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Tuesday, October 8, 2013

In the Matter of the Application of Columbus Southern Power Company and In the Matter of the Application of Ohio Power Company, Case no. 2012-0187
Public Utilities Commission of Ohio

Forrest Gauthier v. Su Kang Gauthier, Case no. 2012-1398
Twelfth District Court of Appeals (Warren County)

State of Ohio v. Yanko Mansaray, Case no. 2012-1727
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Christopher Anderson, Case no. 2012-1834
Seventh District Court of Appeals (Mahoning County)

Mason City School District Board of Education v. Warren County Board of Revision et al., Case no. 2012-2107
Ohio Board of Tax Appeals


How Should Electric Utility Companies Refund Unauthorized Electricity Charges, and Do Electric Utility Companies Have a Right to Collect Deferred Charges?

In the Matter of the Application of Columbus Southern Power Company and In the Matter of the Application of Ohio Power Company, Case no. 2012-0187
Public Utilities Commission of Ohio

ISSUES:

BACKGROUND:
Ohio-based companies Columbus Southern Power Company and Ohio Power Company filed electric service plans with the Public Utilities Commission of Ohio. In March 2009, the PUCO approved the plans with certain provisions relevant to this case. First, the commission said the companies could begin recovering costs for environmental investments they had made from 2001 to 2008. The companies could phase in those costs during the three years of their approved service plans as long as the amounts didn’t exceed a certain percentage increase each year. The caps were implemented to minimize the amount of the increases in the short term for customers. The remaining costs could then be deferred and charged, with interest, after 2011. The PUCO also authorized the companies to impose a provider of last resort (POLR) charge as default service providers.

Industrial Energy Users-Ohio, an association of Ohio manufacturers, and the Office of the Ohio Consumers’ Counsel (OCC), a utility consumer advocate, appealed the PUCO’s order to the Ohio Supreme Court. In April 2011, the Supreme Court remanded two issues in this case to the PUCO for further review. The court found that the commission needed to determine whether R.C. 4928.143(B)(2)  authorized the environmental investment costs the companies were seeking to recover. The court also found that the commission had improperly authorized the POLR charge because “the manifest weight of the evidence contradicts the commission’s conclusion that the POLR charge is based on cost,” and the court said the commission could revisit the issue.

The PUCO then issued an order that determined evidence from earlier hearings was sufficient to meet the requirements of R.C. 4928.143(B)(2), so the recovery of pre-2009 environmental investment costs was authorized. It also stated that the companies’ POLR charges weren’t based on cost and ordered the companies to refund any charges collected and remove the charges from the service plans.

After the commission declined a rehearing, Industrial Energy Users and the OCC appealed to the Supreme Court and submitted separate briefs.

Attorneys for Industrial Energy Users present eight arguments to the court in their brief. Among their central arguments:

OCC’s attorneys also present several arguments opposing the PUCO’s ruling and ask the court to direct the commission to order the reduction of the rates in these service plans. Their arguments include the following:

Attorneys for the PUCO counter with several assertions:

Ohio Power Company also filed a brief in this case as an intervening appellee. Their brief notes that Columbus Southern Power and Ohio Power Company were merged, effective on December 31, 2011, and Ohio Power Company is the surviving entity.

Contacts
Representing Industrial Energy Users-Ohio: Samuel Randazzo, 614.469.8000

Representing the Office of the Ohio Consumers’ Counsel: Maureen Grady, 614.466.9567

Representing the Public Utilities Commission of Ohio: Werner Margard, 614.995.5532

Representing intervening appellee Ohio Power Company: Steven Nourse, 614.716.1608

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Does a Trial Court Have the Authority to Review Its Own Contempt Order to Determine Whether Conditions to Remove the Contempt Have Been Met?

Forrest Gauthier v. Su Kang Gauthier, Case no. 2012-1398
Twelfth District Court of Appeals (Warren County)

ISSUE: Is an order of contempt with a penalty a final and appealable order even if the party in contempt has the “opportunity to purge” the contempt ruling?

