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Public Utilities Committee Page 4 of 5

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E. The proposed amendment is inefficient and does not promote the interests of justice.
Under the current rule, the potential dismissal strikes a correct balance of interests and provides an incentive for the appellants to actively and to properly pursue appeals. The rule requires dismissal of an appeal where no record is filed and no mandamus action is sought. For example, if an appellant files an appeal after the 60-day statutory deadline and the record is not filed, the rule requires dismissal, unless the appellant requests a writ of mandamus.

When the Court created the potential dismissal in 1966, it did so for a very good reason. Like it or not, appellants have the burden of proof. The standard of review is:

A final order made by the public utilities commission shall be reversed, vacated, or modified by the supreme court on appeal, if, upon consideration of the record, such court is of the opinion that such order was unlawful or unreasonable.

ORC §4903.13. The Court must compare the commission’s action with the record. Where the appellant has not presented the Court with a case, which includes the record, the appellant has failed to provide the Court with the fundamental basis on which the Court can perform its duty. In these circumstances the Court has no choice but to dismiss as it cannot find for the appellant. Giving the appellant a period of time to remedy this problem is appropriate and the current rule does so, specifically three days. But appellant, again like it or not, bears the burden of proof to establish that the commission is incorrect in retaining the record. It is the appellant who wishes to change the status quo and therefore must make an affirmative showing in the mandamus action that the statutory requirements to trigger the duty to transfer the record have occurred. The proposed amendment is an attempt to eliminate this burden by evading the statutory requirements for appeal and mandamus. This is not appropriate.

As a practical matter, the novel and untested “show cause order” creates an inefficient process that conflicts with the Supreme Court’s strong interest in judicial economy. As a related matter, the proposed amendment contemplates an inefficient, bifurcated motion for dismissal process. The proposed amendment requires that a motion to dismiss be filed within 30 days to suspend the filing of the record, but that motion is limited to showing a “failure to comply with the requirements of Section 4903.13.” Because there are many reasons for dismissal besides failure to comply with ORC §4903.13, those other matters would need to be raised in a separate motion to dismiss. Even if the proposed amendment did not limit the 30-day motion to dismiss to compliance with ORC §4903.13, it is axiomatic that subject matter jurisdiction can be raised at any time and it was never contemplated by the committee that subsequent motions to dismiss would be precluded in any way (they just would not prevent filing of the record). The problem is that the proposed amendment institutes a novel, untested process where multiple motions for dismissal would be filed and the Court would have to consider those issues in a piecemeal fashion. If that were not inefficient enough, the same jurisdictional issues could be addressed yet again in connection with the “show cause order” described in the proposed amendment.

This new process would create unnecessary work for the Court and delay the normal progression of an appeal. Appellants would be able to file premature or defective appeals without the normal burden of demonstrating that they are challenging a final order of the commission in a timely manner. That burden would be shifted to the Commission in every case to affirmatively establish that an appeal is premature or procedurally flawed. Commission cases are unlike the majority of the cases presented to the Court. The Court does not have the discretion to decline to hear issues raised by appellants from Commission orders. The amendment would require the Court to hear defective cases. In addition to being inefficient from the Court’s perspective, the proposed amendment is likely to cause more appeals to be filed before the Court.

I. Conclusion.
It is not the Court’s obligation to provide a case that can be reviewed. It is not the obligation of the commission to provide a case that can be reviewed. It is the obligation of the appellant to present the Court with a case that the Court can consider. The existing rules for doing so are clear and are followed successfully by many appellants every year and have been for many years. No problem has been identified; no abuse exists. There is no reason to depart from the current rule.

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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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