Tuesday, April 22, 2025
In re L.E.S., E.S., N.S., Case No. 2024-0303
First District Court of Appeals (Hamilton County)
State of Ohio v. Thomas B. Clark, Case Nos. 2024-0401 and 2024-0539
Ninth District Court of Appeals (Medina County)
State of Ohio/City of Huron v. Michael Kisil, Case No. 2024-0640
Sixth District Court of Appeals (Erie County)
In re Application of the Dayton Power and Light Company, Case Nos. 2023-0111 and 2023-0130
Public Utilities Commission of Ohio
Do Parental Rights Depend on Whether Same-Sex Couple Was Married?
In re L.E.S., E.S., N.S., Case No. 2024-0303
First District Court of Appeals (Hamilton County)
ISSUE: Do the Ohio and U.S. constitutions allow a state court to ignore Ohio statutes barring common law marriage and to institute a marriage, and associated parental rights, for same-sex couples who couldn’t marry before Obergefell?
BACKGROUND:
Priya Shahani and Carmen Edmonds were involved in a romantic relationship and moved in together in 2003. Several years later, Shahani and Edmonds decided they wanted to start having children, and they relied on artificial reproductive technology. Shahani was inseminated and gave birth to L.E.S. in 2012 and E.S. and N.S. in 2014. The couple used an anonymous sperm donor of Columbian descent to match Edmonds’ ethnicity.
Edmonds attended the inseminations, prenatal visits, and births, and the couple shared the costs. The children were given the last name Edmonds-Shahani.
In 2012, the Hamilton County Juvenile Court had granted Shahani and Edwards shared custody of L.E.S. No shared custody agreement was put in place for the twins. Before they were born, Shahani executed a will, living will, and healthcare power of attorney. Edmonds was named as the children’s guardian and recognized as the co-parent of the children.
The relationship between Shahani and Edmonds ended in 2015. They separated, and their agreement allotted child support and set a schedule for parenting time. At the children’s schools, Shahani referred to Edmonds as the children’s parent after the split. However, in 2017, Shahani stopped describing Edmonds as a parent and removed Edmonds from the twin’s last names.
Biological Mom Wants To Sever Former Partner’s Legal Ties to Children
In 2018, Shahani filed motions with the juvenile court, in part to terminate shared custody. She asserted that Edmonds’ involvement was no longer in the children’s best interests. Edmonds requested certain rights and a determination that she is a legal parent of the children. In court documents, Edmonds stated that she and Shahani were engaged, but couldn’t marry in Ohio. She noted they didn’t pursue a marriage in another state because it wouldn’t have been recognized in Ohio during the course of their 12-year relationship. However, they presented themselves as married to others, she said. Shahani said she wouldn’t have married Edmonds.
In August 2022, the juvenile court refused to end the couple’s shared custody of L.E.S. and awarded Edmonds companionship time with the twins. The court also ruled that Edmonds couldn’t be a legal parent under Ohio law, and that the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges didn’t change the prohibition.
In Obergefell, the U.S. Supreme Court ruled that the “constellation of benefits” associated with marriage are constitutionally protected and must be offered to same-sex couples. The ruling held that states must recognize same-sex marriages that are legal in other states, and states like Ohio must issue licenses to same-sex couples who want to marry.
Both Shahani and Edmonds appealed the juvenile court’s decisions to the First District Court of Appeals. On the issue of whether Edmonds was a legal parent to the children, the First District overturned the juvenile court. The First District ordered the juvenile court to hold a hearing to determine whether the couple would have been married at the time the children were conceived – if not for the prohibition on same-sex marriage in Ohio law that was then in effect.
Shahani appealed to the Supreme Court of Ohio, which accepted the case.
Ohio Can’t Recognize Common Law Marriages, Biological Mother Maintains
Shahani argues that Obergefell wasn’t violated in their case because she and Edmonds never married in any state, and they never were denied an attempt to obtain a marriage license in Ohio. She notes that common law marriages – which are often established by cohabitation, joint finances, children, and presenting as married – were no longer recognized in Ohio after Oct. 10, 1991. She maintains that the First District decision has essentially allowed common law marriages for same-sex couples to now be recognized in Ohio. Her brief asserts that R.C. 3105.12, which prohibits common law marriages, is a sex-neutral statute providing that Ohio only recognizes marriages that are licensed and solemnized. The First District created a judicial exception to an unambiguous statute, the brief asserts.
