Wednesday, June 7, 2017
In the Matter of the Complaint of Mary-Martha and Dennis Corrigan v. The Cleveland Electric Illuminating Company, Case no. 2014-0799
Public Utilities Commission of Ohio
State ex rel. Ohio Presbyterian Retirement Services Inc. v. Industrial Commission of Ohio and Sherry L. Redwine, Case no. 2015-1074
On Reconsideration
State of Ohio v. Andrew L. Jackson, Case no. 2016-0782
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Colton Dye, Case no. 2016-1395
Fifth District Court of Appeals (Fairfield County)
Was Removing Tree Near Transmission Line Reasonable?
In the Matter of the Complaint of Mary-Martha and Dennis Corrigan v. The Cleveland Electric Illuminating Company, Case no. 2014-0799
Public Utilities Commission of Ohio
ISSUE: Was the Public Utilities Commission of Ohio’s (PUCO) decision unreasonable when it permitted an electric utility company to remove a tree because it may interfere with the company’s transmission lines?
BACKGROUND:
Mary-Martha and Dennis Corrigan contest the removal of their silver maple tree, the sole tree on their property, by the Cleveland Electric Illuminating Co. (CEI). The Corrigans purchased their Brooklyn, Ohio, home in 1975, and since 1926, CEI had a right-of-way over the property for the purpose of construction and maintaining an electricity transmission line. The right-of-way granted CEI full authority to “cut and remove any trees, shrub, or other obstructions which may interfere or threaten to interfere with” the transmission lines. The Corrigans note that tree is just inside the edge of the right-of-way and the power lines don’t run directly over the tree.
Through 2003, CEI trimmed and pruned the tree and other property owners’ vegetation within the right-of-way to protect against interference with the transmission line. In August 2003, an overloaded First Energy power line sagged and faulted when it made contact with a tree in northeast Ohio, setting up a massive blackout across eastern states and parts of Canada. CEI is a unit of First Energy. CEI notified the Corrigans that it no longer would maintain vegetation within the right-of-way and intended to remove the tree. In 2004, the Corrigans sought and received an order from the Cuyahoga County Common Pleas Court to prevent CEI from cutting down the then 77-year-old silver maple.
The Eighth District Court of Appeals affirmed the decision, finding that the tree didn’t endanger or threaten to endanger the power line. CEI appealed the Eighth District ruling to the Ohio Supreme Court, which in 2009 ruled that the PUCO has exclusive authority over a utility’s vegetation management plan, and that the lower courts had no jurisdiction over the dispute. The Corrigans then filed a complaint with the PUCO seeking the same restraining order preventing CEI from removing the tree.
In 2013, the PUCO conducted a hearing. Mary-Martha Corrigan was the homeowner’s lone witness, while CEI presented five witnesses who contended the tree posed a threat to the power line, and the commission ruled in CEI’s favor. The commission granted the Corrigans a stay as they appealed the decision to the Ohio Supreme Court. The stay expired in 2014, and CEI sent the Corrigans notice that it intended to cut down the tree. The Corrigans sought an emergency stay from the Supreme Court, which was denied, and the tree was removed.
The Corrigans challenged the PUCO’s decision, arguing that while the tree is gone, they are entitled to seek relief from CEI for the wrongful destruction of property. The Supreme Court is required to hear appeals of PUCO decisions.
Tree Not Threat, Property Owners Argue
The Corrigans maintain that CEI changed its vegetation management policy, which the PUCO approved, in 2000. The company no longer operated a “hands on” care and maintenance program that focused on trimming and pruning and moved to a style favoring “clear cutting” in its right-of-ways. The Corrigans claim CEI used the massive blackout as an excuse for cutting down the tree because between 2000 and 2003 the company found the tree didn’t interfere with the line.
The PUCO ruled that CEI’s witnesses provided competent and credible evidence that pruning the tree was no longer a viable option, and that because of its decayed state, the tree posed a potential hazard, which justified CEI’s removal.
The Corrigans argue the weight of the evidence states otherwise and that the only thing that changed was CEI’s position on the care and maintenance of vegetation. They argued:
- all prior CEI inspections of the tree found it properly maintained and not interfering with the line
- the transmission lines were not repositioned
- regular and periodic ground and aerial inspections by CEI reported no issues
- they and CEI continually pruned and trimmed the tree
- the tree had no growth spurts, and with the use of hormones, was actually getting smaller
- the “Great Blackout” occurred three years after the CEI changed its policy that made the tree “incompatible,” yet for years the company allowed it to stand.
