent letters to potential bidders, including the Cafaro Company-the parent company of Ohio Valley-stating that additional bids would be accepted until July 7, 2006. On that date, the county administrator made a second offer to purchase Oakhill for $75,000 and assume all debts connected with building. Three days later, the trustee sought the bankruptcy court's approval of the county's second offer.

{¶ 7} Believing that the majority of the commissioners and the county administrator had failed to perform sufficient due diligence and exceeded their legal authority in offering to purchase Oakhill, the county treasurer, the county auditor, and McNally filed objections to the proposed purchase in SCDC's bankruptcy case. But before doing so, McNally faxed a copy of the county's offer to counsel for the Cafaro Company. On July 27, 2006, the bankruptcy court authorized the trustee to sell the Oakhill property to the county over the objections. The following day, the majority of the commissioners voted to ratify the purchase over McNally's objections, paying $75,000 and assuming nearly $900,000 in liens and debt.

{¶ 8} In August 2006, Ohio Valley filed two lawsuits-a taxpayer action seeking to rescind the county's purchase of Oakhill and a breach-of-contract action seeking more than $1,000,000 in damages for the county's failure to maintain the JFS premises in accordance with the terms of their lease. The court ruled against Ohio Valley in the taxpayer action and allowed the county to proceed with the Oakhill purchase. The county later settled Ohio Valley's breach-of-contract claim for $913,590.

{¶ 9} In spring 2008, the Youngstown Vindicator began to run articles suggesting that the county auditor, the county treasurer, and McNally had engaged in unethical conduct while opposing the county's acquisition of Oakhill. The following November, the Mahoning County Court of Common Pleas appointed a special prosecutor to oversee an ongoing investigation of the acquisition. In July 2010, the county auditor, the county treasurer, McNally, and others were indicted on multiple criminal charges, but the indictment against McNally was later dismissed without prejudice.

{¶ 10} In May 2014, McNally and others were indicted in Cuyahoga County on 73 counts, including tampering with records, perjury, money laundering, telecommunications fraud, and unlawful influence of a public official. In February 2016, McNally pleaded guilty to four misdemeanors. The remaining counts of the indictment pertaining to him were dismissed.

{¶ 11} Two of the charges in McNally's plea-attempted unlawful use of a telecommunications device and attempted disclosure of confidential information acquired in the course of a public official's duties-related to his faxing a copy of the county's July 7, 2006 Oakhill purchase offer to counsel for the Cafaro Company, which opposed the county's acquisition of Oakhill. The two remaining counts of making false statements in an official proceeding arose from McNally's false deposition testimony in the taxpayer action. McNally falsely testified that he had not received any assistance in drafting a letter that he had sent to the director of JFS, when, in fact, some of the information in the letter had come from material that he had received from the Cafaro Company. He also denied that he had been aware of the taxpayer action before it was filed-even though he had received an advance copy of the complaint from one of Cafaro's attorneys.

{¶ 12} The Cuyahoga County Court of Common Pleas sentenced McNally to one year of community control and ordered him to perform 20 hours of community service, pay a fine of $3,500 and court costs of $3,098.58, and place his law license on inactive status for the duration of his community control. McNally complied with the terms of his sentence, and the parties have stipulated that his community control has been terminated. His bar status is now active.

{¶ 13} The parties agreed and the board has found that McNally's conduct involved dishonesty, fraud, deceit, or misrepresentation in violation of DR 1-102(A)(4) and constituted illegal acts that adversely reflected on his honesty or trustworthiness in violation of Prof.Cond.R. 8.4(b).

{¶ 14} We adopt these findings of fact and misconduct.

Sanction

{¶ 15} When imposing sanctions for attorney misconduct, we consider all relevant factors, including the ethical duties that the lawyer violated, aggravating and mitigating factors, and the sanctions imposed in similar cases. See Gov.Bar R. V(13)(A).

{¶ 16} As aggravating factors, the parties stipulated and the board found that McNally had pleaded guilty to multiple offenses, see Gov.Bar R. V(13)(B)(4), though the board noted that they arose out of the same series of events. In addition to adopting the parties' agreed mitigating factors-including the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the board based on McNally's self-reporting of his misdemeanor convictions to relator, evidence of his good character and reputation, and the imposition of other penalties or sanctions in his criminal case-the board also noted McNally's significant community involvement and commitment to public service. See Gov.Bar R. V(13)(C)(1), (2), (4), (5), and (6).

{¶ 17} The board recognized that conduct involving dishonesty, fraud, deceit, or misrepresentation typically compels an actual suspension from the practice of law. See, e.g. , Disciplinary Counsel v. Rohrer , 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180, ¶ 41.

{¶ 18} Nonetheless, the board recommended that McNally be publicly reprimanded for his misconduct in light of the significant mitigating factors present in this case and its determination that the uncontroverted evidence adduced at the hearing established that (1) McNally's faxed communication "was not an improper disclosure of confidential information" because the terms and conditions of the offer had been publicly disclosed in the bankruptcy proceeding and a local business publication and (2) "the false testimony provided in deposition [sic] did not pertain to a material matter in the underlying lawsuit." Regardless, the judgment entry of McNally's convictions conclusively establishes his guilt with respect to those offenses. See Disciplinary Counsel v. Forbes , 122 Ohio St.3d 171, 2009-Ohio-2623, 909 N.E.2d 629, ¶ 24 ; accord Disciplinary Counsel v. McAuliffe , 121 Ohio St.3d 315, 2009-Ohio-1151, 903 N.E.2d 1209, ¶ 23. Once McNally entered his guilty plea, the factual basis for those charges was established and indisputable for purposes of this disciplinary proceeding. Those facts cannot be explained away by the parties or the board. See Forbes at ¶ 19 ; Cincinnati Bar Assn. v. Powers , 119 Ohio St.3d 473, 2008-Ohio-4785, 895 N.E.2d 172, ¶ 22. {¶ 19} The panel described McNally as "contrite, candid and truthful" and also noted that his fax transmission had been "made premised upon a sincere belief in the lawfulness of the act." In addition, the panel noted that McNally's deposition testimony occurred in a "highly charged atmosphere," which the parties described as a "political circus" with a "ten-year tortured history." The board further suggested that McNally's false testimony should be judged less harshly because it occurred during a cross-examination conducted by an assistant county prosecuting attorney who had served as McNally's own counsel in a separate but related lawsuit. And the parties agreed that members of the prosecuting attorney's office had approached a local newspaper with allegations that McNally had engaged in unethical conduct during the Oakhill acquisition.

{¶ 20} In support of the recommended sanction, the board cited three cases in which we publicly reprimanded public officials who had engaged in conduct that adversely reflected on their fitness to practice law by failing to make certain statutorily mandated financial disclosures. See Disciplinary Counsel v. Costabile , 143 Ohio St.3d 331, 2015-Ohio-2082, 37 N.E.3d 1197 ; Disciplinary Counsel v. Gwinn , 138 Ohio St.3d 167, 2014-Ohio-101, 4 N.E.3d 1039 ; and Disciplinary Counsel v. Taft , 112 Ohio St.3d 155, 2006-Ohio-6525, 858 N.E.2d 414. But none of those attorneys was found to have violated DR 1-102(A)(4) or Prof.Cond.R. 8.4(b). Nor did they attempt to diminish the seriousness of their conduct by submitting stipulations that challenge the factual foundation of their criminal convictions, as McNally has.

{¶ 21} In Toledo Bar Assn. v. DeMarco , 144 Ohio St.3d 248, 2015-Ohio-4549, 41 N.E.3d 1237, we suspended an attorney for one year with six months of the suspension stayed on conditions for making a series of material misrepresentations to a court. While that attorney had acted with a dishonest motive and initially denied making false statements, like McNally he had no prior discipline, ultimately demonstrated a cooperative attitude toward the disciplinary proceedings, and provided letters from judges and attorneys attesting to his good character and reputation. Id. at ¶ 9-10.

{¶ 22} Here, McNally pleaded guilty to and has been convicted of an attempt to disseminate through unlawful use of a telecommunications device confidential information obtained in the course and scope of his role as an elected official. He has also pleaded guilty to and been convicted of giving false testimony in an official proceeding when the truth would have raised additional questions about his association with the Cafaro Company and, consequently, his motive for opposing the Oakhill acquisition. Thus, his false testimony was material. Moreover, McNally has stipulated that his conduct was dishonest, illegal, and adversely reflected on his trustworthiness. Given the seriousness of McNally's misconduct, the applicable aggravating and mitigating factors, and our precedent, we believe that a one-year suspension from the practice of law with six months stayed on one condition is the appropriate sanction in this case.

{¶ 23} Accordingly, John A. McNally IV is suspended from the practice of law in Ohio for one year, with six months of the suspension stayed on the condition that he engage in no further misconduct. If McNally fails to comply with the condition of the stay, the stay will be lifted and he will serve the full one-year suspension. Costs are taxed to McNally.

Judgment accordingly.

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

Fischer and DeGenaro, JJ., not participating.

      Because respondent's misconduct occurred both before and after the adoption of the Rules of Professional Conduct on February 1, 2007, relator charged respondent under the applicable rules of both the former Code of Professional Responsibility and the current Rules of Professional Conduct.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The STATE EX REL. CINCINNATI ENQUIRER, Appellant, v. PIKE COUNTY GENERAL HEALTH DISTRICT et al.; Pike County Medical Examiner and Coroner, Appellee.
    No. 2017-0431
    Supreme Court of Ohio.
    Submitted February 27, 2018 Decided September 19, 2018
    Graydon, Head & Ritchey, L.L.P., John C. Greiner, Cincinnati, and Darren W. Ford, for appellant.
    Michael DeWine, Attorney General, and Sarah E. Pierce, Assistant Attorney General, for appellee.
   Per Curiam.

{¶ 1} The Cincinnati Enquirer appeals the judgment of the Fourth District Court of Appeals denying its request for a writ of mandamus and requests this court to schedule oral argument. For the reasons set forth herein, we deny the motion for oral argument and reverse the judgment of the court of appeals.

