September 2021 Dayton Bar Briefs Magazine by Dayton Bar Association

september 2021 The Off icial Magazine of the DBA

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2021-22 DBA President Merle Wilberding Coolidge Wall Co., LPA

president'S MESSAGE The Law is a Noble Profession pg 4

public service & congeniality

from the judge's desk

Welcome Back!

Who Can Be Considered a Victim?

pg 8

pg 22

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Car

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First Vice President

Second Vice President

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Treasurer

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Member–at–Large

The Law is a Noble Profession

By Merle Wilberding Esq. | Coolidge Wall Co., LPA

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Immediate Past President

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BAR BRI E F S 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 oThce. ue DAYTON BAR BRIEFS is published September through Summer. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy Chief Executive Offcer Shayla M. Eggleton Communications Manager Phone: 937.222.7902 www.daybar.org fie contents expressed in the publication of DAYTON BAR BRIEFS do not re ect the offcial position of the DBA. 2

By Tom Intili Esq. | Intili Group, a Legal Professional Association

DAYTON Bar Briefs |

By The Honorable Mary Kate Huffman | Montgomery Cty Common Pleas Ct

The Veterans Service Commission

Welcome Back!

PUBLIC SERVICE CONGENIALITY

Member–at–Large

Fredri

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Member–at–Large

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BARRISTER OF THE MONTH

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By The Honorable Timothy N. O'Connell | Montgomery Cty Common Pleas Ct

Member–at–Large

Who Can Be Considered a Victim?

JUDGE'S DESK

Features:

Secretary

Columns:

PRESIDENT'S MESSAGE

Anne P. Keet n

september no. 2021

Contents 4

President

vol.

SUMMER 2021

By Steve Strain Esq. | Montgomery Cty Veterans Service Commission

Departments:

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Continuing Legal Education September+ DBACLEOTi"BM 29th Annual Bench Bar Conference | Keynote Speaker Linda Greenhouse

September Section Meeting Schedule

Also Inside:

Lemon at 50: Has the Supreme Court Soured on Its Bitter Fruits? By Susan Newhart Elliott, Professor & Director of Zimmerman Law Library | UDSL

IMvBiaKKdBab"vRK}aBvvKb}"7dKiabdBab"vRK}BdvKbia4 Check out Atomic Habits by James Clear By Elizabeth Wilfong Esq. | Bieser Greer & Landis LLP

LAW RELATED ORGANIZATIONS

ABLELAWOGDVLPCa?ea"BKiEh}a7J}Mv"c Dayton Bar Foundation pg 26 D"iM"vR}IBc7}M"KBLa7RK}Bdvab7 pg 27 Greater Dayton Volunteer Lawyer Project pg 29 University of Dayton School of Law pg 30 OB"KLaRiMAMM"MvaBcPiKia? pg 25

30 30 31

CLASSIFIED ADS ADVERTISER INDEX MEMBERS ON THE MOVE

pg 28

Cover & Pg 4 Photo credit:

Julie Noeth

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2021-2022

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Column

President's Message

The Law is a Noble Profession

By Merle Wilberding Esq. Coolidge Wall Co., LPA Wilberding@coollaw.com

hank you for giving me the opportunity to serve as President of the Dayton Bar Association. I am especially grateful for the leadership of our outgoing President, Fred Young. Fred has led the DBA through a very tough year, made especially difficult because of the COVID-19 pandemic. And I thank Jennifer Otchy, our continuing CEO, for her great efforts in working through the pandemic without a play book for any answers. She has continued to make the Dayton Bar Association so helpful and rewarding to its members. We have all been blessed by the Dayton Bar Association. Prior to Fred Young we had the leadership of Judge Mary Wiseman and David Pierce, and of all the other past presidents. Looking forward, we are buoyed by the future leadership of Caroline Gentry (First Vice President) and Anne Keeton (Second Vice President). We continue to be blessed. I have looked at the long list of prominent lawyers who have served as President of the Dayton Bar Association over the past 120 years. I am proud to say that I am the 5th President elected from the Coolidge law firm. My four predecessors were: Hugh E. Wall, Jr. (1973 - 1974), Roger J. Makley (1991 -1992), Hugh E. Wall, III (1994 - 1995), and David P. Pierce (2018 – 2019). I am honored that I will be listed with them. This is a great opportunity for me and I am grateful. I am also grateful for the many opportunities I have had along the way. As some of you know, I grew up on a farm in western Iowa. I was one of nine children. Neither of my parents went to high school, and half of my siblings started in a one-room schoolhouse. We had the old-fashioned telephone system for which we had to call the central operator and tell her the number we wanted to call. Our own telephone number was 23 on 33, as in, two longs, three shorts on Line #33. I should add that there were five other subscribers on Line #33, so without fail they listened in on every call. We had only one book in the house (other than a Bible), and that book was a one-volume “library.” It was about six inches thick containing more than 2,000 pages. I would lie on the floor, trying to read it from cover to cover. While I was in grade school, my older brother gave me the book, So You Want to be a Lawyer. 4

DAYTON Bar Briefs |

SEPTEMBER 2021

The thought of being a lawyer intrigued me and I thought I would like it. That was as close as I got to the practice of law until I was actually enrolled in law school. Then I could say, like Bryan Stevenson said in his famous book, Just Mercy, “I never met a lawyer until I was in law school.” Consequently, I had no preconceived notions as to what a lawyer was or how the practice of law was perfected. For example, I did not know you could use books in the practice of law. I thought you just “learned the law” and then gave out advice as clients came in the door. The best part of that misconception was that it made me study very hard to know the law, and for that I am grateful to this day. So, I feel very fortunate about the opportunities I have had, and about the wonderful people I have met along the way. I know that the practice of law is in many ways a business, and that supporting the business side of our practice is always a big part of the services provided by the Dayton Bar Association. At the same time, I want to emphasize what a real privilege it is to be able to practice law, and that, in the true sense of the word, I believe the practice of law is a profession that transcends the day-today business side of the practice of law. A couple of years ago I was honored to be invited by Congressman Mike Turner to attend one of the Congressional Dialogues at the Library of Congress hosted by David Rubinstein. The guest that evening was John Roberts, the Chief Justice of the United States Supreme Court.

When he was first nominated, I had watched all of his confirmation hearings. I admit that I have always admired Chief Justice Roberts, even if I may not agree with all of his opinions. So, I was thrilled to have a chance to meet him and to listen to his perspective. He talked about how his clerkship with Judge Henry Friendly from the Second Circuit had transformed his view on the practice of law. The Chief Justice lamented that, when he had first graduated from law school, he was a bit cynical about the practice of law, but that changed completely during his Judge Friendly clerkship. According to the Chief Justice, Judge Friendly thought that the law had stature of its own, independent of the uses to which it could be put. In other words, Judge Friendly, now echoed by the Chief Justice, believed that the law was something very noble, and that laws were actually the restraints that make men free. That’s the theme that I want to honor and promote this year, that the practice of law is a true profession, indeed, that the practice of law is a noble profession. And, I do want to give a shout out to Jonathan Hollingsworth for a comment he made at one of our meetings at the Ohio State Bar Foundation. Jonathan said:

he practice of law is a profession that transcends the day-to-day business side of vBeiacv"cK7a

"We are in the greatest profession in the world. We are the difference makers. We can hold people accountable."

Jonathan is right, and I want to look at this year as our opportunity to rise up and live the ideals we have been taught, and live the ideals we have been preaching: • To do the right thing • To practice with Integrity • To do our part in promoting diversity and inclusion • To serve our clients to the best of our abilities • To be honest and candid with our adversaries • To be respectful to our judges • To contribute to Dayton and to our surrounding community, and, of course, • To contribute to the DBA with our time and treasure. So, let’s go forward during the next year with a new appreci ation of our professional value and let’s renew our efforts to practice law with diligence, intelligence and pride. Thank you, again, for the opportunity to serve you.