The brief highlights rulings from other states. In six cases from states that ban common law marriages, the courts found Obergefell doesn’t force the states to recognize marriages that weren’t solemnized. In states that recognize common law marriages, eight courts have ruled that Obergefell mandates sex-neutral application of those laws to require that same-sex common law marriages be recognized. Ohio falls into the first category and isn’t required to recognize an unofficial marriage, Shahani maintains.
Shahani also points to the First District’s order to the juvenile court to determine whether she and Edmonds would have been married at the time the children were conceived. The First District looked at R.C. 3111.95, which addresses parenting determinations when a child is born using artificial inseminations and states:
“(A) If a married woman is the subject of a non-spousal artificial insemination and if her husband consented to the artificial insemination, the husband shall be treated in law and regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall be treated in law and regarded as the natural child of the husband. …”
Shahani contends that when applied in a gender-neutral manner, the law requires consent to be in writing, include 14 distinct pieces of information, and be signed by both the mother and the mother’s spouse. None of those steps were taken by her and Edmonds, Shahani asserts. And, they were never married, which is implicit in the statute, she maintains.
Shahani objects to the “would have been married standard” directed by the appeals court. The standard assumes everyone in a committed relationship endorses marriage and would choose to marry, she argues. Even when there is a desire to marry, that decision only conveys a plan to marry, she maintains, providing examples of celebrities who broke off engagements before reaching the altar. Shahani argues the “would have been married” analysis rewrites the past of Ohioans and would destabilize state law, impacting parental relationships, property rights, taxation, health care, and spousal privilege. There is no justification for applying marriage-based laws in this case because there was no marriage, Shahani concludes.
Ohio Should Recognize Her Marital Relationship With Ex, Former Partner Counters
Edmonds counters that when she and Shahani got engaged and at the time they had children, Ohio banned recognition of all same-sex marriages. Ohio offered no path for them both to be legal parents. As Obergefell concluded, these barriers violated their constitutional rights, Edmonds argues. When an Ohio statute fails to reach each person who must be included based on their constitutional rights, the Court can either strike down the offending law completely, or extend the protections to those who are aggrieved, she maintains. She advocates extending the protections to those aggrieved by the violation of parental rights, just as the Court did in In re Y.E.F. (2020). In that case, the right to an attorney for indigent parents facing termination of parental rights was solely provided in juvenile court, but the ruling extended the same right to those in probate court.
Edmonds contends that Ohio’s artificial insemination law, R.C. 3111.95, is unconstitutionally under-inclusive because it applies only to married couples. The statute fails to protect same-sex couples in relationships before Obergefell because they couldn’t marry until 2015, Edmonds maintains. She asserts there was no way for same-sex couples using artificial insemination to both be parents legally. She argues the statute unconstitutionally deprived her of her parental rights because the rights hinge on her ability to have married Shahani at a time when Ohio banned all same-sex marriages.
The “would have been married standard” is the correct framing, Edmonds argues. She explains that she will benefit from the artificial insemination statute’s protections only if she can establish that, if not for the ban on same-sex marriages in Ohio, she and Shahani would have been married when the children were born – making them both parents today. The juvenile court will need to engage in fact-finding, which is done by courts all the time, she notes.
Edmonds rejects the view that she needed to sign the artificial insemination consent form to secure parentage. Her brief maintains that in Ohio “consent by conduct is enough.” And they signed many other documents in an attempt to obtain legal protections given to other families, Edmonds notes.
She concludes that “Shahani wants to exploit past inequalities to seize exclusive parental rights over the parties’ children. Obergefell stops this.”
Additional Briefs Filed Supporting Partner Seeking Parental Rights
An amicus curiae brief supporting Edmonds was submitted jointly by the National Association of Social Workers, including its Ohio chapter, and American Civil Liberties Union of Ohio Foundation. The brief argues that Edmonds’ positions appropriately prioritize the best interests of the children in any matter encompassing custody, visitation, foster care, parental fitness, and adoptions. The Nathaniel R. Jones Center for Race, Gender, and Social Justice at the University of Cincinnati College of Law filed an amicus brief also supporting Edmonds. The center argues that a decision in Edmonds’ favor would remedy a constitutional wrong suffered by same-sex couples and their children before Obergefell.– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Priya Shahani: Paul Kerridge, paul@durst.law
Representing Carmen Edmonds: Jonathan Hilton, jhilton@hiltonparker.com
Did Arguments in Reopened Appeal Inherently Establish Ineffective Counsel in Prior Appeal?