BACKGROUND:
Following a divorce, Su Kang Gauthier was found in contempt of court by a magistrate, in part because she hadn’t returned more than a dozen items to her ex-husband Forrest Gauthier. The trial court said Ms. Gauthier would be sentenced to 30 days in jail but that the order could be “purged,” or removed, if she returned the items by December 31, 2010. She returned two of the items by the deadline, and Mr. Gauthier filed a motion to impose the trial court’s sentence. At a hearing in February 2011, Ms. Gauthier told the magistrate that either she had already delivered the remaining items to Mr. Gauthier before the contempt finding or she had searched and didn’t have them. The magistrate declined to recommend that the jail sentence be imposed, stating there wasn’t enough evidence that Ms. Gauthier had the items and describing some of the items as “de minimus in nature, including extension cords, saw blades, white boards, camp shovels, etc.” The trial court adopted the magistrate’s findings.

Mr. Gauthier appealed the trial court’s decision to the Twelfth District Court of Appeals. He argued the trial court wasn’t permitted to reconsider and overrule its own December 2010 decision because it was a final, appealable order.

The court of appeals disagreed, stating that a contempt order with a jail sentence, and the “opportunity to purge,” is not a final, appealable order. They also said, even if the contempt order wasn’t final, Ms. Gauthier was allowed to use a “defense of impossibility” to show evidence that she could not provide the remaining items and, therefore, purge the jail sentence.

Mr. Gauthier appealed to the Supreme Court, asking it to review the Twelfth District’s decision.

Citing State ex rel. Doe v. Tracy, a 1988 appeals court decision in the Twelfth District, attorneys for Mr. Gauthier argue that a holding of contempt is final and appealable when there is, first, a finding of contempt and, second, the imposition of a penalty or sanction. Mr. Gauthier’s attorneys argue that “imposition” occurs when the court pronounces a sentence based on the litigant’s conduct and “execution” happens when the sentence is carried out – thus, affecting when a contempt order is considered final. Ohio courts, they assert, have inconsistently interpreted the meaning of “imposition.”

This year in Hetterick v. Hetterick, the Twelfth District held, regardless of whether there’s an opportunity to purge the contempt, a contempt order with a sentence or sanction is a final and appealable order. The Twelfth District said its earlier ruling in Dudley v. Dudley denies a party’s right to judicial review. Mr. Gauthier’s attorneys argue that clarification is needed so there are consistent rules guiding the appeals process across Ohio’s districts. They ask the Supreme Court to create a bright-line rule: When a contempt finding is combined with the imposition of a penalty, that order is final and appealable. They assert that “[t]he majority of districts almost unanimously agree that this is both a well-reasoned and fair legal policy.”

Mr. Gauthier’s attorneys also add that Ms. Gauthier was not permitted to re-litigate the facts of the case in the February 2011 hearing because the trial court’s December 2010 decision was a final order.

Attorneys for Ms. Gauthier acknowledge the division among Ohio’s courts of appeals. However, they argue the Revised Code’s “requirement of finality” should guide this case. When a person found in contempt is given a chance to purge the contempt by some action, the contempt order is not yet final, they assert. The order only becomes final, they argue, when the court determines whether the person in contempt has complied with the conditions that can purge the order. This is the position consistently held by the Eleventh District Court of the Appeals, and it’s the ruling the Supreme Court should adopt, they contend.

Ms. Gauthier’s attorneys argue that even the appellate courts that define such orders as final recognize the trial courts retain jurisdiction to determine whether the person held in contempt has met, or can meet, the requirements of a purge order. In this case, Ms. Gauthier’s attorneys argue it was impossible for her to perform the actions that would have purged her contempt order and jail sentence. It’s an abuse of discretion when a court imposes unreasonable or impossible conditions, they conclude.

Should the Supreme Court adopt Mr. Gauthier’s arguments, Ms. Gauthier’s attorneys argue that decision should be applied only to future cases, not retroactively, to avoid confusion and inequitable results.

Contacts
Representing Forrest Gauthier: Thomas Grossmann, 513.946.3058

Representing Su Kang Gauthier: Robert Klingler, 513.665.9500

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When Does an Error in Procedure Have to Occur to Meet a Requirement of the Wrongful Imprisonment Statute?

State of Ohio v. Yanko Mansaray, Case no. 2012-1727
Eighth District Court of Appeals (Cuyahoga County)

ISSUES:

BACKGROUND:
U.S. Marshals, attempting to execute an arrest warrant for a person allegedly at Yanko Mansaray’s home, discovered large quantities of ecstasy pills. Mansaray was indicted with drug trafficking, drug possession, possessing criminal tools, and having a weapon while under disability. Before his trial, Mansaray asked the court to suppress the evidence of the drugs and guns found in his home, but the court denied the motion. The jury found Mansaray not guilty of drug trafficking but guilty of drug possession and possessing criminal tools, and he was sentenced in 2007 to 11 years in prison.

