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Wednesday, August 21, 2013

In the Matter of the Complaint of OHIOTELNET.COM, INC. v. Windstream Ohio, Inc., Case no. 2012-0027
Appeal from Order of the Public Utilities Commission of Ohio

City of Cleveland v. State of Ohio, Case no. 2012-1616
Eighth District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Thomas Jones, Jr., Case no. 2013-0611
Board on the Unauthorized Practice of Law

In the Matter of the Application of Black Fork Wind Energy, L.L.C. for a Certificate to Site a Wind-Powered Electric Generating Facility in Crawford and Richland Counties, Ohio, Case no. 2012-0900
Appeal from Order of the Power Siting Board


Did the PUCO Appropriately Consider Evidence in Telecommunications Case?

In the Matter of the Complaint of OHIOTELNET.COM, INC. v. Windstream Ohio, Inc. Case no. 2012-0027
Appeal from Order of the Public Utilities Commission of Ohio

ISSUE: Did the Public Utilities Commission of Ohio (PUCO) willfully disregard its duty based on the way it reviewed and considered more than 18,000 pages of evidence submitted in a telecommunications case?

BACKGROUND:
Windstream Ohio sells telecommunication services, such as long-distance telephone, digital subscriber lines (DSL), and product installations, suspensions, and restorations, at wholesale prices to companies that resell these services to retail customers. Ohiotelnet, which operates in the Licking County area, had an agreement with Windstream for these services.

In June 2009, Ohiotelnet filed a complaint with the PUCO alleging that Windstream had overcharged it, sent inaccurate invoices, denied requests for credit, and failed to adequately resolve the disputes. Ohiotelnet said Windstream owed it $76,436 for overcharges and incorrect billing. As evidence, it submitted numerous exhibits including the related invoices, which totaled more than 18,000 pages, and a 287-page invoice summary.

The PUCO ruled against Ohiotelnet in September 2011, saying the company failed to prove the claims against Windstream. Ohiotelnet applied for a rehearing, which the commission denied, and then exercised its right to appeal the decision to the Supreme Court.

All parties – Ohiotelnet, the PUCO, and Windstream – cite the court’s 2004 decision in Monongahela Power Co. v. Public Utilities Commission, which said the court won’t reverse or modify a PUCO order if there’s sufficient evidence showing the decision “was not manifestly against the weight of the evidence and was not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty.”

Attorneys for Ohiotelnet argue the PUCO’s order shows the commission didn’t completely and thoroughly review the evidence submitted. They point specifically to statements in the opinion such as “[t]he invoices purportedly contain an itemization of all charges” and “...we cannot extrapolate from these limited examples that Ohiotelnet is entitled to $76,436.00 in billing credits from Windstream.” They also cite the PUCO’s denial of the rehearing request, which states:

OHIOTELNET suggests that the Commission erred by failing to conduct a complete examination of each line item by employing the technique described by its witness. However, such an undertaking by the Commission would be tantamount to the Commission taking on the burden of proof that OHIOTELNET is obligated to carry.

It would not be appropriate for the Commission to evaluate the validity of numerical data without the benefit of supporting arguments or cross-examination.

Ohiotelnet’s attorneys conclude the PUCO had a duty to review the evidence in its entirety and it cannot decide that Ohiotelnet failed to meet its burden if it didn’t review the evidence.

Attorneys for the PUCO counter that the commission considered the materials and also reviewed evidence from Windstream, which undermined the reliability of Ohiotelnet’s summary exhibit. They also argue that many of the contested charges are from as far back as a decade, outside the 12-month limit in their agreement for raising disputes. Windstream’s attorneys agree, noting purported flaws in the examples Ohiotelnet presented during the hearing. They state that the PUCO found it negotiated in good faith with Ohiotelnet and that Ohiotelnet didn’t respond to Windstream’s defenses.

After weighing all the evidence, the commission concluded that Ohiotelnet failed to sustain its burden of proof. Commission attorneys add the PUCO had no obligation to independently verify the validity of the thousands of exhibit line items; rather, that was Ohiotelnet’s duty. They cite In re Application of Duke Energy Ohio (2002), in which the Supreme Court, they say, concluded that it is not required to do an analysis of a voluminous exhibit when there’s no further explanation or “pinpoint citations” to the record.

Without showing that the commission’s findings “are manifestly against the weight of the evidence,” PUCO attorneys assert the court may not second guess the commission on questions of fact. Windstream’s counsel additionally argue the issue in this case is not whether the PUCO willfully disregarded its duty but rather whether the facts are supported by the evidence. They assert there are no issues of law in the appeal.

