Wednesday, March 31, 2021
State of Ohio v. Nicholas Smith, Case no. 2019-1813
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Earl Jones, Case no. 2020-0368
First District Court of Appeals (Hamilton County)
State of Ohio v. Leandre Jordan, Case no. 2020-0495
First District Court of Appeals (Hamilton County)
Can Charges Rejected in Juvenile Court Reappear in Adult Court When Youth Is Bound Over?
State of Ohio v. Nicholas Smith, Case No. 2019-1813
Eighth District Court of Appeals (Cuyahoga County)
ISSUES: May the state indict a juvenile in adult court on charges for which a juvenile court previously found no probable cause, regardless of whether the juvenile was properly bound over on other charges?
BACKGROUND:
In August 2017, two women were returning home from a Cleveland restaurant. As they approached their car, they noticed two males walking behind them. The males were later identified as juveniles, Nicholas Smith and R.H. As one of the women opened the car door, one of the youths told her to give him the car keys or he will shoot her in the head. She dropped the keys and walked away with her hands raised.
Out of fear, the other woman threw her purse, which contained her iPhone, on the ground. The youths grabbed the purse and drove away in the victims’ car. The women called the police. When an officer learned the iPhone was taken, he asked the victim to log into her phone remotely, and the officers were able to track the location of it. Within minutes, two other officers spotted the vehicle and pursued Smith and R.H.
The car crashed during the chase and was abandoned in a field. The police apprehended the two, and the iPhone was found in Smith’s pocket.
Smith was 16 years old at the time and was named in an eight-count complaint in Cuyahoga County Juvenile Court. The complaint charged him with two counts of aggravated robbery, grand theft, felony theft, misdemeanor theft, two counts of failure to comply, and having a weapon under disability. The aggravated robbery charges included a firearm specification.
Juvenile Court Considers Charges, Transferring Case
The juvenile court conducted a probable cause hearing, where it heard from the victims and the responding officers. The juvenile court found probable cause to believe Smith committed three offenses that would be felonies if committed by an adult — both aggravated robberies and grand theft. Based on the testimony from the victims and the officers, the juvenile court found that neither the victims nor the officers believed Smith had a gun that day and ruled there was no probable cause to allow the firearm specification. The juvenile court also found no probable cause on the theft, failure to comply, and weapons under disability charges. Nothing in the court’s journal entry indicated the court dismissed the charges for which no probable cause was found.
Two weeks later, the juvenile court conducted an amenability hearing. The court learned Smith had previously been found delinquent, and his probation officer testified that at the time of the alleged robbery Smith had left a residential treatment facility where he had been placed. The juvenile court found Smith wasn’t amenable to care or rehabilitation in the juvenile justice system, and under the discretionary transfer rules in R.C. 2152.12, his case was bound over to adult court.
Juvenile Indicted on Same Charges in Adult Court
The Cuyahoga County Prosecutor’s Office filed the identical charges with a grand jury against Smith from the robbery along with an escape charge for leaving the juvenile facility. The grand jury returned a nine-count indictment against Smith. Smith pleaded guilty to four charges — aggravated robbery with a firearm specification, grand theft, failure to comply with a police order, and escape. He was sentenced to nine years in prison.
Smith appealed his conviction to the Eighth District Court of Appeals, arguing he pleaded guilty only because the prosecution was able to load up several charges, including those the juvenile court had found no probable cause to charge, and that made him subject to a lengthy prison sentence. The appeals court affirmed the conviction, and Smith appealed to the Supreme Court, which agreed to hear the case. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Some Charges Inapplicable, Juvenile Asserts
Because the juvenile judge found no probable cause that Smith had a weapon under disability or failed to comply with a police order, Smith argues the adult court had no jurisdiction over those charges and the portion of his sentence related to those charges is void. Smith maintains the Eighth District’s decision contains two errors — that Smith’s bindover was properly executed because the juvenile court conducted an amenability hearing, and because as long as there was probable cause for one count, and the rest of the counts were part of the same course of conduct, the entire case transferred to adult court.
