Tuesday, October 7, 2025
State of Ohio v. Anthony J. Polizzi Jr., Case No. 2024-0312
Eleventh District Court of Appeals (Lake County)
Administrative Judge Thomas F. O’Malley v. Laborers’ International Union of North America Local 860, Case No. 2024-1369
Eighth District Court of Appeals (Cuyahoga County)
Jedda K. Eggleston v. Christian Wood, Case No. 2024-1791
Ninth District Court of Appeals (Lorain County)
In re Application of Duke Energy of Ohio Inc., Case No. 2024-1505
Public Utilities Commission of Ohio
Was 30-Year Prison Sentence Appropriate for Teacher’s Sex Offenses?
State of Ohio v. Anthony J. Polizzi Jr., Case No. 2024-0312
Eleventh District Court of Appeals (Lake County)
ISSUE: When imposing or reviewing sentences imposed consecutively, must trial and appellate courts consider the overall number of consecutive sentences and the total sentence?
BACKGROUND:
Anthony Polizzi Jr. took a position as a history teacher at Cornerstone Christian Academy in 2006. He also served as a class advisor, mock trial advisor, and cross-country coach. In spring 2010, a student reported concerns to school officials about the inappropriateness of Polizzi’s relationship with another student, identified as N.M. Polizzi was fired in 2010 when school administrators learned he had contacted and coached N.M. on what to say to school staff.
Years later, N.M. reported Polizzi to the Willoughby Hills Police Department. Following a police investigation, Polizzi, who had become an attorney, was indicted in July 2017 on multiple counts of sex offenses relating to his conduct with N.M. In early 2018, he also was indicted for his conduct with a former student identified as E.L.
N.M. reported that when she was a senior in high school, Polizzi engaged in sexual conduct with her, in his car at a park and in the parking lots of local establishments. He also threatened her if she told anyone about their relationship. More than two years after the sexual activity ended, while Polizzi was attending law school, he sent N.M. emails containing obscene sexual content from a vulgarly named email address.
Before N.M., Polizzi engaged in sexual conduct with E.L. for about a year. He threatened consequences, such as harm to her reputation and ability to graduate, if she disclosed the activity. Years after the abuse ended, Polizzi reached out to E.L. via text message. She blocked his phone number.
Former Teacher Found Guilty, Sentenced to 33 Years in Prison
During proceedings in Lake County Common Pleas Court in March 2018, Polizzi opted to plead guilty to two counts of gross sexual imposition and six counts of sexual battery. The sexual battery offenses were based on the student-teacher relationship. The trial court sentenced him to the maximum on each count – 60 months for each sexual battery offense and 18 months for each offense of gross sexual imposition. The court imposed the sentences consecutively, for a total prison term of 33 years. He was classified as a tier III sex offender.
Polizzi appealed to the Eleventh District Court of Appeals. The appeals court ruled that the record didn’t support consecutive sentences, and ordered the trial court to resentence him. In January 2020, Polizzi’s resentencing hearing was held, and both victims testified. The court imposed a total sentence of 29 years, 10 months.
In April 2021, the Supreme Court of Ohio disbarred Polizzi from practicing law.
Prison Term Imposed at Resentencing Appealed by Former Teacher
Polizzi appealed again to the Eleventh District, which rejected his legal claims regarding his sentence. Polizzi appealed that ruling to the Supreme Court, which initially declined to hear the case, but then granted his request for reconsideration. In December 2022, the Supreme Court issued a ruling in State v. Gwynne, which involved how a trial court imposed consecutive sentences. The Court returned Polizzi’s case to the Eleventh District to apply Gwynne.
Before the Eleventh District decided Polizzi’s returned case, the Supreme Court reconsidered and vacated the December 2022 Gwynne decision. The Eleventh District applied the Court’s subsequent decision in Gwynne, issued in October 2023, and upheld Polizzi’s sentences.
Polizzi appealed again to the Supreme Court, which accepted the case. The Court held its consideration of Polizzi’s appeal while reviewing State v. Glover. After the Court ruled in Glover in November 2024, the hold on Polizzi’s appeal was lifted, and the Court agreed to consider one proposition of law in his case.
State Laws That Address Consecutive Sentences
The parties agree that certain statutes are in play in this case. First, when a person is sentenced for committing multiple offenses, R.C. 2929.41(A) sets a presumption that courts will impose the sentences concurrently, not consecutively.
Before a court can stack sentences consecutively, it must make the findings in R.C. 2929.14(C)(4), which requires that “the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of [three additional criteria].”
Number of Sentences and Total Prison Term Part of Proportionality Review, Offender Argues
Polizzi maintains that once a trial court determines consecutive sentences are necessary to protect the public or punish the offender, the first step of the analysis in the statute is complete. At that point, the court has determined that “consecutive service,” meaning serving at least two sentences consecutively, is necessary, he notes.