Background

{¶ 2} This case arises out of the murders of eight members of the Rhoden and Gilley families in Pike County in April 2016. On May 16, 2016, Kevin Grasha, a Cincinnati Enquirer reporter, contacted the Pike County General Health District, asking to view the preliminary autopsy and investigative notes and findings relating to the homicides of Christopher Rhoden Sr., Christopher Rhoden Jr., Dana Rhoden, Clarence Rhoden, Hanna Rhoden, Hannah Gilley, Kenneth Rhoden, and Gary Rhoden. Grasha made his request pursuant to R.C. 149.43, the Ohio Public Records Act. Grasha made a second request on May 24.

{¶ 3} On May 25, 2016, the Pike County prosecuting attorney, in his role as counsel for the Pike County General Health District and appellee, Pike County's medical examiner and coroner ("coroner"), denied the request to view the records.

{¶ 4} During further exchanges, counsel for the Enquirer invoked R.C. 313.10(D), which provides that upon a request in proper form, journalists must be given access to review, but not copy, the preliminary autopsy reports of a county coroner. The prosecuting attorney again denied the Enquirer access to the records.

{¶ 5} Naming the health district and coroner as respondents, in July, the Enquirer filed a complaint for a writ of mandamus asking the Fourth District Court of Appeals to order the respondents to make the records available pursuant to R.C. 149.43(B) and 313.10. The Enquirer also asked for statutory damages and attorney fees.

{¶ 6} In September 2016, the coroner released heavily redacted versions of the preliminary autopsy reports to the public, calling the reports " 'confidential law enforcement investigatory records' under R.C. 313.10(A)(2)(e) and R.C. 149.43" (which states that confidential law-enforcement investigatory records are not public records), see R.C. 149.43(A)(1)(h) and (2). In February 2017, the court of appeals ordered the health district and coroner to submit the unredacted preliminary autopsy reports to it under seal for in camera inspection.

{¶ 7} On March 17, 2017, the court of appeals denied the Enquirer's request for a writ of mandamus. 2017-Ohio-1084, 80 N.E.3d 517. The court of appeals first held that no writ could be issued against the Pike County General Health District, as R.C. 313.10(D) applies only to coroners. Id. at ¶ 36. (The Enquirer has not appealed this aspect of the decision.) After reviewing the unredacted portions of the final autopsy reports, the court of appeals held that they were properly withheld because they constituted confidential law-enforcement investigatory records of the eight decedents and therefore were not subject to the journalist exception in R.C. 313.10(D). Id. at ¶ 5, 51, and 57.

{¶ 8} The Enquirer appealed and filed an unopposed motion for oral argument.

The motion for oral argument

{¶ 9} Oral argument in appeals as of right is discretionary. S.Ct.Prac.R. 17.02(A). When deciding whether to hear oral argument, we consider whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among the courts of appeals. State ex rel. BF Goodrich Co., Specialty Chems. Div. v. Indus. Comm. , 148 Ohio St.3d 212, 2016-Ohio-7988, 69 N.E.3d 728, ¶ 23. This case does involve a matter of great public importance: whether journalists may review, and presumably report on, preliminary autopsy reports in open homicide cases. But the remaining factors are not present: the case presents no constitutional question or division among the intermediate appellate courts; the relevant facts are few and uncontested; and the legal question in the case is a simple question of statutory interpretation. Oral argument would likely offer little new information for the court's consideration.

{¶ 10} We therefore deny the request for oral argument.

Legal analysis

{¶ 11} The Enquirer seeks to review certain documents in the custody of the coroner's office. The records of a county coroner's office are governed by R.C. 313.10. As the court of appeals correctly recognized, this case does not arise under the Ohio Public Records Act. 2017-Ohio-1084, 80 N.E.3d 517 at ¶ 32 ("we conclude that the Enquirer's claim is governed by R.C. 313.10 and not R.C. 149.43").

{¶ 12} To be entitled to a writ of mandamus, the Enquirer must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the coroner to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Love v. O'Donnell , 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. Mandamus is the appropriate remedy to compel compliance with the Ohio Public Records Act, R.C. 149.43, and a relator need not demonstrate the absence of an adequate remedy in the ordinary course of the law. State ex rel. Caster v. Columbus , 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15-16. Although the demand for records in this case arises under R.C. 313.10, not R.C. 149.43, the same rule applies. See State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office , 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 33 (in a case involving records of a coroner, the parties did not dispute that the requesting party had no adequate remedy in the ordinary course of the law).

{¶ 13} The coroner's-records statute states:

Except as otherwise provided in this section, the records of the coroner who has jurisdiction over the case, including, but not limited to, the detailed descriptions of the observations written during the progress of an autopsy and the conclusions drawn from those observations filed in the office of the coroner * * *, made personally by the coroner or by anyone acting under the coroner's direction or supervision, are public records.

R.C. 313.10(A)(1). R.C. 313.10(B) adds, "All records in the coroner's office that are public records are open to inspection by the public, and any person may receive a copy of any such record or part of it upon demand in writing * * *."

{¶ 14} However, the statute expressly exempts certain categories of documents from the definition of public records.

Except as provided in division (D) or (E) of this section, the following records in a coroner's office are not public records:
(a) Preliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner's direction or supervision;
* * *
(e) Records of a deceased individual that are confidential law enforcement investigatory records as defined in section 149.43 of the Revised Code.

R.C. 313.10(A)(2). R.C. 313.10(D), referred to above, carves out an exception:

A journalist may submit to the coroner a written request to view preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner or by anyone acting under the coroner's discretion or supervision. * * * If a journalist submits a written request to the coroner to view the records described in this division, the coroner shall grant the journalist's request. The journalist shall not copy the preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent.

The Enquirer contends that the plain language of R.C. 313.10(D) creates an absolute duty on the part of the coroner to permit journalists to inspect preliminary autopsy reports upon proper request.

{¶ 15} The court of appeals disagreed. That court began by interpreting the statutory language to conclude that "records about a deceased individual that are confidential law enforcement investigatory records are not public records." 2017-Ohio-1084, 80 N.E.3d 517 at ¶ 46. The Enquirer does not dispute this proposition, and indeed we confirmed this holding in State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office , 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 44. The question in the case is not whether the preliminary autopsy reports are public records (they are not), but whether journalists are entitled to see them nonetheless.

{¶ 16} In declining to issue the writ, the court of appeals observed that R.C. 313.10(A)(2), the provision enumerating the coroner's documents that are not public records, lists six categories of documents:

(a) Preliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner's direction or supervision;
(b) Photographs of a decedent made by the coroner or by anyone acting under the coroner's direction or supervision;
(c) Suicide notes;
(d) Medical and psychiatric records provided to the coroner, a deputy coroner, or a representative of the coroner or a deputy coroner * * *;
(e) Records of a deceased individual that are confidential law enforcement investigatory records as defined in section 149.43 of the Revised Code.
(f) Laboratory reports generated from the analysis of physical evidence by the coroner's laboratory that is discoverable under Criminal Rule 16.

{¶ 17} The court next noted that the specific language of the journalist privilege, R.C. 313.10(D), allows a journalist to view only "preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner or by anyone acting under the coroner's discretion or supervision." Applying the general rule of statutory construction expressio unius est exclusio alterius (" 'the expression of one or more items of a class implies that those not identified are to be excluded,' " quoting State v. Droste, 83 Ohio St.3d 36, 39, 697 N.E.2d 620 (1998) ), the court concluded that R.C. 313.10(D) does not authorize the inspection of confidential law-enforcement records "insofar as they are included in preliminary autopsy and investigative notes and findings made by the coroner." 2017-Ohio-1084, 80 N.E.3d 517, at ¶ 47-48. {¶ 18} The court bolstered its conclusion by examining two other provisions of the coroner's statute that permit designated persons to obtain nonpublic coroner records. The coroner is required, upon request, to provide "a copy of the full and complete records of the coroner" to the next of kin of the decedent, R.C. 313.10(C)(1), and an insurer, R.C. 313.10(E)(1) and (2). Had the General Assembly intended journalists to have unfettered access to nonpublic records of the coroner, the court of appeals concluded, it would have used the same broad language in the journalist provision, but it did not. Id. at ¶ 49.

{¶ 19} The court of appeals examined the specific redacted materials sought by the Enquirer and found them to contain confidential law-enforcement records. It then interpreted R.C. 149.43(A)(2)(c) (confidential law-enforcement records that will likely lead to the disclosure of specific investigatory work product are not public records) as circumscribing R.C. 313.10(D). 2017-Ohio-1084, 80 N.E.3d 517, at ¶ 52. Therefore, it declined to issue the writ of mandamus. Id. at ¶ 57-58.

{¶ 20} In our judgment, the court of appeals' analysis is flawed. When construing the language of a statute, a court begins by examining the intent of the General Assembly. State ex rel. Repeal the Lorain Cty. Permissive Sales Tax Commt. v. Lorain Cty. Bd. of Elections , 151 Ohio St.3d 247, 2017-Ohio-7648, 87 N.E.3d 1234, ¶ 14. The intent of the General Assembly "is primarily determined from the language of the statute itself." Stewart v. Trumbull Cty. Bd. of Elections , 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). And when a statute is unambiguous, the court must apply it as written. State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm. , 151 Ohio St.3d 92, 2017-Ohio-7577, 86 N.E.3d 294, ¶ 19.

{¶ 21} The language of R.C. 313.10(D) is clear: if a journalist submits a proper request to review preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner, the coroner "shall" grant the request. The language of R.C. 313.10(D) does not condition that right of access in any way, and the right of access certainly does not depend on whether the records in question are confidential law-enforcement records. Indeed, the statute accounts for the possibility that the materials might be sensitive by denying journalists the ability to copy the materials.