State of Ohio v. Thomas B. Clark, Case Nos. 2024-0401 and 2024-0539
Ninth District Court of Appeals (Medina County)
ISSUES:
- When an appeals court agrees to reconsider a case on the grounds of ineffective assistance of appellate counsel, but the appealing party fails to address in its brief how the legal representation was ineffective, do the arguments raised inherently demonstrate the prior appellate attorney’s ineffectiveness because those arguments weren’t raised earlier?
- If an appeals court finds reversible error in a reopened appeal, does that satisfy the requirement that the appealing party must demonstrate the prior appellate counsel’s ineffectiveness?
BACKGROUND:
Thomas Clark faced 30 charges in 2016 of rape and gross sexual imposition. At a change of plea hearing where he was represented by an attorney, Clark pled guilty to 13 of the counts. After the plea, Clark’s attorney withdrew from representation, and another attorney was appointed. However, Clark also filed pro se motion asking to represent himself and to withdraw his plea. Clark was allowed to represent himself, but the trial court denied his request to withdraw his plea. He was sentenced to concurrent sentences of 25 years to life in prison on each rape count and 36 months on each gross sexual imposition count.
Clark appealed to the Ninth District Court of Appeals. The court found that the trial court failed to obtain a waiver of counsel from him that was voluntary, knowing, and intelligent. The court ordered Clark’s convictions to be vacated and sent the case back to the trial court.
The trial judge recused himself. At a status conference with the new judge in October 2018, Clark’s attorney argued the Ninth District decision vacated not only Clark’s sentence but also his guilty plea. Several other motions were filed in late 2018 and through 2019, and another new attorney was appointed for Clark. After rejecting a request to dismiss the charges, the trial court in February 2020 imposed the original sentence.
Appeals Court Agrees To Reopen New Appeal To Consider Ineffective Assistance Claim
Clark appealed the trial court decision to the Ninth District, which overruled all of his arguments. He asked the court to reopen his appeal, arguing he received ineffective legal counsel from his appellate attorney. The Ninth District agreed, appointed new appellate counsel, and ordered the parties to address how the prior appellate counsel’s representation was deficient and how Clark was prejudiced by the ineffective representation.
In his reopened appeal, Clark raised 10 assignments of error. The Ninth District rejected each, concluding it couldn’t reach the merits of the issues because Clark didn’t directly address the ineffective assistance claim. The appeals court agreed with Clark that its decision conflicts with rulings from the appeals courts in the Fourth District and the Eleventh District.
Clark appealed to the Supreme Court of Ohio, which accepted his appeal and also agreed to review the conflict among the appellate courts. The cases were consolidated.
Arguments Not Raised in Earlier Appeal Establish Ineffective Assistance, Offender Argues
Clark notes that Ohio appellate courts have used different standards regarding how an appealing party must show that a prior appellate attorney was deficient in their representation and that the deficient performance affected the outcome of the case. He argues an appellant who is raising new arguments in an appeal reopened on an ineffective assistance claim is arguing to the appellate court that the prior appellate attorney was ineffective for failing to raise those additional arguments. Technical adherence to court rules for appeals shouldn’t prevent an appellate court from reaching the merits of claims in these cases, Clark maintains.
He also asserts that if an appeals court finds in a reopened appeal a trial court error requiring reversal, then it follows that the ineffective assistance of the prior appellate attorney has been demonstrated.
Rules for Reopened Appeals Must Be Followed, State Contends
The Medina County Prosecutor’s Office counters that an appealing party must comply with the explicit requirements of the appellate court rules. Clark had to address how his earlier appellate counsel’s representation was deficient and how he was prejudiced by the deficient performance. The prosecutor notes that the Fifth District Court of Appeals agrees with this interpretation, and its rulings align with the Ninth District on the issue.
Not every error made by an attorney requires reversal, the prosecutor notes. The prosecutor contends that an appellant must establish that there was ineffective assistance of counsel by directly addressing the issue in the brief to the appellate court. Without that explanation, the appellate court has no framework to review the case, the prosecutor concludes.
Additional Brief Submitted
The Ohio Public Defender’s Office filed an amicus curiae brief supporting Clark.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2024-0401 and 2024-0539).
Contacts
Representing Thomas B. Clark: Lydia Spragin, lydiaspragin@attorneyandcounseloratlaw.onmicrosoft.com
Representing the State of Ohio from the Medina County Prosecutor’s Office: Stefanie Zaranec, szaranec@medinaco.org
Are City Laws for Maintaining Property Unconstitutionally Vague?