Next is the second step, where the court considers the proportionality of the consecutive sentences to the seriousness of the offender’s conduct and to the danger the offender poses to the public. For this analysis, Polizzi argues the court considers the “consecutive sentences” – the number of consecutive sentences and the total, or aggregate, length of imprisonment.
Polizzi quotes the concurring opinion in Glover regarding analyzing the proportionality of consecutive sentences: “… this factor requires courts to consider the aggregate of all terms the offender will be required to serve consecutively, because otherwise there is no other way to conduct a proportionality analysis.”
Polizzi explains that on appeal, if an appellate court finds the record clearly and convincingly doesn’t support the sentence, R.C. 2953.08(G)(2) gives the appellate court the authority to increase, reduce, or otherwise modify a sentence or to return the case to the trial court for resentencing. Appellate courts are empowered “to take corrective action when the aggregate term to be served is clearly excessive in relation to the seriousness of the offense conduct or the danger the defendant poses to the public,” his brief argues.
The brief contends that Polizzi’s most serious offenses were sexual battery, because of his role as a teacher. He will never teach again and is required to register as a sex offender for the rest of his life. He also maintains that various analyses showed he has a low risk of reoffending. His 30-year sentence is extreme, he argues, noting that no similar Ohio case in which a teacher engaged in sexual conduct with students resulted in a total sentence of three decades. His brief states that the longest sentence found, in a more heinous case, was 20 years. Appellate courts must be able to do a meaningful review to protect against excessive and disproportionate sentences that aren’t backed by the record, the brief concludes.
Proportionality Review Doesn’t Require Consideration of Total Prison Term, State Responds
The Lake County Prosecutor’s Office counters that R.C. 2929.14(C)(4) doesn’t require a trial court to consider a defendant’s total, or aggregate, sentence. However, the prosecutor argues, the trial court can choose to, but doesn’t have to, consider the total sentence and give it weight in its proportionality analysis. The prosecutor acknowledges that the aggregate sentence length may have more weight in a trial court’s analysis when many counts, rather than a few, are imposed to run consecutively. However, the aggregate sentence is only one statutory factor the trial court considers, in the prosecutor’s view.
The prosecutor maintains that other consecutive sentencing factors include the defendant’s criminal history, the danger he poses to the public, the need to punish him, and more. The factors look at the defendant’s conduct as a whole to determine the need to protect the public and the harm caused, the prosecutor argues. The prosecutor adds that review for proportionality doesn’t require consistency with other similar offenders. Instead, proportionality relates only to the punishment in the context of the offender’s own conduct, the prosecutor asserts.
The prosecutor describes the appellate court’s review of consecutive sentences via R.C. 2953.08(G)(2) as an “inverted deferential standard of review.” The appeals court must clearly and convincingly find that the record doesn’t support the trial court’s findings. The standard, which is written in the negative, conveys that appellate courts must give broad deference to the trial courts, the prosecutor maintains. The prosecutor argues the appeals courts don’t have unfettered power to impose its independent judgment to modify consecutive sentences. The prosecutor believes that modifying sentences should only be allowed when a trial court sentence is contrary to law, not for consecutive sentences. Appellate courts have no authority to review the aggregate sentence when consecutive sentences are imposed, the prosecutor maintains.
The prosecutor contends that the record in Polizzi’s case supports the trial court’s sentence. His victims were vulnerable, and the state disputes his low risk of reoffending given his lack of insight and remorse. He poses a danger to the public, and his conduct warrants consecutive sentences, the prosecutor concludes.
Three Friend-of-the-Court Briefs Submitted
The Ohio Association of Criminal Defense Lawyers filed an amicus curiae brief supporting Polizzi’s positions. A brief in support of Polizzi’s arguments was also submitted jointly by the Cuyahoga County Public Defender’s Office, Hamilton County Public Defender’s Office, Montgomery County Public Defender’s Office, Ohio Public Defender’s Office, and Summit Legal Defenders.
A brief supporting the Lake County prosecutor was submitted by the Ohio Prosecuting Attorneys Association.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Anthony J. Polizzi Jr.: Mark DeVan, mdevan@bgmdlaw.com
Representing the State of Ohio from the Lake County Prosecutor’s Office: Teri Daniel, teri.daniel@lakecountyohio.gov
Must Dispute Between Juvenile Court and Union Go to Arbitration?
Administrative Judge Thomas F. O’Malley v. Laborers’ International Union of North America Local 860, Case No. 2024-1369
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Must a court, rather than an arbitrator, decide a dispute over whether a contract with an arbitration clause creates a duty to arbitrate?
- As an employer, can a court be bound perpetually by the terms of a collective bargaining agreement with its employees?
BACKGROUND:
In 2012, the Cuyahoga County Juvenile Court and Local Union No. 860 of the Laborers’ International Union of North America entered into a collective bargaining agreement (CBA) for groups of juvenile court employees. The Court Services CBA, for the court’s probation and clerical employees, expired on Oct. 31, 2015. For the court’s detention center employees, the Detention Center CBA ran through Dec. 31, 2015.
