Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, July 12, 2022

State of Ohio v. Zacary L. Fisk, Case No. 2021-1047
Second District Court of Appeals (Montgomery County)

State of Ohio v. Tyler Morris aka Tyler Mullins, Case No. 2021-1158
Fifth District Court of Appeals (Ashland County)

TWISM Enterprises LLC, doing business as valuCADD Solutions v. State Board of Registration for Professional Engineers and Surveyors, Case No. 2021-1440
First District Court of Appeals (Hamilton County)

In re Establishing the Solar Generation Fund Rider Pursuant to R.C. 3706.46, Case No. 2021-1374
Public Utilities Commission of Ohio

Does Marsy’s Law Allow State to Appeal Denial of Restitution for Victim?

State of Ohio v. Zacary L. Fisk, Case No. 2021-1047
Second District Court of Appeals (Montgomery County)

ISSUE: Does Marsy’s Law, which was placed in the Ohio Constitution to ensure victims’ rights, give the state the standing, or right, to appeal a trial court’s decision not to order restitution as part of a defendant’s criminal sentence?

Steven Patton and Cyrena Brown, who were engaged, lived in a Miamisburg house in August 2019 with their daughter. Brown’s 19-year-old son, Zacary Fisk, sometimes lived with the family. He had a room in the garage.

One morning, Fisk asked Patton to go out to the garage for a “surprise.” Once inside, Patton was hit in the back of the head with a hammer. Patton said Fisk stabbed him with a knife, and then with scissors. Patton pried the scissors away from Fisk, grabbed him by the neck, and punched him in the face several times.

Patton escaped and called 911. He suffered multiple stab wounds, requiring surgery for abdominal and neck wounds. Fisk had lacerations to his hands, fingers, arms, and legs.

Nineteen-Year-Old Goes on Trial for Attack
At trial, Fisk asserted he acted in self-defense. The trial court permitted evidence about Patton’s past conduct and alleged temper that Fisk experienced or observed.

In March 2020, the jury acquitted Fisk of attempted murder and convicted him of two counts of felonious assault. Patton gave a victim impact statement at the sentencing hearing . He requested $177,179.58 in restitution for his medical bills. Patton, a veteran, said he was insured by the U.S. Department of Veterans Affairs, but the agency refused to pay for the care because he had been stabbed.

Trial Court Denies Payment of Medical Bills
The trial court sentenced Fisk to two to three years in prison. The court rejected Patton’s request for restitution. The judge stated, “In order to justify in my position the kind of restitution that you’re describing with the billing that’s been submitted, I need something more from the Veterans Administration relative to potential coverage, noncoverage, the reason that coverage of any kind was declined.”

Fisk appealed his conviction. And the Montgomery County prosecutor appealed the denial of restitution. In June 2021, the Second District Court of Appeals upheld Fisk’s conviction and rejected the prosecutor’s argument on restitution. Based on a section of the state constitution referred to as “Marsy’s Law,” the Second District concluded that only Patton, not the prosecutor, had standing, or the right, to appeal the denial of restitution.  

Marsy’s Law, which Ohio voters adopted as part of the state constitution in 2017 to ensure victims’ rights, states in Section 10(a)(B):

“The victim, the attorney for the government upon request of the victim, or the victim’s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim’s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim’s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.”

The prosecutor appealed the Second District’s decision to the Supreme Court of Ohio, which agreed to review the issue. The Supreme Court declined an appeal from Fisk challenging his conviction.

Prosecutor Maintains State Can Appeal Denials of Victim Right
The Second District ruled that prosecutors cannot appeal on a victim’s behalf when restitution is denied because the words “attorney for the government” doesn’t appear in the second sentence of Section 10(a)(B). The Montgomery County Prosecutor’s Office contends, however, that prosecutors fall within “the victim’s lawful representative[s]” in the second sentences. Prosecutors can pursue an appeal of the denial of any victim rights, the office argues.

