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Wednesday, February 2, 2011

In the Matter of the Application of Columbus Southern Power Company for Approval of an Electric Security Plan; an Amendment to its Corporate Separation Plan; and the Sale or Transfer of Certain Generating Assets, Case no. 2009-2022

In the Matter of the Application of Columbus Southern Power Company for Approval of an Electric Security Plan; an Amendment to its Corporate Separation Plan; and the Sale or Transfer of Certain Generating Assets, Case no. 2009-2298

In re: Lucy Kathleen Mullen, Case no. 2010-0276
1st District Court of Appeals (Hamilton County)

Welsh Development Company et al. v. Warren County Regional Planning Commission, Case nos. 2010-0611 and 2010-0858
12 th District Court of Appeals (Warren County)

Disciplinary Counsel v. Richard Vincent Hoppel, Case no. 2010-1805

Court Reviews Challenges to PUCO Orders Granting, Denying Changes in AEP Electric Rates

Utility and Consumer Groups Challenge Different Parts of PUCO Decision

In the Matter of the Application of Columbus Southern Power Company for Approval of an Electric Security Plan; an Amendment to its Corporate Separation Plan; and the Sale or Transfer of Certain Generating Assets, Case no. 2009-2022


In the Matter of the Application of Columbus Southern Power Company for Approval of an Electric Security Plan; an Amendment to its Corporate Separation Plan; and the Sale or Transfer of Certain Generating Assets, Case no. 2009-2298

NOTE: The Court will hear separate oral arguments in the two cases captioned above. The cases are summarized together because both involve challenges to a 2009 order of the Public Utilities Commission of Ohio (PUCO) that partially granted and partially denied electric utility rate adjustments sought by Columbus Southern Power Company and Ohio Power Company. Both of the utility companies are subsidiaries of American Electric Power.

ISSUE: Did the PUCO act unreasonably or unlawfully in approving certain electric utility rate adjustments or in denying other rate adjustments that were sought by Columbus Southern Power Co. (CSP) and Ohio Power Co. (OPC) and opposed by groups representing the companies’ industrial and residential customers?

BACKGROUND: In Case No. 2009-2022, Industrial Energy Users-Ohio and the state’s Office of Consumers’ Counsel, representing residential and industrial customers who purchase electric power from CSP and OPC, appeal to the Supreme Court seeking reversal of a March 2009 order in which the PUCO approved a modified “Electric Security Plan” (ESP) under which the utilities increased their billing rates for 2009 through 2011.

Among multiple assignments of error, the appellant customer groups assert that:

Attorneys for the utility companies and PUCO respond that the rate schedule set forth in the commission’s March 2009 order approving CSP/OPC’s electric security plan was not retroactive to January of that year, but applied only prospectively to rates the companies charged their customers for service delivered beginning with the April 2009 billing period. With regard to the calculation of an appropriate “provider of last resort” surcharge for the 2009-2011 period covered by the ESP, they point out that the 2008 legislation authorizing ESP-based rate setting did not require an applicant or the commission to justify rates based on past cost experience, but allowed them to predict future risks and expenses based on established statistical projection models. In this case, they contend, the PUCO found the risk analysis model suggested by the power companies to be appropriate, and the commission acted within its sound discretion in authorizing a surcharge based on that model.

In Case No. 2009-2298, the utility companies ask the Supreme Court to reverse a portion of the PUCO’s order of March 2009 that denied their request that the commission include in their 2009-2011 ESP prior authorization to sell or transfer ownership of two recently acquired power generation facilities, the Waterford Energy Center and the Darby Electric Generating Station. 

Attorneys for the utilities state that they did not initially challenge the commission’s action because its negative impact was offset by a companion ruling allowing the companies to recover $51 million per year of their costs of owning and operating the Waterford and Darby generating plants through surcharges passed on to their customers. But when the commission later reversed itself and excluded the surcharges to offset their costs of operation from the final ESP, the companies assert that it was required by law to allow them to sell or transfer the Waterford and Darby facilities.

Attorneys for the PUCO, Consumers’ Counsel and Industrial Energy Users-Ohio urge the Court to uphold the PUCO’s action.  They point out that the same 2008 legislation that allowed the utilities to base rate increases on non-cost factors, such as potential losses arising from their status as providers of last resort, also removed the requirement that the PUCO automatically allow utilities to adjust their rates to compensate for acquisition and operation of new generating facilities. In this case, they say, the PUCO did not permanently deny the companies permission to sell or transfer the Waterford and Darby facilities, but merely declined to include that issue in their ESP as premature in light of the fact that they had no immediate plans for such a sale. Because the utilities did not present evidence that their current rate structure was inadequate to cover costs associated with the Waterford and Darby plants, they say, the PUCO acted within its sound discretion in declining to allow the companies to add those costs to their customers’ bills.

