Tuesday, April 27, 2021
The Cleveland Electric Illuminating Company v. City of Cleveland, et al., Case no. 2020-0277
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio ex rel., Jamie Suwalski v. Judge Robert W. Peeler, Case no. 2020-0755
Twelfth District Court of Appeals (Warren County)
State of Ohio v. Brooke E. Jones, Case nos. 2020-0485 and 2020-0826
Seventh District Court of Appeals (Harrison County)
Is It Unconstitutional for Cleveland Power Company to Sell Electricity Outside City?
Is It Unconstitutional for Cleveland Power Company to Sell Electricity Outside City?
The Cleveland Electric Illuminating Company, v. City of Cleveland et al., Case No. 2020-0277
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
Appeal –
- Does a municipal utility violate Ohio Constitution, Article XVIII, Sections 4 and 6 if it sells electricity outside its municipal boundaries from an artificial surplus, including any avoidable excess electricity that didn’t supply the city or its inhabitants?
- Does a municipal utility violate Article XVIII, Sections 4 and 6 if it can buy only the amount of electricity needed for the city, but instead buys excess electricity and sells it outside of its municipal boundaries?
- Does a municipal utility violate Article XVIII, Sections 4 and 6 if it buys any amount of electricity for a purpose other than supplying that electricity to itself or its inhabitants, then sells the resulting excess to customers outside city limits?
Cross-Appeal –
- Does a municipal corporation have the right to sell electricity to customers outside its boundaries as long as the amount sold doesn’t exceed 50% of the total electricity consumed within the municipal corporation’s limits, and as long as the municipal corporation doesn’t purchase electricity solely for the purpose of reselling the entire amount af that electricity outside of its boundaries?
BACKGROUND:
Consumers in Cleveland can choose either the municipally owned Cleveland Public Power or the Cleveland Electric Illuminating Company for their electricity.
Cleveland Public Power is the city’s electric company. Established in 1906, it sold electricity generated from its own power plants to customers for decades. In 1977, the city closed most of its generating plants and began purchasing electricity through other municipalities and suppliers. Cleveland Public today serves more than 73,000 customers by purchasing electricity primarily through a membership in American Municipal Power, a nonprofit group of municipal utilities in Ohio and eight other states.
Cleveland Electric Illuminating Company (CEI) is a FirstEnergy utility that distributes electric power to customers in northeast Ohio, including Cleveland. The company is regulated by the Public Utilities Commission of Ohio.
Cleveland and Brooklyn Deal Leads to Lawsuit
The city council of Brooklyn, Ohio, passed an ordinance in April 2017 to allow Cleveland Public to construct electric distribution facilities in Brooklyn to provide electricity to customers there. Once approved, Cleveland Public starting constructing electric distribution lines through Brooklyn to connect to Cleveland Public’s power lines in Cleveland.
In May 2018, in a lawsuit in Cuyahoga County Common Pleas Court, CEI alleged trespass, negligence, and public and private nuisance related to Cleveland Public’s construction of power lines in Brooklyn. The parties settled, but CEI filed an amended complaint in July contending that Cleveland Public was purchasing an “artificial surplus” of electricity from a Brooklyn solar project and other sources to resell it outside Cleveland’s municipal territory to Brooklyn and other customers. CEI also asserted that Cleveland Public had interfered with its existing, longtime electricity contracts with Brooklyn and had engaged in unfair competition.
CEI appealed to the Ohio Supreme Court, which accepted the case. Cleveland Public Power and the city of Cleveland, along with two parties that had intervened in the lower courts – Cuyahoga County and the city of Brooklyn, filed a joint cross-appeal. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Cleveland Generating Artificial Electricity Surpluses to Resell, CEI Contends
CEI argues the Ohio Constitution states that only surplus electricity can be sold to customers outside of a municipality and that surplus must be a portion of what Cleveland acquires for in-city use. The electricity also must be purchased initially for no other purpose than to supply the municipality or its inhabitants, CEI maintains.
CEI states that, before 2000, municipalities had to invest in building plants with enough surplus electricity capacity to serve the area’s future electricity needs. Today, though, most electricity for Ohio cities is no longer self-generated locally but instead is generated by others and transmitted to a national grid, the CEI brief notes. Electric distribution utilities then acquire electricity from the grid to supply to customers. CEI asserts that municipal utilities have access to the transmission grid and wholesale markets, making it easy to buy and sell electricity in real time and precisely matching supply to demand. Utilities can purchase the exact amount of electricity their customers are using, eliminating the inefficiencies of the old system, CEI’s brief contends.