rt Justice Merle & United States Supreme Cou John Roberts SEPTEMBER 2021 |

DAYTON Bar Briefs

Feature

Barrister of the Month

Mark E. Owens Clerk, Dayton Municipal Court

ne would strain to think of a public official less venerated than a clerk of court. For the clerk, success is measured by his or her distance from the public spotlight. And, for reasons of pure competence, Mark Owens would exist in relative anonymity as the Clerk of the Dayton Municipal Court but for the fact that the spotlight often shines upon him as the Chairman of the Montgomery County Democratic Party. For 30 years, Mark has managed the Clerk’s office seamlessly. His improvements include launching the Clerk’s website whereby citizens pay traffic fines and court costs with a keystroke. The website also fosters transparency in the progress of cases, both civil and criminal, before the Dayton Municipal Court. Lawyers, the media, and the general public all benefit from information Mark’s office provides in digital form. Few remember how Mark became the Clerk of the Dayton Municipal Court. In December 1990, Mark’s predecessor, Ed Orlett, announced his intention to retire the following month. Although Mark is a card-carrying Democrat, the Clerk’s office is ostensibly non-partisan. Appointment of Orlett’s successor was thus not the province of a county political party chairman, but of the Court’s judges. In an effort led by Judges Jack Duncan and Daniel Gehres, the Court chose Mark who over the previous eighteen months had served as one of the Court’s full-time magistrates. To retain the Clerk’s position in 1992, Mark had to first succeed in a May, 1991, primary. Five candidates entered the race including longtime Dayton City Commissioner Abner Orick. A Republican and native of Harlan County, Kentucky, Orick was well known in Dayton and in the media for his southern-style, common-man, outlook on matters pertinent to city governance, particularly those of importance to residents of the east Dayton neighborhood where he lived. In that primary, Mark worked hard and came out on top. Orick finished second pitting him against Mark in the November gen-

DAYTON Bar Briefs |

SEPTEMBER 2021

eral election, which Mark won comfortably. Mark’s journey to the Clerk’s office began in Columbus at Lockbourne Air Force Base, known today as Rickenbacker International Airport. Born in 1956 to the late Charles “Ernie” Owens and Rebecca Graham Owens, Mark is the eldest son of a man who chose the United States Air Force as his career. As was common for military families in the 1960s and 70s, the Owens family moved often. Mark was always the new kid in school having at tended thirteen d i f ferent

schools in twelve years, including three in a single year. In addition to Ernie’s service at various Air Force bases in the United States, there were stints in Japan and Germany. In the early 1970s, Ernie moved his family to Fairborn following a transfer to Wright-Patterson Air Force Base. The move to Fairborn fostered Mark’s entrance, then graduation, from erstwhile Fairborn Park Hills High School in 1974. Notably, Ernie’s family did not follow him with every transfer. One such transfer was to Saigon, Vietnam, in 1964, where Ernie

served as a special assistant to U.S. Army General Richard G. Stillwell. At that time, Stillwell was chief of staff to General William Westmoreland, the commander of the Military Assistance Command in Vietnam. While Stillwell slept, Ernie worked nights preparing intelligence briefings for the general each morning. One such briefing concerned an August 2, 1964, confrontation in the Gulf of Tonkin between an American destroyer, the U.S.S. Maddox, and three North Vietnamese torpedo boats. As chief of staff, it was Stillwell’s duty to brief Westmoreland about what had occurred in the Gulf of Tonkin. History records that the U.S. suffered no casualties, and the Maddox was left relatively unscathed, in the Gulf of Tonkin incident. What history often overlooks, however, is that within Westmoreland’s sphere, Ernie Owens was first to know of the incident that escalated profoundly U.S. involvement in the war in southeast Asia. A full decade after Gulf of Tonkin, Mark Owens entered Wright State University as a college freshman. After graduating in May, 1978 with a political science degree, Mark entered law school at the University of Dayton. He graduated in 1981 and was admitted to the practice of law that November. His first job as a lawyer was as Marilyn Reid’s associate in Beavercreek. Two years later, he formed an association with classmates, Betty Bates, Adele Riley, Janet Sorrell and Toni Tell. Bates, the wife of Chemineer founder, Robert Bates, entered the practice of law as a grandmother. When Bates left the firm in 1983, Mark moved into her former office. In 1985, Mark joined Lee Falke’s office as a part-time prosecutor in what was known at that time as Montgomery County District Court No. 1 in Trotwood. Two years hence, Mr. Falke hired Mark full-time as an assistant prosecuting attorney in the child support division, a position he held until 1989 when he became a full-time magistrate in the Dayton Municipal Court. Coextensive with Mark’s growth and progress in the practice of law was his

advancement in politics. Mark’s political baptism occurred during Howard Metzenbaum’s successful 1976 senatorial campaign against incumbent U.S. Senator Robert Taft, Jr. After law school, Mark worked on Dick Celeste’s victorious 1982 campaign for governor followed by a string of local races: Mark Henry’s Dayton City Commission race in 1983; Tom Talbot’s Ohio Senate race in 1984; Tony Capizzi’s Dayton City Commission race in 1985; Tom Roberts’ Ohio House of Representatives race in 1986; and Daniel Gehres’ Dayton Municipal Court race in 1987. During this period, Mark’s activism in local politics was much admired and appreciated. Indeed, after Roberts’ successful House race in 1986, Mark was recognized as the Montgomery County “Democrat of the Year” by then party chairman, Joe Shump. In 1994, Mark became vice chair of the Montgomery County Democratic Party under then chairman Dennis Lieberman. When Dennis stepped down in 2007, Mark ascended to the chairmanship, a position he holds to this day. Like Dennis, Mark has celebrated party victories and suffered losses with equal measures of humility and gratitude laying a groundwork of dignity and grace for successors to that chairmanship. As accomplished in life as he is in law and politics, Mark is husband of 42 years to his

wife, Debbie, a retired Huber Heights City Schools fourth grade teacher. Mark and Debbie have two children, Matthew, a chef in Cincinnati, and Emily, a stay-at-home mother of young children in Plain City. Although Mark’s father, Ernie, has attained his eternal reward, Mark’s mother, Rebecca, remains among us. Her dedication to the country as the wife of a career and often deployed U.S. serviceman, and mother to four growing boys, is met with constant gratitude by Mark and his three brothers, Gary, David and Scott. With retirement in sight, Mark sees electronic filing on the Dayton Municipal Court’s horizon. In the meantime, he takes pride in his office’s advancements over the past thirty years including his collaboration with the Montgomery County Sheriff ’s Department, the Montgomery County Common Pleas Court, and suburban municipal courts most notably with collection and electronic disbursement of bail bonds posted after normal business hours. Before Mark’s office became the clearinghouse for those bonds, the

Sheriff ’s Department had to hand-deliver them to the Common Pleas Court and municipal courts throughout the county. Whatever the future may hold for Mark, his commitment to the profession, the Dayton Bar Association, and the ideals of the Democratic Party will continue uninterrupted. It is thus with great admiration and respect that we recognize Mark E. Owens as Barrister of the Month.

By Tom Intili Esq. Intili Group, a Legal Professional Association tom@igattorneys.com

SEPTEMBER 2021 |

DAYTON Bar Briefs

Feature

Public Service & Congeniality

Welcome Back!

By The Honorable Mary Kate Huffman | Montgomery Cty Common Pleas Ct | Mary.Huffman@montcourt.oh.gov

hile months may have passed since we last gathered together as a community to enjoy friendship and fellowship with our colleagues in the Bar, we now see opportunities to assemble to renew acquaintances and forge new relationships. To provide opportunities for DBA members to reconnect with peers, numerous events have been scheduled for the upcoming Bar year by the Public Service & Congeniality Section.

the opportunity to hear local and national experts on Supreme Court practices, important cases and history of the Court. Past speakers include DBA members Charlie Faruki, David Greer, and Judge Dennis Langer, as well as Ohio Supreme Court Justice Patrick Fischer. Please join us for the 2021 First Monday in October event on Monday, October 4th at UDSL for lunch, fellowship with law students and faculty, and to hear from Chief Judge Jeffrey S. Sutton of the Sixth Circuit Court of Appeals.

A favorite among DBA members, the monthly Chancery Club meetings begin again on September 17th at noon. Our September gathering will be devoted to reconnecting and providing members time to report on personal and professional news since we last met in person. Chancery Club presents an opportunity for DBA members to come together for food and fellowship in a relaxed setting and to hear a short presentation from a DBA member or community partner on topics of interest to the bar. Look for future meeting agendas that will mirror the monthly Bar themes established by the Board of the DBA.

The Section also solicits nominations for the prestigious Liberty Bell Award, a recognition presented annually to honor a local person who has rendered outstanding service to the legal community. Any person, other than a lawyer or a judge, may be considered for this distinguished award. Eligibility for nomination includes professionals working in education, business, the sciences, communications, labor, government, religious and community services, non-profits, health care, and youth organizations. The DBA encourages members to nominate an individual or organization for the award. The 2022 Liberty Bell recipient will be announced in May and nominations will be accepted beginning in January. Watch for nomination information in the January 2022 edition of Bar Briefs.

