Wednesday, Dec. 16, 2015
In the Matter of the Application of Champaign Wind, LLC, for a Certificate to Construct a Wind-Powered Electric Generating Facility in Champaign County, Case no. 2013-1874
Ohio Power Siting Board
County of Wayne et al. v. Ricky Baker, Administrator, Case no. 2014-2079
Ninth District Court of Appeals (Wayne County)
State of Ohio v. Delaquan Brookshire, Case no. 2015-0192
Second District Court of Appeals (Montgomery County)
Disciplinary Counsel v. Raymond L. Eichenberger III, Case no. 2015-1315
Franklin County
Did Ohio Power Siting Board Properly Vet Application for New Wind Facility?
In the Matter of the Application of Champaign Wind, LLC, for a Certificate to Construct a Wind-Powered Electric Generating Facility in Champaign County, Case no. 2013-1874
Ohio Power Siting Board
ISSUES:
- Did the Ohio Power Siting Board err in its proceedings to consider Champaign Wind’s application for an electricity-generating wind facility?
- Did the appealing parties receive a fair hearing from the Power Siting Board?
BACKGROUND:
For the second time in three years, six of seven parties to a previous appeal again ask the Ohio Supreme Court to either reject an Ohio Power Siting Board’s (OPSB) approval to build another electricity-generating wind facility or remand the case to correct the OPSB’s errors they claim occurred during the application-vetting process.
In 2012, the Court affirmed an OPSB decision to approve an application from Buckeye Wind for a Champaign County wind farm (In re Application of Buckeye Wind), thus clearing the way for construction of the state’s first electricity-generating wind facility. The Court’s current case involves Champaign Wind, which, like Buckeye Wind, is a subsidiary of EverPower Wind Holdings. It, too, made application to the OSPB to build another wind-powered facility in the same area of the county.
The parties appealing the OPSB’s approval of the second wind facility include four public entities, Champaign County, and the townships of Goshen, Union, and Urbana. Union Neighbors United (UNU) is a 10-member non-profit corporation from which three members also are party to the appeal. (Only one party in this group of seven is new to an OPSB appeal to the Supreme Court. Union Township is participating in the 2015 case, while Salem Township participated as a party to the 2010 case.)
Champaign Wind made application to the OPSB in May 2012 for a certificate of environmental compatibility to construct a wind-powered electric generation facility consisting of up to 56 wind-turbine generators, as well as all of the maintenance and operations structures to operate the facility. This application is often referred to as Buckeye Wind II.
After testimony from dozens of witnesses, the OPSB approved the application with more than 70 ordered conditions, and issued a certificate on May 28, 2013. The board denied a motion for a rehearing to accept new evidence on Sept. 30, 2013.
The county and townships appealed to the Court on Nov. 26, 2013, while the Union Neighbors United appealed the next day. Additionally, the Court granted a motion allowing Champaign Wind to intervene as an appellee in the case in February 2014.
At Issue for Champaign County and the Three Townships
The county and townships ask the Court to reverse the OPSB orders or, at the least, remand the case with orders to correct errors.
First, they claim the OPSB failed to require Champaign Wind to post adequate financial assurance for necessary costs needed when the project is decommissioned, likely in 20 to 25 years. Planning for decommissioning is necessary in the industry because the wind turbines have a 20- to 25-year life expectancy to generate electricity. Once electricity is no longer generated, the turbines are dismantled and removed.
Next, the county and townships claim the OPSB erred by failing to require that setbacks from the turbines to non-participating landowners’ property lines conform to the manufacturer’s setback recommendations. On this point, the OPSB approved Champaign Wind’s request for setbacks to equal 541 feet from a turbine to a non-participating landowner’s property line and 919 feet between a turbine and a non-participating residence. The county and townships claim one turbine manufacturer’s safety manual recommended a setback of 1,300 feet, which they believe should be the requirement.
Finally, the same parties claim the OPSB erred in its proceedings and did not allow for “due process,” because the parties could not cross-examine experts regarding parts of the Champaign Wind application.