Mansaray appealed to the Eighth District Court of Appeals, arguing the trial court erred when it denied his motion to suppress some evidence. The appeals court agreed, finding “the U.S. Marshals violated his Fourth Amendment rights when they failed to obtain a search warrant to search his home and had no reasonable belief that the suspect they were looking for lived with Mansaray.” Mansaray was released from prison.

In September 2011, he filed an action for wrongful imprisonment, but the trial court dismissed his complaint holding that he didn’t meet the fifth element required under R.C. 2743.48(A) when determining whether someone has been wrongfully imprisoned. Mansaray appealed this decision to the Eighth District.

The fifth requirement in R.C. 2743.48(A), states: “Subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual’s release ... . ”

The appeals court found in favor of Mansaray, concluding: “A plain reading of the relevant portion in R.C. 2743.48(A)(5) requires that: (1) after the individual’s sentence and during or after imprisonment, (2) the individual was released because of an error in procedure. That is, the error in procedure, which resulted in the individual’s release, occurred prior to sentencing and imprisonment. This reading avoids unreasonable and absurd results.” The appeals court ruled that Mansaray met this requirement, and it reversed the trial court’s judgment. The state appealed the Eighth District’s decision to the Ohio Supreme Court.

The state argues that, when a trial court is reversed for using evidence obtained through an unreasonable search, a criminal defendant may be entitled to a new trial. They assert, however, that a trial court’s error does not entitle the defendant to damages from the state in a civil action for wrongful imprisonment under R.C. 2743.48. When a criminal defendant wins a case because illegally seized evidence was suppressed, he or she has only avoided criminal liability, they add. They contend this view represents a longstanding mandate by the Ohio Supreme Court, which in Walden v. State (1989) said: “[T]he General Assembly intended that the court of common pleas actively separate those who were wrongfully imprisoned from those who have merely avoided criminal liability.” The appeals court’s reversal, the state argues, doesn’t give the defendant “moral absolution of the hard facts that landed him in court.”

Attorneys for Mansaray counter that an unreasonable search and seizure is an error in procedure and, in some circumstances, a Fourth Amendment violation can satisfy the requirement in R.C. 2743.48(A)(5). In this case, they argue that requirement has been met. The statute, they add, doesn’t require actual innocence, given that the General Assembly added the language regarding procedural errors in 2003. Mansaray’s attorneys also assert they aren’t arguing that Mansaray is automatically entitled to payment for wrongful imprisonment, rather that, if they show the requirements of R.C. 2743.48 are met, then Mansaray is entitled to damages under the statute’s “comprehensive gate-keeping structure.”

The state’s attorneys argue that the language in (A)(5) of the statute clearly is referring to an error that occurred after sentencing and during or after imprisonment. They assert that the error admitting the illegally seized evidence in this case occurred, however, prior to Mansaray’s sentencing and imprisonment. Given that and an analysis of the General Assembly’s intent in amending the statute, the state contends that Mansaray cannot qualify as a wrongfully imprisoned individual.

Mansaray’s attorneys counter that the state’s reading of the statute is grammatically incorrect. They argue that if the statute meant, as the state asserts, that the error resulting in release had to take place after sentencing and imprisonment, then wrongful imprisonment would not be possible, producing “absurd results.” The state argues that the error must “occur” after sentencing and imprisonment, but Mansaray’s attorneys assert that the words “result in” (from the statute) and “occur” don’t have the same meaning. They contend that “result in” means “caused” – so the statute’s fifth requirement is that an error caused a release after sentencing and conviction, rather than the state’s interpretation that the error “came into existence” after sentencing and conviction.

The state’s attorneys assert that the trial court in the civil claim improperly took “judicial notice” that Mansaray had met the first four requirements of R.C. 2743.48(A) based on the criminal case. The appeals court then agreed that the first four requirements were met. The state contends, however, that the record in the civil case didn’t include any evidence for the appeals court to make this conclusion.

