Bar Briefs
Bar Briefs
DBA Board of Trustees
2024-2025
Hon. MicHael J. newMan President
JaMie H. Greer
First Vice President
Jeff T. cox
Second Vice President
erin e. rHineHarT Secretary
VicToria l. nilles Treasurer
Jennifer l. BroGan
Member–at–Large
ToBy K. Henderson
Member–at–Large
erin B. Moore
Member–at–Large
cHrisTopHer M. wolcoTT
Member–at–Large
anne p. KeeTon
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 DBA office. The DAYTON BAR BRIEFS is published September/October through May/June.
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Library of Congress ISSN #0415–0945
Jennifer Otchy
Chief Executive Officer
Shayla M. Eggleton
Director, Communications & Membership
Phone: 937.222.7902
www.daybar.org
The contents expressed in the publication of DAYTON
of the
Hail to the Chief By Christopher Wolcott Esq. | Taft Law
The Future of the Common Pleas General Division Bench
JUDGE'S
By The Honorable Kimberly Melnick | Montgomery County Common Pleas Court
Gerald "Gary"Gunnoe Esq. Gunnoe & Weller By Nathan Vanderhorst Esq. | Montgomery County Prosecutors Office
An Overview of Original Actions in the Second District Court of Appeals By Andrew Schlueter Esq. | Second District Court of Appeals
Military Pension Division: A Flyover By Dalma Grandjean Esq.| Buckley King LPA
Intro to the Series:
The Evolution of Legal Education at the University of Dayton By Nicholas D. Seger Esq., Assoc Prof of Academic Success | UDSL
Clarifying the Threshold of Harm in Employment Discrimination: The Supreme Court's Decision in Muldrow v. City of St. Louis By Jill Sink Esq. | Beavercreek Township and Jennifer Brumby Esq. | Taft Law
Annual Holiday Gift Column Curated By Morgan Ensign, UDSL Student
Kristie Gotwald Esq. The VanNoy Firm By Samuel Saul Richardson, Esq. | Shelby County Public Defender’s Office & Sinclair Community College
Dayton Dialogue on Race Relations: An Opportunity to Know Each Other Better By Walter H. Rice, United States District Judge
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TRUSTEE'S MESSAGE
Hail to the Chief
Glen McMurry FY25 Federal Bar Association, President
Theweek after Labor Day, in Kansas City, Missouri, one of our own was installed (inaugurated, initiated, coronated) as the leader of the primary professional organization for lawyers and judges practicing and sitting in the federal courts—the Federal Bar Association. But while it only took Taft Partner Glen McMurry a few moments to take the oath of office, his ascension to becoming the 97th President of the FBA was the culmination of more than a decade of work and dedication beginning with the local chapter here in Dayton and carrying over to the national organization.
In many ways, Kansas City was an appropriate site for Glen’s Presidential Installation. A native of Pretty Prairie, Kansas, Glen grew up and went to college just a few hours away before eventually matriculating to Dayton with his young family to attend the University of Dayton School of Law. After graduating from UDSL, Glen began working as a business and litigation associate at Bieser, Greer & Landis LLP and, soon thereafter, became involved with the Dayton Chapter of the FBA.
The Dayton Chapter of the FBA was founded in 1951 and has a long and storied history within the national organization. In fact, Dayton is one of the few cities of its size that has its own, independent FBA chapter and is also one of the few FBA Chapters that can now claim two national FBA Presidents among its members—the other being Hon. Michael J. Newman who served as the 89th FBA National President (2016-17). But when Glen joined in 2009, the Chapter was struggling to maintain its membership and facing an uncertain (or worse yet, bleak) future. It would not languish for long, however, after Glen got involved. Under Glen’s leadership—and with the assistance of other prominent attorneys and judges in the Dayton area—the Dayton Chapter quickly rebounded and reasserted itself as a national chapter of prominence. During that time, Glen served as the Chapter Secretary for a year and then as the Chapter President for the next three years after that. For context, most Chapter presidents only serve for one year and are more than ready to pass the baton to the next administration at the end of that year.
As Glen was wrapping up his final year as President of the Dayton Chapter—and preparing to pass it into the very capable hands of Judge Newman to continue its growth and resurgence—he immediately began serving on the board of the national Younger Lawyers Division of the FBA. He was able to do so, in part, because of his willingness to raise his hand and put himself out there as a leader early in his career. To that end, Glen began attending the FBA’s annual meeting and convention where he grew his network—including a memorable night in New Orleans involving some prominent Ohio attorneys and a mechanical whale—and continued to take on more and more leadership opportunities. Those efforts and that “how can I help” mindset eventually led to Glen joining the FBA’s National Board of Directors, serving on the Government Relations Committee and Editorial Board, and also serving as a Sixth Circuit Vice President, National Treasurer, and National President-Elect.
As Glen begins his Presidency—the culmination of his journey with the FBA—he is hoping to build upon the work of those that have come before him while simultaneously forging his own path forward. To that
end, Glen hopes to further the legacy of his predecessor, Jonathan Hafen from Salt Lake City, by continuing to grow the FBA’s membership and develop new chapters around the country. He also plans to expand the FBA’s civics and diversity programs, with the goal of helping to bring about a more civically minded and educated populace and to leave behind an organization that more accurately reflects the people it serves. And finally, Glen will continue to push the policy initiatives of the FBA to ensure that: (1) our federal courts are appropriately staffed (Judges Act) and funded (General Appropriations); (2) the members of our federal judiciary are safe and protected (Daniel Anderl Judicial Security and Privacy Act); and (3) our federal courts are able to serve their important role in our democracy without being overwhelmed (Article I Immigration Court). Accomplishing all of that will require a monumental effort over the next year; but as Glen has shown time and time again he is more than up to the task.
Glen’s installation in Kansas City was truly a celebration of Glen and the path he has taken to reach this point in his career. He was joined by his wife, Angela, two of his three kids, his parents, his sister and her family, and countless colleagues and friends from around the country. He was introduced by Lynn Larsen, his partner and colleague at Taft, as well as by Kip Bolin, his friend and the 90th President of the FBA (2017-18). He was honored with a champagne toast by two of his colleagues from the Dayton Chapter, Sabra Tomb and Michael Scarpelli. And he was ultimately sworn in by Judge Michael Newman, his mentor and friend and the only other FBA President to come out of Dayton. It was an outstanding event that will not soon be forgotten and it served as a great jumping off point for what promises to be a great year ahead.
Congratulations Glen! Your colleagues in the Dayton Bar are very proud of what you have accomplished so far and are excited to see what you do next as the 97th President of the FBA and beyond.
By Christopher M. Wolcott Esq., Taft Law Board Member-at-Large cwolcott@taftlaw.com
Congratulations, Glen!
The President's Civics & Civility Project: Making an Impact
With a focus on both discussion and action, our DBA President, The Honorable US District Judge Michael J. Newman, is promoting civics and civility through kindness and mentorship for students and lawyers, ensuring its spirit thrives!
We are cultivating a culture of compassion in our legal community by mentoring new and aspiring lawyers to preserve and strengthen civility for future generations. In an unprecedented groundbreaking initiative, our President, along with a federal judge and a state judge, will visit local schools monthly to engage with students about the court system. This collaboration aims to deepen students' understanding and trust in the judicial process. Check out these highlights.
State and Federal Judges, Judge Newman, Magistrate Judge Peter Silvain along with Judge Helen Wallace with students from Belpre High School - Oct. 2024.
Judge Newman, Judge Wallace and teacher RileyToppins and panel below, Jeff Rezabek, and School Resource Officer Eric Rustad held a civics discussion with high school students at the Dayton STEM School - Oct. 16th.
Judge Newman swears in Glen McMurry as the FY25 Federal Bar Association National President at their
With students from Alter High School - Sept. 2024.
Judge Newman faciliates a conversation on civlity at the Oct. 4th Chancery Club Luncheon.
CIVICS & CIVILITY
annual meeting in Kansas City, MO on Sept. 7th.
Judge Chris Epley, Ben Flowers, Judge Newman and Judge Silvain at the 1st Monday in October Celebration at UDSL on Oct. 7th.
Gerald "Gary" Gunnoe
Count your blessings. Dayton Bar Association Barrister of the Month, Gerald Gunnoe, lives by these words, and his 51-year legal career illustrates their wisdom. Born in Ironton, a city in southeastern Ohio, Gerald spent his childhood on a farm at the end of a two-mile road. Recognizing a legal career as one of the few options available to him to earn a good living, he set out to become an attorney.
At Ohio University, Gerald earned a bachelor’s degree in education, with a focus on history and government, as well as a minor in Ancient African history. He then attended law school at the University of Cincinnati, where he stayed busy working summers at factories, and during the school year at internships such as Model Cities Legal Services, a federally funded organization specializing in criminal defense. The factory work got old, but Gerald was grateful to keep busy and earn his way through law school.