The prosecutor also points to R.C. 2953.08(B)(2), which empowers the state to appeal a sentence that is contrary to law. A sentence that neglects to include a restitution order that is mandated by the state constitution is contrary to law, the prosecutor asserts. The prosecutor adds that Marsy’s Law wasn’t intended to lessen victim rights by eliminating the prosecutor’s right in the statute to appeal sentences that are contrary to law. Instead, Marsy’s Law added another method – petitioning the appeals court – to seek review of a restitution denial, the prosecutor maintains.

The state also argues that the trial court was required by Marsy’s Law to impose full and timely restitution for Patton as part of Fisk’s sentence. Instead of accepting Patton’s statement that Veterans Affairs wouldn’t cover his medical expenses, and without giving him the chance to obtain further documentation, the trial court improperly declined restitution altogether, the state maintains.

Offender Counters Right to Appeal Belongs to Victim Alone
Fisk’s brief argues prosecutors can represent victims in trial courts under Marsy’s Law only when the victim requests it. Marsy’s Law then limits the right to appeal to the victim or the victim’s lawful representative, the brief states. It maintains that excluding prosecutors from appeals is important in Marsy’s Law because the interests of the state and the victim don’t always coincide.

Although the prosecutor has the right to appeal under Ohio statutes, the prosecutor must show standing for each legal issue, Fisk’s brief contends. It maintains that the prosecutor had no standing to make this claim because the right belonged exclusively to the victim under Marsy’s Law.

He also argues the trial court acted within its discretion when denying restitution in these circumstances. The trial court assessed Patton’s claim regarding his insurance and chose not to automatically accept his statements as true without more documentation, Fisk states. He concludes that, regardless of the ruling on this legal issue, the outcome in this case would remain the same because the trial court ruling was properly based on the information it had.

Fisk further maintains that the state’s appeal improperly asserts legal claims that it didn’t raise in the lower courts. Because of these failures, the case should be dismissed as improvidently allowed, he contends.

Victim Groups Back Prosecutor’s View
An amicus curiae brief supporting the Montgomery County prosecutor’s position was submitted jointly by the Ohio Crime Victim Justice Center and National Crime Victim Law Institute.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the State of Ohio from the Montgomery County Prosecutor’s Office: Andrew French, 937.225.5757

Representing Zacary L. Fisk from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394

Return to top

Must Trial Courts Explain How Age Factors Into Life Sentence for Juvenile Offenders?

State of Ohio v. Tyler Morris aka Tyler Mullins, Case No. 2021-1158
Fifth District Court of Appeals (Ashland County)

ISSUE: If a trial court fails to consider a defendant’s youth as a factor in sentencing, does sentencing a juvenile to a life in prison with the possibility of parole constitute cruel and unusual punishment?

Tyler Morris was 17 years old when he was tried as an adult for a 2019 crime. As his appeal of a life sentence with eligibility for parole in 38 years was pending, two significant court decisions and a change in state law took place.

In December 2020, the Supreme Court of Ohio in State v. Patrick required trial courts to explain on the record how youth was considered as a factor when sentencing a juvenile to life in prison.

In April 2021, the U.S. Supreme Court in Jones v. Mississippi ruled a trial court didn’t have to explicitly state that age was considered a factor when imposing life in prison for a juvenile. Also in April 2021, Ohio Senate Bill 256 took effect. The new law made all offenders 18-years-old or younger sentenced to prison eligible for parole after 18 years, with some crimes garnering more time in prison before parole eligibility.

Morris urges in his appeal to the Supreme Court of Ohio for an earlier parole eligibility date. He notes his co-defendant in the crime has received a court order that reduces his eligibility date. He proposes that the Supreme Court follow its holding in Patrick, and find the federal Jones decision not applicable to his case. He notes that regardless of the Court’s decision, S.B. 256 will result in some reduction in his time for parole eligibility.

