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Public Utilities Committee Page 2 of 5

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Opposing report of the Public Utilities Committee.

I. The report and the proposed amendment from the Public Utilities Committee to the OSBA Council of Delegates are seriously flawed and should not be endorsed.
The report is based on several key misapprehensions and fails to address several major problems resulting from the proposed amendment. First, it fails to identify any current problem to remedy. Second, the report misrepresents statutory law as creating some unconditional obligation on the part of the commission. Third, it attempts to bypass the law governing mandamus. Fourth, it ignores the long history of this issue. Fifth, the proposed amendment creates an inefficient process that does not promote the interests of justice.

A. There is no problem with the current Supreme Court rule.
There is already a direct, nondiscretionary appeal to the Supreme Court from commission decisions. Many of these appeals are successfully initiated each year. The procedures for initiating this direct appeal are clear and have been in place for generations. Without any justification, the report advocates a radical departure from decades of experience. The report does not identify a problem with the current state of affairs. The statutory prerequisites for the transfer of the record from the commission to the Court are clear and essentially unchanged for decades. Whenever there has been litigation under the current Supreme Court rule, the commission has successfully defended its decision not to relinquish its record. The report identifies no instance of unreasonable conduct and no instance where a wrong has been done to anyone. There is no injustice to be remedied, no problem to be fixed. In the absence of a problem, it is unwise to take an action, and therefore, the proposed amendment should be rejected.

B. There is no unconditional obligation to transfer the record.
The report asserts the existence of an unconditional obligation on the part of the commission to transfer the record based on ORC §4903.21.1 This argument has been presented to the Court in two recent mandamus cases against the commission, and the Court dismissed those mandamus complaints. State ex rel. Indus. Energy Users-Ohio v. Pub. Util. Comm., 91 Ohio St.3d 1506, 746 N.E.2d 610 (2001); Indus. Energy Users-Ohio v. Pub. Util. Comm., 91 Ohio St.3d 1458, 743 N.E.2d 399 (2001). The proposed amendment is premised on a misunderstanding of the current state of the law.

The commission’s obligation to transfer the record arises from ORC §4903.21, which provides “[u]pon 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. . . .” Thus, before any obligation could attach, there must have been (1) service or waiver of a (2) notice of appeal as (3) provided under ORC §4903.13. As referenced, the statutory requirements for service and content of the notice of appeal are provided under ORC §4903.13, which provides, in pertinent part:

The proceeding to obtain such reversal, vacation, or modification shall be by notice of appeal, filed with the public utilities commission by any party to the proceeding before it, against the commission, setting forth the order appealed from and the errors complained of. The notice of appeal shall be served, unless waived, upon the chairman of the commission or, in the event of his absence, upon any public utilities commissioner, or by leaving a copy at the office of the commission at Columbus.

The notice of appeal must be additionally (4) filed with the public utilities commission (5) by a party to the proceeding at the commission, (6) identifying the order appealed and (7) the errors complained of.2 ORC §4903.11 defines when it is proper to file a notice of appeal and states:

No proceeding to reverse, vacate, or modify a final order of the public utilities commission is commenced unless the notice of appeal is filed within sixty days after the date of denial of the application for rehearing by operation of law or of the entry upon the journal of the commission of the order denying an application for rehearing or, if a rehearing is had, of the order made after such rehearing . . . .

To commence an appeal, these jurisdictional conditions must be satisfied. In addition to the seven requirements discussed above, the notice must be filed (8) within 60 days of either the denial of rehearing3 or where rehearing was granted, the order made after that rehearing.

Therefore, contrary to the report, the commission’s obligation to transfer the record of its proceedings is actually dependent on the occurrence of a number of steps. It cannot reasonably be argued that the duty to file the appellate record is triggered prior to the statutorily defined time that the appeal is commenced. These requirements are created by statute and can only be eliminated by statutory amendment.

The report is based on the single false premise that there exists a statutory obligation to transfer the transcript with no exceptions. The report fails to explain when the duty to file the record is triggered. This leads to absurd results. For example, under this interpretation, the commission must transfer the transcript regardless of whether or when the notice is ever served or filed with the commission. In other words, S. Ct. Prac. R. II, Section 3(B)(1), ORC §§4903.11, 4903.13 and 4903.21 are meaningless and, even if the commission does not know of the existence of an appeal because appellant failed to notify the commission, under ORC §4903.21, the commission must transfer the transcript — no exceptions. The report ignores the obvious statutory preconditions necessary to perfect an appeal and trigger the commission’s duty to file the transcript with the Court. Once the underlying premise of the report is exposed as false, the radical proposed change to the Supreme Court rule becomes unnecessary.

Misstating the law is particularly troubling because it may leave the impression that the commission is doing something improper or failing to do its duty when it retains its records. The commission is supposed to keep its records. It is only when the statutory prerequisites have been met, as discussed above, that it is to transfer the record.

The report might leave readers with the impression that when appeals are sought the commission retains the record as a matter of course. Nothing could be further from the truth. The record is transferred as a matter of routine, not because the commission wishes to be preferential to appellants but rather because they have properly met the statutory prerequisites. A large number of appeals are successfully initiated because appellants normally follow the statutory procedure.

The proposed amendment would rewrite the statutory process. This amendment would purport to eliminate the explicit conditions designed by the General Assembly to commence an appeal and trigger the commission’s obligation to transfer the record. The Supreme Court should not alter statutes by rule and the proposed amendment should, therefore, be rejected.

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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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