The Corrigans argue that CEI simply presented opinions and speculations that the tree could pose a threat, but ignored decades of real evidence that the tree never interfered with the line and was at such a distance from it that it couldn’t interfere with the line. The couple noted that even after the massive snowstorms the winter of 2013-2014, the tree limbs never posed a threat to the power line.
PUCO Finds Tree a Threat
The commission noted it heard testimony from both sides and determined the removal was necessary to ensure public safety and electric reliability. The agency notes the law requires the Court won’t modify or reverse a commission decision unless the record indicates the decision is “clearly unsupported.”
The commission notes the parties don’t dispute that CEI’s easement gives the company the right to remove trees that may threaten the line. It asserts the witnesses found that the tree had decayed in spots over the years, and the couple had been using support cables to hold it up. The company’s experts believed the cables could no longer be effective in supporting the tree for the next 10 years and the tree’s height made it capable of falling on the power lines.
The PUCO also argues the case is moot because the tree has been removed, and the Court shouldn’t “entertain purely academic questions.”
CEI Intervenes
The Court permitted CEI to intervene in the case and argue its position that it was justified in cutting down the tree. The company notes that its PUCO-approved plan requires the removal of vegetation that has the potential to interfere with transmission lines, and the plan “prudently aims to prevent interference; not to wait until a disaster occurs.”
The company suggests that it moved away from pruning because of its uncertainty, leaving one to guess about how much to cut back and how fast the tree will grow before it needs to be pruned again. After the 2003 blackout, the company asserts the accepted utility industry practice also moved toward removal of incompatible vegetation and away from trimming.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Mary-Martha and Dennis Corrigan: Lester Potash, 216.771.8400
Representing the Public Utilities Commission of Ohio from the Attorney General’s Office: Thomas Lindgren, 614.466.4397
Representing Cleveland Electric Illuminating Company: David Kutik, 216.586.3939
Court to Reconsider Workers’ Compensation Decision
State ex rel. Ohio Presbyterian Retirement Services Inc. v. Industrial Commission of Ohio and Sherry L. Redwine, Case no. 2015-1074
On Reconsideration
On Dec. 8, 2016, the Ohio Supreme Court ruled that state law doesn’t permit an award of permanent partial disability to an injured worker who has already been awarded permanent total disability by the Ohio Bureau of Workers’ Compensation.
The Supreme Court agreed on Dec. 30, 2016, to reconsider the decision. Briefs had been filed in the original case, but no oral argument was held. For reconsideration, the Court won’t allow any additional briefing but has scheduled oral argument.
Injured Worker Receives Compensation
Following an incident on Aug. 13, 2003, while employed by the Ohio Presbyterian Retirement Services Inc., Sherry L. Redwine filed a workers’ compensation claim. She received permanent total disability benefits based on a psychological condition. Redwine later applied for and received permanent partial disability compensation based on physical conditions. On appeal, the state’s Industrial Commission concluded Redwine wasn’t prohibited from additional compensation for permanent partial disability because the claim was based on conditions that weren’t the basis for the permanent total disability award.
Ruling Muddles Meaning of ‘Injury,’ Undermines Precedent, Redwine Argues
In her motion asking the Supreme Court to reconsider its December decision, Redwine believes the Court misinterpreted the state’s workers’ compensation laws, which are designed to compensate employees for workplace injuries. She argues that the Court mistakenly prohibited the payment of permanent partial disability awards for additional injuries from claimants who were separately granted permanent total disability.
She maintains that the December ruling has created confusion and also implicitly overturns the Court’s 2013 decision in Armstrong v. Jurgenson Co. The December Redwine decision stated that a “work-related injury is the occurrence that triggers the filing of a report with the Bureau of Workers’ Compensation to open a claim.” However, Redwine contends, the Court in Armstrong concluded that “injury” should be interpreted narrowly, focusing “on the resulting harm, not on the cause or means underlying the harm.” She notes that even though her two awards were linked by the same incident, they were granted based on different physical and psychological injuries diagnosed at different times. Armstrong stated that the workplace incident leading to the resulting harm is legally inconsequential, Redwine indicated.
The December decision “overrules Armstrong’s narrow definition of injury by defining the type of compensation that an injured worker is entitled to based upon the workplace accident rather than the recognized injuries in their claim,” she wrote.
She contends that statutes enacted by the General Assembly and the Court’s own precedent in State ex rel. Dudley v. Indus. Comm. (1939) and State ex rel. Latino v. Indus. Comm. (1968) support the view that different injuries arising from the same incident can be compensated in separate ways.