Gun Given to Shooter to Retrieve Drugs or Money
Morris was engaged in a dispute with Timothy Maust and Elizabeth Bunnell over the sale of methamphetamine. Morris told his friend Michael Watson, also a juvenile, that Maust and Bunnell owed him $50 for the drugs. Morris asked Watson and some other friends to go the Almond Tree Hotel in Ashland County, where Maust and Bunnell were staying, to get either his “money or drugs.” Watson and his friends twice went and left the hotel without retrieving the drugs or money.

Morris, who never accompanied Watson to the hotel, gave Watson a loaded pistol. Watson would later testify that Morris never told him to shoot Maust or Bunnell. Watson said it was his plan to use the gun to scare them. Watson said Morris did tell him to shoot the gun four times, and Watson said he “had the general idea” that Morris wanted him to shoot the couple. Watson kicked in the door to the couple’s room and, after a brief exchange, fired six shots. He struck Bunnell in the neck, injuring her, and Maust in the head and chest, killing him.

After a short search, police located Watson and Morris. They were charged in juvenile court with several crimes, which included charging Morris with complicity to aggravated murder with a firearm specification. Because of his age and type of crimes, Morris’ case was bound over to Ashland County Common Pleas Court to be tried as an adult. A jury convicted Morris of 10 of the 13 charges against him. At his sentencing hearing, he received life in prison with the eligibility for parole after 25 years for one complicity-to-aggravated-murder conviction. He also received a consecutive 10-to-15-year prison term for a separate conviction for complicity for attempted aggravated murder, and three years for the firearm specification. The trial court allowed his other sentences to run concurrently, leaving Morris with life with parole eligibility in 38 to 43 years.

Watson had earlier pleaded guilty to aggravated murder and many of the same crimes as Morris. He was sentenced to life with eligibility for parole in 38 years. Both Watson and Morris appealed their sentences to Fifth District Court of Appeals.

Appeals Court Sentences Vary
In an April 2021 decision in Watson’s case, the Fifth District pointed to the Supreme Court of Ohio’s Patrick ruling. Based on Patrick, the Fifth District remanded Watson’s case to the trial court for resentencing because the trial court didn’t indicate it considered Watson’s youth when imposing his sentence.

Six days after ruling in Watson’s case, the U.S. Supreme Court issued the Jones decision, stating that a court didn’t have to identify that it took youth into consideration for sentencing. Citing Jones, the Fifth District affirmed Morris’ conviction.

Morris appealed the Fifth District’s decision to the Supreme Court of Ohio, which agreed to hear the case.

Sentence Improperly Imposed, Offender Argues
Morris argues that a life sentence that doesn’t allow for consideration of his release until he is in his mid-50s is essentially a life-without-parole sentence, and violates his rights against cruel and unusual punishment under the U.S. and Ohio constitutions. In Patrick¸ the Court said for purposes of cruel and unusual punishment claims, minors who received life sentences with parole should be evaluated the same as those who received life without parole, he notes.

While both the Ashland County Prosecutor’s Office and Morris’ defense attorney noted Morris’ youth during his sentencing hearing, the trial judge made no mention of it, Morris explains. He said the court made blanket statements regarding following sentencing guidelines but didn’t separately indicate it had considered Morris’ youth as a mitigating factor.

The Fifth District should have remanded the case to the trial court for resentencing, as it did with Watson, Morris argues. The Fifth District wrongly followed the federal Jones ruling, he asserts. The U.S. Supreme Court addressed an aspect of Mississippi law, not present in Ohio, Morris notes. Jones held that to impose life without parole on a juvenile, the trial court must consider the offender’s “youth and attendant characteristics,” but did not have to a make a specific finding regarding “permanent incorrigibility.” Ohio law doesn’t require any specific finding such as “permanent incorrigibility,” Morris notes, but only that the trial court indicate in some way it “separately considered” youth as a factor in sentencing.