Contacts
Representing Ohiotelnet.com: James Cooper, 740.345.9611

Representing the Public Utilities Commission of Ohio: Devin Parram, 614.466.4395

Representing Windstream Ohio: William Adams, 614.221.3155

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Does State Law Regulating Towing Companies Infringe on Local Authority to Oversee Tow-Truck Operations?

City of Cleveland v. State of Ohio, Case no. 2012-1616
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Is the state law governing tow-truck operations a comprehensive, statewide legislative framework and a general law that meets the Supreme Court’s test in Canton v. State, or is the towing law a violation of the Ohio Constitution’s Home Rule Amendment?

BACKGROUND:
In 2003, the General Assembly enacted legislation to make towing companies subject to the state’s regulation of “for-hire motor carriers.” Before 2003, according to the state’s brief, these operations were governed at the local level, if at all. But given that many tow-truck businesses now operate in multiple municipalities and states, the General Assembly changed the law to regulate them under state law. The City of Cleveland also enforces its own towing ordinances and, in 2009, filed suit against the state arguing the state towing law violates the Home Rule Amendment of the Ohio Constitution. Home rule states that municipalities have the right to self-govern as long as their regulations aren’t in conflict with “general” laws.

The trial court granted summary judgment to the state, concluding the towing law is a statewide and comprehensive enactment that doesn’t infringe on Cleveland’s home-rule authority. The Eighth District Court of Appeals reversed 2-1, finding the law did not meet the four-part test adopted by the Supreme Court in Canton v. State (2002), which evaluates whether a statute is a general law or violates home rule. The state appealed, and the Supreme Court agreed to review the Eighth District’s ruling.

The Canton test states that “a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally.”

State attorneys argue the Eighth District misapplied the Canton test. The towing law’s extensive regulations, they say, clearly demonstrate the comprehensive, statewide nature of the law. It applies to all parts of the state uniformly, it lays out police regulations and does more than limit local legislative authority, and it prescribes conduct for towing businesses, they assert.

Attorneys for the City of Cleveland disagree. They challenge specific language in current R.C. 4921.25, which they say effectively preempts all local regulation of towing companies – making it unconstitutional under home rule. They add they aren’t questioning the General Assembly’s authority to enact laws regulating for-hire tow trucks along with other regulated motor carriers. Instead, they argue the preemption language isn’t comprehensive, as Canton requires, because it doesn’t apply to other types of motor carriers.

Note: An amicus curiae (friend of the court) brief supporting the state’s position has been submitted by the Towing & Recovery Association of Ohio. The City of Cincinnati has filed an amicus brief supporting the City of Cleveland in this case. Copies of the amicus briefs and all other filings in the case can be accessed by going to the following hyperlink: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2012-1616, in the search box.

Contacts
Representing the State of Ohio: Michael Hendershot, 614.644.0576

Representing the City of Cleveland: Gary Singletary, 216.664.2737

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Unauthorized Practice of Law

Disciplinary Counsel v. Thomas Jones, Jr., Case no. 2013-0611
Board on the Unauthorized Practice of Law

The Board on the Unauthorized Practice of Law has recommended that the Supreme Court find that Thomas Jones, Jr., of Cleveland, has engaged in the unauthorized practice of law by preparing four deeds for two Cleveland homeowners. The board also recommends that the court issue an order prohibiting Jones, who is not an attorney, from practicing law as a non-lawyer in the future and charge him a $10,000 civil penalty.

In its report, the board states Jones and his business partner, disbarred Ohio attorney Michael Troy Watson, purchased properties in foreclosure and prepared quitclaim deeds for the owners to transfer the properties to them. The board points out that legal documents, including deeds, contracts, and trusts, may not be prepared by a non-lawyer for the benefit of another. The report notes that Jones didn’t cooperate in the investigation. The board concludes that the homeowners, probably unaware that a non-lawyer was preparing their legal documents, may have suffered financial harm.

Jones has filed objections to the board’s findings and recommendations. Questioning how he could have known that printing forms from the Internet was the unauthorized practice of law, he adds that the court hasn’t announced that it’s unlawful for a layperson to use fill-in-the-blank forms to transfer property. This court already addressed this case when it ruled on a 2005 complaint against Watson, he says, and the board’s “harassment” of him simply stems from his business partnership with Watson. He requests either a rehearing by the board’s panel assigned to this matter or dismissal of the charge.