{¶ 22} The court of appeals disregarded the plain language of the statute and decided instead to rely upon a canon of statutory construction. However, when the words of a statute are unambiguous, a court has "no cause to apply the rules of statutory construction." Clay , 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, at ¶ 16-17 (declining to interpret an unambiguous statute by applying the in pari materia rule of statutory construction); accord Hulsmeyer v. Hospice of Southwest Ohio, Inc. , 142 Ohio St.2d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 22-23. This court has long held that the doctrine of expressio unius est exclusio alterius "is an aid in interpreting ambiguous statutes" and should not be applied to defeat legislative intent when there is no ambiguity. (Emphasis added.) State ex rel. Wilson v. Preston , 173 Ohio St. 203, 209, 181 N.E.2d 31 (1962).

{¶ 23} Alternatively, the coroner contends that the documents at issue are subject to the terms of both the coroner's statute and the Public Records Act and are exempt from disclosure by the latter. However, we rejected this precise argument in Clay . Id. at ¶ 19-20. Moreover, the coroner's argument would swallow the journalist privilege altogether: the function of R.C. 313.10(D) is to give journalists limited access to records that are not public records . If a journalist could review only autopsy reports that are public records, then he would have no greater access than the general public, and R.C. 313.10(D) would be a dead letter.

{¶ 24} Based on the plain language of R.C. 313.10(D), we reverse the judgment of the court of appeals and grant a writ of mandamus.

Judgment reversed and writ granted.

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

Kennedy, J., concurs in judgment only.

French and DeWine, JJ., not participating.


text:
    IN RE L.G.
    No. 2017-0877
    Supreme Court of Ohio.
    Submitted July 31, 2018 Decided September 20, 2018
    Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Christina E. Mahy and Andrew T. French, Assistant Prosecuting Attorneys, for appellant, the state of Ohio.
    Theresa G. Haire, Montgomery County Public Defender, and Michael E. Deffet, Assistant Public Defender, for appellee, L.G.
    Marsha L. Levick; Brooke M. Burns ; Columbus, Rickell Howard; and Erin Davies, urging affirmance for amici curiae Juvenile Law Center, Office of the Ohio Public Defender, Children's Law Center, Inc., Education Law Center-PA, Juvenile Justice Coalition, National Juvenile Defender Center, and Schubert Center for Children's Studies.
    Russell S. Bensing, Cleveland, urging affirmance for amicus curiae Ohio Association of Criminal Defense Lawyers.
    {¶ 1} This cause is dismissed as having been improvidently accepted.
    O'Connor, C.J., and Fischer, DeWine, and DeGenaro, JJ., concur.
   O'Donnell, J., dissents, with an opinion joined by French, J.

Kennedy, J., dissents.

O'Donnell, J., dissenting.

{¶ 2} I respectfully dissent from the majority's decision to resolve this case by declaring that it was improvidently accepted. The Second District Court of Appeals misapplied long-standing precedent of this court, which we recently followed in State v. Jackson , --- Ohio St.3d ----, 2018-Ohio-2169, --- N.E.3d ----, when it concluded that a school district's executive director of safety and security acted as an agent of law enforcement and had a duty to advise a student of his Miranda rights prior to questioning that student about a bomb threat even though the director initiated and conducted the interview without input from law enforcement. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). By dismissing this case and not even issuing a "do not cite" directive, the majority allows an errant appellate-court decision to stand and creates confusion regarding the requirement that an individual act at the direction or control of law enforcement to be an agent of law enforcement.

Facts and Procedural History

{¶ 3} On October 27, 2015, the Montgomery County Regional Dispatch Center received an anonymous telephone call claiming there was a bomb at Longfellow Alternative School. After the school was evacuated, police officers and Jamie Bullens, the executive director of safety and security for Dayton Public Schools, arrived at the school. Bullens, a retired Dayton Police Department detective, oversees the schools' resource officers, who are trained as peace officers, have authority to arrest on school grounds, and carry handcuffs but not weapons. However, Bullens is not a peace officer. School-district policy directs that he work closely with police when a crime occurs on school grounds and formal charges may be warranted.

{¶ 4} Bullens met with Sergeant Keller, the supervisor on the scene for the Dayton Police Department. Bullens and Keller decided to have bomb-sniffing dogs sweep the building; they found nothing. Then, Bullens and Keller decided to allow the students into the school gymnasium, where Bullens, in the presence of a uniformed officer, told the students that the Miami Valley Crime Stoppers Association was offering a $50 to $1,000 reward for information leading to the person responsible for the bomb threat. The previous day, Bullens had received permission to offer such a reward in bomb-threat cases from Detective Querubin, who ran the association, provided that any information gathered after offering the reward was given to law enforcement.

{¶ 5} After Bullens left the gymnasium, School Resource Officer Kerry Ivy and Principal Jack Johnson notified him that two individuals had come forward with information. Bullens spoke with the individuals in the cafeteria, and they implicated L.G., a student. Without consulting police, Bullens instructed Ivy to bring L.G. to the cafeteria, where Bullens questioned him without providing Miranda warnings. L.G. admitted to calling in the bomb threat. Although at least two uniformed Dayton police officers were present in the cafeteria, they did not participate in the interview or direct the questioning in any way. After Bullens finished questioning L.G., one of the officers placed him under arrest.

{¶ 6} The next day, the Dayton Police Department filed a complaint alleging that L.G. was a delinquent child for committing the offense of inducing panic. L.G. moved to suppress his statements on the grounds that he had not been advised of his Miranda rights, and after a hearing, a magistrate granted the motion. The state objected to the magistrate's decision, arguing that Miranda did not apply, because L.G. was not in custody when Bullens questioned him and Bullens was not a law-enforcement officer and did not act as an agent of law enforcement. The juvenile court overruled the objections and granted the motion to suppress.

{¶ 7} The state appealed, and the court of appeals affirmed in a divided decision. The majority concluded that L.G. was in custody when Bullens questioned him. In addition, relying on State v. Bolan , 27 Ohio St.2d 15, 271 N.E.2d 839 (1971), the majority acknowledged that it is well established that only law enforcement and those acting at the direction or control of law enforcement have a duty to give Miranda warnings. 2017-Ohio-2781, 82 N.E.3d 52, ¶ 20 (2d Dist.). It further acknowledged that Bullens testified that he "did not maintain his status as a peace officer" and that "the Dayton police did not direct his questioning of L.G., nor did he speak with police officers between the time that L.G. was identified and when L.G. was questioned." Id. at ¶ 21.

{¶ 8} Nonetheless, the court of appeals' majority held that the juvenile court "reasonably concluded that, when viewing the totality of the circumstances, Bullens was acting in conjunction with law enforcement officers, such that Miranda warnings were required." Id. at ¶ 22. It noted the juvenile court's reliance on the fact that Bullens and Sergeant Keller had made joint decisions regarding having dogs check the building and allowing the students back into the school, that Bullens offered a reward based on his permission from Detective Querubin, that Bullens gave an order to a school resource officer to retrieve L.G. from the gymnasium, and that Bullens questioned L.G. with at least two armed, uniformed officers nearby. Id.

{¶ 9} The dissenting court of appeals jurist opined that the evidence did not support the conclusion that L.G. was in custody during the interview or that Bullens acted as an agent of law enforcement in conducting the interview. Id. at ¶ 29-30 (Hall, P.J., dissenting).

{¶ 10} The state appealed and presented one proposition of law:

The Protections of the United States Constitution only apply where there is action by the State. The Fifth Amendment protection against self-incrimination does not apply to interviews conducted by private citizens.

Law and Analysis

{¶ 11} "The Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, states that '[n]o person * * * shall be compelled in any criminal case to be a witness against himself * * *.' " (Ellipses sic and citation omitted.) State v. Graham , 136 Ohio St.3d 125, 2013-Ohio-2114, 991 N.E.2d 1116, ¶ 19. Pursuant to Miranda , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at 444, 86 S.Ct. 1602.

{¶ 12} In Jackson , --- Ohio St.3d ----, 2018-Ohio-2169, --- N.E.3d ----, this court recently reiterated:

In State v. Watson , 28 Ohio St.2d 15, 275 N.E.2d 153 (1971), this court stated, "Inasmuch as custodial interrogation, as defined in Miranda * * * means 'questioning initiated by law enforcement officers after a person has been taken into custody,' the Miranda requirements do not apply to admissions made to persons who are not officers of the law or their agents * * *." Id. at paragraph five of the syllabus, quoting Miranda at 444 [86 S.Ct. 1602] ; see also State v. Bernard , 31 So.3d 1025, 1029 (La.2010) ( Miranda applies only if "the interrogation is conducted by a 'law enforcement officer' or someone acting as their agent"). And we have observed that other courts have recognized "that the duty of giving ' Miranda warnings' is limited to employees of governmental agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies ; * * * it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid in law enforcement. " (Emphasis added.) State v. Bolan , 27 Ohio St.2d 15, 18, 271 N.E.2d 839 (1971).

(Ellipses sic.) Id. at ¶ 15.

{¶ 13} In Jackson , we considered whether a social worker was an agent of law enforcement during an interview of an alleged perpetrator of child abuse at the county jail. Id. at ¶ 1-3. We held:

A social worker's statutory duty to cooperate and share information with law enforcement with respect to a child abuse investigation does not render the social worker an agent of law enforcement for purposes of the Fifth and Sixth Amendments to the United States Constitution when the social worker interviews an alleged perpetrator unless other evidence demonstrates that the social worker acted at the direction or under the control of law enforcement .

(Emphasis added.) Id. at syllabus. In concluding that the social worker in that case was not acting as an agent of law enforcement, we highlighted the absence of evidence "that law enforcement asked [the social worker] to interview [the alleged perpetrator] before or after" a failed interview attempt by law enforcement and the absence of evidence that "law enforcement influenced [the social worker's] interview * * * in any way." Id. at ¶ 23.