On all points, the county and township parties called the OPSB decisions to approve the Champaign Wind application and its disallowing of a rehearing both “unreasonable and unlawful.”
At Issue for Union Neighbors United
The UNU claims both a constitutional question, as well as specific safety issues. First, its lawyers make claim in the brief to the Court that the OPSB’s actions are unreasonable and unlawful by “finding a wind power facility serves the public interest, convenience and necessity, where the only basis for its finding is an unconstitutional statute.”
The UNU attorneys maintain the OPSB’s determination that the new project meets the public need “rests on its finding the Project’s power could be purchased by utilities to satisfy their mandate under R.C. 4928.64(B)(3) to procure in-state renewable energy. Because this mandate violates the Commerce Clause of the U.S. Constitution, UNU filed a motion for rehearing asking OPSB to reconsider its finding of public need. OPSB responded that it ‘must continue to follow the statute until directed otherwise by the Court.’”
Further, the UNU claims state that Ohio’s Alternative Energy Portfolio Standard, which, in part, requires at least half of the state’s renewable energy procurement to be from facilities located in Ohio is a violation of the Commerce Clause of the U.S. Constitution. They also maintain that the U.S. Supreme Court “has construed the Commerce Clause to have a ‘negative’ or ‘dormant’ aspect that prohibits the states from unjustifiably burdening or discriminating against the flow of interstate commerce,” and went on to state, “The U.S. Supreme Court has cited the Dormant Commerce Clause as grounds to invalidate numerous state laws that have discriminated between in-state and out-of-state sources of energy.”
The UNU also claims the OPSB abused its discretion because it “quashed” subpoenas for discovery, didn’t allow evidence or testimony on certain safety issues, including “blade throw,” and violated its statutory duty “to approve only utilities that represent the minimum adverse impact” because the board’s approval permits damaging turbine noise.
Same Issues in Dispute
The attorneys for Champaign Wind point out that the Court in its 2012 Buckeye Wind decision stated, “…This Court noted that it can reverse, vacate or modify an order of the Board only if the order is found to be unlawful or unreasonable based on the record.”
Assuring that the board conducted a thorough and fair review in its brief, the state’s attorneys went on, “The Appellants in this appeal disagree, taking issue as they did in the Buckeye Wind proceeding with the Board’s governance of its proceedings and repeating their concerns from Buckeye Wind about blade shear, decommissioning, setbacks and noise.”
They conclude by stating, just as they did in Buckeye Wind, that the appealing parties want the Court to “revisit the Board’s procedural rulings, reweigh the evidence and remand the matter for further hearing.” They point out that the Court wrote in its 2012 opinion that it was “difficult to understand what additional hearings might accomplish.”
In response to other issues raised by the appealing parties, the board’s attorneys maintain:
- The parties’ subpoenas were determined to be overly broad and, if left to proceed, likely would be burdensome to organizations that weren’t relevant to the application; the parties didn’t make an effort to better specify the information they sought through subpoenas.
- The county and townships mistakenly referenced a 1,300-foot setback recommendation from manufacturer Gamesa’s safety manual, and point out that Champaign Wind hasn’t selected a manufacturer; nor should a manufacturer’s safety manual be held as the standard, when its 1,300-foot setback recommendation refers only to emergency situations, such as a fire in the turbine.
- The constitutional issue is irrelevant because the UNU has no standing in the issue; the UNU isn’t a participant in the renewable energy market and, thus, is not part of a protected class.
The UNU mistakenly asserts that the “only basis” for the board’s decision is the statute mandating in-state renewable-energy use. “This is simply false,” they wrote. “The Board specifically stated (in its May 2013 order) that the in-state renewable energy requirement merely ‘adds support’ to finding that the project is in the public interest....”