The Public Service & Congeniality Section also annually plans the First Monday in October Celebration an event in conjunction with the University of Dayton School of Law. The First Monday in October will be held this year on October 4th and celebrates the opening of the U.S. Supreme Court term. The luncheon held at UDSL affords DBA members and the UDSL community of students, staff and faculty 8

DAYTON Bar Briefs |

SEPTEMBER 2021

The annual Breakfast with the Bench provides a time for the bench and bar to gather and socialize in a relaxed and informal setting. The 2021 event will be held on Thursday, October 21st from 7:30am-9:00am at Sinclair Community College. The DBA scheduled its first Mentoring Meetup for March 26, 2020; needless to say, the cancellation of the event proved necessary. Designed as a vehicle for attorneys and mentors, working through the Ohio Supreme Court Lawyer to Lawyer Mentoring program, to meet in an informal setting with other mentors and mentees and exchange valuable advice and thoughts on an array of topics important to young lawyers, Mentoring Meetups will be scheduled throughout the Bar year. Please watch for announcements in future Bar Briefs issues on the schedule for Mentoring Meetups, and plan to join us for these valuable opportunities for both mentors and mentees.

A Special Thank You to The Eichelberger Foundation for their DBA Event Sponsorship! In December of each year the Bar welcomes new admittees to the practice at the New Admittee Reception. This year, the reception has been planned for Wednesday,

December 1st from 5:30pm-7:30pm at Coco's Bistro. Join your fellow DBA members in introducing our new colleagues to the tremendous support and collegiality that we experience in the Miami Valley as members of the bar. The Public Service & Congeniality Section also facilitates the Women in the Law Forum. Created as an outlet and resource to discuss issues that affect women in the legal profession, the forum is conducted twice annually. Relationship-building and mentoring represent an integral function of the forum. The event remains open to all DBA members. Information on upcoming Women in the Law Forums will be available on the DBA website and in Bar Briefs. As a result of very generous support from the Eichelberger Foundation, all DBA members, including students and paralegals, are invited to attend the events organized by the Public Service & Congeniality Section at no cost. We hope to see you at an upcoming DBA event!

SEPTEMBER 2021 |

DAYTON Bar Briefs

Lemon at 50: Has the Supreme Court Soured on Its Bitter Fruits?

By Susan Newhart Elliott, Professor & Director of Zimmerman Law Library | University of Dayton School of Law | selliott1@udayton.edu

his year's University of Dayton School of Law Education Law Symposium – Lemon at 50: Has the Supreme Court Soured on Its Bitter Fruits? – will take place online on Friday, September 24, from 9 a.m. to 4 p.m., in conjunction with the Law School’s Alumni Weekend. The Symposium focuses on the United States Supreme Court’s landmark 1971 decision in Lemon v. Kurtzman, which produced a three-prong analysis (the “Lemon Test”) for First Amendment Establishment Clause jurisprudence. The Symposium addresses Lemon’s past, present, and uncertain future. Lemon involved two state programs providing economic supplements for teachers of secular subjects in private schools, the majority of which were Roman Catholic. Challengers claimed that the programs violated the First Amendment’s Establishment Clause by providing governmental support and benefit to establishments of religion. The first two clauses of the First Amendment to the United States Constitution provide:

Congress shall make no law respecting an establishment of religion, or prohibit ing the free exercise thereof …. The language of the Establishment Clause is somewhat opaque. It does not simply prevent the government from establishing a state religion; its reach extends to laws “respecting an establishment of religion.” It may be broadly said to prevent the government from compelling, directing, or becoming actively involved in religious conduct, as the Free Exercise clause may be said to prevent the government from prohibiting or burdening religious conduct. The Lemon Court’s opinion noted the challenges of “this extraordinarily sensitive area of constitutional law,”2 and articulated a structure for analysis drawn from existing Establishment Clause jurisprudence: (1) whether the law at issue had a secular legislative purpose; (2) whether the principal or primary effect was to advance or inhibit religion; and (3) whether the law “foster[ed] an excessive government entanglement with religion.”3 The Court concluded that the state programs had a secular purpose (enhancing the quality of secular education in all schools) and that neither was intended to advance religion.4 However, the Court further concluded that the extent of governmental supervision, management, and direction necessary to ensure that the economic support

DAYTON Bar Briefs |

SEPTEMBER 2021

was effectively limited to secular conduct would result in “excessive entanglement between government and religion,”5 in violation of the Establishment Clause. Lemon has been subject to criticism through the past 50 years. In 2019, the Supreme Court decided American Legion v. American Humanist Association,6 an Establishment Clause case challenging state acquisition and maintenance of a 32-foot cross that was a long-standing World War I monument. Both lower courts employed the Lemon Test, with different results. The district court found that governmental maintenance of the cross was permissible, but the Fourth Circuit Court of Appeals concluded that state maintenance of the Cross failed the Lemon Test’s primary effect and excessive entanglement prongs, reflecting endorsement of a “hallmark symbol of Christianity.”7 The Supreme Court reversed. In an opinion by Justice Alito, the Court declined to employ the Lemon test, devoting several pages to criticism of Lemon and especially of its application in cases relating to longstanding monuments. Using a historically oriented analysis, without articulation of a specific test, the Court concluded that governmental support and maintenance did not violate the Establishment Clause in view of the history and context of the cross.8 Justices Kavanaugh, Thomas, and Gorsuch wrote separate concurrences, all suggesting that the Lemon Test should no longer apply in any context.9 Justice Kagan concurred in part but argued that the Lemon Test’s focus on purposes and effects had continuing value.10 Justice Ginsberg dissented, joined by Justice Sotomayor,11 without specific consideration of Lemon, although the discussion might be read to embrace the primary effect and entanglement prongs of the Lemon Test.

ENDNOTES:

403 U.S. 602 (1971) Lemon v. Kurtzman, 403 U.S. at 612. 3 Id. at 612-613. 4 Id. 5 Id. at 613-614. 6 139 S. Ct. 2067 (2019) 7 Am. Humanist Ass’n v Md. Nat’l Capital Park & Planning Comm’n, 874 F.3d 195, 200 (4th Cir. 2017). 8 Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. at 2090. 9 Id. at 2092, 2095. 2101. 10 Id. at 2094. 11 Id. at 2103. 1 2

In July of this year, the Supreme Court granted certiorari in Carson v. Makin, involving challenges to a Maine program providing payment of school tuition, in districts where no public school has been established, at the parents’ choice of out-of-district public schools or “approved” private schools.12 To be approved, a private school must be deemed “nonsectarian … in accordance with the First Amendment of the Constitution.”13 The challenge has been brought by parents who wish to use the programs to send the their children to religious schools that have not been approved under this requirement. They contend that two recent Supreme Court decisions, Trinity Lutheran Church of Columbia v. Corner14 and Espinoza v. Montana Dept. of Revenue,15 have so radically changed the landscape of First Amendment jurisprudence in religionrelated cases that the Court must reverse the lower courts’ judgements that the “non-sectarian” requirement is permissible. Lemon has not yet been overruled. No test has been articulated by the Court to take its place. (There have been suggestions that Establishment Clause doctrine should be recrafted in the context of the Free Exercise Clause, tethering the two together,16 or that the Court should replace the Lemon Test with analysis based on the Founders’ understanding of the elements of an “establishment of religion.”17) However Lemon faces a very uncertain future, especially in view of the recent developments. Linda Greenhouse (the keynote speaker for the 2021 Dayton Bench and Bar Conference in November) has noted that the Supreme Court’s 2020-2021 decisions evidence a new majority that has been ever more deferential to religion.18 The University of Dayton’s Lemon at 50 Education Law Symposium will address the past, present, and future of Lemon in Establishment Clause jurisprudence, including Lemon’s international

legacy. The online format has provided opportunities for participation by an exceptional array of scholars and practitioners, including keynote speaker Professor Amanda Harmon Cooley (South Texas College of Law), Professor Paul Bable (Research Unit for the Study of Society, Ethics and Law, University of Adelaide), Professor Carlos Bernal (University of Dayton School of Law and past justice of the Constitutional Court of Colombia), and Edwin Darden (Bill and Melinda Gates Foundation). View more details at https://udayton.edu/law/ events/index.php

ENDNOTES:

979 F.3d 21 (2020). Id. at 25. 14 137 S. Ct. 2012 (2017) 15 140 S. Ct. 2246 (2020) 16 See Leading Cases: American Legion v. American Humanist Ass;n, 133 Harv. L.R. 262 (2019). 17 See Michael McConnell, Cleaning Up the Lemon Mess, The Volokh Conspiracy (Feb. 28, 2019), https://reason.com/volokh/2019/02/28. 18 https://www.nytimes.com/2021/07/01/opinion/supreme-court-religion.html 12 13

SEPTEMBER 2021 |

DAYTON Bar Briefs

DBA Membership

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From Our President

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~Merle Wilberding

Coolidge Wall, Co. L.P.A. 2021-2022 DBA President

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DBA Continuing Legal Education

Upcoming DBA CLE Visit daybar.org/events to view our full calendar, event details, and to register!

All CLEs will be held virtually unless stated otherwise below. All in-person programs will also be accessible virtually. E9ac C BeDBAaffS Tea5 with questions: dba@ dba@daybar.org daybar.org DATE

TIME

TITLE

Sept 1

4pm-5pm 1.0 Gen Hr (pending)

Estate Planning Trust & Probate Section presents...

