2021 February Bar Briefs

The Magazine of the Dayton Bar Association | February | Vol. 70, No. 6

Dayton

Bar Briefs

February is DBA Member Appreciation Month!

Trustees Message

Diversity Issues

pg 4

Thurgood Marshall - The Great Influencer pg 12

Revisiting the Rule of Law

Federal Practice The Legacy of Bush v. Gore pg 18

CONTENTS

Dayton

Bar Briefs

February 2021 | Vol. 70, No. 6

Dayton Bar Association Board of Trustees 2020-2021

Features 4

Merle F. Wilberding First Vice President

Caroline H. Gentry Second Vice President

BARRISTER OF THE MONTH: ERIN B. MOORE ESQ.

By Thomas J. Intili Esq. | Intili Group, a Legal Professional Association

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NEW FEATURE!

Advice to New Attorneys Amidst the Global Pandemic

By Masallay N. Komrabai-Kanu Esq. | Sebaly Shillito + Dyer

LEADERSHIP DEVELOPMENT CLASS

Denise L. Platfoot Lacey

10 CRIMINAL LAW Leon J. Daidone Retires

By The Honorable Mary E. Montgomery | Montgomery County Common Pleas Court

Hon. E. Gerald Parker Jr.

12 DIVERSITY ISSUES Thurgood Marshall: The Great Influencer

Secretary

Treasurer

Rebecca M. Gentry Member–at–Large

Anne P. Keeton Member–at–Large

Justine Z. Larsen

Sean P. McCormick Member–at–Large

Hon. Mary Wiseman

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Chief Executive Officer

BAR BRIEFS is published by the Dayton Bar Association, 109 N. Main St., Ste 600, Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the first day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through Summer.

Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy, Chief Executive Officer

Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 www.daybar.org

Fax: 937.222.1308

The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the DBA.

Dayton Bar Briefs February 2021

By Brandon C. McClain Esq. | Montgomery County Recorder's Office

16 RISING STAR: LANESE D. LAYNE ESQ.

By Sarita L. Simon Esq. | Montgomery County Juvenile Court 18 FEDERAL PRACTICE The Legacy of Bush v. Gore

By Daniel J. Gentry Esq. | Coolidge Wall Co., LPA

Member–at–Large

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By Caroline H. Gentry Esq. | Porter Wright Morris & Arthur, LLP

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Fredric L. Young President

TRUSTEES MESSAGE Revisiting the Rule of Law

20 FROM THE JUDGES DESK Didn't see that coming!

By The Honorable Mary E. Montgomery | Montgomery County Common Pleas Court

22 JUVENILE LAW GAL Rule 48 Changes

By Misty M. Connors Esq. | Connors Law Office, LLC & Serah E. Seimann Esq. |Siemann & Associates Co., LPA

24 Ohio Supreme Court “Tinkles” with the Clash between the

Employment-At-Will Doctrine and the Tort of Invasion of Privacy

By Michael D. Rice Esq. | Freund Freeze & Arnold, a Legal Professional Association

26 OLAP The importance of self-love

By Scott R. Mote, Executive Director | OLAP Departments 9

FEBRUARY SECTION MEETINGS *Join a DBA Section in the New Year!

14 CONTINUING LEGAL EDUCATION 15 LEADERSHIP DEVELOPMENT BLOOD/PLASMA DRIVE *February 20th @ 7am-1pm 21 DAYTON BAR FOUNDATION 2021 GRANTS *Application deadline March 1st 25 CHANCERY CLUB LUNCHEON IS BACK! *February 10th @ Noon-12:45pm 27 MINDFUL MONDAYS (VIRTUAL) *Every First-Monday beginning March thru May 29 CLASSIFIED ADS - ADVERTISER INDEX - MEMBERS ON THE MOVE 30 LAW RELATED ORGANIZATIONS 31 2021 DAYTON BAR FOUNDATION GIVING

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To Our Members In honor of DBA Member Appreciation Month, the DBA Board of Trustees and Staff are honored that you are part of this wonderful Association.

The outpouring of support and commitment you have shown the DBA and the legal community throughout 2020 was unprecedented.

YOU have exhibited what we know to be true about the Dayton Bar Association.

THANK YOU. We are proud of you.

Keep reaching out. Keep connecting.

We’re optimistic.

We’re grateful.

We’re here to support you.

Be healthy. Be safe.

We will see you in person soon.

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February 2021Dayton Bar Briefs

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Trustees Message

Revisiting the Rule of Law D

uring the Trump Presidency, the phrase “rule of law” – a principle usually confined to law schools, courtrooms and bar association initiatives – burst into public consciousness and became part of our civic discourse. Although it is reasonable to expect lawyers to be able to readily define the term, I found myself to be uncertain about its meaning. Thus, I decided to revisit the principle of the rule of law and share my findings with you, my fellow DBA members.

Like any good researcher, I started with Google. I was delighted when my first search attempt (“rule of law meaning”) returned a uscourts.gov webpage as the top result. It defines the rule of law as “a principle under which all persons, institutions, and entities are accountable to laws that are: publicly promulgated; equally enforced; independently adjudicated; and consistent with international human rights principles.”1 A related webpage provides case summaries and discussion questions that “analyze how landmark Supreme Court decisions maintain the rule of law and protect minorities” with respect to four topics: (1) expression of unpopular views (military funeral protests, flag burning); (2) participation in the judicial process (race/ gender and jury selection); (3) exercise of religious practices; and (4) access to education (immigration, separate is not equal, implementing desegregation).2 For anyone who wants to delve into these topics, or teach others about them, the uscourts.gov website provides a great place to start.

A more comprehensive definition is offered by the World Justice Project (WJP), which argues that the rule of law “underpin[s] development, accountable government, and respect for fundamental rights,” and correlates with “higher economic growth, greater peace, less inequality, improved health outcomes, and more education.” WJP identifies four universal principles of the rule of law: (1) account4

Dayton Bar Briefs February 2021

By Caroline H. Gentry Esq. Second Vice-President Porter Wright Morris & Arthur, LLP cgentry@porterwright.com | 937.449.6748 ability of both the government and private actors under the law; (2) just laws that are clear, publicized, stable and applied evenly, including laws that protect fundamental rights (i.e., personal security, contracts, property and human rights); (3) open government that provides accessible, fair and efficient processes to enact, administer and enforce laws; and (4) accessible justice, i.e., justice that is timely delivered by competent, ethical and independent jurists who are accessible, have adequate resources, and reflect the makeup of the communities that they serve. WJP also provides an annual Rule of Law Index for 128 countries that focuses on these topics: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice and Criminal Justice.3 WJP’s data and analysis is available on its website, which I recommend to anyone who is interested in the international presence (or absence) of the rule of law.

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ENDNOTES: https://www.uscourts.gov/educational-resources/educational-activities/overview-rulelaw#:~:text=Rule%20of%20law%20is%20a,with%20international%20human%20 rights%20principles.

2 https://www.uscourts.gov/educational-resources/educational-activities/rule-law. # https://worldjusticeproject.org/about-us/overview/what-rule-law.

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TRUSTEES MESSAGE: Revisiting the Rule of Law continued from page 4

Those who place more weight on legal scholarship may wish to check out R. Stein, What Exactly is the Rule of Law? 57 Hous. L. Rev. 185 (Fall 2019). Stein identifies these central tenets of the rule of law: (1) the law is superior, i.e., no person is above it; (2) government powers are separated into legislative, executive and judicial branches; (3) the law is known, predictable, and places limits on government discretion to ensure the law’s nonarbitrary application; (4) the law applies equally to all persons in like circumstances; (5) the law is just and protects the fundamental human rights of all persons; (6) the law is enforceable, i.e., people have access to justice; (7) the judiciary is independent; and (8) people can participate in the creation of laws.

Stein adds five more principles that could be included: (9) the law protects the security of persons and property; (10) the law is written so that ordinary persons can understand it; (11) there is a means to resolve legal disputes without excessive cost or delay; (12) the legal profession is independent; and (13) the country honors its obligations under international law.

Finally, those who like to think about old concepts in new ways may be interested in M. Krygier, What’s the Point of the Rule of Law? 67 Buffalo L. Rev. 743 (May 2019). Krygier contends that rather than recite or refine lists of individual rule-of-law elements, we should focus on the telos, or purpose, of the rule of law. He argues that the central problem that the rule of law seeks to address is the arbitrary

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exercise of power. Leaders arbitrarily exercise power when they (1) are not subject to any control or limit, other than their own will or pleasure; (2) exercise power in unpredictable ways that others cannot know, foresee, or comply with in advance; and (3) do not allow targets to defend themselves, question the exercise of power, or have any impact on the exercise of power. The problem with arbitrarily exercising power is that it is an immoral way to treat people: “Whensoever someone has power to treat you arbitrarily, even if they choose not to, you are in their power, subject to domination by them, whatever they arbitrarily choose to do. And that … is a deeply demeaning condition for a person to be in.” The central goal of the rule of law, therefore, is a negative one: to limit the arbitrary exercise of power and its resulting evils. But Krygier also argues that the rule of law has a positive goal: to encourage the just exercise of power, including the creation and support of well-functioning governments that understand, respond to and meet the needs of their people. Krygier’s article is entertainingly written, thought-provoking, and highly recommended for your reading pleasure.

At the end of my ramble through this (admittedly limited) ruleof-law research, I confess to being no more certain about the meaning of the phrase, although I do feel closer to catching a glimpse. I invite you to take your own journey through this or another legal topic, and to share your findings in this space. Thank you for reading and best wishes for 2021!.

February 2021Dayton Bar Briefs

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Barrister of the Month

Erin B. Moore Esq. Green & Green, Lawyers

I

t is often said that Dayton has a collegial bar and that is certainly true perhaps most vividly among those lawyers who practice in the courtroom. These are lawyers who know each other well. They have faced off often. Their skills and shortcomings have been displayed to captive audiences of judges and juries with a client’s freedom or fortunes, or both, hanging in the balance. Every seasoned trial lawyer knows the thrill of victory and the misery of defeat. In this city, the victors temper their triumphs with the knowledge that their adversaries are worthy and honorable, that defeat could well befall them one day at the hands of the other. The defeated are not disgraced. Their future victories await.

Erin Moore well knows the highs and lows of trial work. She has been doing it for over twenty-five years, the last 23 here in Dayton at Green & Green. She came to the firm a few months before the death of its founder, F. Thomas Green, a lifelong and highly successful insurance defense attorney known for his capacity to invoke rage in the souls of plaintiff ’s lawyers who dared to sue one of his clients.