Its brief argues that Cleveland doesn’t have a true surplus of electricity. Although Cleveland could have acquired only the electricity it needed to serve its Cleveland customers, it instead sold about 3.3% of its purchased electricity outside the city, the brief notes. CEI argues Cleveland is creating artificial surpluses, and doing so in violation of the state constitution and the Court’s Toledo Edison ruling.
City Can Sell Up to 50% of Purchased Electricity Outside Boundaries, Cleveland Maintains
Cleveland notes that its power company serves about one-third of the customers within its boundaries, while CEI serves two-thirds of the city. CEI has claimed that allowing the city to exercise its right under the state constitution to sell electricity to customers outside the city, subject to the constitution’s 50% limit, would result in unfair competition. Cleveland’s brief describes that claim as “ironic,” maintaining that FirstEnergy and CEI have many financial, political, and market advantages and pointing to the “current debacle” over House Bill 6. The city asserts that H.B. 6 was intended to bail out a FirstEnergy entity and is the center of a federal criminal investigation alleging a $60 million bribery scheme.
“CEI wants to be able to compete freely with [Cleveland Public Power] within the municipal limits of the City and sees nothing wrong with that competition. Yet, CEI does not want any competition at all outside of the municipal limits,” Cleveland’s brief states.
The city contends that it is authorized under Ohio law to sell surplus electricity to customers outside its boundaries, with two limitations – the surplus may not exceed 50% of the total product or service sold within the municipality, and the municipal power company may not purchase additional electricity with the purpose of reselling all of it outside of its municipal boundaries. The sale of 3.3% of its electricity purchase in a year is nowhere near 50%, the city maintains. And when a municipality purchases electricity at least in part for use within its boundaries, Toledo Edison doesn’t apply because such a purchase isn’t made solely to resell all of the electricity outside the municipality, the city argues.
Cleveland maintains that CEI misrepresents the electricity market as one where supply and demand can be perfectly matched. The city notes that it must maintain enough capacity to meet peak loads plus a reserve margin of 13% to 15%. In addition, the city states, long-term energy contracts aren’t “a thing of the past,” as CEI claims. The city explains that it makes spot, medium-term, and long-term purchases of electricity to mitigate long-term risk by acquiring supply not subject to market variations and to meet renewable energy goals. Cleveland concludes it cannot precisely match supply and demand for electricity in real time and its surpluses can be sold outside the city limits within the percentage established by the state constitution.
Friend-of-the-Court Briefs Submitted on Both Sides
Amicus curiae briefs supporting CEI’s position have been submitted by Buckeye Power and Ohio Rural Electric Cooperatives and Dayton Power and Light, Duke Energy Ohio, and Ohio Power Company (AEP Ohio).
American Municipal Power and the Ohio Municipal Electric Association and the Ohio Municipal League have filed amicus briefs in support of Cleveland.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cleveland Electric Illuminating Company: Gregory Phillips, 216.363.4472
Representing the City of Cleveland and Cleveland Public Power: Kimberly Bojko, 614.365.4124
Representing Cuyahoga County: Drew Campbell, 614.227.2319
Representing the City of Brooklyn: Kevin Butler, 216.621.9610
How Should Domestic-Violence Survivor Challenge Removal of Ex’s Firearms Restriction?
State of Ohio ex rel. Jamie Suwalski v. Judge Robert W. Peeler, Case No. 2020-0755Twelfth District Court of Appeals (Warren County)
ISSUES:
- Does Article I, Section 10a(B) of the Ohio Constitution require a victim to seek specific relief in a trial court and assert a viable claim before petitioning an appellate court for an extraordinary writ?
- Does res judicata prevent a victim from obtaining a writ of prohibition when the victim appears at a trial court hearing but doesn’t formally intervene in the matter and the court’s judgment becomes final?
- Is filing a writ of prohibition allowed when a victim has an adequate legal remedy through intervening in a trial proceeding?
BACKGROUND:
Roy Ewing was arrested in January 2017. His wife, Jamie Suwalski, said that Ewing attacked her, grabbed her by the neck several times, and pulled out clumps of her hair. He was charged with a misdemeanor offense of domestic violence, and Suwalski obtained a domestic violence civil protection order. A few days later, Ewing was charged with violating the protection order.