After earning his law degree in 1973, Gerald immediately started working as a magistrate with the Montgomery County Juvenile Court. He enjoyed the work and the people he worked with, but quickly realized he was drawn to the changing nature of litigation after he witnessed several trials.
After serving for one year as a juvenile court magistrate, Gerald became a law director with the Dayton Police Department, instructing police on the constitutional bounds of police investigations and interrogations.
In 1976, Gerald began his private practice in an office near the Dayton Mall, where he has worked ever since. He attributes much of his success to the support of his wife, Judith, who helped build his practice and wore many hats – serving as office manager, paralegal, bookkeeper, and accountant – all while they raised their five children together. During his time in private practice, Gerald accumulated significant jury trial experience working part-time as a prosecutor for the City of Miamisburg. Between 1976 and 1984, he participated in a jury trial virtually every week, and without question, that experience contributed to his success as a private attorney. The first few trials were nerve-wracking, but once he had tried more than fifty cases to a jury, the work became second-nature.
According to Gerald, working as a prosecutor is the best experience possible for young attorneys who want to hit the ground running. Gerald now maintains a diverse legal practice, working on everything from felony jury trials to wrongful death civil actions. The last 25 years of his career have been largely spent on domestic relations, a successful practice that has earned him many clients and proud moments winning cases for parents in custody disputes.
Outside the law, Gerald enjoys the outdoors, especially fishing and hunting. He loves to fish in Lake Erie in a boat he owns with friends and has been recognized by the Fish Ohio program for catching a smallmouth bass. He also travels, and in the past year, has
toured Normandy in France, visited Tuscany, and gone on a snowmobile trip through Yellowstone Park. The highlight of his travels was going on a mule ride to the bottom of the Grand Canyon with his sons, which he described as tremendously fun. After he retires, Gerald plans to see even more of the world and to continue his travels.
Gerald recounts many memorable moments in his legal career. In 2012, he is proud to have won an acquittal in a criminal jury trial with a videotaped confession. In the civil world, he once tried a wrongful-death case against David Greer, which he described as deeply humbling but incredible learning experience. And of course, in his domestic relations practice, Gerald is proud of the favorable custody decisions he has earned for clients in close cases.
However, the most fulfilling aspect of Gerald’s life has always been his family. After the passing of his wife in 2014, he devoted much of his time to visiting his family in Kansas City, Kentucky, West Virginia, and Tennessee. Whether traveling to spend time with them or welcoming them to his home, Gerald cherishes the moments shared with his five children and thirteen grandchildren, making family the heart of his life beyond the courtroom.
Throughout his life and legal career, Gerald has found Dayton to be a pleasant
Gunnoe & Weller
area for law practice, in no small part because lawyers here strive to be more collegial than competitive. He has been fortunate to forge positive relationships with many attorneys in the region over the span of his career. His philosophy of law practice is to make sure you find an area where you enjoy yourself, and to remember the Golden Rule. In both law and life, relationships are the foundation of success, and for Gerald, have been the bedrock of a successful legal career.
By Nathan Vanderhort Esq. Montgomery County Prosecutor’s Office VanderhorstN@mcohio.org
Friday, November 8th @ Sinclair Conference Center
The Honorable Helen Wallace Montgomery County Juvenile Court
Kristine Comunale Esq. Montgomery County Public Defenders Office
TITLE SPONSOR:
An Overview of Original Actions in the Second District Court of Appeals
One of the lesser-known functions of the Court of Appeals is to rule on “Original Actions.” “Original jurisdiction,” which refers to “[a] court’s power to hear and decide a matter before any other court can review the matter,”1 is distinct from “appellate jurisdiction,” which refers to “[t]he power of a court to review and revise a lower court’s decision.”2 Ordinarily, practitioners think of the latter concept when it comes to the business of the court of appeals. However, original jurisdiction cases, commonly referred to as “original actions,” constituted 30 of the 602 (~5%) cases for the Second District Court of Appeals in 2023.3
This is not an exhaustive list. A practitioner will find thousands of reported cases illustrating the uses and limitations of these writs. The takeaway is simply that a practitioner should consider the purpose of the writ sought and whether there is an adequate remedy in the ordinary course of the law before filing an original action.
Now, we move to procedure. In general, the Rules of Civil Procedure are applicable; however, the failure to comply with certain statutory requirements may result in dismissal.12 Moreover, Loc.App.R. 8 governs many procedural aspects of original actions in the Second District. So, practitioners should familiarize themselves with the most current version of the applicable rules.13
When an original action is filed in the court of appeals, “the court acts as a fact-finder and functions as a trial court.”14 After the complaint is filed and the summons is served, the respondent will file an answer or a dispositive motion, (i.e., a motion to dismiss under Civ.R. 12(B)(6)) and many original actions are resolved in this way. Discovery is available, however, there is a quick pace to original actions. Consistent with Supreme Court reporting requirements, the Second District aims to resolve original actions within 180 days of the filing of the complaint. Then, once the parties submit their evidence and brief the merits of the dispute, the court renders its judgment granting or denying an extraordinary writ. Once a judgment has been issued, an aggrieved party may file an appeal of right to the Supreme Court of Ohio.15
This article is meant to be just a brief overview of the court of appeals’ original jurisdiction. Although the Second District exercises its original jurisdiction somewhat infrequently, practitioners should become familiar with extraordinary writ procedures so that they may assist clients in situations where there is no adequate remedy in the ordinary course of the law, i.e., an appeal.
By Andrew Schlueter Esq., Administrative Staff Attorney Second District Court of Appeals
schluetera@mcohio.org
We begin with the basics. Under Ohio Const., art. IV, §3(B)(1)(a)-(e), the court of appeals has original jurisdiction to grant the extraordinary writs of quo warranto, mandamus, habeas corpus, prohibition, and procedendo.4 “The common thread linking such extraordinary remedies as mandamus, prohibition or habeas corpus is that none of these writs will issue when a plain and adequate remedy exists in the ordinary course of the law.”5 Thus, “[i]n terms of appellate practice and procedure, this means that if wrongs can be remedied by appeal, parties may not use extraordinary writs to seek the same relief.”6
The plaintiff in an original action is referred to as the “relator” or the “petitioner.” The defendant is referred to as the “respondent.” Situations in which an extraordinary writ is sought in the court of appeals may include:
ENDNOTES:
1. “Original jurisdiction,” Black’s Law Dictionary (12th ed. 2024).
2. “Appellate jurisdiction,” Black’s Law Dictionary (12th ed. 2024).
3. Supreme Court of Ohio, State of Ohio Court Statistics, https://www.supremecourt.ohio.gov/courts/services-to-courts/court-services/dashboards/ (accessed Aug. 28, 2024).
4. The Supreme Court of Ohio also has original jurisdiction in such actions. Ohio Const., art. IV, §2(B)(1)(a)-(e).
5. Luchene v. Wagner, 12 Ohio St.3d 37, 38 (1984).
6. Wolff, Brogan & McSherry, Anderson’s Appellate Practice and Procedure in Ohio, § 9.01[1][b] (2021 Ed.).
7. E.g., State ex rel. Myers v. Brown, 87 Ohio St.3d 545 (2000) (granting relator’s writ to remove incumbent village clerk-treasurer but denying writ to appoint relator to the office).
8. E.g., State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580 (1996) (granting writ to compel compliance with request for coroner’s records relating to persons who committed suicide).
9. E.g., DuBose v. McGuffey, 2022-Ohio-8 (affirming judgment of the court of appeals granting writ and finding financial condition of bail was excessive).
10. E.g., State ex rel. V.K.B. v. Smith, 2013-Ohio-5477 (reversing court of appeals and granting writ when juvenile court summarily took child visiting Ohio from Arizona from her mother in an ex parte proceeding and gave custody to a nonparent).
11. E.g., State ex rel. Culgan v. Collier, 2013-Ohio-1762 (writ
CONTINUING LEGAL EDUCATION
2024 Criminal Law Update with Judge Dankof
Tuesday, November 19th 9am-Noon @ DBA
3.0 General CLE Hours
Presented by: The Honorable Steven Dankof Sr. Montgomery County Common Pleas Court
The seminar will cover notable cases from the U.S. Supreme Court, Ohio Supreme Court, and various Ohio appellate courts that impact daily criminal law practice in Ohio.
The Ethical Lawyer - 2024 Ethics Update
Friday, November 22nd 9am-Noon @ DBA
3.0 PC CLE Hours
Presented by: John Ruffolo, DBA Bar Counsel
Ruffolo Stone & Stone, Jeff Hazlett, Mediator/Arbitrator
Mark Tuss, Popp & Tuss; and Paul Roderer, Roderer Law Office
This seminar is the DBA's 2024 annual update on Ohio Supreme Court cases related to Violations of the Code of Professional Conduct. A panel of speakers involved in the disciplinary process will discuss new advisory opinions from the Board of Commissioners and provide practical applications of the case law and opinions in legal practice.