Smith explains there are three components of a discretionary bindover under R.C. 2152.12. The juvenile court must first find the juvenile is eligible to be transferred and there is probable cause the child committed the charged acts. The juvenile court then must determine whether the child should remain in the juvenile system.
Smith maintains the juvenile court first conducted a probable cause hearing on the eight charges brought by the prosecutor and found no probable cause for three charges and the gun specification. He asserts the amenability hearing was based only on the remaining five charges, and when he was boundover, the adult court acquired jurisdiction only over those five charges.
Citing R.C. 2152.12(I), Smith maintains the law allows the discretionary transfer of charges so long as the state has probable cause to believe the child committed the acts. Because the case was transferred without all of the charges, the prosecutors didn’t have the authority to go to a grand jury and receive indictments for the same original charges, he maintains.
Whole Case Transferred, Prosecutor Argues
While Smith’s argument focuses on the term “act” in R.C. 2152.12(I), the prosecutor homes in on the word “case.” The prosecutor maintains the Eighth District’s decision is consistent with the plain language of the law by finding the case, which meant the course of conduct charged in the juvenile complaint, transferred to the adult court. The prosecutor notes that six appellate courts in Ohio have ruled that once a juvenile’s case has transferred to adult court, a grand jury is authorized to include additional charges in the indictment based on the same conduct that was at issue before the juvenile court.
The prosecutor maintains that under Smith’s theory, parallel cases against him would continue in both the adult and juvenile courts. The prosecutor explains that the probable cause hearing is a preliminary hearing, and not the proceeding where Smith could be found delinquent. While the robbery and grand theft charges were transferred to the adult court, the other charges where no probable cause was found would remain in the juvenile court, but aren’t dismissed, the office explains. The prosecutor still would have the opportunity to argue at an adjudicatory hearing that Smith committed the offenses.
But since the juvenile court already had decided Smith wasn’t amenable to rehabilitation in the juvenile system, his argument against transferring the charges to the adult court makes no sense, the prosecutor asserts. That is why, under R.C. 2152.12(I), the court would transfer the entire case to adult court if all the charged acts occurred in the same course of conduct, the prosecutor concludes.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Smith’s position has been submitted by Cuyahoga County Public Defender. The Ohio Attorney General’s Office has filed an amicus brief supporting the Cuyahoga County prosecutor.
Argument Time Divided
The Supreme Court granted the request by the attorney general’s office to divide oral argument time with the prosecutor.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Nicholas Smith from the Ohio Public Defender’s Office: Lauren Hammersmith, 614.466.5394
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Gregory Ochocki, 216.443.7800
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Did Man Act with ‘Prior Calculation and Design’ When Killing Ex-Girlfriend’s New Boyfriend?
State of Ohio v. Earl Jones, Case No. 2020-0368
First District Court of Appeals (Hamilton County)
ISSUE: Did the prosecutor present sufficient evidence of prior calculation and design for an aggravated murder conviction?
BACKGROUND:
Earl Jones and Cyerra Prather had a son in 2012. Jones and Prather dated until October 2015. A few months later, Prather started dating Kevin Neri, who moved into Prather’s Cincinnati residence in January 2016.
Animosity between Jones and Neri was ongoing. Jones regularly insulted Prather and Neri, referred to Neri using racial epithets, and stated that he didn’t want his son around Neri. Jones and Neri constantly planned to have fistfights that didn’t occur. Tensions escalated when Jones posted risqué photos of Prather on social media.
Jones and Neri planned a fistfight on May 16, 2016. Throughout that morning and early afternoon, they texted “several taunting and derogatory” messages to each other, the appellate court’s decision stated. Neri asked Jones via text if he wanted to fight, and Jones responded that he did. Jones was scheduled to pick up his son on the afternoon of May 17. Neri told Jones to meet him at the end of Prather’s street on the 17th, and Jones said he’d be there about 4:30 p.m.