Employer Favors Disallowing Two Awards
Ohio Presbyterian Retirement Services responds that Redwine hasn’t shown a reason the Supreme Court should reconsider its December decision in her case. The employer contends that she is re-arguing the same issues she raised in the original case and that violates Supreme Court rules of practice.
In the employer’s view, the Court didn’t overrule or undermine any prior case law when it decided Redwine. Instead, the Court found that the Industrial Commission incorrectly interpreted state law, which the employer argues, and the Court concluded, doesn’t allow for concurrent payment of a permanent partial disability award and permanent total disability compensation for the same claim.
Industrial Commission Contends Awards Serve Different Purposes
The Industrial Commission also responded to Redwine’s motion asking for reconsideration, and supports her arguments. The commission notes that the General Assembly designated the commission to implement the state’s workers’ compensation laws and the legislature’s intent.
“PTD [permanent total disability] compensates impaired earning capacity, while PPD [permanent partial disability] compensates for general impairment of bodily function whether or not the allowed conditions impact the claimant’s earning capacity,” the commission explains in its response, adding that each type of award has separate and distinct goals under the relevant statutes.
The commission agrees with Redwine’s points regarding Armstrong and the now-confused definition of “injury.” It’s incorrect to prohibit the two types of payments concurrently because the Revised Code is “silent” on the issue, as the Court ruled in December, the commission concludes.
Friend-of-the-Court Brief Filed
The Ohio Association of Claimants’ Counsel and Ohio Association for Justice submitted an amicus curiae memo that supported Redwine’s motion for reconsideration.
The groups also asked to participate in oral argument. The Court granted the request on June 2, and the amici will share the 15 minutes allotted to Redwine and the Industrial Commission for oral argument.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Sherry L. Redwine: Robert Muehleisen Jr., 513.844.8778
Representing Ohio Presbyterian Retirement Services Inc.: Rosemary Welsh, 513.723.4487
Representing the Industrial Commission of Ohio from the Ohio Attorney General’s Office: Andrew Alatis, 614.466.6696
When Some Counts Are Dismissed at Trial, May Convictions on Other Counts Be Appealed?
State of Ohio v. Andrew L. Jackson, Case no. 2016-0782
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: For purposes of Criminal Rule 32(C), does the dismissal of a count dispose of that count when determining whether a criminal conviction is a final, appealable order?
BACKGROUND:
Andrew L. Jackson was arrested in August 2013, and a Cuyahoga County grand jury indicted him on two counts of kidnapping, two counts of aggravated robbery, and one count of grand theft of a motor vehicle. In November 2013, a jury found Jackson guilty of aggravated robbery and grand theft, but was unable to reach a verdict on the kidnapping counts. The state asked the trial court to dismiss the kidnapping counts, Jackson didn’t object, and the court granted the request. The trial court sentenced Jackson to a six-year prison term.
Jackson appealed his convictions to the Eighth District Court of Appeals in May 2015. However, the appeals court dismissed the case, stating that it had no jurisdiction to consider the matter because the trial court didn’t issue a final, appealable order. The Eighth District concluded that the trial court had dismissed the kidnapping charges without prejudice, meaning the state could pursue those charges again at a later time. The state must either dismiss the kidnapping charges with prejudice or resolve the charges at a trial before an appellate court can review Jackson’s appeal, the Eighth District ruled.
The Cuyahoga County Prosecutor’s Office appealed the decision to the Ohio Supreme Court, which agreed to review the issue.
Prosecutor Supports Jackson’s Appeal of Convictions
The Cuyahoga County prosecutor argues that Jackson’s convictions for aggravated robbery and grand theft were final and could be appealed, regardless of the dismissed kidnapping charges. The trial court’s judgment entry in Jackson’s case reflected that he was convicted of aggravated murder and grand theft and that the kidnapping charges were dismissed, the prosecutor maintains.
Noting that Rule 32(C) of the Ohio Rules of Criminal Procedure describes the elements of a court’s judgment in a criminal case, the prosecutor asserts that the Jackson trial court complied with the rule and issued a final, appealable order. As stated by the Ohio Supreme Court in State v. Lester (2011), “[A] judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.”
“No party is attempting to appeal the counts that have been dismissed without prejudice,” the prosecutor wrote in the brief to the Court, contending that Jackson’s appeal of his convictions was proper and permitted.
Eighth District’s Ruling Leads to ‘Procedural Limbo,’ Jackson Argues
The prosecutor and Jackson agree that the Eighth District’s decision should be reversed and Jackson’s appeal must be heard.
Jackson contends that he has been denied the right to appeal his convictions for aggravated robbery and grand theft solely because the trial court dismissed the two kidnapping charges. His brief describes the Eighth District’s holding as “unconstitutional” and “unjust.” Jackson concludes that “defendants like him must not be put in procedural limbo without a clear path to appealing potentially illegitimate convictions or sentences.”
