source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The STATE EX REL. EMHOFF v. MEDINA COUNTY BOARD OF ELECTIONS et al.
    The State ex rel. Lowery v. Medina County Board of Elections et al.
    Nos. 2018-0436 2018-0437
    Supreme Court of Ohio.
    Submitted April 19, 2018 Decided April 27, 2018
    Walker & Jocke Co., L.P.A., and Patricia A. Walker, Medina, for relator Mary Emhoff.
    Patricia F. Lowery, Medina, for relator Allen Lowery.
    Heidi R. Carroll, respondent, pro se.
    S. Forrest Thompson, Medina County Prosecuting Attorney, and Michael K. Lyons and Tom J. Karris, Assistant Prosecuting Attorneys, for respondents Medina County Board of Elections and ts members.
    Michael DeWine, Attorney General, and Sarah E. Pierce and Andrew Fraser, Assistant Attorneys General, for respondent Secretary of State Jon Husted.
   Per Curiam.

{¶ 1} To be eligible to serve as a judge on a court of common pleas, a person must satisfy certain requirements, among them that he or she "has, for a total of at least six years preceding the judge's appointment or commencement of the judge's term, engaged in the practice of law in this state." R.C. 2301.01. In these consolidated expedited election cases, relators, Allen Lowery and Mary E. Emhoff, seek writs of mandamus and/or prohibition to prevent respondent Heidi R. Carroll from appearing on the May 8, 2018 ballot as a candidate for the Republican Party nomination for judge in the Medina County Common Pleas Court, Domestic Relations Division. The question these cases present is whether respondent Secretary of State Jon Husted abused his discretion or acted in clear disregard of applicable law when he determined that Carroll has the requisite 72 months of legal-practice experience to qualify for a seat on the common-pleas-court bench. For the reasons set forth below, we hold that he did not abuse his discretion, and thus, we deny the writs of prohibition. We dismiss the claims for writs of mandamus for lack of jurisdiction.

I. Background

{¶ 2} Heidi Carroll was admitted to the Ohio bar in 2002. On April 7, 2017, she filed a Declaration of Candidacy Petition with respondent Medina County Board of Elections seeking to appear on the May 8, 2018 primary ballot as a Republican judicial candidate for the Medina County Common Pleas Court, Domestic Relations Division.

{¶ 3} On February 8, 2018, the board officially certified Carroll's petition. On February 13, the board received three separate protests to Carroll's candidacy, one from Lowery, one from Emhoff, and one from Mary L. Guilfoyle, alleging that Carroll lacked the years-of-practice experience required to be a judicial candidate. The protests relied primarily on Carroll's resume, which showed the following professional experience after her graduation from law school in 2001:

• September 2001 to June 2003: Medina County School District, substitute teacher;
• September 2003 to December 2007: Cleveland Clinic Foundation, senior compliance specialist;
• December 2007 to December 2008: Reminger Co., L.P.A., associate attorney;
• June 2010 to November 2010: MetroHealth, associate director of health-information management;
• May 2012 to present: University Hospitals, clinical-research regulatory specialist III.

The protesters accepted Carroll's one year at the Reminger law firm as experience in the practice of law. They rejected Carroll's time with the Cleveland Clinic as the practice of law because, they alleged, the position did not require a law degree or law license and her primary duties were "data collection, auditing and reporting," not " 'furnishing legal counsel, drafting legal documents and pleadings, interpreting and giving advice regarding the law, or preparing, trying, or presenting cases before courts, tribunals, executive departments, administrative bureaus, or agencies' " Protesters' letters, quoting Gov.Bar R. I(9)(B)(2). However, they noted that she appeared as attorney of record in three Medina County domestic-relations cases between June 2015 and May 2016. Even assuming that that activity should count, they alleged that Carroll was well short of the six-year requirement.

{¶ 4} Carroll filed a written response to the three protest letters with the board on February 23, 2018. In her response, Carroll asserted that she had been engaged in the practice of law "for at least eight years and five months" and would exceed nine years by the start of her judicial term on January 1, 2019. She identified the following work experience:

• Cleveland Clinic Foundation, senior compliance specialist (four years and four months)
• Reminger Co., L.P.A., associate attorney (one year)
• Akron General Hospital, corporate compliance specialist (three months)
• OhioGuidestone, director of corporate compliance/chief privacy officer, (one year and six months and counting)
• pro bono attorney for Legal Aid (one year and two months and counting) (overlapping with her time at OhioGuidestone)

Carroll's response included an affidavit from John E. Steiner Jr., her supervisor at the Cleveland Clinic, attesting that she had "actively engaged in the practice of law" at the Cleveland Clinic and describing her work responsibilities.

{¶ 5} On February 21, counsel for the protestors served a subpoena on the Cleveland Clinic, demanding:

1. a job description of the Senior Compliance Specialist position during any of the time September 2003 to December 2007 * * *;
2. an authentication of the attached job description;
3. a current job description for a similar job as to the Senior Compliance Specialist job; or
4. a copy of a policy of the Cleveland Clinic about who may engage in the practice of law for the Cleveland Clinic Foundation.

{¶ 6} On February 26, the protesters filed a joint reply in support of their protests. Among other points, they noted that Carroll's own description of her job duties at the Cleveland Clinic did not include the tasks identified by Steiner as the duties she performed that constituted the practice of law. The protesters formally requested that the board continue its hearing because the Cleveland Clinic had not yet responded to their subpoena and requested that if the Cleveland Clinic did not respond to the protesters' subpoena, the board issue a subpoena to the Cleveland Clinic for records concerning Carroll's employment and require an attorney from the Cleveland Clinic's Office of General Counsel to appear and testify at the hearing.

{¶ 7} Also on February 26, the board held an evidentiary hearing on the protests. The transcript indicates that the protestors had presented a request for a subpoena to be issued to OhioGuidestone and that the board declined to issue the subpoena. The protestors again requested a continuance, which was effectively overruled because the board went ahead with the hearing.

{¶ 8} At the close of the testimony, a motion was made and seconded that the board find that Carroll did have the requisite six years of experience to appear on the ballot. Board members Larry Cray and Sharon Ray voted in favor of the motion. Board members John Welker and Pam Miller voted against the motion. Confronted with a tie vote, the board submitted the matter to Husted to break the tie. Board members Miller and Welker submitted a letter defending their conclusion that Carroll is not qualified for the position, and members Ray and Cray submitted a letter defending their conclusion that she is.

{¶ 9} In a letter dated March 14, 2018, Husted broke the tie in favor of placing Carroll's name on the ballot. Husted concluded that her four years and four months at the Cleveland Clinic did constitute the practice of law, based on Carroll's testimony and on the description of her work responsibilities set forth in Steiner's affidavit. He also found that Carroll had been an associate at a law firm for at least eight months beginning in December 2007 and that starting in 2015, she represented clients on a pro bono basis for at least 14 months. In conclusion, Husted wrote, "[t]he four years and four months Ms. Carroll spent at the Cleveland Clinic Foundation, coupled with her prior legal practice of 22 months amounts to a total of 74 months (i.e., six years two months) of active engagement in the practice of law." (Footnote deleted.) In a footnote, Husted noted that the actual total might be larger, but that because she exceeded the threshold based on those three jobs, it was unnecessary to consider other facets of her work history. He therefore broke the tie in favor of the motion to certify her name to the May 8 ballot as a candidate for the Republican nomination to the Medina County Common Pleas Court, Domestic Relations Division.

II. Procedural History

{¶ 10} On March 22, Emhoff filed a complaint in this court for writs of mandamus and/or prohibition against Husted, the board, its individual members (Cray, Welker, Ray, and Miller), and Carroll (case No. 2018-0436). Later that day, Lowery filed a second complaint for writs of mandamus and/or prohibition, naming the same respondents with the exception of Carroll (case No. 2018-0437). Pursuant to S.Ct.Prac.R. 12.08, the cases were automatically expedited because they were filed within 90 days of the May 8 election.

{¶ 11} On March 30, 2018, Carroll filed a motion for leave to intervene as a respondent in case No. 2018-0437. We denied the motion, but sua sponte ordered the two cases consolidated. 152 Ohio St.3d 1431, 2018-Ohio-1271, 94 N.E.3d 577. The cases are now fully briefed.

III. Legal Analysis

A. Mandamus and prohibition

{¶ 12} To be entitled to a writ of mandamus, a party 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 respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. If the allegations of a complaint indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, then the complaint does not state a claim in mandamus and must be dismissed for lack of jurisdiction. State ex rel. Grendell v. Davidson , 86 Ohio St.3d 629, 634, 716 N.E.2d 704 (1999).

{¶ 13} Mandamus is not the appropriate method for challenging a decision of the secretary of state or a board of elections to place a candidate on the ballot. Whitman v. Hamilton Cty. Bd. of Elections , 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 8-10 (dismissing mandamus claim for lack of jurisdiction, finding that the relator's "mandamus claim [was] an ill-disguised request for prohibitory injunctive relief: to prevent Nelson's candidacy at the November 5, 2002 general election"). Rather, prohibition is the appropriate remedy for these circumstances. Id. at ¶ 11. We therefore dismiss Lowery's and Emhoff's claims for writs of mandamus for lack of jurisdiction.

{¶ 14} With respect to the claims sounding in prohibition, when we review the decision of a county board of elections in a prohibition action, our standard is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. Id. When a board of elections arrives at a tie vote, the matter must be submitted to the secretary of state to break the tie and decide the question. R.C. 3501.11(X). The decision of the secretary "shall be final." Id. However, as with a decision by a board of elections, the secretary's decision is subject to review in an extraordinary action "to determine whether the Secretary of State engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions." State ex rel. Herman v. Klopfleisch , 72 Ohio St.3d 581, 583, 651 N.E.2d 995 (1995).

B. Allegations of bias

{¶ 15} Patricia Pietrasz is an employee of the Medina County Board of Elections. Pietrasz also circulated one of Carroll's candidacy petitions. Husted's permanent directive, issued on August 8, 2017, states that employees of the boards of elections shall not "[c]irculat[e] a petition for any candidate * * * when that employee's regular or intermittent duties involve the processing of the petitions in question, including but not limited to the determination of the sufficiency and validity of the petition in question." Directive 2017-11, Section 1.02(C)(5)(c)(iii)(02), available at https://www.sos.state.oh.us/globalassets/elections/directives/2017/dir2017-11_eom_ch_02.pdf (accessed Apr. 24, 2018). Lowery seeks to invalidate the board's tie vote due to Pietrasz's alleged violation of this directive.