Mansaray’s attorneys note that the Eighth District’s opinion states “we agree with both parties and the trial court that the requirements in R.C. 2743.48(A)(1)-(4) are satisfied by Mansaray.” Mansaray’s attorneys argue that, because the state concurred with this determination during the appeal, it can’t now object to the judicial notice. Regardless, they assert, the appeals court made its decision based on its own earlier ruling and its reading of the statute, not on the facts admitted by the trial court in its judicial notice. As a result, they contend that it is procedurally inappropriate to argue this issue now before the Supreme Court.

Contacts
Representing the State of Ohio: Brian Gutkoski, 216.443.7860

Representing Yanko Mansaray: Terry Gilbert, 216.241.1430

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In a Criminal Trial, Is a Motion to Dismiss that Has Been Denied Appealable?

State of Ohio v. Christopher Anderson, Case no. 2012-1834
Seventh District Court of Appeals (Mahoning County)

ISSUE: When a criminal defendant makes a motion to dismiss for a violation of his right to due process and the prohibition against double jeopardy, and the trial court denies the motion, is that dismissed motion a final and appealable order?

BACKGROUND:
Amber Zurcher was strangled to death in her Austintown apartment in June 2002. The night before, Christopher Anderson and several other people attended an after-hours party at Zurcher’s apartment. Anderson and two others left the apartment together in the early morning. When Zurcher didn’t pick up her son later that morning, Zurcher’s mother went to her apartment and discovered her daughter dead.

Anderson was arrested and indicted for Zurcher’s murder. His first trial ended in a mistrial because a witness made statements about some behavior with another woman that was similar to aspects of Zurcher’s murder. In his second trial, the woman and Anderson’s probation officer were allowed to testify, and Anderson was convicted of murder. However, the Seventh District Court of Appeals reversed the conviction, concluding that the testimony of bad acts and probation violations by Anderson should not have been allowed.

Anderson’s third trial resulted in a hung jury, the fourth in mistrial, and the fifth again in a hung jury. Before his next trial began in 2011, Anderson filed a motion to dismiss the charges, arguing that a sixth trial would violate his constitutional rights to due process and prohibiting double jeopardy. The trial court dismissed the motion, and Anderson appealed to the Seventh District.

The state argued that Anderson could not appeal the trial court’s order dismissing the motion because that order is not final and appealable. A panel of the appeals court ruled the order is appealable, and the state requested consideration on the issue by the full appeals court (an en banc hearing). The full court split 2-2 on whether the order is appealable, which meant Anderson’s appeal could be heard. Before that, though, the state appealed the Seventh District’s ruling to the Ohio Supreme Court.

Attorneys for the state argue that, in criminal cases, Ohio appellate courts can only hear appeals from trial court orders that are final and appealable based on meeting one of the requirements in R.C. 2505.02.  In their brief to the Supreme Court, they analyze all seven requirements in the statute and look closely at three of them, asserting that none of them apply in this case.

They argue that Ohio Supreme Court precedent also holds that an order denying dismissal on due process and double jeopardy grounds is not final and appealable. Instead, citing the Supreme Court’s opinion in State v. Crago (1990), they contend that the proper remedy is a direct appeal seeking review after a trial has concluded. They assert that the appeals court ignored this precedent, which they say equally applies to due process as well as double jeopardy claims.

In addition, the state discusses the U.S. Supreme Court’s decision in Abney v. United States (1977), which allowed appeals from this type of motion. The state cites the Ohio Supreme Court in Wenzel v. Enright (1993) on this issue, which held that “Abney does not mandate, as a matter of federal constitutional law, that a state provide a mechanism for an interlocutory appeal from the denial of a motion to dismiss on grounds of double jeopardy.”

Attorneys for Anderson respond that the state’s reliance on Crago puts “all of its legal eggs in one basket.” They argue that the Seventh District’s decision doesn’t conflict with Crago, in part because Crago only dealt with claims of double jeopardy but not a due process claim as asserted in this case.
Anderson’s attorneys also contend that the defendant in Crago hadn’t faced six trials. Last, they assert that the state ignores the fact that the current version of R.C. 2505.02, the statute defining the types of orders that can be appealed, is different than it was when Crago was decided.

As far as seeking review in a direct appeal after trial, Anderson’s attorneys argue that “[t]he Seventh District Court of Appeals explained why an appeal after the conclusion of the trial proceedings denies Anderson the very relief he seeks: not to be burdened with the risk, expense, and anxiety of another trial.”

They add that judges around the state have asked the Ohio Supreme Court to revisit Crago: “[W]hatever nomenclature one chooses to attach that, whether it be that Crago be overruled, modified, superseded, or anything else, it is clear that Crago’stime has come.”