The Disciplinary Counsel, which filed the complaint against Jones with the board, responds that the court has previously decided that drafting or writing a legal document for another person is the practice of law even if the document is copied from a “form book” and completed. As far as the earlier Watson case, the Disciplinary Counsel states it’s legally improper to raise this issue, as Jones did, in a motion to dismiss the case. The appropriate time to make this defense is when filing a response to the board’s complaint, which they say Jones never did. They also assert that Jones didn’t appear at a deposition, has offered no evidence to refute the facts, and ultimately has chosen not to participate in the proceedings – so the court shouldn’t grant a rehearing request.

Contacts
Representing the Office of Disciplinary Counsel: Jonathan Coughlan, 614.461.0256

Thomas Jones, Jr., pro se: 216.673.0978

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Is Due Process Violated When a Party Doesn’t Have the Opportunity to Cross-Examine Certain Witnesses During a Hearing?

In the Matter of the Application of Black Fork Wind Energy, L.L.C. for a Certificate to Site a Wind-Powered Electric Generating Facility in Crawford and Richland Counties, Ohio, Case no. 2012-0900
Appeal from Order of the Power Siting Board

ISSUES:

 
BACKGROUND:
Black Fork Wind Energy filed an application in March 2011 with the Ohio Power Siting Board to construct a commercial wind farm. The proposed facility, covering 24,200 acres in Crawford and Richland counties, would include 91 wind turbines with a capacity to generate 200 megawatts of electricity. The wind farm would consist of access roads, electrical collection lines, a construction staging area, a concrete batch plant, a substation, and an operation and maintenance facility.

The board investigated the project’s environmental and social impacts and filed its report in August 2011, followed by a September public hearing. At an October hearing, the board discussed recommending project approval subject to more than 70 conditions to minimize the impact of the facility’s construction and operation to the area. The board issued its approval of the project in January 2012. The board later denied a rehearing request by a group of landowners, who appealed to the Supreme Court.

Attorneys for Black Fork filed a motion to dismiss the appeal, arguing the landowners mostly raise new issues, ones not presented to the board during its consideration of the project and therefore not appropriate to present before the Supreme Court. On March 27, 2013, the court dismissed several of the landowners’ arguments but agreed to consider whether the landowners had the right to cross-examine witnesses and board staff members who weren’t made available during the evidentiary hearing.

Attorneys for the landowners assert that seven board staff members responsible for developing specific sections of the report about the project were “pulled” from the evidentiary hearing and not allowed to testify. They say the one member of the staff who did testify wasn’t able to adequately answer all questions about the project. They argue that by not being able to ask questions of witnesses about the board’s various stipulations to the project’s construction or question specific staff members about the part each developed for the board’s report, the landowners were prevented from making meaningful inquiries during the hearing. As a result, the attorneys argue the landowners were deprived their “statutory right to participation” and their constitutional right to procedural due process.

The Power Siting Board’s attorneys counter that the landowners had the chance to cross-examine 12 witnesses about the board’s stipulations, including the board’s project manager on the Black Fork investigation and report. They add the landowners also could have subpoenaed any staff member they wanted to hear testimony from.

On the due process violation claim, the board’s attorneys state constitutional due process protections apply only if a party shows it was deprived of a constitutionally protected property or liberty interest. Neither applies here, they assert, because none of the wind turbines will be located on, or limit the use of, the landowners’ property, and the landowners aren’t being restrained or punished in any fashion.

In its brief, Black Fork’s attorneys agree that the landowners had ample opportunity to cross-examine every witness and that there is nothing unreasonable or unlawful about the board having one staff member testify about its position. They assert no due process rights have been violated because the landowners had the opportunity to give testimony, present witnesses, cross-examine witnesses, and review all the evidence.

Note: An amicus curiae (friend of the court) brief supporting the position of the Ohio Power Siting Board has been submitted by the Ohio Farm Bureau Federation. Copies of this amicus brief and all other filings in the case can be accessed by going to the following hyperlink: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2012-0900, in the search box.

Contacts
Representing appellants Gary Biglin, Brett Heffner, Alan Price, Catherine Price, and John Warrington: Patrick Murphy, 419.562.4989

Representing Ohio Power Siting Board: Stephen Reilly, 614.644.8588

Representing Black Fork Wind Energy: M. Howard Petricoff, 614.464.5414

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.