The Ohio Supreme Court directed the Cuyahoga County Board of Elections to place Andrea Rocco on the November 7 general election ballot as a candidate for law director in the city of Westlake.

The issue of Rocco’s qualification for office arose when challengers protested her candidacy contending that the Westlake City Charter requires a candidate for law director to be engaged in the active practice of law for a period of six years next preceding the election. The Court ruled that the language of the charter refers to any six year period preceding the election and with her experience she met that qualification despite having served as clerk of courts for a period of two years.

Justice Terrence O’Donnell authored the lead opinion  joined by Justice Judith L. French. Justice Patrick F. Fischer concurred in judgment only, and Justice William M. O’Neill concurred separately urging that Rocco’s duties as clerk of courts for Cuyahoga County qualifies as active law practice and she therefore has been practicing law for six years prior to the election.

Chief Justice Maureen O’Connor dissented, arguing the lead opinion contorts the rules for reading a statute to “achieve a desired result.” Justice R. Patrick DeWine dissented with a separate opinion that was joined by Justice Sharon L. Kennedy.

Board Rejects Clerk Work
In January, Rocco filed her nominating petitions and statement of candidacy for Westlake law director with the board of elections. Four protests were filed, contending she did not meet the requirements to hold the position because the city charter requires a candidate to be actively practicing law during the six years immediately preceding election to office.

Article IV, Section 4 of the city charter reads: “The Director of Law shall be a qualified elector at the time of his election, shall have been a resident of the City for at least eighteen (18) months immediately preceding his election, an attorney at law duly admitted to the practice of law before the courts of the State of Ohio, and been engaged in the active practice of law in Ohio for a period of six (6) years next preceding his election.”

Prior to seeking the law director’s office, Rocco served as county clerk of courts between March 2013 and January 2015. She argued the law required a candidate only need to have actively practiced for any six-year period and that she had more than six years of continuous legal experience, including six years as an Ohio assistant attorney general, 20 months as an assistant Lake County prosecutor, and two years in private practice.

The board of elections voted 2-1, with one member absent, to uphold the protests. In March, Rocco sought a writ of mandamus with the Supreme Court to compel the board to place her on the ballot.

Issue is When Must Candidate Have Practiced
Justice O’Donnell explained that the board of elections disqualified Rocco through its interpretation of “active practice of law” and its conclusions that the role of clerk of courts does not count as active practice. Instead, the board needed to examine the city charter’s requirement concerning when a candidate has engaged in the practice of law to qualify for the ballot.

The lead opinion noted that Westlake uses the phrase “for a period of six years,” and the Court has previously determined that “a,” being an indefinite article, is often used in the sense of “any” and applied to more than one individual object as opposed to “the,” which applies to a particular object. The Court wrote that the use of the phrase “a period of six (6) years,” as opposed to “the period of six (6) years” suggests the director of law had to be engaged in the active practice of law for any six year period preceding the election.

The opinion further supported the requirement that the six-year period could be any time prior to the election by noting the other requirement in the same code section. The charter states that the candidate must be a resident of the city for “at least eighteen (18) months immediately preceding his election.” In the next sentence it requires the “active practice of law in Ohio for a period of six (6) years next preceding his election.” The Court stated the use of different words, “immediate preceding” and “next preceding,” indicate the charter drafters intended different meanings.

The Court cited its 2007 State ex rel. Reese v. Cuyahoga Cty. Bd. of Elections decision to explain its interpretation is consistent with the Court’s “duty to liberally construe words limiting the right of a person to hold office in favor of those seeking to hold office so that the public may have the benefit of choice from all qualified persons.”

Concurrence Found Rocco Practiced Law as Clerk
In his concurring opinion, Justice O’Neill wrote the board abused its discretion when it found Rocco was not engaged in the active practice of law while serving as clerk of courts. He noted the Court has found the practice of law “includes representation before a court, as well as the preparation of pleadings and other legal documents, the management of legal actions for clients, all advice related to law, and all actions taken on behalf of clients connected with the law.”

Rocco asserted she regularly provided legal advice to her governmental office, drafted legal memos, and consulted with state and local court rules to address various problems in the office.

“That is the practice of law. Nowhere in the record before us is there a scintilla of evidence to rebut that assertion,” he wrote.

Dissents Argue “Next Preceding” Ignored
In their separate dissenting opinions, both Chief Justice O’Connor and Justice DeWine reference several Ohio Revised Code statutes that use the term “next preceding” to mean immediately before another act. The chief justice argues the lead opinion ignores the definitions and everyday usage of “immediately” and “next” and “hypothesizes that the Westlake City Council used two different words to indicate a different intent.”

The chief justice wrote that using “a” rather than “the” with “next preceding” is not unique or unusual particularly when paired with “a period” of years. She noted at least six instances where the phrase is used in the Revised Code, and the plain reading of those statutes leads to the conclusion that “next preceding” means “immediately preceding.”

She also argues the lead opinion’s interpretation could lead to a “ridiculous outcome for the citizens of Westlake.” For example, a person could graduate from law school and practice six years in Ohio, then leave the state or country for 40 years engaging in another profession. That person could return to Westlake and run for law director despite having no recent experience in legal practice.

Justice DeWine wrote there is “no plausible question” as to what is meant by “next preceding,” indicating that “next” means either immediately preceding or immediately following in order. He also noted that it is not unusual for law drafters to use two different but similar-meaning words in the same provision, and that using them together does not mean they have opposite meanings.

He wrote the board of elections had to examine the sentence as a whole with the terms “period of six years” and “next preceding the election,” and that it was reasonable for it to determine that meant the six years prior to the election. The lead opinion would allow any random consecutive six-year period, no matter how remote, to count, he argued.

“But what makes more sense—that the charter would require six consecutive years of legal practice at any time in the candidate’s life or that it would require six consecutive years of legal practice in the period adjacent to the time that the candidate would begin performing legal services for Westlake? Plainly, the latter,” he concluded.

2017-0315. State ex rel. Rocco v. Cuyahoga County Bd. of Elections, Slip Opinion No. 2017-Ohio-4466.

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