Ohio Supreme Court Required! DBA Core Components for New Lawyers
Wednesday, December 11th 9am-12:15pm @ DBA
3.0 NLT Hours, incl. 1.0 hr professionalism, 1.0 hr law practice management + 1.0 hr client funds management
The Ohio Supreme Court requires all attorneys admitted by exam to complete three hours of instruction in professionalism, law practice management, and client funds management.
How to Protect Personal Injury Clients and Their Medicaid
&
Other Public Benefits
Friday, December 13th Noon-1pm Via Zoom
1.0 CLE Hr
Presented by: William Price, Elk & Elk
Key strategies for managing settlement funds for vulnerable clients will cover collaboration with estate planners, tax implications, long-term care, and government benefits. We’ll focus on structured settlements for minors, pooled trusts, ABLE accounts, and spend-down strategies to maintain public assistance eligibility.
DOMESTIC RELATIONS & JUVENILE LAW: 2024 Family Law Roundup
Friday, December 13th 9am-Noon @ DBA
3.0 CLE Hrs
Presenters: Andrew Meier, Meier Smith Meier & Webb, LPA; Krystle Marko, Krystle Marko Law, LLC; Amanda Resler, OhioRISE CHOICES;
Magistrate Kathleen Lenski, Montgomery County Juvenile Ct
An essential event for legal professionals, social workers, and mental health practitioners focused on advancing family law. This program will cover best practices in parenting coordination, emphasizing strategies for resolving conflicts and fostering cooperation between co-parents.
Ohio Supreme Court Year in Review
Tuesday, December 17th Noon-1pm @ DBA
1.0 CLE Hr
Presented by: Nathaniel Fouch, Sebaly Shillito & Dyer
A former Ohio Supreme Court Law Clerk will recap key 2023 Ohio Supreme Court decisions, discussing legal developments, trends, and maybe even chicken bones.
ANNUAL INTELLECTUAL PROPERTY SEMINAR: Dayton, Ohio and Some of its Famous Intellectual Property
Friday, December 20th 9am-12:30pm @ DBA
3.0 CLE Hrs
Presenters: Matthew R. Jenkins, Jacox Meckstroth & Jenkins; Louis Sitler, Wood Herron & Evans; Gary Leppla, Leppla Associates, Ltd.
This annual DBA CLE favorite is a vital introduction for General Practitioners! The presentation will cover essential aspects of General Intellectual Property, with a special emphasis on the inventors and inventions from Dayton, Ohio. for more programs and to register,
Military Pension Division: A Flyover
MBy Dalma Grandjean Esq. Buckley King LPA dalmagrand46@yahoo.com
ilitary pension division in divorce cases presents unique challenges. Understanding the specific rules governing the division of military pensions is crucial to protecting your client's interests. This article outlines the key aspects that lawyers need to know when handling cases involving military pensions but be warned: the topic is more complex and nuanced than this article can cover.
1. The Uniformed Services Former Spouses’ Protection Act (USFSPA)
The USFSPA, enacted in 1982, is the key piece of legislation governing the division of military pensions in divorce. It grants states the authority to divide military pensions as marital property, subject to state divorce laws. However, it does not mandate that pensions be divided, leaving the decision to state courts.
2. The 10/10 Rule
The 10/10 rule governs whether DFAS will make direct payments of a military pension to a former spouse. If the couple was married for at least 10 years, and the service member completed at least 10 years of military service during that marriage, the former spouse may receive direct pension payments from DFAS.
It’s important to note that the 10/10 rule only determines whether DFAS will handle direct payments, not whether the pension itself can be divided. A former spouse may still be entitled to a portion of the pension even if the 10/10 rule is not met, but they will have to collect it directly from the service member.
3. Disposable Retired Pay vs. Gross Retired Pay
When dividing military pensions, the focus is on “disposable retired pay” (DRP) rather than gross retired pay. DRP is the portion of military retired pay remaining after deductions for disability compensation, Survivor Benefit Plan (SBP) premiums, and certain other expenses. Note that the SBP premiums are deducted from DRP so that each spouse effectively pays their proportional share on the base amount. Pay attention to the base amount on which the SBP 6.5% is paid to ensure that your client is not paying a premium that will net the former spouse a higher benefit amount at the servicemember’s death than during his life (if you are representing the servicemember). If you are representing the former spouse, you want the default maximum benefit level.
4. The Role of Disability Benefits
One of the most complex aspects of dividing military pensions is understanding how disability benefits affect the overall distribution. Military disability pay is not considered divisible as marital property under federal law. This can significantly reduce the amount of disposable retired pay available for division, as service members can often waive a portion of their pension in favor of receiving tax-free disability benefits.
The U.S. Supreme Court's decision in Howell v. Howell (2017) clarifies how military disability pay affects the distribution of military retirement benefits between service members and their former spouses. In Howell v. Howell, a retired Air Force member, waived a portion of his military retirement pay in favor of receiving disability benefits. His divorce decree had previously awarded his former spouse, Sandra Howell, 50% of his
military pension. When John elected to receive disability pay, his total pension amount decreased, thus reducing the payments to Sandra. Sandra Howell argued that her entitlement to 50% of the pension should not be diminished by John’s decision to receive disability benefits.
The Supreme Court, in a unanimous decision, ruled in favor of John Howell, stating that federal law precludes state courts from ordering a veteran to reimburse a former spouse for the reduction in retirement pay caused by the waiver of retirement benefits in exchange for disability benefits. The decision was based on the interpretation of the Uniformed Services Former Spouses' Protection Act (USFSPA) and previous Supreme Court rulings, specifically Mansell v. Mansell (1989), which had established that military disability benefits are protected under federal law and cannot be divided as part of a divorce settlement. This means that state courts cannot treat these benefits as part of the divisible marital estate. The Supreme Court also clarified that if a service member elects to receive disability benefits, which reduces their overall retirement pay, the former spouse cannot be compensated or reimbursed for the loss in pension payments. This decision applies even if the divorce decree was finalized before the waiver.
5. The Frozen Benefits Rule
The 2017 National Defense Authorization Act (NDAA) introduced the Frozen Benefit Rule, which changed how military pensions are divided in divorces. Under the new rule, the pension's value is "frozen" at the time of divorce, meaning that the former spouse’s share will not include post-divorce increases due to promotions or additional service. This change was designed to make pension division fairer by stopping ex-spouses from benefiting from post-divorce service, though it can significantly impact the amount a former spouse receives and contrasts with the “time rule” that most states use to divide other pension benefits.
6. Military Pension Division Orders (MPDO)
To ensure that DFAS can make direct payments to a former spouse, attorneys must submit a valid Military Pension Division Order (MPDO) to DFAS. This court order must meet specific requirements to be enforceable:
• It must clearly state the percentage or fixed amount of the disposable retired pay awarded to the former spouse.
• It must identify the parties and their relationship to the military pension.
• It must comply with the laws of the jurisdiction where the order was issued.
DFAS also requires precise wording in the order to ensure that it is enforceable, so attorneys need to review and follow the applicable regulations.
7. Jurisdictional Considerations
The USFSPA limits the jurisdictions in which a military pension can be divided. A state court can only divide a military pension if the service member:
• Is domiciled in that state,
• Resides in that state for reasons other than military assignment, or
• Consents to the jurisdiction of the court.
Attorneys must verify that the court has jurisdiction over the service member’s pension before proceeding with division. Never get a default judgment if you wish to protect the former spouse’s interest in the servicemember’s pension.
8. Thrift Savings Plan (TSP)
In addition to a military pension, many service members participate in the Thrift Savings Plan (TSP), a defined contribution retirement plan similar to a 401(k). The division of a TSP account in divorce requires a specific court order, known as a Retirement Benefits Court Order (RBCO), that meets federal requirements. There are two types of TSPs: military and civilian. Make sure you confirm if the service member has one or both.
9. Survivor Benefit Plan (SBP)
The Survivor Benefit Plan (SBP) is an annuity that provides continued income to a designated beneficiary (usually the spouse or former spouse) after the military retiree's death. When handling military pension division, attorneys should address whether the former spouse will be designated as the SBP beneficiary. Without this protection, the former spouse will lose their portion of the military pension upon the service member’s death.
To designate a former spouse as an SBP beneficiary, the divorce decree must include specific language ordering this. Additionally, the former spouse must make a "deemed election" by submitting the appropriate forms to DFAS within one year of the court order to ensure they receive the survivor benefits.