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Dayton Bar Briefs February2021

When Erin arrived, the firm had already been placed in the capable hands of Green’s son, Thomas M. Green, his father’s equal in skill and diligence, but whose diplomacy with adversaries contrasted patently with the elder Green’s penchant for sarcasm.

Born in Bloomfield, Indiana, Erin knew at a young age that the law would be her calling.

Perry Mason was her first hero in the legal profession, the lawyer who never lost a case, whose clients were always falsely accused of murder, and who always established his client’s innocence by exposing the real murderer.

Black and white television reruns were not her only source of fictional legal enjoyment.

As a youngster, she was an avid reader of Hardy Boys, Nancy Drew, and Agatha Christie novels.

Erin played softball and was a cheerleader in high school. A photo of her in her cheering uniform is still displayed prominently in the Bloomfield High School gym. After graduating in the top ten of her high school class in the spring of 1986, she entered Indiana University that fall. Her success as a student continued at IU where she was Phi Beta Kappa

majoring in English and criminal justice. After graduating early in December, 1989, Erin worked as a legal assistant at a Bloomington law firm until the next fall when she entered the Moritz College of Law at The Ohio State University. In law school, Erin was a moot court competitor and an inductee of Phi Delta Phi, the honorary legal fraternity. Among her classmates was Mark Godsey, the director of the Ohio Innocence Project, who famously freed Ohio inmate Ricky Jackson after serving forty years of a life sentence for an East Cleveland murder he did not commit. For at least a portion of that prison term, Mr. Jackson was on death row.

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BARRISTER OF THE MONTH: Erin B. Moore Esq. continued from page 6 Erin’s first job as a lawyer was with Ritter, Robinson, McCready & James, a Toledo-based insurance defense firm that was populated with, and fancied, OSU law grads. At Ritter, Robinson, Erin devoted her time and energies primarily to the representation of insureds and political subdivisions. That associated lasted until the fall of 1997, when Erin left Toledo to join Green & Green.

Erin’s relocation to Dayton coincided with her marriage to husband, Daniel, whom she met at a friend’s gathering in Bloomfield. More than a hamlet of 2,400 Hoosiers, Bloomfield is where the Naval Surface Warfare Center Crane Division is located. Strange as it may seem that the United States Navy would establish an outpost in southern Indiana, Daniel nevertheless had civilian employment there as a senior scientist.

After a short stint at the Newark Air Force Base in Heath, Ohio, Daniel took a position at Wright-Patterson Air Force Base whereupon the newlyweds settled in Dayton.

At Green & Green, Erin has continued her insurance defense and political subdivision work, but has expanded into other areas such as construction litigation, insurance coverage disputes and insurance bad faith defense. She even takes the occasional plaintiff ’s personal injury case. In addition to her work at Green & Green, Erin is the Chairperson of the Sugarcreek Township Board of Zoning Appeals.

She handles employment cases pro bono for the Dayton Volunteer Lawyers Project and she is a member of both the Lawyers Club of Dayton and the Carl D. Kessler Inn of Court.

Recently, Erin was added to the Montgomery County Common Pleas Court’s list of approved mediators. She has also taught trial practice and alternative dispute resolution as an adjunct

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professor at the University of Dayton School of Law. In her spare time, she keeps honeybees in hives at her home in Xenia. She and Daniel also enjoy traveling to among other destinations America’s national parks.

Over her career, Erin’s victories have been numerous and her losses few. Two victories stand out in her memory, one in Toledo and the other in Dayton. In the Toledo case, a mortgage company’s alleged errors and omissions were at issue. During final argument, Erin suggested that the jury return a verdict of $5,000 for the plaintiff. Thinking it too generous given Erin’s able defense, the jury found for the defendant and awarded no damages. The Dayton case involved a juvenile who fell after being chased by a dog. After demonstrating that the kid’s injuries were so minor as to be indiscernible, the jury rendered a defense verdict in the time it took for Erin to leave the courtroom after adjournment and purchase a beverage from the soda machine in the courthouse basement.

Like the younger Green, one would strain to observe Erin noticeably perturbed. She is courteous to her adversaries and respectful of them.

She represents her clients zealously, but without bravado. She fits in perfectly as a member of Dayton’s trial bar and typifies its reputation as being among the most collegial. She is a credit to the Dayton Bar Association and worthy of our recognition of her as Barrister of the Month.

R.L. EMMONS AND ASSOCIATES, INC. 842–A E. Franklin Street Dayton, Ohio 45459

Professional Investigative and Legal Support Services Firm

 Polygraph  Asset Searches  Criminal Defense  Process Service  Witness Locates / Interviews  Surveillance  Civil Case Prep  General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577

By Thomas J. Intili Esq. DBA Editorial Board Intili Group, a Legal Professional Association tom@igattorneys.com | 937.226-1770

February 2021Dayton Bar Briefs

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From the Membership

Advice to New Attorneys Amidst the Global Pandemic

By Masallay N. Komrabai-Kanu Esq. 2020-2021 DBA Leadership Development Class Sebaly Shillito + Dyer masallaykanu92@gmail.com | 937.226.5613

C

ovid-19 has affected all of us in different and long-last ways – a statement which surely has become mundane at this point. It probably feels like this is the only topic we will discuss forever since it seems like everyone is still trying to find a sense of normalcy during this looming, and very serious, pandemic that began almost one year ago. As we have seen on the daily news cycles, there is no telling when this will end or what life will look like if it ever does. Put simply, we are all trying to make do while still not being sure about what is next.

What is painfully clear, as we can all probably agree, is that there is no going back to “normal”. And despite our best efforts, the “new normal” (another clichéd statement) may never be definitively defined in a way we are used to. For many of us, the goal for 2020 was to simply survive – emotionally, financially, and literally. With the end of what was undoubtedly an unforgettable year, we must ask ourselves if simply surviving this new year is enough.

This article is dedicated specifically to those attorneys who never had a chance to truly embark in the new, and scary, career that is the legal profession before Covid-19 forced all of us into a newer and even more uncomfortable environment. Those newly admitted attorneys who never had a chance to develop a strong professional network or formulate a name for themselves within their business organization before everything came crashing down. Many that fall into this category were (and still are) just beginning to navigate through their interests and passions while internally defining their professional goals when Covid hit. Some may still feel uneasy about the status of their professional, and once easily attainable, goals that may have taken a back burner in 2020.

The objective of this article is not to diminish the very real challenges individuals are facing as a direct result of Covid. The impact of this past-year has completely reshaped our understanding, personally and professionally. While we are all in the middle of this thing, attorneys who began their practice shortly before the pandemic began are in unique position over those attorneys who have multiple years of experience and a certain professional stature already established. Even the attorneys just admitted into the practice in the last few months have a certain advantage given that their career began during the pandemic when every aspect of their newfound livelihood is fresh and different. Those that fall somewhere in the awkward middle are left not knowing what their next career steps should be or where to put the most focus in such a dynamic environment.

For those that resonate with this feeling – you are seen and your concerns are valid. It can be hard to juggle the stress of the pandemic and daily demands, while still attempting to have a positive outlook on what our career could be and the steps to obtain it. But life goes on, and with it comes a responsibility to continuing learning and adapting. Below are a few goals to keep in mind as you continue to steer your successful and noteworthy career despite the uncertainties to come.

Keep your professional goals in the forefront: If you do not take anything else from this article, remember one thing – keep your eyes on the prize! You are not alone. There is an entire community through the DBA that is ready and willing to assist you in any way possible. You are the future of the legal profession and nothing (not even a global pandemic) will stop all the good that can be accomplished through your dedication and hard work.

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- Continue finding new hobbies:

For many new attorneys, this is either your first career choice or is a career completely unlike anything you have done before. Continue (or begin for the first time) taking advantage of this uncomfortableness – reinvent yourself, try new things, and see where your passions align along the way.

- Be honest with your employer about your needs:

Many new attorneys may be the newest employees in their organization and may not feel comfortable making professional demands just yet. But if you don’t stand up for yourself, who will? This is something to think about as more employers are preparing to head back into the office in the next few months. Perhaps you are someone who cannot wait to be back in your dedicated office space, or maybe you have found that working from home, even on a part-time basis, is more ideal. Whatever the case is – be honest. Together, you and your employer should be able to recognize your concerns and reach an amicable resolution that works for all parties.

- Stay connected:

Whether you are still zooming from home, or only making 6-feet *masks on* contact with others – do not forget to stay connected. Not only with your loved ones but with co-workers and colleagues as well. Join virtual happy hours or take advantage of the first or last 5 minutes of your next team meeting to chat about anything except work. Also, don’t forget to stay connected with the devoted and supportive - organization that is the DBA, which continues to offer virtual programs and meetings.

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DBA Noir

By David C. Greer Esq. DBA Editorial Board Bieser Greer & Landis LLP dcg@biesergreer.com 937.250.7773

DBA Section Meetings:

February 2021

Monday, February 1

Juvenile Law | 4pm-5pm

"The Little Man Who Wasn’t There” was the name Herb Eikenbary, the most colorful lawyer in the history of the Dayton Bar, gave to his client Al Fouts in the famous trial of Bugs Moran that took place in Judge Martin’s courtroom in August of 1946.

It is also the title of Dave Greer’s new book which chronicles the wayward life of Al Fouts as a non-leading citizen of Dayton from 1891 to 1981. If you have $20.00 and would like a copy, you can make the exchange with the receptionist at Dave’s office at 6 North Main Street, Suite 400. If you would like a signed copy, call Dave at (937) 272-4459.

In the first significant trial of Fouts’ career as a defendant, a slight case of a 1916 murder, he was defended by Jack Egan, the most notorious criminal defense lawyer in the history of the Dayton Bar. Dave’s book on Egan is also available at the same place for the same price.

In

Excerpt from "The Little Man Who Wasn't There":

1859 Abraham Lincoln spoke from the steps of the 1850 courthouse. At that event Robert Schenck was the f irst individual to suggest him as a possible candidate for the presidency of the United States. In 1914 Al Fouts was launched into his first sojourn at the Ohio State Penitentiary from the 1884 courthouse. Unlike Lincoln, he did not always listen to the better angels of his nature. To his credit, he believed in the concept of "malice towards none" despite having little sympathy with "charity for all."