Sept 16

Noon-1pm 1.0 Gen Hr (pending)

Workers' Comp & Social Security presents...

Sept 23

11am-1pm 2.0 Prof Conduct Hrs (pending)

Habits for Healthy Lawyers: Practical Ways to Take Care of Your Mental and Physical Health

Sept 28

8:45am-4:30pm 6.0 Gen Hrs (pending)

Oct 14

11:30am-1pm 1.5 Gen Hrs (pending)

A View from the Bench: U.S. District Court, Southern District of Ohio Judicial Panel

Oct 15

9am-12:15pm 3.0 Gen Hrs (pending)

Appellate Apointed Counsel Seminar

Oct 19

Noon-1pm 1.0 Gen Hr (pending)

Pro Bono Service Amid the Pandemic

Oct 20

11:30am-1pm 1.5 Prof Conduct Hrs

Technology in the Courtroom Today @ Judge Mary Wiseman's Court Room #8

Oct 22

8:30am-11:30am 2.75 Gen Hrs

DR Seminar: Compassion Fatigue for Lawyers and a Domestic Relations Court Update @ Sinclair Community College

Oct 28

9am-10:30am 1.5 Gen Hrs

Lincoln and the Law @ Sinclair Community College

Nov 5

8:30am-4:30pm Hrs TBA

29th Annual Bench Bar Conference @ Sinclair Community College

Third Party Special Needs Pooled Trusts

Simplicity for Mental Wellbeing

Elder Law Institute @ Sinclair Community College

Access the new On-Demand DBA CLE library, available online 24-7, 365! daybar.org/seminarweb 14

In-Person Events are designated below in pink.

DAYTON Bar Briefs |

SEPTEMBER 2021

On-Demand DBA CLE

DBA Continuing Legal Education

Technology in the Courtroom Today Wed. October 20 | 11:30am-1pm | 1.5 PC Hrs Live Seminar @ Montgomery Cty Common Pleas Ct Room 8 Speaker: Hon. Mary Wiseman, Judge, Montgomery Cty Common Pleas Ct

Live Webinar DBA CLE

Technology is ever evolving, and if leveraged by lawyers can enhance their abilities to practice law. This seminar will explore technology available in the courtroom to help lawyers make their case effective. Hon. Mary Wiseman will provide an interactive overview of technology available in the courtroom for lawyers and discuss new technological opportunities in remote proceedings. Hon. Mary Wiseman will provide helpful insight from a judge’s perspective on how technology can help lawyers advocate for their clients in the courtroom.

DR Seminar: Compassion Fatigue for Lawyers and a Domestic Relations Court Update Fri. October 22 | 8:30am-11:30am | 2.75 CLE Hours Live Seminar @ Sinclair Community College Speakers: Hon. Mary Kate Huffman, Judge, Montgomery Cty Common Pleas Ct; Susan Wawrose, Adjunct Prof of Law, University of Dayton School of Law; Hon. Timothy Wood, Judge, Montgomery Cty Domestic Relations Ct.

Live Webinar DBA CLE

8:30am-10:00am Session 1:

10:15am-11:30am Session 2:

Mitigating Compassion Fatigue Among Legal Professionals

Domestic Relations Court Update

Judge Mary Kate Huffman and Professor Susan Wawrose will discuss how lawyers and judges are not always effective in managing their own reaction to the secondary trauma they suffer as a result of the clients’ trauma. In this session we will explore the phenomenon of compassion fatigue experienced by lawyers and judges and discuss effective strategies to avoid or mitigate the impact of compassion fatigue.

Judge Timothy Wood will share information and updates regarding the Montgomery County Domestic Relations Court and how they are currently handling proceedings with the latest COVID-19 guidelines.

SEPTEMBER 2021 |

DAYTON Bar Briefs

DBA Continuing Legal Education

Lincoln and the Law

Thurs. October 28 | 9am-10:30am | 1.5 Gen Hrs Live Seminar @ Sinclair Community College Speaker: Hon. Dennis Langer (Ret.) In this 90-minute lecture, Retired Judge Dennis Langer will explore Abraham Lincoln’s 23 years practice as a trial lawyer, focusing on three important cases. Also, Judge Langer will discuss several constitutional issues with which Lincoln dealt as president.

Save the Date! Detailed Agenda Coming Soon

29th Annual

DBA Bench Bar Conference Fri. November 5 | 8:30am-4pm | Total CLE Hrs TBA Live Seminar @ Sinclair Community College Plenary Session "Justice on the Brink" Keynote Speaker: Linda Greenhouse, Author, Clinical Lecturer in Law and Senior Research Scholar in Law at Yale Law School

About the Keynote: LINDA GREENHOUSE is a Senior Research Scholar at Yale Law School, where she has taught since 2009, following a 40-year career at the New York Times. For 30 years, she was the newspaper’s Supreme Court correspondent, winning a Pulitzer Prize and numerous other major journalism awards. She currently writes a bi-weekly op-ed column on the Court for the Times as a contributing opinion writer. In her extracurricular life, she is president of the American Philosophical Society, the country’s oldest learned society, and serves on several nonprofit boards. She is a graduate of Radcliffe College, Harvard, and earned a Master of Studies in Law degree from Yale Law School. Her latest book, published by Random House in November 2021, is a chronicle of the Supreme Court’s 2020 Term, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months that Transformed the Supreme Court. Other books include a journalistic memoir, Just a Journalist, published by Harvard University Press in 2017; The Burger Court and the Rise of the Judicial Right (with Michael J. Graetz), The U.S. Supreme Court: A Very Short Introduction (now in a second edition); a biography of Justice Harry A. Blackmun, Becoming Justice Blackmun; and Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (with Reva B. Siegel).

DAYTON Bar Briefs |

SEPTEMBER 2021

DBA On-Demand CLE and Unlimited

On-Demand DBA CLE

NEW! On-Demand DBA CLE Now Available You can now access on-demand, self-study CLE on the DBA website! Get CLE credit at your own pace by purchasing and streaming our pre-recorded programs. If you’re an Unlimited CLE Member, you can access all our on-demand content for FREE!

daybar.org/seminarweb

New this year in CLE!

$34 ly! 9 An all-inclusive, convenient, and affordable way to experience DBA CLE!

UNLIMITED CLE MEMBERSHIP (formerly known as DBA CLE Passport) Start saving today on UNLIMITED Live and Self-Study CLE! Contact Kay Lowe to purchase: klowe@daybar.org

SEPTEMBER 2021 |

DAYTON Bar Briefs

DBA Sections

The DBA is Recruiting New Members to Sit on the Bar Exam Committee! The Admissions Committee was created pursuant to Rule I, Section 11 of the Supreme Court Rules for the Government of the Bar of Ohio to investigate the character, fitness and moral qualifications of applicants for admission to the practice of law in the State of Ohio. Interview teams consider the applicant's character, fitness and moral qualifications. Occasionally, a full committee will meet and vote on whether to approve the applicant and reports its decision to the Supreme Court of Ohio.

Qualifications to Sit on the DBA Bar Exam Committee: • Must be a lawyer in good standing with the Supreme Court • Must be a current member of the Dayton Bar Association • Currently admitted to practice law in Ohio

If you would like to be a part of the Character & Fitness Interview Team, contact Lori Luebben at 937-222-7902 or lluebben@daybar.org

Are you a great writer?

Join the DBA Editorial Board! Write for Dayton Bar Briefs Grow your personal brand Share your knowledge and expertise

Engage by interviewing fellow members of the legal community Contact Shayla M. Eggleton, DBA Communications for details seggleton@daybar.org | (937) 222-7902

DAYTON Bar Briefs |

SEPTEMBER 2021

DBA Sections

Join a DBA Section Today! Being a part of a DBA Section doesn’t mean you have to practice in that respective area of law. Joining a Section is about utilizing your DBA Membership to its fullest extent. It’s about being apprised of the happenings in the courts, being connected to other areas of practice, and having the opportunity to socialize with colleagues. DBA Section Meetings are currently being held via Zoom unless stated otherwise.

SEPTEMBER DBA SECTION MEETINGS daybar.org to register 1

YLD @ Noon

Eikenbary Trust Guest Speaker Estate Planning, Trust & Probate Law @ 4pm

3rd Party Special Needs Trust CLE

8 Appellate Court Practice @ Noon

What Did You Do Last Summer?

Juvenile Law @ Noon

Families First Prevention Services Act Presentation

20 Federal Practice @ Noon

Civil Trial & ADR @ 5pm Dayton Beer Co.