10. Tax Implications
Military pension division carries specific tax consequences for both the service member and the former spouse. The portion of the military pension that a former spouse receives is considered taxable income to them, and DFAS will issue a separate 1099-R tax form each year. However, disability payments received in lieu of retirement pay are tax-free and are not subject to division as marital property.
Conclusion
This article just skims the surface when it comes to representation of service members or their spouses in divorces, dissolutions, or legal separations. Do not fly solo. Consult an expert. The field is riddled with landmines.
WHAT Is THE EIKENBARY TRusT?
Intro to the Series: The Evolution of Legal Education at the University of Dayton
By Nicholas Daniel Seger Associate Professor of Academic Success University of Dayton School of Law nseger1@udayton.edu
The University of Dayton School of Law celebrates an illustrious history marked by innovation, perseverance, and a deep commitment to fostering legal minds. As we commemorate the Law School’s 50th anniversary since reopening in 1974, we take a journey back in time to explore the history of both the University of DaytonSchool of Law and its predecessor, the University of Dayton College of Law. This series will unfold the fascinating stories behind the institution’s rise, challenges, closure, and ultimate revival. Over the course of the next several months, these articles will delve into the roots of the law school, chronicling the early days of legal education at Dayton, its impressive achievements, the historical closure during the Great Depression, and the momentous efforts that brought the law school back to life in 1974. Each article will provide a chronological account of the key developments and the people who helped shape what is now one of the fastest-rising law schools in the United States.
In this first article, we look back at the inception of the University of Dayton College of Law in 1922, the challenges it faced during the Great Depression, and the pivotal role it played in shaping Dayton’s legal community during its early years. Stay tuned as we continue this journey through the decades, illuminating how the University of Dayton has not only survived but thrived as a beacon of legal education.
The Early Days of the University of Dayton College of Law (1922–1935)
The history of the University of Dayton College of Law dates back to 1922, a time when legal education in the United States was undergoing a period of significant transformation. In that year, on September 18, the University of Dayton, a Catholic Marianist institution, announced the establishment of its own law school. The announcement, made by University President Father Tetzlaff during his annual commencement address, marked the beginning of a new chapter for the University, as it expanded its educational offerings to include the study of law.
The first class of the University of Dayton College of Law consisted of twenty students, an impressive number for a newly founded law school. Notably, the class reflected a commitment to diversity—especially for the time—with two women, Viola Allen and Mildred McCarthy, and one African American man, Herbert C. Morton, among the enrolled students. Classes were held in the evenings, three times a week from 5:00 p.m. to 8:00 p.m., allowing students to work while pursuing their legal education. The program was part-time and required four years of study to complete.
From the beginning, the College of Law earned a reputation for academic rigor and excellence. Its first graduating class, composed of nineteen students, all passed the Ohio bar exam on their first attempt, a notable achievement that set the tone for future classes. Over the next several years, the school maintained high bar passage rates, solidifying its reputation as a center of legal education in Dayton.
city. The presence of two law schools within a relatively small market may have contributed to at least a perceived oversupply of lawyers, further complicating the financial viability of maintaining the college. The YMCA School of Law had closed shortly before the University of Dayton followed suit, marking the end of a chapter in Dayton’s legal education history.
Although the closure presented a significant setback, the University maintained a sense of optimism about the future. At the time of the law school’s closure, the University hoped and expected, at least outwardly, that it would reopen after the economy recovered. However, the revival of the University of Dayton College of Law would take far longer than anticipated. Nearly forty years would pass before the institution would once again offer a legal education program, but the seeds for its rebirth were already planted in the community’s collective consciousness.
Despite its early success, the University of Dayton College of Law faced significant challenges that would ultimately lead to its closure. The 1920s and early 1930s were marked by profound economic turmoil, culminating in the Great Depression. The economic downturn had a devastating impact on institutions across the country, and the University of Dayton provided no exception. Although the law school had demonstrated strong academic performance, the financial pressures on the University became untenable.
In 1935, after thirteen years of operation, the University of Dayton College of Law closed its doors. The closure was largely attributed to the severe financial strains brought on by the Great Depression, though there were also concerns about the saturation of the legal market in Dayton. At the time, both the University of Dayton College of Law and the Dayton YMCA School of Law (later renamed for Secretary of the YMCA, David Sinclair) operated in the
The University of Dayton’s experience mirrored broader trends in legal education during the early 20th century. Law schools across the country were experimenting with new pedagogical models, grappling with the balance between practical training and academic scholarship. The University of Dayton College of Law, in its brief existence, stood as an example of a school that successfully navigated these challenges. Its part-time evening program was particularly innovative, as it catered to working students who might not have been able to pursue a legal education otherwise.
One of the lasting legacies of the University of Dayton College of Law was its emphasis on accessibility and diversity. The inclusion of women and African American students in its inaugural class was ahead of its time, reflecting the Marianist values of inclusion and service to the community. In fact, the College of Law permitted full enrollment by women even before the University of Dayton undergraduate programs did so. This reflects a profound forward-thinking mindset, for which the law itself would take several decades to attain. This commitment to diversity and opportunity would ultimately carry over into the law school’s second incarnation as the University of Dayton School of Law in 1974, ensuring the rich diversity the school maintains today, as Ohio’s most diverse law school.
Terry Miller, a School of Law student in 1974, provided thoughts on the similarities and differences between the original College of Law and the resurrected School of Law:
The early success of the University of Dayton College of Law also contributed to the institu-
tion’s credibility when it eventually sought to reopen. While it took several decades for the law school to reemerge, the community remembered the academic achievements of the original college and the talented lawyers it produced. As discussed in upcoming articles, these graduates went on to make significant contributions to the legal profession, cementing the legacy of the College of Law, and setting the stage for the school’s re-emergence as a Phoenix out of the ashes. Without the generous support of past alumni, the school would not enjoy the respect and prestige that it does today.
The next article will explore the efforts to reopen the law school in the 1970s, the challenges faced by the founding students and faculty, the eventual creation of the University of Dayton School of Law, and the remarkable early establishment of its Law Review. It will focus on the people who made the school’s revival possible, and will also examine how the values and traditions established in the early days of the College of Law carried through to the new institution.
The author welcomes your comments and notes regarding this article and future articles and will coordinate sharing additional historical documents for those interested. Feel free to email the author directly at nseger1@ udayton.edu.
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Clarifying the Threshold of Harm in Employment Discrimination: The Supreme Court's Decision in Muldrow v. City of St. Louis
By Co-Chairs: Jill Sink Esq. Beavercreek Township jsink@beavercreektownship.org
Jennifer Brumby Esq. Taft Law jbrumby@taftlaw.com
Some 30+ years ago, when my husband and I welcomed our daughter into the world, we knew there were certain lessons we wanted to impart to her.
The U.S. Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346, 144 S.Ct. 967, 218 L.Ed.2d 322 (2024), addresses critical questions surrounding employment discrimination claims under Title VII of the Civil Rights Act of 1964. The Court’s ruling not only resolves a circuit split but also provides significant guidance to employers and employees navigating workplace discrimination claims.
Background. Muldrow, an officer with the St. Louis Metropolitan Police Department, alleged that she was subjected to discriminatory treatment when she was transferred from her role in a specialized unit to a different assignment. Muldrow claimed that her transfer was based on her gender, violating Title VII of the Civil Rights Act. The core of her argument centered on whether a lateral transfer—without any change in pay or tangible job duties—could constitute an "adverse employment action" under Title VII.
The Eighth Circuit, in ruling against Muldrow, held that a lateral transfer does not qualify as an adverse employment action unless it results in a significant change in employment conditions, such as a loss of salary or job responsibilities (Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir. 2022)). The Eighth Circuit’s decision was consistent with the approach taken by other circuits, such as the Fifth, Sixth, and Eleventh Circuits, which also required employees to show material changes in employment
terms for a discrimination claim to be actionable under Title VII.
However, this decision stood in contrast to rulings from the D.C., Second, and Seventh Circuits, which have held that even lateral transfers could constitute adverse employment actions if the employee could demonstrate a significant negative impact on their career trajectory or future opportunities (Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999); DeJesus v. District of Columbia, 841 F.3d 523 (D.C. Cir. 2016)).
Resolving the Circuit Split. The Supreme Court granted certiorari to resolve this circuit split and determine the proper standard for evaluating employment discrimination claims under Title VII in the context of lateral transfers.
In its decision, the Court held that lateral transfers, even without a change in salary or official responsibilities, could constitute adverse employment actions if they materially impact an employee’s career trajectory or work environment. The Court noted that a rigid requirement that an adverse employment action must involve a loss in salary or tangible job duties overlooks the potential harms to employees who face discrimination in less obvious ways, such as being denied opportunities for professional growth or working in less favorable conditions due to discriminatory motives.