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Wednesday, February 3

Young Lawyers Division | Noon-1pm YLD Clinic Project and Law School Outreach Planning

Thursday, February 4

Real Property | Noon-1pm

Tuesday, February 9

Civil Trial Practice & ADR | 5pm-6pm

Wednesday, February 10

Appellate Court Practice | Noon-1pm Estate Planning Trust & Probate | 4pm-5pm | Optional 1.0 CLE Hr Attorney Fees in Probate, Trusts, Guardianships and Powers of Attorney

Thursday, February 11

Domestic Relations | Noon-1pm

Monday, February 15

Federal Practice | Noon-1pm The holding in Bush v. Gore, the skepticism about judicial involvement in elections that it engendered, the surge in litigation since the decision, and the possibility that litigation relating to the 2020 election may reinforce society’s belief in judicial independence

Friday, February 19

Diversity Issues | Noon-1pm

Wednesday, February 24

Criminal Law| Noon-1pm

rsvp! www.daybar.org/ events

Thursday, February 25

Paralegal | Noon-1pm Corporate Counsel | 5pm-6pm

February 2021Dayton Bar Briefs

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Criminal Law

Leon J. Daidone Retires

By Hon. Mary E. Montgomery Montgomery Cty Common Pleas mary.montgomery@montcourt.oh.gov | 937.225.4055

A

fter forty years of dedicated public service, Leon J. Daidone, has finally made the decision to retire. For those of you who know him well, this came as a surprise. Leon is one of the the hardest working people I know and although there has been the occasional water cooler talk about when, it’s always been tossed aside as rumor.

Leon grew up in New Jersey and graduated from Montclair State College in 1976.

He went on to graduate from Ohio Northern College of Law in 1979, where he was a member of Law Review, receiving the Editor’s Award for Outstanding Law Review Member.

After graduation Leon was admitted to the practice of law in both Ohio and New Jersey.

From 1979 to 1980, he was a judicial clerk for the Honorable Judge William Marchese of the Superior Court in Paterson, New Jersey.

He then briefly worked for the Law Offices of Robert J. Casulli in Cranford, New Jersey until 1981. Leon met his wife Connie while at Ohio Northern and the decision was made

to move to Dayton after they were married.

Then, from 1981 until February 2021, he worked as an Assistant Prosecuting Attorney for the Montgomery County Prosecutor’s Office where he crafted and honed his skills as one of Dayton’s very best trial lawyers.

Leon has served many roles during his forty year tenure at the Prosecutor’s Office.

State of Ohio vs. Theodore Sink

Leon said, “This was one of the most cold-blooded, calculating individuals I have ever prosecuted.” Sink struck his wife in the head multiple times with a hammer, strangled her to death with a rope, put her in a fifty-five gallon drum, took her to the Dayton Newspaper Building, a location both Sink and his wife worked, and buried her in dirt and concrete. Sink was convicted of murder in 1989 and sentenced to prison, where he later died.

State of Ohio v. Lamar Lenoir

This was a “cold case” that occurred in February 1994. Lenoir was indicted in December 2005 and found guilty in 2007. The detective assigned to the case wrote, “I know murder cases are challenging just in their inherent nature, however, this case provided more obstacles than any case I have been associated with. Mr. Daidone met these challenges and obstacles head-on with unrelenting preparation and remarkable resolve.”

State of Ohio v. Duane Allen Short

Duane Short shot and killed his estranged wife and the mother of his three children, Rhonda Short, and her friend Donnie Sweeney,

He started in the Appellate Division and then to a criminal docket. He was head of the Career Criminal Unit, later assigned to the Ohio Organized Crime Task Force and then to the Violent Crimes Bureau where he spent fourteen years prosecuting violent homicides.

Starting in 2007, he served as the Chief of the Criminal Division, supervising and mentoring dozens of criminal docket attorneys.

Outside of his “day job”, he taught Criminal Justice at Sinclair for twenty-four years, was an instructor at the Dayton Police Academy, and a frequent lecturer for the National District Attorney’s Association. In 2008, Leon was inducted as a Fellow of the American College of Trial Lawyers, and shortly thereafter received the Ohio Prosecuting Attorneys Association’s Outstanding Assistant Prosecutor of the Year award in 2011.

Whittling down the list of Leon’s most notable trials over the years was difficult due to the sheer number of cases he has tried. Here, however, are a few:

after Rhonda attempted to leave the Short family following years of abuse. All three of their young children had to testify at trial. The trial itself was very emotional and lasted three weeks. The defendant was convicted of multiple counts of Aggravated Murder, as well as death penalty specifications, and was sentenced to death in May of 2006. After the trial and sentencing, the Court and counsel for both sides had the opportunity to meet with the jury. Both the Judge and the jury were extremely complimentary of Leon. One juror said that he hoped never to see Mr. Daidone in the courtroom “on the other side.”

State of Ohio v. Candace Hargrove and James Russell

On September 1, 2002, James Russell shot and killed Phillip Troutwine, a 57 year old Federal Aviation Administration employee. Mr. Troutwine had gone to the Dayton apartment Russell shared with his girlfriend and co-defendant, Candace Hargrove, in order to meet Hargrove for paid sex after having met her on a telephone dating service.

Once Troutwine arrived, Russell jumped out of a hiding spot and shot Troutwine in the head, fatally wounding him. Russell wrapped Troutwine’s body in a tarp, dragged him down the stairs, and dumped him

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CRIMINAL LAW: Leon Daidone Retires continued from page 10 into the trunk of a car. The body was not discovered for three weeks. At trial, the defendant claimed alibi and produced receipts, ticket stubs and family members to corroborate the alibi. The jury, however, rejected the defendant’s claims and found him guilty on all charges.

State of Ohio v. Christian Gabriel

Twenty-two years ago, on February 7, 1999, Christian Gabriel, along with Jan Franks and another individual, hit 10 year old Erica Baker with their van as Erica walked her dog near the Kettering Recreational Center.

They buried her body in a location that, still today, remains unidentified. Erica’s disappearance resulted in an exhaustive search and years of unanswered questions as to what happened to her. With thousands of hours of document review, legal research, and both pre-indictment and pretrial work by Leon that spanned several years, the State was finally able to bring charges against Christian Gabriel after Jan Franks’ death.

This case involved much-publicized litigation over Franks’ attorney’s refusal to testify before the Grand Jury concerning statements made by Jan Franks about the incident before Franks’ death following a waiver of the attorney-client privilege by Franks’ husband. The State prevailed on that issue in every reviewing court from the Montgomery County Common Pleas Court to the Ohio Supreme Court. The result was a grueling and emotional week-long jury trial that was aired both locally and nationally on several television networks. The discovery in the case exceeded 10,000 pages. Despite the defendant’s refusal to identify the location of Erica’s body and thus, the absence of the main piece of evidence, a jury convicted the defendant of Gross Abuse of a Corpse and Tampering with Evidence.

After trial on this case, Leon received a letter from the Warden of the Southeastern Correctional Institution where Gabriel had been imprisoned on another offense when the trial began. The Warden wrote, “I appreciate your dedication and dogged determination that it took to get to this point with this case. I especially appreciate the manner in which you made Erica your own cause. I sense you were totally immersed in this case and it went beyond being just another case to you… I am better person because of my exposure to you during this case. I think it is good for us to be exposed to true professionals fighting tooth and nail for the right things. Possibly there exists lesser professionals in some lesser place who may not have seen this case to the end that you did and I am so grateful that it landed in your world.”

Last, is the gruesome case of State of Ohio v. Larry James Gapen To this day, the 911 call in this case is still one of the most haunting calls I’ve ever heard. On June 24, 2000, Gapen snuck into the home of his soon to be ex-wife, Martha Madewell, as she slept on the couch. He removed his pants and was in the process of binding her hands and feet when she awoke and managed to get away. Gapen was charged with Abduction and placed on Electronic Home Detention while awaiting trial. Three months later, he broke his electronic home detention, entered his ex-wife’s home as the family slept, and killed Martha, his thirteen year old step-daughter Jessica Young, and Martha’s boyfriend Nathan Marshall, by savagely and repeatedly striking them each with a wood maul. Gapen then fled the house with his eight and ten year old step children, but was arrested later that same morning. During the interview by the detective, Gapen admitted to the killings, claiming he’d “never felt better in his life.” Gapen was convicted of multiple charges, including Aggravated Murder and death penalty specifications. He was sentenced to death in June of 2001.

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The list of Leon’s notable trials is quite long. This small sampling only touches the surface of the complex and serious cases he has tried throughout his distinguished career. His work ethic, dedication, compassion, and passion are truly exemplary.

Leon was not only an exceptional trial attorney, but he was an even greater mentor and friend to the assistant prosecutors with whom he worked. His patience was endless. His energy boundless. He’d often snap his fingers and with a wry grin say, “try to keep up!” His attention to detail was nothing short of pure perfection. While as an assistant prosecuting attorney (and perhaps even today) my writing was often more formal. Leon would often tell me to “Jersey it up a little!” He may have lived in Ohio for more than half his life, but “Jersey” never left him!

He not only worked hard, he made himself available twenty four hours a day, seven days a week. And that was not lip service. Leon meant with all sincerity the thousands of times he told assistant prosecutors to call him day or night, “even at 2am,” if they needed anything. I cannot recall the number of times I spent on the phone with Leon working through an issue until the wee hours of the morning or working side by side on evenings and weekends and late into the night preparing for a trial. Leon had the experience and position such that he could have simply left his trial partner to do the grunt work, but he never did. Not once. Not ever. He always put in as much time, if not more. He never left any trial partner to pull his weight and theirs. There are hundreds of prosecutors spread across Montgomery County and beyond who thrived and excelled at their craft because of Leon. His trial and mentoring skills are simply unmatched.

Prosecutor Mat Heck worked with Leon for four decades. Their stories are legendary! Mat said of Leon, “Leon is a people person who knows the value of establishing relationships with co-workers and our criminal justice partners. As an accomplished trial lawyer, he best illustrates the importance of always being prepared and has trained countless assistant prosecutors to do the same. We will definitely miss Leon and his contributions to my office. I wish him and Connie the best in his retirement [and hope he uses this time to become a better fisherman!!].”

continued on page 13

DAILY COURT REPORTER www.DailyCourt.com

Miami Valley's Choice For Effective, Afforable, Legal Publishing!

See for yourself in your complimentary DBA edition of the Daily Court Reporter For More Information: dcr120@dailycourt.com

February 2021Dayton Bar Briefs

11

Diversity Issues

Thurgood Marshall: The Great Influencer

By Brandon C. McClain Montgomery County Recorder McClainB@mcohio.org | 937. 225.4275

C

urrently, many Americans- particularly those who identify as members of marginalized groups or populations- feel less like citizens and more like outsiders to a secret society.

