Wednesday, Aug. 1, 2018
In re Application of Black Fork Wind Energy LLC, Case no. 2017-0412
Ohio Power Siting Board
State of Ohio v. Melvin Bonnell, Case no. 2017-1360
Cuyahoga County Common Pleas Court
Ann Wayt v. DHSC LLC dba Affinity Medical Center, Case no. 2017-1548
Fifth District Court of Appeals (Stark County)
Was Law Followed When State Board Extended Timeframe to Start Wind-Farm Construction?
In re Application of Black Fork Wind Energy LLC, Case no. 2017-0412
Ohio Power Siting Board
ISSUES:
- Did the Ohio Power Siting Board amend an express, material term of a certificate to construct and operate a wind farm without complying with the statutorily required procedures for amending a certificate?
- Did the Ohio Power Siting Board alter, waive, or dispense with the statutorily required procedures for amending a certificate without authority?
- Did the Ohio Power Siting Board extend the period within which the certificate holder must “commence a continuous course of construction” without showing good cause?
- Did the Ohio Power Siting Board evade application of the setback requirements that took effect in state law in September 2014?
BACKGROUND:
In January 2012, the Ohio Power Siting Board approved a “certificate of environmental compatibility and public need” for Black Fork Wind Energy to build and operate a commercial wind farm in Crawford and Richland counties. The wind-farm project area encompasses approximately 24,000 acres. The facilities, consisting of up to 91 wind turbines, are designed to span approximately 14,800 acres that Black Fork has leased from 150 participating property owners. The certificate, with a five-year term ending in Jan. 23, 2017, included 80 conditions to attempt to minimize the project’s impact at the site.
A group of landowners, including the appellants in this case, contested the creation of the wind farm. On appeal, the Ohio Supreme Court in December 2013 rejected the landowners’ claims and unanimously upheld the board’s approval of the certificate.
Wind-Farm Operator Requests More Time
Black Fork filed a motion in September 2014, asking the board to approve an extension of the certificate until January 2019. The board approved the extension in 2016. Landowners Gary Biglin, Karel Davis, Brett Heffner, Alan Price, Catherine Price, Margaret Rietschlin, and John Warrington appealed to the Ohio Supreme Court, which is required to consider appeals of the board’s decisions.
The parties note that Black Fork has since submitted an “application for amendment” seeking board approval to further extend the certificate until January 2020. In December 2017, the board approved that extension.
State Law, and Certificate Conditions
R.C. 4906.04 states, “Any facility, with respect to which such a certificate is required, shall thereafter be constructed, operated, and maintained in conformity with such certificate and any terms, conditions, and modifications contained therein.” R.C. 4906.06 requires that “[t]he application [for a certificate] shall be filed not more than five years prior to the planned date of commencement of construction. The five-year period may be waived by the board for good cause shown.”
Condition 70 of Black Fork’s certificate for the wind farm states: “The certificate shall become invalid if the applicant has not commenced a continuous course of construction of the proposed facility within five (5) years of the date of journalization of the certificate.”
Landowners Argue Wind-Farm Operator Used Wrong Process to Extend Time
The property owners maintain that Black Fork’s desire to extend the certificate to January 2019 required the certificate to be amended. Black Fork wanted to change Condition 70, which set a five-year deadline for starting construction, and Black Fork must submit that type of change to the board as an “application to amend” the certificate, the landowners argue.
The board’s rules state that applications to amend a certificate must be submitted “in the same manner as if they were applications for a certificate.” State law describes certain procedures for amendments that include submitting a formal amendment application as well as mandating a board investigation and report, the landowners note. They contend that the board unreasonably and unlawfully allowed Black Fork to amend its certificate through a motion instead of following the amendment procedures in state law and the board’s rules. The board can’t alter or bypass the requirements enacted into law by the Ohio General Assembly, the landowners state.
In addition, the board didn’t find good cause for extending the certificate’s term, they argue. Although the board indicated when it extended Black Fork’s certificate to 2019 that nothing necessitated a re-examination of the public interest factors it reviewed before approving the initial certificate in 2012, the landowners counter that by failing to conduct any re-examination, the board neglected to show good cause for the extension, as required by law.