Workers' Comp @ Noon

Networking & Plans for the Year

21 Diversity Issues @ 5:30pm Dayton Metro Library

Simplicity for Mental Well-Being CLE

22 Criminal Law @ Noon

Corporate Counsel @ 5pm

Redlining Exhibit Tour

Ohio Public Defender Guest Speaker

Mandating Vaccines in the Workplace CLE

Paralegal @ Noon

SEPTEMBER 2021 |

DAYTON Bar Briefs

BKK4R" Is there a good habit you want to build, or a bad habit you need to break?

Check out Atomic Habits by James Clear

o some extent, habits drive our daily lives. We probably do not realize just how many habits we have. Turn off your phone alarm in the morning and then check the news? Habit. Grab a cup of coffee before walking out the door? Habit. Drive the same route to work everyday? Habit. The list goes on. However, building new habits or breaking bad ones can be difficult. James Clear offers a relatively straightforward template for both in his book “Atomic Habits.” He suggests that small habits, tiny changes, can result in large overall improvement. Hence the name “Atomic Habits”—“a regular practice or routine that is not only small and easy to do, but also the source of incredible power; a component of the system of compound growth.” Mr. Clear divides the steps of creating a good habit and breaking a bad habit into four “laws.” To create a good habit: (1) make it obvious, (2) make it attractive, (3) make it easy, and (4) make it satisfying. To break a bad habit: (1) make it invisible, (2) make it unattractive, (3) make it difficult, and (4) make it unsatisfying. To “make [a new good habit] obvious” Mr. Clear suggests several ideas. First, he suggests creating an intention “I will do fifty push-ups every morning after I wake up.” He also suggests “habit stacking”, i.e., stack a new habit on top of an old one. If you already wake up and go running, do fifty push-ups as soon as you complete your run. Finally, he suggests designing your environment to make the new habit visible (i.e. set your workout clothes out the night before). To make a bad habit invisible, Mr. Clear recommends reducing exposure or removing the cures of the bad habit from your environment. For example, if your bad habit is watching too much television before bed, remove the television from the bedroom. To “make [a new good habit] attractive” Mr. Clear suggests pairing an action you want to do with an action you need to do or doing some20

DAYTON Bar Briefs |

SEPTEMBER 2021

thing you enjoy immediately before a difficult habit. For example, if you want to check social media but need to make sales calls, first make three sales calls and then check social media. To “make [a bad habit] unattractive” highlight the benefit of avoiding the habit. Thus, if you

go to S tar buc ks dail y, c alculate the amount of money you would save per year if you did not go to Starbucks. To “make [a new good habit] easy” Mr. Clear advises that you reduce the number of steps between you and the good habit. For example, if you want to eat healthy lunches, chop up vegetables over the weekend and pack them in easy to grab containers so you can easily take a container on your way out the door. According to Mr. Clear, the key to forming a new habit is repetition, not time. The more you repeat the new habit, the more habitual it becomes. The inverse of this rule is to make the habit you want to eliminate more difficult. For this, Mr. Clear suggests a “commitment

device,” which is a way to restrict yourself from your bad habit. For example, if you want to reduce overeating and engage in portion control, buy individually packaged snacks. The last step is to “make [a new good habit] satisfying.” If you want to eat out less, each time you refrain from eating out, transfer the money you would have spent to a savings account set up for a special purchase (the author’s example was a trip to Europe fund). Mr. Clear also suggests using a habit tracker, some sort of visual tracker of your efforts. Smart watches have one of these built in. If I want to see my exercise streak, my watch will show me in vivid color the number of days over the last month I have met my exercise goal. The inverse of his law, making a bad habit unsatisfying, can be accomplished by obtaining an accountability partner or add a cost to the action you are trying to eliminate. For example, if you are trying to quit smoking, each time you buy a new back of cigarettes, you have to report that to your accountability partner. James Clear offers easy to perform steps to achieve a goal whether it be forming a new habit or breaking a bad one. His book provides solid examples of each step. Although I did not find that the book provided a lot of new information, I thought it put existing information into a digestible, easy to follow format. If you are looking for a little push in forming a new habit or breaking a bad one, give this book a try.

By Elizabeth Wilfong Esq. Bieser, Greer & Landis, LLP EDW@biesergreer.com

daybar.org daybar .org

Reserve your spot today! mark your calendar Chancery Club Luncheon September 17 Noon-1:00pm

@ TBA

Habits for Healthy Lawyers September 23 11:00am-1:00pm via Zoom

join us!

Elder Law Institute September 28 8:45am-4:30pm

@ Sinclair Community College

First Monday in October Celebration October 4

Time TBA

@ University of Dayton School of Law

Appellate Court Appointed Counsel October 15

9:00am-12:15pm @ DBA Offices

Technology in the Courtroom Today October 20

11:30am-1:00pm

@ Judge Wiseman’s Courtroom #8

DBA Book Club | Team of Rivals: The Political Genius of Abraham Lincoln by Doris Kearns Goodwin" October 20

4:00pm-5:00pm

@ DBA Offices

Breakfast with the Bench October 21

7:00am-9:00am

@ Sinclair Community College

DR Seminar: Compassion Fatigue for Lawyers and Domestic Relations Court Update October 22

8:30am-11:30am

@ Sinclair Community College

Lincoln and the Law October 28

9:00am-10:30am @ Sinclair Community College

29th Annual Bench Bar Conference November 5

8:30am-4:30pm

upcoming dba events

@ Sinclair Community College SEPTEMBER 2021 |

DAYTON Bar Briefs

Column

From the Judges Desk

Who Can Be a Victim?

By The Honorable Timothy N. O'Connell Montgomery Cty Common Pleas Court Timothy.Oconnell@montcourt.oh.gov

rom time to time in criminal cases a question arises as to whether the defendant can be required to pay restitution to a law enforcement agency involved in the case for the cost of related activities. Traditionally, the court has not ordered a defendant to pay restitution to the law enforcement agency. In 2017, Marsy’s Law was adopted by the citizens of Ohio. The law amended Article I of Ohio’s Constitution which is commonly known as Ohio’s Bill of Rights. This writer is of the view that the bench and bar are not fully aware of the rules regarding restitution to government agencies in criminal investigations and prosecutions. I was certainly not fully aware of the rules on this subject. I undertook some investigation and discovered that, lo and behold, the Ohio Supreme Court has, recently, authored an opinion on the subject from a case arising in Montgomery County, Ohio, City of Centerville v. Knab.1 In November of 2020, in a case I think, frankly, was under the radar, the Ohio Supreme Court pronounced its holding on the availability of restitution to a municipality under Marsy’s Law. The Ohio Supreme Court held that a municipality is not a victim under Marsy’s Law, thus, the City of Centerville was unable to obtain an award of restitution in a misdemeanor case that involved a 911 call.2 The rule of thumb would be that a municipality is not a victim under Marsy’s Law, and therefore is not entitled to restitution. Several exceptions are when public funds have been embezzled from an agency, or government property has been vandalized or destroyed. The general rule in Ohio remains that government agencies are not victims of crimes to which they respond in their official capacities.3

DAYTON Bar Briefs |

SEPTEMBER 2021

Marsy’s Law defines a victim as “a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act.”4 With that definition, the inquiry becomes: Who is a “person?” Before examining the meaning of “person” in this context, the Ohio Supreme Court reviewed the case law history from Ohio Courts of Appeals. The case law revealed that agencies such as a sheriff ’s office, the bureau of criminal investigation, a fire department, and a police department were not victims, as defined in R.C. 2929.28(A)(1) or R.C. 2929.18(A)(1). These cases involved law enforcement agencies expending money for drug buys, extraditions, or fighting a fire. For example, the Second District Court of Appeals held that a defendant could not be ordered to pay restitution to a sheriff ’s department for its costs from responding to a false alarm, because the statutory framework, particularly the term “victim”, does not express a legislative intent “to make law enforcement or other governmental agencies, whose only involvement in the reported crime is their response to it in their official capacities, eligible for restitution.”5