Additional Briefs
Three briefs of amicus curiae were filed in support of the Ohio Power Siting Board:
- Ohio Farm Bureau Federation and Champaign County Farm Bureau
- The American Wind Energy Association
- Environmental Law & Policy Center and Ohio Environmental Council
- Carol Taylor
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Champaign County, and Goshen, Union, and Urbana Townships: Jane Napier, 937.484.1900
Representing Champaign Wind (Intervening Appellee): Howard Petricoff, 614.464.5414
Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Werner L. Margard, 614.466.4397
Representing Union Neighbors United (UNU), Robert McConnell, Diane McConnell, and Julia F. Johnson: Jack A. Van Kley, 614.431.8900
Was Wayne County Liable for Teenager’s Fatal Auto Accident?
County of Wayne et al. v. Ricky Baker, Administrator, Case no. 2014-2079
Ninth District Court of Appeals (Wayne County)
ISSUES:
- Did the Ninth District Court of Appeals properly interpret the statutory definition of “public roads” in its decision to reverse and remand?
- Does the governmental immunity exception apply to Wayne County given the mid-repaving state of the roadway at the time of the decedent’s accident?
BACKGROUND:
In October 2011, 17-year-old driver Kelli Baker died early one morning from injuries resulting from a one-car automobile accident in Wayne County. The accident investigation determined that the driver’s right-side tires went off the roadway, dipping onto the berm, and sending the car into a spin when she overcorrected her steering first to the left and then to the right. The car stopped after it hit a tree and erupted into flames. At the time of the accident, it was dark, with light rain.
The accident happened on County Road 44 (CR 44), a two-lane road that was repaved the full width of the roadway on the day before the accident using a “scratch paving” technique, which added about 1 inch to 1.5 inches of asphalt on top of the existing pavement. In the days after the accident, the county completed the road-repair project by adding material to the berm along the road’s edges and by striping the road. According to a deposition of an Ohio State Highway Patrol trooper, it is believed that speeding contributed to the accident; however, the speed was not determined.
The parents of the girl filed a complaint for wrongful death with the Wayne County Court of Common Pleas in early June 2012 and named the County of Wayne, the Wayne County Commissioners and “unnamed employees” as defendants. Claiming governmental immunity according to R.C. 2744.01, according to its merit brief, Wayne County filed a motion for summary judgment on April 4, 2013, following “an exhaustive round of discovery, including numerous depositions.” Although the Bakers filed a memorandum in opposition, the trial court granted Wayne County’s motion on June 4, 2013, basing its decision on the Seventh District Court of Appeals’ 2008 decision in Bonace v. Springfield Twp. The Bakers appealed and on Aug. 18, 2014, the Ninth District Court of Appeals reversed the trial court’s decision and remanded the case. Wayne County appealed to the Supreme Court in December 2014 and the Court agreed to consider the case.
Statutory Definition of “Public Roads”
R.C. 2744.01(H) states:
“‘Public roads’ means public roads, highways, streets, avenues, alleys, and bridges within a political subdivision. “Public roads” does not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic control devices are mandated by the Ohio manual of uniform traffic control devices.
Amendments to R.C. Chapter 2744 were enacted in April 2003. The amendments narrowed the exceptions to governmental immunity. In fact, in Howard v. Miami Twp. Fire Dept., the Supreme Court wrote in 2008 that the General Assembly’s amendments to this statute were “a deliberate effort to limit political subdivisions’ liability for injuries and deaths on their roadways.”
Wayne County’s attorneys maintain that the Bakers’ complaint focuses on an approximately 5-inch drop from CR 44’s repaved road-side surface to the berm as the cause of their daughter’s accident. Wayne County, however, stated, “Given this limited definition (stated above), as a matter of law, the condition of the ‘berm’ of CR 44 does not trigger the immunity exception set forth in R.C. 2744.02(B)(3).”
The Ninth District’s ruling aligns with the Bakers’ stance and took a more expansive approach in its interpretation of the “public-roads” definition statute. The Ninth District stated, “In the context of a road that is subject to a repair or maintenance project that extends from day-to-day in various stages of completion, such as the one at issue in this case, we believe that the better analysis is to consider a ‘public road’ to be the area under the control of the political subdivision, subject to the ongoing repair work, and open to travel by the public.”