Morris argues that if the trial court considers his youth as a factor, the court could reduce his eligibility for parole to after 23 years in prison. Noting there is no guarantee he will be released when he first becomes eligible for parole, but Morris concedes the modified sentence wouldn’t violate his constitutional rights.

Prosecutor, Attorney General Oppose Modification
The Ashland County prosecutor didn’t submit a merit brief to the Court, but will participate in oral arguments.

An amicus curiae brief supporting the prosecutor’s position was submitted by the Ohio Attorney General’s Office. The attorney general maintains that under Jones, the sentencing court doesn’t have to expressly consider the offender’s age as long as the court conducted a hearing where age can be considered. Morris received such a hearing. The Fifth District correctly decided the trial court’s sentence didn’t constitute cruel and unusual punishment, the office asserts.

The attorney general also asserts that Jones overrules the Supreme Court of Ohio Patrick decision, and nothing in the Ohio or U.S. constitution specifically entitles a juvenile to have age considered as a factor when a trial court establishes a sentence of life with parole eligibility.

Attorney General Joins Oral Arguments
The Court approved a request from the attorney general’s office to participate in oral arguments. The office will share the prosecutor’s oral argument time.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Tyler Morris aka Tyler Mullins: Brian Smith, 330.701.1750

Representing the State of Ohio from the Ashland County Prosecutor’s Office: Christopher Tunnell, 419.289.8857

Return to top

Must Courts Refrain From Deferring to Executive Agency Decisions?

TWISM Enterprises LLC, doing business as valuCADD Solutions v. State Board of Registration for Professional Engineers and Surveyors, Case No. 2021-1440
First District Court of Appeals (Hamilton County)


  • Is it the judiciary’s exclusive province and duty to interpret the law, meaning that Ohio courts may consider, but must not defer to, the legal interpretations of executive branch agencies?
  • Does R.C. 4733.16(D) prevent an engineering firm from designating an independent contractor as its engineering manager?

TWISM Enterprises is a small business in Cincinnati. In 2018, the company’s founder, Shawn Alexander, applied to the State Board of Registration for Professional Engineers and Surveyors for a certificate of authorization to enable the company to provide engineering services in Ohio.

R.C. 4733.16 states that firms offering engineering services in Ohio must designate “one or more full-time partners, managers, members, officers, or directors as being responsible for and in responsible charge of the professional engineering or professional surveying activities and decisions ….”

In his application, Alexander designated James Cooper, a licensed professional engineer, as the engineering manager overseeing TWISM’s projects. Cooper, who holds his own authorization certificate from the board, stated in the application that he works as an independent-contractor engineer for TWISM and two other companies. Cooper provides TWISM with all of its professional engineering services.

Engineering Board Declines to Issue Certificate to Company
In February 2019, the board denied a certificate for TWISM, concluding that the company had not designated a full-time engineering manager in compliance with state law. TWISM appealed, requesting a hearing. The hearing officer determined that an independent contractor can’t serve in this role for TWISM. The board upheld the hearing officer’s conclusions.

TWISM appealed to the Hamilton County Common Pleas Court, which reversed the board decision. The magistrate ruled that nothing in R.C. 4733.16 requires an engineering manager to be a W-2 employee of the company, as the board asserted. The magistrate also noted that under the board’s administrative rules, “full time” means working more than 30 hours per week or working substantially all of the engineering hours for the company. As the only engineer, Cooper worked all engineering hours for TWISM, the magistrate concluded, ordering that the certificate be granted to TWISM. The trial court adopted the magistrate’s decision.

The board appealed to the First District Court of Appeals, which overruled the trial court. The First District stated there are different reasonable interpretations of the statute and the board’s administrative rules. The appeals court deferred to the board’s interpretation of the law in denying the certificate.

TWISM appealed to the Supreme Court of Ohio, which accepted the case.