State of Ohio/City of Huron v. Michael Kisil, Case No. 2024-0640
Sixth District Court of Appeals (Erie County)
ISSUE: Are the terms “clean,” “safe,” and “sanitary” in a city’s ordinances for property maintenance unconstitutionally vague because they don’t inform an ordinary property owner or occupant what is prohibited?
BACKGROUND:
Michael Kisil owns a property in Huron that sits on the Huron River. In March 2022, the city of Huron notified Kisil that he was in violation of city ordinances regarding property maintenance. For its laws on property maintenance and care, Huron had adopted the International Property Maintenance Code (IPMC).
After finding that Kisil didn’t address the violations, the city filed a six-count complaint and supporting photos in Huron Municipal Court. In December 2022, Kisil asked the court to dismiss four of the six counts, claiming the IPMC provisions the charges were based on were unconstitutionally vague in all applications. The court agreed to dismiss two of the counts – referenced as Count A and Count B, both fourth-degree misdemeanors.
In Count A, the city alleged that the property has been without water since November 2010; Kisil’s break wall, which protects the shoreline on his property against erosion, was falling into the river; the exterior of the main house and garage were decaying; a fence was deteriorating; and there were holes in the roof. Count A is based on IPMC section 301.3, which states:
“Vacant Structure and land. Vacant structures and premises thereof or vacant land shall be maintained in a clean, safe, and sanitary condition as provided herein so as not to cause a blighting problem or adversely affect the public health or safety.”
Count B alleged there was debris located throughout Kisil’s property, consisting of barrels, lawn mowers, boats, trailers, propane tanks, and vegetation. Count B is based on IPMC section 302.1, which states:
“Sanitation. Exterior Property and premises shall be maintained in a clean, safe and sanitary condition. The occupant shall keep that part of the exterior property that such occupant occupies or controls in a clean and sanitary condition.”
Appeals Court Overturns Dismissal of Two Charges
The city appealed to the Sixth District Court of Appeals, which overturned the dismissal of Counts A and B. In its April 2024 decision, the appeals court found the words “clean,” “safe,” and “sanitary” were “a sufficiently definite warning” of what conduct was prohibited based on common understanding and practices. The IPMC provisions weren’t unconstitutionally vague in all applications, the Sixth District concluded.
The Sixth District also determined its ruling conflicted with a 2016 Seventh District Court of Appeals decision. Kisil notified the Supreme Court of Ohio, which agreed to review the conflict between the appellate courts.
Property Owner Argues Ordinances Don’t Clearly Explain What Is Prohibited
Kisil notes the U.S. Supreme Court has concluded that a criminal law must be sufficiently explicit to inform people what conduct is prohibited. A law so vague that someone must guess at its meaning violates the person’s due process rights under the Fourteenth Amendment to the U.S. Constitution, the nation’s highest court has determined. Kisil’s brief refers to the analysis as the “void-for-vagueness doctrine.”
IPMC 301.3 states that property must be maintained “in a clean, safe, and sanitary condition as provided herein.” Kisil argues the language indicates that other IPMC provisions would address the meanings. However, Kisil contends, such provisions don’t exist.
The words “clean,” “safe,” and “sanitary” – which are used in both IPMC 301.3 and 302.1 – have different commonly used meanings, he maintains. For example, “clean” could mean “free from dirt or pollution” or “pure” or “habitually neat,” Kisil states, citing dictionary definitions. “Dirt” and “pollution” also have a range of meanings. These are subjective standards, he argues.
Because the IPMC provides no guidance on the words’ meanings, the Huron ordinance is unconstitutionally vague, preventing a person from understanding precisely what to do to follow the ordinances, Kisil contends. He also argues the lack of clarity leaves individuals subject to arbitrary enforcement and random determinations by code enforcement officers, judges, and juries applying the law.
He asserts that State v. ACV Realty (2016) from the Seventh District involved the same issue. The case involved the city of Youngstown’s complaint against the owner of an unoccupied property undergoing demolition. The owner was cited and argued the words “clean, safe, and sanitary” in IPMC 302.1 were unconstitutionally vague. The Seventh District agreed, dismissing the charges.
City Counters Ordinary People Wouldn’t Be Confused About Property Owner Violations
Huron counters that ACV Realty doesn’t conflict with the Sixth District decision in this case. In ACV Realty, the Seventh District found the IPMC provision was unconstitutionally vague as applied to that particular set of circumstances, Huron explains. The case involved a slow-moving demolition project, and the code enforcement officer had applied the ordinance arbitrarily as a way to speed up the project. Finding the ordinance to be unconstitutionally vague in one set of “oddball facts” doesn’t mean the standard is unconstitutional across every case, Huron’s brief argues.