They also point to legislative changes, effective on Sept. 15, 2014, involving “setback” requirements. The statute in an earlier version established a minimum distance from wind turbines and blades to the nearest residential structure. The legislature adjusted the distance requirement, making it to the “property line of the nearest adjacent property,” instead of to the nearest residential structure. The new setback requirements applied to “any amendment made to an existing certificate after the effective date.” Because the landowners argue that Black Fork’s certificate was amended in 2016, after the law became effective, they maintain that the wind farm must abide by the new setbacks.
When Black Fork requested its latest certificate extension – to 2020, the operator submitted the request as an application for amendment, supporting the landowners’ view that the extension was an amendment subject to statutory procedures, they reason.
Power Siting Board Counters that Extension Was Procedural
The board concluded in its order that the certificate’s extension wasn’t an amendment to the certificate because it was procedural in nature. While the General Assembly didn’t define “amendment” in the context of siting board certificates, it did describe that such amendments involve changes that would result in a material increase in the facility’s environmental impact or that move any part of the facility’s location, the board argues. The board maintains that the extension involved no change to the proposed project facility or its components.
“An extension of the expiration date is not a change to the facility,” the board’s brief to the Court states.
According to the board, the proper method for a facility to ask to extend or waive certificate time limits is by motion. This approach has been the board’s long-standing, unchallenged administrative practice, it indicates.
In its order, the board stated that Black Fork provided good cause for extending the term of the certificate. The board agreed with the operator that initial appeals took two years, preventing Black Fork from starting the project because of its uncertain future. Black Fork also demonstrated that the project’s financing was delayed because of changing market conditions caused by the state’s natural gas boom.
The board maintains that the issue whether the 2014 setbacks apply to the Black Fork project wasn’t relevant to its 2016 consideration whether to extend the certificate’s term to 2019. Those new setback requirements come into play when a facility is seeking to amend a certificate or obtain a new one. In this case, Black Fork’s request wasn’t an amendment to its certificate, the board states. It adds that the landowners have suffered no harm from the two-year extension to Black Fork’s certificate, and the board asks the Court to affirm the 2016 decision.
Wind-Farm Operator Contends Appeal Is Moot
The Court approved a request from Black Fork to intervene in this case. Black Fork’s central argument in its brief is that the appeal now is moot because, after this two-year extension was granted in 2016, Black Fork requested another extension, to January 2020, through an application for amendment, which the board granted. Black Fork believes the Court should dismiss this appeal.
Black Fork also argues that the General Assembly’s changes to the setback requirements in a biennial budget bill violated the one-subject rule for legislation mandated by the state’s constitution. Regardless, Black Fork maintains, the board determined that concerns regarding the setback requirements weren’t before it when considering the certificate extension. In addition, imposing these new requirements would be unconstitutionally retroactive because they impair Black Fork’s right to build the wind farm based on the setbacks in place when the certificate first was approved in 2012.
Certain Groups Won’t Be Permitted to Argue Case
Several other appellees named in the case didn’t submit briefs on the issues and have waived participation in oral arguments. These parties include the Richland and Crawford county commissioners; Richland County engineer; trustees of Plymouth, Sharon, and Sandusky townships; and Ohio Farm Bureau Federation.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Gary Biglin et al.: John Stock, 614.223.9300
Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Werner Margard III, 614.995.5532
Representing Black Fork Wind Energy LLC: Michael Settineri, 614.464.6400
Must Court Grant Hearing When DNA Evidence in Death Penalty Case Lost?
State of Ohio v. Melvin Bonnell, Case no. 2017-1360
Cuyahoga County Common Pleas Court
ISSUE: Under Ohio’s law for postconviction DNA testing requests, must a trial court conduct an evidentiary hearing if an offender claims that denial of the testing would violate the offender’s constitutional rights?
BACKGROUND:
In 1988, Melvin Bonnell was convicted of murdering Robert Bunner in Cleveland and was sentenced to death. Bonnell has filed several unsuccessful actions to have his sentence overturned, claiming he didn’t commit the crime. Through changes in law and advances in technology, Bonnell was able to request DNA testing of crime scene evidence. In 2008, only one piece of evidence admitted at Bonnell’s trial was available for DNA testing — Bonnell’s maroon and gray ski jacket — and it revealed five small traces of the victim’s blood on it. Bonnell then asserted that the state was withholding evidence collected from the night of the crime that could be tested.