Courts Must Not Defer to Executive Branch Interpretations of Law, Company Contends
TWISM’s brief states that the judiciary determines whether a law or constitutional provision is valid. The brief explains that the people, through the U.S. and Ohio constitutions, delegated some of their political power to the government. Distributing certain powers across the government’s three branches – judicial, executive, and legislative – is designed to protect people’s liberty and security by preventing power from being concentrated in too few hands.

The agents of the three branches are precluded from exceeding or further delegating their powers unless the people allow for that action in the constitution, TWISM maintains. It argues the engineering board, as an executive branch agency, can determine whether an engineering application meets the requirements in a statute and in the related regulations. Those decisions are then subject to review by the judicial branch, TWISM notes. However, the company maintains, courts must not defer to the interpretations of an executive agency because doing so relinquishes judicial power to the executive branch. Courts must not abdicate their duty to make independent judgments about the law, TWISM contends.

TWISM maintains that the First District improperly deferred to the board in this case. The Supreme Court considers the board’s arguments, just as it considers TWISM’s arguments, because each is a party to the case, TWISM states. However, the company asserts, the Court may not defer to the board’s interpretation of the law.

TWISM states that the word “employee” doesn’t appear in the statute, nor does language requiring an engineering firm to designate only a W-2 employee as its engineering manager. Cooper met the requirements of the law because he was in control of, accountable for, and supervising the company’s engineering activities, TWISM contends. He also worked all of the engineering hours for the firm, the company adds. R.C. 4733.16 permits engineering firms to employ independent contractors as their engineering managers, TWISM concludes.

Engineering Managers Must Be Employees of Company, Engineering Board Argues
The board, which is represented by the Ohio Attorney General’s Office, explains that it oversees the practice of engineering in the state to protect life, health, and property from the dangers that faulty engineering can pose to the public. R.C. 4733.16 directs firms to designate an engineer who is “responsible for and in responsible charge of” the company’s engineering work.

The board maintains that TWISM is one-person company with no engineer, and the company instead outsources for those services. Under the statute, a person “in responsible charge” of the engineering work must have direct control and supervision over the work, the board notes. It adds that the engineer must also be “responsible for” the engineering work. The board argues that phrase means the engineer must be legally responsible, or liable, for the work. These two requirements cannot be met with an independent contractor, the board asserts. Instead, the board argues, the company and the engineering manager must have an employer-employee relationship. 

The board also points to the next statute, R.C. 4733.161, which discusses independent contractors specifically as authorized to perform engineering services for builders via a certain type of contract. Because independent contractors are authorized explicitly in this statute, their absence in R.C. 4733.16 conveys that the General Assembly didn’t intend for independent contractors to be designated as the engineer responsible for a firm’s engineering work, the board contends.

By requiring a company to select an employee, rather than an independent contractor, as responsible for the firm’s engineering work, customers and the public are protected if engineering negligence causes economic or physical injury, the board argues.

The board also addresses the issue of court deference to executive branch agencies. The board states that it no longer is relying on that argument to defend its decision to deny TWISM’s certificate. The board maintains that the Court need not defer to – but may consider – the board’s view of the statute. With this adjustment, the Court wouldn’t need to address TWISM’s constitutional arguments about the separation of powers, the board concludes.

Groups Submit Briefs on Separation of Powers
The Ohio attorney general filed an amicus curiae brief taking no position on which party should prevail in the case. The attorney general instead wrote to ask the Court to “reinvigorat[e] Ohio’s separation-of-powers doctrine” by joining other state supreme courts in overruling the approach that courts must defer to legal interpretations made by executive branch agencies. The attorney general asserts that such deference is unconstitutional. The attorney general has been allotted four minutes of TWISM’s 15 minutes at oral argument to address this issue.