The city maintains that in this type of case broadly challenging the constitutionality of a law, Kisil must first establish that an ordinary person might think his conduct wasn’t prohibited by the Huron ordinances. Courts will not entertain claims, for example, that driving drunk at 100 mph through traffic isn’t “careless” simply because there might be a hypothetical case where the meaning of “careless” is harder to discern, Huron explains. If Kisil can establish an ordinary person would be confused whether Kisil’s conduct was prohibited, then he must show the city ordinances are unconstitutionally vague in all situations, the city contends. Huron also notes that Ohio courts consider whether prior warnings to a defendant about the conditions to be remedied were disregarded.
Kisil had been notified in March 2022 of the code violations and didn’t address them. The city maintains that photos submitted to the municipal court showed a riverfront “junkyard” property that was decayed and overgrown. Also, there were six boats on the property surrounded and covered by thickets, and the deteriorating break wall. The house was open to the elements, providing opportunities for vermin to take shelter, and it had no water service for 10 years. It’s not difficult for an ordinary person to see that these conditions aren’t clean, safe, and sanitary, the city argues. It concludes that Kisil didn’t meet the first requirement for his claim and can’t show the ordinances are unconstitutionally vague generally.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Michael Kisil: Matthew Craig, matthewacraig@mcraiglaw.com
Representing the city of Huron: Jeffrey Moeller, jmoeller@sseg-law.com
Should Regulator Order Refund of Electric Utility Company Charge?
In re Application of the Dayton Power and Light Company, Case Nos. 2023-0111 and 2023-0130
Public Utilities Commission of Ohio
ISSUES:
- Under Ohio electric utility law, is a standard service offer a component of an electric security plan, or is a standard service offer a form of an electric security plan?
- Can the Public Utilities Commission Ohio remove a rate stabilization charge that is a component of a reinstated electric security plan?
- Can the Public Utilities Commission of Ohio modify a previously approved rate stabilization charge to be refundable to consumers “to the extent permitted by law”?
BACKGROUND:
Dayton Power & Light, which supplies electric distribution services to the Dayton area, now operates under the name AES Ohio. In 2003, AES began developing a rate stabilization charge, which would be added to the bills of the electric utility’s customers. This charge served to ensure AES could act as the provider of last resort while Ohio transitioned to a competitive market for electricity generation. The charge would help AES transition as it separated its electric generation business from its electric distribution and transition business and still allow it to serve customers who didn’t select a generation supplier other than AES.
The Ohio Consumers Counsel (OCC) and other interested parties engaged in negotiations with AES on a rate plan. AES proposed to the Public Utilities Commission of Ohio (PUCO) an electric security plan (ESP), which would eventually be approved to cover a five-year period from 2008 to 2013. The ESP included a rate stabilization charge, which collected $76 million a year from AES customers. This ESP would be termed “ESP I” by regulators as AES prepared its next rate plan.
In 2013, the PUCO approved a second multiyear rate plan known as ESP II. This plan included a “service stability charge,” which was similar to one the PUCO approved for other electric utility providers. In 2016, in a case regarding another utility, the Supreme Court of Ohio found the service stability charge to be unlawful.
In response to the ruling, AES asked for the PUCO’s approval to withdraw ESP II. Citing state law, the PUCO reimplemented AES’s ESP I, which included the $76 million rate stabilization charge. The OCC opposed the inclusion of the rate stabilization charge, arguing it no longer served a purpose, and AES had no evidence the additional payments were benefiting customers. In 2017, the PUCO approved the company’s ESP III, which contained a “distribution modernization rider,” which was similar to charges the PUCO approved for another utility. In 2019, the Supreme Court found the other utility’s distribution modernization rider was unlawful. In response, AES asked to withdraw ESP III and revert to ESP I until a new plan could be established.
OCC again objected to reimplementing ESP I because it included the rate stabilization charge. After years of litigation before the PUCO, the commission modified the AES rate plan by ordering the company to state the rate stabilization plan is refundable to customers “to the extent permitted by law.” After the change was made in 2021, OCC asked the PUCO to declare that the rate stabilization charge was unlawful and should be refunded to customers. The PUCO denied the request, finding it wasn’t authorized under the law to remove the charge. It also found the charge isn’t refundable but made AES add the language in the ESP to allow OCC to appeal the commission’s decision to the Supreme Court.