Father Reschedules Pick Up of Son
In a series of texts later in the afternoon of May 16, Jones asked Prather to pick up his son that night instead of the next day. He also asked if she could bring their son to his apartment. She agreed and said her sister would drop off their son that evening. However, Prather’s sister refused to take the boy to his father’s apartment because of Jones’ social media posts earlier that day with the risqué pictures. Prather told Jones he could pick up their son at her house instead at 8 o’clock that night.
Jones agreed. He then texted Neri to reschedule their fight for 8 p.m. at the end of Prather’s street. Neri agreed to the change. Jones messaged Prather at 7:55 p.m. saying he was stopping by a friend’s house first before picking up their son. He called her at 8:09 p.m. to tell her he was leaving the friend’s house, which was around the corner, and was on his way.
Jones arrived at Prather’s house and parked in front of her mailbox, which was a no parking zone. Neri was outside the house. Jones, who regularly carried a gun, later said he retrieved his loaded firearm and placed it in his pocket. According to multiple witnesses, he got out of the car, leaving the engine running and the driver’s side door open. Neri took off his sweatshirt, and the men walked toward each other. Jones then shot Neri three times.
Jones returned to his car and called 911 to report the shooting, stating that it was self-defense. He turned himself into the local sheriff’s department.
At Trial, Shooter Maintains He Acted in Self-Defense
Jones testified at his trial, admitting that he shot Neri but claiming he thought Neri was going to kill him that day. However, the jury found Jones guilty of aggravated murder, murder, felony murder, and carrying a concealed weapon. The trial court sentenced him to life in prison without the possibility of parole.
Jones appealed to the First District Court of Appeals, which granted Jones a new trial. The First District also determined there was insufficient evidence of prior calculation and design – a finding required for his aggravated murder conviction. As a result, the state could re-try Jones on the charges for murder, felony murder, and concealing a weapon, but wouldn’t be able to try Jones again for aggravated murder.
The Hamilton County prosecutor appealed the ruling on the aggravated murder conviction to the Ohio Supreme Court, which agreed to review the issue. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Actions Demonstrated Plan to Murder Ex’s Boyfriend, State Argues
The Hamilton County Prosecutor’s Office presents four propositions of law in its brief to the Court, but summarizes those arguments as a question whether the state offered enough evidence to prove Jones acted with prior calculation and design. Quoting State v. Taylor, a 1997 Ohio Supreme Court ruling, the prosecutor states that prior calculation and design is determined by answering three questions: “(1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? (3) Was the act drawn out or ‘an almost instantaneous eruption of events’?”
The prosecutor notes that Jones and Neri knew each other and had a strained relationship. The prosecutor maintains that Jones planned a fight with Neri near Prather’s house, and Jones rescheduled the fight to coincide with the time he was picking up his son on May 16. While Jones regularly kept a weapon with him, he grabbed it before getting out of his car, left the engine running, and kept the car door open, the prosecutor states. Although the location changed from up the street to in front of Prather’s house, that doesn’t mean Jones’ actions weren’t deliberate or that he had no plan, the prosecutor argues.
The prosecutor’s brief also contends that “Jones’ decision to shoot Neri was anything but instantaneous,” pointing to his rescheduling of the fight, leaving the car door open and the engine running, grabbing his gun before getting out of the car, and aiming and firing his gun at Neri even as Neri turned to flee.
In the prosecutor’s view, the First District failed to consider the evidence in the light most favorable to the prosecution, as the court was required to do. That flawed analysis resulted in a miscarriage of justice that should be reversed to permit the state to also retry Jones on the aggravated murder charge, the prosecutor concludes.
Shooting at Most Shows Surprise, Fear, Overreaction, Man Contends
Jones first asks the Court to dismiss the case as improvidently accepted because, he argues, the case doesn’t present a significant constitutional question or issue of public or great general interest. Instead, the case involves already settled legal standards, and the prosecutor simply wants a correction to the outcome in the appeals court, Jones maintains.