In Proposition of Law No. 1, which the Supreme Court will consider, the Wayne County attorneys rebuke the Ninth District’s interpretation, which they maintain effectively rewrites the statute. Wayne County is adamant that R.C. 2744.01(H) is the exclusive “public roads” definition “for purposes of determining the immunity of a political subdivision in all claims which allege a negligent failure to maintain.” In reference to the Ninth District’s ruling, they state that “there is nothing set forth by the General Assembly in the Political Subdivision Tort Liability Act offered as support for such a definition. The actual statutory definition does not provide any distinction for a road undergoing repair or reconstruction.”
Proposition of Law No. 2, also for the Court’s consideration, also focuses on the statutory definition of “public road.” Wayne County maintains that “an ‘edge drop’ at the limit of a paved roadway is not part of a ‘public road,’ and a political subdivision is entitled to immunity when a motor vehicle accident is premised on a condition of a term, shoulder, edge or right-of-way.” Consequently, they believe, any claims regarding the berm causing the accident are irrelevant, because the berm, by law, is not part of a “public road” for which they would be liable. (Note: The merit brief from the Bakers’ attorney pointed out that the word “edge” is not mentioned in the statute.)
In all points, Wayne County contends that it was entitled to summary judgment by the trial court and asks the Supreme Court to reinstate the summary judgment.
Ninth District’s Ruling
The appellate court ruled that the local court misapplied Bonace because the facts of the 2008 case do not fit the facts of the Bakers’ case. Specifically, the court stated that no previous case law dealt with road conditions affected by ongoing maintenance or repaving.
The Ninth District’s opinion states, “In the context of the ongoing construction project, the County could be liable for negligent failure to keep County Road 44 in repair under R.C. 2744.02(B)(3). The trial court, therefore, incorrectly determined that the County was immune under the analysis set forth in Bonace and did not consider whether County Road 44 was ‘in repair’ for purposes of R.C. 2744.02(B)(3).”
Parents Claim Ninth District Ruled Properly
The Bakers’ attorneys maintain that the Ninth District opinion did not rewrite the statute or usurp the General Assembly’s authority, but rather applied the statutory definition to the specific facts of the case. In their merit brief, the Bakers state, “All the Ninth District’s Opinion did was find that, under the unique circumstances of this tragic accident, a question of fact exists as to whether the County met its duty to keep C.R. 44 in repair on the date in question. As a result, a jury question exists and the Ninth District’s Opinion should be affirmed and this matter remanded to the trial court for trial.”
Further, the parents claim that absent white striping on the roadway at the time of the accident, the public roadway extended from edge to edge of the asphalt, regardless of whether the asphalt extended down the road sides toward the berm. Their attorneys state, “Had the edge lines been painted, then the ‘public road’ would have been only the space between the lines, and under those circumstances, the County would have been entitled to immunity pursuant to R.C. § 2744. However, under the unique circumstances of this case, the exception to immunity under §R.C. 2744(B)(3) applies because the County failed to keep the entire roadway in repair from edge to edge.”
Additional Briefs
Multiple briefs of amicus curiae were filed in support of Wayne County, including from six large Ohio municipalities, the County Commissioners Association of Ohio, and the Ohio Township Association. Additionally, the Ohio Association for Justice filed a brief of amicus curiae in support of the Bakers.
- Carol Taylor
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing County of Wayne, Wayne County Board of Commissioners, and their unnamed employees: James F. Mathews, 330.499.6000
Representing Ricky Baker and Sharon Baker, individually and as administrators of the estate of Kelli Baker: Bradley J. Barmen, 216.344.9422
Must Trial Courts Return Some Convictions to Juvenile Courts for Sentencing?
