Tuesday, June 26, 2018
State of Ohio v. Anthony Apanovitch, Case no. 2016-0696
Eighth District Court of Appeals (Cuyahoga County)
In the Matter of the Application of Ohio Power Company for Authority to Establish a Standard Service Office, Case no. 2017-0749; and In the Matter of the Application Seeking Approval of Ohio Power Company’s Proposal to Enter into an Affiliate Power Purchase Agreement, Case no. 2017-0752
Public Utilities Commission of Ohio
George Daher v. Cuyahoga Community College District et al., Case no. 2017-0828
Eighth District Court of Appeals (Cuyahoga County)
Disciplinary Counsel v. Richard A. Oviatt, Case no. 2018-0537
Cuyahoga County
Prosecutor Challenges New Trial Granted to Man on Death Row for 1984 Rape and Murder of Cleveland Woman
State of Ohio v. Anthony Apanovitch, Case no. 2016-0696
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Was a federal court’s factual finding in a habeas proceeding a settled issue that could be used in the subsequent state court proceedings in the case?
- May a claim of a defective indictment be raised or considered in post-conviction proceedings?
- Does an indictment with multiple, identical counts violate a defendant’s protections against double jeopardy when the evidence at trial delineates a separate factual basis for each count?
The Ohio Supreme Court also ordered the parties to address three additional issues after briefs were filed in the case. Those issues are explained in the preview.
BACKGROUND:
Mary Ann Flynn was found dead in her Cleveland house on Aug. 24, 1984. She had been beaten, raped, stabbed in the neck with a piece of wood, and murdered. During the investigation, police questioned Anthony Apanovitch, whom Flynn had hired in July to paint her house.
Apanovitch was indicted in October 1984 for aggravated murder, aggravated burglary, and two counts of rape. Witnesses testified that Flynn said Apanovitch had propositioned her and she was afraid of him. The state’s case also relied on: a mark on Apanovitch’s face described as consistent with a fingernail scratch seen the day after the murder; his inconsistent and uncorroborated accounts of his whereabouts during the timeframe of the murder; his familiarity with Flynn’s house; his blood type; and the sexual interest he expressed toward Flynn. Also, Apanovitch and Flynn spoke on the day of her murder.
The jury found Apanovitch guilty on all counts and recommended the death sentence. In January 1985, the trial court sentenced him to death and, for the aggravated burglary and two rape convictions, to consecutive terms totaling 45 to 75 years in prison.
Apanovitch Files Several Appeals
Apanovitch’s convictions and sentence were upheld by the Eighth District Court of Appeals in 1986 and the Ohio Supreme Court in 1987.
He also filed requests, called petitions, for post-conviction relief, which are civil proceedings brought by someone convicted of a crime attacking the conviction and asserting constitutional rights. In 2012, Apanovitch filed a fourth petition for post-conviction relief in the Cuyahoga County Common Pleas Court based on new DNA evidence.
“Lost” DNA Found
DNA evidence was gathered as part of the autopsy of Flynn’s body in 1984. A coroner took vaginal and oral swabs and created two sets of slides from the samples. One set was referred to as the “trace evidence slides”; the other, as the “pathology slides.”
Apanovitch states that he requested DNA testing in 1989, but the state told him the slides were lost or destroyed. However, a trace evidence scientist for the county found one of the sets (containing one vaginal and two oral slides) in 1991 in a locked desk drawer of a scientist who no longer worked there. The trace evidence slides were sent to Forensic Science Laboratory (FSA) in California for DNA testing. The lab’s 1992 report stated that the small quantity of DNA on two slides had deteriorated and couldn’t be tested, but one slide, containing evidence taken from Flynn’s mouth, was suitable for testing.
In a federal court proceeding, the prosecutor asked the court to authorize taking a sample of Apanovitch’s DNA to compare with the DNA on the trace evidence slide that could be tested. In 1993, though, the federal court dismissed Apanovitch’s case, and he appealed to the Sixth U.S. Circuit Court of Appeals.
While various other claims were winding through state courts, the Cuyahoga County coroner in 2000 tested the two slides that FSA couldn’t test (one oral and one vaginal), but didn’t retest the one FSA successfully tested in 1992. Like FSA, the coroner’s office concluded there wasn’t enough material on the two slides to test. Meanwhile, the second set of slides – the pathology slides – were located, and the coroner’s office tested them.
Federal District Court Approves DNA Testing
In October 2006, the Sixth Circuit ruled on Apanovitch’s appeal of the 1993 dismissal, sending three issues back to the federal district court to reconsider and remanding the state’s request to conduct DNA testing. The district court granted the prosecutor’s motion for DNA testing.