His brief also argues the state “ignores objective facts that disprove its prior-calculation-and-design theory,” which is “riddled with unreasonable inferences” when considering all the evidence. The brief maintains that Jones went to Prather’s house only to pick up his son. The fight was planned for a different location at the end of the street. Jones didn’t know where Neri was; he left his car running and the door open because he wanted to quickly pick up his son when he saw Neri in front of the house; and putting his gun in his pocket shows mere possession, not an intent to act, the brief states. It asserts that Jones’ actions suggest he instead was surprised, upset, and fearful when he saw Neri at Prather’s house. When the men approached each other, Jones said, “Can I get my kid?,” which contradicts the claim that he was pursuing Neri, the brief argues. Jones also called 911 and surrendered to law enforcement.
The evidence and its inferences at most show that Jones had talked himself into fighting Neri, that he overreacted out of fear or anger when he unexpectedly encountered Neri, and that carrying a gun exacerbated the consequences of his overreaction, his brief maintains. It argues Jones’ actions may have shown his purpose to kill, instantaneous deliberation, and anger or fear in the moment, but they don’t demonstrate a plan with prior calculation and design.
– 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 Hamilton County Prosecutor’s Office: Ronald Springman Jr., 513.946.3052
Representing Earl Jones from the Ohio Public Defender’s Office: Peter Galyardt, 614.728.0171
Did Delayed Warrantless Arrest Violate Man’s Constitutional Rights?
State of Ohio v. LeAndre Jordan, Case No. 2020-0495
First District Court of Appeals (Hamilton County)
ISSUE: Under R.C. 2935.04, once probable cause is established to make a warrantless arrest in public, is the arrest unconstitutional if there is unreasonable delay in making the arrest?
BACKGROUND:
In December 2016, James and Emiko Locke left their home for a short period of time and returned to find that someone had entered the home through a rear bedroom window and stole a safe containing $40,000 in cash and personal papers. No other valuables were taken.
Cincinnati Police Department detectives and the Lockes suspected only people who knew about the home would have known about the safe. The Lockes suspected their son, Michael, who had recently been kicked out of the house. The Lockes said they received calls from their son around the time of the incident and that he later came to the home “fishing for information.” Michael was at the home when a young neighbor told the police he saw a cream-colored Chrysler 300 in the neighborhood, which prompted Michael to yell at the boy and order him to leave the house.
The Lockes recognized the vehicle as belonging to a friend of Michael’s they knew as “Dre,” a barber who worked on Warsaw Avenue. Detective Mark Longworth located the car in a parking lot near the barbershop. Longworth interviewed Michael a few days after the burglary. Michael acknowledged that Dre was LeAndre Jordan, that Jordan was with him on the day of the burglary, and he drove the Chrysler 300. Longworth searched Michael’s cellphone and noticed calls to his parents and calls to Jordan around the time of the burglary.
Detective Observes Vehicle
Between the date of the burglary, Dec.12, and Dec. 20, Longworth went to the parking lot near the barbershop and observed Jordan getting into and out of the Chrysler 300 several times. On Dec. 20, Longworth and his partner watched Jordan leave the barbershop and followed him as he drove to a cellphone store where they arrested him. Longworth initially said Jordan was driving the Chrysler, but later clarified that Jordan was driving a black Lexus that he owned. Jordan explained the Chrysler belonged to his mother and he drove it often.
While searching Jordan, the detectives obtained his girlfriend’s identification and keys to her apartment. Jordan said he was staying at the address. Police obtained a warrant to search the apartment for items related to the burglary. Officers found $2,097 in cash, heroin, cocaine, an electronic scale, and an inoperable handgun.
Jordan was indicted on drug possession and trafficking charges. Two of the counts carried major drug offender specifications. Jordan wasn’t indicted on any charge related the burglary of the Locke residence.