SUPREME COURT ANALYSIS

The Supreme Court majority went through a few steps to arrive at its conclusion. First, the court looked at how the language would be understood by the voters. In construing constitutional text that was ratified by direct vote, the court considers how the language would have been understood by the voters who adopted the amendment. The court begins with the plain language of the text and considers how the words and phrases would be understood by voters in their normal and ordinary usage. The court further said that in ascertaining the intent of the voters who approved the amendment its’ inquiry must also include more than a mere analysis of the words found in the amendment. The court examines the purpose, history, goal and circumstances surrounding the adoption. Using that framework, the court considered whether the language of Marsy’s Law evinced an intent to include a municipal corporation in the definition of “victim.” The court concluded the language did not include corporate entities or governmental bodies in its’ definition of “victim” and does not define the term “person.” Second, the court looked at dictionary definitions of the undefined word “person.” Upon this review, the court noted that corporations are sometimes included within the definition of person. Justice French noted a distinction between private and public corporations. She indicated, in its narrowest form, the term “person” encompasses only natural persons. But when the understanding of the term is expanded to include

corporations it contemplates private corporations, not public corporations. Third, the Supreme Court concluded that the text of Marsy’s Law did not suggest the voters intended that a municipal corporation could qualify as a victim under the provision. The court felt Marsy’s Law focuses on private rights and the enumerated rights are incongruent with an understanding of “victim” that includes a public corporation. Finally, the court looked to Ohio statutory law to find definitions of “person.” A number of statutes indicate that a corporation can be included in the definition of “person.” But, generally, a political subdivision is not considered a person unless expressly and specifically included in the definition of “person.” The United States Supreme Court has explained that whether the word “person” includes a governmental entity “depends on the connection in which the word is found.”6 In the instant case, the word comes in the context of an amendment to the Ohio Constitution. A constitution serves, in part, as a guarantor of private rights, and Marsy’s Law ingrains into our Constitution protections for victims of crime. The court indicated it seems incongruent in this context to interpret the word “person” in the amendment such that it would give the government rights enforceable against its own citizens. Rather, the court concluded based on the common and ordinary usage of the word “person” and the context within which that term is used in Marsy’s Law, that the voters did not intend for a municipal corporation to qualify as a victim under that section. The purpose of Marsy’s Law is to be considered in determining whether a municipal corporation or political subdivision is a victim under the law. Marsy’s Law was proposed as a part of a national victim’s-rights movement. The movement seeks to correct a perceived disparity between victims and those accused of crimes. Ohio voters were told that Marsy’s Law would ensure that victims and their families receive due process, respect, fairness, and justice. The ballot language for Marsy’s Law includes a list of rights that are primarily private and individual in nature. There is nothing surrounding the national Marsy’s Law movement or the Ohio Marsy’s Law initiative that suggests that voters understood and intended that a public corporation would be considered a victim. The Supreme Court majority determined, based on both the text and context, the voters who approved the constitutional amendment did not intend that a municipal corporation – a governmental entity – would qualify as a victim under the amendment. It should be noted the court did not foreclose the possibility that a municipality may receive restitution under other provisions of Ohio Law.

CONCLUSION

At the time this article was written, “victim” does not include a municipal corporation acting in their official capacity. However, another victim’s rights bill was introduced this year, HB 343. The press release and the sponsor’s website do not indicate whether this bill defines victim to include municipal corporations or political subdivisions. That possibility cannot be foreclosed. The existence of that legislation and the language of the Knab decision would seem to indicate this rule of law is not stable. The Knab decision and the prior cases would seem to indicate the bench and bar have a stable rule they can rely on. I do not think that’s the case. The bench and bar will have to remain attentive for possible changes in this area.

ENDNOTES: City of Centerville v. Knab, 162 Ohio St.3d 623; 2020-Ohio-5219; 166 N.E.3d 1167. 2 Id. 3 See State v. Turner, 2nd Dist. Champaign No. 2017-CA-15, 2018-Ohio-2860, ¶ 14 and 15. 4 Article I, Section 10a(D). 5 State v. Christian, 2nd Dist. Montgomery No. 25256, 2014-Ohio-2672. 6 Ohio v. Helvering, 292 U.S. 360, 370 (1934).

SEPTEMBER 2021 |

DAYTON Bar Briefs

Feature

The Veterans Service Commission By Steve Strain Esq., Co-Chair, YLD | Montgomery Cty Veterans Service Commission | StrainS@mcohio.org

nyone who has spent time around the Dayton area has probably met a veteran. In all likelihood, they have probably met several veterans without even knowing it. The U.S. Census Bureau estimates that of the roughly 500,000 residents of Montgomery County, 40,000 of them are veterans.1 That’s about 8% of the population, or, to put it another way, 1 out of every 13 residents. As of 2016, Ohio was ranked 6th for total population of veterans.2 With so many former service-members amongst its population, it’s no surprise that Ohio has established a Veterans Service Commission office in all 88 counties, specifically to assist veterans with the benefits they have earned. If this sounds like a brand new program, brought about after the last 20 years of conflict, it may surprise you to learn that it was codified into law in May of 18863 and has existed uninterrupted ever since. (It is currently Rev. Code §5901 et seq. for the curious)4. So, what exactly is the Veteran Service Commission? Let’s start with what it is not. The County Veterans Service Commissions in Ohio are not the Department of Veterans Affairs. (VA). In fact, to put it in terms more familiar to our profession, the County Veterans Service Commissions are oftentimes adversarial to the VA (it is worth noting that the VA has adopted a “non-adversarial” approach to veterans claims in recent years). Each commission employs Veterans who are extensively trained and certified as Veterans Service Officers (VSO). These public servants are charged with assisting veterans as they attempt to navigate the various VA programs, entitlements, and services that are available. There are, beyond those programs available through the VA, several financial assistance programs operated by each county Veterans Service Commission. Veterans experiencing the need for assistance with housing, utility payments, emergency food, and unforeseen repair bills or even transportation to medical appointments can reach out to their county Veterans Service Commission to apply for assistance. While these programs do not offer permanent relief, they can make the difference for veterans who have a temporary need; helping them get back on their feet. 24

DAYTON Bar Briefs |

SEPTEMBER 2021

As one can imagine, the COVID pandemic has stretched these offices to the limit; with veterans requesting all manner of assistance, oftentimes outside the scope of what the Service Commissions have historically provided. One type of request that became prevalent during the pandemic was the need for legal assistance and representation. Historically, the Montgomery County Veterans Service Commission has referred those veterans to a variety of legal aid assistance programs. During the pandemic however, they found that many of these resources in the community were overwhelmed. After realizing an unmet need for veterans, it became the mission and vision of the Montgomery County Veterans Service Commission Executive Director to expand services and establish a legal counsel position to address those veterans’ needs. When this new initiative was presented to the Veterans Service Commissioners, the vote was an overwhelming “YES”. As it turns out, they were the first Service Commission in Ohio to successfully expand services into the legal field. And that brings us to March of 2021, when I began working as the new Veterans Legal Counsel at the Montgomery County Veterans Service Commission. Believe it or not, long before graduating from law school, I was graduating from Boot Camp (I am still not sure which was more grueling). Since becoming an attorney, I have had no shortage of clients who themselves are veterans and trying to navigate the legal system, so it is with no small amount of satisfaction that I now come to work every day in an office dedicated explicitly to helping those same individuals. As of this writing, I have met with over 150 veterans to provide no-cost legal assistance for housing defense, basic estate planning and a host of issues in-between. There is no financial qualifier or restriction on veterans seeking legal counsel; they only need to show that they otherwise qualify for services at the Veterans Service Commission pursuant to Rev. Code 5901. As the position does not exist in our surrounding counties, veterans across southwest Ohio have been able to receive services and counsel through the Montgomery County office for issues that would have otherwise gone unaddressed.

The next time you meet a veteran, I hope you will take the time to refer them to the County Veteran Service Commission. Our office can be reached at 937-225-4801, Monday through Friday from 8:30-4:30pm. ENDNOTES: 1 https://www.census.gov/quickfacts/fact/table/montg omerycountyohio,daytoncityohio/PST045219 2 https://www.census.gov/quickfacts/fact/table/montg omerycountyohio,daytoncityohio/PST045219 3 https://dvs.ohio.gov/wps/portal/gov/dvs/veteranshomes/dvs-resources/ovh-history 4 https://codes.ohio.gov/ohio-revised-code/chapter5901#:~:text=(A)%20No%20person%20 who%20is,is%20a%20veteran%2C%20an%20 active%2D

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

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LAWYER WELLNESS: OLAP

The power of asking “Are you ok?”

recently watched a video that the Texas and Pennsylvania Lawyers Assistance Programs created, which shows how lawyers and others have been affected by suicide. Some of the speakers in the video have attempted suicide; some have family members who have taken their own lives; and some know lawyers who have died from suicide. The video shows the aftermath of suicide and how it affects family members, friends and other survivors. But, to me, the most powerful point the video makes is how important it is just to ask someone if they are ok. In the video, a lawyer speaks about a friend who attempted suicide by jumping off the Golden Gate Bridge when he was 17, but he survived, and

Stopmindingyour ownbusiness

Why was it that not one person asked this young man if he was ok? I believe there are several reasons why we do not stop and ask. We were taught to mind our own business. We do not want to get involved. We are too busy. We are afraid of legal implications. We do not know how to help or what to say. It is imperative that we all learn how to ask this question and let others know there is help available and point them in the right direction. Asking a person “Are you ok?” shows the person that you cared enough to ask. Most people do not want to die; they just want their pain to end, but they do not know how to get help or are afraid to ask for help. By asking this simple question, you could save a life. If a person opens up to you and tells you what is wrong, just listen. Do not try to fix their problems. Sometimes a stressed/depressed/anxious person just needs to let it out. Listen and ask how you can help. It’s ok to ask the person if they are having suicidal thoughts. Some people believe that if they ask that question, that they are putting the idea of suicide in the other person’s mind, but that is not true. It makes the person pause for a moment to think about the severity of their state of mind. “If someone asks me if I’m ok, then I must not be doing ok because they noticed that I’m not being myself.” Even if a person says they have thought about it, but would never go through with it, share resources with them. Let them know of the aftermath of suicide and how many people’s lives would be affected by their death. Tell them about the National Suicide Prevention Lifeline, which is available 24 hours: 800-273-8255. Have them call the Ohio Lawyers Assistance Program, which helps legal professionals in a confidential manner.