Ironically enough, this identical sentiment existed during the 1930’s, which is when the world was introduced to an attorney by the name of Thurgood Marshall.

In 1935, Marshall achieved his first major court victory in Murray v. Pearson, a case where suit was filed against the University of Maryland for denying a black applicant admission to its law school because of his race. While this case was not heard by the United States Supreme Court, it provided the legal strategy and framework which eventually led to the 1954 landmark decision of Brown v. Board of Education of Topeka. Marshall would not win a Supreme Court case until 1943, but it would be his first victory of many- literally. From 1943 to 1961, he won 29 of the 32 cases he argued before the Court.1 While he is known affectionately as “Mr. Civil Rights”, he was known to be exceptionally knowledgeable in many other areas of law. Aside from civil rights cases, Marshall also successfully argued cases pertaining to labor-management relations, internal revenue violations and corporate structures.2 In 1961, he was appointed Judge of the United States Court of Appeals for the Second Circuit. In 1965, he was appointed the 32nd Solicitor General of the United States; and in 1967, Marshall was appointed Associate Justice of the Supreme Court of the United States- becoming the first African-American to hold the post. He would serve on the Court until his retirement in 1991 due to health concerns.3 He died in 1993. He would never practice law again after stepping away from the bench.

His legal career influenced many aspiring legal professionals to be a voice for those who would otherwise be silenced- with many becoming prominent judges and law school deans. However, no legal professional who was influenced by Marshall has been more notable than Ruth Bader Ginsburg. Long before we knew her as a Supreme Court Justice or “the Notorious RBG”; she was a woman lawyer who, like Marshall, had personally experienced the discourse of discrimination. Also, like Marshall, her personal experiences would fuel her to 12

Dayton Bar Briefs February 2021

use the Constitution to eradicate inequality. While Marshall dedicated his legal career to dismantling legal segregation throughout America, Ginsburg dedicated hers to being a champion for gender equality and women’s rights. In 1972, she founded the ACLU Women’s Rights Project, advocating to the Supreme Court for gender equity in nine gender-discrimination cases from 1972 to 1980.4 Ginsburg fought not just for women, but also for men who were discriminated against. In total, she successfully argued five out of six cases before the Supreme Court, achieving her first major victory in the 1973 Frontiero v. Richardson case.5 To prevail, she had to convince nine male justices to thwart traditional gender stereotypes, as the first female Supreme Court Justice was not appointed until 1981.6 Like Marshall, many of Ginsburg’s legal arguments against discrimination relied upon the 14th Amendment. In 1980, Ginsburg was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit; and in 1993, she was appointed Associate Justice of the Supreme Court of the United States- becoming the second woman to hold the post.7

continued on page 13

ENDNOTES: Thurgood Marshall. (2020, September 28). Retrieved January 08, 2021, from https:// www.biography.com/law-figure/thurgood-marshall.

2 Hines, Erma Waddy, "Thurgood Marshall's Speeches on Equality and Justice Under the Law, 1965-1967." (1979). LSU Historical Dissertations and Theses. 3335. https:// digitalcommons.lsu.edu/gradschool_disstheses/3335.

3 Https://www.oyez.org/justices/thurgood_marshall. (n.d.). Retrieved January 08, 2021, from https://www.oyez.org/justices/thurgood_marshall.

4 Tribute: The Legacy of Ruth Bader Ginsburg and WRP Staff. (n.d.). Retrieved January 08, 2021, from https://www.aclu.org/other/tribute-legacy-ruth-bader-ginsburg-andwrp-staff.

5 Campbell, A. L. (n.d.). Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s and the ACLU Women’s Rights Project. https://www.aclu.org/sites/default/files/ FilesPDFs/campbell.pdf.

6 Sandra Day O'Connor nominated to Supreme Court. (2010, February 09). Retrieved January 08, 2021, from https://www.history.com/this-day-in-history/oconnornominated-to-supreme-court.

7 Biographies of Associate Justices Ruth Bader Ginsburg. (n.d.). Retrieved January 08, 2021, from https://www.supremecourt.gov/about/biographyGinsburg.aspx.

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937.222.7902

DIVERSITY ISSUES: Thurgood Marshall: The Great Influencer continued from page 12 She would serve on the Court until her passing in late 2020, at the age of 87, due to complications of metastatic pancreatic cancer.8 Her legal career and dedication to abolishing gender discrimination has led many to warmly call her “the Thurgood Marshall of gender equality law”.9 When asked about the comparison to Justice Thurgood Marshall, she humbly acknowledged a variety of similarities with admiration, but also highlighted a distinct difference. Ginsburg stated:

"He was my model as a lawyer … I took a step-by-step, incremental approach, well, that’s what Marshall did. He didn’t come to the Court on day one and say, ‘End apartheid in America ’He started with law schools and universities, and until he had those building blocks, he didn’t ask the Court to end separate-butequal. Of course, there was a huge difference between the litigation for gender equality in the ’70s and the civil rights struggles in the ’50s and ’60s. The difference between Thurgood Marshall and me, most notably, is that my life was never in danger. His was. He would go to a Southern town to defend people and he literally didn't know whether he would be alive at the end of the day.”10 Today, many aspects of America are different from the days of the civil rights and women’s right movements. Yet, many aspects of life for members of marginalized groups and populations in America have remained the same. Undoubtedly, discrimination- whether it be racial or gender-based- still exists in this country. While much work remains to achieve true equality; the late Justices Thurgood Marshall and Ruth Bader Ginsburg made their mark as champions for equality. Their legacies still influence the direction of law and policy today while also inspiring the legal minds of tomorrow.

Even in their absence, the war for equality continues.

ENDNOTES: Id. McQuade, B. (2020, September 20). Ruth Bader Ginsburg's life and work propelled women's equality front and center. Retrieved January 08, 2021, from https://www.usatoday.com/story/opinion/2020/09/18/ruthbader-ginsburg-supreme-court-women-history-column/5834820002/.

10 Jeffrey Rosen, “Ruth Bader Ginsburg is an American Hero,” New Republic (Sept. 28, 2014), para. 61.

8 9

CRIMINAL LAW: Leon Daidone Retires continued from page 11 Leon has been married to his wife, Connie, a Pharmacist, for nearly forty years. They have two daughters, Danielle and Lauren. Danielle graduated from the University of Pennsylvania and Indiana University with a dual Ph.D. in Second Language Studies and Hispanic Linguistics.

She teaches at the University of North Carolina, Wilmington. Lauren (Daidone) Snowden was recently married and lives in Miamisburg with her husband Adam. She graduated from Ohio University with a BFA in Dance. She is the Assistant Director of the University of Dayton Dance Ensemble and works as a dance instructor and choreographer at a number of dance studios.

A fun fact that some know about Leon is that he can dance – and dance well. Both of his daughters were avid dancers and on the Vandalia-Butler Kickline. The Dads of the Kickline girls formed their own dance squad called “Mantasia” and created the wildly popular dances that can still be found on YouTube today! Leon was and is the Dad that didn’t miss anything. To him, family is everything.

Leon, you will be truly missed not only for the exceptional attorney, consummate professional and gentleman that you are, but for your kindness and compassion to everyone. We all wish you the very best in your retirement.

DBA Annual

Diversity Day 4.2.2021

www.daybar.org

February 2021Dayton Bar Briefs

13

C ontinuing L egal E ducation Tues. February 9 | 10am-11am | 1.0 Gen Hr | CLE#: 2021067

Wed. February 10 | 4pm-5pm | 1.0 GEn Hr | CLE#: 2021063

LIVE CLE!

LIVE CLE! Presented by the Estate Planning Trust & Probate Section:

Working With a Professional Forensic Genealogist

Attorney Fees in Probate, Trusts, Guardianships and Powers of Attorney

M $35 | NL <2yrs & Paralegal $15 | PP & LS $0 Speaker: Laurie Hermance-Moore, Columbus, OH Accredited Genealogist

Not all attorneys have had an opportunity to become familiar with the qualifications and experience of a credentialed genealogist vs. anyone who can do family history research or search for heirs. Professional genealogists have the ability to help to resolve a case and to write a court-ready report or affidavit.

Agenda: 10:00am-11:00am 1. What is a Forensic Genealogist?

2. Standards of Professional Genealogy 3. How Genealogists Work: Overview of a Typical Project 4. Genealogist Qualifications/ How to Locate a Pro

M $35 | NL <2yrs & Paralegal $15 | PP & LS $0 Speakers: Edward M. Smith & Jack A. Pook Nolan, Sprowl, and Smith

Addressing the complex legal, ethical and practical issues that arise in earning attorney fees in probate law matters.

Agenda: 12:00pm-1:00pm -Statutory framework for attorney fees -The Ohio Rules of Superintendence -The Rules of Professional Conduct on the award of attorney fees - Relevant ethical and probate court and appellate court decisions on attorney fees in probate,

5. Q&A

trusts, guardianships and Powers of Attorney

Coming Up in March!

Wed. March 10 | Noon-1pm | 1.0 Gen Hr | CLE#: 2021070 LIVE CLE!

Appellate Practice at the Ohio Supreme Court M $105 | NL <2yrs & Paralegal $50 | PP & LS $0 Speaker: Justice R. Patrick DeWine, OH Supreme Ct This program will examine the process of what happens after the Court of Appeals issues their decision. Justice DeWine will discuss the mechanics of appealing to the Ohio Supreme Court, including what goes into jurisdictional memoranda, what the Court looks for when exercising its jurisdiction, and what happens to your appeal after the Court exercises its jurisdiction. Justice DeWine will also discuss court technology changes made in response to the Covid pandemic.

Fri. March 12 | 8:30am-4:30pm | 6.0 Gen Hrs | CLE#: 2021068 LIVE Annual CLE Institute!

2021 Probate Law Institute M $210 | NL <2yrs & Paralegal $105 | PP & LS $0 Speaker(s): Elizabeth Weinewuth Esq., Vorys, Cincinnati Albert Leland and Frank Williams Esq., Dayton David C. Greer Esq., Bieser, Greer & Landis, LLP Mag. Nancy Miller, Lucas County Probate Court Agenda: (*Some speakers subject to change) • 12:00-1:00pm • 8:30-9:30am Conflicting Views on Conflicts of Interest in • 1:00-2:00pm

Probate & Estate Planning - 1.0 hr

Elizabeth Weinewuth Esq. • 2:00 -2:15pm • 9:30-10:30am Business Succession Planning in the • 2:15 -3:15pm

Estate Planning Context - 1.0 hr

Albert Leland and Frank Williams Esq. (pending)

• 10:30-10:45am Break • 3:30-4:30pm • 10:45-11:45am The Never Ending History of 11th Hour Estate

Plans: Even the Best Gang Aft Aglay,- 1.0 hr

David C. Greer Esq. 14

Dayton Bar Briefs February 2021

Adam Fried Esq., Reminger Sherif Soliman, M.D Hon. David Brannon & Magistrates and Staff, Montgomery County Probate Court

Lunch Case Law Update - 1.0 hr Mag. Nancy Miller Break The Conundrum of Testamentary Capacity and Incapacity - 1.0 hr Adam Fried Esq. and Sherif Soliman, M.D. (pending) Montgomery County Probate Court “Hour of Power:” Welcome To Our New Judge- 1.0 hr Hon. David Brannon, Magistrates and Staff

937.222.7902

Make Your Resolution Matter. Donate Blood.