State of Ohio v. Delaquan Brookshire, Case no. 2015-0192
Second District Court of Appeals (Montgomery County)
ISSUE: Once an adult court determines under R.C. 2152.121(B)(4) that at least one charge for which a juvenile was convicted is subject to mandatory transfer, is that court permitted to sentence the juvenile under R.C. Chapter 2929 on all charges in the case, or must the adult court complete a separate analysis under R.C. 2152.121(B) for each charge individually?
BACKGROUND:
Complaints of delinquency were filed against Delaquan Brookshire in Montgomery County Juvenile Court after the robbery of a Huber Heights Burger King restaurant on Jan. 9, 2013, and the robbery of a Huber Heights Penn Station restaurant 11 days later. In both incidents, employees were held at gunpoint.
The state requested that the cases against Brookshire, 17, be transferred to the common pleas court so he could be tried as an adult. The juvenile court determined that all the charges included firearm specifications, or enhancements because a firearm was used during the robberies, which made Brookshire subject to a mandatory transfer from juvenile court to the criminal court. The juvenile court approved the transfer.
In March 2013, a grand jury indicted the teen on five counts of aggravated robbery and eight counts of kidnapping in the two crimes. All counts included the firearm specifications. Brookshire agreed to plead guilty to three counts of aggravated robbery, three counts of kidnapping, and one firearm specification. The court sentenced him to nine years in prison.
Brookshire appealed to the Second District Court of Appeals, arguing in part that the criminal court wasn’t authorized to sentence him on the five counts he pled guilty to that included no firearm specifications because those offenses should’ve been sent back to the juvenile court for a hearing. The appeals court ultimately ruled that the aggravated robbery crimes were subject to mandatory transfer from juvenile to criminal court, which could then sentence Brookshire for those offenses. However, the Second District determined that the kidnapping charges Brookshire pled guilty to wouldn’t have been required to be sent to criminal court, so they had to be returned to juvenile court to consider how to dispose of the case.
The Ohio Supreme Court rejected appeals from both parties, but agreed to address a conflict between the Second District’s ruling and a case from the Eighth District Court of Appeals (State v. Mays, 2014).
Prosecutor’s Position
Because at least one of offenses alleged against Brookshire was subject to mandatory transfer from juvenile to criminal court, attorneys from the Montgomery County Prosecutor’s Office contend the juvenile court properly transferred Brookshire’s entire case to the criminal court. At that point, they argue, the juvenile court lost jurisdiction over all allegations presented in the complaint.
In their view, the relevant statute, R.C. 2152.121, governs the mandatory or discretionary transfer of whole cases, not of individual offenses. The law also explains a “reverse bindover procedure,” or how sentences should be imposed in these cases. The attorneys maintain that because Brookshire was convicted of a mix of crimes – some that would’ve been required to be transferred out of juvenile court and some that didn’t have to be moved – he still had at least one offense subject to mandatory transfer and, therefore, the criminal court had jurisdiction over the entire case under subsection (B)(4) of the law. Given that, the criminal court had to sentence Brookshire on all counts.
They argue in the brief to the Court that the General Assembly couldn’t have intended to create “a mishmash of part-prison, part-juvenile adjudication” in the statute.
Juvenile’s Contentions
Attorneys for Brookshire respond that there has been a move away from over-criminalization of juveniles and their mandatory treatment as adults in the juvenile justice system. Brookshire’s attorneys argue that the legislature’s recent amendments to R.C. 2152.121 give juvenile courts jurisdiction over convictions that aren’t subject to mandatory transfer into criminal court.
They maintain that subsection (B)(3) of the statute applies in this case, and that trial courts must separately analyze each offense for sentencing. When a juvenile is convicted of a crime that would’ve been subject only to discretionary, rather than mandatory, transfer to the criminal court, then the trial court imposes a sentence for each discretionary-transfer crime, but must stay that sentence and send the matter back to the juvenile court to consider, they assert.
The purpose of the “reverse transfer” law is to allow the juvenile court to decide whether the child is “amenable” to rehabilitation for certain crimes rather than punishment in the adult courts, they contend. In their view, children should be held in the juvenile system for less serious offenses to receive the benefit of rehabilitative efforts before serving an adult sentence in prison for more serious crimes.