In 2017, the Cuyahoga County Prosecutor’s Office submitted a 24-page report to the trial court, accompanied by exhibits and sworn statements, indicating that county officials have searched extensively and cannot locate the items. The trial court dismissed Bonnell’s DNA application, and Bonnell appealed to the Ohio Supreme Court, arguing that the case shouldn’t be dismissed based on the state’s claim that the evidence is lost. He argues he is entitled to a hearing where he can question the prosecutor and others to determine if the evidence is actually lost or is being concealed.
Untested Evidence Might Still Exist, Offender Argues
Bonnell notes that in 1988 DNA evidence wasn’t a forensic tool available to prove or disprove a crime, and argues that he was convicted on the shaky testimony of two unreliable witnesses whose stories changed over time. Bonnell notes that when he was arrested, his hands were bagged to preserve evidence of gunshot residue, his clothes were seized, and his car was searched. Other evidence bearing the victim’s blood on it was taken from the crime scene. He alleges most of the materials were tested, but not introduced at trial or turned over to his defense attorneys, and hasn’t been seen since. He argues that after his conviction, he learned the prosecution failed to turn over exculpatory evidence to him, including the initial interviews of the two eyewitnesses. That leads him to suspect that he never received a fair trial because evidence in the state’s possession would exonerate him, he alleges. Bonnell states the events of that night should reveal far more biological evidence, ripe for DNA testing, that the prosecutors haven’t produced.
Victim Shot, Beaten, Accused Injured on Night of Murder
In November 1987, Robert Bunner shared an apartment with Shirley Hatch and Ed Birmingham on Bridge Avenue in Cleveland. The three began drinking around noon, and Birmingham went to bed around 8:30 p.m. while the other two continued drinking. Around 3 a.m., a man knocked on the door and asked for Bunner. Hatch stated the man, who she later identified as Bonnell, shot Bunner twice. She ran to Birmingham’s room to wake him, and Birmingham entered the kitchen where he saw Bonnell beating Bunner’s head. He told police he pulled the man off Bunner and threw him down the stairs leading up to the apartment. Hatch fled the apartment and called police, who dispatched officers about 3:50 a.m. Birmingham and Hatch told the responding officer they didn’t know the man who shot Bunner and described him as having “long brown hair and a mustache.” However, moments earlier, Hatch told the dispatcher the man had “blond hair and a maroon jacket.” Officers attempted to clarify the conflict, but considered Hatch and Birmingham too intoxicated to interview and agreed to return later to interview them. Bonnell claims that initial report citing the witness intoxication issue was never provided to his defense attorneys.
Bonnell also was drinking that night with a friend named Joey Popil. Popil denied owning a red jacket, but he eventually turned over a red jacket to prosecutors the day before Bonnell’s trial, and it was never tested for evidence. At 3:40 a.m. on the night of the murder, police spotted a car without its lights on driving backwards on Bridge Avenue. Bonnell was driving the car and fled when police tried to stop him. He eventually crashed into a building and was unconscious when police took him to a local hospital for treatment. His hands were bagged to preserve evidence. The white pants, white socks, and maroon and gray jacket he was wearing were eventually gathered by police. The police connected the two incidents, and Birmingham was brought to the hospital where he identified Bonnell as the shooter. Police later traced the trail of the car chase and found a .25-caliber handgun, which they believed Bonnell tossed from the car. The gun was later tested and confirmed to be the gun used to shoot Bunner.
Bonnell didn’t confess, but was convicted primarily on the testimony of Hatch, Birmingham, and the police officers.
Law Requires Right to Seek Evidence to Test, Offender Argues
Bonnell maintains the clothing from the bloody crime scene and his bagged hands should have yielded evidence of Bunner’s blood all over his clothes and gunshot residue on his hands if he had been Bunner’s killer. The state never produced any of that for the trial. A scientist with the county coroner’s office conducted a visual inspection of Bonnell’s maroon jacket and indicated at trial that only Bonnell’s blood was on it. Bonnell argues the 2008 test revealing small spots of blood that could be Bunner’s had to be the result of contamination or improper storage because, if he had been wearing it during the murder, it would have been covered in Bunner’s blood.