In Warren County Municipal Court, a jury convicted Ewing in April 2017 of both charges – domestic violence and violation of a protection order. The municipal court sentenced him to 20 days in jail, with 10 days suspended; one year of non-reporting probation; and a fine. Ewing completed his sentence. The couple divorced.
Under federal law, 18 U.S.C. §922(g)(9), it is unlawful for a person convicted of a misdemeanor crime of domestic violence to ship, transport, receive, or possess firearms or ammunition. Following his conviction, Ewing was restricted from having firearms under this federal firearms disability.
Offender Applies to Restore Gun Rights
In February 2019, Ewing, a retired Dayton police officer, filed a request in Warren County Common Pleas Court to remove the firearms restriction. A hearing was held before Judge Robert Peeler. Suwalski was notified of the hearing and argued against removing the disability that kept Ewing from having firearms. Ewing stated he had no other criminal record and lifting the restriction would allow him to resume his private security business, engage in recreational hunting, and possess a firearm for self-protection.
In April 2019, Judge Peeler granted Ewing’s request and lifted Ewing’s firearms restriction.
Victim Seeks Order Stating Judge Had No Authority to Lift Restriction
Suwalski filed a petition requesting a writ of prohibition from the Twelfth District Court of Appeals. She based her request on victims’ rights in the Ohio Constitution, which were expanded in 2018. Judge Peeler filed an answer, and the Twelfth District permitted Ewing to intervene in the case and respond to the petition. The Twelfth District granted the writ, concluding that Judge Peeler didn’t have the legal authority under state law to remove a firearms disability required by federal law.
Ewing appealed to the Ohio Supreme Court, which agreed to review the issues. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Ex-Wife Didn’t Follow Options in Victims-Rights Law, Offender Argues
Ohioans approved an amendment to the state constitution in November 2017 to expand victims’ rights. Commonly referred to as Marsy’s Law, the changes took effect in February 2018.
Ewing maintains that Ohio Constitution, Article I, Section 10a(B) requires Suwalski to first assert her claim in trial court. While Suwalski gave an unsworn statement in the hearing requesting relief from the firearms disability and opposed his request, she didn’t file her own claim under Marsy’s Law in trial court, Ewing argues. Because she didn’t exhaust her claim in the trial court first, she wasn’t permitted to seek the writ in the Twelfth District, he states.
Ewing contends that victims must assert their rights in one of two types of victims-rights proceedings available under Section 10a(B) – a proceeding “involving the criminal offense” or one “in which the victim’s rights are implicated.” He argues that his civil hearing asking to restore his firearms rights isn’t a proceeding involving a criminal offense. Instead, he maintains, a proceeding involving a criminal offense means a criminal case, not a separate civil case about a firearms disability. Nor did his civil hearing regarding his firearms rights implicate Suwalski’s rights, Ewing argues. He states that his hearing addressed whether the firearms disability could be removed. He suggests that even if her rights were implicated in the hearing, the trial court followed Marsy’s Law by notifying her, allowing her to attend and consult with the prosecutor, and present an unsworn statement. Her request for a writ from the Twelfth District challenged the trial court’s jurisdiction to remove the disability and a claim about jurisdiction isn’t one of the victims’ rights in Marsy’s Law, Ewing argues.
He states that Suwalski could have intervened in his hearing and then appealed the judge’s ruling. However, he contends, she couldn’t skip a direct appeal and “collaterally attack” the ruling by instead requesting a writ from the Twelfth District.
Ewing’s brief also discusses R.C. 2923.14, which permits Ohio common pleas courts to consider applications to restore gun rights. He asserts that uncodified language in a 2011 bill enacted by the Ohio General Assembly stated an intent for R.C. 2923.14 to remove federal firearms disabilities, and he maintains that Congress authorized states to do so.
Because Judge Peeler didn’t file a brief, he won’t be permitted to argue before the Court in this case.
Petitioning Court Was Only Option After Ex’s Firearms Rights Restored, Victim Contends
Suwalksi maintains that she asserted her rights in the trial court by opposing Ewing’s request to remove the firearms disability. Asserting her rights is all that is required by Section 10a(B), she argues. Section 10a(B) then gives victims the right to petition the applicable appeals court for review if the relief a victim wants is denied by a trial court, she maintains. She adds that victims in Ohio aren’t granted status as a party in a case under Marsy’s Law, so they do not have the right to directly appeal violations of their rights.