FSA conducted the testing, and its July 2007 report stated that “Apanovitch cannot be eliminated as the source of the spermatozoa” in the sample taken from Flynn’s mouth. The federal district court in its 2009 ruling described the new DNA evidence as “highly inculpatory,” noting that “[o]nly 1 in 285 million Caucasians have DNA consistent with that left by Flynn's killer” and Apanovitch’s DNA was one of them. The court rejected Apanovitch’s legal claims. Apanovitch protested, arguing that the district court should’ve held an “evidentiary hearing,” to evaluate whether to allow the DNA evidence, before considering it. But the district court responded that its review of the documents filed was enough and that no hearing was necessary.
The Sixth Circuit affirmed, stating that any claims Apanovitch had made about the prosecutor withholding evidence during trial didn’t undermine what was now the most crucial evidence against him. The evidence was “enlightening” in relation to whether Apanovitch was innocent, the court noted. However, because Apanovitch had withdrawn his actual innocence claims, the Sixth Circuit concluded that the DNA evidence wasn’t relevant for its ruling, and the court didn’t address a chain-of-custody issue or interpret the DNA evidence.
Apanovitch’s Expert Reviews Vaginal Slide
In 2009, though, an expert for Apanovitch examined some of the DNA evidence – specifically, only those slides that both the Cuyahoga County coroner and FSA had tested. This review didn’t include the sample FSA reported on in 2007 because the coroner didn’t retest this slide. Among the expert’s conclusions, he determined that a slide containing vaginal evidence excluded Apanovitch as the source of sperm.
This determination was the new DNA evidence that formed the grounds for Apanovitch’s 2012 post-conviction relief petition. The trial court held an evidentiary hearing in 2014. Before the hearing, Apanovitch’s brief states, the author of FSA’s report was subpoenaed but refused to cooperate. As a result, the court ruled that he wouldn’t testify and that none of his reports or findings would be allowed in the proceedings.
At the evidentiary hearing, the defense’s expert indicated that only one of the six slides from the coroner provided enough information to draw any conclusions. The expert reviewed the one remaining slide, which was the vaginal sample that excluded Apanovitch as a possible contributor. The state’s expert, while agreeing that Apanovitch’s sperm wasn’t found in this vaginal sample, noted that the sperm could have been left up to five days before Flynn’s murder. And the sperm found in the oral samples would have been more recent, the expert stated.
Some Convictions Set Aside, New Trial Ordered
In February 2015, the trial court granted Apanovitch a new trial based on the vaginal evidence slide excluding Apanovitch that was presented at the hearing. The court vacated his conviction for rape.
The court also found that the two counts of rape in the indictment were identical, charging Apanovitch with rape by “vaginal intercourse and/or fellatio.” The court determined that Apanovitch’s due process rights were violated because the indictment lacked specificity and differentiation in the counts as to whether the allegations were two counts of vaginal rape, two counts of oral rape, or one of each. As a result, the court stated it had to vacate both rape convictions and ordered a new trial on only the charges of aggravated murder and aggravated burglary.
The Cuyahoga County Prosecutor’s Office appealed to the Eighth District Court of Appeals, which in May 2016 affirmed the trial court’s rulings. The Ohio Supreme Court agreed to review three of the four issues the prosecutor raised in its subsequent appeal.
Prosecutor Argues Incriminating Evidence from Oral Sample Is Part of Case Record
After DNA testing was ordered, the federal district court in 2009 determined the evidence indicated that Apanovitch was the contributor of the sperm found in Flynn’s mouth. The prosecutor argues those results were part of the case record because they were included in the federal court’s opinions and were attached to Apanovitch’s post-conviction petition.
In the prosecutor’s view, the state trial court focused only on the evidence from one slide containing a vaginal sample, and the court improperly discarded all the other presented evidence, including the DNA test results from the oral slide. Those test results were a factual finding made by the federal court, and such a finding is “res judicata,” or a settled issue, for all subsequent state court proceedings, the prosecutor maintains.
The Eighth District maintained in its 2016 decision that the state had stipulated during the state trial court’s 2014 evidentiary hearing that it wasn’t going to rely on the findings from the FSA lab, but the state disputes that perspective. The prosecutor contends that it didn’t call the FSA report author to testify or present his report because Apanovitch’s claim related only to the samples retested by the Cuyahoga County coroner in 2000-2001. The prosecutor adds that the state wasn’t required to re-prove at the 2014 hearing in state trial court what it had already proven in the federal courts.
Evidence from Oral Slide Not Authenticated, Apanovitch Counters
Apanovitch focuses on the federal district court’s 2009 decision to evaluate the DNA evidence without holding an evidentiary hearing. The federal district court ruled based on an “unadmitted, untested, and unchallenged” DNA report, and the federal court’s findings shouldn’t be treated as settled, or res judicata, Apanovitch argues. He counters that the content and value of the FSA reports were never argued in the federal court or authenticated.