An amicus curiae (friend of the court) brief supporting Christopher Anderson has been submitted by the Office of the Ohio Public Defender. (Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2012-1834, in the search box.)

Contacts
Representing the State of Ohio: Ralph Rivera, 330.740.2330

Representing Christopher Anderson: John Juhasz, 330.758.7700

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Does the Lack of a Hearing Notice to a New Property Owner Nullify the Board of Tax Appeals’ Ruling?

Mason City School District Board of Education v. Warren County Board of Revision et al., Case no. 2012-2107
Ohio Board of Tax Appeals

ISSUES:

BACKGROUND:
A one-story, multi-tenant strip center called The Shoppes of Deerfield South in Mason was assessed by the Warren County Auditor for tax year 2008 at a value of $5,066,900. The property owner, Wasserpach IV, filed a complaint with the Warren County Board of Revision. The owners argued that the property had a lower fair market value than the auditor’s assessment and requested a decrease in the property’s value because of decreased market rents, vacancies, lower rental income, and higher property expenses. The property owner also indicated that the property had sold for $5,350,000 two years earlier, in December 2006.

The board of revision reduced the total property value to $3,353,900. The Mason City School District Board of Education appealed that decision in September 2009 to the Ohio Board of Tax Appeals. At the BTA’s hearing in April 2012, the board of education argued that the property should instead be valued based on the 2006 sale price, though it offered no evidence of that sale. The BTA ruled in November 2012 that the best indication of the property’s value was the 2006 sale price. Noting that no evidence of the sale was presented, the BTA stated that all the parties acknowledged that sale and it appeared to meet the statutory requirements of being at arm’s length and recent. The BTA stated: “In the absence of evidence demonstrating why such sale should not be relied upon to establish the subject property's value for tax purposes, we will not engage in conjecture as to bases for its rejection.”

The property changed ownership twice while the case was pending before the BTA. In June 2010, Viking Partners Deerfield bought the property. In July 2012, Squire Hill Properties II purchased the property, and it appealed the BTA’s decision to the Ohio Supreme Court.

Squire Hill argues that the BTA did not give the prior property owner, Viking, notice of the BTA hearing or an opportunity to be heard in its proceedings. Squire Hill contends that failure by the BTA to provide notice nullifies the board’s decision. Alternatively, Squire Hill, as the current owner, asserts that the BTA should reverse its decision so that Squire Hill may participate in the proceedings.

Squire Hill also argues that the BTA was informed that Viking was the new property owner before its April 2012 hearing, so the BTA abused its discretion when it didn’t postpone the hearing to allow Viking to participate.

In addition, Squire Hill asserts that the board of education didn’t meet the burden of proof in its appeal to the BTA to show that a higher property value was justified. As noted by the BTA, the board of education offered no evidence of the 2006 sale at the hearing. The property owner adds that the 2006 sale didn’t meet the requirement that it be recent because the collapse in the real estate market that occurred after the sale and before the tax valuation significantly altered the property’s value.

The Warren County Board of Revision and Warren County Auditor state in their brief that they have no position on Squire Hill’s claims regarding whether the BTA should have notified new property owners of the hearing or whether the BTA should have delayed the hearing. The board of revision and auditor agree, however, with Squire Hill that the board of education didn’t meet its burden of proof and the BTA wrongly relied on the 2006 sale to determine the property’s value without any evidence to support the sale. The board of revision and auditor also assert that the BTA erred when it didn’t consider evidence from the first property owner, Wasserpach, showing how the property was affected by downward market changes after 2006.

The Mason City School District Board of Education argues that Squire Hill wasn’t the property owner at the time of the BTA hearing, so no notice was required and no due process rights were violated. The board of education also asserts that the BTA wasn’t notified of the name and address of the new owner.

The board of education contends that, when a sale is involved, the party that opposes using the property’s sale price has the burden of proof to show why the sale price should not be used. Even if the burden was on the board of education, it asserts that the statements by Wasserpach about the sale were sufficient to meet the burden and the BTA had a right to consider the sale price in making its decision.

Contacts
Representing Squire Hill Properties II: Scott Thomas, 859.344.1188

Representing the Mason City School District Board of Education: Jennifer Antaki, 513.338.1990

Representing the Warren County Board of Revision and the Warren County Auditor: John Greer, 513.695.1325

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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.