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Tuesday, April 23, 2013

In the Matter of the Complaint of C. Richard Smith v. Ohio Edison Company, Case no. 2011-1828
Appeal from Order of the Public Utilities Commission

Columbus Bar Association v. Sterling Everard Gill II, Case no. 2012-2069
Franklin County

Michelle D. Schussheim n.k.a. Henneman v. Alan C. Schussheim, Case no. 2012-1235
Twelfth District Court of Appeals (Warren County)

Did Electric Company Violate Law By Turning Off Service To Vacant Property Without Notice to Owner?

Utility Argues Phone Requests to Establish Account Were Not ‘Application’ for Service

In the Matter of the Complaint of C. Richard Smith v. Ohio Edison Company, Case no. 2011-1828
Appeal from Order of the Public Utilities Commission

ISSUE: Did multiple telephone calls made by the new owner of a vacant residential property in which he provided billing information and asked an electric company to transfer the service account at that address to his name establish the owner as a “customer,” and thereby invoke a legal duty by the utility company to give him written notice prior to disconnecting service to the property?

BACKGROUND: C. Richard Smith of Kinsman bought a vacant home in the city of Warren at a sheriff’s sale in 2008.  While inspecting the house, he discovered that the electric service provided by Ohio Edison, which he assumed had been disconnected while the property was vacant, was in fact operational.

Smith called Ohio Edison in September 2008 to request that the electric service account for the Warren property be placed in his name, and that bills for power used since he purchased the property be sent to his home address in Kinsman, where he was already an Ohio Edison customer. Smith advised the customer representative he spoke with that electric service to the building was connected and operational. The Edison employee told Smith that because company records showed that service to the Warren property had been disconnected, a new account could not be established at that location until the house had passed a safety inspection by the Warren city building department. Smith called Ohio Edison again in November 2008, verified that the power company had received the required notice from the city inspector that the property was code compliant, and again requested that the Ohio Edison account for the Warren property be placed in his name and that bills for service at that address be sent to his home in Kinsman.

In January 2009, Ohio Edison billing employees determined that the meter at the Warren address showed recent power usage despite the fact that company records indicated service had been disconnected three years earlier and never restored. Without sending advance notice to Smith’s home in Kinsman, the power company disconnected service to the Warren property and removed the electric meter based on its determination that the meter had been “tampered with” and presented a public safety hazard.

Smith filed a complaint with the Public Utilities Commission of Ohio (PUCO), seeking damages from Ohio Edison for the company’s  failure to comply with a provision of state law that prohibits a utility from cutting off service to a residential customer’s property without providing ten days’ advance notice in writing and an opportunity for the owner to dispute or remedy the stated reason for the threatened disconnection.

After a hearing at which tape recordings of Smith’s September and November 2008 phone conversations with Ohio Edison employees were reviewed, a PUCO hearing officer ruled that Smith had not completed the application process necessary to establish a customer account at the Warren address prior to the disconnection of service to that property, and therefore the electric company had not violated a legal duty to provide him with advance warning of its intent to disconnect service.  The PUCO denied Smith’s motion for a rehearing.  Smith has exercised his right to appeal the PUCO’s ruling to the Supreme Court.

Attorneys for Smith argue that the tape recordings of his calls to Ohio Edison show that: 1) Ohio Edison recognized that Smith already was a residential “customer” when he called the electric company to add the newly acquired Warren property to his existing account. 2) He fully complied with the company’s instructions to have the Warren property inspected and have the city notify Ohio Edison that it was code compliant. 3) The employees Smith spoke with during his November call confirmed that they had  received the inspection report, which authorized creation of a new customer account at the Warren property, that they had accurate records of Smith’s home address and other contact information in Kinsman, and that Smith was requesting for a second time that service to the Warren address be established in his name and billed to his Kinsman address.

They assert that the recordings presented at the hearing showed that Ohio Edison never informed Smith that it could not or would not establish service in his name at the Warren property unless he completed some additional “application” process, and that Smith concluded the November call with the understanding that he had done everything necessary to have service to the Warren property placed in his name and billed to his home address. They contend that if there was any error that prevented the opening of the requested account, it was an error on the part of Ohio Edison that should not absolve the company of its statutory duty to notify Smith of a threatened disconnection of service.