And, he notes, the Sixth Circuit didn’t review the district court’s interpretation of the DNA evidence or chain-of-custody issues because the Sixth Circuit concluded the evidence was irrelevant and unnecessary to resolve the specific issues raised in the petition. He also argues that res judicata doesn’t apply because the issues raised in federal court were “materially different” than the issues raised in state trial court. Apanovitch concludes that the federal court’s findings in this case weren’t binding on the state court’s proceedings.
In his brief, he also criticizes the prosecutor for the attempts now “to disavow its representations to the trial court and its agreement concerning the scope of the evidentiary hearing” in the trial court in 2014. It was reasonable for the trial court to exclude information related to FSA’s DNA report, he suggests. He acknowledges that he had the burden of proof in this post-conviction claim, but he insists that the trial court stated that it examined all the evidence, and he met the burden through presentation of the DNA evidence from the vaginal slide and expert testimony that, together, demonstrated his actual innocence.
Charge of Oral Rape Remained after Vaginal Rape Charge Dismissed, Prosecutor Maintains
The prosecutor also contends that the trial court went beyond its authority in post-conviction cases when it determined that Apanovitch’s indictment was defective. An issue that can be raised in a direct appeal – such as the indictment’s content and other evidence within the court record –- can’t be argued, or brought up by a court on its own, in a post-conviction petition, the prosecutor maintains.
On the substance of the trial court’s ruling granting Apanovitch a new trial, though, the prosecutor argues that the court only acquitted Apanovitch of vaginal rape. Evidence was presented at the original trial to support two acts of rape – one vaginal and one oral, the prosecutor notes. A charge of oral rape remained and shouldn’t have been dismissed because Apanovitch presented no evidence that he was innocent on that count, the prosecutor argues.
Apanovitch Asserts Double Jeopardy Claim Related to Rape Charges
There was no “defective indictment” claim, Apanovitch counters. Instead, when addressing that the state failed to charge Apanovitch with separate counts of oral and vaginal rape, the trial court decided, after dismissing one rape count, that a retrial on the remaining count of rape by “vaginal intercourse and/or fellatio” would violate the constitutional ban against double jeopardy, he argues.
Describing the state’s 1984 indictment as a “sloppy use of carbon copy counts,” he argues that the state’s problem arose from “its own generalized indictment practices.” The counts weren’t only identical, they also were overbroad, he maintains. Retrying him on a charge that expressly alleges vaginal rape, of which he’s now been acquitted, violates the prohibition against double jeopardy, Apanovitch concludes.
Supreme Court Raises Additional Questions
After the parties submitted their briefs, the Ohio Supreme Court ordered them to address three more issues:
- Does Anthony Apanovitch’s petition for post-conviction relief satisfy any of the statutory exceptions for untimely and successive post-conviction petitions provided in R.C. 2953.23(A)?
- If no statutory exception applies, did the trial court lack jurisdiction to consider the petition?
- If the trial court lacked jurisdiction to consider the petition, what is the proper disposition of this appeal?
Statute Governing Lawsuits Submitted Later than Normally Allowed
R.C. 2953.23(A) allows a person convicted of a crime to file a lawsuit outside the timeframes typically permitted for post-conviction appeals under certain circumstances delineated in the statute. The circumstances include:
- (A)(1) if the petitioner shows both that he or she was unavoidably prevented from discovery of the facts and that no reasonable fact-finder otherwise would’ve found the petitioner guilty; or
- (A)(2) if DNA testing conducted based on R.C. 2953.71 to 2953.81 establishes actual innocence.
Discovery Wasn’t Blocked, Trial Court Had No Jurisdiction, Prosecutor Argues
In response to the Supreme Court’s questions, the prosecutor states that Apanovitch didn’t make his claims under (A)(1). In 2008, the prosecutor gave Apanovitch’s defense the results of the county coroner’s testing after the coroner’s office found the slides in 2002. However, the prosecutor contends, Apanovitch was aware of the existence of the slides continually since his 1984 trial. He wasn’t unavoidably prevented from discovery of this evidence, the prosecutor argues, adding that the federal courts rejected this claim regarding the prosecution.
The prosecutor also asserts that Apanovitch didn’t avail himself of the DNA testing prescribed in R.C. 2953.71 to 2953.81, so he couldn’t file his petition under (A)(2). The prosecutor indicates that the trial court incorrectly relied on (A)(2) to grant him relief and order a new trial.
Because Apanovitch didn’t meet these legal requirements, the trial court didn’t have jurisdiction to consider his petition or acquit him of the rape charges, the prosecutor states. The remedy in this case, then, would be to vacate the trial court’s order completely, overturning the trial court’s conclusions and its grant of a new trial, according to the prosecutor.
DNA Evidence Wasn’t Disclosed and Trial Court Had Jurisdiction, Apanovitch Responds
Apanovitch argues he was permitted to file his petition based on both divisions (A)(1) and (A)(2).