Friend-of-the-Court Brief Filed
The Office of Cuyahoga County Public Defender and Association of Criminal Defense Lawyers submitted a joint amicus curiae brief supporting the Cuyahoga County Prosecutor’s Office. The groups argue that the trial court’s judgment entry in Jackson’s case was a final order that could be appealed.
- 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 State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, 216.443.7800
Representing Andrew L. Jackson: Matthew Nee, 440.793.7720
Can Record of Case Dismissed Without Prejudice Be Sealed During Time When Charges May Be Refiled?
State of Ohio v. Colton Dye, Case no. 2016-1395
Fifth District Court of Appeals (Fairfield County)
ISSUE: Pursuant to R.C. 2953.52, must trial courts wait until the applicable statute of limitations has expired before sealing the records of a case dismissed without prejudice?
BACKGROUND:
Colton Dye was charged with arson, menacing, criminal damaging/threats, and domestic violence after a dispute with his mother at their Pickerington home on March 21, 2015. Before his trial in Fairfield County Municipal Court, the prosecutor dismissed the case without prejudice because of insufficient evidence, according to court documents.
In June 2015, Dye applied to have the case record sealed based on R.C. 2953.52. The trial court denied the application, determining that Dye was ineligible to seal his record because the statutes of limitations had not expired on the alleged offenses.
Dye appealed, but the Fifth District Court of Appeals affirmed the trial court’s decision in July 2016. The Fifth District notified the Ohio Supreme Court that its ruling conflicts with a judgment from the Eighth District Court of Appeals in State v. C.K. (2013). The Supreme Court agreed and accepted the case to resolve the conflict between the appellate courts.
Courts May Consider Request to Seal Records Any Time After Dismissal, Dye Maintains
Dye notes R.C. 2953.52 requires that the court determine whether a dismissal was made with or without prejudice and, if the complaint, indictment, or information was dismissed without prejudice, whether the relevant statute of limitations has expired. Dye contends that this step divides the possible situations into different categories, which lead a court to its next steps. In his case (a dismissal without prejudice where the statute of limitations hasn’t yet expired), the court then considers the various factors listed in division (B)(4) – whether the person asking to seal a record has any pending criminal proceedings and whether the person’s interests outweigh the government’s needs to maintain the record. The court must consider these additional factors before ordering a record to be sealed, Dye argues.
“While this is a heavier burden than that of an applicant whose charges were dismissed with prejudice or whose applicable statute of limitations had run, they are without question statutorily eligible to apply [to have records sealed] and have that application considered,” Dye’s brief states.
He adds that division (A)(1) specifically provides that a defendant may file an application to have a record sealed “at any time after the finding of not guilty or the dismissal of the complaint, indictment, or information is entered upon the minutes of the court or the journal, whichever entry occurs first.”
The unambiguous statute clearly indicates that trial courts don’t have to wait until the relevant statute of limitations expires before considering an application to seal a record, he maintains.
Statute of Limitations Must Expire Before Applying to Seal Record, City Prosecutor Argues
The Lancaster Law Director’s Office counters that the statute clearly conveys the opposite – that once a court determines the statute of limitations hasn’t expired in a case dismissed without prejudice, the record cannot be sealed.
However, if the Supreme Court views R.C. 2953.52 as ambiguous, the statute’s legislative history and public policy support the interpretation that Dye’s record can’t yet be considered for sealing, the law director asserts. In 2012, the General Assembly added language to R.C. 2953.52 to distinguish between dismissals with prejudice and without prejudice. In the law director’s view, the addition of the distinctions logically meant that the legislature intended to prevent courts from sealing the record of a dismissal without prejudice before the expiration of a statute of limitations.
The law director contends that because the state could still prosecute Dye’s offenses, public policy also supports the idea that the record shouldn’t be sealed until the statute of limitations expires. A dismissal without prejudice reflects the state’s belief that new witnesses or evidence may allow the case to be prosecuted at a later date, the law director explains. When a person in Dye’s circumstances is permitted to seal the case record, the law director argues that law enforcement and prosecutors no longer have access to the sealed record, preventing them from any further prosecution – a circumstance not aligned with public policy.
Friend-of-the-Court Brief Filed
The Ohio Public Defender’s Office filed an amicus curiae brief supporting Dye’s position.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Colton Dye: James Dye Jr., 740.927.9059
Representing the State of Ohio from the City of Lancaster Prosecutor’s Office: Daniel Cogley, 740.687.6616
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