{¶ 14} Here, the evidence does not support the conclusion that Bullens was a member of law enforcement or an agent of law enforcement at the time of the interview, so the court of appeals erred in concluding that he had a duty to provide L.G. with Miranda warnings. Bullens is not a peace officer, and as in Jackson , any duty Bullens had to cooperate and share information with law enforcement, pursuant to either district policy or the agreement with the Miami Valley Crime Stoppers Association, is not dispositive of whether he was an agent of law enforcement. The fact that Bullens made joint decisions with police about using bomb-sniffing dogs and moving the students to the gymnasium contradicts the conclusion that he acted at the direction or control of law enforcement during this incident. Importantly, as in Jackson , there is no evidence that law enforcement requested the interview or influenced it in any way. Bullens made the decision to interview L.G. without any discussion with law enforcement, and there is no evidence the officers who were present during the interview directed or controlled it. Indeed, as the executive director of safety and security for the school district, Bullens was acting in furtherance of his duty to ensure the safety of the students, a wholly different focus from the prosecution of L.G.

Conclusion

{¶ 15} For the foregoing reasons, I dissent from the majority's decision to dismiss this appeal as having been improvidently accepted. Instead, I would reverse the judgment of the court of appeals because it is contrary to this court's precedent and remand to the juvenile court for further proceedings.

French, J., concurs in the foregoing opinion.


text:
    WESTERVILLE CITY SCHOOLS BOARD OF EDUCATION, Appellee and Cross-Appellant, v. FRANKLIN COUNTY BOARD OF REVISION et al., Appellees;
    GC Net Lease (Westerville) Investors, L.L.C., Appellant and Cross-Appellee.
    No. 2016-0902
    Supreme Court of Ohio.
    Submitted June 12, 2018 Decided September 26, 2018
    Rich & Gillis Law Group, L.L.C., Mark H. Gillis, Karol C. Fox, Kelley A. Gorry, Dublin, Kimberly G. Allison, Columbus, and Richelle L. Thoburn, Dublin, for appellee and cross-appellant.
    Sleggs, Danzinger & Gill Co., L.P.A., and Todd W. Sleggs, Cleveland, for appellant and cross-appellee.
   Per Curiam.

{¶ 1} At issue in this real-property tax case is the 2013 value of a single-tenant office building occupied by J.P. Morgan Chase under a net lease. Under R.C. 5713.03 as amended by 2012 Am.Sub.H.B. No. 487 ("H.B. 487"), the fee-simple estate must be valued as if unencumbered. The question presented is whether the Board of Tax Appeals ("BTA") acted reasonably and lawfully by adopting the property's sale price without considering the appraisal offered by the property owner. Under Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, it is clear that the BTA did not properly perform its fact-finding duties in this case. As in Terraza 8 , we conclude that the proper remedy is to vacate the BTA's decision and remand the case for further proceedings.

I. Background

{¶ 2} On March 24, 2014, appellee and cross-appellant, the Westerville City Schools Board of Education ("BOE"), filed a complaint challenging the auditor's 2013 value of $35,500,000 for the 388,669-square-foot single-tenant office building at issue. The building is a multistory structure that was constructed in 1974, expanded in 1983, and renovated in 1999. The BOE advocated adoption of a November 2013 sale price of $44,500,000 as the property value based on the conveyance-fee statement and deed, which the BOE presented at the hearing before appellee Franklin County Board of Revision ("BOR").

{¶ 3} At that hearing, the owner, appellant and cross-appellee, GC Net Lease (Westerville) Investors, L.L.C., presented the appraisal report and testimony of Samuel D. Koon, a member of the Appraisal Institute. The BOE objected to the submission of this evidence, arguing that it was not admissible as evidence of value, because GC Net Lease had not rebutted the presumption that the sale price was the best evidence of the value of the property. GC Net Lease's counsel pointed to H.B. 487's amendments to R.C. 5713.03 and argued that the appraisal evidence was admissible to establish the value of the unencumbered fee-simple value of the property, which had been sold subject to an existing lease. The appraiser opined a fee-simple value of $24,800,000 as of January 1, 2013, based on his reconciliation of valuations under an income approach and a sales-comparison approach.

{¶ 4} The lease on the property resulted from a February 2010 sale-leaseback transaction under which the recorded sale price was $32,500,000. In October 2010, the property transferred for $35,500,000, which evidently formed the basis for the auditor's initial valuation.

{¶ 5} According to Koon, the November 2013 sale was a "portfolio sale" of 18 properties located in multiple states; Koon noted that GC Net Lease's parent company reported to the Securities and Exchange Commission that $44,500,000 of the aggregate sale price was allocated to the subject property. The BOE objected on hearsay grounds to the appraiser's testimony regarding the specific circumstances of the 2013 sale. Neither the BOR nor the BTA specifically ruled on that objection. In any event, GC Net Lease has not challenged the allocation of $44,500,000 to the sale of the property at issue.

II. Procedural history

{¶ 6} The record contains the June 11, 2015 BOR deliberation adopting the $44,500,000 sale price as the tax-year-2013 property value. Nonetheless, the BOR's June 18, 2015 decision letter indicated a property value of $27,928,600; the BOE appealed that decision to the BTA on July 10, 2015.

{¶ 7} On July 15, 2015, the BOR issued a "corrected" decision letter indicating a property value of $44,500,000, which GC Net Lease appealed to the BTA. The BTA consolidated the two cases and held a hearing. The BOE appeared at the hearing in order to ask for a briefing schedule. GC Net Lease waived a hearing, but according to the BTA's decision, GC Net Lease did submit a statement arguing that the BOR lacked jurisdiction to issue the July 15 decision.

{¶ 8} In its decision, the BTA held that the BOR lacked jurisdiction to issue the corrected decision letter because the BOE had already prosecuted an appeal to the BTA from the first letter. BTA Nos. 2015-828 and 2015-1165, 2016 WL 3401901, at *2 (May 19, 2016). There was no appeal from that determination.

{¶ 9} Turning to the merits, the BTA noted that the applicable version of R.C. 5713.03, that is, R.C. 5713.03 as amended by H.B. 487, calls for valuing the "fee simple estate, as if unencumbered." Nonetheless, the BTA adhered to caselaw that applied an earlier version of R.C. 5713.03 and that emphasized the use of the sale price to determine value. Thus, the BTA rebuffed GC Net Lease's contention that appraisal evidence should be considered to ensure that the property was valued "as if unencumbered" by the existing lease; the BTA relied heavily on the caselaw relating to tax years before H.B. 487 became effective for the pronouncement that " 'it would never be proper to adjust a recent arm's-length sale price because of an encumbrance.' " 2016 WL 3401901 at *4, quoting HIN, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 138 Ohio St.3d 223, 2014-Ohio-523, 5 N.E.3d 637, ¶ 24. Accordingly, the BTA adopted the November 2013 sale price, $44,500,000, as the property value for tax year 2013. GC Net Lease appealed from that decision. The BOE cross-appealed, arguing that the pre-H.B. 487 version of R.C. 5713.03 applies in this case.

III. Analysis

A. The H.B. 487 version of R.C. 5713.03 applies in this case, and appraisal evidence is admissible and relevant

{¶ 10} We can easily resolve the issue raised by the BOE on cross-appeal regarding which version of R.C. 5713.03 applies here. In Terraza 8 , we held that "the H.B. 487 version [of R.C. 5713.03 ] applies to valuations for tax year 2013." 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, at ¶ 18. GC Net Lease correctly contends that the BTA's analysis conflicts with this court's construction and application of R.C. 5713.03 set forth in Terraza 8 . In Terraza 8 , we held that the H.B. 487 amendments to R.C. 5713.03 overrode Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision , 106 Ohio St.3d 269, 2005-Ohio-4979, 834 N.E.2d 782, under which a voluntary, recent arm's-length sale was taken to be an absolute and irrebuttable criterion of value. Terraza 8 at ¶ 26-30. At the same time, however, we held that the H.B. 487 amendments to R.C. 5713.03 did not change the sale-price-as-best-evidence-of-value standard that predates Berea and is traceable to Conalco, Inc. v. Monroe Cty. Bd. of Revision , 50 Ohio St.2d 129, 363 N.E.2d 722 (1977) ; State ex rel. Park Invest. Co. v. Bd. of Tax Appeals , 175 Ohio St. 410, 195 N.E.2d 908 (1964) ; and Ratner v. Stark Cty. Bd. of Revision , 23 Ohio St.3d 59, 491 N.E.2d 680 (1986), overruled, Berea . We stated in Terraza 8 that "[n]othing suggests that [in amending R.C. 5713.03 ] the General Assembly intended to depart from [the] longstanding rule" that the best evidence of real-property value " 'is an actual, recent sale of the property in an arm's-length transaction.' " Terraza 8 at ¶ 33, quoting Conalco at paragraph one of the syllabus.

{¶ 11} But we noted in Terraza 8 that the H.B. 487 amendments to R.C. 5713.03 make the presumption that a sale price indicates the market value of the unencumbered fee-simple estate a rebuttable presumption:

The statutory amendment thus allows taxing authorities to consider non-sale-price evidence-particularly evidence of encumbrances and their effect on sale price-in determining the true value of property that has been the subject of a recent arm's-length sale.

Terraza 8 at ¶ 27.

{¶ 12} Just as the BTA did in its decision on appeal in Terraza 8 , the BTA's approach to the value issue in the present case perpetuates the Berea rule in contravention of the H.B. 487 amendments to R.C. 5713.03. Citing caselaw that relied on Berea , the BTA stated that the sale price constituted true value unless the sale's voluntary, recent, and arm's-length character had been impugned. In particular, the BTA emphasized our pronouncement in HIN, 138 Ohio St.3d 223, 2014-Ohio-523, 5 N.E.3d 637, at ¶ 24, citing Cummins Property Servs., L.L.C. v. Franklin Cty. Bd. of Revision , 117 Ohio St.3d 516, 2008-Ohio-1473, 885 N.E.2d 222, ¶ 25-26, that " 'it would never be proper to adjust a recent arm's-length sale price because of an encumbrance.' " 2016 WL 3401901 at *4.