He stresses that the state in 2000 and 2001 secretly conducted DNA testing of the discovered slides, but didn’t disclose that fact or the results to him until 2008. The evidence found on one vaginal slide excluded him as the source of the semen, he notes. As he argued in his 2012 petition to the state trial court, this newly discovered DNA evidence showed he wasn’t the person who committed the crime for which he was convicted. As required in (A)(1) of the statute, he was unavoidably prevented by the state from discovery of this information, and no reasonable factfinder would have found him guilty of vaginal rape based on this evidence, he maintains.
He also argues that because the state kept the DNA evidence from him, he was deprived of the chance to request DNA testing. He notes that state law, in R.C. 2953.84, provides that the process explained in R.C. 2953.71 to 2953.81 isn’t the only way an offender can obtain post-conviction DNA testing. He contends that (A)(2) applies to his case because his petition wasn’t limited to DNA testing performed only pursuant to R.C. 2953.71 to 2953.81.
Apanovitch asserts that the trial court not only had jurisdiction to consider his post-conviction petition for the reasons listed in R.C. 2953.23(A), it also had authority to consider the petition under a court rule for criminal cases that lists various grounds for granting a new trial. One permitted reason occurs when new evidence that is material to the defense is discovered, he notes. Because the trial court determined that he was innocent of the rape counts based on the new DNA evidence, that acquittal undermined the remaining convictions, Apanovitch reasons. He maintains that the Ohio Supreme Court has considered post-conviction relief petitions on their merits even when the exceptions in R.C. 2953.23(A) aren’t present. Given that the trial court had jurisdiction, the Supreme Court should consider the merits of the arguments raised in the appeal, he concludes.
Attorney General Submits Brief
An amicus curiae brief supporting the Cuyahoga County prosecutor’s position has been submitted by the Ohio Attorney General’s Office.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Christopher Schroeder, 216.443.7733
Representing Anthony Apanovitch: Mark DeVan, 216.781.5245
Can Electric Company Charge Customers for Power from Plant that Served Closed Uranium Enrichment Facility?
In the Matter of the Application of Ohio Power Company for Authority to Establish a Standard Service Offer, Case no. 2017-0749; and In the Matter of the Application Seeking Approval of Ohio Power Company’s Proposal to Enter into an Affiliate Power Purchase Agreement, Case no. 2017-0752
Public Utilities Commission of Ohio
ISSUES:
- May the Public Utilities Commission of Ohio (PUCO) authorize a power purchase agreement rider that charges or credits Ohio Power Company customers for electricity supplied by the company’s share of energy from the Ohio Valley Electric Cooperative?
- Does a power purchase agreement rider constitute an unlawful charge for transition or equivalent revenues past the 2010 deadline for electric utility providers to collect costs related to transitioning from a regulated market to a competitive retail electricity market?
- Was the power purchase agreement rider authorized by Ohio law when the PUCO approved a placeholder rider in Ohio Power Company’s Electric Security Plan?
- Was a subsequent power purchase agreement rider filed by the company to replace the placeholder authorized by law?
OVERVIEW
The Ohio Supreme Court has consolidated for oral argument two related appeals of Ohio Public Utilities Commission (PUCO) decisions regarding the Ohio Power Company’s most recent electric security plan (ESP) and the plan’s inclusion of a power purchase agreement rider. The Office of the Ohio Consumers Counsel (OCC) and the Ohio Manufacturers’ Association Energy Group (OMA) appealed orders by the PUCO that allow the ESP and the rider, which the PUCO described as a “placeholder.” The approved placeholder provided Ohio Power, doing business as AEP Ohio, no revenue. The PUCO then directed AEP to file a separate case to request funding for the power purchase agreement rider (PPA), which the PUCO approved. The OCC and OMA are contesting the legality of the PPA in both cases.
BACKGROUND:
In 1999, Ohio lawmakers set in motion a plan to deregulate the state’s retail electricity market. Ohio’s existing electric utility providers, such as AEP, were required to sell their electric generation assets, such as power plants, to affiliates or others in order to retain the right to distribute and transmit electric service within a PUCO-certified geographic area. AEP is required to provide a standard service offer to all customers within its territory that customers can accept. Customers can reject the standard offer and shop for their own electric suppliers by comparing rates for the generation portion of their energy bills.
AEP agreed to sell its generation assets to an affiliated company, and agreed that not all the electricity supplied to its customers would come from its former power plants. Rather the power would be supplied through a competitive bid process among all power generators seeking to serve AEP’s territory.
The open market for electricity was slow to form after the initial launch. To foster competition in the market, the Ohio General Assembly enacted legislation in 2008 to allow power companies to set an electric rate for customers through two options — a market rate offer, based on the costs of the power it purchased through auctions, or through an ESP, which can factor in other customer benefits and not be based only on the cost of electricity. Under R.C. 4928.143(C)(1) the PUCO can approve an ESP only if it finds in the aggregate that the ESP is more favorable to customers than a market rate offer.