Bonnell argues that under R.C. 2953.74(C)(5), the DNA testing of this evidence would be “outcome determinative,” meaning it could likely undermine his conviction. Bonnell argues it would violate his constitutional rights to a fair trial if the state were allowed to avoid testing the material by claiming it no longer exists. He also claims he has a right to a hearing where he could question the officials responsible for collecting and preserving the evidence. He argues that the hearing might lead to the discovery of the evidence, which could prompt the trial court to approve his application for DNA testing.
No Hearing Required, State Maintains
The Cuyahoga County prosecutor argues the Ohio Supreme Court described the evidence of Bonnell’s guilt as “overwhelming” when it first denied his direct appeal of his conviction in 1991. The prosecutor notes that the federal courts also have described the evidence against Bonnell as “extremely strong” in their denial of his appeals. The prosecutor adds that the office agreed to Bonnell’s request to DNA-test his jacket in 2008, and it revealed blood from the victim, undercutting Bonnell’s innocence claims.
The state argues Bonnell has known for years that much of the evidence he seeks wasn’t collected or tested, and that the prosecutors followed R.C. 2953.75(B) when they presented a report to the trial court that no more evidence was available to test.
The prosecutor argues there is no constitutional right to postconviction reviews and that all rights granted by the process come from statutes. Ohio law gives trial courts great discretion in determining whether to order a postconviction DNA test, and doesn’t require the trial court to conduct a hearing before ruling to order DNA testing. The law also doesn’t allow the offender to appeal the denial of a hearing.
The prosecutor asserts that Bonnell failed to meet six requirements under R.C. 2953.74(C) that would trigger the testing, and that the prosecutor’s office used the reasonable diligence required by the law to locate the evidence. The trial court has discretion to rely on the report that no evidence was found and chose to dismiss the DNA testing request based on the report, the prosecutor argues. The state concludes that the trial court doesn’t have to conduct a hearing, and the production of the DNA evidence wouldn’t change the outcome of Bonnell’s death sentence.- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Melvin Bonnell from the Ohio Public Defender’s Office: Kimberly Rigby, 614.466.5394
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Christopher Schroeder, 216.443.7733
Do Ohio’s Caps on Personal Injury Lawsuit Awards Apply to Defamation?
Ann Wayt v. DHSC LLC dba Affinity Medical Center, Case no. 2017-1548
Fifth District Court of Appeals (Stark County)
ISSUE: Do the caps on noneconomic loss awards in tort actions in R.C. 2315.18 apply to the tort of defamation?
BACKGROUND:
In 2006, two Massillon hospitals merged to become Affinity Medical Center. In 2012, registered nurses at Affinity began discussing unionization. Affinity management and some nurses opposed the idea.
Ann Wayt was a registered nurse for 36 years and was hired IN 1987 at one of the Massillon hospitals that became Affinity. Wayt was a vocal supporter of unionization. She also had a notable career at the hospital receiving only positive evaluations, and was nominated by Affinity for a nursing excellence award she won. Affinity featured her in advertisements, praising her excellence.
In August 2012, Wayt was featured in a pro-union poster during the nurse’s union drive, which was successful. Around the same time, the hospital launched an investigation of Wayt for alleged claims of patient neglect and falsification. Affinity noted the results of its investigation in a disciplinary meeting with Wayt and a representative, and then terminated her. It reported its finding to the Ohio Board of Nursing in an attempt to have her license revoked. After being fired, Wayt submitted 57 jobs applications and received two replies from hospitals that didn’t hire her.
Nurse Sues Hospital
Wayt filed a federal lawsuit, and it was determined the facts of the investigation were false. Affinity admitted they knew the information was false but didn’t attempt to withdraw or correct the information sent to the board. Wayt was reinstated to her position.
In November 2012, she filed a lawsuit in Stark County Common Pleas Court alleging several claims. In 2015, after a 10-day trial, the only claim left for the jury to consider was defamation, and the jury found Affinity defamed Wayt. The jury awarded her $800,000 in compensatory damages and $750,000 in punitive damages.
Affinity filed a motion the next month to apply damages caps found in R.C. 2315.18(B)(2) and R.C. 2315.21(D). It sought to have the compensatory damages reduced to $250,000 and the punitive damages to $500,000. The caps on damages for tort actions were introduced and passed by the Ohio General Assembly in 2004 as part of an updated comprehensive “tort reform” act. The trial court noted that it had found no other Ohio court had determined whether the caps apply to claims of defamation. The trial court denied the request and held R.C. 2315.18 doesn’t apply.