B. Under R.C. 5713.03, no threshold showing is required before a tax tribunal must give full consideration to appraisal evidence

{¶ 13} The BOE argues that Terraza 8 does not call for vacating the BTA's decision and remanding here, because the BTA relied on pre- Berea caselaw in declining to consider Koon's appraisal. Namely, in rejecting the appraisal and upholding the sale price, the BTA quoted and relied on Pingue v. Franklin Cty. Bd. of Revision , 87 Ohio St.3d 62, 64, 717 N.E.2d 293 (1999), to conclude that " '[i]t is only when the purchase price does not reflect the true value that a review of independent appraisals based upon other factors is appropriate.' " 2016 WL 3401901 at *6. According to the BOE, this precept requires the proponent of non-sale-price evidence to impugn the sale in some way before appraisal evidence becomes relevant and admissible. Indeed, in cases decided while the holding of Berea was in effect, the evidence of a qualifying sale precluded consideration of an appraiser's opinion of value unless the recency, arm's-length character, or voluntariness of the sale had been rebutted. Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 146 Ohio St.3d 470, 2016-Ohio-757, 58 N.E.3d 1126, ¶ 5-8, 14, 19-20. And at oral argument, the BOE's counsel asserted that under Terraza 8 ,"the burdens with respect to an arm's-length sale had not changed" in this respect.

{¶ 14} But R.C. 5713.03 as amended by H.B. 487 provides no support for the BOE's position. Quite simply, the BOE's argument overlooks the significance of the twofold change the legislature made when it amended that section in September 2012. Not only did the legislature codify the proposition that the tax assessor should value "the fee simple estate, as if unencumbered," it also changed the statutory pronouncement that the assessor "shall" consider a recent arm's-length-sale price "to be the true value for taxation purposes" to say that the assessor "may" consider the sale price to be the true value. H.B. 487. While Terraza 8 establishes that this latter change does not overturn the sale-price-as-best-evidence-of-value rule, changing "shall" to "may" does establish that appraisal evidence is admissible and competent evidence of value alongside a sale price and that the fact-finder has a duty to consider whether the appraisal constitutes a more accurate valuation of the property than the sale price. See Bronx Park S. III Lancaster, L.L.C. v. Fairfield Cty. Bd. of Revision , 153 Ohio St.3d 550, 2018-Ohio-1589, 108 N.E.3d 1079, ¶ 12 ("when property was the subject of a recent arm's-length sale, the General Assembly [by amending R.C. 5713.03 in H.B. 487] has directed taxing authorities to consider not just the sale price but also any other evidence the parties present that is relevant to the value of the unencumbered fee-simple estate").

{¶ 15} By making appraisal evidence generally admissible and competent, the statutory amendments return the approach to valuing real property to what it was before Berea . Both the BTA and the BOE cite the pre- Berea case Pingue , 87 Ohio St.3d 62, 717 N.E.2d 293, in support of their position that reliance on appraisal evidence is not appropriate when there has been a sale whose recency has not been impugned, but neither mentions that the lead opinion in that case reflected the view of only three justices. See Kraly v. Vannewkirk , 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994) (noting that an earlier decision of the court was "of questionable precedential value inasmuch as it was a plurality opinion which failed to receive the requisite support of four justices of this court in order to constitute controlling law"). Justice Pfeifer, who provided the fourth vote for the judgment in Pingue, took a very different approach from the plurality. He made clear that he believed that appraisal evidence was the best way to determine value and that he concurred in the judgment because the appraisal evidence in that case was faulty. Pingue at 66, 717 N.E.2d 293 (Pfeifer, J., concurring).

{¶ 16} A pre- Berea case that garnered four justices' votes is Ratner, 23 Ohio St.3d 59, 491 N.E.2d 680. Ratner made clear that appraisal evidence was admissible and competent even when a sale price was proposed as establishing the property's value. In Ratner , the court reversed a BTA decision that had adopted the stated sale price without considering the appraisal opinions. This court noted that "the taxpayer presented testimony from two appraisers using traditional valuation methods to establish that the contract sale price did not reflect true value." Id. at 61, 491 N.E.2d 680. Moreover, we find it significant that Berea explicitly overruled Ratner . See Berea , 106 Ohio St.3d 269, 2005-Ohio-4979, 834 N.E.2d 782, at ¶ 13. By overriding Berea in enacting H.B. 487's amendments to R.C. 5713.03, the legislature reinstated Ratner 's approach, under which appraisal evidence is admissible and competent evidence of value even in cases in which a sale price has been offered as evidence of value. In other words, H.B. 487's amendment to R.C. 5713.03 has restored the pre- Berea principle that "the sale price is the best evidence but not the only evidence of true value." Ratner v. Stark Cty. Bd. of Revision , 35 Ohio St.3d 26, 29, 517 N.E.2d 915 (1988).

IV. Conclusion

{¶ 17} For the foregoing reasons, we vacate the decision of the BTA and remand the cause for further proceedings. On remand, the BTA must consider the appraisal evidence alongside the sale price as evidence of the property's value and give due consideration to whether the sale price reflects the value of the unencumbered fee-simple estate. The BTA must decide the cause on the existing record, see Bronx Park , 153 Ohio St.3d 550, 2018-Ohio-1589, 108 N.E.3d 1079, at ¶ 13, but must consider any objections that were timely advanced by the BOE against the evidence offered by GC Net Lease.

Decision vacated and cause remanded.

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


text:
    DISCIPLINARY COUNSEL v. BENNETT.
    No. 2018-0252
    Supreme Court of Ohio.
    Submitted April 10, 2018 Decided October 2, 2018
    Scott J. Drexel, Disciplinary Counsel, and Donald M. Sheetz, Assistant Disciplinary Counsel, for relator.
    Montgomery, Rennie, and Jonson, L.P.A., George D. Jonson, and Lisa M. Zaring, Cincinnati, for respondent.
   Per Curiam.

{¶ 1} Respondent, Clyde Bennett II, of Cincinnati, Ohio, Attorney Registration No. 0059910, was admitted to the practice of law in Ohio in 1992.

{¶ 2} On September 26, 2007, Bennett pleaded guilty to structuring financial transactions to avoid federal reporting requirements for transfers in excess of $10,000. Consequently, we suspended his license to practice law on an interim basis on February 15, 2008. In re Bennett , 117 Ohio St.3d 1401, 2008-Ohio-594, 881 N.E.2d 270. On February 4, 2010, we indefinitely suspended him from the practice of law with credit for time served for the conduct underlying his criminal conviction, and we reinstated him to the practice of law on April 29, 2011. Disciplinary Counsel v. Bennett , 124 Ohio St.3d 314, 2010-Ohio-313, 921 N.E.2d 1064, reinstatement granted , 128 Ohio St.3d 1220, 2011-Ohio-2248, 946 N.E.2d 757.

{¶ 3} In a complaint certified to the Board of Professional Conduct on December 6, 2016, relator, disciplinary counsel, charged Bennett with multiple ethical violations arising out of his representation of a single client. Based on the parties' stipulations and evidence adduced at a hearing, a panel of the board issued a report finding that Bennett violated four professional-conduct rules and recommending that three other alleged violations be dismissed and that Bennett be suspended from the practice of law for six months. The board adopted the panel's report in its entirety, and no objections have been filed.

{¶ 4} We adopt the board's findings of fact and misconduct but find that the appropriate sanction for Bennett's misconduct is a one-year suspension from the practice of law.

Misconduct

{¶ 5} On January 17, 2014, John Kelley was convicted of two counts of attempted murder and four counts of felonious assault and sentenced to 25 years in prison. The First District Court of Appeals affirmed Kelley's convictions on December 19, 2014, and he had 45 days-until February 2, 2015-to perfect his appeal to this court. See S.Ct.Prac.R. 7.01(A).

{¶ 6} In January 2015, Kelley's mother asked Bennett to represent him in that appeal. Bennett agreed to undertake the representation for a flat fee of $5,000, but he did not reduce the agreement to writing and failed to effectively communicate that he did not intend to begin work until the entire flat fee had been paid. Kelley's mother paid Bennett $2,500 on January 12, 2015. Treating the fee as a flat fee earned upon receipt, Bennett deposited the money into his operating account without simultaneously advising Kelley's family of the possibility of a refund.

{¶ 7} Bennett claimed that he had been under the mistaken belief that his representation did not commence until the client paid the agreed retainer in full, he filed a notice of appearance in a case, or he otherwise conducted some public legal matter on behalf of the client. Although he began to do some preliminary work on Kelley's case after receiving half of the agreed retainer, he did not consider that work to have commenced the representation.

{¶ 8} Bennett's stated legal strategy was to pursue Kelley's state remedies before filing a petition for habeas corpus in federal court. But Bennett did not have an adequate understanding of the legal requirement that prisoners exhaust all state court remedies before raising claims in a federal habeas corpus proceeding. Believing that a direct appeal to this court would be unsuccessful and recognizing that Kelley's principal arguments required evidence outside the record, Bennett determined that a petition for postconviction relief in state court followed by a federal habeas petition was a better course of action. He therefore elected not to file a timely direct appeal to this court. However, he failed to inform Kelley of that fact during a meeting between the two men shortly after the February 2, 2015 filing deadline had passed. Eventually, after receiving an additional $1,000 toward the retainer-including a $500 payment from Kelley on February 3, 2015-Bennett decided that he had received enough money to enter an appearance and undertake the representation.

{¶ 9} On March 3, 2015, Bennett filed a perfunctory one-page motion for delayed appeal in this court. His affidavit in support of that motion stated:

The Defendant did not file for an appeal on time because counsel for Defendant was not retained until several days after the expiration of the 45 day time period. Counsel immediately filed the instant Motion for Delayed Appeal. Defendant's family could not procure funds to retain counsel until after the expiration of the 45 day time period.

{¶ 10} Bennett has acknowledged that his affidavit intentionally omitted relevant information and is misleading. Specifically, Bennett admitted that the omissions were significant and designed to mislead a court considering a subsequent habeas petition into believing that "a good faith attempt was made to avail Mr. Kelley of his state remedies." In his testimony before the board, Bennett maintained that he had no expectation that the motion would be granted because it was a pro forma filing intended only to exhaust Kelley's state-court remedies before filing a petition to vacate Kelley's sentence in the state trial court. He did not send a copy of the motion to Kelley or his family, nor did he disclose his purported litigation strategy to them.