In 2013, AEP filed an ESP for a three-year period from June 2015 to May 2018.
AEP Ohio Seeks Costs for Power Plant Associated with Uranium Enrichment
While AEP sold all the power plants it owned, it retained 20 percent ownership of the Ohio Valley Electric Cooperative (OVEC), a series of southeastern Ohio power plants. Investor-owned utility companies formed OVEC in 1952 to provide the large supply of electricity required by the federal Atomic Energy Commission for its uranium enrichment facilities established near Portsmouth. OVEC supplied power entirely to the federal government for decades until the enrichment operations ceased and the government terminated the electric contract in 2003.
The power generated from the OVEC plants then became available to the utilities that owned them, and AEP is entitled to about 20 percent of the generation capacity. AEP puts the energy into the Midwest power grid operated by PJM Interconnection.
AEP considers the power generation costs for OVEC to be relatively stable compared to the fluctuating open market. As part of its latest ESP, AEP proposed the PPA rider that would allow a portion of every customer’s electric service, whether they switched from AEP or not, to be credited to the power supplied by OVEC. The company maintains the costs of OVEC rise and fall in a manner counter to the open market, and that when prices rise for customers on the open market, the OVEC supply will act as a credit on customer bills, reducing their overall electric costs. When market prices fall, the OVEC supply would act as a charge raising customer bills. AEP maintains that for the most part, the OVEC supply would act as a credit, benefiting customers in the region.
Benefit of the Rider Questioned
The Consumers’ Counsel, which represents 1.2 million AEP Ohio residential customers, and the OMA’s energy group were among those contesting the PPA rider, arguing that it doesn’t provide a customer benefit, but allows AEP to recover the costs for operating the coal-fired OVEC plants that wouldn’t be competitive by selling the power in the open market.
In 2015, the PUCO determined that under AEP’s proposed structure, the PPA wouldn’t stabilize rates or provide certainty regarding electric service. Instead of approving or rejecting the rider, the PUCO established a placeholder PPA in the three-year rate plan at a rate of zero, which meant the company wouldn’t collect a charge for OVEC-supplied power or pay a credit. Instead it directed AEP in a separate filing to establish a revised PPA that would have the positive effects that AEP proposed. Several challenges to the PUCO’s decision were raised, and the commission approved its final order that included the placeholder PPA in June 2017. The OCC and OMA appealed the decision to the Supreme Court, which is required to hear the case.
As litigation persisted over the three-year ESP with the placeholder PPA, AEP Ohio followed the PUCO’s directive to offer a revised PPA rider. In May 2015, the power company proposed a new PPA rider that contained benefits and costs from OVEC and AEP Generation Resources, which is the AEP Ohio affiliate that took control of the company’s former power plants. The new rider contained commitments from AEP to use funds to promote retail competition, develop renewable energy resources, and modernize the power grid. Involvement of the affiliated power companies was only possible with approval from the Federal Energy Regulatory Commission (FERC).
Feds’ Rejection Reshapes Rider
Opponents to the new PPA rider filed complaints with the federal agency in early 2016. In March 2016, the PUCO approved the new PPA rider. Less than a month later, the FERC sided with opponents and didn’t support the participation of the AEP affiliates. In response, AEP then pared down its proposed PPA rider that again only included power supplied by OVEC. Opponents challenged the new rider, arguing it suffered the much of the same flaws as the previously approved rider, but the PUCO approved it in December 2016. The OCC and OMA appealed the decision to the Supreme Court. The Court consolidated the two related cases for oral argument.
Rider Violates Supreme Court Holding, State Law, Consumers Argue
Among the arguments the OCC and OMA make in opposition to the rider is that it’s an attempt to collect transition costs in violation of R.C. 4928.38 and that it doesn’t meet the requirement of a “limitation on customer shopping” that would allow it to be part of an ESP under R.C. 4928.143(B)(2)(d).
When electric utilities were regulated monopolies, the generation costs incurred for producing power were recouped by AEP and other providers through the rates they charged customers. In the deregulated market, the company no longer can recover the costs from those who select their power from a different provider. To make the transition from a regulated to deregulated system, Ohio lawmakers allowed power companies to recoup transition costs until 2010. R.C. 4928.38 doesn’t authorize AEP to receive “transition revenues or any equivalent revenues” after 2010. The consumer groups argue that the PPA rider is an attempt to receive transition revenues or their equivalent and is not permitted. The groups point to the Supreme Court’s 2016 cases of In re Application of Columbus Southern Power Co. and Dayton Power & Light Co. In those cases, the Supreme Court rejected the utilities uses of riders to charge customers for costs related to the transition to a deregulated market. The groups argue the PPA is different in name only from the other failed riders and should be rejected.
“The PUCO has unlawfully and unreasonably removed AEP’s entitlement from OVEC generation from dependence on the competitive market for all its revenues, and instead has guaranteed that AEP will profit from the generation by authorizing the PPA rider,” OCC’s brief states.