{¶ 16} However, Lowery waived this matter by failing to raise it in his protest. An issue that is not raised administratively cannot be raised in a subsequent writ action. State ex rel. Quarto Mining Co. v. Foreman , 79 Ohio St.3d 78, 81-82, 679 N.E.2d 706 (1997). This rule applies to proceedings before a county board of elections. See State ex rel. Holwadel v. Hamilton Cty. Bd. of Elections , 144 Ohio St.3d 579, 2015-Ohio-5306, 45 N.E.3d 994, ¶ 47 ; see also State ex rel. Tam O'Shanter Co. v. Stark Cty. Bd. of Elections , 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 11 (holding that evidence that was not presented to a board of elections is not relevant to whether the board abused its discretion or clearly disregarded applicable law).

{¶ 17} Alternatively, Lowery asserts that Larry Cray, one of the board members who voted in favor of certifying Carroll's candidacy to the ballot, had undisclosed conflicts of interest. In his merit brief, Lowery bases the allegation on the fact that Cray serves on the Republican Party Executive Committee with Pietrasz and the fact that Cray is Facebook friends with Carroll. But in his reply brief, he adds a new allegation: Cray did not disclose that he had signed one of Carroll's petitions. Attached to the reply brief is a copy of a part-petition indicating that the signers certify that Carroll "is, in [the signers'] opinion, well qualified to perform the duties of the office or position to which [she] desires to be elected." The third signature on the first page is Cray's. Based on these facts, Lowery asserts that the court should vacate Cray's vote and enter a decision on the protest based on the three remaining votes.

{¶ 18} Once again, however, Lowery has waived the issue by failing to raise it at the earliest opportunity, that being before the board itself.

C. Carroll's experience in the practice of law

{¶ 19} Whether a judicial candidate was engaged in the practice of law is a mixed question of law and fact. A board of elections has the right to determine what "the practice of law" means as a statutory qualification for judge. State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections , 70 Ohio St.3d 413, 415, 639 N.E.2d 78 (1994). However, that determination is subject to our review in accordance with Article IV, Section 2(B)(1)(g) of the Ohio Constitution, which confers "exclusive jurisdiction over all matters related to the practice of law" upon this court. Disciplinary Counsel v. Alexicole, Inc. , 105 Ohio St.3d 52, 2004-Ohio-6901, 822 N.E.2d 348, ¶ 8 ; see also Cleveland Bar Assn. v. CompManagement Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 39 ("This court has exclusive power to regulate, control, and define the practice of law in Ohio").

{¶ 20} In his decision letter, Husted expressly cited Gov.Bar R. I(9)(B) as giving "persuasive guidance" for determining the time period in which Carroll had engaged in the practice of law. Indeed, in a recent decision involving a practice-of-law requirement in the Westlake City Charter, the lead opinion looked specifically to the definition of "the practice of law" in Gov.Bar R. I(9)(B). State ex rel. Rocco v. Cuyahoga Cty. Bd. of Elections , 151 Ohio St.3d 306, 2017-Ohio-4466, 88 N.E.3d 924, ¶ 19 (lead opinion).

{¶ 21} Gov.Bar R. I(9)(B) provides that the "practice of law," for purposes of admitting an applicant to practice law in Ohio without examination, includes:

(1) Private practice as a sole practitioner or for a law firm, legal services office, legal clinic, or similar entity, provided such practice was performed in a jurisdiction in which the applicant was admitted * * *.
(2) Practice as an attorney for a corporation, * * * provided such practice was performed in a jurisdiction in which the applicant was admitted, * * * and involved the primary duties of furnishing legal counsel, drafting legal documents and pleadings, interpreting and giving advice regarding the law, or preparing, trying, or presenting cases before courts, tribunals, executive departments, administrative bureaus, or agencies.

The standard articulated in Gov.Bar R. I(9)(B) coincides with our statements in prior ballot-access cases involving practice-of-law requirements:

"The practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law."

(Emphasis added.) State ex rel. Devine v. Schwarzwalder , 165 Ohio St. 447, 453, 136 N.E.2d 47 (1956), quoting Land Title Abstract & Trust Co. v. Dworken , 129 Ohio St. 23, 193 N.E. 650 (1934), paragraph one of the syllabus. These are the same parameters we use to identify conduct by nonattorneys that constitutes the unauthorized practice of law. See Disciplinary Counsel v. Harris , 137 Ohio St.3d 1, 2013-Ohio-4026, 996 N.E.2d 921, ¶ 7, citing Cleveland Bar Assn v. CompManagement, Inc. , 111 Ohio St.3d 444, 2006-Ohio-6108, 857 N.E.2d 95, ¶ 22.

{¶ 22} The critical inquiry is whether a particular task or activity " 'require[s] legal analysis.' " Miami Cty. Bar.Assn v. Wyandt & Silvers, Inc. , 107 Ohio St.3d 259, 2005-Ohio-6430, 838 N.E.2d 655, ¶ 12, quoting Columbus Bar Assn. v. Verne , 99 Ohio St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, ¶ 5. Filling in a preprinted form contract for the purchase of real property is a purely clerical service that does not require "the exercise of legal skill" and may therefore be performed by nonattorneys. Gustafson v. V.C. Taylor & Sons, Inc. , 138 Ohio St. 392, 397, 35 N.E.2d 435 (1941). However, a certified public accountant cannot advise clients regarding how best to structure their business, because those clients "need to know the legal differences between and formalities of available structures and then be advised according to their best interests, taking into account personal and practical concerns, not just tax consequences." Verne at ¶ 5 ; see also Disciplinary Counsel v. Robson , 116 Ohio St.3d 318, 2007-Ohio-6460, 878 N.E.2d 1042, ¶ 10 (holding that the respondent engaged in the unauthorized practice of law by advising another person in corporate-structuring strategies).

{¶ 23} By relying on the standards we have articulated, and specifically, on Gov.Bar R. I(9)(B), Husted employed the correct legal framework in making his decision. What remains for our review is whether the record supports his factual conclusions or whether he abused his discretion in reaching the conclusions he did. In making our determination, we adhere to the well-settled principle that a legally sound decision based on substantial but conflicting evidence cannot be an abuse of discretion. State ex rel. Mann v. Delaware Cty. Bd. of Elections , 143 Ohio St.3d 45, 2015-Ohio-718, 34 N.E.3d 94, ¶ 16.

{¶ 24} While leaving room for the possibility that other items in her background would qualify as practicing law, Husted concluded that Carroll satisfied the 72-month requirement by totaling her experience in three venues: the Reminger law firm, the Cleveland Clinic Foundation, and Legal Aid.

1. Carroll's employment at the Reminger law firm

{¶ 25} Carroll testified that she began to work at the Reminger law firm in December 2007. Between September and December 2008, she was on maternity leave, and at the end of her leave, she did not return to the firm. Based on this testimony, Husted concluded that she had engaged in the practice of law "for a period of at least eight (8) months."

{¶ 26} In their complaints, Emhoff and Lowery both concede that Carroll's employment with the Reminger law firm constitutes eight months of practicing law. Husted's conclusion that she is entitled to credit of at least eight months for this work has therefore not been challenged.

2. Carroll's employment at the Cleveland Clinic Foundation

{¶ 27} The heart of this case is Husted's decision that Carroll's work at the Cleveland Clinic Foundation constituted the practice of law, because if her time at the Cleveland Clinic is not included, then the total of all her other alleged legal-practice experiences falls short of the required 72 months. {¶ 28} At the protest hearing, Carroll testified: "I provided legal advice while at the Cleveland Clinic. I analyzed and provided regulatory advice at the Cleveland Clinic." She worked for the Corporate Compliance Department, and in that position, she "had to be able to say, based on [her] interpretation of the law, [whether particular situations needed] to be reported to the government entities." And she testified that the Cleveland Clinic paid for her continuing-legal-education courses and her biennial attorney-registration fees "because it was recognized that [her] legal degree was important at the Cleveland Clinic."

{¶ 29} John Steiner, her supervisor at the Cleveland Clinic through 2006, did not testify. But in his affidavit, he attested:

In her position as a Compliance Specialist, and later as a Senior Compliance Specialist for the Cleveland Clinic from September 2003 to December 2007, Ms. Carroll actively engaged in the practice of law by:
a. providing legal opinions to the internal customers, through her development and review of policies and procedures to ensure that they met the necessary legal and regulatory requirements;
b. advising Clinic employees about legal and regulatory issues related to vendors, projects, and sales and marketing;
c. advising clients on complex reimbursement issues arising under Medicare and Medicaid Services (CMS), and Medicare intermediaries and carriers;
d. providing legal advice and guidance on the implementation of the Compliance Plan, accreditation standards, and Institutional Review Board;
e. providing advice and counsel on gap analysis and documentation that the processes implemented are compliant with rules and regulations; and
f. conducting numerous legal training sessions to Clinic employees on federal and state regulatory law topics such as HIPAA, the Federal Food and Drug Regulations (FDA), CMS regulations and the Federal and State False Claims Act, and/or Anti-kickback statute.

In addition, Steiner cited two legal articles coauthored by Carroll while he was her supervisor at the Cleveland Clinic.

{¶ 30} Carroll's testimony and Steiner's affidavit establish that she was engaged in the practice of law. It is clear from Carroll's testimony quoted above that while working for the Cleveland Clinic, Carroll provided legal advice based on her analysis of the law, which is the hallmark of practicing law, Verne , 99 Ohio St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, at ¶ 5.

{¶ 31} In her merit brief, Emhoff lists 14 facts that she claims support the conclusion that Carroll was not engaged in the practice of law when she worked as a compliance specialist for the Cleveland Clinic. Some of these facts are of dubious relevance. There is, for example, no requirement that a job title contain the word "attorney" in order for the job holder to be engaged in the practice of law, nor must the job holder be employed in or report to the employer's law department. And it is not surprising that Carroll did not maintain professional-malpractice insurance, considering that she provided legal advice primarily, if not exclusively, to other employees at the large organization for which she worked.

{¶ 32} Other facts cited by Emhoff relate to the weight of the evidence. For example, her allegation that Carroll's primary duties were those set forth in the Cleveland Clinic's description of the job, in Carroll's resume, or on her Facebook page is wholly based on Emhoff's subjective view as to which evidence is most credible. It is not the province of this court to reweigh the evidence.