Blood & Covid Convalescent Plasma (CCP) Drive(s) Presented by the DBA Leadership Development Class!

SATURDAY FEBRUARY 20, 2021 7:00AM TO 1:00PM Community Blood Center 349 S. Main Street, Downtown Dayton 937-461-3220

To Schedule Appointment: • Go to: www.donortime.com • Donor Log In • Donate Now

•Search Schedules (left) •Choose Donor Center: CBC DAYTON 349 S MAIN ST

Donate CovidConvalescent Plasma (CCP) CCP Donors…

• Must be symptom free for 14 days • Able to donate as frequently as 1-time per wk, up to 8-times in 3-mths • Can donate CCP 3-mths after receiving a plasma transfusion • Bring copy of your Positive or Antibody Test • Receive a $25 Kroger Gift Card!

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Rising Star

Lanese D. Layne Esq. Staff Attorney, Legal Aid of Western Ohio, Inc.

L

anese Layne is a staff attorney at Legal Aid of Western Ohio, Inc. (LAWO).

When asked to describe herself, she did so by stating that she is creative, diligent and hardworking, especially when it comes to serving others. Lanese is service oriented not only in her professional life but in her personal life as well. In addition to reading poetry, and spending time with her family, her friends and her new toy poodle puppy, Honey, Lanese actively volunteers at two organizations that channel her passion for serve towards others.

Lanese currently serves as 2nd Vice President of the Board of Directors at Family Services.

Family Services is a Dayton based association committed to strengthening families and communities through counseling, education, community building and advocacy. She is also on the Programs Committee for Dress for Success. Dress for Success is an organization dedicated to empowering women to achieve economic independence and overcome employment barriers.

Before attending law school, Lanese attended Hampton University. Hampton University is a historically black university located in Hampton, Virginia. While at Hampton University she not only obtained a Bachelors of Science degree in Marketing but graduated with both University and Departmental Honors. While attending Hampton University, she was involved in many activities and organizations including: playing the clarinet in the Hampton University Marching Band, “The Marching Force,” and participating in the Student Leadership Program which was a program that provided community service experiences and interpersonal and leadership skills training.

A Cincinnatian, Lanese moved to Dayton to attend the University of Dayton School of Law. Lanese was attracted to UD School of Law because of its Marianist mission of service to and serving the community. She expressed that she was extremely fortunate to have the opportunity to attend a law school that embodied the same values as those instilled by her parents. In fact, during law school she had the opportunity to work with many service-oriented organizations which included the Volunteer Student Law Project.

Lanese earned the Pro Bono Commitment to the Community Award which is awarded 16

Dayton Bar Briefs February 2021

to graduates that completed 50+ hours of community service during their law school tenure along with additionally receiving the Lisa A. Kloppenberg public interest stipend award. Moreover, she earned a CALI Award for Interviewing, Counseling and Negotiation.

Like all of us, before you become a lawyer something inspires you to pursue this career path. For Lanese, it began with her parents and then a meeting with a Legal Aide attorney.

At an early age, Lanese’s parents instilled in her a core set of values: faith, education and service- service to family and service to others.

While in middle school, while completing a career research project on careers in the legal profession, she had the opportunity to speak with a Legal Aid Attorney that attended her church. Hearing the attorney speaking about their client success stories and hearing how a Legal Aid attorney was able to be of service and to be an agent of change for the community was truly inspiring to a young Lanese and lead her on the attorney career path. On reflecting on her experience, she stated that “so often we forget, that for our youth, you can’t be what you can’t see and I saw what I could be through my interactions with my family and through my meeting with a Legal Aid attorney.”

Lanese has worked at LAWO for approximately 2.5 years. Lanese expressed that what attracted her to LAWO was that she could use her legal knowledge and skills to advocate for individuals who have been historically marginalized. At LAWO Lanese is a part of a community lawyering project called Neighborhoods B.U.I.L.D. (Bringing Urban Initiatives Through Legal Development) Dayton. The project provides technical assistance in the form of sharing information and expertise, instruction, skills training and legal representation to resident-led advocacy initiatives in disinvested Dayton neighborhoods and communities; these particular neighborhoods are mostly located in East and West Dayton.

Her work is not confined to one practice area but rather she practices in the issues identified by the residents and to that end has practiced in the following areas: landlord-tenant and affordable housing preservation, debt collection, bankruptcy, reentry work including

continued on page 17

937.222.7902

DBA RISING STAR: Lanese D. Layne Esq. continued from page 16

driver’s license reinstatement and Certificate of Qualification for Employment (or CQE).

Lanese also facilitates a virtual holistic counsel and advice legal clinic for veterans and military personnel in need. Additionally, Lanese received the Paula J. McIlwaine Women Making a Difference Award from the Dayton Foundation for conducting numerous driver’s license reinstatement clinics throughout the Dayton area in 2019.

When asked what her biggest strengths are as a lawyer, Lanese expressed that she adheres to the golden rule of treating others how she wants to be treated. She further stated that her ability to empathize with her clients instead of sympathizing with them helps her best serve their needs.

When posed with the question, what is she most passionate about as a lawyer, Lanese expressed that she is most passionate about recruiting the next generation of public interest lawyers. In fact, this passion is what led her to get involved with the Summer Associate Program (SAP) committee at LAWO. The SAP committee recruits 2L and 3L law students interested in the public interest sector and provides them with a meaningful summer work experience, and perhaps a pathway to a public interest career.

When asked on what tips she can offer young lawyers in managing their caseload, Lanese had some helpful tips. She said that it is important to know your cases and your clients. She advised that it is important for you to prioritize your caseload because due to the nature and type of case, some cases will take more time than others. She stated that it is vital to manage your time and to this end is a necessity to be organized and be able to distinguish between urgent and non-urgent tasks. Lanese expressed that she usually tackles the most difficult tasks early in the day. Lastly, she advised utilizing both your supervisor and support staff.

Lanese is an active member of the Dayton Bar Association. She is a graduate of the DBA Leadership Development Program (2019-2020). She is also in her second term of serving as Co-Chair of the DBA’s Diversity Issues Section. She encourages DBA members to join a DBA Section and attend Chancery Club Luncheons as they allow you to connect www.daybar.org

upcoming Chancery Club Luncheons

with like-minded members of the Greater Dayton legal community which includes not only other practitioners, but also judges, law professors and law students. Lastly, she believes that the DBA CLE Passport is something that members should seriously look into as it is a great deal and a good way to attend the wide variety of continuing legal education seminars offered by the DBA.

Join us monthly for our upcoming year of luncheons!

The Chancery Club will be held virtually until further notice.

We still have lined up great speakers & content.

Grab lunch from your kitchen, or take a moment in your office to network and catch up with one another!

Virtual Chancery Club Dates:

By Sarita L. Simon Esq. Montgomery Cty Juvenile Court ssimon@mcjcohio.org | 937. 225.5491

DAYTON Bar Association

February 10th March 12th April 9th May 7th

HERBERT M. EIKENBARY

Trust

What is The Eikenbary Trust?

The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance.

Individual loans, are available up to $6,000 at 4% interest, while grants up to $4,000 are also available.

To Apply: Jennifer Otchy,DBA Chief Executive Officer Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org February 2021Dayton Bar Briefs

17

Federal Practice

The Legacy of Bush v. Gore

I

n the year 2000, I was 31 years old (please – no need to do the math) and voted in a presidential election for the fourth time.

The run-up to the election seemed relatively normal, as did our choices: we could continue the existing administration by electing its vice president or we could change direction by elevating a southern governor with an elite pedigree. It was a very ordinary campaign and I - like most Americans - expected nothing exceptional from the election process. We did not foresee legal teams doing battle culminating in the Supreme Court’s 5-4 decision (split precisely along party lines) in Bush v. Gore, 531 U.S. 98.1 Most readers will recognize the precedent that Bush v. Gore established: the Constitution’s Equal Protection Clause demands equal treatment regarding who may vote (“the initial allocation of the franchise”) and how votes are counted (the “manner” of exercising the franchise). The holding of Bush v. Gore surprised me, in part because it conflicted with the majority’s historical skepticism of equal protection claims and its reluctance to interfere in matters left to the states (each state runs its own electoral process). Since 2000, many Americans have been discouraged (or encouraged, depending upon their political stripe) by the widespread belief that a Supreme Court majority would reliably deliver a contested presidential election to the majority’s favored party.2 Despite the Court’s attempt to limit its decision “to the present circumstances,” Bush v. Gore predictably opened a virtual floodgate of election-related litigation, effectively making federal courts the supervisors of state election processes. Ohio has faced a flurry of such lawsuits, including a 2004 case seeking an emergency stay that the Supreme Court denied before dawn on Election Day. In 2008, provisional ballots and voter identification laws occupied federal courts in Ohio and Florida (among other states); the years 2012 and 2016 saw even more election-related litigation in Ohio federal courts and the Sixth Circuit.

Unsurprisingly, many post-Bush v. Gore cases sought injunctive relief. While federal courts dismissed a significant number of these cases without reaching the merits, some have involved expedited discovery, expert testimony, statistical analyses and judicial factfinding.3 18

Dayton Bar Briefs February 2021

The trend was spreading to battleground states like Wisconsin.

The year 2020 promised even more fast-paced election litigation.

Most of us would agree that politicians and their attorneys delivered on that promise. But to paraphrase the Sondheim musical, a funny thing happened on the way through the courts.

There are too many cases (40+ were filed after Election Day) to summarize here, but some trends are worth noting and discussing – a topic we will take up during the next Federal Practice Section Meeting on February 15 at noon. Please join us!