By Scott Mote Esq. OLAP Executive Director SMote@olap.org he lived to tell his story. The day he decided to die, he was sobbing. He saw his father, while crying, and he hugged his father for the last time, or so he thought. He got on a bus—still crying—and nobody asked him if he was ok. He got to the bridge, still sobbing, and instead of asking him if he was ok, a woman asked him to take her picture. He took her picture, and then he jumped. He said that if one person would have asked him if he was ok, he would not have jumped. The second he jumped, he regretted it. He said that the saddest thing in the four seconds it took him to hit the water was that he was going to die and his family did not know that he wanted to live.

Warningsigns

Be aware of these signs of suicide. If you see a person exhibiting any of these behaviors, it is time to ask if they are ok. • Increasing the use of alcohol or drugs • Acting anxious or agitated; behaving recklessly • Sleeping too little or too much • Withdrawing or isolating themselves • Showing rage or talking about seeking revenge • Extreme mood swings Examples of what legal professionals might say if they are contemplating suicide: • “I hate being a lawyer. Sometimes I just want to jump off a building.” • “Nothing will ever change for me. I will always be a failure.” • “My family/law practice will be much better off without me. I’m such a burden.” • “I have no reason to live.” • “I don’t like being a lawyer, but I’m trapped and I cannot change it.”

Thestigma

Unfortunately, there is still a stigma that comes along with people who have mental health issues, which leads to many negative effects for a person who is contemplating suicide. Mental health stigma occurs when someone views you in a negative way because you have an illness that is thought to be a disadvantage. Stigma can lead to discrimination. Harmful effects of stigma can lead to: • A person refusing to seek help or treatment • Family, friends, co-workers or others who don’t understand • And the belief that you'll never succeed at certain challenges or that you can't improve your situation Fortunately, people are going public with their stories so that others can learn that you can recover from mental health challenges, even suicidal thoughts. Hopefully this helps break the stigma of mental health disorders. As judges and lawyers, our job is to help people. The next time you see a co-worker, friend, family member or stranger in distress, I encourage you to ask if they are ok. Your question might lead them to seek help so they can live to tell their stories, which, in turn, will help others know that they will survive.

Resources: Suicide crisis line "The Lifeline" 800-273-TALK Provides 24/7, free and confidential support

Ohio Lawyers Assistance Program www.ohiolap.org | 800-348-4343 Confidentially helping lawyers, judges & law students cope with the stresses of the legal profession.

Just Ask: How We Must Stop Minding Our Own Business in the Legal World https://tinyurl.com/yza234w3 A collaborative project between Texas and Pennsylvania LAP Directors, Chris Ritter and Laurie Besden, the film was created to help provide the legal world with essential information about how to get help for oneself or colleagues.

SEPTEMBER 2021 |

DAYTON Bar Briefs

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Dayton Bar Foundation

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Our Foundation.

he Dayton Bar Foundation (DBF) is the charitable 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: - 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

DONATE online: daybar.org/foundation 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. For more information about the Dayton Foundation:

Jennifer Otchy, DBF & DBA CEO jotchy@daybar.org | 937-222-7902

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DAYTON Bar Briefs |

SEPTEMBER 2021

Law Related Organizations

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Diversity, Equity & Inclusion Legal Roundtable The Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable strives to strengthen Dayton’s legal community by promoting efforts to enhance diversity, equity and inclusion. Below are some of the recent and upcoming initiatives that we are excited to share with the readers of the DBA’s Bar Briefs. End-of-Summer Reception for Law Student Clerks On Saturday, July 31, the Federal Bar Association in partnership with the Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable hosted an end-of-summer reception for area summer associates/law clerks at the Levitt Pavilion. Area law firms and judges were encouraged to invite their law student clerks for an evening of good conversation, refreshments, and a musical concert. 2021 Summer Diversity Clerkship Program The 2021 Summer Diversity Clerkship Program was a great success. We had a record number of applicants and a group of stellar employers. We would like to send a special thanks to all of the employers that agreed to participate in this year’s program: Federal District Court for the Southern District of Ohio, Dayton Municipal Court, Office of the Montgomery County Public Defender, Thompson Hine LLP, Wright & Schulte LLC, Faruki+, and Legal Aid of Western of Ohio, Inc. (Dayton). Mark Your Calendars: Justice on Tap! Wednesday, October 6th – Dublin Pub: 5:00-9:00 p.m. The Legal Roundtable supports Justice on Tap!, an event with an important cause that the legal community can get behind! Let’s get together and enjoy favorite beverages and appetizers while supporting a cause greater than ourselves. This event benefits the nonprofit law firms of Advocates for Basic Legal Equality, Inc. (ABLE) and Legal Aid of Western Ohio (LAWO) and their partner Greater Dayton Volunteer Lawyers project (GDVLP). These organizations assist low income and disadvantaged area residents who otherwise would go without legal representation in civil, non-criminal cases. Hope to see our legal community, including members of the Legal Roundtable, at the Dublin Pub on October 6th. For more information, Karla Garret Harshaw at kgarrettharshaw@ ablelaw.org or to registervisit http://weblink.donorperfect.com/JTAP_2021. Membership Meetings Meetings of the Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable are open to all legal professionals and law students. We plan to have an in-person meeting in early fall. All those on the Legal Roundtable mailing list will receive a notice regarding the meeting. For more information or to be added to the Roundtable mailing list, please contact: Ellen.Geron@ ThompsonHine.com.

SEPTEMBER 2021 |

DAYTON Bar Briefs

Law Related Organizations

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In-person Events Return for ABLE, LAWO and the GDVLP

his year, Justice on Tap! and the Access to Justice Awards Celebration! are being planned as in-person events after they were virtual last year due to coronavirus health precautions. Justice on Tap!, a fun-filled casual event, will be held October 6, from 5pm-9pm, at the Dublin Pub, 300 Wayne Ave. The Access to Justice Awards Celebration! that honors individuals and organizations who have provided exceptional service to lowincome people, is scheduled at Sinclair Community College, on November 4, from 5pm - 7:30pm. “The return to a 'live' Justice on Tap! is exciting!, says Lindsey Posey of the Social Security Administration, Office of Hearing Operations. She is the event co-chair along with Steve Strain of the Montgomery County Veterans Service Commission and Chandler Watson of Premier Health Partners, who are co-chairs of the DBA Young Lawyers Division, as well. “This one-of-a-kind event provides a fun opportunity to see our colleagues while supporting the Access to Justice Posey campaign.” Shannon Bockelman of Freund, Freeze & Arnold, and Christopher Hollon of Faruki PLL are coordinating the inspirational Access to Justice Awards Celebration! to make it an evening to enjoy. Funds raised through event sponsorships and admission fees contribute to the 2021 Campaign for Equal Justice. The campaign’s goal is $200,000, after raising more than $180,000 – the Strain most ever - in 2020, a year when the COVID-19 pandemic was expected to hamper giving. The Campaign for Equal Justice benefits Legal Aid of Western Ohio, Inc. (LAWO), Advocates for Basic Legal Equality, Inc., (ABLE) and the Greater Dayton Volunteer Lawyers Project (GDVLP). Campaign Ambassador Firms that promote giving in their organizations will be credited for sponsorship benefits based on the amount raised through firm gifts, colleagues’ donations, and Watson individual tickets purchased for the events. The deadline to be considered for benefits is October 22. The 2021 Campaign for Equal Justice is under way now. Funds raised will be used to address crucial legal needs of disadvantaged people who otherwise could not afford to hire an attorney to help stabilize their lives and provide them access to opportunities. ABLE, LAWO and the GDVLP assist when individuals and families are facing domestic violence, elder abuse, tenant/landlord, Bockelman eviction and foreclosure issues, disability, health care, veterans’ benefits, and immigration and migrant worker concerns. “We are so excited to be back this year and in person for the Campaign events,” says Mary Lentz of Foos & Lentz, LLP, who is campaign co-chair along with Glen McMurry of Taft Stettinius & Hollister LLP. “The legal community stepped up tremendously last year to support these organizations and we were able to surpass Hollon our goal despite the pandemic. We want to build on that momentum this year and are looking forward to the campaign ahead.”