{¶ 33} However, Emhoff and Lowery present one argument as to why Husted and/or the board erred as a matter of law, and it relates to the board's and Husted's consideration of Steiner's affidavit. Emhoff and Lowery argue that it was error for the board and Husted to consider the affidavit because it was not admitted into evidence at the protest hearing. And as a companion to this argument, they assert that the board erred in failing to grant their request that it continue the hearing and issue a subpoena to the Cleveland Clinic. These omissions, Lowery suggests, violated the board's duty to "maintain the regularity of the proceedings * * * and afford due process" to all concerned.

{¶ 34} As a preliminary matter, we note that the challenge to Husted's reliance on Steiner's affidavit is moot because even without the affidavit, Carroll's testimony was sufficient to support the secretary's decision. And we further note that it is unclear from the record which entity Lowery and Emhoff actually asked the board to subpoena. The hearing transcript reveals that their counsel asked the board to issue a subpoena to OhioGuidestone, not to the Cleveland Clinic. The only time they asked the board to issue a subpoena to the Cleveland Clinic was on the third page of their letter in reply to Carroll's response to their protest letters, and that reply letter was submitted the same day as the hearing. Given that the protesters did not renew this request at the hearing itself, we cannot say that the board abused its discretion by failing to grant a continuance and issue the subpoena.

{¶ 35} Moreover, Lowery's claim of a due-process violation based on the consideration of Steiner's affidavit, the denial of the protesters' continuance request, and the failure of the board to subpoena the Cleveland Clinic has no merit. As Husted notes in his merit brief, the first requirement for a procedural-due-process claim is an allegation that one has a right or interest that is entitled to due-process protection. See, e.g., Ludt v. Youngstown , 7th Dist. Mahoning No. 15 MA 0084, 2016-Ohio-8553, 2016 WL 7493597, ¶ 21, 24 (holding that a trial court should have granted summary judgment in favor of the defendants on a procedural-due-process claim, in part because the plaintiff had "made no claim or asserted any facts that he had a right or interest that was entitled to due process"). Lowery has not identified a constitutionally protected interest that was compromised.

{¶ 36} R.C. 3513.05 does not mandate specific procedures or formalities that a board of elections must follow in hearing a protest. Lowery and Emhoff cite no authority for the proposition that a board of elections (or the secretary) may not consider documents attached to a protest letter or a letter in response to a protest unless those documents are formally moved into evidence at the hearing. And the determination whether to grant a continuance is a matter within the discretion of the tribunal, see Harmon v. Baldwin , 107 Ohio St.3d 232, 2005-Ohio-6264, 837 N.E.2d 1196, ¶ 22-23, and as discussed above, Lowery and Emhoff have not established that the board abused its discretion. We therefore hold that there was no due-process violation.

{¶ 37} Based on the foregoing, we hold that Husted did not abuse his discretion in determining that Carroll's work for the Cleveland Clinic qualified as the practice of law. The final question, then, concerns Husted's determination of the length of time that Carroll worked for the Cleveland Clinic. In her reply brief, Emhoff asserts that Carroll worked at the Cleveland Clinic for only 50 months and 21 days, not the full 52 months for which Husted gave her credit, and she suggests that this is "another example of the inaccurate data that was used by [Husted]." To substantiate this claim, Emhoff attached to her brief an affidavit by Nancy Tichy, senior director of human resources at the Cleveland Clinic Foundation. Tichy signed this affidavit on March 28, 2018, a full month after the protest hearing before the board and two weeks after Husted's decision letter. This evidence is therefore not part of the record, and we cannot say that Husted abused his discretion by failing to consider evidence that was not submitted to him.

3. Carroll's work for Legal Aid

{¶ 38} In her written response to the protest, Carroll claimed that from June 2015 to the present, she served as a "Pro Bono Attorney for Legal Aid provid[ing] legal assistance for individuals that are impoverished and going through divorces in Medina County." Husted counted this as the practice of law, writing that "beginning in 2015, [Carroll] represented clients in a pro bono capacity for a period of at least (14) months."

{¶ 39} At the protest hearing, Carroll testified that during her time at Legal Aid, she handled only three cases that ended in divorce or annulment. The clerk's docket sheets for those cases were introduced into evidence, and they show that at least two of the cases were disposed of fairly quickly:

Feier v. Nixon , Medina C.P. case No. 15DR0529: The complaint for divorce was filed on October 9, 2015, and a decree of annulment was entered on March 8, 2016.

Perciak v. Perciak , Medina C.P. case No. 16DR0242: The complaint for divorce was filed on May 24, 2016, and a decree of divorce was entered on August 9, 2016.

The third case, Hartman v. Hartman , Medina C.P. case No. 15DR0310, lasted somewhat longer: Carroll first appeared and filed an answer and counterclaim in mid-September 2015, and the case concluded with a divorce decree on June 21, 2016. Thus, the total span of her legal work for Legal Aid was, at most, 11 months (September 2015 to August 2016).

{¶ 40} There is no evidence in the record that Carroll provided additional legal services through Legal Aid or its clients during that time frame. Carroll was not an employee of Legal Aid. Her statements at the hearing about her work for Legal Aid were vague:

A: * * * [W]ere there other questions that I took phone calls and things? Yes.
* * *
Q: You're talking about more than somebody calling you up on the phone and then you talking to them for a few minutes-
A: Yes.
Q: -and that's the end of it?
A: Yes.

There was no evidence to establish how often she went to the Legal Aid office, how often she answered the phone, or whether in answering the phone, she provided legal advice or merely gathered information for scheduling and intake purposes.

{¶ 41} Emhoff contends that Carroll's time performing legal work for these Legal Aid clients should not count toward her time practicing law, because her work on these cases was sporadic, not continuous. However, R.C. 2301.01 does not require that a candidate for common-pleas-court judge show that she has practiced law full time for six years, State ex rel. Kelly , 70 Ohio St.3d at 415, 639 N.E.2d 78, and we have never established a minimum threshold for the amount of work a qualifying attorney must perform. Under Emhoff's argument, a new attorney struggling to establish a law practice would not be engaged in the practice of law until she succeeds in attracting some arbitrary number of clients or in maintaining a certain volume of legal work. The record supports the conclusion that for an 11-month period in 2015 and 2016, Carroll maintained attorney-client relationships with three clients, drafted pleadings and appeared in court on their behalf, and presumably met with them at other times to discuss their cases. Husted did not abuse his discretion in concluding that she was engaged in the practice of law throughout this period.

{¶ 42} Nor was it an abuse of discretion for him to conclude that she had practiced law for 14 months, rather than the 11 months described above. Carroll testified that she began providing legal services to Legal Aid clients prior to October 7, 2015, though she was uncertain of the exact date she started. In her written response, she claimed to have started at Legal Aid in June 2015. Using June 2015 as her start date and August 2016 (when the last of her three divorce cases concluded) as her end date would yield a total of 14 months.

{¶ 43} Because these three positions add up to 74 months of legal experience, two more than the minimum amount required, we hold that Secretary Husted did not abuse his discretion in breaking the tie vote in favor of placing Carroll's name on the May 2018 ballot as a judicial candidate.

Claims for writs of mandamus dismissed and writs of prohibition denied.

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

Kennedy and DeWine, JJ., concur in judgment only.

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

{¶ 44} I agree with the decision to deny the writ of prohibition sought by relators. I write separately, however, to identify an issue that was not raised by the parties in this case but that I think this court should address in the near future. It is not clear to me that this court should be applying an abuse-of-discretion standard in this narrow band of election cases in which the issue is whether certain conduct constitutes the practice of law.

{¶ 45} As the majority opinion notes, in our line of cases concerning what constitutes the "practice of law" for purposes of determining whether a judicial candidate meets the requirements necessary for his or her name to appear on a ballot, we have held, at least implicitly, that a board of elections has the right to determine what constitutes the practice of law. See, e.g. , State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections , 70 Ohio St.3d 413, 415, 639 N.E.2d 78 (1994), citing State ex rel. Carr v. Cuyahoga Cty. Bd. of Elections , 63 Ohio St.3d 136, 137-138, 586 N.E.2d 73 (1992), citing State ex rel. Flynn v. Cuyahoga Cty. Bd. of Elections , 164 Ohio St. 193, 129 N.E.2d 623 (1955). But Flynn predates the 1968 Modern Courts Amendment and thus predates the addition of Article IV, Section 2(B)(1)(g) to the Ohio Constitution.

{¶ 46} Article IV, Section 2(B)(1) of the Ohio Constitution expressly states, "The Supreme Court shall have original jurisdiction in the following: * * * (g) Admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law. " (Emphasis added.) Unlike the other grants of original jurisdiction conferred by Article IV, Section 2(B)(1), such as jurisdiction over mandamus actions, this court does not share with any other entity the jurisdiction granted to it in subsection (g). Compare Ohio Constitution, Article IV, Section 2 (B)(1), with Article IV, Section 3(B)(1), and Article IV, Section 4(B). Moreover, Article IV, Section 2(B)(1)(g) of the Ohio Constitution uses the broadest-indeed, the completely encompassing-term: "all other matters relating to the practice of law." (Emphasis added.)

{¶ 47} As the majority also notes, in our line of disciplinary cases addressing the unauthorized practice of law, we have interpreted Article IV, Section 2(B)(1)(g) of the Ohio Constitution to confer on this court "exclusive jurisdiction over all matters related to the practice of law ." (Emphasis added.) Disciplinary Counsel v. Alexicole, Inc. , 105 Ohio St.3d 52, 2004-Ohio-6901, 822 N.E.2d 348, ¶ 8. In that same line of cases, we have noted that "[t]his court has exclusive power to regulate, control, and define the practice of law in Ohio." (Emphasis added.) Cleveland Bar Assn. v. CompManagement, Inc. , 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 39.

{¶ 48} Comparing these two lines of cases reveals an apparent inconsistency. It is far from clear to me that under the Ohio Constitution, a board of elections has any authority to make the determination whether a candidate engaged in the practice of law. If boards of elections do have authority to make that determination, then as a matter of logic, this court's jurisdiction to make such determination is not exclusive.

{¶ 49} Alternatively, assuming arguendo that a board of elections does have the authority to make the determination, should we review that determination for an abuse of discretion or, given the constitutional mandate, should we review it de novo?