In Texas v. Pennsylvania, 592 U.S. 155 (2020), the Supreme Court made headlines by rejecting Texas’ attempt to sue Pennsylvania, Georgia, Michigan, and Wisconsin to invalidate their citizens’ (allegedly illegal) votes. Among other things, Texas asserted that its sister states had violated Bush v. Gore by unlawfully interpreting their election laws to provide unequal (i.e., more favorable) treatment to Democratic voters (or at least to voters expected to lean towards electing Democrats). Texas relied in part on an expert’s opinion that, based on the Trump/Pence ticket’s early leads in the challenged state elections, the odds of victory for the Biden/Harris ticket was “less than one in a quadrillion or 1 in 1,000,000,000,000,000.”

The Supreme Court summarily denied Texas Representative Louie Gohmert’s request for leave to file the petition: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Multiple courts have applied the same or similar constitutional and jurisprudential limits on judicial authority (e.g., standing, laches) to resolve these lawsuits.

continued on page 19

ENDNOTES: As an aside, Bush v. Gore affirmed that United States citizens have no federal constitutional right to vote for the electors who choose our president. Each state’s legislature retains plenary power to determine how electors are appointed.

2 The current administration’s emphasis on filling Justice Ruth Bader Ginsburg’s seat before the election suggested that President Trump believed that the appointment provides a critical advantage.

3 My very favorite lawyer, Caroline Gentry, repeatedly fought to preserve free and fair election processes in multiple federal court lawsuits after Bush v. Gore opened the door to Equal Protection challenges.

1

937.222.7902

The DBA Board of Trustees have approved the following for DBA membership during the January Board Meeting of the Trustees!

ATTORNEYS: Jessica A. Eichenlaub Miami Cty. Prosecutors Office

Magdalena E. Myers Kaman & Cusimano, LLC

Admitted to Ohio Bar: 12/20

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Alia E. Sisson Auman Mahan & Furry

Admitted to Ohio Bar: 5/20

Admitted to Ohio Bar: 5/19

Chase T. Kirby Smith Meier & Webb, LPA

Christopher M. Wolcott Taft Stettinius & Hollister

Admitted to Ohio Bar: 12/20

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FEDERAL PRACTICE: The Legacy of Bush v. Gore continued from page 18 The most recent court challenge to run its course (as this article is being written) was filed on December 27, 2020 by Rep. Gohmert and several Arizona Republicans against Vice President Mike Pence in the Eastern District of Texas.4 United States District Judge Jeremy D. Kernodle, a Republican appointed by President Trump, dismissed Rep. Gohmert’s lawsuit. An all Republican-appointed three judge panel (including another judge that President Trump appointed) affirmed Judge Kernodle’s decision and dismissed the appeal.5 As Judge Kernodle stated, satisfying the Constitution’s case or controversy provision ensures “that the judiciary respects the proper – and properly limited – role of the courts in a democratic

society.” (citations and internal quotations omitted). The speed with which Rep. Gohmert’s case was dismissed is extraordinary and impressive – particularly if you believed that Bush v. Gore established a precedent for partisan judicial favoritism.6 In sum, the year 2020 involved many election-related lawsuits, saw troubling accusations levied against state and local elections officials, and tested the limits of our democratic system of government. Even so, I am encouraged to see our federal courts apply long-standing jurisdictional boundaries that reinforce the bedrock principle of separation of powers, build confidence that checks and balances really work, and show judicial esteem for democracy and the will of

the people. I fervently hope that the events of the next 30 days provide similar encouragement to our electorate and we can move forward with greater unity.

By Daniel J. Gentry Esq. Coolidge Wall Co., LPA gentry@coollaw.com | 937. 223.8177

ENDNOTES: Rep. Gohmert sought a declaratory judgment striking down the Electoral Count Act of 1887 and several other federal statutes to permit Vice President Mike Pence to reject certified electors’ votes from Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin.

Although the Gohmert case attracted the most headlines, multiple similar lawsuits have been filed in this election cycle. The plaintiffs in such suits seek to reject and unseat Democratic electors, undo state election certifications by governors and secretaries of state, and allow state legislatures to select electors without regard to the certified results. Allowing legislatures to select electors directly violates most states’ laws although it is nominally consistent with

4

www.daybar.org

the Constitution and Bush v. Gore. For readers interested in learning more – and reading some extraordinary briefs submitted in these cases -- the Ohio State University Moritz College of Law tracks these cases. Go to https://electioncases.osu.edu/casetracker/?sortby=filing_date_desc&keywords=&status =all&state=all&topic=25 for the presidential election caselaw tracking site.

5 After extremely expedited briefing (December 31, 2020-January 1, 2021), Judge Kernodle decided on January 1, 2021 that Rep. Gohmert and the other Plaintiffs lacked standing to sue – and that they were suing the wrong person. The plaintiffs appealed on January 1, moved to expedite the appeal on January

2, 2021, and the Fifth Circuit dismissed the appeal on January 2, 2021.

6 Undoubtedly, critics will complain that judges who decline to issue decisions on the merits are dodging their obligations to make substantive decisions, proving that even as a judge, you cannot win them all.

February 2021Dayton Bar Briefs

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From the Judges Desk

Didn't see that coming!

L

ast year, I wrote my very first “From the Judges Desk” article for the Dayton Bar Briefs in my new role as a Common Pleas Court Judge. As I’m sure you’ll recall (insert laughing emoji), it was entitled “Resilience.” When I wrote the article in December 2019, for the February 2020 issue, we had just endured a tragic year involving the Memorial Day Tornadoes, the mass shooting in the Oregon District, and the murder of Det. Jorge DelRio in the line of duty, just to name a few. My very last sentence expressed hope and resilience for 2020.

Oh 2020… we didn’t know what you had in store for us. Let’s recap a few of the noteworthy buzz words of 2020 that entered our vocabulary on a daily basis: Novel Coronavirus, Covid-19, unprecedented, new normal, pivot, social distancing, self-isolation, flatten the curve, remote learning, zoom, essential workers, working remotely, global pandemic, Fauci, and of course, quarantine. The latter word makes me shudder. Having experienced this on multiple occasions with my school-aged children, let’s just say I would prefer to eliminate this word altogether from our vocabulary.

In a recent email exchange with our superintendent of schools, his response to one of my many questions ended with, “[w]e will try to give parents as much runway as possible…” That was a new one! The runway analogy really stuck with me though. What I found was the runway we’ve been given throughout this pandemic has, at times, been extraordinarily short, causing us to have to pivot on a dime. Still other times, the runway was never ending, with no real way to take off or end the flight and with no direction on what to do next. We had to just keep moving forward and hope that solid direction materialized and provided guidance to take off or end the flight early.

Eight months into my tenure as a judge, we had to pivot almost immediately, embrace technology to the greatest degree, learn on a dime how to conduct hearings remotely, safely conduct jury trials, socially distance in the courtroom, and learn to speak clearly through a mask and plexiglass screens. Hats off and bravo to the attorneys who adapted and

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Dayton Bar Briefs February 2021

By The Honorable Mary E. Montgomery Montgomery County Court of Common Pleas mary.montgomery@montcourt.oh.gov| 937. 225.4055 overcame so many obstacles to keep the wheels of justice turning and moving forward down the proverbial runway. From conducting depositions via Zoom and learning to screen share with experts, to criminal defendants and their counsel using the Court’s remote technology to appear virtually in the courtroom for a variety of hearings, including pleas and sentencings. We are all creatively learning and adapting quickly on the runway we’ve been given. Sometimes it’s been bumpy, other times smooth and still other times, we’ve gone off the runway altogether. But somehow, we’ve all managed together to pull ourselves back up, get back on the runway, figure out a new way of doing business and truck forward. So I guess 2020 was all about being resilient; resilient in the face of unprecedented obstacles and maybe, just maybe, we have found a way to thrive in our new normal. Those buzzwords of 2020 have a way of creeping into our everyday vernacular now without even trying! Carry on Counselors! You’re going a great job. Reach out if you need anything because, “we’re all in this together!”.

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JDBF uvenile Grants Law Dayton Bar Foundation

Now Accepting Applications!

2020-2021

Dayton Bar Foundation

Grants

deadline to apply March1st visit www.daybar.org

U pdates to O nline S elf -S tudy CLE Did you know?

Due to COVID-19, the Supreme Court of Ohio has waived the cap on self-study courses, including webinars.

All Judges, Magistrates and Attorneys Can Complete

ALL CLE Credits ONLINE For more information, visit: supremecourt.ohio.gov/AttySvcs/CLE/ To register for Self-Study CLE, visit: daybar.ce21.com/

Should you wish to be a presenter for a CLE or speak at an upcoming section meeting, Please contact Ashley: alikens@daybar.org www.daybar.org

February 2021Dayton Bar Briefs

21

Juvenile Law

GAL Rule 48 Changes

By Misty Connors Esq. Connors Law Office, LLC mistyconnors@att.net | 937.607.4060

By Serah Seimann Esq. Siemann & Associates Co., LPA ssiemann@siemannlaw.com 937.496.1450

E

veryone on the Guardian ad Litem (“GAL”) court appointment list at Montgomery County Juvenile Court (“MCJC”) received a letter from court administrator Eric Shafer on December 29, 2020 highlighting the changes to Ohio Supreme Court Rules of Superintendence Rule 48 (“Rule 48”) effective January 1, 2021. The juvenile law sub-committee for GAL’s outlined the below best practices we hope will help you revise your processes and update your GAL report drafting templates.

Responsibilities of the GAL

The responsibilities of the GAL are mostly unchanged by the revisions to Rule 48. Generally speaking, “[t]he role of guardian ad litem is to investigate the ward’s situation and then to ask the court to do what the guardian feels is in the ward’s best interest.” In re Baby Girl Baxter, (1985) 17 Ohio St.3d 229, 232, 479 N.E.2d 257. GAL statutory duties include without limitation the duty to “perform whatever functions are necessary to protect the best interest of the child, including, but not limited to, investigation, mediation, monitoring court proceedings, and monitoring the services provided the child by the public children services agency or private child placing agency that has temporary or permanent custody of the child, and shall file any motions and other court papers that are in the best interest of the child in accordance with rules adopted by the supreme court.” R.C. 2151.281. Changes to Rule 48 affecting the GAL’s duties are outlined below.

You may find it helpful to review the red-lined version of Rule 48 posted to the Ohio Supreme Court’s website.