The consumer groups also charge that the PUCO violated the law by incorporating the rider into the ESP. They note that R.C. 4928.143(B)(2)(d) requires three criteria: 1) the ESP component must be an “item, condition, or charge; 2) it must relate to one of nine type of charges, which one is “limitations on customer shopping;” and 3) it must have the effect of stabilizing or providing certainty regarding retail electric service. The OMA argues that AEP never proposed that its rider was limitation on shopping until the concept of it being a “financial limitation” on shopping was raised by OMA’s expert witness in the case. OMA notes its witness was not referring to the AEP’s PPA rider when he noted the idea could serve as a financial limitation, but rather was referencing an alternative rider he proposed that theoretically could be a limitation. The consumer groups note the law states “limitation” not “financial limitation” and accuses the commission of adding words to the law. The OMA argues that since the charge of the rider is assessed to both customers that stay with AEP for power and those who switch, it has no effect on limiting customers and doesn’t meet the requirement.
Agency, Energy Company Stand By Ruling
The PUCO argues that energy markets are inherently volatile, creating uncertainty for customers. Approval of the PPA rider reduces uncertainty and the agency was within its rights to approve it. The commission maintains that the law recognizes financial limitations on customer shopping, which makes adding the PPA rider lawful, and that the law regarding transition costs doesn’t apply to the atypical situation of OVEC. The Court permitted AEP to intervene in the case and argue the merits of its proposals. AEP supports the PUCO’s approval of the ESP and the rider.
The PUCO asserts that AEP’s share of power from OVEC isn’t a transition cost and the Court’s rulings in the 2016 cases don’t apply. The commission notes the purpose of the transition revenues was for companies to recover the revenues that covered the costs of the power plants it had to sell as part of the transition to the deregulated market. Those costs were part of AEP’s base rates in the past. The commission argues that OVEC wasn’t an AEP power plant that factored into the company’s base rates because OVEC only provided power to the federal government for the uranium enrichment facility. Since AEP’s share of OVEC was never part of its base rate, there is no “transition” cost associated with the power produced by the OVEC plants.
The commission also maintains the PPA rider is a limitation on customer shopping, arguing that volatile increases and decreases in market-rate electricity will encourage customers to shop for competing options to the standard offer. The rider provides a financial “hedge” by limiting the volatility of the open market rates, the PUCO argues, meaning it meets the law’s requirements to be an ESP component. The commission argues that the law’s language regarding “limitations” should be broadly interpreted to include financial limitations, and the commission isn’t expanding the law by interpreting financial limitations to be eligible for inclusion in an ESP.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (Case Nos. 2017-0749 and 2017-0752).
Contacts
Representing the Ohio Office of the Consumers’ Counsel: William Michael, 614.466.8574
Representing the Ohio Manufacturers’ Association Energy Group: Kimberly Bojko, 614.365.4100
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Werner Margard, 614.466.4397
Representing Ohio Power Company: Steven Nourse, 614.716.1608
Can Grand Jury Transcripts Be Accessed by Subpoenaing Official Court Reporter?
George Daher v. Cuyahoga Community College District et al., Case no. 2017-0828
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- May a party to a civil lawsuit issue a subpoena to a county’s grand jury court reporter that would allow for an in camera inspection of the grand jury’s criminal proceedings?
- Can a court reporter appeal an order by a trial court to supply a transcript of grand jury proceedings to a judge for an in camera inspection, or must the reporter wait until the judge rules the material can be turned over to a party in a civil lawsuit before an appeal can commence?
BACKGROUND:
Each Ohio county designates an official reporter to take notes of a grand jury, and the reporter can only furnish the transcripts of those proceeding to a prosecuting attorney or the state attorney general. Under R.C. 2939.11, the reporter is under oath not to disclose any of the testimony taken or heard unless “called upon in court to make disclosures.”
In 2012, George Daher was hired as a part-time police dispatcher by Cuyahoga Community College. In 2015, Daher claims he was instructed by his supervisor to file falsified documents in order for the college’s police department to meet certification standards. In 2015, the college conducted an internal investigation into whether Daher accessed the Ohio Law Enforcement Gateway (OHLEG) database without authorization. Daher used the system to access police training academy course materials.
Daher was indicted by a Cuyahoga County grand jury in October 2015 on two counts of unauthorized use of property and, in December 2015, was indicted with 24 counts of unauthorized use of property. All the indictments arose out of his alleged use of OHLEG to access law enforcement-related educational courses. Following the second indictment, the state sent the Cuyahoga County Prosecutor’s Office a letter that indicated OHLEG users have legal access to the police training academy coursework. Based on the letter, the state dismissed the charges against Daher.
Dispatcher Sues College
Daher filed a civil lawsuit against the college and his supervisors in Cuyahoga County Common Pleas Court in 2015. He alleged malicious prosecution, accusing the college of filing a false, defamatory, and incomplete complaint to the county prosecutor. He alleged the criminal prosecution wasn’t supported by probable cause.