OCC appealed to the Court, which must hear this type of case. AES has also challenged the PUCO’s inclusion of the refund language. Two appeals were filed, and the Court consolidated the cases.
Commission Can and Should Remove Charge, Consumer Advocate Argues
The consumers’ counsel explains the process for withdrawing an ESP. R.C. 4928.143(C)(2)(b) states that when a utility withdraws a rate application, such as an ESP, then the PUCO “shall issue such order as is necessary to continue the provisions, terms, and conditions of the utility’s most recent standard service offer, along with any expected increases or decreases in fuel costs contained in that offer.” The PUCO determined that AES’s ESP I was the most recent standard service offer and that it had to revert to the ESP with all the existing provisions, terms, and conditions it found were lawfully included in the offer.
OCC asserts the PUCO considered the rate stabilization charge to be lawful in 2009 and refuses to consider that, with all existing evidence over time, the charge is clearly unlawful. OCC maintains the PUCO is refusing to take action to remove an unlawful charge. More importantly, the OCC asserts that an ESP is not a standard service offer. The standard service offer is a component of the ESP. A standard service officer is defined in R.C. 4928.141 and is basically a charge for the cost of energy and the ability of the company to provide it.
OCC argues that ESP I contains several charges in addition to the standard service offer, including the rate stabilization charge. Nothing in the law requires the PUCO to reinstate ESP I with all the additional charges along with the standard service offer, OCC maintains. While the PUCO ruled the standard service offer and other components of the ESP are intertwined, making the whole ESP a standard service offer, OCC contends that it is a misreading of the law. OCC argues that just because parts of the ESP provisions overlap with the standard service offer doesn’t make the ESP a standard service offer.
OCC maintains the PUCO is empowered to modify the standard service offer “as necessary” and has the right to make the rate stabilization charge refundable. The PUCO should remove the rate stabilization charge from the plan paid by customers and should refund them $76 million for each year since 2008 that the PUCO has authorized it, the consumers’ counsel concludes.
Approved Plan Is Lawful, Commission Maintains
The PUCO notes that R.C. 4928.141 establishes how a utility makes a standard service offer to provide electricity to those who don’t select an alternative provider. The law indicates the standard service offer can be made through a market rate offer or an ESP. An ESP is a form of a standard service offer under the law, not just a component of it, the commission asserts. Because the ESP is the standard service offer, the PUCO correctly implemented ESP I after AES withdrew ESP II and ESP III, the commission argues.
The commission reviewed and modified parts of ESP I when reinstating it and found the rate stabilization charge was appropriate. The PUCO asserts that OCC provides no evidence that ratepayers were overcharged or undercharged by the reenactment of ESP I. The commission states it evaluates ESPs as a whole and found that ESP I benefits AES customers.
The PUCO included language allowing the rate stabilization charge to be refunded but found that the charge didn’t qualify for refunds under the precedent of prior Supreme Court rulings. The PUCO notes it is up to the Court to interpret the law differently before the commission is authorized to declare the charge unlawful and make it refundable.
Charge Properly Implemented and Not Refundable, Utility Asserts
AES notes that in four places, R.C. 4928.141 specifies a standard service offer includes an ESP and that the PUCO followed the law by reinstating ESP I each time AES withdrew its other rate applications. AES notes the PUCO didn’t automatically reinstate the rate stabilization charge simply because it was a provision of ESP I but because it was a lawful provision. The PUCO, by law, must reinstate ESP I with all its lawful provisions and doesn’t have the authority to deviate from the plan, AES asserts.
AES argues the PUCO abused its authority by requiring the utility to make the rate stabilization refundable to the extent permitted by law. The PUCO ruled that AES can’t appeal the issue because it hasn’t suffered any harm from the provision, especially since the commission ruled the charge wasn’t refundable. AES argues the inclusion poses a risk to the company because it provides the potential for a refund to be issued. The company contends that risk has true financial ramifications as investors assess whether the utility could potentially face a revenue decrease. AES asks the Court to rule that insertion of the refund language was unlawful.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting AES’s position was submitted by Ohio Power Company.
Court Alters Argument Time
The Court altered the oral argument time, giving OCC, AES, and the PUCO each 10 minutes to argue.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2023-0111 and 2023-0130).
Contacts
Representing Ohio Consumers’ Counsel: Angela O’Brien, angela.obrien@occ.ohio.gov
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Thomas Lindgren, Thomas.Lindgren@ohioago.gov
Representing Dayton Power and Light Company, doing business as AES Ohio: Jeffrey Sharkey, jsharkey@ficlaw.com
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.
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