Jordan filed a motion to suppress the evidence with the trial court, arguing his warrantless arrest by police was unconstitutional and the subsequent search was illegal. The trial court denied the request, and a jury found Jordan guilty of most of the charges. He was sentenced to 11 years in prison.
Jordan appealed his conviction to the First District Court of Appeals, which affirmed the decision. Jordan appealed to the Supreme Court, which agreed to consider the case. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Circumstances Required Arrest Warrant, Accused Maintains
Jordan asserts his arrest violates the Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the Ohio Constitution, which offer protection against unreasonable searches and seizures. Jordan notes the courts have deemed an arrest as a “seizure,” and the federal and state constitutions require a warrant to be obtained before police can make an arrest. He notes there are several exceptions to the warrant requirement and, in his case, the police relied on R.C. 2935.04, which allows for anyone to make an arrest in public if there are reasonable grounds that a felony has been committed.
The First District upheld the conviction based on R.C. 2935.04 and the Ohio Supreme Court’s 2007 State v. Brown decision. Jordan maintains the First District wrongly ignored his argument that the law and the Brown decision pertain to instances when there is no objectively reasonable time to obtain a warrant before making an arrest. Jordan argues the police had no justification for failing to seek an arrest warrant during the eight-day period between the burglary and his arrest. He argues applying the Brown decision to every case, including those where there is time to obtain a warrant, would effectively eliminate the warrant requirements in both constitutions.
Jordan notes the Brown decision is premised on the U.S. Supreme Court’s 1976 United States v. Watson decision, which found an arrest warrant isn’t required when an officer has probable cause that an offense has been committed and the arrest is made in public. Jordan argues the lower courts in his case failed to recognize the Ohio Supreme Court’s 1972 State v. Heston ruling, which found when there is a warrantless arrest based on probable cause, it must also be impracticable under the circumstances for an officer to obtain a warrant.
Jordan maintains that arrests under R.C. 2935.04 “generally” don’t violate the Fourth Amendment, but the law doesn’t pertain to circumstances where there is ample time to obtain an arrest warrant. He argues the federal and state constitutions both require an officer to consider the circumstances of each case and whether there is reasonable time to obtain a warrant before making a warrantless arrest. Because in his case there was no justifiable reason for not obtaining a warrant, and his arrest was unconstitutional, he concludes.
No Exigency Requirement for Warrantless Arrest, Prosecutor Argues
Citing Brown and Watson, the Hamilton County Prosecutor’s Office argues the courts have rejected adding an exigent circumstances requirement to delayed warrantless arrests. A warrantless arrest is permissible if it’s based on probable cause and occurs in a public place, the office submits.
Jordan contends the arrest was unreasonable because there were no exigent circumstances that demonstrated an immediate need to arrest him, and there was ample time to obtain a warrant, the prosecutor notes. The police delayed the arrest to keep Jordan under surveillance to ensure they had probable cause to arrest him. Just because they did good police work doesn’t mean a warrant was required, the office argues.
The prosecutor asserts that Jordan’s argument, stating police should obtain a warrant when it’s practical, is a position of a minority of Ohio appeals courts, and most courts follow the Watson opinion allowing for warrantless, public arrests based on an officer’s reasonable belief that a felony has been committed. The office argues that requiring a “totality of circumstances” analysis in every case to determine if there is time to obtain a warrant would lead to a rash of prolonged legal challenges.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Jordan’s position has been submitted by Ohio Public Defender’s Office. The Ohio Prosecuting Attorneys Association has filed an amicus brief supporting the Hamilton County prosecutor.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing LeAndre Jordan from the Hamilton County Public Defender’s Office: Sarah Nelson, 513.946.3665
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Philip Cummings, 513.946.3012
Were Need, Safety, and Impact of Natural Gas Pipeline Properly Considered?