DAYTON Bar Briefs |

SEPTEMBER 2021

Donate now!

• Make a credit card donation at campaign4equaljustice.org.

Increase last year’s donation or give the equivalent amount of one billable hour.

• Donate using your cellphone

Text 1-855-953-3677, enter the word EQUAL, and follow the prompts. • Mail your donation to Campaign for Equal Justice, C/O ABLE and LAWO, 130 W. 2nd St., Ste. 700, Dayton, OH 45402 • Become a Sustaining Donor by designating an automatic monthly, quarterly, or custom credit card payment that continues until you say otherwise. Call 1-866-837-8832.

Make Reservations • Justice on Tap!

weblink.donorperfect.com/JTAP_2021

Tickets are $55. Admission of $25 for attorneys with two years or less experience, students and ABLE, LAWO and GDVLP staff. Guests will receive appetizers and two beverage tickets. Sponsorships from community businesses and organizations are available.

• Access to Justice Awards Celebration! weblink.donorperfect.com/A2JDAY_2021

Campaign Ambassador Firms will receive sponsorship benefits for their collective donations. Sponsorships from community businesses and organizations are available. General admission is $100 patron, $150 grand patron, and $25 for LAWO, GDVLP and ABLE staff. Heavy hors d’oeuvres and entertainment will be provided. Cash Bar. Business attire.

Law Related Organizations

Greater Grea ter Dayton Volunteer Lawyers Project

Profiles of Pro Bono

R. Anne Shale

ecently I was asked by Kathy Miller, a paralegal for the Volunteer Lawyers Project (“VLP”), to write an article explaining why I “volunteer” my time and legal experience for their organization. I began by finding the definition of “volunteer” in my Webster’s New World Dictionary: Volunteer means one who chooses freely to do something (without pay or coercion); to offer to give of one’s own free will; to offer of enter into any service of one’s own free will. In my case, I had retired from my last position of employment with HCMM (Holfaster, Cecil, McKnight & Mues) in February 2017. While I first enjoyed being able to “sleep in” each morning, I quickly realized that I was becoming “bored” at home with so little to do outside of housework. I found that I missed having a purpose in getting out of bed, getting dressed in business attire, and going to Court. I missed the activity of being in Court and having conversations with other attorneys who were in Court. I missed being a participant of discussions of family or domestic relations law with other colleagues. And, I even began to miss the drive from Beavercreek to downtown Dayton to attend Court hearings. I kept remembering being a Cub Scout Mother/Leader or a Brownie Scout Mother/Leader who helped my two children learn their pledges. The pledge words and phrases were something like this: I promise to do my best, to love God and my Country, to serve people every day, especially those at home. A friend suggested that I call the Volunteer Lawyers Project (“VLP”) and volunteer to increase the amount of time that I spent in helping or serving members of our local communities in terminating their marriages. Thus, while I began my volunteer work with VLP in 2004 when Helenka Marculewicz was the director, I contacted Kathy Miller in March 2017 and asked to increase both the number of hours and number of cases that I devoted to the organization. My relationship with Kathy Miller has developed into a solid friendship and working relationship as we conduct “clinics” to commence legal proceedings. We begin by meeting 4-6 potential clients at her office in downtown Dayton. We meticulously gather information regarding the state of their marriages, the assets and liabilities acquired during the marriage, the income of the parties, and the number of children born as issue of the marriage. Kathy then assists the clients in completing the necessary forms for each client depending upon the county wherein the clients reside. Our clients are primarily residents of Greene or Montgomery County. Kathy then prepares draft copies of each party’s Complaint for Divorce. The draft copies are then emailed to me for review and revision, if necessary. The Court Systems of Montgomery and Greene Counties accommodate our clients by waiving the usual filing fees in deference to our client’s income status.

After the complaints for divorce have been filed, next meet with each client individually to discuss their goals and objectives to be made part of their separation Agreements and/or Final Decrees of Divorce. Most of our divorces end with Non-contested Hearing dates resulting from the fact that most of our Defendants fail to file an Answer or Response to the facts set forth in each client’s Complaint. Important issues to be addressed by each Final Decree are as follows: 1. Which parent shall be designated as the “residential parent and legal custodian” of the minor child or children (usually the Mother)? 2. Which parenting time/visitation schedule shall be granted to the non-residential parent (usually the Father)? 3. Will there be payment of child support and/or spousal support? These issues will be dependent upon the incomes of the parties. Spousal support shall also be determined by the length of the parties’ marriage. 4. How will the parties’ household goods and furnishings be divided? 5. How will the parties’ divide their assets (financial accounts, automobiles, etc.)? 6. How will the parties divide their liabilities (indebtedness/ loans, etc.)? 7. Shall Wife/Mother be restored to her maiden name? Kathy Miller then commences the drafting of each party’s Final Decree which she then emails to me for review and revisions, if necessary. The next step is for each party to be provided a copy of the Final Decree with instructions to call should they have any questions or concerns regarding the language and terms of the Decree. Normally, the Court schedules non-contested hearings within six to eight weeks after the filing of each Complaint for Divorce. There is a requirement that each Plaintiff (the party initiating the divorce proceeding), shall have a witness to corroborate (validate) the terms of the parties’ marriage. The “witness” can be a friend, co-worker, neighbor, and/or relative. It is imperative for each client to bring his/her witness to the hearing as the Court will not conduct the hearing in the absence of a witness. And, the proposed witness must be and adult (over the age of eighteen (18). Non contested divorce hearings usually take just 10-15 minutes in duration. If the assigned Judge finds no problems with the terms of the Decree, the Decree is signed by the Judge and can be filed with the Clerk’s office after the hearing. The client will then be provided with a time-stamped and certified copy of the Decree with instructions for the document to be kept with other important papers (life insurance policies, Last Will and Testaments, etc.) This concludes the completion of this article regarding my choice to serve as a “volunteer” for this very worthy organization.

SEPTEMBER 2021 |

DAYTON Bar Briefs

Law Related Organizations | Classified Ads

University of Dayton School of Law

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Classified ads are accepted each month, September through June . Copy must be received by the 1st day of the month preceding the month of publication. The Bar Briefs Editorial Board reserves the right to refuse any ad. Pricing available online. Submit your ad to Shayla Eggleton: seggleton@daybar.org

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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.

DAYTON Bar Briefs |

SEPTEMBER 2021

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DBA Members on the Move

Members on the Move Guidelines

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! • News of CLE presentations & political announcements are not accepted • Printed at no cost • Must be submitted via email and are subject to editing • Printed as space is available Contact Shayla to submit your announcement or ad: seggleton@daybar.org | 937.222.7902

Pickrel, Schaeffer & Ebeling is proud to announce that Adam Beiersdorfer recently joined our firm as an Associate Attorney. Adam will be a member of our Business Department practicing a wide range of Corporate, Real Estate, and Taxation matters. Adam completed his undergraduate education at Wright State University in 2017 and obtained his Juris Doctorate from The University of Dayton School of Law in 2019 as part of the 2-year accelerated program. While at Dayton, Adam participated in numerous student organizations and was a member of the UDSL Intellectual Property Clinic - where as a student - he helped real-world clients understand, obtain and protect their Intellectual Property world-wide. Prior to joining PSE, Adam provided general counsel services for several area businesses and worked as a litigation associate with a regional firm where he helped clients navigate complex commercial litigation in State and Federal Courts. Prior to law school, Adam enjoyed a career in the financial services industry where he worked in securities and investments, mortgages, automotive finance, business banking, retail services and loss mitigation. Adam has experience working with clients - both large and small – across a multitude of industries. Adam takes pride in helping clients solve their individual needs while helping them navigate the complex business environment of today.

Benchmark Litigation has selected Erin Rhinehart, Co-Managing Partner of Faruki PLL to appear in the 10th edition of Benchmark Top 250 Women in Litigation. The list focuses on the "leading Top 250 female litigators from across the US"who made the list by being involved in some of the most important litigation matters in recent history, in addition to earning the respect of their peers and clients. Erin's litigation practice focuses on class action defense, media and communications law (First Amendment, defamation, privacy, public records, advertising, social media, trademark, and copyright litigation), breach of contract, non-compete, tortious interference, and health care and environmental litigation matters. She has first-chair jury trial experience, and has argued before various appellate courts in Ohio, including the Supreme Court of Ohio. Erin has been repeatedly recognized by Benchmark Litigation, as well as Ohio Super Lawyers as a Rising Star and Super Lawyer. She has also been repeatedly recognized as one of America's Top 100 High Stakes Litigators. In both 2020 and 2021, Erin was named Premier Health Care Lawyer for Dayton – a recognition given to just one health care lawyer per city. In 2020 she was recognized by BTI Consulting as a Client Service All Star – a recognition given to less than 500 lawyers nationally.

SEPTEMBER 2021 |

DAYTON Bar Briefs

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