{¶ 50} As previously noted, the parties did not raise this issue in this case. Moreover, regardless of whether I apply an abuse-of-discretion or a de novo standard of review or whether I determine that the board of elections and secretary of state have no authority to deny a candidate her right to have her name placed on the ballot when that denial requires a practice-of-law-related determination, I reach the same result as the majority in this case. Nonetheless, this court should reconcile its determination that we have exclusive jurisdiction over all matters relating to the practice of law , Alexicole at ¶ 8, with its decisions applying an abuse-of-discretion standard in cases in which a board of elections or the secretary of state has determined that a candidate has engaged in the practice of law.


text:
    CLEVELAND METROPOLITAN BAR ASSOCIATION v. HORTON.
    No. 2017-1416
    Supreme Court of Ohio.
    Submitted December 6, 2017 Decided June 26, 2018
    Tucker Ellis, L.L.P., Seth H. Wamelink, and Jon W. Oebker ; Cleveland, and Heather M. Zirke, Bar Counsel, and Kari L. Burns, Assistant Bar Counsel, for relator.
    Debbie Kay Horton, Cleveland, pro se.
   Per Curiam.

{¶ 1} Respondent, Debbie Kay Horton, of Solon, Ohio, Attorney Registration No. 0033622, was admitted to the practice of law in Ohio in 1986. On February 24, 2010, we suspended her for two years, with the second year stayed on conditions, for settling clients' personal-injury claims and endorsing the settlement checks without the clients' authority and converting the settlement proceeds to her own use. Disciplinary Counsel v. Horton , 124 Ohio St.3d 434, 2010-Ohio-579, 923 N.E.2d 141. We reinstated her license to practice law on May 11, 2011. Disciplinary Counsel v. Horton , 128 Ohio St.3d 1225, 2011-Ohio-2386, 947 N.E.2d 174.

{¶ 2} In a March 2, 2017 complaint, relator, Cleveland Metropolitan Bar Association, alleged that Horton committed 17 violations of the professional-conduct rules while pursuing personal-injury claims on behalf of a woman and her minor daughter. Among other things, relator alleged that Horton failed to make required disclosures to her client, to obtain the client's written consent to or acknowledgment of certain circumstances affecting the representation, to formally withdraw from the case following a disagreement with the client, to promptly deliver funds that the client was entitled to receive, and to maintain required records regarding her client trust account.

{¶ 3} The parties submitted joint stipulations of fact and aggravating and mitigating factors, and Horton admitted to some of the charged misconduct. The parties jointly recommended that Horton be suspended from the practice of law for one year, with six months stayed on conditions.

{¶ 4} The matter proceeded to a hearing before a panel of the Board of Professional Conduct. The panel found that Horton committed nine of the ten rule violations she admitted to committing, and it unanimously dismissed the remaining allegations. The panel recommended that she be suspended for two years, with one year stayed on the condition that she engage in no further misconduct, and further recommended that her reinstatement be subject to additional conditions. The board adopted the panel's findings of fact, conclusions of law, and recommended sanction, and no objections have been filed.

{¶ 5} Having independently reviewed the record, we adopt the board's report and recommendation and suspend Horton from the practice of law for two years, with one year conditionally stayed.

Misconduct

{¶ 6} On April 13, 2012, Raquel Green retained Horton to represent her and her minor daughter in a personal-injury case arising from an automobile collision. Green signed Horton's standard contingent-fee agreement, which provided for a fee of 33.3 percent of the amount recovered if settlement occurred before suit was filed and 40 percent of the recovery if a lawsuit was filed. Horton stipulated that she did not countersign that contract-or any of her fee contracts-as required by Prof.Cond.R. 1.5(c)(1) (requiring a lawyer to set forth a contingent-fee agreement in a writing signed by both the client and the lawyer).

{¶ 7} Horton also failed to make and properly document other required disclosures. She did not inform Green that she did not carry professional-liability insurance or have her sign a written acknowledgment of that fact, as required by Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the lawyer does not maintain professional-liability insurance and to obtain a signed acknowledgment of that notice from the client). And although Horton orally informed Green that she intended to engage another attorney to serve as co-counsel, the terms of that relationship were never reduced to a writing that was signed by Green and the other attorney, as required by Prof.Cond.R. 1.5(e)(2) (prohibiting certain fee divisions unless the lawyers have made certain factual disclosures to the client and received the client's written consent). Moreover, Horton admitted that she did not make these required disclosures to any of her other clients.

{¶ 8} Horton filed a lawsuit on behalf of Green and Green's daughter on April 4, 2014. She voluntarily dismissed that suit in January 2015 and refiled it the next month. At the final pretrial conference in January 2016, Green agreed to settle her daughter's claim for the tortfeasor's policy limits of $100,000 and to settle her own claim for $25,000.

{¶ 9} Because Green's daughter was a minor, Horton filed an application for probate-court approval of the settlement. According to Horton, the magistrate at the probate hearing indicated that attorney fees for a minor's claim were limited to one-third of the settlement. However, in approving the settlement, the magistrate also awarded Green $7,000 from her daughter's settlement for "loss of service," which, according to Horton, was intended for Green to use to pay the remainder of Horton's contracted fee.

{¶ 10} When Horton and Green met at the Warrensville Public Library to sign the settlement checks in April 2016, they had a disagreement about Horton's fees and a $5,500 discount that she had offered to Green. As a result of their verbal altercation, a Warrensville police officer ordered the two women to have no contact with each other. Horton testified that she felt compelled to obey that order even though it had not been issued by a court. Although she ceased contact with Green, she failed to file a written motion for leave to withdraw from the representation as required by the local court rules. She also failed to appear at a May 19, 2016 hearing on defense counsel's motion to enforce the settlement. Horton stipulated that her failure to formally withdraw from the case violated Prof.Cond.R. 1.16(c) (prohibiting a lawyer from withdrawing from representation in a proceeding without leave of court if the rules of the tribunal so require).

{¶ 11} In a May 2016 grievance, Green claimed that she had not received the $7,000 awarded to her by the probate court. Horton told relator that she had sent Green a letter with a $7,000 check on April 19, 2016, but Green reported to relator that she had not received it. Horton waited until approximately five months after the grievance was filed before she issued a new check to Green and stopped payment on the original check. Horton admitted that her conduct violated Prof.Cond.R. 1.15(d) (requiring a lawyer to promptly deliver funds or other property that the client is entitled to receive).

{¶ 12} Horton also stipulated that she failed to maintain proper records to document the funds held in her client trust account, and she testified that she used that account to pay at least one personal expense. She admitted that her conduct violated Prof.Cond.R. 1.15(a)(2) through (5) (requiring a lawyer to hold the property of clients in an interest-bearing client trust account, separate from the lawyer's own property; to maintain a record for each client on whose behalf funds are held setting forth the name of the account, the date, amount, and client affected by each credit and debit, and the balance in the account; and to perform and retain a monthly reconciliation of the lawyer's client trust account).

{¶ 13} Based on this evidence, the panel found that Horton's conduct violated Prof.Cond.R. 1.4(c), 1.5(c)(1), 1.5(e)(2), 1.15(a)(2) through (5), 1.15(d), and 1.16(c). But the panel rejected the parties' stipulation that Horton violated Prof.Cond.R. 1.15(a)(1) (requiring a lawyer to maintain a copy of any fee agreement with each client) and unanimously dismissed that allegation, four allegations that relator had agreed to dismiss, and three others in support of which relator had presented no evidence.

{¶ 14} The board adopted the panel's findings of fact and misconduct, and we adopt those findings as our own.

Sanction

{¶ 15} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, relevant 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 Horton has a prior disciplinary record, engaged in a pattern of misconduct, and violated multiple professional-conduct rules. See Gov.Bar R. V(13)(B)(1), (3), and (4). Notably, as evidence of a pattern of misconduct, both the parties and the board cited not only Horton's failure to sign her fee agreements with and make required disclosures to Green and other clients but also Horton's failure to correct her client-trust-account management practices following relator's dismissal of a 2015 overdraft investigation.

{¶ 17} In mitigation, the board found that Horton demonstrated a cooperative attitude toward the disciplinary proceeding. See Gov.Bar R. V(13)(C)(4). Specifically, Horton was forthright and honest in discussing her past and current mismanagement of her client trust account, waived confidentiality with regard to relator's 2015 disciplinary investigation, and readily admitted to her rule violations. The board noted that Horton had demonstrated a willingness to make necessary changes to her practice going forward but that her conduct since her 2010 suspension demonstrates that she has difficulty understanding or implementing acceptable law-office practices and complying with the applicable professional-conduct rules regarding those matters.

{¶ 18} The board recommends that we suspend Horton for two years, with one year stayed on the condition that she engage in no further misconduct. It also recommends that as a condition of reinstatement, she be required to submit proof that she has completed 12 hours of continuing legal education ("CLE") addressing law-office management-with three of those 12 hours focused on client-trust-account-related instruction-in addition to the CLE requirements of Gov.Bar R. X. The board recommends that upon reinstatement, Horton be required for one year to work with a practice monitor, approved by relator, who will serve as Horton's mentor with regard to law-office management.

{¶ 19} In reaching its recommendation, the board considered several cases in which we disciplined attorneys for comparable misconduct.

{¶ 20} In Toledo Bar Assn. v. Royer , 133 Ohio St.3d 545, 2012-Ohio-5147, 979 N.E.2d 329, the attorney failed to deposit one client's funds into his client trust account, failed to maintain required client-trust-account records, lost evidence that was vital to the client's claim, and neglected three legal matters involving another client. Although Royer had committed multiple offenses that affected vulnerable clients, he had no prior discipline during his 46 years of practice, had not had a dishonest motive, had made restitution to his clients, had fully cooperated in the disciplinary process, and had shown remorse. Therefore, we suspended him for one year, fully stayed on the conditions that he serve a two-year period of monitored probation without additional violations of the professional-conduct rules, retain a certified public accountant to review his bookkeeping procedures, and establish his compliance with Prof.Cond.R. 1.15 within six months of our order.