The decision effectively rejects the narrow interpretation of adverse employment actions previously endorsed by the Eighth Circuit and brings it in line with the more employeefriendly approach taken by the D.C., Second, and Seventh Circuits. By doing so, the Supreme
Court clarified that the focus should be on the material impact of the employment action on the employee, not just on easily quantifiable metrics like pay or formal responsibilities.
Implications for Employers. For employers, the Muldrow decision represents a significant shift in the legal landscape surrounding Title VII claims. Employers can no longer rely on the defense that a lateral transfer or other seemingly minor employment action does not constitute discrimination simply because it does not involve a reduction in pay or job responsibilities. This ruling expands the scope of potential liability under Title VII, as employees can now bring claims based on the impact of an employment decision on their career prospects, workplace environment, or future opportunities.
To mitigate the risk of litigation, employers should revisit their transfer and promotion policies and ensure that decisions are well-documented and based on legitimate, nondiscriminatory reasons. Employers should also train managers and human resources personnel to recognize and avoid decisions that could be perceived as limiting an employee’s career growth or professional development on the basis of a protected characteristic.
Implications for Employees. For employees, the Muldrow decision provides an expanded framework for bringing employment discrimination claims under Title VII. Employees are no longer confined to demonstrating that they suffered a direct financial loss or reduction in job responsibilities to pursue a discrimination claim. Instead, they can now argue that an employment decision adversely affected their career in more
subtle but significant ways, such as harming their chances for future promotions, damaging their professional reputation, or forcing them into a less favorable work environment.
This broader standard empowers employees to hold employers accountable for discriminatory actions that may have previously been dismissed under the more rigid standards applied in certain circuits. As a result, employees have more avenues to seek redress for discriminatory treatment and protect their rights under Title VII.
The Future of Employment Discrimination Litigation. The Supreme Court’s decision in Muldrow is poised to reshape the landscape of employment discrimination litigation. By resolving the circuit split and clarifying that adverse employment actions under Title VII can encompass more than just pay cuts or demotions, the Court has opened the door for more nuanced claims of discrimination. This decision also signals a shift toward a more employee-friendly interpretation of Title
VII, aligning with the broader trend of recognizing the diverse ways in which workplace discrimination can manifest.
Moving forward, employers should pay close attention to the evolving case law in this area. Lower courts will now be tasked with applying the Supreme Court’s guidance and determining what constitutes a “material” adverse employment action in specific factual scenarios. Undoubtedly, employers should be prepared for an uptick in litigation as employees test the boundaries of this new standard in courts across the country.
Conclusion: The Muldrow decision lowers the bar of establishing adversity in employment actions, which will increase the scope of activity prohibited by Title VII. The import of this decision is therefore not limited to transfers, which was Muldrow's subject matter. It will impact all questions of material adversity going forward.
Wednesday, December 11th @ DBA
9am-12:15pm 3.0 nlt hrs
ATTENTION NEW LAWYERS! Attend the Champagne Toast Reception in your honor on December 5th and your registration for this program is FREE! Contact Samantha to get signed up! smims@daybar.org
Core Components for New Lawyers
The Ohio Supreme Court requires all attorneys admitted by exam to complete three hours of instruction, including one hour each on professionalism, law practice management, and client funds management. This program fulfills those requirements!
PROGRAM AGENDA:
9am-10am New Lawyer Law Office Management
10:05am-11:05am New Lawyer Professionalism 11:15am-12:15pm New Lawyer Client Funds Management
client funds management
Annual GIFTDBAGUIDE
Handblown Glass Ornaments AvGlass $45
Wheel 101 Class MADE Dayton $270
Looking to try something new in the new year? Give the gift of creativity! Join the folks at MADE Dayton for a 6-week beginner’s pottery course where they’ll walk you through all the steps of wheel-throwing from trimming, decorating, glazing, and more!
Habana Joe Handmade Spiced Rum (750 ml)
Belle
of Dayton Spirits $20
Distilled by local brothers Murphy, Mike, and Tim LaSalle, Habana Joe Spiced Rum is the perfect weekend sip! With natural spices and notes of vanilla, it’s a great gift for the connoisseur on your list! Available for pick up at Belle of Dayton’s Van Buren Room, or find it online at OHLQ.com.
1-Month Unlimited Classes
DAY Yoga $139
On a fitness kick? Not sure what to try? Consider a One Month Unlimited Class Pass from DAY Yoga! Choose from their selection of barre, aerial yoga, hot yoga, flow sessions, and more at their Dayton or Beavercreek locations!
Columbia Newton Ridge Hiking Boots
Columbia $75
Got a nature buff on your list? While not Daytonmade, these Columbia hiking boots certainly allow you to explore all that the Dayton-area Metroparks have tooffer! Hit the trails and try them out! My personal favorite hikes include Glen Helen Nature Preserve and George Rogers Clark Park!
One Wick Candles
Bellbrook Candle Company $10
For your office colleague or those a little harder to shop for, you can never go wrong with a candle! Bellbrook Candle Company offers a delicious line of holiday scents sure to put anyone in a holly jolly mood. And for the grinches on your list, Coffee Shop is my favorite scent!
Holiday GUIDE
By Morgan Ensign UDSL Student
It’s time to deck the halls! Deck yours with blown glass ornaments from local artisan, Abiona Venee! Handcrafted here in her Dayton studio, these gorgeous ornaments are available in a range of colors including pink, yellow, orange, and green. They’re available for purchase through her Etsy shop, ArtGlassbyAbiona, while supplies last!
Ohio Artisan Box
Dorthy Lane Market $90
Looking to gift a taste of home?
Dorthy Lane Market has you covered! Their Ohio Artisan Box includes all of your local favorites like Dayton’s own Killer Brownies and savory cheeses from Urban Stead. Available for your out-of-state loved ones via Dorthy Lane’s two-day shipping!
Weekender Tour Inflatable
Stand Up Paddle Board
Base Camp Outdoor Co. $250
Best way to see Dayton? By paddleboard of course! Get your view of our city-scape via the Weekender Tour Stand Up Paddle Board. This set comes complete with a pump, three removable fins, and a patch kit making it easy to push off and explore the Great Miami River!
As the holidays approach, there’s no better time to support Dayton’s vibrant small business community. With Small Business Saturday right around the corner, it’s the perfect opportunity to discover unique, locally-made gifts for everyone on your list. Shopping local not only ensures that your presents are one-of-a-kind, but it also helps strengthen Dayton’s economy and supports the hardworking artisans, entrepreneurs, and makers who call this city home. In this guide, we’ve rounded up the best gifts from Dayton’s small businesses, making it easy to celebrate the season, while showing love to your community!
McCrea Hat
Brim on Fifth $194
Fedoras, fascinators, faluches, oh my! Stop by Brim on Fifth and check out their expansive selection of hand-crafted headwear! Made with the finest materials like wool and satin, these hats are sure to impress the fashion-savvy in your circle.
Air Botanicals
Luna’s Gifts and Botanicals $6
Bring the outdoors in this season with plants from Luna’s Gifts and Botanicals! Stop in to check out their exotic grows, or shop online for their selection of air botanicals. Perfect for those of us with a not-so-green thumb!
8-Game Season Ticket
Dayton
Dragons
$126 - $154 seat
Looking for a gift the whole family, or firm, can enjoy? Consider season tickets to the one and only, Dayton Dragons! With packages for as few as eight games up to the entire season, sit field-side and watch as the boys of the summer bring home another win!
Seinfeld Lego Set
Dayton Brick Shop $170
Perhaps you should think inside the box this holiday season? Dayton Brick Shop has an exclusive collection of retired Lego sets, unused and still in the package. Everything from stormtrooper helmets to the Seinfeld Set, ready for your recipient to build!
Curated
The VanNoy Firm Kristie Gotwald Esq.
By Samuel Saul
Dedicated, ambitious, candid - these are just some of the words to describe Kristie Gotwald. Originally from a small town of less than one thousand in the Adirondack Mountains that “nobody has left since the Revolutionary War,” Kristie has made a name for herself here in the Dayton area.
Kristie first came to the Dayton area for college, attending Cedarville University where she studied Political Science and later Pre-Law. While at Cedarville, she was diligent with her studies. She completed her degree in only two and a half years by self-study, testing out, and multiple enrollments, all while also participating in many extracurriculars; jail ministry, cheerleading, the Honors Department, and meeting her husband. Because she finished her degree so quickly, she returned to the mountains to work until her husband was commissioned into the Air Force. The Air Force decided their next stop was Oklahoma, where Kristie enrolled in the University of Oklahoma College of Law. Again, she finished her schooling in only two and a half years (must be a theme) while participating in the Oklahoma Journal of Law and Technology, the Christian Legal Society, and the Military Law Society. Kristie was then sworn into the Oklahoma bar while 9 months pregnant.