Steven T. Nourse, 614.716.1608, for Columbus Southern Power Co. and Ohio Power Co.

Werner L. Margard, 614.995.5532, for the Public Utilities Commission of Ohio.

Terry L. Etter, 614.466.7964, for the Office of Consumers’ Counsel.

Samuel C. Randazzo, 614.469.8000, for Industrial Energy Users of Ohio.

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Can Same-Sex Partner Enforce 'Implied' Shared Child Custody Agreement Over Biological Mother's Objections?

Where Women 'Co-Parented' Child Prior to Separating

In re: Lucy Kathleen Mullen, Case no. 2010-0276
1st District Court of Appeals (Hamilton County)

ISSUE: Did a juvenile court err by refusing to recognize or enforce an alleged “implied” shared custody agreement between the biological mother of a child and the mother’s former same-sex partner after both women planned the child’s conception and birth, supported the child financially and shared parenting duties prior to the breakup of their relationship?

BACKGROUND: Kelly Mullen and Michele Hobbs, while living together in a same-sex relationship, decided that Mullen would attempt to become pregnant by artificial insemination and bear a child that both women would support and raise together. Hobbs participated in Mullen’s prenatal medical care and in the delivery of the child, a daughter who was named Lucy Mullen. Hobbs’ name appeared along with Mullen’s on a ceremonial birth certificate prepared by the hospital. Mullen executed general and healthcare powers of attorney authorizing Hobbs to make decisions about Lucy’s, schooling, medical treatment and general wellbeing in case Mullen was unable to do so, and executed a will indicating her intent that Hobbs be named Lucy’s guardian in the event of Mullen’s death.  All three documents, which were revocable at Mullen’s sole discretion, indicated that she regarded Hobbs as Lucy’s “co-parent.”

For two years after Lucy’s birth in July 2005,  both women shared day-to-day parenting duties and presented themselves and Lucy to friends, neighbors and relatives as a family. During that period, there was discussion between the women about Mullen executing a written shared custody agreement, however she declined to do so.

The women’s relationship deteriorated, and in October 2007 Mullen and Lucy moved out of the house they had shared with Hobbs. In December 2007, Hobbs filed an action asking the  Hamilton County Juvenile Court to grant her permanent shared custody of Lucy on an equal basis with Mullen.
Mullen opposed the requested custody order. After a hearing before a magistrate, the magistrate granted Hobbs shared custody of Lucy based on his finding that the conduct of the two women before and since Lucy’s birth indicated that Mullen had consented to a co-parenting arrangement in which Hobbs played an essential role in Lucy’s life, and in doing so had implicitly relinquished her right to sole custody of Lucy. Mullen filed objections to the magistrate’s order.  After reviewing the hearing record and post-hearing briefs from the parties, the juvenile court overruled the magistrate and issued an order denying Hobbs’ shared-custody petition.

Hobbs appealed that order to the 1st District Court of Appeals. On review, the 1st District affirmed the juvenile court’s holding that, in the absence of a written shared custody agreement filed with the juvenile court, Mullen’s participation in a shared parenting arrangement with Hobbs had not relinquished her right to sole custody as Lucy’s natural mother, and had not conferred on Hobbs an implied right to shared custody of Lucy over Mullen’s objections. Hobbs sought and was granted Supreme Court review of the 1st District’s decision.

Attorneys for Hobbs urge the Court to overrule the 1st District and hold that the juvenile court abused its discretion in finding that Mullen’s words and actions in her dealings with Hobbs did not constitute a voluntary relinquishment of her right to sole custody of Lucy.

They point to a line of Ohio court decisions holding that when a natural parent voluntarily  relinquishes custody of a child to another person or persons who then develop a close emotional relationship with the child over an extended period of time, that custody agreement may not later be unilaterally revoked by the natural parent in a way that deprives the child of the continuing benefits of that bonded relationship. In this case, they say, it is undisputed that Mullen planned Lucy’s conception and birth jointly with Hobbs, agreed that Hobbs would support and raise Lucy as an equal co-parent and actually shared parenting duties with her for two years, acknowledged Hobbs’ status  as Lucy’s co-parent in multiple legal documents and encouraged Hobbs to develop a close emotional bond with Lucy over a period of many months.  In light of these facts, they contend, the lower courts erred in refusing to recognize that Mullen had relinquished sole custody and granted Hobbs an implied right to continuing joint custody of Lucy regardless of a change in the relationship between the two women.

