High school students from two eastern Ohio counties will have a chance next week to observe legal arguments made before the Supreme Court of Ohio. Some might feel like they instead are in an English class.

In the school auditorium of Buckeye Local High School in Jefferson County, the Supreme Court justices will consider a long-standing dispute regarding six words and a comma. At issue is what the phrase “right to trim, cut and remove” means in a 1948 legal document.

Ohio Edison Company, which has a 1948 easement allowing it to keep plants and other obstructions on a person’s property from interfering with overhead electric power lines, believes the language permits it to use herbicide. The Corder family, which owns Harrison County farmland including 12.1 acres with an easement granted to Ohio Edison, argues that the power company can’t spray chemicals but can only use tools to cut or trim plants and then remove what was pruned from the property.

The legal dispute began in 2017 when the Corders filed a lawsuit in Harrison County Common Pleas Court seeking an injunction to prevent Ohio Edison from using herbicide. The Corders maintained that spraying herbicide was hazardous to their organic farming and to a family member’s health. Ohio Edison has been skeptical of the family’s dedication to organic farming and allegations that its spraying will cause health concerns.

The case reached the Supreme Court in 2020 on the issue of whether the Harrison County trial court could interpret the easement or if that duty belonged to the Public Utilities Commission of Ohio. The Supreme Court ruled the trial court should determine what the parties meant by the phrase “right to trim, cut and remove.” In 2021, the trial court found the language didn’t authorize using herbicide. Ohio Edison appealed the decision to the Seventh District Court of Appeals, which affirmed the trial court’s decision.

Ohio Edison appealed the decision to the Supreme Court, which agreed to consider the case again.

Multiple Definitions Lead to Conflicting Interpretations
Ohio Edison argues the 1948 easement should be interpreted by its overall purpose, which was to grant the company the right to come on the Corders’ land to ensure the power lines are not obstructed. The company argues the language gives it three “overlapping” rights -- to trim, cut, or remove plants that can interfere with the lines. Ohio Edison asserts that the lack of a comma between “cut” and “remove,” which is common in such easements from that time, shouldn’t lead to such a narrow interpretation that confines the utility only to use tools to take down the trees and other plants. The company has 7,000 miles of power lines in Ohio, and such an interpretation could impact thousands of easements and potentially raise the costs of maintaining the lines.

The Corders didn’t own the property when the easement was signed. To determine what “remove” might have meant at the time, Ohio Edison looked at definitions in the 1948 edition of Webster’s New International Dictionary. Among the definitions of “remove” are “to eradicate” and “to eliminate.” The company argues that in the context of the easement, that is a proper way to interpret “remove” and justifies using herbicide.

The Corders argue the more typical meanings of “remove” in the 1948 dictionary include “to shift the location” or “take away,” which is exactly what the easement allows. The only right Ohio Edison has is to trim or cut the vegetation and then remove it and not leave branches and limbs on the property, the family asserts.

Analogy to Court Proceeding Draws Snappy Comeback
In their brief presented to the Supreme Court, the Corders explain why Ohio Edison has chosen the wrong interpretation of “remove.” The brief states:

“Imagine, for example, a judge becoming exasperated with counsel at oral argument: ‘That’s enough! Bailiff, remove attorney Smith!’ The bailiff would (one hopes) understand that he had not been instructed, as though by a movie villain, to ‘eliminate’ or ‘eradicate’ the offending barrister. Certainly, it would be unreasonable to spray poor attorney Smith with chemicals until he died. The bailiff would, instead, physically move attorney Smith from his location in the courtroom to one elsewhere, as the context makes clear.”

In a reply brief, Ohio Edison maintains the courtroom example explains why it should be allowed to spray herbicide. When the judge orders, “Bailiff, remove attorney Smith!,” the judge is not telling the bailiff how to remove Smith, the company asserts. Instead, the judge is “invoking the special authority and expertise of the bailiff,” the Ohio Edison brief states.

“In some cases, the bailiff will ‘remove’ the attorney by raising an eyebrow; sometimes, the bailiff will use a hand on the attorney’s shoulder; sometimes he or she will remonstrate with Smith verbally; and sometimes, indeed, if the attorney is presenting a threat to the safety of the public, the bailiff will use handcuffs, tasers, or volatile pepper spray, creating risks that are justified in light of the larger risks at hand,” the brief states.

Ohio Edison likens itself to the bailiff and the easement as the judge. The easement grants the company the right to use its judgment to care for the power lines, and if the company needs to use herbicides, it is authorized to do so, Ohio Edison concludes.

Along with Corder v. Ohio Edison, the Court will hear two other cases at Buckeye Local on Wednesday, Oct. 25. The justices will be presiding before an audience of about 500 students from Jefferson and Harrison counties.

Watch Oral Arguments Online
Before taking up the cases at the high school, the Court will consider two cases on Tuesday, Oct. 24, at the Thomas J. Moyer Ohio Judicial Center in Columbus. Oral arguments begin each day at 9 a.m. The arguments will be streamed live online at supremecourt.ohio.gov and broadcast live on the Ohio Channel, where they are archived.

Detailed case previews from the Court’s Office of Public Information are available by clicking on each case name.

Tuesday, October 24
Lead Paint Liability
A Cleveland paint company must pay nearly $102 million as part of a settlement in California about the harm caused by lead paint use in residences. The company filed claims with multiple insurers for coverage. After the insurers declined coverage, the company sued. In The Sherwin-Williams Company v. certain underwriters at Lloyd’s of London, the paint company maintains that the settlement for removing and remedying the effects of lead paint qualifies as damages, which is covered by the insurance policies. The insurers respond that the policies don’t cover the company’s liability because the settlement doesn’t compensate for past losses or injuries.

Pipeline Taxes
In 2020, the Ohio tax commissioner determined that $1.42 billion was the 2019 taxable value of personal property related to a natural gas pipeline. The pipeline is 256 miles long and crosses through 13 northern Ohio counties. The pipeline owner appealed, and the tax commissioner agreed in 2022 to set the personal property value at $950 million. They also decided values for 2020 and 2021. The auditor in one of the 13 counties appealed. In Snodgrass v. Ohio tax commissioner, the auditor argues that state law gives county auditors the right to appeal the tax commissioner’s decision. The pipeline owner counters that the tax commissioner is authorized to resolve tax disputes and the settlement resolved the issue. Two school districts and eight other county auditors support the agreement on the tax value.

Wednesday, October 25
Vehicle Search
In March 2021, a Geauga County police officer was using a law enforcement database to randomly check vehicle registrations of passing cars when he spotted a car owned by a woman with a suspended license. The database described the owner as a shorter white woman. When the officer pulled over the car and approached, he found a taller, Black man driving. He asked for the driver’s identification and learned the man had a suspended driver’s license and an outstanding arrest warrant. The officer then searched the vehicle and found an unloaded gun and ammunition. In State v. Dunlap, the Court will consider whether the officer had the right to ask the driver for his identification and search the car without a warrant once he learned the owner with the suspended license wasn’t driving.

Public Records
A Columbus newspaper reporter in April 2020 requested death certificate data from the state health department database. He was seeking information about deaths caused by COVID-19. Six months later, the health department provided the data, except for the names and addresses of the deceased. The reporter in Ludlow v. Ohio Department of Health maintains that death data gathered by the department is a public record. He also argues public access to the records promotes government transparency. The health department contends that names and addresses can’t be disclosed because they are protected health information under state law.