Affinity appealed to the Fifth District Court of Appeals, which affirmed the trial court decision, and the hospital appealed to the Supreme Court, which agreed to hear the case.
Caps Apply, Hospital Argues
Both parties contend the language of R.C. 2315.18 is “plain and unambiguous,” but they differ on its application to defamation claims. The hospital notes that R.C. 2315.18(4) defines “noneconomic loss” as “nonpecuniary harm that results from an injury or loss to person or property that is a subject of a tort action, including, but not limited to, pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.”
Affinity maintains that the harm caused by defamation is noneconomic, similar to pain and suffering, and is covered by this provision of the law. R.C. 2315.18(B) notes that in a “tort action to recover damages for injury or loss to person or property,” the caps are applied to compensatory damages awarded for noneconomic loss. The jury awarded noneconomic compensatory damages to Wayt, Affinity argues, subjecting the award to the caps, which should reduce it from $800,000 to $250,000.
Because the limits only apply to a tort action for damages or loss to person or property, the hospital asserts that defamation is a form of an injury to a person. It cites the Ohio Supreme Court’s 1928 Smith v. Buck decision, which found within a citizen’s personal rights are a person’s “good name and reputation.” The hospital states the Court in subsequent decisions has followed Smith and allegations of humiliation and loss of reputation are personal injuries.
Because the law applies to “any tort action seeking damages for injury or loss to person and property” the caps apply to all types of tort cases except those the statute explicitly excludes, which includes several types of personal injury medical claims, the hospital maintains. Affinity notes the legislature’s concern when passing the tort reform act about inflated damage and subjective awards from noneconomic claims, such as pain and suffering or emotional distress.
“Undeniably, and this case presents a perfect example, damages for defamation, like pain and suffering awards, are ‘inherently subjective’ and incapable of any precise measure, and thus it is clear the Legislature intended to cap such damages under R.C. 2315.18,” the hospital’s brief states.
If the compensatory damage award to Wayt is capped at $250,000, R.C. 2315.21(D) limits any punitive damages awarded to no more than two times the compensatory damages, which means the punitive damage award should be reduced from $750,000 to $500,000, the hospital concludes.
Caps Don’t Apply, Nurse Counters
Wayt argues the caps don’t apply and the legislature made it clear in the tort reform act that the law’s intent was to curb noneconomic damages from “negligent” behavior. She notes defamation isn’t a tort of negligence. Defamation is an intentional tort, she explains, in which she was required to prove that Affinity acted with actual malice, which means that Affinity made statements that were knowingly false or with reckless disregard for the truth.
The nurse asserts that damage to reputation isn’t “injury to person” but a separate type of claim. She notes that Article I, Section 16 of the Ohio Constitution states in part that “[a]ll courts shall be open and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law....” Because “reputation” is set apart by “or,” the legislature knew that claims for defamation and attacks on reputations were separate torts that weren’t addressed by the caps, Wayt concludes.
Wayt further notes that the caps are determined by an “occurrence” leading to damages. R.C. 2315.18(A)(5) defines “occurrence” as claims “resulting from or arising out of any one person’s bodily injury.” She argues the caps were intended to limit claims of noneconomic damages when they are coupled with claims of documented economic loss from an injury to a person or property. Bodily injury isn’t part of a defamation claim, so the law doesn’t apply to it, she asserts.
The caps also don’t apply because her injuries were economic, not noneconomic, Wayt maintains, pointing to the trial court’s decision. She notes the trial court found that Affinity never asked the jury to distinguish whether the compensatory damages were economic. Rather, the trial court determined that Affinity sought to damage Wayt in her profession by terminating her and trying to have her license revoked. The trial court wrote that the jury award could be viewed as penalizing Affinity $200,000 each for four instances of defamation. That approach would allow the jury to award $800,000 without applying the caps and permit up to $1.6 million in punitive damages, which the jury didn’t do, Wayt notes. The nurse urges the Supreme Court to support the finding of the trial court and Fifth District.
Friend-of-the-Court Briefs
Two amicus curiae briefs supporting Wayt’s position have been submitted by the Ohio Employment Lawyers Association and the Ohio Association for Justice.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing DHSC LLC dba Affinity Medical Center: Douglas Leak, 330.670.7307
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