{¶ 11} Kelley's mother made two additional $500 payments to Bennett on April 6 and May 4, 2015. And we denied Bennett's motion for delayed appeal on April 29, 2015. The following week, Bennett wrote to Kelley and stated:

Unfortunately, the Ohio Supreme Court denied our request for a delayed appeal. This concludes my representation of you. However, your next legal procedure is a federal habeas petition. I will do [sic] same if your mother and/or family continues to make payments. The habeas petition must demonstrate that you experienced a constitutional deprivation.
Please write back as soon as possible.

Bennett received no response and made several unsuccessful attempts to contact Kelley's family. But he ceased all communications after receiving Kelley's grievance in August 2015.

{¶ 12} Kelley retained new counsel, who alleged that Bennett's ineffective assistance of counsel constituted good cause for the filing of Kelley's second motion for delayed appeal, but we denied that motion. The United States District Court for the Southern District of Ohio, Western Division, later found that Bennett's deficiencies in performance excused Kelley's failure to timely appeal his conviction to this court but nonetheless dismissed his habeas petition on other grounds.

{¶ 13} The board found that the above-described conduct violated Prof.Cond.R.

1.1 (requiring a lawyer to provide competent representation to a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the status of a matter), 1.5(d)(3) (prohibiting a lawyer from charging a fee denominated as "earned upon receipt," "nonrefundable," or in any similar terms 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), and 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The parties jointly requested that four other alleged violations be dismissed, and the board agreed.

{¶ 14} Based on the foregoing, we agree that Bennett's conduct violated Prof.Cond.R. 1.1, 1.4(a)(3), 1.5(d)(3), and 8.4(c) and hereby dismiss the remaining allegations of relator's complaint.

Sanction

{¶ 15} When imposing sanctions for attorney misconduct, we consider all relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

{¶ 16} The parties stipulated and the board found that the relevant aggravating factors include Bennett's prior indefinite suspension from the practice of law for conduct involving dishonesty, fraud, deceit, or misrepresentation, his commission of multiple offenses, and the fact that his misconduct involved a vulnerable criminal defendant. See Gov.Bar R. V(13)(1), (4), and (8).

{¶ 17} The board deemed Bennett's misrepresentations to be "a most serious offense" and noted that it had no way of knowing whether this court would have exercised jurisdiction over Kelley's direct appeal had it been timely filed. It also found that despite Bennett's arguments to the contrary, his misconduct caused harm to his client by depriving him of the opportunity to directly appeal his convictions and sentence, leaving him to retain new counsel and creating additional procedural hurdles in his quest for federal habeas relief.

{¶ 18} Moreover, the board could not reconcile Bennett's testimony regarding his litigation strategy with his actions. He testified that he intended to file a delayed appeal followed by a petition for postconviction relief on Kelley's behalf. Yet he received payments totaling $4,500, filed a single-page motion for delayed appeal with a one-page supporting affidavit, and then told his client that his representation was complete-without even mentioning the possibility of filing a petition for postconviction relief in state court.

{¶ 19} Mitigating factors include Bennett's cooperative attitude toward the disciplinary proceedings and strong evidence of his character and reputation from a significant number of lawyers and judges, though few of those letters suggest that their authors have specific knowledge of the misconduct alleged in this case. See Gov.Bar R. V(13)(C)(4) and (5). The board also attributed mitigating effect to Bennett's payment of $4,500 in full restitution to Kelley's family, see Gov.Bar R. V(13)(C)(3), the fact that his misconduct did not procedurally bar his client's federal habeas action, his sincere and contrite appearance during his hearing testimony, and his acceptance of responsibility for his misconduct.

{¶ 20} The board recommends that the appropriate sanction for Bennett's misconduct is a six-month suspension from the practice of law. In support of that sanction, the board cites six cases in which we have imposed one-year suspensions with six months stayed on conditions on attorneys who, like Bennett, made false or misleading statements to a court. See Disciplinary Counsel v. Schuman , 152 Ohio St.3d 47, 2017-Ohio-8800, 92 N.E.3d 850 ; Disciplinary Counsel v. Shaffer , 98 Ohio St.3d 342, 2003-Ohio-1008, 785 N.E.2d 429 ; Toledo Bar Assn. v. Miller , 132 Ohio St.3d 63, 2012-Ohio-1880, 969 N.E.2d 239 ; Disciplinary Counsel v. Rohrer , 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180 ; Toledo Bar Assn. v. DeMarco , 144 Ohio St.3d 248, 2015-Ohio-4549, 41 N.E.3d 1237 ; Warren Cty. Bar Assn. v. Vardiman , 146 Ohio St.3d 23, 2016-Ohio-352, 51 N.E.3d 587.

{¶ 21} While each of those attorneys engaged in conduct similar to Bennett's, we find that just one of them had prior discipline-for a brief attorney-registration suspension, Vardiman at ¶ 13 -and none of them had committed prior offenses involving dishonesty, fraud, deceit, or misrepresentation, as Bennett has.

{¶ 22} We have recognized that the primary purpose of a disciplinary sanction is not to punish the offender but to protect the public by demonstrating that this type of conduct will not be tolerated. See , e.g. , Schuman at ¶ 17. But we have also acknowledged:

If a prior attempt at discipline has been ineffective to provide the protection intended for the public, then such further safeguards should be imposed as will either tend to effect the reformation of the offender or remove him entirely from the practice. The discipline for a repeated offense may be much greater than would have been imposed were it a first offense, yet such greater discipline is not a meting out of further punishment for prior acts but is a determination of the attorney's fitness to practice.

In re Disbarment of Lieberman , 163 Ohio St. 35, 41, 125 N.E.2d 328 (1955) ; see also Disciplinary Counsel v. Dann , 134 Ohio St.3d 68, 2012-Ohio-5337, 979 N.E.2d 1263, ¶ 20.

{¶ 23} Here, Bennett has a prior indefinite suspension for engaging in dishonest conduct that also resulted in a felony conviction and a two-year prison term, and he has gone on to engage in additional dishonesty and misrepresentation just four years after being reinstated to the practice of law. Therefore, we conclude that this misconduct warrants a greater sanction than the six-month suspension recommended by the board or the one-year suspensions with six months stayed on conditions that we imposed in the cases relied upon by the board.

{¶ 24} Accordingly, Clyde Bennett II is suspended from the practice of law in Ohio for one year. Costs are taxed to Bennett.

Judgment accordingly.

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

Kennedy, French, and DeWine, JJ., dissent and would suspend respondent from the practice of law for six months.


text:
    The STATE EX REL. SIMPSON v. COOPER, Judge.
    No. 2018-0215
    Supreme Court of Ohio.
    Submitted May 8, 2018 Decided October 10, 2018
    Marcus Simpson, pro se.
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for appellee.
   Per Curiam.

{¶ 1} Appellant, Marcus Simpson, appeals the judgment of the First District Court of Appeals dismissing his petition for a writ of mandamus against appellee, Hamilton County Common Pleas Court Judge Ethna Cooper. We affirm the judgment of the court of appeals.

Background

{¶ 2} In 1984, Simpson was convicted in Hamilton County of one count of aggravated robbery and sentenced to 5 to 25 years in prison. The court of appeals affirmed. State v. Simpson , 1st Dist. Hamilton No. C-840420, 1985 WL 6728 (Apr. 3, 1985). We declined to accept Simpson's discretionary appeal.

{¶ 3} In November 2017, Simpson filed a petition for a writ of mandamus asking the First District Court of Appeals to compel Judge Cooper to vacate Simpson's aggravated-robbery conviction. Judge Cooper filed a motion to dismiss. In December 2017, the court of appeals granted the motion to dismiss on res judicata grounds.

Legal Analysis

{¶ 4} To be entitled to a writ of mandamus, Simpson must establish by clear and convincing evidence that (1) he has a clear legal right to the requested relief, (2) Judge Cooper has a clear legal duty to provide it, and (3) Simpson lacks an adequate remedy in the ordinary course of the law. State ex rel. Love v. O'Donnell , 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3.

{¶ 5} Simpson's mandamus claim challenges the credibility of the evidence on which his aggravated-robbery conviction is based. However, on direct appeal, Simpson challenged his conviction on insufficient-evidence and manifest-weight grounds. Simpson , 1985 WL 6728 at *1. Therefore, Simpson had-and has used-an adequate remedy in the ordinary course of the law and is not entitled to a writ of mandamus. Shoop v. State , 144 Ohio St.3d 374, 2015-Ohio-2068, 43 N.E.3d 432, ¶ 8 ("An appeal is generally considered an adequate remedy in the ordinary course of law sufficient to preclude a writ").

{¶ 6} Moreover, in a previous appeal challenging the dismissal of a prior mandamus action, we held that "res judicata bars Simpson's claims concerning insufficiency of the evidence supporting his conviction." State ex rel. Simpson v. Cooper , 120 Ohio St.3d 297, 2008-Ohio-6110, 898 N.E.2d 936, ¶ 7. And in Supreme Court case No. 2012-0501, Simpson filed an original action in mandamus in this court asserting similar claims. State ex rel. Simpson v. Cooper , 131 Ohio St.3d 1550, 2012-Ohio-2263, 967 N.E.2d 762 (granting Judge Cooper's motion to dismiss).

Motions

{¶ 7} Simpson has also filed a motion asking this court to declare Judge Cooper a frivolous and vexatious litigator, as well as a motion to appoint the Office of the Ohio Public Defender to represent him for purposes of this appeal.

{¶ 8} S.Ct.Prac.R. 4.03(B) states that "[i]f a party habitually, persistently, and without reasonable cause engages in frivolous conduct under division (A) of this rule, the Supreme Court may, sua sponte or on motion by a party, find the party to be a vexatious litigator." S.Ct.Prac.R. 4.03(A) defines an action as frivolous "if it is not reasonably well-grounded in fact or warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law."