Attorneys for Mullen respond that most of the relinquished custody cases cited by Hobbs have involved a parent’s attempt to rescind her permanent relinquishment of custody of a child to a nonparent through adoption, or to cut off contact with a grandparent or other family member after a parent previously relinquished custody to that person because they were unable or unwilling to fulfill their parental duties. Those decisions are not applicable to this case, they say, because Mullen was never unwilling or unfit to care for her daughter and in fact was always present and active in caring for Lucy. While Mullen agreed to allow Hobbs as her life partner to participate in the birth and daily care of her daughter, they point out that the powers of attorney and will Mullen executed granting Hobbs a special relationship with Lucy were all revocable at Mullen’s exclusive discretion. They say the fact that those documents were drawn up in the first place demonstrates that there was a clear understanding between the women that Mullen exercised exclusive parental custody and control of Lucy and that Hobbs had no such authority except as Mullen allowed.

They also point out that in a 2002 decision, In Re Bonfield, the Supreme Court of Ohio identified a specific legal process through which same-sex couples who agreed to share custody of a child could execute an enforceable joint custody agreement and file it with their local juvenile court. In determining that Mullen did not contractually relinquish her sole custody of Lucy, they contend, the juvenile court rightly relied on the fact that although the Bonfield decision was handed down years prior to Lucy’s birth, and Hobbs and Mullen discussed a shared custody agreement, Mullen declined to execute such an agreement, plainly indicating that she did not intend to share legal custody of Lucy with Hobbs. While acknowledging that under other court decisions a Bonfield type written custody agreement is not mandatory, they urge the Court to affirm the 1st District’s ruling that the juvenile court relied on competent, credible evidence in determining that there was no contractual relinquishment of sole custody by Mullen, and therefore Hobbs is not entitled to shared custody.

NOTE: A number of amicus curiae (friend of the court) briefs have been submitted in this case by interested parties including the American Civil Liberties Union, National Association of Social Workers and National Center for Lesbian Rights and the Alliance Defense Fund. Those briefs and other filings in the case may be downloaded or printed by following this link to the Court’s online docket http://www.sconet.state.oh.us/Clerk/ecms/searchbycasenumber.asp  Enter the eight-digit case number for this case, 2010-0276, in the boxes provided and click “Search.”

Lisa T. Meeks, 513.639.7000, for Michele Hobbs.

Douglas B. Dougherty, 614.798.1933, for Kelly Mullen.

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Is Appeal of Administrative Agency Action 'Filed' When Timely Notice is Delivered to Agency by Clerk of Courts?

Welsh Development Company et al. v. Warren County Regional Planning Commission, Case nos. 2010-0611 and 2010-0858
12th District Court of Appeals (Warren County)

ISSUE:  When a party appeals an order of a local administrative agency to a common pleas court, if the appellant files a timely written notice of appeal with the clerk of common pleas court, and the  clerk delivers a copy of the notice of appeal to the administrative agency whose ruling is being appealed within the statutory time limit for filing an appeal, has the appellant met the requirement of R.C. 2505.04 that its appeal be timely “filed” with the administrative agency?

BACKGROUND: In order to perfect an appeal of a decision of a local administrative agency, R.C. 2505.04 requires that, within 30 days after the agency’s final order is entered, the appealing party’s notice of appeal must be “filed … with the administrative officer, agency, board, department, tribunal, commission or other instrumentality involved.”

In this case, the Welsh Development Company sought approval by the Warren County Regional Planning Commission of Welsh’s proposal to construct a subdivision of single family homes. The commission denied the developer’s preliminary plan application for the first phase of the project, and later  gave conditional approval to a plan for a proposed second phase, but premised that approval on conditions that Welsh considered unacceptable. 

Welsh exercised its right to appeal both rulings of the planning commission to the Warren County Court of Common Pleas.  It is undisputed by the parties that Welsh filed a proper notice of appeal with the court, that at Welsh’s request the clerk of courts forwarded a copy of the notice of appeal to the planning commission by certified mail, and that the planning commission actually received and time-stamped the appeal notice within the 30-day time limit for Welsh to perfect its appeal.