The Buckeye Institute and New Civil Liberties Alliance also submitted amicus curiae briefs arguing that the judicial branch does not owe deference to statutory interpretations made by executive agencies.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing TWISM Enterprises LLC, doing business as valuCADD Solutions: Oliver Dunford, 916.503.9060

Representing the State Board of Registration for Professional Engineers and Surveyors from the Ohio Attorney General’s Office: Michael Hendershot, 614.644.0576

Representing the Ohio Attorney General’s Office as an amicus: Benjamin Flowers, 614.466.8980

These informal previews are prepared by the Supreme Court’s Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews aren’t part of the case record, and aren’t considered by the Court during its deliberations.

Return to top

Are Customers Improperly Charged for New Solar Generation Fund?

In re Establishing the Solar Generation Fund Rider Pursuant to R.C. 3706.46, Case No. 2021-1374
Public Utilities Commission of Ohio


  • Must the Public Utilities Commission of Ohio first determine the annual cost of solar power generation before collecting fees from customers through a solar generation fund rider?
  • Should the Public Utilities Commission of Ohio collect solar generation fund rider fees on a “per account” or a “per customer” basis?
  • Must the Public Utilities Commission of Ohio include language in a solar generation fund rider to provide for refunds, which are specified in state law?

Ohio House Bill 6 took effect in October 2019. It contained a $150 million annual “nuclear generation fund,” and a $20 million “renewable generation fund.” Portions of H.B. 6 were repealed after federal charges were filed against the speaker of the House of Representatives and lobbyists alleging the largest bribery scheme in Ohio history paid for its passage. In 2021, the General Assembly introduced House Bill 128 to retain some of the electric power industry reforms lawmakers sought in H.B. 6.

As introduced, H.B. 128 repealed both funds that were to be collected from customers and paid to solar power generators. Utilities testified that development of solar power generation facilities had already began based on the money from H.B. 6. So, lawmakers then added a “solar generation fund,” which became part of the law when H.B. 128 took effect in June 2021.

The Public Utilities Commission of Ohio (PUCO) then established a solar generation fund rider to collect customer fees for the fund. Under the new law, companies could apply to the Ohio Air Quality Development Authority by February 2020 to receive annual payments for generating electricity through solar power. The law requires the PUCO to collect a charge from all Ohio electric utility customers “sufficient to produce $20 million annually” to fund the payment to the generators. The law directed the commission to charge on a “per customer basis,” and set a rate of no more than 10 cents a month for residential customers. Large industrial electricity users would pay no more than  $242 per month as part of the law. The PUCO was directed to determine an appropriate charge for all other commercial electricity users.

Solar generators receive payments for energy produced in the prior 12 months. The fund is set to expire at the end of 2027. So, the fund is set to close in January 2028 after all possible eligible payments to solar generators are made. At that time, the law requires the air development authority and the PUCO to develop a plan to refund any remaining balance in the fund to customers.

In July 2021, the PUCO approved the solar generation fund rider and set customer charges to collect the $20 million annually. The Ohio Manufacturers’ Association Energy Group (OMAEG) objected to the plan, arguing the PUCO was overcharging electric utility customers, especially commercial customers. The PUCO rejected OMAEG’s objections and implemented the rider.

OMAEG appealed to the Supreme Court of Ohio, which is required to consider these types of disputes. The Court also granted a request by Ohio Power Company (AEP Ohio) to participate in the case.

Parties Debate Meaning of “Sufficient” in New Law
OMAEG argues the PUCO misinterpreted the meaning of the word “sufficient,” as used in R.C. 3706.46(A)(1), which is leading to overcharges. The law states: “Beginning for all bills rendered on or after January 1, 2021, by an electric distribution utility in this state, such electric distribution utility shall collect from all of its retail electric customers in this state, each month, a charge which, in the aggregate, is sufficient to produce a revenue requirement of twenty million dollars annually for total disbursements required under section 3706.55 of the Revised Code from the solar generation fund.”