Suwalksi notes that she has rights under Section 10a to be treated with respect for her safety and to reasonable protection from Ewing. These rights are implicated in a hearing to consider restoring Ewing’s firearms rights, she states. She also maintains that his hearing involved the criminal offense because, without the criminal conviction, there would be no collateral consequences, such as a restriction on firearms. Suwalski notes that R.C. 2923.14 – the statute with the process for restoring gun rights – was placed in the Ohio criminal code. She adds that when a person submits an application for relief from a weapons disability, the county prosecutor is notified and investigates the application. To conclude that these hearings don’t involve the criminal offense or implicate victims’ rights contradicts the constitutional amendment’s purpose and language and would allow a criminal defendant to sidestep procedures in federal law for requesting the removal of a federal disability, she concludes.
Suwalksi notes that R.C. 2923.13 – an Ohio law – bars certain individuals from acquiring, having, carrying, or using firearms but none of the categories listed, such as being a fugitive from justice or being drug dependent, apply to Ewing. As a result, Suwalski states, Ewing can’t ask an Ohio court to restore his gun rights because Ohio law doesn’t apply to him or his federal firearms disability.
Instead, she stresses, federal law created and controls Ewing’s federal disability. In accordance with 18 U.S.C. §922(g)(9), Ewing was subject to a firearms restriction because his state conviction qualifies as a misdemeanor crime of domestic violence under federal law. Ewing’s federal disability can be lifted if his conviction is expunged or set aside, he has been pardoned, or he has had his civil rights restored. Suwalski states that Ewing isn’t eligible for expungement because of his offense and the other options in federal law don’t apply. She concludes that federal law provides no role for state courts in removing Ewing’s federal firearms disability, meaning that Judge Peeler didn’t have jurisdiction to lift the restriction.
Domestic Violence, Legal Aid Groups Object to Proposed ‘Loophole’
An amicus curiae brief supporting Suwalski’s position has been submitted by AEquitas, the Domestic Violence Legal Empowerment and Appeals Project, and three Ohio legal aid organizations – Legal Aid Society of Cleveland, Advocates for Basic Legal Equality, and Legal Aid of Western Ohio. The groups write that a decision in Ewing’s favor “would deeply erode the protections in 18 U.S.C. 922(g)(9) of the federal Gun Control Act, by opening a loophole that could permit many convicted batterers to possess firearms.”
They add that even if the Court considers R.C. 2923.14, division (D)(3) of that section permits a trial court to restore Ewing’s revoked firearms rights only if he “is not otherwise prohibited by law from acquiring, having, or using firearms.” They state that Ewing is prohibited from having firearms by federal law. Despite Judge Peeler’s rationale in his decision, the federal law was enacted because research shows that firearms possession increases the severity and likelihood of deaths in situations involving domestic violence, they maintain.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Roy Ewing: Christopher Pagan, 513.424.1823
Representing Jamie Suwalksi: Elizabeth Well, 614.398.0204
Representing the Domestic Violence Legal Empowerment and Appeals Project et al.: Gregory Phillips, 216.363.4472
Can Sentence for Community Control Violation Run Consecutively to New Prison Sentence?
State of Ohio v. Brooke Jones, Case Nos. 2020-0485 and 2020-0826
Seventh District Court of Appeals (Harrison County)
ISSUES:
- If a reserved prison sentence is imposed for a future community-control violation, must the original sentencing court provide notice to the defendant that the sentence could run consecutively to any additional prison sentence?
- Does a trial court have the authority to impose a prison sentence for a community-control violation to run consecutively to any additional prison sentence imposed by a second sentencing court for a new crime?
- Does a second sentencing court have sole authority to impose a reserved prison sentence for a community-control violation to run consecutively to the second sentencing court’s new prison sentence?
BACKGROUND:
In 2016, Brooke Jones was convicted and sentenced in Harrison County Common Pleas Court for one felony count of endangering children. Prior to imposing the sentence, the trial court read portions of the written plea agreement Jones had signed. The trial court stated that Jones was being sentenced to five years of community control, but if she violated the community control terms, she would be sentenced to two years in prison. The trial court didn’t indicate whether that sentence would run concurrently or consecutively to any new prison sentence should Jones be convicted of a crime while on community control.
In February 2018, prosecutors sought to revoke the community control sanction because Jones violated the terms by quitting a required therapeutic program. The trial court imposed a 30-day jail sentence and continued her community control. In July 2018, prosecutors again sought to revoke her community control after she was charged in Jefferson County with felony robbery charges and violated other community control terms.