In re Application of Duke Energy Ohio Inc., Case No. 2020-0511
Ohio Power Siting Board
ISSUES:
- When considering a certificate of environmental compatibility and public need for a natural gas pipeline extension along an alternative route, did the Ohio Power Siting Board properly consider safety, need, tax benefits, and a local development plan?
- Did the board apply the correct standard when analyzing the pipeline’s need?
- Did the board give the parties the opportunity to fully participate in the siting process?
- Did the board comprehensively review the ramifications of the pipeline, providing due process?
BACKGROUND:
In September 2016, Duke Energy Ohio applied to the Ohio Power Siting Board for a “certificate of environmental compatibility and public need” to construct a natural gas pipeline in Hamilton County. The siting board determines the need for and location of all major public utility facilities, including natural gas pipelines, in the state. After public meetings, Duke adjusted the diameter and operating pressure proposed for the pipeline and, in January 2017, reapplied to the board.
In its updated application, Duke proposed a 12.7-mile pipeline, 20 inches in diameter, with a typical operating pressure of 400 pounds per square inch gauge. As part of a long-term plan for safety and reliability, Duke stated, the pipeline would allow the company to retire propane-air facilities that rely on underground storage of propane in manmade limestone caverns; improve the natural gas system balance from north to south in the area; and upgrade and replace aging infrastructure.
The company offered a preferred and an alternate route for the pipeline, which the parties refer to as the “central corridor pipeline” or the “central corridor extension.” The pipeline would start from Duke’s existing “WW Feed Station,” near the intersection of Hamilton, Warren, and Butler counties, and travel south to connect to an existing gas pipeline either in the village of Fairfax, the preferred route, or near the city of Norwood for the alternate route.
In May 2017, the siting board’s staff recommended approval of the pipeline, subject to conditions, including that the pipeline be constructed along the alternate, rather than the preferred, route. Several entities intervening in the case, including the cities of Blue Ash and Reading, the village of Evendale, and the group Neighbors Opposed to Pipeline Extension (NOPE). Duke conducted additional investigation and submitted supplemental material to the board. The board’s staff again recommended that the pipeline be constructed along the alternate route subject to conditions.
Siting Board Approves Pipeline
In November 2019, the board issued the environmental compatibility and public need certificate, which authorized the construction, operation, and maintenance of the pipeline extension subject to 41 conditions. The board reviewed rehearing requests and, in February 2020, rejected arguments raised in the rehearing applications.
Blue Ash, Evendale, Reading, and NOPE appealed to the Ohio Supreme Court, which is required to hear appeals from the siting board. The Supreme Court dismissed Evendale from the case. Because of social distancing guidelines during the COVID-19 pandemic, the Court will hear arguments in the case by videoconference, which will be livestreamed.
Siting Board Failed to Comprehensively Consider Safety Concerns, Blue Ash States
Blue Ash argues that the board didn’t evaluate safety concerns about the pipeline, including the radius in which a potential pipeline failure could significantly impact people or “high consequence areas,” such as residences, schools, hospitals, businesses, and parks. The approved pipeline will run through densely populated neighborhoods and highly congested areas, including a park that attracts more than 850,000 visitors each year, Blue Ash notes. It maintains it has received only limited and inaccurate information from Duke about the pipeline’s potential effects on its area. The city has been unable to assess the risks or develop a safety plan to be prepared should the pipeline fail, it states.
Maintaining that the board is allowing Duke to address these issues after issuing the certificate, Blue Ash contends that taking those steps after the project has begun contradicts federal and state law.
The city also argues that Duke was required under administrative agency rules to describe the pipeline’s effect on current regional development plans. But Duke used an outdated Blue Ash plan from 2003 instead of the 2016 plan, which Duke didn’t even request, Blue Ash states. The city also maintains that Duke provided no basis for its calculations of the estimated tax benefits to the area. And the participation of the intervening parties was meaningless because the board didn’t ensure that Duke provided the information needed for them to evaluate the proposal, the city argues. It concludes that the board’s approval of the pipeline under these circumstances was unreasonable and unlawful.