{¶ 9} Simpson argues that we should declare Judge Cooper to be a vexatious litigator because she has not vacated his conviction on the grounds that "the alleged victim Mr. Brunkel did committed [sic] the crime of perjury initiating the felony offense which [Simpson] illegally and unlawfully stands convicted of." (Emphasis deleted.) Simpson's legal history demonstrates that he has instituted numerous civil actions collaterally challenging his conviction on these grounds. And Judge Cooper's role in these civil actions has been limited to either ruling on his various trial-court motions or defending herself when named as a party. Accordingly, we deny Simpson's motion.

{¶ 10} We deny Simpson's motion to appoint counsel as moot.

Judgment affirmed.

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

Fischer, J., not participating.


text:
    DISCIPLINARY COUNSEL v. TURNER.
    No. 2018-0540
    Supreme Court of Ohio.
    Submitted May 22, 2018 Decided October 18, 2018
    Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant Disciplinary Counsel, and Jennifer Bondurant, Assistant Disciplinary Counsel, for relator.
    Richard Chambers, Columbus, for respondent.
   Per Curiam.

{¶ 1} Respondent, Trent Reynard Turner, of Columbus, Ohio, Attorney Registration No. 0064524, was admitted to the practice of law in Ohio in 1995. In 2011, we suspended his license to practice law for one month based on his failure to register for the 2011-2013 biennium.

{¶ 2} In 2016, relator, disciplinary counsel, charged Turner with professional misconduct for neglecting two client matters, engaging in a sexual relationship with a client, and misusing his client trust account. The parties entered into stipulations of fact and misconduct but ultimately could not agree on a sanction. After a hearing, the Board of Professional Conduct found that Turner committed the charged misconduct and recommended that we suspend him for two years, with six months stayed, and impose several conditions on his reinstatement. Neither party has objected to the board's report and recommendation.

{¶ 3} For the reasons explained below, we adopt the board's findings of misconduct and recommended sanction.

Misconduct

Count one: the Jane Doe matters

{¶ 4} In January 2015, Jane Doe paid Turner a flat fee of $1,000 to file a motion for judicial release on behalf of Lamont Howard. In early March 2015, Doe called Turner three times inquiring about the status of the matter, but he failed to answer her phone calls. Instead, he sent her a text message stating that he was working on the motion. In April 2015, Doe attempted to contact Turner by telephone and text message, but he failed to answer her calls or respond to her messages-although at one point, he falsely told her that he had almost completed the motion. In May 2015, after six more unreturned phone calls, Doe left Turner a voicemail requesting a refund of the $1,000. Later that same day, Turner filed a motion for judicial release and supporting memorandum. Except for the signature block and contact information, Turner submitted the exact same documents that Howard's previous counsel had filed in 2013-which the court had already denied.

{¶ 5} Earlier in 2015, Doe had asked Turner to separately represent her in a pending civil matter in small-claims court. On May 19, 2015, Turner appeared on Doe's behalf at a hearing on the civil matter, and she paid him $300. Later that evening, Turner invited Doe to his home, and they had consensual sex. Over the next week, Turner sent Doe over 100 text messages, many of which were sexual in nature. By the end of the month, however, Turner and Doe began arguing and stopped communicating for a couple weeks.

{¶ 6} On June 11, 2015, the court entered a decision in Doe's civil matter, but Turner failed to advise her of the ruling. Doe thereafter made repeated attempts to contact Turner to inquire about both Howard's and her cases, but Turner failed to respond. On June 24, 2015, Doe sent Turner a text message seeking information about the matters. In response, Turner stated that Doe was "being so impatient" and that he would let her know when he had new information to share. Turner again failed to advise Doe that the court had already issued a decision in her case.

{¶ 7} On July 9, 2015, Doe confronted Turner about the fact that he had submitted the same judicial-release motion filed by Howard's former counsel and that he had failed to keep her updated about her civil case. Doe also requested a refund of the $1,000. In response, Turner falsely stated that he had a "meeting" scheduled with the judge in Howard's matter, and Turner offered to refund $500 to Doe. Turner, however, never refunded any money to Doe. In fact, he never communicated with her again and failed to inform both her and Howard when the court denied the motion for judicial release.

{¶ 8} Based on this conduct, the parties stipulated and the board found that Turner violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(3) and (4) (requiring a lawyer to keep the client reasonably informed about the status of a matter and to comply as soon as practicable with reasonable requests for information from the client), 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed prior to the client-lawyer relationship), 1.16(e) (requiring a lawyer to promptly refund any unearned fee upon the lawyer's withdrawal from employment), and 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The board also concluded that by copying the motion for judicial release and attempting to mislead his client into believing it was his own work, Turner engaged in dishonest conduct that was sufficiently egregious to warrant a separate violation of 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law). See Disciplinary Counsel v. Bricker , 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21. We agree with the board's findings of misconduct.

Count two: client-trust-account violations

{¶ 9} Turner stipulated that he not only failed to deposit Doe's $1,000 fee into his client trust account but also used his client trust account as a personal account, which resulted in the commingling of client and personal funds. Specifically, Turner did not separately maintain an operating or personal bank account. Therefore, he deposited client, business, and personal funds into his client trust account, and he routinely withdrew funds from the account to pay personal and business expenses. Turner also failed to maintain records for his client trust account and to perform reconciliations of the funds in the account.

{¶ 10} Based on this conduct, the board found that Turner violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold property of clients in an interest-bearing client trust account, separate from the lawyer's own property), 1.15(a)(2) through (5) (requiring a lawyer to maintain certain records regarding funds held in a client trust account and to perform and retain a monthly reconciliation of the account), 1.15(b) (permitting a lawyer to deposit his or her own funds in a client trust account for the sole purpose of paying or obtaining a waiver of bank service charges), and 1.15(c) (requiring a lawyer to deposit legal fees and expenses that have been paid in advance into a client trust account, to be withdrawn by the lawyer only as fees are earned or expenses incurred). We agree with the board's findings of misconduct.

Sanction

{¶ 11} When imposing sanctions for attorney misconduct, we consider all relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

Aggravating and mitigating factors

{¶ 12} As aggravating factors, the board found that Turner had had a dishonest and selfish motive, he had committed multiple offenses, and his misconduct had harmed his clients. See Gov.Bar. R. V(13)(B)(2), (4), and (8). In addition, Turner failed to make restitution to Doe. See Gov.Bar R. V(13)(B)(9).

{¶ 13} In mitigation, the board first found that-as stipulated by the parties-Turner has no prior discipline. But as noted above, we suspended Turner for one month in 2011 for failing to register as an attorney. "Although attorney-registration suspensions may not weigh heavily against an attorney when the prior discipline consists of only a brief registration suspension, '[a]n attorney's suspension for failure to comply with attorney-registration requirements is prior discipline and therefore is an aggravating factor.' " Toledo Bar Assn. v. Crosser , 147 Ohio St.3d 499, 2016-Ohio-8257, 67 N.E.3d 789, ¶ 8, quoting Disciplinary Counsel v. Anthony , 138 Ohio St.3d 129, 2013-Ohio-5502, 4 N.E.3d 1006, ¶ 11.

{¶ 14} The board's remaining two mitigating factors, however, are applicable: Turner had a cooperative attitude toward the disciplinary proceedings and he submitted positive character evidence. See Gov.Bar R. V(13)(C)(4) and (5).

{¶ 15} The board also noted that Turner has a history of abusing alcohol, that alcohol contributed to his misconduct, particularly in the Doe matters, and that Turner has attempted to engage with the Ohio Lawyers Assistance Program ("OLAP"). Turner, however, has not yet completed an approved treatment program. Indeed, he testified that he had failed to attend 90 consecutive days of Alcoholics-Anonymous ("AA") meetings as a condition to entering into an OLAP contract. Therefore, the board properly determined that it could not give any mitigating weight for a substance-abuse disorder. See Gov.Bar R. V(13)(C)(7). The board concluded-and we agree-that Turner's alcohol problem must be addressed before he is reinstated to the practice of law.

Applicable precedent

{¶ 16} The board recommends that we suspend Turner from the practice of law for two years, with six months stayed, and impose conditions on his reinstatement. To support its recommendation, the board relies on Akron Bar Assn. v. Bednarski , 148 Ohio St.3d 615, 2017-Ohio-522, 71 N.E.3d 1093.

{¶ 17} In Bednarski , an attorney neglected a client's criminal appeal, resulting in dismissal of the appeal and the client's commencing his sentence earlier than expected. The attorney also failed to maintain a client trust account and did not properly notify clients that she lacked malpractice insurance. Aggravating factors included her failure to cooperate in the disciplinary process and her failure to make restitution to her client. In mitigation, the attorney had no prior discipline and lacked a dishonest or selfish motive. Based in part on the attorney's untreated alcohol problem and her inability to sufficiently handle the financial and management aspects of her law practice, we suspended her for two years, with the final six months stayed on several conditions, including that she undergo an OLAP assessment, make restitution to her former client, and complete continuing-legal-education ("CLE") hours on law-office management. See id. at ¶ 18-21.

{¶ 18} We agree with the board that the nature of Turner's misconduct and the balance of aggravating and mitigating factors are comparable to the circumstances in Bednarski . And similar to the sanction in Bednarski , we must impose conditions on Turner's reinstatement that are tailored to address the causes of his misconduct.

{¶ 19} The board's recommended sanction is also consistent with our precedent involving attorneys who engaged in sexual activity with clients. "A lawyer's sexual involvement with a client has warranted a range of disciplinary measures depending on the relative impropriety of the situation * * *." Cleveland Bar Assn. v. Kodish , 110 Ohio St.3d 162, 2006-Ohio-4090, 852 N.E.2d 160, ¶ 66.