After the 30-day appeal period had expired, the planning commission filed a motion asking the common pleas court to dismiss Welsh’s appeal on the grounds that Welsh had not “filed” its notice of appeal with the commission within the statutory time limit. The trial court granted the motion to dismiss. Welsh appealed. On review, the 12th District Court of Appeals issued a 2-1 decision affirming the trial court’s action. In its majority opinion, then 12th District cited its own prior decisions and decisions from several other appellate districts holding that the filing of an administrative appeal with a common pleas court and subsequent service by the court of a summons and a copy of the appeal notice on the appellee agency does not meet the statutory requirement of R.C. 2505.04 that an appellant must “file” its notice of appeal with the administrative agency.

Welsh sought and was granted Supreme Court review of the 12th District’s decision.

Attorneys for Welsh argue that the ruling of the 12th District in this case and several of the other court of appeals decisions cited in the majority opinion are in conflict with a 1979 Supreme Court of Ohio decision, Dudukovich v. Lorain Metropolitan Housing Authority. In Dudukovich, they assert, this Court held that an administrative appeal was properly “filed” with the appellee agency pursuant to R.E. 2505.04 if the agency received actual delivery of the appellant’s properly drafted notice of appeal within the statutory time limit, regardless of the method of delivery.

They point out that the method of delivery employed by the appellant in Dudukovich was certified mail, the same method employed by Welsh.  They contend that the only distinction between the facts of Dudukovich and this case is the identity of the party that physically placed the notice in the mail—a factor that they assert has no legal relevance and cannot be a valid basis for failing to apply the legal reasoning of Dudukovich to this case and find that Welsh’s notice of appeal was properly filed.

Attorneys for the planning commission respond that a majority of Ohio courts of appeals that have considered the issue have held that valid “filing” of an administrative appeal pursuant to R.C. 2505.04 requires that the appellant deliver or directly transmit its notice of appeal to the agency whose ruling is being appealed within the specified deadline, and that filing such a notice with a common pleas court and subsequent “service” of a copy of the notice by the court on the appellee agency does not meet that statutory requirement.  Because a clerk of courts is not a party legally authorized to represent or serve as the agent of an appellant in the filing of an appeal, they contend,  a notice of appeal submitted to an administrative agency by a clerk of courts is not validly filed, and therefore the 12th District’s holding to that effect in this case should be affirmed.

Matthew C. Blickensderfer, 513.651.6162, for Welsh Development Co.

Robert J. Surdyk, 937.222.2333, for Warren County Regional Planning Commission.

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Attorney Discipline

Disciplinary Counsel v. Richard Vincent Hoppel, Case no. 2010-1805

The Board of Commissioners on Grievances & Discipline has recommended that the license of East Liverpool attorney Richard V. Hoppel be indefinitely suspended. 

The board’s recommendation was based on findings that Hoppel engaged in a pattern of misconduct in which he neglected personal bankruptcy cases and other legal matters entrusted to him by 14 different clients; caused financial and personal harm to his clients by failing to make required filings and to appear at scheduled court proceedings in their cases; spent fee advances and filing fees he had received from clients without completing the legal services for which those funds were advanced; and repeatedly engaged in conduct involving dishonesty, deceit or misrepresentation in his communications with his clients, courts and others.

While he has admitted virtually all of the misconduct found by the disciplinary board, Hoppel filed objections to the board’s recommended sanction.  He asserts that the board did not give adequate weight to mitigating factors in his case, including the fact that a chemical dependency from which he is now in recovery contributed to his misconduct, and cites a number of prior cases in which the Court has imposed a sanction less severe that an indefinite suspension on attorneys who committed similar disciplinary offenses.  He asks the Court to impose a two-year suspension with the final 18 months of that term stayed as the appropriate penalty for his misconduct.

Attorneys for the Office of Disciplinary Counsel, which prosecuted the charges against Hoppel before the board, have responded to his objections by urging the Court to impose the board-recommended sanction of an indefinite suspension. They contend that the cases cited by Hoppel are not comparable to his because those cases involved attorneys who neglected legal matters and/or caused harm to one or two clients, whereas Hoppel’s misconduct affected more than a dozen separate individuals. They also argue that a review of the board’s report to the Court shows that the board did give mitigating value to Hoppel’s treatment and efforts to sustain recovery from a drug addiction, but counted as a negative his failure to make a good-faith effort to repay the fees he took from clients without performing the legal services  for which those fees were paid.

Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Harry J. DePietro, 330.545.6900, for Richard Vincent Hoppel.

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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.