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Dayton Bar Briefs February 2021

Child’s Wishes

Rule 48 now requires GALs to ascertain the wishes and concerns of the child. And “[u]pon becoming aware that the recommendations of the guardian ad litem differ from the wishes of the child, immediately notify the court in writing with notice to the parties or affected agencies.” Sup. R. 48.03(A)(5). Note the rules have no filing requirements associated with this notice, thus, a brief email with all counsel copied should suffice to accomplish the goal of notifying the court that the child’s wishes differ from the GAL’s recommendation. The court may decide the child’s wishes are effectively represented by counsel for a parent or appoint an attorney for the child. See R.C. 2151.352 and Juv.R.4(A). Note the rule says “immediately” notify the court. Hearings are scheduled under significant statutory time constraints and are not easily rescheduled.

Limited Scope Appointments

Be sure to carefully read the GAL appointment order because the court may file a “Limited Scope Appointment” to investigate a specific issue and relieving your duties inapplicable to the specific issues. Sup. R. 48.02(B).

These “limited scope” appointments may limit

the GAL’s scope to include investigating the child’s educational history, family dynamics, medical treatment, mental health treatment, or other specific issue the court determines a need for GAL services exists.

Dual Appointments

As noted above, when a conflict exists between what the child wants and what the GAL recommends, the GAL must notify the court. In cases where one person is appointed as both attorney and GAL and the child’s wishes differ from the GAL’s recommendation, the court will appoint a new GAL and a new attorney. The original dual appointee will no longer work on the case.

Dual appointments are no longer required when a complaint alleges a child is abused since revisions to Juv. R. 4 became effective July 1, 2020. MCJC no longer automatically issues orders for dual appointments of GAL/ Attorney in all abuse cases. If you are currently serving in a dual appointment, you may want to consider seeking leave to withdraw as counsel to avoid disruption of GAL services in the event a conflict arises. continued on page 23

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JUVENILE LAW: GAL Rule 48 Changes continued from page 22

D. Reports & Recommendations

The GAL report must include language explaining who may view the report and potential penalties for unauthorized disclosures. You should cite the exact language from the statute in your GAL report as follows: “The guardian ad litem report shall be provided to the court, unrepresented parties, and legal counsel. Any other disclosure of the report must be approved in advance by the court. Unauthorized disclosure or distribution of the report may be subject to court action, including the penalties for contempt, which include fine and/or incarceration.”

Ohio Sup. R. 48.06(A)(2).

The court will include the same language in your appointment entry under the new Rule 48. The report “shall affirmatively state that responsibilities have been met” Sup. R. 48.06(A)(1). You could comply by inserting the statement “I have met the GAL responsibilities set forth in Ohio Sup. R. 48.03, the Ohio Revised Code, and by this court as detailed below.”

MCJC previously provided a sample GAL report at Appendix 3 in the Local Rules of Court, which is available online at http://www.mcjcohio. org/wp-content/uploads/2020/11/MCJC-Local-Rules-of-Practice-andProcedure-1.pdf. Please note that the sample report was made part of the local rule before the new Rule 48 changes took place. You may continue using Appendix 3, but with the additional required language added.

E. Relief from Duties

In situations where completing all GAL duties is impossible or impracticable, you are required to inform the court that the duties were not complete and seek relief from the duties. One way to accomplish this is to include the motion for relief from certain duties in your GAL report, along with a detailed explanation of the reasons for non-compliance. Be sure to comply with MCJC Local Rule 11(d) by including the title of your Motion for Relief from Duties in the caption of your GAL Report, if you are seeking relief from any duties.

www.daybar.org

F. Additional Educational Requirements

The preservice course and annual continuing educational requirements have doubled to 12 and 6 hours, respectively. The court has, however, waived in-person requirements for calendar year 2021. https://www. supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-6725.pdf

II. Conclusion

While the new Rule 48 may seem a bit overwhelming, the amendments are meant to better serve court involved youth and provide valuable guidance to GAL’s on making the best possible recommendation to the court. Keep in mind that Rule 48 remains an “administrative directive that creates no individual rights and lacks the force of law.” See e.g. In re T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 36 (2d Dist.)(citing Corey v. Corey, 2d Dist. Greene No. 2013-CA-73, 2014-Ohio-3258, ¶ 9.).

MCJC has discretion regarding whether to follow or ignore the GAL recommendation. The attorneys in the Juvenile Law Section are here to engage in open discussion or provide feedback, as necessary. Please feel free to reach out to us with your questions and concerns as you perform your GAL duties.

Note: The Ohio Supreme Court has a red-lined version of the new rule available at http://www.sconet.state.oh.us/RuleAmendments/ documents/Proposed%20Amend.%20to%20Sup%20R%20%2048%20 (GAL%20standards)%20as%20edited%20by%20Court.doc.

February 2021Dayton Bar Briefs

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Lunsford v. Sterilite of Ohio, LLC: LLC: Ohio Supreme Court “Tinkles” with the Clash between the Employment-At-Will Doctrine and the Tort of Invasion of Privacy

O

n August 26, 2020, the Ohio Supreme Court held that when at-will employees provide urine samples for mandatory drug testing under a “direct-observation method[,]” they cannot sue their employer for invasion of privacy.

In Lunsford v. Sterilite of Ohio, LLC, Appellant Sterilite of Ohio, LLC (“Sterilite”) had a workplace substance-abuse policy as a condition of at-will employment.1 The policy provided that urinalysis screening would be used to test employees’ illegal or improper drug use, but was silent on the method for collecting samples.2 The policy further provided that after a supervisor instructed an employee to report for urinalysis screening, if the employee did not produce a sample within two and a half hours, they were considered to have refused the screening and would be terminated.3 In 2016, Sterilite hired a private company to administer urinalysis screening, and required it to collect samples using what it called the “direct-observation method.”4 Under this method, a same-sex monitor would accompany each employee into the restroom and visually observe them produce their sample.5 When Appellees were instructed by Sterilite to report for urinalysis screening, they complied without objection.6 Prior to screening, Appellees also executed a consent form, which identified that they agreed the administrator could “perform any testing necessary[.]”7 However, Appellees were only notified that the direct-observation method would be used after they reported to the designated restroom.8 Nonetheless, Appellees proceeded with the screening under the direct observation method without objection. Although two Appellees produced a urine sample, the remaining two Appellees were unsuccessful in doing so within two and half hours.9 Therefore, Sterilite terminated the remaining two Appellees.10 In December 2016, Appellees filed a complaint with the Stark County Common Pleas Court, which included a claim for invasion of privacy against Sterilite.11 Appellees argued it was an unreasonable invasion of privacy for them to submit urine samples under the direct-observation method, which was “highly offensive to a person of ordinary sensibilities,” and should be balanced against Sterilite’s legitimate business interests.12 Appellees further relied on federal administrative guidelines to support their arguments.13 In May 2017, 24

Dayton Bar Briefs February 2021

By Michael D. Rice Esq. Freund, Freeze & Arnold mrice@ffalaw.com | 937.222-2424 the trial court granted Sterilite’s motion to dismiss under Civ. R. 12(B) (6) and held that Ohio does not recognize an invasion-of-privacy claim by an at-will employee based solely on an employer's use of the direct-observation method, particularly when the employee consents to drug testing as a condition of their employment.14 However, in August 2018, the Fifth District Court of Appeals reversed the trial court’s decision, holding that Appellees had stated a valid invasion-of-privacy claim under the Ohio Supreme Court’s decision in Housh v. Peth, and that they had a “reasonable expectation of privacy with regard to the exposure of their genitals.”15 On August 26, 2020, in a 4-3 decision, the Ohio Supreme Court reversed the Fifth District Court of Appeals’ decision. In considering the underpinnings of the employment-at-will doctrine and commonlaw tort of invasion of privacy, and further recognizing distinct U.S. Supreme Court precedent, the majority held that because Appellees had consented to the direct-observation method, they could not pursue their common-law invasion-of-privacy claim. The majority reasoned that although Sterilite’s substance-abuse policy and consent form did not specifically identify that the direct-observation method would be used for urinalysis screening, that “does not change the outcome” since continued on page 25 ENDNOTES:

Lunsford v. Sterilite of Ohio, LLC, 2020-Ohio-4193, ¶ 3 (Aug. 26, 2020).

2 Id. at ¶ 4.

3 Id. at ¶ 5.

4 Id. at ¶ 6.

5 Id. 6 Id. at ¶ 7.

7 Id. at ¶ 8.

8 Id. at ¶ 9.

1

Id. at ¶ 10.

Id. 11 Id. at ¶ 11.

12 Id. at ¶ 11-12.

13 Id. at ¶ 13.

14 Id. at ¶ 14.

15 Id. at ¶ 15, citing Housh v. Peth, 165 Ohio St.35, 133 N.E.2d 340 (1956).

9

10

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virtual Chancery Club Luncheon

Lunsford v. Sterilite of Ohio, LLC: Ohio Supreme Court “Tinkles” with the Clash between the EmploymentAt-Will Doctrine and the Tort of Invasion of Privacy continued from page 24

February 10th | Noon-12:45 | Zoom

Appellees’ additional consent was borne from their actions in proceeding with the screening.17 The majority concluded that Sterilite had the right to condition at-will employment from an employee’s general consent to drug testing, that Appellees had the right to refuse to submit to the direct-observation method, and Sterilite thereafter had the right to terminate employees who failed to submit to its procedures.18 In writing for the dissent, relying on federal precedent and guidelines marginalized by the majority, Justice Melody J. Stewart held that Appellees’ invasion-of-privacy claim “ha[d] nothing to do with their status as at-will employees[,]” and that “[A]ppellees' complaint stated sufficient facts to show that Sterilite coerced [them] to submit to the humiliation of having their genitalia directly observed[.]”19 The dissent further found that Sterilite offered no reasonable justification for using the direct-observation method over less intrusive means.20 The dissent further noted that while the employment-at-will doctrine does permit an employer to terminate the employment relationship at any time, it does not permit employers to commit intentional torts, such as invasion of privacy, or terminate an employee for reasons contrary to public policy.21 The dissent emphasized that factual questions remained that were unamenable to Sterilite’s motion to dismiss, including the reasonableness of Sterilite's decision to use the direct-observation method, and Sterlite’s defense of direct or implied consent.22 The dissent averred that the majority had distorted Appellees’ consent by concluding that they had impliedly consented to the direct-observation method, all “without the employee's having a reasonable choice or there being limitations on the testing procedure.”23 The dissent further characterized the majority’s decision as “disproportionately affect[ing] workers who have no meaningful choice and no recourse for their employers' intentional torts.”24 The result from Lunsford is that an employer may provide general policies regarding its expectation for urinalysis screening, and thereafter implement specifics without notice to employees, even if they arguably infringe www.daybar.org

The DBA will be holding our first Chancery Club of 2021 Season!