In December 2018, Jones pleaded guilty to robbery in Jefferson County Common Pleas Court and was sentenced to three years in prison. As part of negotiations with Jefferson County prosecutors to reach a plea agreement with Jones, the Harrison County prosecutors agreed to drop the request to revoke her community control. However, the Harrison County trial court disregarded the request and noted that Jones was on a “zero tolerance policy,” which she violated.
The Harrison County court revoked Jones’ community control and imposed the reserved two-year prison sentence to run consecutively to the new three-year Jefferson County prison sentence.
Jones appealed her sentence to the Seventh District Court of Appeals, arguing the Harrison County trial court couldn’t impose the sentence to run consecutively to the Jefferson County sentence unless she had been notified in her original 2016 sentence about the potential of consecutive sentences for a community-control violation.
Seventh District Reverses on Other Grounds, Raises Conflict
In a split decision, the Seventh District rejected Jones’ argument, finding no notice to Jones by the Harrison County court was required. However, the appellate court ruled the Harrison County court failed to make the required findings to impose a consecutive sentence and remanded the case.
The Seventh District noted that its decision conflicted with two other state appellate courts. The Seventh District found the original sentencing court, Harrison County Common Pleas Court, had the authority to impose the consecutive sentences. The other appellate districts ruled that only a second sentencing court, which in Jones’ case was Jefferson County Common Pleas Court, has the sole authority to decide to impose a prison sentence for a community-control violation to run consecutively to the prison sentence imposed for the new crime.
The Ohio Supreme Court agreed to consider Jones’ appeal of her case and consider the certified conflict among appellate courts. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Notice Required to Impose Consecutive Sentences, Offender Maintains
Jones agrees the law allows the imposition of consecutive sentences for a community-control violation. But she argues that when reading three sentencing statutes in context, it is clear the trial court must notify the defendant when imposing community control of the potential of consecutive sentences. Jones explains that R.C. 2929.19(B) requires the sentencing court to provide notice of specific prison terms that are held in reserve should there be a community-control violation. R.C. 2929.15(B) caps the amount of prison time that could be imposed to the amount identified at the original sentencing hearing, she notes.
The Court in its 2004 State v. Brooks decision stated that R.C. 2929.19(B) and R.C. 2929.15(B), taken together, mean a trial court can only impose the “specific prison term” if the offender is notified at the time of sentencing, Jones notes. A “specific prison term” when imposed in conjunction with another prison term has two parts – the length of the term and whether it is to be imposed consecutively or concurrently, she asserts.
A third law, R.C. 2929.41, states that sentences are to be served concurrently unless ordered by a court to be served consecutively after the court makes certain findings, Jones notes.
Jones maintains the three statutes mandate that if the original sentencing court wants to impose the reserved sentence to run consecutively to a future prison sentence for another crime, it must give notice of that potential for consecutive sentences. Otherwise R.C. 2929.41(A) requires the sentence run concurrently, she concludes.
Violator ‘On Notice’ for Potential Consecutive Sentences, Prosecutor Argues
The Harrison County Prosecutor’s Office notes that in 2016, Jones was being sentenced for one criminal violation and given one prison sentence. The trial court wasn’t predicting what Jones might do in the future, the prosecutor states. The trial court imposed a specific two-year prison term for any community-control violation, the office notes.
The prosecutor argues that when imposing community control, trial courts are given wide discretion about how to implement the sanction. Jones was put on notice that a violation of her community control could lead to a two-year prison sentence, the prosecutor argues. The Harrison County court also had the right under R.C. 2929.41 to make the finding that Jones’ Jefferson County sentence can run consecutively to the reserved two-year sentence, the prosecutor maintains.
Without the right to impose the sentences consecutively, the Supreme Court would effectively be mandating that all sentences for community-control violations be served concurrently with the sentence for a subsequent violation of the law, the prosecutor states. That would be in conflict with the wide discretion granted trial courts, the office concludes.
Because the Harrison County court notified Jones that a violation would result in a definite two-year prison term, it met the specific sentencing requirement, the prosecutor maintains. And because at the time she was being sentenced for one crime in 2016, the sentence did not have to indicate if it was to be served consecutively to any future crime, the office adds. Jones’ sentences can run consecutively, the prosecutor concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket. (Also 2020-0826.)
Contacts
Representing Brooke Jones from the Ohio Public Defender’s Office: Peter Galyardt, 614.466.5394
Representing the State of Ohio from the Harrison County Prosecutor’s Office: Lauren Knight, 740.942.2621