Attorneys for Ohio Edison respond that the PUCO-approved rate and service tariff that governs its duties to Smith and other Warren-area customers requires that a customer wishing to open a new account at a previously-disconnected property must complete a new-service application that Smith did not complete.  They assert that the phone personnel who responded to his November 2008 told Smith to stay on the line while they transferred him to the new account office, but he failed to do so and thus had never established a customer account at the Warren address prior to the company’s January 2009 disconnection of service. Because no new account had been established at the Warren address prior to their discovery that service had been illegally restored, they say, the company complied with its advance-notice requirements by placing a “dear occupant” warning letter in the mailbox at the unoccupied Warren property prior to disconnecting service.

Representing C. Richard Smith: Bruce M. Boyles, 330.965.1093

Representing Ohio Edison Company: Allison E. Haedt, 614.469.3939

Representing Public Utilities Commission of Ohio: Steven L. Beeler, 614.466.4396

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Attorney Discipline

Columbus Bar Association v. Sterling Everard Gill II, Case no. 2012-2069
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of Columbus attorney Sterling E. Gill III be indefinitely suspended for more than 40 admitted violations of state attorney discipline rules.

The violations include multiple cases in which Gill failed to segregate client funds in his possession from his own funds in a dedicated trust account, failed to properly inform clients about the scope of his representation and the basis on which they would be billed, failed to notify clients that he did not carry malpractice insurance, and failed to provide clients with diligent representation, keep them adequately informed about the status of their cases, and obtain their informed consent before taking action in their cases.

In its report and recommendations to the court, the disciplinary board noted that Gill acknowledges that he is an alcoholic who first entered substance abuse treatment in 1986, following which he maintained sobriety for 14 years. Gill subsequently suffered repeated relapses until  he was placed on court-monitored probation following his arrest on an OMVI charge in 2011. The board reported that Gill has maintained sobriety since November 2011, is currently in compliance with a recovery contract with the Ohio Lawyers Assistance Program (OLAP), and has also recently been diagnosed with and begun treatment for bipolar disorder.

Gill has filed objections to the board’s recommended sanction, and urges the court to instead adopt the penalty recommended by the three-member hearing panel in his case, which was a two-year license suspension with the final 18 months stayed on stringent conditions including proof of continued sobriety, a positive prognosis and certification of competency by the psychiatrist treating his bipolar condition, and close monitoring of his law practice during and after the stayed portion of his suspension.

Gill points out that the Columbus Bar Association, which prosecuted the complaint against him before the disciplinary board, has stipulated that while he committed multiple rule violations involving seven different clients: 1) none of those clients was shown to have suffered any financial loss or other harm, 2) none of the clients is entitled to a refund of the fees they paid for Gill’s professional services, and 3) Gill did not personally benefit from his misconduct.  He also notes that there was no finding that he engaged in illegal acts or conduct involving deceit or misrepresentation, and asks the court to follow other cases in which it has imposed partially or fully stayed license suspensions as the appropriate penalty for attorneys found guilty of multiple rule violations related to substance abuse when the attorney demonstrated  a sustained period of current sobriety and strong commitment to recovery supported by testimony by medical professionals and OLAP.

Attorneys for the Columbus Bar Association respond to Gill’s objections by noting the aggravating factor that he was previously suspended from practice in 1988 for misappropriating client funds in part to support a substance abuse habit. They also cite his recurrent history of responding positively to treatment in the short term, but then relapsing with a corresponding decline in the quality and reliability of his professional service to clients.

They agree with the board’s finding that a short period of actual suspension is not sufficient to establish Gill’s long-term readiness to return to the competent and ethical practice of law, but urge the court to impose a somewhat less severe sanction than indefinite suspension by suspending Gill for a definite period of two years, with reinstatement at the end of that period conditioned on all of the precautions and requirements recommended by the board.

Representing Sterling E. Gill III: Kenneth R. Donchatz, 614.255.4257

Representing the Columbus Bar Association: James L. Ervin Jr., 614.223.9300

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Does Trial Court Have Constitutional Authority to Seal Record of Dismissed Civil Protection Order?