- 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 Montgomery County Prosecutor’s Office: Andrew T. French, 937.225.5757
Representing Delaquan Brookshire from the Ohio Public Defender’s Office: Sheryl A. Trzaska, 614.466.5394
Attorney Discipline
Disciplinary Counsel v. Raymond L. Eichenberger III, Case no. 2015-1315
Franklin County
The Board of Professional Conduct has recommended to the Ohio Supreme Court that Raymond L. Eichenberger III be suspended from practicing law in Ohio because he mismanaged his IOLTA account and didn’t cooperate during the disciplinary process.
A panel of the board found that while no clients were harmed by Eichenberger’s actions and he has no prior disciplinary record, there was enough evidence that he violated Rules of Professional Conduct and Rules for the Government of the Bar of Ohio to warrant a two-year suspension, with one year stayed on conditions. The panel noted, however, that he never showed remorse for “intentional and willful alteration of records” and was deceitful and uncooperative throughout the investigation and hearing.
The board decided, however, that his misconduct during the process placed Eichenberger at a higher level than similar disciplinary cases and amended the sanction to a full two-year suspension. He could be reinstated by completing a continuing legal education course about law firm financial management and working with a mentor attorney to provide oversight of compliance with IOLTA requirements. Eichenberger denies he’s done anything wrong and is asking that if the Court finds he must be disciplined, that it “fit the circumstances of the case.”
Background
Eichenberger has been a lawyer for 35 years – most of time in Reynoldsburg as a sole practitioner. Like all Ohio lawyers, he has an IOLTA trust account to hold client funds in escrow. In May 2013, the Office of Disciplinary Counsel received a notice that Eichenberger’s account was overdrawn. Eichenberger dismissed the overdraft as an unauthorized attempt to make a withdrawal from an account that was in the process of being closed. The disciplinary counsel tried several times to get Eichenberger to turn over copies of his bank statements around the time of the overdraft, and finally subpoenaed the bank for the records. According to the disciplinary counsel and the board, the records showed more than 200 instances of improper transactions in two years, including payments for Memorial Tournament badges and Columbus Symphony tickets.
Attorney’s Argument
Eichenberger, who is representing himself, contends he did cooperate with requests for the bank records. In his brief to the Court, he denies intentionally altering the records, and calls the difference in his documents and the subpoenaed documents a “copying error.” He claims having his records subpoenaed without his knowledge violated his constitutional right to due process, and that the evidence proves that he wasn’t spending client funds for personal use.
He points to previous cases that he contends are similar circumstances to his, including Disciplinary Counsel v. Roberts (2008), where the Court has decided public reprimands are appropriate. He asserts that in his case “anything but a public reprimand or dismissal of the [c]omplaint would be an outrage and fundamentally unfair ....”
Eichenberger has waived his right to appear before the Court for oral argument.
Disciplinary Counsel’s Answer
The disciplinary counsel, which investigated and brought the misconduct charges to the board, writes in an answer to Eichenberger’s claims that there was “clear and convincing evidence” that he did violate professional conduct rules. Among the evidence presented: the checks and authorized withdrawals from his IOLTA account to pay personal and office expenses, account records that show years of mismanagement, and his “evasive and misleading” responses during the investigation.
On Eichenberger’s other objections, such as the “copy error,” the disciplinary counsel states damaging information was left out in the middle of a page he’d provided to investigators. As to the contention his rights were violated when bank records were subpoenaed without his knowledge, the disciplinary counsel points out board regulations do not require notice during the investigatory process. Further, the disciplinary counsel notes, he was warned in writing the records would be subpoenaed if he didn’t produce the documents.
The disciplinary counsel concludes that the discipline cases cited by Eichenberger resulting in public reprimands aren’t applicable and a two-year suspension is warranted in his case.
- Stephanie Beougher
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256
Raymond L. Eichenberger III, pro se, 614.866.9327
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 are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.