We have publicly reprimanded attorneys who have commenced consensual sexual relationships with their clients that have not compromised the clients' interests. See, e.g. , Disciplinary Counsel v. Engler , 110 Ohio St.3d 138, 2006-Ohio-3824, 851 N.E.2d 502 (publicly reprimanding an attorney who had two consensual sexual encounters with a client while representing her in a divorce). On the other end of the spectrum, we have disbarred an attorney who solicited sex from clients in exchange for a reduced legal fee, made inappropriate sexual comments to clients, touched them in a sexual manner, exposed himself to a client, and lied repeatedly during the disciplinary process. Disciplinary Counsel v. Sturgeon , 111 Ohio St.3d 285, 2006-Ohio-5708, 855 N.E.2d 1221.
In between those two extremes, we typically impose term suspensions with all or part of the suspension stayed, depending on the severity of the misconduct and the applicable aggravating and mitigating factors.

Cleveland Metro. Bar Assn. v. Paris , 148 Ohio St.3d 55, 2016-Ohio-5581, 68 N.E.3d 775, ¶ 18-19. See also Disciplinary Counsel v. Hines , 133 Ohio St.3d 166, 2012-Ohio-3929, 977 N.E.2d 575 (suspending an attorney for six months, conditionally stayed, for engaging in a sexual relationship with a vulnerable domestic-relations client and upon their breakup, leaving her without legal assistance at a critical juncture in her case); Cleveland Metro. Bar Assn. v. Sleibi , 144 Ohio St.3d 257, 2015-Ohio-2724, 42 N.E.3d 699 (suspending an attorney for two years, with six months conditionally stayed, for engaging in sexual activity with four clients and sending sexually explicit, lewd messages to three of the clients).

{¶ 20} Here, Turner engaged in a consensual but improper sexual encounter with Doe and committed other serious misconduct, including plagiarizing a court filing. But considering his cooperative approach to the disciplinary investigation and the reinstatement conditions suggested by the board, we conclude that the board's recommended sanction adequately protects the public and gives Turner the opportunity to practice law again if he pursues treatment and avoids additional misconduct.

Conclusion

{¶ 21} For the reasons explained above, we adopt the board's recommended sanction. Trent Reynard Turner is hereby suspended from the practice of law for two years, with the final six months stayed on the condition that he commit no further misconduct. If Turner fails to comply with the condition of the stay, the stay will be lifted and he will serve the full two-year suspension. As conditions for reinstatement, Turner must demonstrate that he has (1) attended 90 consecutive days of AA meetings to the satisfaction of OLAP, (2) entered into an OLAP contract and complied with all contract terms and treatment recommendations, (3) completed 12 hours of CLE related to law-office management, in addition to the requirements in Gov.Bar R. X, and (4) made restitution in the amount of $1,000 to Jane Doe or reimbursed the Lawyer's Fund for Client Protection for any amount awarded to Doe. Upon reinstatement, Turner must submit to a two-year period of monitored probation in accordance with Gov.Bar R. V(21). Costs are taxed to Turner.

Judgment accordingly.

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

Kennedy, J., concurs in judgment only.

      Upon the joint request of the parties, the board restricted public access to Doe's identity to protect her individual privacy rights and interests. See Sup.R. 45(E).


text:
    OHIO STATE BAR ASSOCIATION v. ROSS.
    No. 2018-0782
    Supreme Court of Ohio.
    Submitted June 26, 2018 Decided October 23, 2018
    Mac Murray & Shuster, L.L.P., and Patrick W. Skilliter ; New Albany, and Jean Desiree Blankenship, Bar Counsel, for relator.
    Thomas J. Novack, Pickerington, for respondent.
   Per Curiam.

{¶ 1} Pursuant to Gov.Bar R. VII(5b), the Board on the Unauthorized Practice of Law has recommended that we approve a consent decree proposed by relator, Ohio State Bar Association ("OSBA"), and respondent, John Ross. The parties have waived notice and hearing pursuant to Gov.Bar R. VII(5b)(B)(1) and VII(7)(H). We accept the board's recommendation and approve the proposed consent decree that was submitted by the parties as follows:

I. Agreed Facts 1. OSBA is a Bar Association whose members include attorneys-at-law admitted to the practice of law in Ohio and who practice throughout the State of Ohio. OSBA, through its Unauthorized Practice of Law Committee is authorized by Gov.Bar R. VII to file a Complaint with the Board regarding the unauthorized practice of law. 2. Respondent is an individual residing and transact[ing] business in the State of Ohio. At all relevant times hereto, Respondent has been engaged in business as a landlord of residential real estate in and around Columbus, Ohio.
3. Respondent is not, nor has he ever been, an attorney admitted to practice, granted active status, or certified to practice law in the State of Ohio pursuant to Rules I, II, III, IV, VI, IX, or XI of the Rules [for] the Government of the Bar of Ohio.
4. At all relevant times hereto, Respondent drafted, signed, and litigated in a representational capacity civil actions for eviction and related claims for monetary damages against tenants and/or former tenants residing in property owned by third-parties including trusts, limited liability companies, and individuals.
5. As shown in Exhibit A attached to Relator's Complaint, from January 1, 2013, to the present, Respondent signed and filed 171 complaints, each of which constitutes a separate occurrence of the unauthorized practice of law.
6. Upon learning of the alleged unauthorized practice of law by Respondent, OSBA sent him a letter notifying him of the allegation. Respondent has stopped engaging in the unauthorized practice of law in May of 2015.
II. Applicable Law
7. R.C. 4705.01 provides: "No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which the person is not a party concerned * * * unless the person has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules."
8. The unauthorized practice of law is the rendering of legal services for another by any person not admitted to practice law in Ohio. Gov.Bar R. VII(2)(A).
9. Non-attorneys cannot file complaints for forcible entry and detainer and recovery of unpaid rent or other money damages on behalf of a property owner. Cleveland Bar Assn. v. Picklo , 96 Ohio St.3d 195, 2002-Ohio-3995, 772 N.E.2d 1187.
10. Non-attorneys, including trustees, cannot engage in legal representation of trusts or other separate, legal entities. Cleveland Bar Assn. v. Woodman , 98 Ohio St.3d 436, 2003-Ohio-1634, 786 N.E.2d 865 ; Williams v. Global Constr. Co. [Ltd.] , 26 Ohio App.3d 119, 498 N.E.2d 500 (10th Dist.1985) ; Bank of New York v. Miller , 185 Ohio App.3d 163, 2009-Ohio-6117, 923 N.E.2d 651 (5th Dist.) ; and Scott v. H.T.M. Trust , 3d Dist. Putnam No. 12-90-04, 1991 Ohio App. LEXIS 2246, 1991 WL 82878 (May 9, 1991).
11. Similarly, limited liability companies exist as separate legal entities, R.C. 1705.01(D)(2)(e), and may be represented in court only by a licensed attorney. Disciplinary Counsel v. Kafele , 108 Ohio St.3d 283, 2006-Ohio-904, 843 N.E.2d 169.
III. Joint Recommendation
12. OSBA and Respondent[ ] hereby agree that the conduct described in paragraphs four and five herein-specifically, drafting and signing complaints for forcible entry and detainer and money damages on behalf of a property owner and representing that property owner in related legal proceedings-constitutes the unauthorized practice of law. Cleveland Bar Assn. v. Picklo , 96 Ohio St.3d 195, 2002-Ohio-3995, 772 N.E.2d 1187 ; Batt v. Nairebout , 6th Dist. Lucas No. L-03-1001, 2003-Ohio-3421, 2003 WL 21489414. See also Ohio State Bar Assn. v. Miller , 138 Ohio St.3d 203, 2014-Ohio-515, 5 N.E.3d 619 (non-attorney drafting pleadings, contracts, and other legal documents and litigating cases on behalf of a third-party).
13. Respondent John Ross has ceased the conduct described in paragraphs four and five herein and he shall not engage in such conduct in the future, and [agrees] that he is hereby permanently enjoined from engaging in such conduct in the future and from otherwise engaging in the unauthorized practice of law in the State of Ohio.
14. Regarding any monetary claims by Mr. Ross in the actions identified in Exhibit A attached to the Complaint, the parties hereby agree as follows: (1) Mr. Ross is permanently enjoined from collecting any money judgments in those actions; and (2) within sixty (60) days of the entry of final judgment in this matter, Mr. Ross will file the necessary motion(s) and/or notice(s) to vacate and dismiss all non-dormant money judgment[s] obtained in any of the actions identified in Exhibit A attached to the Complaint.
15. The parties agree that Mr. Ross will pay a civil penalty of $2,500.00 within thirty days of the entry of final judgment in this matter.
16. The factors of Gov.Bar R. VII(8)(B) apply as follows:
(1) The degree of cooperation provided by the respondent in the investigation: Respondent has cooperated fully in both the pre-filing and post-filing investigation of this matter. Respondent promptly ceased all conduct that allegedly constituted the unauthorized practice of law upon receiving notice from OSBA in early 2015.
(2) The number of occasions that unauthorized practice of law was committed: from January 1, 2013, through the present, Respondent committed at least 171 violations.
(3) The flagrancy of the violation: Respondent had significant beneficial or legal interests in the trusts and almost all of the limited liability companies. With respect to the remainder of the properties, Respondent, in his capacity as a realtor, acted as a property manager with respect to the remainder of the properties. Respondent believed that he was acting within his legal rights when filing these evictions. Respondent and his family members are the trustees of most of the trusts involved in this action. Respondent did not charge a fee in connection with his violations. Respondent did not advertise, offer to the public, or otherwise hold himself out as an attorney.
(4) Harm to third parties arising from the offense: there was no known harm to the entities that owned the real estate in question. Respondent owns and manages those companies. Most of the defendant-tenants in those cases were evicted. However, several of the money claims in those cases were dismissed for failure to prosecute, upon agreement of the parties, or by the Respondent. In cases where a money judgment was obtained, Respondent has not collected on any judgments. Respondent will not take further action to collect on any such judgment.
(5) Any other relevant factors: none.
17. The parties accordingly agree that a civil penalty of $2,500 should be imposed and, because no costs have been incurred by either party, costs should not be assessed on either party.

(Boldface deleted and italics sic.)

So ordered.

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

Kennedy, J., concurs in judgment only.

      Any motion(s) and/or notice(s) filed by Ross requesting a court to vacate and dismiss all nondormant money judgments must be filed through counsel.