{¶ 21} In Akron Bar Assn. v. Tomer , 138 Ohio St.3d 302, 2013-Ohio-5494, 6 N.E.3d 1133, the attorney failed to file motions on behalf of a client, failed to secure signed notices from clients regarding her lack of professional-liability insurance, failed to refund unearned fees, failed to maintain required records regarding her client trust account, and submitted fabricated and backdated letters to the relator during a disciplinary investigation. We recognized that Tomer had committed multiple offenses and had engaged in dishonest conduct during the disciplinary investigation, but we also acknowledged that she had no prior discipline, had lacked adequate training when she entered private practice after 16 years of "exemplary service" as an assistant prosecutor, had presented evidence of her excellent character and reputation, and had shown significant remorse. Consequently, we suspended Tomer for two years, all stayed on the conditions that she complete a two-year period of monitored probation, complete 12 hours of CLE focused on law-office management, and engage in no further misconduct.

{¶ 22} And in Disciplinary Counsel v. Corner , 145 Ohio St.3d 192, 2016-Ohio-359, 47 N.E.3d 847, we imposed a two-year suspension, with the second year stayed on conditions, for misconduct that included several overdrafts of the attorney's client trust account, misuse of that account for personal expenses, commingling of personal and client funds, misappropriation, and failure to maintain required client-trust-account records. Corner also failed to provide competent representation to a client in a bankruptcy proceeding and engaged in conduct prejudicial to the administration of justice by failing to comply with two disgorgement orders issued by the bankruptcy court. Mitigating factors included the absence of a prior disciplinary record and a mental-health diagnosis that contributed to Corner's misconduct.

{¶ 23} We find that Horton's misconduct is comparable to that of Royer and Tomer though perhaps not as egregious as that of Corner, whose misconduct extended well beyond the sloppy office practices exhibited here. We agree, however, with the board's assessment that Horton's prior disciplinary record and her failure to make agreed changes to her client-trust-account management practices following relator's 2015 overdraft investigation weigh in favor of a sanction more severe than the one we imposed on Royer and Tomer and comparable to that which we imposed on Corner.

{¶ 24} Accordingly, Debbie Kay Horton is suspended from the practice of law in Ohio for two years, with one year stayed on the condition that she engage in no further misconduct. As a condition of reinstatement, Horton shall submit proof that she has completed 12 hours of CLE addressing law-office management, with three of those hours focused on client-trust-account-related instruction; those hours shall be in addition to the CLE requirements of Gov.Bar R. X. Upon reinstatement, Horton shall serve a one-year period of monitored probation in accordance with Gov.Bar R. V(21). If Horton fails to comply with the condition of the stay, the stay will be lifted and she will serve the full two-year suspension. Costs are taxed to Horton.

Judgment accordingly.

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

DeGenaro, J., not participating.

      Although the complaint charged Horton with a violation of Prof.Cond.R. 1.16(d) (requiring a lawyer withdrawing from representation to take steps reasonably practicable to protect a client's interest), the parties stipulated and the board found that her conduct actually violated Prof.Cond.R. 1.16(c).


author: O'Connor, C.J.

text:
    CIRINO, Appellee, v. OHIO BUREAU OF WORKERS' COMPENSATION, Appellant.
    No. 2017-0179
    Supreme Court of Ohio.
    Submitted February 27, 2018 Decided July 10, 2018
    Paul W. Flowers Co., L.P.A., and Paul W. Flowers ; Bashein & Bashein Co., L.P.A., W. Craig Bashein, and John P. Hurst ; and Charles J. Gallo Co., L.P.A., and Charles J. Gallo, for appellee.
    Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Mark E. Mastrangelo and Jeffrey B. Duber, Assistant Attorneys General; and Taft, Stettinius & Hollister, L.L.P., Ronald D. Holman II, Michael J. Zbiegien Jr., and Daniel H. Bryan, for appellant.
   O'Connor, C.J.

{¶ 1} In this appeal, we determine whether this suit is within the subject-matter jurisdiction of the court of common pleas or whether it falls within the exclusive jurisdiction of the Court of Claims. We conclude that the Court of Claims has exclusive jurisdiction over this suit because plaintiff-appellee, Michael Cirino, seeks legal relief rather than equitable relief. We therefore reverse the judgment of the Eighth District Court of Appeals, vacate all orders issued by the court of common pleas in this case, and remand the cause for the court of common pleas to issue an entry dismissing it.

I. Relevant Background

{¶ 2} Defendant-appellant, the Ohio Bureau of Workers' Compensation, is responsible for the distribution of workers' compensation benefits to persons who have suffered workplace injuries. This suit challenges the legality of fees that were incurred by some benefit recipients when accessing their benefits, but in this appeal, we are required to determine only whether the suit was properly brought in the court of common pleas or whether it should have been brought in the Court of Claims, which has exclusive jurisdiction over many suits against state entities such as the bureau. R.C. 2743.03(A)(1). This determination requires an understanding of how the bureau makes workers' compensation benefit payments and the nature of Cirino's claim in this suit.

A. The bureau's debit-card program for benefit payments

{¶ 3} Before 2006, the bureau paid benefits either by paper check or an electronic funds transfer ("direct deposit") to a recipient's bank account. Because payments through paper checks were much more costly than electronic payment methods like direct deposits, the bureau conducted a pilot program in 1997 to test the viability of making benefit payments through an additional electronic method-a debit card. The bureau contracted with Bank One to provide participants in the pilot program with their benefit payments through a Bank One-issued Visa debit card that had been credited with their benefit payments. All costs of this program were paid by the bureau, including any fees Bank One would normally charge individuals using their services. The program was a success, and by 2000, a debit card became one of the standard ways benefit recipients could choose to receive their benefits.

{¶ 4} In June 2006, the General Assembly specifically gave the bureau the authority to use direct deposit for all benefit payments. R.C. 4123.311(A)(1). In particular, the bureau is permitted to require benefit recipients to designate a financial institution and a bank account into which payments can be made. R.C. 4123.311(A)(2). The bureau is also permitted to use a payment method similar to the debit-card program it tested in the 1990s. R.C. 4123.311(A)(3) (permitting the bureau to "[c]ontract with an agent to * * * [s]upply debit cards for claimants to access payments made to them" and "[c]redit the debit cards * * * with the amounts specified by the administrator [of the bureau] * * * by utilizing direct deposit of funds by electronic transfer"). Regardless of which payment method the bureau chooses to offer, however, it is required to ensure that all "administrative costs"-that is, all costs that are "incident to the discharge of the duties and performance of the activities of the * * * bureau"-are borne by the state and employers. R.C. 4123.341.

{¶ 5} In December 2006, the bureau entered into an agreement with JPMorgan Chase Bank, N.A., to distribute benefit payments through a debit-card-based program (the "debit-card program"). Under the agreement, Chase would establish an account for each benefit recipient and send each a Visa-branded debit card tied to the recipient's account. The bureau would then transfer funds to Chase, and Chase would credit each recipient's account with the full amount to which the recipient was entitled.

{¶ 6} The agreement also provided participants in the debit-card program with several different methods to access their funds. A few were free. For example, funds could be withdrawn for free from any Chase ATM machine or through one in-person visit to a teller at a Chase branch per month. The funds could also be accessed for free by using the debit card to pay for goods and services directly at any Visa-accepting merchant. A few methods, however, were not free. Fees would be assessed for any visits to a teller after the first one each month ($5 per transaction), withdrawals from a non-Chase ATM ($1.50 per transaction) or an ATM outside the United States ($3 per transaction), and converting debit-card funds into foreign currencies (3 percent of the transaction value). A fee schedule describing these fees was attached to the agreement between Chase and the bureau.

{¶ 7} The Ohio Administrative Code was also revised to implement the bureau's use of an electronic-payment system. Payments through direct deposits to a recipient's bank account or through a debit card became "[t]he standard method of delivering payment to a claimant or benefit recipient." Ohio Adm.Code 4123-3-10(A)(4).

{¶ 8} In early 2008, recipients were notified in writing that the bureau would use direct deposits and the debit-card program as the default methods for making benefit payments going forward. Recipients were also sent an enrollment packet and informed that if they did not provide a bank-account number for direct deposits, they would be enrolled in the debit-card program and sent a Chase debit card by default. Only in extraordinary circumstances, when hardship would result from being forced to receive payments by direct deposit or the debit-card program, could a benefit recipient continue to receive paper checks.

B. Cirino incurs fees and files suit; the bureau argues that the suit was filed in the wrong court

{¶ 9} Cirino began receiving workers' compensation benefits in 2009. He was entitled to $443 per week, which was paid to him on a biweekly basis in the amount of $886. At first he received his payments by paper check, which he deposited in his account with PNC Bank. After receiving a few paper checks, however, he was notified that his payments would be made electronically and he would be enrolled in the debit-card program if he did not elect to receive direct deposits. Cirino testified that he did not want to provide the bureau with his bank-account number, which was required in order to receive payments by direct deposit. He was therefore sent a debit card and enrolled in the debit-card program.

{¶ 10} After he received the debit card, Cirino activated it and made a withdrawal of his $886 biweekly benefit in cash from a teller at a Chase branch location. Later that same month, he attempted to make a second in-person withdrawal of $886, but his request was denied because his account did not have enough funds to provide him with $886 while also covering the $5 fee for making a second in-person withdrawal in the same month. Cirino then went to a teller at another branch and withdrew $881 in cash, incurring a $5 fee for the transaction.

{¶ 11} After this, Cirino spoke to an attorney, who informed him that the $5 charge was a service fee imposed by Chase. Cirino continued to withdraw cash through multiple teller visits per month, incurring numerous additional $5 fees.

{¶ 12} On May 21, 2010, Cirino filed the present class-action suit against the bureau on behalf of all recipients of workers' compensation benefits who had been charged fees in order to access their benefit payments. His complaint, filed in the Cuyahoga County Court of Common Pleas, alleges that the debit-card program violates state law by permitting Chase to charge fees for certain services. Specifically, Cirino alleges that the program violates R.C. 4123.341, which provides that the bureau is required to ensure that all "administrative costs" are borne by the state and employers. Cirino also alleges that the debit-card program violates R.C. 4123.67, which provides that until compensation benefits are paid to a recipient, they "shall be exempt from all claims of creditors and from any attachment or execution, and [they] shall be paid only to the employees or their dependents." He seeks relief in the form of equitable restitution, declaratory relief, injunctive relief, and "other appropriate equitable relief."

