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Public Utilities Committee Page 3 of 5

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C. The report attempts to bypass the law of mandamus.
The report, having failed to correctly describe the statutory prerequisites for the transfer of the record of commission cases, proceeds to misconstrue the law of mandamus. First, the report incorrectly presumes that, by its rule, the Court provided the mandamus process as the remedy for disputes over transmittal of the record. To the contrary, the Ohio Constitution, ORC Chapter 2731 and case law provide that mandamus is the remedy. Mandamus is the writ that commands “the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” ORC §2731.01. The Court’s rule actually clarifies for the unwary appellant that a complaint in mandamus is the proper procedure to follow.

Second, since its inception and for several months prior to the committee meeting where the report was adopted, the draft proposed amendment provided that the Supreme Court would “automatically” issue a writ of mandamus. The idea of an automatic mandamus order is not supported by any legal authority and, in fact, conflicts with the Court’s original jurisdiction for mandamus actions created by the Ohio Constitution4 and elaborated in the Ohio Revised Code. The concept of an automatic writ also conflicts with the historic nature of mandamus. It is a discretionary writ that is a prerogative of the Court. In apparent recognition of this, the proposed amendment was changed at the last minute to reflect that a “show cause order” would instead be issued by the Court. This is an automatic mandamus under another name: an alteration that effectively hides this threat to the Court’s discretion. A show cause order is simply one of the remedies available to the Court when it has found a complaint for mandamus to be meritorious. ORC §2731.04. Despite this superficial change, the proposed amendment contains the same basic flaw as the version that was used throughout the committee’s discussion of the proposed amendment.

When the commission retains its record, a new dispute has arisen between the commission and the would-be appellant. This dispute has entirely new issues and is divorced from whatever the issue might be in the appeal itself. The issues revolve around ORC §§4903.11, 4903.13 and 4903.21. The would-be appellant may believe that the obligation for the commission to transfer the record will have attached while the commission may disagree. In this situation, indeed in any situation in which one believes one is entitled to action by the government where the government has not performed, the remedy is mandamus. This is the purpose of mandamus. ORC §2731.01 provides explicitly, “Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Mandamus actions against the commission must be initiated in the Supreme Court. ORC §4903.12. Contrary to the report, mandamus is not a deficiency; consistent with the Ohio Constitution and applicable statutes, a mandamus action is the means for resolution if this type of dispute arises. It is the way the framers of the Ohio Constitution and the General Assembly have provided to address precisely the problem that the would-be appellant faces. If the would-be appellant believes that the obligation to transfer the record exists, let the appellant show it. If the commission has a defense, let it raise that defense. The Court will decide. That is the purpose of mandamus.

While the report might leave the impression that mandamus actions are commonly successful for the would-be appellant, this is incorrect. Although these cases are rare, because normally the appellant follows the statutory procedure and the record is transferred, when there is a dispute, the commission has been upheld. There has never been a successful mandamus against the commission under the current version of S. Ct. Prac. R. V, Section 4. When the commission has retained the record it has been correct in doing so. It has followed the law.

Mandamus is the appropriate statutory remedy to try to obtain an order requiring the transfer of the record in an appeal of a commission order. The proposed amendment would bypass the express statutory mechanism created to address precisely the dispute at issue in this situation. Again, this amendment would circumvent existing constitutional and statutory processes and should, therefore, be rejected.

D. The report ignores history.
The Supreme Court has long had a rule that required dismissal of appeals of commission cases where the record has not been transferred and no writ of mandamus has been sought to require that transfer. The first appearance of such a rule was in 1966. At that time the commission was given 20 days to transfer the record and a would-be appellant had to seek a writ of mandamus within that same 20 days if the record was not transferred. This 20-day period was increased to 30 days for both the record transfer and the application for the writ in 1971.

That a would-be appellant had to seek a writ by no later than the last day that the commission had to file the record itself did create a practical problem. A would-be appellant would sometimes have to wait at the Supreme Court, mandamus complaint in hand, on that last day to see if the record was filed. This was a practical problem. The Court recognized this real problem in Consolidated Rail Corp. v. Pub. Util. Comm’n.5 In that case an appellant failed to wait at the Courthouse door on day 30, rather it filed the next day, day 31. This situation caused the Court to reassess its rule and in 1994 the Supreme Court rule was changed to its current form wherein an appellant is given three days after the last day the record may be filed within which to initiate the mandamus action.6 Thus, the practical problem under the Court’s rule was eliminated. The staff commentary following the amendment to Section 4 indicated:

Section 4 contains a substantive change involving appeals from the Public Utilities Commission. Pursuant to ORC §4903.21, the commission must “forthwith” transmit its transcript to the Supreme Court on service or waiver of service of the notice of appeal. The former rules defined “forthwith” to mean a period of 30 days. They further provided that, if at the end of 30 days the transcript was not transmitted and a mandamus action was not filed to compel its transmission, the appeal would be dismissed.

The 30-day deadline for filing a mandamus action created a dilemma for some appellants. Occasionally the Commission did not file its transcript until the end of the 30th day. Not knowing whether the transcript would actually be filed on time, the appellant was required to decide by the same deadline whether to file a mandamus action or risk having the appeal dismissed. To avoid this problem, this rule allows the appellant until the 33rd day to file a mandamus action, if one becomes necessary.

Hence, when an actual problem arose, the Court addressed that problem. Here no problem has been identified. The rule is plain and easily available to all. It has survived for years without causing the Court any difficulty. While one might have argued that the pre-1994 rule was a trap for the unwary, the current rule is perfectly clear to anyone who reads it. There is no track record of the commission misconstruing or misapplying its obligations; to the contrary, the commission’s actions have been upheld whenever challenged. There is no reason to change the current rule. The proposed amendment should 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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