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To the Council of Delegates:

The Public Utilities Committee respectfully requests your favorable consideration of the following proposal that would amend Supreme Court Rule V(4) pertaining to the perfection of an appeal from the Public Utilities Commission of Ohio to the Supreme Court of Ohio.

A report in opposition to the proposal is included.

Respectfully submitted,
Thomas E. Lodge, Columbus
Chair

At its meeting convened Jan. 11, 2002, in Columbus, the OSBA Public Utilities Committee adopted the following report for consideration of the Council of Delegates. The report recommends an amendment to the Rule of Practice of the Supreme Court of Ohio.

The text of the committee’s report is as follows:

PUCO obligation to file transcript at Supreme Court.

The Supreme Court Rule for implementing the statutory obligation of the Public Utilities Commission to certify the commission record of an appeal to the Supreme Court needs to be amended. The current rule requires the appellant to seek enforcement of the commission’s statutory obligation by initiating a mandamus action. If the appellant does not seek mandamus within three days, the appeal is dismissed. We believe that the administration of justice would be improved by amending Supreme Court Rule V(4).

The statutory procedure is as follows: On appeal from a final order of the Public Utilities Commission, the commission is required by ORC §4903.21 “forthwith” to transmit to the Supreme Court its transcript:

Upon service or waiver of the notice of appeal as provided in section 4903.13 of the Revised Code, the public utilities commission shall forthwith transmit to the clerk of the supreme court, a transcript of the journal entries, the original papers or transcripts thereof, and a certified transcript of all evidence adduced upon the hearing before the commission in the proceeding complained of, which documents shall be filed in said court.

The statute provides no exception to this mandate and no remedy for its violation. Supreme Court Rule V(4) tries to fill one of these gaps by defining “forthwith” as 30 days and by giving the appellant three days to seek mandamus if the commission does not file its transcript within 30 days. If neither record nor mandamus has been filed within 33 days, the appeal must be dismissed:

The word “forthwith” as used in section 4903.21 of the Revised Code, providing that upon service or waiver of service of the notice of appeal the Public Utilities Commission shall forthwith transmit to the Clerk of the Supreme Court a complete transcript of the proceeding, shall mean a period of 30 days. If at the expiration of 30 days such transcript has not been filed, the appellant shall have an additional three days in which to request a writ of mandamus to compel the Commission to file such transcript. If, at the expiration of 33 days, a transcript has not been filed or a writ of mandamus requested to compel the Commission to file such transcript, the appeal shall be dismissed.

The rule has the effect of adding the risk of an additional obligation of filing a mandamus action for perfecting an appeal from the Public Utilities Commission to the Supreme Court. This additional obligation is not provided in the General Assembly’s statutory framework at ORC §4903.13. We believe it would improve the administration of justice to relieve appellants of this additional, nonstatutory obligation to file within three days a mandamus action to enforce the statutory obligation of the commission.

The commission can test the adequacy of an appeal by timely filing a motion to dismiss. However, even if the commission moves to dismiss, Supreme Court Rule V(4) does not suspend the commission’s statutory obligation to file its transcript; and if the commission has not filed its transcript within 30 days, the appellant still must prosecute a mandamus action within the next three days.

These deficiencies can be corrected by amending Supreme Court Rule V(4). The use of a show cause order instead of a mandamus action by the appellant achieves consistency with the statute’s imposition of the transcript obligation on the commission. By allowing suspension of the commission’s obligation whenever the commission has timely filed for dismissal of the appeal under ORC §4903.13, the amendment would avoid unnecessary costs and risks for both the commission and the appellant. A proposed amendment is highlighted below:

The word “forthwith” as used in section 4903.21 of the Revised Code, providing that upon service or waiver of service of the notice of appeal the Public Utilities Commission shall forthwith transmit to the clerk of the Supreme Court a complete transcript of the proceeding, shall mean a period of 30 days. IF THE COMMISSION FILES WITHIN SUCH 30 DAYS A MOTION TO DISMISS THE APPEAL FOR FAILURE TO COMPLY WITH THE REQUIREMENTS OF SECTION 4903.13 OF THE REVISED CODE, THE TIME FOR FILING SUCH TRANSCRIPT SHALL BE SUSPENDED, UNLESS OTHERWISE DIRECTED BY THE CLERK OF THE SUPREME COURT. IF THE MOTION TO DISMISS IS DENIED AND THE COMMISSION HAS NOT PREVIOUSLY FILED A COMPLETE TRANSCRIPT OF THE PROCEEDING, THE COMMISSION SHALL HAVE AN ADDITIONAL 30 DAYS FOLLOWING THE DATE OF THE SUPREME COURT’S ORDER OF DENIAL TO FILE SUCH TRANSCRIPT. If at the expiration of 30 days THE TIME FOR FILING, such transcript has not been filed, the appellant SUPREME COURT shall have an additional three days in which to request a writ of mandamus to compel ISSUE AN ORDER FOR THE COMMISSION TO SHOW CAUSE WITHIN 15 DAYS WHY the commission to file HAS NOT FILED such transcript. If, at the expiration of 33 days, a transcript has not been filed or a writ of mandamus requested to compel the Commission to file such transcript, the appeal shall be dismissed.

The committee hereby seeks endorsement of the Council of Delegates to the foregoing recommendation, together with action by the Council to recommend the described amendment to the Supreme Court of Ohio.

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Endnotes
1 Relevant statutes and rules are included in the attached appendix.
2 The particulars of service are given in this section but service is not a new requirement having already been imposed under ORC §4903.21.
3 Denial can be by operation of law or commission order.
4 Art. IV, §2, of the Ohio Constitution provides that mandamus actions are within the original jurisdiction of the Court. The Supreme Court has held that no statute or rule may abridge its original jurisdiction. State ex rel. Wilke v. Hamilton Cty. Bd. of Comm’rs, 90 Ohio St.3d 55, 59-60, 734 N.E.2d 811, 817 (2000).
5 40 Ohio St.3d 252 (1988).
6 Appellants have 60 days to perfect an appeal and have control over when they file a notice of appeal. Thus, they can ensure they have the additional three business days to request a mandamus order, if one becomes necessary.

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