In 2016, he filed a subpoena duces tecum ordering the grand jury court reporter to produce “all transcripts, notes and exhibits from the grand jury proceedings” pertaining to his criminal indictments. The court reporter, through the prosecutor’s office, filed a motion to quash the subpoena, arguing that grand jury proceedings are secret and Daher wasn’t following the proper procedure to gain grand jury transcripts to use in a civil proceeding.
The court denied the motion, but ordered the documents produced for an in camera inspection by the trial judge in the Daher’s civil lawsuit against his employer. The court reporter appealed that decision to the Eighth District Court of Appeals. The Eighth District dismissed the case, indicating the order to produce the material for the judge’s inspection was not a “final appealable order,” and that the reporter wouldn’t be legally harmed by the review. The appellate court ruled that if the judge ordered the reviewed material to be turned over to Daher or another party in the case, then at that time the ordered can be appealed. The reporter appealed the decision to the Ohio Supreme Court, which agreed to hear the case.
Subpoena Not Proper Process to Access Records, Reporter Maintains
The court reporter cites the Ohio Supreme Court’s 1980 Petition for Disclosure of Evidence decision as the statewide standard for requesting grand jury transcripts. That decision holds that a “petition to the court which supervised the grand jury is the proper means for obtaining release of grand jury materials,” the reporter’s brief states. The reporter argues the Eighth District ignored the decision and conflated grand jury materials with privileged documents when it permitted a trial court to review the documents and determine whether they could be handed over to Daher. The rules for parties in civil cases conducting discovery are different, and an in camera judicial review is appropriate when parties don’t want to exchange materials they believe are privileged, the reporter asserts. Grand jury materials are secret, and are never allowed to be turned over through civil discovery provisions, the reporter argues. Rather, the Petition for Disclosure decision directs Daher to go before the court that supervised the grand jury, and file a petition with that court, which includes a statement of the “particularized need” for specific grand jury records.
The court reporter also argues that the office is facing the harm of violating R.C. 2939.11 even by turning over the material to a judge who was not the supervisory judge for the grand jury. The reporter argues the “court” referred to in the statute is only the particular official that supervised the grand jury proceedings. The reporter cites another case where a request to a judge for the juvenile division of the common pleas court was denied authority to rule on a grand jury transcript request. In that decision, the court found that while the juvenile court was part of the common pleas court, the law applies only to the court that supervised the grand jury, which the juvenile court didn’t.
Because revealing the information to the trial court that isn’t the supervisory court could harm the court reporter, the office maintains that the trial judge’s directive to review the material is a final appealable order. The court reporter is requesting the Supreme Court both to rule the order is appealable and to find the trial court’s decision unlawful and reverse it.
Sufficient Procedure Followed, Daher Asserts
Daher asserts that he sufficiently followed the proper procedure and the trial court in his civil case was the appropriate judge to direct his request. He maintains he isn’t required to “file a separate, time consuming, costly, and redundant action in the very same court of common pleas in which the present action is being litigated” to gain access to the grand jury transcripts.
Daher maintains that distinguishing the trial court from the supervisory court is a “red herring” because Petition for Disclosure holds that the proper court to determine whether there is a particularized need for the disclosure is the trial court. Daher also argues that “petition” is not defined by the Petition for Disclosure decision and issuing a subpoena to the court reporter meets the test for making a request. In addition, he notes that R.C. 2939.11 doesn’t specify the supervisory court is the court official overseeing the grand jury, but that his case is before a common pleas court and it was the same county common pleas court that supervised the grand jury.
Daher also states he met the standard for expressing a particularized need for the documents when he responded to the court reporter’s motion to quash the subpoena. Daher argues the trial court clearly understood that he requested the documentation to support his claims of malicious prosecution by using the transcripts of the testimony his college superiors provided to the grand jury.
Citing the Supreme Court’s 1993 Bell v. Mt. Sinai Med Center decision, Daher argues that the order for inspection is not a final appealable order. He notes that while the trial court judge gets to review the transcript, the parties in the case aren’t entitled to the information and haven’t gained any access to secret documents. There is no harm at this stage of the process because the reporter did have an opportunity to object before any materials were released.
Prosecuting Attorneys File Friend-of-the-Court Brief
An amicus curiae brief supporting the court reporter’s position has been submitted by the Ohio Prosecuting Attorney’s Association. The prosecutors argue that filing a “petition” is a distinctly different process than issuing a subpoena. The petition process would provide notice to a prosecuting attorney’s office, which may have an interest in the release of grand jury transcripts and want the opportunity to make its concerns known to a court considering the release. A subpoena to a court reporter provides a way to potentially circumvent the prosecutor’s interests in ensuring that grand jury proceedings remain secret, the association states.