The PUCO maintains the law simply requires it to coordinate the work of all the electric distribution companies, such as AEP Ohio, to collect $20 million annually. OMAEG argues the law was designed to reward solar generators for the power they produced in the prior year, and that the PUCO has the time and responsibility to assess how much money is needed to reimburse the solar providers for actual costs each year. OMAEG argues the PUCO made no findings regarding which companies are eligible for reimbursement and how much, if any, power they produce. If the solar providers, which are just starting to produce power, earned little to no credits, then the PUCO is needlessly collecting ratepayer money and placing it in a state fund, OMAEG asserts.

OMAEG argues the ordinary meaning of “sufficient” is “having or providing as much as is needed.” The legislature wouldn’t have added the word “sufficient” if it simply expected the PUCO to raise $20 million per year, the organization maintains.

Commercial Customers Face Multiple Charges, Group Asserts
OMAEG notes H.B. 128 originally required that the rider be established on a “per account” basis, and at the urging of commercial customers, the law was changed to charge on a “per customer” basis. OMAEG argues that a single commercial customer may have multiple locations or multiple meters that produce several accounts. However, the law requires that a single business be charged the rider just once.

OMAEG maintains there are other deficiencies with the rider, including the lack of specific language in the PUCO order that requires the remaining balance be refunded to customers. The PUCO asserted that a refund written into the statute doesn’t have to be repeated in a commission order. OMAEG argues that under previous Supreme Court rulings, refunds can only be issued if the “tariff applicable to those rates set forth in a refund mechanism” is in the order. If the PUCO order establishing the rider doesn’t expressly state that the balance is refundable, then the PUCO will lose the right to recoup the money for the ratepayers, the group argues.

Revenue Amount Set by Law, Commission Asserts
The PUCO argues the language in the law requires it to raise $20 million annually, and that the word “sufficient” doesn’t require the commission to independently determine the annual amount to be collected.

Billing on a “per customer” basis doesn’t mean the utilities have to consolidate a business customer’s multiple accounts into one account for the rider, the PUCO maintains. The PUCO instituted a rule that each billing account is the equivalent of a customer and has used that system to implement other riders. The legislature is aware that the PUCO-approved rule defining “customer” means each “billing account” owned by a customer, the commission argues. Lawmakers didn’t choose to write anything into H.B. 128 that would contradict the interpretation, the commission asserts. Because the Court has ruled that the Court should defer to the commission’s interpretation, the Court should adopt the PUCO’s method of collecting the fee from each billing account of business customers, the commission concludes.

The commission also argues it is unnecessary to add a refund clause to the rider. The PUCO explains that the commission doesn’t need to determine if the utilities properly collected and spent money from the rider because the law explains exactly how the funds are to be allocated. Only a rider that requires the commission evaluate if the companies are using the funds correctly would need a clause concerning a refund, the PUCO states. The law itself specifies that any leftover money in the fund must be refunded, and the commission must follow the law, which means it doesn’t need to include any refund language in the rider order, the PUCO concludes.

Commission Correctly Orders Collection Per Account, Power Provider Argues
AEP Ohio explains that the PUCO has consistently defined “customer” as any recipient of electric service and treated each account as a single customer. The rules and the law don’t consider multiple meters or accounts owned by a business to be a single “customer,” the service provider asserts. AEP Ohio notes that OMAEG made the same billing argument in a prior rider case, and it was rejected.

AEP Ohio notes, it and other distribution companies filed comments with the PUCO during the proceedings on the rider, stating that aggregating accounts for billing creates logistical problems. AEP told the commission that it was infeasible and impractical to combine the business accounts into single accounts for implementing riders. AEP also notes that by accepting the business customers’ argument that they are entitled to a consolidated bill would mean other customers would have to pay more to adequately supply the fund. The company urges the Court to adopt the PUCO-proposed collection method.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Ohio Manufacturers’ Association Energy Group: Kimberly Bojko, 614.365.4124

Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Jodi Bair, 614.644.8599

Representing Ohio Power Company: Steven Nourse, 614.716.1608

Return to top