The Air Force then moved Kristie and her family back to New York. There she passed the New York bar and began working with Westlaw to improve their Boolean search functions. This position had her learning about various areas of the law as well as how practitioners in those areas would be conducting legal research. After having her second child, she decided to change positions and become a homemaker. The Air Force again moved the family, this time back to the Dayton area, where she had her third child. For those keeping score, that’s three kids, in three different states, in three years. At that point, Kristie’s “life was crazier than going back to work.” She stayed home with the kids for the next two years and helped to coordinate childcare for other local moms.
Upon her husband’s deployment, she decided to go back to work. She joined Auman, Mahan & Furry doing OSHA, workers’ compensation, and employment defense work. This position taught her a lot about practicing in the civil arena, but all good things must come to an end. Whenever no one was in the workplace to need representation during the COVID-19 pandemic, work slowed, and jobs were lost. During this time, Kristie’s husband got out of the military. Although she had been actively licensed in Ohio for roughly two years, she was no longer a military spouse, and therefore no longer allowed to practice under the military spouse bar admission rules. She took a job at the Air Force Institute of Technology and back to the bar exam it was. Talk about dedication to the craft. She was finally admitted to the Ohio bar.
Kristie then joined The VanNoy Firm, where she currently does criminal law, family law, intentional torts, and consumer sales practices. Kristie has always had an interest in criminal law, regardless of the side she represented. She really enjoys practicing family law, which led her to become the Co-Chair of the Domestic Relations Section of the Dayton Bar Association for one year. Kristie is also a graduate of the Dayton Bar Association’s Leadership Development Class.
In addition to her participation in the Dayton Bar Association, Kristie is a member of the Greene County Bar Association, serves on the Beavercreek Township Board of Zoning Appeals, has served in her local Parent Teacher Organization and Home Owners’ Association. Kristie has been named to the National Trial Lawyers Top 40 Under 40 list for Ohio’s criminal defense attorneys.
As a Rising Star in the Dayton Bar Association, we know Kristie’s story isn’t done there. As of last Summer, she became a Partner at The VanNoy Firm and continues to be a dance and hockey mom for her children. Her dedication to the practice of law and ambitious spirit in all aspects of life tell us that we should be watching the future of Kristie’s career, and life, with great interest
Richardson, Esq. | Shelby County Public Defender’s Office | Sinclair Community College | SSRLaw@outlook.com
EOY from the Mediator's POV
By Elizabeth Callan Esq. Vorys Sater Seymour & Peas LLP
As we turn the corner of the year, with fall upon us and holidays in sight, let’s talk mediation. As a mediator, I experience an uptick as we get closer to the year’s end. I think it’s natural. Gone are the lazy days of summer, and we look at files a little closer with outcomes and deadlines in mind. In doing so, it only makes sense to see if a deal can get done before another year of litigation begins.
Business realities and impending timelines often drive these conversations. Getting lawsuits off the books before the start of a new year is attractive for company leadership. Likewise, the benefit of paying settlement expenses in the current year as opposed to the new year is often attractive. Overall, leaving the time and resource drain of protracted litigation behind can help a business start the new year fresh.
I also believe the nature of the season drives fruitful conversations regarding litigation resolution. Labor Day to New Year’s is full of dates dedicated to reflection. Consider the list: Labor Day, Veterans Day, Rosh Hashanah, Halloween, Mawlid, Diwali, Election Day, Thanksgiving Day, Hanukkah, Christmas...and so on. These all give rise to considerations of the things we hold most dear: work, country, families, home, food, fun and fresh starts. Reflective pauses can put some context around the day-in, day-out of ongoing disputes. Even the more festive dates on the calendar, like Halloween or College GameDay, give rise to changing perspectives. There’s something about tiny superheroes taking over the sidewalks or a 101-yard kickoff return that put possibilities in the atmosphere.
With all of this in mind, I suggest embracing the business realities and the mood of the seasons. Consider asking yourself, your clients and your colleagues: Is attempting resolution of a dispute before 2025 worth a shot? If you believe so, here are some considerations to add to the discussion: • Inquiring Minds
As outside counsel, with a particular litigation focus, you may not be routinely included in clients’ general business or management conversations. Direct contact and guidelines often drive litigation parameters and decisions, and counsels proceed accordingly. However, I also suggest outside attorneys might take their wise counsel a step further.
Consider asking some questions about business goals for the litigation portfolio and your case in particular. There are usually drivers and decisionmakers not in immediate focus. Inquire around as to what you can do to help resolve a matter in a way that’s helpful. That may involve putting together a
risk-assessment memo for the file or sending your contact a more informal email as to where you see opportunity. Positioning a matter for resolution in a way that helps the business overall and your contact in particular could add value like an all-star.
• Prep like Santa
Later in the year, mediations tend to have higher stakes. While not so with all matters, typically some work has been completed, discovery exchanged, information shared and dollars committed to one course of action or another. This can be good—use what you now have. All that good data can tee things up nicely.
You know where you’ve been and you likely know where you’re headed (or want to head)—share with the mediator beforehand. Fill your bag! Perhaps you use ample attachments … or I’ve seen a lot of snipping critical information right into the brief (I love that—no flipping back and forth). Providing numbers/documents, court filings, decisions and potential outcomes are just the kind of gifts that move a productive mediation.
• Brilliance in the Basics
Set yourself up for success by keeping the tried-and-true fundamentals of mediation in mind. Mediation statements are a must—get in your relevant facts, set out good case law and have a detailed damages assessment (with any charts, negotiation histories or mitigation amounts in play). Client prep is another critical basic—make sure you’ve given stakeholders a game plan for the day, answered all questions and have a basic strategy outline.
Finally, if time permits, a pre-mediation discussion with the mediator is always ideal. This conversation can serve not only to inform the mediator of “soft” information you might not put in your brief but also helps establish your relationship and dialogue with the mediator.
Last-quarter mediations lend themselves to success. As a successful counselor, keep mediation in your toolkit. Think about where it might work for your client in ways you may not have thought before. If you decide to give it a go, use everything in your workshop. Finally, the fundamentals of mediation are always key: Draft, prep, communicate, repeat. As the year winds down, seize the moment: If you can find a spot on the calendar (and a mediator), timing is often right for a good resolution.
Cheers to inspired and meaningful problem-solving in the coming weeks. Just in time to see the ball drop!
FROM THE JUDGES DESK
The Future of the Common Pleas General Division Bench
By The Honorable Kimberly Melnick
Montgomery County Common Pleas Court - Gen Div Kimberly.Melnick@montcourt.oh.gov
n writing about the future of our bench, I’m going to start with a little history.
In Ohio, Common Pleas Courts were created by Article IV, Section 1 of the Ohio Constitution. Their duties are outlined in Article IV, Section 4. As the population increased, the General Assembly passed laws by a two-thirds vote of both houses to add seats to the Common Pleas Court. The Montgomery County Common Pleas Court General Division began with its first judge in July of 1934. Since then the bench has grown to eleven (11) common pleas court general division judges. Below is a list of the original and current judges by seat and the year established:
July 1934 – Judge Robert Martin, whose seat is currently held by Judge Angelina Jackson. A total of eight (8) judges have occupied this seat.
July 1936 – Judge Charles Mills, whose seat is currently held by Judge Susan Solle. A total of six (6) judges have occupied this seat.
January 1942 – Judge Don Thomas, whose seat is currently held by Judge Richard Skelton. A total of seven (7) judges have occupied this seat.
July 1954 – Judge Robert McBride, whose seat is currently held by Judge Mary Montgomery. A total of five (5) judges have occupied this seat.
January 1961 – Judge Carl D. Kessler, whose seat is currently held by Judge Steven Dankof. A total of five (5) judges have occupied this seat.
January 1965 – Judge Cecil Edwards, whose seat is currently held by Judge Timothy O’Connell. A total of five (5) judges have occupied this seat.
January 1969 – Judge Rodney Love, whose seat is currently held by Judge Mary Wiseman. A total of three (3) judges have occupied this seat.
January 1977 – Judge William MacMillan, whose seat is currently held by Judge Kimberly Melnick. A total of five (5) judges have occupied this seat.
January 1977 – Judge John Meagher, whose seat is currently held by Judge Gerald Parker. A total of five (5) judges have occupied this seat.
July 1991 – Judge James Gilvary, whose seat is currently held by Judge Dennis Adkins. A total of three (3) judges have occupied this seat.
July 1991 – Judge John Petzold, whose seat is currently held by Judge Elizabeth Ellis. A total of three (3) judges have occupied this seat.
The Common Pleas Court General Division judges have jurisdiction over all criminal felony cases and civil cases with an amount in controversy over $15,000. In addition to these main functions the court also has jurisdiction over civil stalking protection orders and acts as the appellate court over decisions from certain administrative agencies.