College Not Participating
Because the Cuyahoga Community College District didn’t file a merit brief in the case, the Court won’t allow it to present oral argument in the case.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cuyahoga County Court Reporter from the Cuyahoga County Prosecutor’s Office: Nora Poore, 216.443.7814
Attorney Discipline
Disciplinary Counsel v. Richard A. Oviatt, Case no. 2018-0537
Cuyahoga County
The Ohio Board of Professional Conduct recommends a one-year suspension with six months stayed for Cleveland attorney Richard A. Oviatt. According to the board’s report, the attorney “impugned the integrity of the judges from the Eighth District Court of Appeals by accusing them of incompetence, corruption, and criminal conduct.”
Attorney Tries to Collect Money from Civil Lawsuit
Oviatt represented John Selwyn in a 1984 civil case that alleged Jeff Grimes had smashed a beer bottle into Selwyn’s face. In June 1985, the trial court awarded Selwyn $50,000 in compensatory damages and $50,000 in punitive damages. Attempts to secure payment were unsuccessful, and Grimes declared bankruptcy in 1987.
In June 2012, after Grimes’ father died and Grimes was expected to inherit some assets, Oviatt filed a motion to revive the 1985 judgment for Selwyn. Eventually, the court granted the request, but the Eighth District Court of Appeals reversed. The decision stated that the time period for Selwyn to revive the judgment expired in 2011, making the money uncollectable.
Attorney Attacks Appeals Court Decision
Grimes sued Oviatt and Selwyn in 2015 for legal malpractice and malicious civil prosecution. In his response, Oviatt requested an order to authorize the deposition of the three appellate judges who ruled in the case. Among his statements, Oviatt claimed the decision based on the statute of limitations “was contrived by the appellate judges to justify a decision to favor Grimes,” the ruling was based on outside influences, and the court refused to address the legal issue he raised that would have affected the timeline for filing his motion.
In a subsequent court filing, Oviatt continued to attack the Eighth District judges, alleging a political motivation in the court’s “blatant perverse ruling” driven by “undue influence and corruption” and “predetermined bias.” Grimes dismissed his lawsuit in 2016.
Professional Conduct Board States that Attack Was Unfounded
The board’s panel, noting that Oviatt admitted he did no investigation to support the allegations against the Eighth District judges, concluded that Oviatt had no factual basis for his statements. The board’s report also states that the attorney didn’t seem to understand the Eighth District’s ruling.
The board determined that Oviatt violated several attorney conduct rules, including improperly impugning the integrity of three appellate judges. In addition, the panel found that he violated confidentiality rules in the state’s disciplinary process by attaching a disciplinary grievance to a common pleas court filing with the express purpose of disseminating the information to the public. Oviatt also refused to answer questions from the Office of Disciplinary Counsel about his malpractice insurance.
The report notes that Oviatt has had no prior discipline since he was admitted to practice law in Ohio in 1967, but adds that the attorney “was completely and utterly uncooperative” during the disciplinary process, had a selfish motive, and has shown no remorse for his conduct.
The board recommends to the Ohio Supreme Court that his partially stayed suspension be conditioned on Oviatt taking and receiving a passing score on the Multistate Professional Responsibility Examination and on committing no more misconduct.
Attorney Maintains He Committed No Wrongdoing
Oviatt has submitted objections to the board’s findings and proposed sanction. He asserts that the board failed to include and address relevant facts in its report. Among his assertions, he believes the board’s review of the Selwyn case history and the Eighth District’s decision is inaccurate and that Grimes’ lawsuit against him and his client was malicious and frivolous. He contends that his ethical obligation to his client required him to put forth all potential defenses, which included the possibility that the Eighth District judges were incompetent or influenced by outside factors.
He claims that the disciplinary counsel had no authority to question him about his malpractice insurance because no complaint had been made about this issue. Also, the board’s “self-serving statement” that he was uncooperative during the entire disciplinary process is unfounded, he maintains.
He describes a one-year suspension as “extreme and unjustified,” and closes by asking the Court to accept jurisdiction in his appeal of the Eighth District’s decision in Selwyn’s case.
Disciplinary Counsel Disputes Attorney’s Arguments
In response, the disciplinary counsel states that the record contains a complete description of the underlying facts, which the board considered when recommending the suspension. The disciplinary counsel notes that professional conduct rules state that lawyers can’t make statements with reckless disregard for their truth or falsity. To his argument that he had an obligation to his client to attack the appellate court’s decision as part of the defense, the disciplinary counsel explains that lawyers are prohibited from taking steps to defend clients if the actions violate the professional conduct rules.
The disciplinary counsel points out that issues about whether an attorney carries malpractice insurance fall squarely within its authority and that authority includes investigating matters that come to its attention in a variety of ways.
The disciplinary counsel recommends that the Court impose at least the sanction the board recommended.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Richard A. Oviatt, pro se: 216.621.5045
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