{¶ 13} The bureau moved to have the case dismissed for lack of subject-matter jurisdiction. It argued that under state laws concerning the waiver of government immunity, the court of common pleas would have jurisdiction only if Cirino's claim were purely equitable in nature. It then argued that Cirino is ultimately seeking the payment of money to compensate for the fees he and the other class members had been charged. Because of this, the bureau argued, Cirino is seeking legal relief in the form of simple money damages, which means that the claim falls within the exclusive jurisdiction of the Court of Claims.

{¶ 14} The trial court denied the motion, holding that although the claim here seeks the payment of money, it is equitable in nature, so it is within the subject-matter jurisdiction of the court of common pleas. It based this decision on Santos v. Ohio Bur. of Workers' Comp. , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, in which this court held that a suit seeking the return of specific funds wrongfully collected or held by the state is an equitable claim. In the trial court's view, Cirino's claim seeks the return of specific funds, namely the money withheld by Chase as fees in the debit-card program, and because Chase is an agent of the bureau, those specific funds are deemed to be in the hands of the bureau. As a result, the claim is seeking equitable relief, not simple money damages.

{¶ 15} On appeal, the Eighth District Court of Appeals affirmed. It agreed with the trial court that Cirino is seeking equitable relief. The Eighth District noted that a claim for money is a claim for legal relief when the money sought is a substitute for a loss, but as the trial court observed, a claim is for equitable relief when it is for specific funds in the hands of the state. The Eighth District then concluded that Cirino's claim for the debit-card-program fees is equitable in nature because it is seeking specific funds in the hands of Chase, the state's agent, not money as a substitute for a loss.

{¶ 16} The bureau sought discretionary review in this court. We granted review over one proposition of law:

Only a suit to recover specific funds held by a State defendant, or suits over which the State consented to be sued before the effective date of the Court of Claims Act, are proper in the common pleas court. All other suits against the State must be filed in the Court of Claims.

See 150 Ohio St.3d 1442, 2017-Ohio-7843, 82 N.E.3d 1175.

II. Analysis

{¶ 17} We review the Eighth District's decision on subject-matter jurisdiction de novo. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State , 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 12. In doing so, we need not accept the allegations in the complaint as true; we may take into account facts established in the record. Southgate Dev. Corp. v. Columbia Gas Transm. Corp. , 48 Ohio St.2d 211, 214, 358 N.E.2d 526 (1976).

A. The jurisdiction of the Court of Claims

{¶ 18} The Court of Claims was created in 1975 with the enactment of the Court of Claims Act, R.C. Chapter 2743.01 et seq. R.C. 2743.03(A)(1) ("There is hereby created a court of claims"). The act contains a broad waiver of the state's immunity and provides that the state consents to be sued in the Court of Claims. R.C. 2743.02(A)(1) ("The state hereby waives its immunity from liability * * * and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties * * *"); see also Ohio Constitution, Article I, Section 16 ("Suits may be brought against the state, in such courts and in such manner, as may be provided by law"). This waiver and consent applies not just to the state itself but also to other state entities, including state instrumentalities such as the bureau. R.C. 2743.01(A) (defining "state" as "the state of Ohio, including, but not limited to, the general assembly, the supreme court, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, institutions, and other instrumentalities of the state," but not including "political subdivisions").

{¶ 19} The jurisdiction of the Court of Claims is defined by reference to the state's waiver of immunity in R.C. 2743.02. The Court of Claims has "exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02 of the Revised Code." R.C. 2743.03(A)(1). Despite the apparent breadth of the waiver, however, not all suits against the state are channeled to the Court of Claims by the act. To the extent that the state consented to be sued before the enactment of R.C. Chapter 2743, the chapter has no applicability. R.C. 2743.02(A)(1).

{¶ 20} As a practical matter, at least with respect to the issues raised in this case, the determination whether claims must be brought in the Court of Claims or whether they may be brought in a court of common pleas depends on whether the relief sought is equitable in nature, legal in nature, or both. A court of common pleas may hear claims against the state for declaratory judgment, injunctive relief, and other equitable relief. Santos , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, at ¶ 9, quoting R.C. 2743.03(A)(2) ("R.C. Chapter 2743 does not divest other courts of this state of jurisdiction 'to hear and determine a civil action in which the sole relief that the claimant seeks against the state is a declaratory judgment, injunctive relief, or other equitable relief' "). Suits for money damages against the state, however, fall within R.C. 2743.02(A)'s waiver of immunity and therefore within the exclusive, original jurisdiction of the Court of Claims. Boggs v. State , 8 Ohio St.3d 15, 16-17, 455 N.E.2d 1286 (1983) ; see also Measles v. Indus. Comm. , 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204, ¶ 7 (2011) ("The Court of Claims * * * has exclusive jurisdiction over civil actions against the state for money damages that sound in law"). Finally, suits involving both equitable and legal claims must be brought in the Court of Claims. Under R.C. 2743.03(A)(2), when a plaintiff pursuing a claim permitted by the waiver of immunity also presents a claim for "declaratory judgment, injunctive relief, or other equitable relief against the state that arises out of the same circumstances," the Court of Claims has "exclusive, original jurisdiction to hear and determine that claim," too. Therefore, the resolution of this matter hinges on whether Cirino is seeking equitable relief, legal relief, or both. B. Whether Cirino is seeking legal relief or equitable relief

{¶ 21} The bureau first argues that Cirino's claim was required to be brought in the Court of Claims because the relief he seeks is legal restitution. Although restitution can be either legal or equitable, Santos at ¶ 11, "whether it is legal or equitable depends on 'the basis for [the plaintiff's] claim' and the nature of the underlying remedies sought" (brackets sic), Great-West Life & Annuity Ins. Co. v. Knudson , 534 U.S. 204, 213, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), quoting Reich v. Continental Cas. Co. , 33 F.3d 754, 756 (7th Cir.1994). We relied on Great-West in recognizing the following general distinction between legal and equitable restitution:

Restitution is available as a legal remedy when a plaintiff cannot " 'assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him.' " * * * Restitution is available as an equitable remedy "where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession."

(Emphasis sic.) Santos at ¶ 13, quoting Great-West at 213, 122 S.Ct. 708, quoting Dobbs, Law of Remedies , Section 4.2(1), at 571 (2d Ed.1993).

{¶ 22} Based on this distinction, the bureau argues that Cirino's claim does not seek equitable restitution, because Cirino is not seeking specific funds in the possession of the bureau. Instead, the specific funds that Cirino claims he is entitled to-namely, the fees charged in the debit-card program-are in the hands of Chase, a third party.

{¶ 23} The bureau also argues that the claim is legal in nature because its purpose is to compensate Cirino for a loss rather than prevent unjust enrichment by the bureau. As we have recognized, " ' "[d]amages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies 'are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.' " ' " (Emphasis deleted.) Ohio Hosp. Assn. v. Ohio Dept. of Human Servs. , 62 Ohio St.3d 97, 105, 579 N.E.2d 695 (1991), quoting Bowen v. Massachusetts , 487 U.S. 879, 895, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), quoting Maryland Dept. of Human Resources v. Dept. of Health & Human Servs. , 763 F.2d 1441, 1446 (D.C.Cir.1985), quoting Dobbs, Handbook on the Law of Remedies 135 (1973). See also Kerr v. Charles F. Vatterott & Co. , 184 F.3d 938, 944 (8th Cir.1999) (stating that an award of equitable restitution "focuses on the defendant's wrongfully obtained gain while a compensatory award focuses on the plaintiff's loss at the defendant's hands"). In the bureau's view, the fact that Cirino seeks an award measured by the fees charged by Chase proves that his claim is seeking compensatory relief rather than equitable restitution.

{¶ 24} Cirino counters that his claim is for equitable restitution because he is seeking specific funds in the possession of the bureau, not a substitute for a loss he has suffered. He argues that the workers'

compensation benefits he is statutorily entitled to receive constitute the specific funds he seeks. He also argues that this case is just like Santos . In Santos , the bureau had collected money from individual benefit recipients based on a subrogation statute that gave it the right to do so. That statute was later ruled unconstitutional, however, and the plaintiffs sought to get that money back. We held that the suit sought specific funds in the hands of the bureau that had been wrongfully collected and therefore the claim was for equitable rather than legal restitution. In Cirino's view, the same is true here: his claim is for equitable restitution because he is seeking specific funds in the possession of the bureau.

{¶ 25} We agree with the bureau. "Regardless of how an action is labeled, the substance of the party's arguments and the type of relief requested determine the nature of the action." Lingo v. State , 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 38. In our view, the relief Cirino seeks is not restitution at all. It is best described as compensatory damages.

{¶ 26} Consistent with Ohio Hosp. Assn. , 62 Ohio St.3d at 105, 579 N.E.2d 695, Black's Law Dictionary defines "compensatory damages" as "[d]amages sufficient in amount to indemnify the injured person for the loss suffered," id. at 472 (10th Ed.2014), and defines "[d]amages" as "[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury," id. at 471. "Restitution," by contrast, is a remedy "in which the measure of recovery is usu[ally] based not on the plaintiff's loss, but on the defendant's gain." Id. at 1507.

{¶ 27} Cirino's claim here challenges the legality of fees that were incurred by some benefit recipients. He claims that although the bureau made an initial transfer of money to Chase in an amount equal to each benefit recipient's full payment, in certain situations the bureau allows Chase to charge fees out of those payments. The crux of the claim is therefore that the bureau has improperly allowed benefit recipients to be harmed by fees charged by Chase and that the proper relief is to have the bureau pay money to compensate for that loss. The claim therefore seeks compensatory relief-a classic form of legal relief.

{¶ 28} Our holding in Santos does not change our view on this point. In Santos , the bureau collected money directly from the plaintiffs and the claim sought the return of those specific funds. The money clearly had unjustly enriched the bureau, and we viewed the suit, which sought a payment by the bureau, as "an action to correct [that] unjust enrichment." Santos , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, at ¶ 17. That is different from the situation here. The only specific funds identified by Cirino are the fees collected by Chase, not any money withheld by the bureau. A payment by the bureau in an amount equal to those fees is therefore best described as compensation for a loss caused by Chase, not a correction of the bureau's unjust enrichment.