Where Statute Permits Sealing of Dismissed Criminal Charge, But Is Silent on Civil Orders

Michelle D. Schussheim n.k.a. Henneman v. Alan C. Schussheim, Case no. 2012-1235
Twelfth District Court of Appeals (Warren County)

ISSUE:  In the absence of explicit statutory authority to do so, do Ohio trial courts have implicit constitutional authority pursuant to the Supreme Court of Ohio’s decision in Pepper Pike v. Doe  to seal the record of a domestic violence civil protection order that was dismissed or found to be unsubstantiated?

BACKGROUND: One week before filing for divorce, Michelle Schussheim (now known as Michelle Henneman) applied for and was granted a domestic violence civil protection order barring contact with her by her husband, Alan Schussheim. The order was requested based on an argument several weeks earlier that did not involve injury or result in law enforcement being contacted, and did not result in the filing of a criminal complaint. The order was issued in an ex parte proceeding, based exclusively on information submitted to the court by Michelle with no opportunity for her husband to dispute or respond to that information. 

Thirty days after it was issued, the protection order was dismissed by agreement of the parties. The Schussheims subsequently resolved their divorce by agreement, including a shared parenting plan.

After the divorce was final, Alan Schussheim filed a petition in the Warren County Court of Common Pleas seeking expungement or sealing of the record of the dismissed domestic violence protection order. Michelle Schussman submitted an affidavit supporting her ex-husband’s petition and testified at a magistrate’s hearing stating her wishes that the matter be sealed or expunged. 

A magistrate denied the motion to seal on the basis that there is no statutory authority for Ohio courts to seal or expunge the record of a civil protection order. Schussheim filed objections to the magistrate’s opinion. The objections were overruled by the common pleas court judge, and the court entered a judgment denying the petition to seal.

Schussheim appealed the trial court’s judgment to the Twelfth District Court of Appeals, pointing out that the Supreme Court of Ohio’s 1981 decision in Pepper Pike v. Doe recognized a constitution-based right of courts to expunge or seal the records of dismissed criminal charges despite the absence of an explicit statutory provision authorizing them to do so. He argued that the legal analysis of the Pepper Pike decision applied equally to the dismissed civil protection order at issue in this case. In a 2-1 decision, the Twelfth District refused to consider the constitutional arguments advanced by Schussheim and held that, in the absence of an explicit statutory authorization to do so, it would be an impermissible act of “judicial activism” to expand the range of matters that the legislature has authorized trial courts to seal from criminal matters to include civil protection orders.

Schussheim sought and was granted Supreme Court review of the Twelfth District’s decision.

Attorneys for Schussheim assert that the lower courts in this case failed to follow binding precedent by refusing to acknowledge the constitutional power of expungement recognized by the Supreme Court in Pepper Pike, and by failing to apply the balancing test set forth in Pepper Pike by comparing the state’s interest in preserving the record of Schussheim’s dismissed protection order against his privacy interest in not having future background checks turn up court records that inaccurately portray him as a person who presumably engaged in some form of domestic violence.

They argue that Schussheim’s petition for expungement of his protection order did not ask the trial court to engage in “judicial activism” by overruling public policy set by the legislature, but instead asked the court to follow the legislature’s logic and intent when it enacted statutes that allow courts to seal records of dismissed criminal charges but neglected to address dismissed civil orders that can have the same damaging effects on an accused’s reputation. They contend that it is especially appropriate to apply the Pepper Pike balancing test in dealing with  ex parte orders like the one in this case, because such orders are issued with virtually no due process protections and yet have the potential to cause lifetime harm to the reputation of an accused person despite the fact that the issuing court may have dismissed the order as unnecessary or based on inaccurate information within a few days or weeks after it was issued.

Because no appellee brief was filed in the case, only attorneys for Alan Schussheim will present argument before the court.

Representing Alan Schussheim: Jerry H. Shade, 513.370.3848

Michelle Schussheim, n.k.a. Henneman: pro se, no contact information provided

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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.