Susan C. Wawrose, MSEd, JD Licensed Professional Counselor, Cedarwood Counseling Services and Retired Professor of Lawyering Skills, University of Dayton School of Law will speak on the topic "Staying Resilient During Uncertain Times".

Grab lunch from your kitchen or take a moment at your desk and join us for this great opportunity to check in and eat lunch together - virtually!

Reserve Your Spot and RSVP Online! daybar.org

on reasonable expectations of privacy. It cannot be ignored that businesses and government entities have valid interests in ensuring the health, safety, well-being, and productivity of their employees by using drug screening. However, that does not mean that Ohio employers should not be amenable to their atwill employees’ privacy concerns. Lunsford is likely not be the end-all in the clash between the employment-at-will doctrine and the tort of invasion-of-privacy. In fact, employers who use the direct-observation method could be vulnerable to forum shopping, given the apparent discrepancy between Ohio and federal precedent underscored by both the majority and dissent in Lunsford.

A best practice for an Ohio employer that wishes to rely on the direct-observation method may be to explicitly identify the method

in all employment contracts, handbooks, and consent waivers, and further outline the actual procedures to be used. Alternatively, employers may rely on less-intrusive means to ensure the health, safety, well-being, and productivity of their employees through urinalysis screening.

For example, as a condition of employment, employees could consent to a search before entering the restroom for screening. Audio authentication could be used instead of direct visual observation. Furthermore, a policy could be established providing that the directobservation method may be used when the employer has reasonable suspicion to do so.

Although the effect of the employmentat-will doctrine dominates the majority opinion in Lunsford, the same does not necessarily ring true when implementing best employment practices.

ENDNOTES:

Id. at ¶ 25-37, citing Sustin v. Fee, 69 Ohio St.2d 143, 431 N.E.2d 992 (1982); see also Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602, 626-627, 109 S.Ct. 1402 (1989).

17 Id. at ¶ 40-41.

18 Id. at ¶ 38-44.

16

Id. at ¶ 47-52, 55, 67.

Id. at ¶ 53.

21 Id. at ¶ 60-61.

22 Id. at ¶ 56, 63, 68.

23 Id. at ¶ 70.

24 Id. 19 20

February 2021Dayton Bar Briefs

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OLAP

The importance of self-love

I

n Alcoholics Anonymous, we recite the Serenity Prayer at every meeting:

[Higher Power], grant me the serenity To accept the things I cannot change; Courage to change the things I can; and wisdom to know the difference.

This is a powerful prayer, which asks a Higher Power to help us love and accept ourselves no matter what we have done in the past, what we do in the present or what we might do in the future. It helps us recognize what we can change about ourselves to lead healthier lives.

We can also think about this saying as a way to help us love ourselves.

Self-love is a basic human necessity. It means loving all parts of yourself: accepting your flaws and weaknesses, taking charge of your emotional, mental and physical well-being. Practicing self-love does not mean you are selfish or narcissistic. It means that you are taking the steps to be the best you to live a healthy and meaningful life.

I first learned about self-love in AA many years ago. I learned that once I started loving myself, it was much easier to create meaningful relationships, I slept better, and I had a better mentality on life, among many other things. As lawyers, we are responsible for other people’s problems. We help them with all parts of life, whether it’s buying a house, getting help for unfair employment practices, gaining custody, getting justice for a crime, etc. We are constantly helping and thinking about others’ issues, but it is very important that we take care of ourselves and learn how to love ourselves.

So what can we do to love ourselves?

Be aware of the negative voice inside your mind Have you heard it? The negative thought that pops into your head when you make a mistake, when you say the wrong words, when you wake up in the morning, when you are late? It might tell you that you are stupid, that you are ugly, that you are not good at your job. Learn to recognize these thoughts and challenge them. Replace them with something positive. For example, if you double-booked meetings, if the voice tells you that you’re unorganized and a failure, tell yourself that you will do a better job of keeping your calendar up to date. If you wake up in the morning and look in the mirror and the voice tells you that you are ugly and old, squash it. Tell yourself that you look pretty good for your age! Just as we start to believe our negative thoughts, if you replace them with positive affirmations, you will start to believe them.

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Dayton Bar Briefs February 2021

By Scott R. Mote Esq. Executive Director OLAP smote@ohiolap.org | 800).348.4343

Forgive yourself We all make mistakes. Let me be clear. You are going to make mistakes. You will fail. We all do! It’s how you recover from that mistake that matters. Forgive yourself. Holding on to negative feelings about a mistake will only cause a grudge, and grudges hold negative energy. Release that energy. Forgive yourself.

Put an end to toxic relationships A dysfunctional family member, a bitter friend, a nosy neighbor, a jerk law partner (yes, they exist!). These are just a few examples of toxic people. Think about the people who make you feel drained, confused, guilty, abused or taken for granted. You need to remove these toxic relationships from your life. A good friend of mine had a toxic relationship with his mother. She abandoned him when he was young, but then tried to make up for it when he got older and had a family of his own. After a couple years of trying to reconcile with her, he realized that she did not change. She was still her narcissistic self, she manipulated him, and she brought back tragic memories from when he was a child. This affected his relationship with his wife and his children. He finally realized that he could not have a relationship with her. It was toxic. Once he removed her from his life, his entire view of life changed for the better. Sometimes we don’t even realize that people are toxic, but once you remove them from your life, you can feel that a huge weight has been lifted.

continued on page 27

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OLAP: The importance of self-love continued from page 26

It’s ok to say no.

You are invited to several parties, lunch gatherings, soirees and galas. Your best friend is stressed and wants to get together to talk, your workload is heavy, your client needs you to review paperwork, you have to make time for your child’s holiday play, and your mom wants your help baking cookies. It is nearly impossible to meet everyone’s demands and say yes to their invitations. It’s ok to say no. If saying no is difficult for you, try “Thank you for the invitation, but I have a prior engagement” or “I would love to attend your event, but I have already committed to another event.”

If you are having trouble determining if you should say yes or no to the invitations, set up criteria based on your values. Ask yourself questions such as “Do I really want to do this? What do I gain from doing this?

Does it interfere with family events?” This will help you choose wisely.

It’s not your responsibility to make other people happy Many people believe that it’s their job to make others happy. This is far from the truth. For example, your significant other hasn’t been happy at her job. Every night you coach her and try to fix her problem. You start feeling stressed because you feel helpless and cannot fix it for her. There’s a difference between loving and supporting someone and trying to fix their problems in hopes that they will be happy. We cannot change how others feel. Your spouse is responsible for her own emotions. What you can do is support her, love her, listen to her and give her advice, but you cannot change the way she feels. She owns those emotions. The truest source of happiness comes from within.

Don’t forget about self-care Don’t forget to eat a healthy diet, get enough sleep, and exercise. There is only one you, and you are special. You deserve to be loved and treated with respect. That love starts from within.

If you find that you are stressed, anxious, or overwhelmed, seek help. The Ohio Lawyers Assistance Program helps lawyers, judges and law students manage life’s stresses. OLAP has saved lives, careers, marriages and families. All inquiries are confidential. (800) 348-4343 / ohiolap.orgg

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February 2021Dayton Bar Briefs

27

DBA Annual Partners Sponsors of the DBA.

Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.

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Thompson Hine LLP www.thompsonhine.com

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 7 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times. For 5 straight years, Thompson Hine has distinguished itself in all areas of Service De-livery Innovation in the BTI Brand Elite, where it has been recognized as one of the top 4 firms for “Value for the Dollar” and “Commitment to Help” and among the top 5 firms “making changes to improve the client experience.” The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTH® – a smarter way to work – predictable, efficient and aligned with client goals.

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Dayton Bar Briefs February 2021

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M embers on the M ove & C lassifieds Philip M. Borger has become a shareholder with Faulkner Garmhausen Keister & Shenk effective January 1, 2021.

BORGER

The Board of Trustees of the Greater Dayton Regional Transit Authority has elected Attorney David P. Williamson, partner in the law firm of Bieser, Greer & Landis, to serve as President of the Board for 2021. Williamson has served on the GDRTA Board as City of Dayton representative since 2011, and previously WILLIAMSON served as claims counsel in the 1980s and 90s. Past community service has included President of the Dayton Bar Association and the Dayton Rotary Club and Chair of the Access to Justice Campaign and Old Court House Renovation Committees.

If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you!

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February Classifieds LOCAL COURT RULES

Dayton Municipal Court has proposed changes to the Local Court Rules.

Please visit Dayton Municipal Court: daytonmunicipalcourt.org for notice of and an opportunity to view and comment on proposed local court rules.

MEDIATION/ARBITRATION Dennis J. Langer Retired Common Pleas Judge (937) 367-4776 LangerMediation.com

MEDIATION/ARBITRATION William H. Wolff Jr., LLC Retired Trial and Appellate Judge (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com

Ad Index Daily Court Reporter..................11 Eikenbary Trust.........................18 Ferneding Insurance...................9

MEDIATIONS

Jeffrey A. Hazlett Esq. 5276 Burning Bush Lane Kettering, Ohio 45429-5842 (937) 689-3193 hazlettjeffrey@gmail.com nadn.org/jeffrey-hazlett

LCNB Bank..................................5 NFP/Rogers McNay Insurance.......7 OBLIC............................back cover R.L. Emmons & Associates...........7 Trisha M. Duff - Mediations........13

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February 2021Dayton Bar Briefs

29

GLreater D aytonOV olunteer L awyers aw -R elated rganizations University of Dayton School of Law

Greater Dayton Volunteer Lawyers Project The Greater Dayton Volunteer Lawyers Project (VLP) wishes to THANK all of the Volunteers who have devoted time and effort in 2020, towards helping them reach there mission to provide pro bono civil legal services to benefit persons with limited financial resources.

Volunteers Needed!

Benefits •Gain Experience in the Courtroom •Gain Experience in a Particular Area of Law •Networking Opportunities •CLE Credit for Service

Get in Touch

•Help Low-Income Clients in the Community •Mentorship Opportunities •Volunteer Experience •Informational Seminars and Events

www.GDVLP.ORG (937) 461.3857 109 N Main Street, Suite 610 Dayton, OH 45402 email: gdvlp@gdvlp.org

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Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to: - Access for Justice - Advocates For Basic Legal Equality (ABLE) - Catholic Social Services of The Miami Valley - Greater Dayton Volunteer Lawyers Project (GDVLP) - Law & Leadership Institute - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Miami University Center Pre-Law Center - Wills for Heroes

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PRSRT STD U.S. POSTAGE PAID CLEVELAND, OH Permit No. 362