{¶ 29} Finally, we reject the view of the court of appeals and the trial court that the claim is equitable because Chase was the bureau's agent. Assuming without deciding that an agency relationship existed, neither Cirino nor the trial court nor the court of appeals has pointed to evidence that the bureau has the power in any such relationship to control the disposition of funds that have been charged by Chase as fees. The court of appeals and the trial court did not analyze this issue, and Cirino has disclaimed reliance on an agency argument altogether. There is also evidence that the bureau in fact lacks the power to control the fees charged by Chase. The bureau's benefits-payable manager testified in an affidavit that once the bureau makes the initial transfer of funds to Chase, it retains "no access to or control of the funds except under limited circumstances involving mistake or fraud."

{¶ 30} Without any argument or evidence that the bureau has the power to order Chase to return the fees to the benefit recipients, Cirino cannot be said to be seeking specific funds based on an agency relationship between the bureau and Chase. Instead, what Cirino is seeking is to have the bureau pay him money to compensate for the loss he suffered when those fees were charged, and that is relief in the form of traditional legal damages, which is within the exclusive, original jurisdiction of the Court of Claims.

III. Conclusion

{¶ 31} Because Cirino's claim seeks legal relief, it may be brought only in the Court of Claims. Furthermore, Cirino's claims for declaratory judgment and injunctive relief must also be brought in the Court of Claims because they arise out of the same circumstances that gave rise to his claim for legal relief. R.C. 2743.03(A)(2). We therefore vacate all orders issued by the court of common pleas in this case, including the order certifying a class, and remand the case for dismissal for lack of subject-matter jurisdiction.

Judgment reversed and cause remanded.

Fischer and DeGenaro, JJ., concur.

DeWine, J., concurs in judgment only, with an opinion joined by Kennedy and French, JJ.

O'Donnell, J., dissents, with an opinion.

DeWine, J., concurring in judgment only.

{¶ 32} I agree with the lead opinion that Michael Cirino's claim is for legal relief and that jurisdiction rests in the Court of Claims. But I believe that this case is easily resolved when it is understood that Cirino is not seeking restitution of particular funds held by the Bureau of Workers' Compensation ("BWC") to which he can trace entitlement.

{¶ 33} In addition to other relief, Cirino seeks restitution from the BWC of the amounts that were withheld as fees by Chase Bank, N.A. Almost always, suits that seek a payment of a sum of money are suits for money damages-"the classic form of legal relief" (emphasis sic), Mertens v. Hewitt Assocs. , 508 U.S. 248, 255, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) -because " 'they seek no more than compensation for loss resulting from the defendant's breach of legal duty.' " Great-West Life & Annuity Ins. Co. v. Knudson , 534 U.S. 204, 210, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), quoting Bowen v. Massachusetts , 487 U.S. 879, 918-919, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (Scalia, J., dissenting). Only in a narrow set of circumstances-when a plaintiff seeks specifically identifiable funds in the control of the defendant-is a suit for money properly understood as equitable.

{¶ 34} The lead opinion's determination that Cirino's claim is legal rather than equitable hinges on its characterization of the relief sought. It reasons, "The crux of [Cirino's] claim is * * * that the [BWC] has improperly allowed benefit recipients to be harmed by fees charged by Chase and that the proper relief is to have the [BWC] pay money to compensate for that loss." Lead opinion at ¶ 27. Thus, it concludes, Cirino seeks compensatory damages, a form of legal relief.

{¶ 35} The dissent, on the other hand, reaches the opposite result because it characterizes the relief sought differently. It says that Cirino's claim sounds in equity because "he seeks the balance of his benefit payments from the [BWC]-the very thing to which he is statutorily entitled but did not receive, due to the [BWC's] improper shift of administrative expenses to claimants in violation of R.C. 4123.341." Dissenting opinion at ¶ 52.

{¶ 36} That opposite results are reached by the lead opinion and the dissenting opinion highlights the imprecision of their approaches: allowing the determination whether a claim is legal or equitable to turn on the characterization of the form of relief sought invites inconsistent results and provides little guidance for lower courts. "It does not take much lawyerly inventiveness to convert a claim for payment of a past due sum (damages) into a prayer for an injunction against refusing to pay the sum, or for a declaration that the sum must be paid, or for an order reversing the agency's decision not to pay." Bowen , 487 U.S. at 915-916, 108 S.Ct. 2722, 101 L.Ed.2d 749 (Scalia, J., dissenting).

{¶ 37} In my view, this case is resolved far more cleanly by focusing on the locus of the specific funds to which Cirino claims entitlement. The United States Supreme Court's decision in Great-West, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635, underlines the importance of identifying the specific funds that the plaintiff seeks to recover. In Great-West , the court looked back to "the days of the divided bench" to mark the line between legal restitution and equitable restitution. Id. at 212, 122 S.Ct. 708.

In cases in which the plaintiff "could not assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him," the plaintiff had a right to restitution at law through an action derived from the common-law writ of assumpsit.

(Emphasis deleted.) Id. at 213, 122 S.Ct. 708, quoting Dobbs, Law of Remedies , Section 4.2(1), at 571 (2d Ed.1993). On the other hand, "a plaintiff could seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession." (Emphasis deleted.) Great-West at 213, 122 S.Ct. 708, citing Dobbs, Section 4.3(1), at 587-588. In Great-West , the money sought by the plaintiffs was never in the defendants' possession, so the court concluded that the plaintiffs were seeking legal restitution. Great-West at 214, 122 S.Ct. 708.

{¶ 38} Here, the BWC initially possessed the funds for benefit recipients like Cirino, see R.C. 4123.30, and then, under its agreement with Chase, it transferred the funds to the bank. In other words, the "particular funds" sought by Cirino are no longer in the BWC's possession. The question is what effect does the BWC's having disbursed the funds to Chase have on the classification of Cirino's action? Another United States Supreme Court case indicates the answer.

{¶ 39} In Montanile v. Bd. of Trustees of Natl. Elevator Industry Health Benefit Plan , --- U.S. ----, 136 S.Ct. 651, 193 L.Ed.2d 556 (2016), Robert Montanile was injured in an automobile accident, and his medical expenses were paid under his health-benefits plan. Montanile then received a settlement from the negligent driver who caused the accident. By the time the plan's administrator sought reimbursement of its payment from Montanile under the plan's subrogation clause, Montanile had spent most of the funds. The court concluded that to the extent that the specific funds had been spent on nontraceable items and recovery was sought from Montanile's general assets, the remedy sought was a legal remedy, id. at ----, 136 S.Ct. at 658-659, 662.

{¶ 40} Here, the BWC disbursed the funds held for Cirino to the bank. After the specific funds to which Cirino claims he was entitled were transferred to Chase, the bank deducted the fees that are at issue in this lawsuit. Thus, any remedy due Cirino would be paid not from particular funds held by the BWC to which Cirino can trace entitlement, but from the BWC's funds generally. As in Montanile , the restitution sought is legal relief, not equitable relief. Accordingly, exclusive jurisdiction resides with the Court of Claims.

Kennedy and French, JJ., concur in the foregoing opinion.

O'Donnell, J., dissenting.

{¶ 41} Respectfully, I dissent.

{¶ 42} In my view, Michael Cirino's claim seeks equitable relief for restoration of the administrative costs incident to distribution of workers' compensation benefits and therefore the common pleas court has exclusive jurisdiction over this matter. Accordingly, I would affirm the judgment of the Eighth District Court of Appeals.

Relevant Background

{¶ 43} In 2006, the General Assembly enacted R.C. 4123.311, authorizing the Bureau of Workers' Compensation to "[c]ontract with an agent" to "[s]upply debit cards for claimants to access payments made to them" and "[c]redit the debit cards * * * with the amounts specified by the administrator [of the bureau]." As a result, the bureau contracted with JPMorgan Chase Bank to distribute benefits electronically through debit cards. Pursuant to the contract, Chase established accounts for each benefit recipient and issued debit cards linked to each recipient's account. The bureau transferred funds for benefit payments to Chase to be credited to the claimants' debit card accounts. Chase exacted fees from benefit recipients for various transactions, including a $5 fee for any teller transaction after the first monthly teller visit.

{¶ 44} In 2009, Cirino began receiving a biweekly benefit of $886 in the form of a paper check, which he deposited into his personal checking account. When Cirino enrolled in the debit card program, he withdrew his $886 biweekly benefit from a teller at a Chase branch and was charged no fee. Two weeks later, when Cirino withdrew his next biweekly payment, again using a teller, Chase assessed a $5 fee for making a second teller withdrawal in one month. Thus, Cirino was unable to withdraw the entirety of his $886 benefit.

{¶ 45} In May 2010, Cirino commenced the instant action in the Cuyahoga County Court of Common Pleas asserting claims against the bureau for violating R.C. 4123.341 and 4123.67 and unjust enrichment seeking relief in the form of restitution, equitable disgorgement, and injunctive and declaratory relief. The bureau moved for dismissal for lack of subject matter jurisdiction, asserting that the Court of Claims has exclusive jurisdiction because Cirino's claim for restitution is actually a claim at law for money damages because it seeks funds that are not in the bureau's possession. The common pleas court concluded that Cirino's claims were equitable in nature and that it had subject matter jurisdiction over the lawsuit. The Eighth District affirmed.

Law and Analysis

Statutory Obligations of the Bureau

{¶ 46} R.C. 4121.39(B) charges the bureau with "[a]ward[ing] compensation and mak[ing] payment on all noncontested claims." R.C. 4123.341 provides:

The administrative costs of * * * the bureau of workers' compensation shall be those costs and expenses that are incident to the discharge of the duties and performance of the activities of * * * the bureau under this chapter and Chapters 4121., 4125., 4127., 4131., and 4167. of the Revised Code, and all such costs shall be borne by the state and by other employers amenable to this chapter * * *.

(Emphasis added.) R.C. 4123.311 authorizes the bureau to "[c]ontract with an agent" to (1) "[s]upply debit cards for claimants to access payments made to them" and (2) "[c]redit the debit cards * * * with the amounts specified by the administrator [of the bureau]." Except in limited circumstances not applicable here, workers' compensation benefits "shall be paid only to the employees or their dependents." R.C. 4123.67.

Equitable vs. Legal Remedy

{¶ 47} Restitution can be either a legal or an equitable remedy "for an unjust enrichment of one party at the expense of another." Santos v. Ohio Bur. of Workers' Comp. , 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, ¶ 11 citing Restatement of the Law, Restitution at 9 (1937). To determine whether a claim for restitution is seeking legal or equitable relief, we examine the basis for the claim and the nature of the underlying remedies sought. Id. at ¶ 13.