Public Need and Interest Ignored, Neighborhood Group Alleges
In its brief, NOPE adds that Duke was required by law to show the proposed pipeline will meet the public need and serve the public interest, convenience, and necessity. Had the board considered the public’s need and benefit regarding the pipeline, rather than only Duke’s convenience, the board could not have approved Duke’s certificate, NOPE argues. The group also maintains that instead of fully analyzing the pipeline’s environmental ramifications, the board simply accepted Duke’s evidence.
Alternate Route Not Vetted Fully, Reading Maintains
Reading emphasizes the board’s selection of the alternate, rather than the preferred, route. The board staff reported that the alternate route will affect fewer residences within 1,000 feet of the centerline of the project, while the preferred route would impact fewer residences within 100 feet of the centerline. But Reading maintains that Duke’s application and supporting materials focused on the preferred, rather than the alternate, route, so the certificate was granted for the alternate route without fully developed information. For example, Reading’s brief notes, the pipeline along the alternate route will run through a site in Reading that’s planned for the future development of a “life science expansion site,” which already has received substantial investment from the state for bringing technical and scientific jobs to the area. The approved route also is problematic because it runs through narrow streets in Reading residential neighborhoods, the city states.
Safety Requirements Will Be Met, Differing Claims Were Weighed, Board Argues
Overall, the board responds that it held public hearings and an evidentiary hearing, heard and weighed conflicting evidence, and reached its decision to issue the certificate for the Duke project.
On the specifics, the board maintains that Duke established that the pipeline extension will be built and maintained in accordance with safety regulations and, in some aspects, at levels exceeding safety requirements. Safety was demonstrated by Duke’s overall design of the pipeline, selection of high-quality materials, plan for X-ray inspections and enhanced pressure testing after construction, use of a lower operating pressure, and the company’s robust inspection tools, the board found. Board staff also recommended additional safety measures that the board considered.
The board states that Ohio law doesn’t require it to find that the general public has a definite need for a pipeline extension. The board maintains that it considered the need for the project and all the arguments debating its necessity and explained its reasoning thoroughly in its decision approving the project.
Although the 2016 Blue Ash development plan was finalized early that year, Duke’s route selection study that relied on the 2003 Blue Ash development plan was completed in May 2016, the board notes. Given that close timing, Duke relied on the available plan, not outdated information, the board concludes.
Regarding the tax revenue issue, Duke had to provide only an estimate, which it did, the board explains. In its decision, the board determined Duke’s estimates weren’t found to be speculative or unreliable.
Reading’s concern about the effect on its residents and planned development were fully addressed by the board staff and in the certificate’s conditions for mitigating the project’s impact. In the conditions, for example, Duke is required to communicate with local officials, especially regarding possible construction issues, to offer training, and to help develop evacuation and emergency plans.
The board adds that all parties were permitted to participate in the hearing process. There were four public informational meetings, two local public hearings, a formal board hearing, and briefing, and the board reviewed thousands of public comments, it notes. Adding that the process doesn’t end with the issuance of the certificate, the board argues its decision was lawful, reasonable, and supported by the evidence.
Board Decision Backed by Evidence, Duke Contends
Walking through arguments from Blue Ash, Reading, and NOPE point by point, Duke argues the claims are disputes over the facts, yet the board’s order repeatedly cites to the evidence that supports its decision. The cities and the neighborhood group don’t like the evidence and disagree with the board’s analysis, but that isn’t enough to justify overturning the board’s determination to issue the certificate for the project, Duke concludes.
– 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 City of Blue Ash: Bryan Pacheco, 513.977.8247
Representing Neighbors Opposed to Pipeline Extension: John Heer II, 216.235.3248
Representing the City of Reading: David Stevenson, 513.946.3120
Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Steven Beeler, 614.728.9481
Representing Duke Energy Ohio Inc.: Jeanne Woodruff Kingery, 614.222.1334