In addition to the general court dockets, Montgomery County has several Specialty Dockets that provide a tailored and more structured approach to supervision for certain segments of our population. For these dockets, outside agencies are integrally related and involved in helping address the social and behavioral issues that the participants may have. The participants must appear in court more frequently in order to either continue supporting their efforts or hold them accountable for their shortcomings. Montgomery County’s Specialty dockets were outlined in detail in the last edition of Bar Briefs; however, they are as follows: Kushinda Court, Men’s Achievement Recovery Court (MARC), Mental Health Court, Recovery is Empowering Court (RISE), and Veteran’s Treatment Court.
Most members of the public, and even the bar, don’t know about the many responsibilities the judges have that are occurring behind the scenes.
The Common Pleas Court judges must also oversee several committees to run the courthouse. Montgomery County has the following committees: Courthouse Security Committee, Information Technology Committee, Case Management Committee, Probation, Pretrial & Investigative Services Committee, and Boards and Commissions Committee. Each committee has several judges that meet every month or every other month to ensure that the processes of the court are running properly and investigate any advancements that may need to be established.
You may be wondering why I would write about the history and duties of the General Division. I do so in the hope that some of you, as valued members of the bar, will consider joining us on the bench. I think I can speak for all of the General Division judges when I say that we pride ourselves on working together and being a very supportive and innovative group.
It is my hope that some members of the bar that have the requisite five (5) years or more of practice under their belts will look inward. If there was ever the desire or goal to become a judge, now is the time to start thinking about it. Having been a trial lawyer for 28 years before taking the bench, I can say that it is harder than you may think, but it is an enormous honor to serve our community in this way and an extremely rewarding career.
The law as it is currently written forces judges to retire once they have reached seventy (70) years of age. After that “milestone” occurs, a judge can finish their current term, but cannot run for re-election again. While this limitation is statutory and could be changed in the future, it is the current state of the law. Montgomery County Common Pleas Court General Division has three (3) judicial seats that will be coming open by the election in 2026.
It is always possible that a judge may retire before their term is complete, which prompts the Governor to appoint a replacement. If that happens, the appointee must run in the next general election to hold the appointment and then run again at the end of the term; this time for a full six (6) year term. In most cases, the first election can expect to be opposed. Whether any of the “milestone” judges choose to retire early or not, those three (3) seats will be on the ballot for some fresh new judges to join the bench.
For those judges that will be retiring, I wish you all the best! For those who may join the bench, I’m excited to hear your perspectives and start your next chapter with you!
The DBA Board of Trustees have recently approved the following for DBA Membership:
The DBA is proudly serving 1,400 members!
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Clifford Carlson
Cliff Carlson Law., P.C.
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US Dist Ct, Southern Dist OH
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Law Office of Jacob Sterling Seidl LLC
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DAYTON DIALOGUE
ON RACE RELATIONS: An Opportunity to Know Each Other Better SOCIAL JUSTICE
Depending upon one’s perspective, progress in the area of race relations has either made significant steps over the past seventy years, due to the legal battles fought and won by members of our profession, resulting in the legal dismantling of segregation and discrimination on the basis of race, or what progress has occurred has been agonizingly slow, with the struggle for the hearts, souls and minds of the American people yet to be joined let alone being successful.
While we have learned to work, to go to schools and colleges and, for those of us fortunate enough to live in integrated neighborhoods, to live together, we have really made little, if any, positive steps in getting to know one another. What we have learned on the worksite, the campus or the neighborhood is all too often superficial at best. Every community, and ours is no exception, pays a price for these superficial relationships.
We, each and everyone of us, is a product of our life’s experiences from our earliest years to the present day. Those experiences shape our perspectives, our views of the world and our positions on the issues of the day. For example, if we are trying to resolve a community issue or even a neighborhood or personal dispute with another, we will very quickly know WHERE the parties stand on the issue being discussed, as we would have no hesitancy in verbalizing that position. However, without some knowledge of the other person’s life experiences, experiences which have shaped that person’s viewpoints, we will never know the WHY from where they are coming. Without knowledge of the why, it becomes too easy to examine the other’s positions through a racial prism and well nigh impossible to focus on the commonality that exists among people to resolve our differences. I have never lived the African American experience; nor have my African American friends and colleagues ever lived my white, middle-class life. Sharing our experiences will help us get to know each other better and will help us realize what we should have known all along - - - that there is no difference between us other than the meaning-
By Walter H. Rice
United States District Judge
less difference in the color or our skins. Once having reached that state, there will be absolutely no social, economic, personal or community issue that cannot be resolved.
Can we get to know each other better? If so, how? I commend the Dayton Dialogue on Race Relations to you. The interracial Dialogue sessions, consisting of eight to twelve persons, spread over a period of some nine hours during a several week basis, led by two diverse facilitators, encourage discussions such as your parent’s attitudes toward members of different races, did you, the dialogue participant, have friends of different races growing up, was your school diverse in racial identity, is your workplace diverse, etc., designed to help you confront your experiences and, consequently, to examine your attitudes, toward members of different races.
Given that such talk, no matter how enlightening or liberating, tends to dissolve into the ether once those discussions are complete, the Dialogue Model sponsors “Action Plans,” personal initiatives within the group and community activities in which the dialogue group engages after the dialogue sessions are complete by working together on a community project. The words spoken during the dialogue sessions become a part of one’s experiences and thus engrained in our attitudes and perspectives moving forward. Results obtained by post session questionnaires, completed by the dialogue members, show clearly that the dialogues and the action plan processes have made lasting changes in the perspectives of the participants with regard to persons with different racial identities. Without hesitation, those responding to the post-dialogue questions indicate that they are far more understanding of each other and far more ready to engage in continuing the growing friendship between the dialogue members and working together to improve their neighborhoods and communities.
Should anyone be interested either in sponsoring or participating in a dialogue, please feel free to contact this author at 937-512-1502.
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Consider Your Giving This Holiday Season
The Dayton Bar Foundation (DBF) is a 501(c)(3) charitable organization and serves as the giving arm of the Greater Dayton Legal Community. 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:
•adVocaTes for Basic leGal equaliTy (aBle)
•GreaTer dayTon VolunTeer lawyers proJecT (GdVlp)
•law & leadersHip insTiTuTe
•leGal aid of wesTern oHio (lawo)
•MiaMi uniVersiTy pre-law cenTer
•wills for Heroes
Dayton Bar Foundation, 109 N. Main St., Ste. 600, Dayton OH 45402-1129 Contributions may also be submitted online: daybar.org/dbfdonate Make a donation now and help us make a difference through our programs! Gifts may also be made in honor or in memory of family, friends or colleagues. I am
Greater Dayton Volunteer Lawyers Project (GDVLP)
The Power of Engagement: How Community, Professionalism, and Service Lead to Fulfillment
In our fast-paced, demanding world, it’s easy to lose sight of what truly matters. Between the pressure to meet deadlines, exceed client expectations, and keep up with the latest trends in our professions, many of us feel as though we’re constantly running on empty. But when we take a step back and look at what brings real meaning and fulfillment into our lives, it often comes down to one simple truth: the power of connection. Being engaged in our communities, staying involved in our professional networks, and using our skills to help others through acts of service are the foundations of a well-rounded, fulfilling life. These elements not only help us grow as individuals, but they also enable us to make a tangible difference in the lives of others. For those in the legal profession, there’s no better way to combine all three than through pro bono service.
The Value of Community Engagement
Community is at the heart of who we are. Whether we realize it or not, each of us is shaped by the environments we live and work in. Engaging with our communities—through volunteering, advocacy, or simply being an active participant—gives us a sense of belonging and purpose that goes beyond individual achievement.
For legal professionals, community engagement often means using our expertise to help those who may not have access to legal representation. It means standing up for the underrepresented, giving voice to those who may feel powerless, and working toward justice on behalf of the vulnerable. The act of engaging with our communities in this way brings a deeper understanding of the struggles people face and a stronger sense of empathy, both of which are essential for personal and professional growth.
But the benefits of community involvement don’t end with the people we help. Numerous studies show that being active in your community leads to higher levels of personal satisfaction, better mental health, and a stronger sense of identity. There’s something deeply rewarding about being part of something bigger than yourself. When we engage with our communities, we tap into the collective energy of people working together toward a common goal. That’s the kind of connection that brings lasting fulfillment.
Professional Engagement: Growth and Learning
While community engagement builds connection and empathy, staying engaged in our professional lives helps us grow our knowledge and skills. The legal field, like many others, is constantly evolving. New laws, precedents, and technologies require ongoing education, networking, and collaboration.
Being active in professional organizations, attending conferences, mentoring younger colleagues, and participating in continuing education opportunities are not just career-building activities—they’re essential for staying inspired and motivated. Surrounding ourselves with like-minded professionals gives us the chance to exchange ideas, challenge assumptions, and expand our perspectives.