{¶ 48} In Santos , this court held that "[a] suit that seeks the return of specific funds wrongfully collected or held by the state is brought in equity." Id. at syllabus; see also id. at ¶ 14, quoting Bowen v. Massachusetts , 487 U.S. 879, 895, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), quoting Dobbs, Hornbook on the Law of Remedies, Section 3.1, at 135 (1973) ("specific remedies, like restitution, ' ''are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled" ' ").

{¶ 49} In Santos , an injured worker, Angel Santos, received benefits from the bureau and later settled an intentional tort claim against his employer. Santos at ¶ 2. The bureau asserted subrogation rights and collected the settlement proceeds pursuant to a statute later found to be unconstitutional. Id. at ¶ 3, 5. Santos filed a class action complaint in the common pleas court seeking to recover the monies collected in subrogation by the bureau. Id. at ¶ 3, 4. The bureau moved for dismissal for lack of subject matter jurisdiction, arguing that the Court of Claims, not the common pleas court, had exclusive jurisdiction over the action. Id. at ¶ 5. This court concluded that the suit was brought in equity and explained that unlike money damages-which compensate a plaintiff for a suffered loss-specific remedies are not substitute remedies but attempt to give the plaintiff the very thing to which he is entitled. Id. at ¶ 14, citing Ohio Hosp. Assn. v. Ohio Dept. of Human Servs. , 62 Ohio St.3d 97, 105-106, 579 N.E.2d 695 (1991).

{¶ 50} Similarly, in Ohio Hosp. Assn. , the Ohio Department of Human Services had promulgated a new administrative rule lowering certain Medicaid reimbursement rates. As a result, several Medicaid providers filed a complaint against the department seeking declaratory, injunctive, and monetary relief and alleging the department had been unlawfully withholding funds pursuant to the new reimbursement rate. We held that the administrative rule had been improperly adopted because it was implemented solely for budgetary reasons, without consideration of its effect on the quality of care. Id. at paragraph one of the syllabus. In determining whether the state was immune from suit for reimbursement of monies withheld under an invalid administrative rule, this court held "[t]he reimbursement of monies withheld pursuant to an invalid administrative rule is equitable relief, not money damages, and is consequently not barred by sovereign immunity," and we therefore concluded that the monetary relief sought was in the nature of specific relief, that is, payment of specific funds of a determined amount to which the Medicaid providers were statutorily entitled and not an award of money damages to compensate them for losses they suffered or would suffer as a result of the invalid administrative rule. Id. at 105, 579 N.E.2d 695.

{¶ 51} Like the claims asserted in Santos and Ohio Hosp. Assn ., Cirino's claim is equitable in nature. The applicable statutes, R.C. 4121.39(B) and 4123.341, require the bureau to pay Cirino's entire $886 biweekly benefit to him and to bear all administrative costs associated with making those benefit payments. In this case, Chase acted as the bureau's agent pursuant to R.C. 4123.311(A)(3) to make payments to benefit recipients by debit card. Although the bureau transferred the entire biweekly benefit to Chase, it knew that in certain circumstances, Chase assessed fees depending on the recipient's method of accessing the funds. These fees reduced Cirino's benefits and are costs of administering the benefits program and therefore must be borne by the state.

{¶ 52} Just as the Santos plaintiffs' suit seeking the return of specific funds wrongfully collected or held by the state was brought in equity, 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, at ¶ 17, Cirino's complaint was brought in equity because he seeks the balance of his benefit payments from the bureau-the very thing to which he is statutorily entitled but did not receive, due to the bureau's improper shift of administrative expenses to claimants in violation of R.C. 4123.341.

{¶ 53} Because Cirino's claim seeks the full monthly benefit of his award, the administrative costs assessed by Chase are costs of administering the benefits program to be borne by the state. Thus, this is an equitable claim and therefore the common pleas court, not the Court of Claims, has jurisdiction in this case.

Conclusion

{¶ 54} Cirino's claim is equitable because it seeks full payment of the benefit lawfully awarded to him by the bureau. Thus, the Cuyahoga County Court of Common Pleas has exclusive jurisdiction in the matter and the judgment of the Eight District Court of Appeals should be affirmed.

      One employee of the bureau testified that there could be instances in which a benefit recipient was not able to access all of his benefit payment at one time due to barriers such as individual-transaction limits on ATM withdrawals. In 2011, Chase limited ATM withdrawals to $800 per day as part of an anti-money-laundering program.

      In 2012, the fee schedule was modified to permit one free teller visit per deposit made by the bureau. Several other fee changes beneficial to recipients were made as well.

      Fees were also assessed in other situations: transactions denied for insufficient funds ($0.50 per transaction), check issuance ($12.50 per request), card replacement after two free replacements per year ($7.50 per card), overnight-delivery service ($25 per delivery), and account inactivity ($1.50 per month).

      The concurring opinion concludes that the relief sought here is legal restitution, as opposed to equitable restitution, but in this opinion we consider the broader question of whether it is restitution at all. We conclude that it is not. The concurring opinion's reliance on Montanile v. Bd. of Trustees of Natl. Elevator Industry Health Benefit Plan , --- U.S. ----, 136 S.Ct. 651, 193 L.Ed.2d 556 (2016), a case in which the relief sought was clearly restitution based on unjust enrichment, is therefore unpersuasive.


text:
    The STATE EX REL. WILLIAMS, Appellant, v. CROCE, Judge, Appellee.
    No. 2017-1339
    Supreme Court of Ohio.
    Submitted January 23, 2018 Decided July 12, 2018
    Cameron D. Williams, pro se.
    Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Joseph R. McAleese, Assistant Prosecuting Attorney, for appellee.
   Per Curiam.

{¶ 1} Appellant, Cameron Williams, appeals the dismissal of his complaint for a writ of procedendo against appellee, Summit County Common Pleas Court Judge Christine Croce. For the reasons set forth below, we affirm the judgment of the Ninth District Court of Appeals.

Background

{¶ 2} In March 2008, a Summit County jury convicted Williams of multiple offenses, including two counts of aggravated murder with capital specifications, for which he received a sentence of life imprisonment with parole eligibility after 69 years. The Ninth District Court of Appeals reversed his conviction on one count of violating a protective order but otherwise affirmed. State v. Williams , 9th Dist. Summit No. 24169, 2009-Ohio-3162, 2009 WL 1856743 (Ohio App. 2009).

{¶ 3} On September 10, 2013, a visiting judge sitting by assignment held a resentencing hearing to correct the notification regarding Williams's postrelease control, and on September 30, she issued a new sentencing entry. Williams appealed, arguing that the new entry did not comply with Crim.R. 32(C) ("A judgment of conviction shall set forth the fact of conviction and sentence") and the requirement that "[o]nly one document can constitute a final appealable order," State v. Baker , 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17. The court of appeals held that Williams had in fact appealed from a final, appealable order but that the visiting judge's corrective entry should have been labeled a nunc pro tunc entry. The court of appeals remanded the case for that correction. State v. Williams , 9th Dist. Summit No. 27101, 2014-Ohio-1608, 2014 WL 1510350, ¶ 13, 21.

{¶ 4} On remand, Judge Croce issued the nunc pro tunc sentencing order dated April 24, 2014. On December 1, 2016, Williams filed a motion asking Judge Croce to issue a final, appealable order. On February 8, 2017, Judge Croce denied the motion.

Procedural history

{¶ 5} On May 26, 2017, Williams filed his petition for a writ of procedendo against Judge Croce. He alleged that neither the September 30, 2013 sentencing entry nor the April 24, 2014 nunc pro tunc entry was a final, appealable order because neither one contained all the information required by Crim.R. 32(C) and the "one document" rule enunciated in Baker . He asked the court to issue a writ of procedendo to compel Judge Croce to enter a revised journal entry that would be final and appealable. Judge Croce filed a motion to dismiss. On September 17, 2017, the court of appeals granted the motion. The court held that Williams had failed to allege the essential elements of procedendo: "Judge Croce has not refused to rule on Mr. Williams' motion. She denied the motion, and Mr. Williams is dissatisfied with her ruling. A writ of procedendo is not appropriate under these circumstances." Williams timely appealed.

Analysis

{¶ 6} "A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment." State ex rel. Weiss v. Hoover , 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999). To be entitled to a writ of procedendo, a relator must establish (1) a clear legal right to require the respondent to proceed, (2) a clear legal duty on the part of the respondent to proceed, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Yeaples v. Gall , 141 Ohio St.3d 234, 2014-Ohio-4724, 23 N.E.3d 1077, ¶ 20. "The writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be." State ex rel. Davey v. Owen , 133 Ohio St. 96, 106, 12 N.E.2d 144 (1937).

{¶ 7} The court of appeals correctly held that Williams's complaint failed to state a claim for a writ of procedendo. The complaint creates the impression that Judge Croce had not ruled on Williams's motion for a final, appealable order. But as the court of appeals correctly noted, she had decided the motion, thereby rendering the complaint moot. See, e.g., State ex rel. Poulton v. Cottrill , 147 Ohio St.3d 402, 2016-Ohio-5789, 66 N.E.3d 716, ¶ 1-2 ("Procedendo will not compel the performance of a duty that has already been performed," and in such circumstances, the complaint is moot). " 'An event that causes a case to become moot may be proved by extrinsic evidence outside the record.' " State ex rel. Hilltop Basic Resources, Inc. v. Cincinnati , 118 Ohio St.3d 131, 2008-Ohio-1966, 886 N.E.2d 839, ¶ 15, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis , 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 8 ; see also State ex rel. Nelson v. Russo , 89 Ohio St.3d 227, 228, 729 N.E.2d 1181 (2000) (an appellate court may take judicial notice that a writ action is moot).

{¶ 8} Procedendo can be used only to compel Judge Croce to issue some ruling on the motion (if she had been dilatory, which she was not) and cannot be used to compel her to reach a specific result or to change the result once she ruled. State ex rel. Grove v. Nadel , 81 Ohio St.3d 325, 326, 691 N.E.2d 275 (1998) (procedendo "does not attempt to control the inferior court about what the judgment should be").

{¶ 9} Williams has failed to state a claim for a writ of procedendo. The court of appeals properly dismissed the complaint.

Judgment affirmed.

O'Donnell, Kennedy, French, Fischer, and DeWine, JJ., concur.

O'Connor, C.J., and DeGenaro, J., not participating.