Moreover, professional engagement can be the key to finding new ways to serve the community. The relationships we build with our peers often lead to collaborations that address larger societal issues. Whether through partnerships on pro bono projects, referrals to community legal services, or collective advocacy for systemic change, staying engaged in our professional circles amplifies our ability to make an impact.
The Power of Helping Others
By Summer Hawks Esq. Executive Director, GDVLP
If there’s one thing that unites all of these forms of engagement, it’s the power of helping others. There’s a certain joy that comes from knowing that you’ve made a difference in someone else’s life, especially when you can use your unique talents and skills to do so. This is where pro bono service becomes so powerful for legal professionals.
Pro bono work offers a special opportunity to take the skills we’ve honed in our careers and apply them to causes that deeply resonate with us. It’s a chance to step outside of the day-to-day demands of paid work and focus on cases that align with our values. Whether it’s helping a family avoid eviction, representing a survivor of domestic violence, or advocating for the rights of immigrants, pro bono service allows us to practice law in its purest form: as a tool for justice.
But beyond the impact we have on the clients we serve, helping others through pro bono service has a profound effect on our own well-being. Numerous studies show that acts of kindness and generosity are directly linked to greater happiness and life satisfaction. When we use our skills to improve someone else’s situation, we experience a sense of purpose that can’t be replicated by personal achievement alone. It’s in those moments of service that we feel most connected to the world around us.
Fulfillment Through Service
So how does all of this—the value of community, the importance of professional engagement, and the power of helping others—lead to a more fulfilling life?
At its core, fulfillment comes from aligning our values with our actions. When we actively contribute to the betterment of our communities, when we seek out opportunities to grow in our professions, and when we use our talents to help others, we are living in a way that reflects our highest ideals. Pro bono service offers a unique way to bring these elements together in one impactful, rewarding experience.
For legal professionals, this alignment is especially meaningful. Law, after all, is about advocating for justice and fairness. It’s about protecting the rights of individuals and working to build a more just society. By dedicating time to pro bono service, we not only fulfill our ethical obligations but also reconnect with the core reasons many of us entered the profession in the first place: to help others and make a difference.
A Call to Action
If you have not yet taken on a pro bono matter through the Greater Dayton Volunteer Lawyers Project (GDVLP) or if it has been a while since you last participated, now is the perfect time to get involved. The need for pro bono legal services in our community continues to grow, and your skills and compassion can make a lasting difference in the lives of those facing legal challenges without representation. Whether you are a seasoned attorney or new to the profession, the GDVLP offers a variety of cases that match your expertise and availability.
We encourage you to contact the GDVLP today (summer@gdvlp.org or 937-461-3857 or stop by to see us when you visit the Bar Association) and learn more about the opportunities available. Your involvement can help ensure that justice remains accessible to everyone in the Dayton area, regardless of their financial circumstances. Together, we can continue building a stronger, more just community—one case at a time.
LAW RELATED ORGANIZATIONS
Breaking the Silence: The Power of Recovery and Support in the Legal Profession
In her memoir Girl Walks Out of a Bar, attorney Lisa F. Smith shares a deeply personal and raw account of her struggles with alcohol and cocaine addiction. Smith’s story is not just about addiction; it’s about the fear of judgment and stigma that many professionals, especially in high-pressure fields like law, face when confronting substance use disorders (SUD) and mental health issues. Her journey from secrecy and shame to recovery and openness serves as a powerful testament to the importance of support and understanding in the workplace.
Smith’s descent into addiction was marked by a profound fear of discovery. As her life spiraled out of control, she recognized the need for professional help. However, the thought of her law firm discovering her struggles filled her with dread. “As I passed off my immediate projects for coworkers to handle, I thanked God for the privacy laws that prevented the firm from questioning me about my health,” Smith recalls. The fear of being seen as “weak, defective, and untrustworthy” overshadowed her need for help, reflecting a common concern among legal professionals.
This fear is not unfounded. The legal profession is known for its rigorous demands and high expectations, where any sign of vulnerability can be perceived as a career-ending flaw. Smith’s reluctance to reveal her addiction was rooted in the stigma associated with substance use disorders within the legal community. “It wasn’t just because I was ashamed, which I was,” Smith explains, “it was also because of the stigma attached to substance abuse by lawyers. If they found out, overnight I’d go from being viewed as hardworking and smart to weak, defective, and untrustworthy.”
During her recovery, Smith’s therapist suggested that she consider being open about her struggles at work, emphasizing that addiction is a disease, not a personal failing. “You told me that you spend a significant amount of time at work. Don’t you think it will be better if the people you’re with every day know that you’re in the earliest stages of recovery? There’s nothing to be ashamed of,” the therapist advised. However, Smith’s response reflects the harsh reality many in her profession face: “Yea,
I get that, but no. It’s not OK in a big law firm. We talk about alcoholics behind their backs. I know that sounds bad, but nobody cares that it’s a disease. It’s considered a weakness, and they always find a way to cut the weak from the herd. I’ll come clean anywhere but at work.”
But, years later, after achieving sobriety and beginning to write publicly about her addiction and recovery, Smith shared her story with her colleagues and realized that she had a strong support system in the legal field. “I trusted and respected them. I didn’t want them to learn my story on the Internet. It was difficult to share, but the response I received was overwhelmingly positive. I am lucky to be in a compassionate and supportive environment,” she reflects.
Smith’s experience highlights the importance of workplace culture in supporting individuals who are struggling with SUD or mental health issues. The legal profession, like many others, is evolving to become more compassionate and supportive. There has been a growing recognition of the importance of mental health and well-being within the legal profession. Initiatives aimed at reducing stigma and promoting wellness are becoming more prevalent, signaling a positive shift in the industry, but we can always do more to help reduce the stigma.
As the Clinical Director at the Ohio Lawyers Assistance Program (OLAP), I have worked with many judges, magistrates, and lawyers who share Smith’s fears. They are often afraid that their employers will find out about their SUD or mental health issues, fearing the professional consequences that might follow.
OLAP is a resource that supports attorneys, judges, and law students dealing with these issues. OLAP is 100% confidential, so you can ensure that no one else will know that you asked for help. If we ever get calls about certain OLAP clients, we tell them “We cannot confirm or deny knowing that individual.” This confidentiality is also true for therapists.
However, one of the most critical messages I convey to OLAP clients is that recovery is possible, and it can be achieved privately. The most important thing to focus on is one’s
By Laura Valentino Clinical Director, OLAP
recovery, not the potential judgments of others. There are numerous resources available that can help individuals recover while maintaining their privacy. For instance, therapists who offer weekend appointments, telehealth services, or sessions in another county provide a discreet way to seek help without the fear of being discovered by colleagues or employers.
Recovery is not a one-size-fits-all journey, and it’s crucial for each person to find the path that works best for them. Whether through in-person counseling, telehealth, or other forms of therapy, the key is to take that first step toward recovery. It’s important to remember that seeking help is not a sign of weakness; it’s a sign of strength and self-awareness. By prioritizing recovery, individuals can reclaim their lives and careers, proving that they are more than their struggles.
Substance use disorder is a disease, not a moral failing, and it should be treated as such. By fostering an environment of understanding and support, the legal community can begin to break down the barriers that prevent so many from seeking help. Colleagues and employers can play a crucial role in this by encouraging openness and creating a culture where it’s safe to admit when one is struggling.
Ultimately, Lisa F. Smith’s memoir is not just a story of addiction; it’s a story of hope, resilience, and the power of support. Her journey reminds us that recovery is not just about getting better—it’s about reclaiming your life and proving that you are more than your struggles. By prioritizing recovery, seeking help, and challenging the stigma within the legal community, professionals can overcome these challenges and emerge stronger on the other side.
The path to recovery may be daunting, but it is not insurmountable. With the right support, legal professionals can navigate this challenging time while protecting their privacy and preserving their careers. Recovery is not a destination; it’s a journey—a journey that is worth every step. And as more individuals like Lisa F. Smith share their stories, the legal profession will continue to evolve, becoming a place where recovery is not just possible but embraced.
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The Law Firm of Sebaly Shillito & Dyer have moved their office and are now located at 220 E. Monument Ave., Suite 500, Dayton, OH 45402.
Mathias Heck Jr. and the Montgomery County Prosecutors Office are pleased to announce that Daniel J. Brandt has been inducted as a Fellow of the American College of Trial Lawyers, a prestigious legal association in North America. The ceremony took place at the College's Annual Meeting in Nashville, attended by around 730 people. Prosecutor Mat Heck, who nominated Brandt, praised his exemplary career as a prosecutor. Brandt, a graduate of the University of Toledo College of Law, joined the prosecutor's office in 1997 and has held various roles, including Chief of the Criminal Division since 2021.
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