As the CBA expiration dates neared, the juvenile court and Local 860 began negotiations. While those were ongoing, the court and Local 860 negotiated a contract extension beyond the CBA expiration dates in 2015. That extension expired, and the parties discussed a second extension, but it was never signed. The court and Local 860 eventually signed new CBAs in 2017 for both groups for a three-year period from Jan. 1, 2017, to Dec. 31, 2019. Each agreement included language referred to as the “preamble”:
“Section 3. The Court and the Union recognize that nothing in this Agreement supersedes or interferes with rights and authorities granted to the Court pursuant to Ohio Revised Code (ORC) Chapters 2151 et seq. and 2153 et seq. Nothing in this Agreement abrogates the Court’s rights pursuant to ORC Chapter 4117 et seq. Notwithstanding, the Court agrees to recognize the Union and abide by the terms of the Agreement until such time as a successor agreement is negotiated between the parties, the Union disclaims interest, or the employees elect to decertify the Union as their exclusive bargaining representative upon the expiration of this Agreement.”
When the CBA expirations approached in 2019, the court and Local 860 met to negotiate new contracts. No written extensions were put in place. The juvenile court noted that it feared a potential strike by detention center employees, and it reached out to other facilities to plan for transferring detained juveniles if there were a strike.
Juvenile Court Officials Vote To Stop Recognizing Union
In late 2020, with no CBAs negotiated, the six juvenile court judges voted unanimously to withdraw recognition of Local 860. The court sent a memo in December 2020 to all Local 860 members telling them that the CBAs no longer applied to the employees.
A few days later, the union emailed the court administrator challenging the view that the CBAs weren’t valid and effective, arguing the court was failing to comply with the preamble language and the contracts.
The juvenile court filed legal actions in Cuyahoga County Common Pleas Court for declaratory judgment. The juvenile court argued the CBAs were invalid from the time they were signed (void ab initio) because there was no mutual exchange of promises and obligations and because the CBAs created contracts that continued perpetually. The court believed the CBAs had expired under the terms of the contracts. Local 860 filed counterclaims, which included arguing that the preamble created obligations that continued past the CBA expiration dates and asking the trial court to order the parties to arbitration.
Trial Court Evaluates Arguments
In November 2022, both sides were requesting summary judgment, and the trial court found that the latest the CBAs could have been extended was one year, to Dec. 31, 2020. The trial court ruled that the juvenile court couldn’t withdraw recognition of Local 860 until Jan. 1, 2021, and found that the juvenile court breached the CBAs from the time of its early December memo to staff until Dec. 31, 2020. The court determined that other claims should be addressed at trial rather than at the summary judgment stage.
Instead of a trial, the parties filed joint stipulations and another round of motions for summary judgment. In July 2023, the trial court determined that Local 860’s email to the court administrator wasn’t a grievance that required resolution through arbitration. The court also awarded damages of $6,804 to Local 860 for union dues and initiation fees for the one-month breach of the CBAs in December 2020.
The juvenile court and Local 860 both appealed to the Eighth District Court of Appeals, which reversed the trial court. The Eighth District majority ruled that the dispute involved interpretation of the terms of the CBAs and concluded the dispute must go to arbitration.
The juvenile court appealed to the Supreme Court of Ohio, which agreed to review the issues.
Courts Decide Whether Contract Requires Arbitration, Juvenile Court Maintains
The juvenile court contends that a party can’t be forced to arbitrate a dispute over whether a contract requires arbitration. Whether the CBAs create a duty for the parties to arbitrate a dispute is a question for courts, not an arbitrator, the court maintains.
In addition, a disagreement about whether a valid CBA still exists also can’t be submitted to an arbitrator for resolution, the court argues. If the contract doesn’t exist, then the arbitration provision in the contract never existed either and can’t be enforced, the court maintains.
The court also asserts that the union is trying to hold the court hostage as an employer by demanding that the CBAs continue indefinitely, based on the preamble, which doesn’t give the court any say in that decision. The court contests the unending contracts, citing the Supreme Court of Ohio decision in State ex rel. Ohio Council 8 v. Spellacy (1985). The ruling established that a court’s decision whether to recognize and engage in collective bargaining “is strictly a matter of judicial discretion” for the court as the employer, the juvenile court argues.
No Conditions Arose To Invalidate Agreements, Union Contends
Local 860 counters that the juvenile court exercised its discretion under Spellacy to enter into CBAs with employees beginning in 2012. Although the CBAs set durations of three years, the contracts also required the court to negotiate successor CBAs in good faith, which included maintaining the status quo during negotiations, Local 860 maintains. The union contends that the status quo remains in place unless one of the three conditions in the preamble occurs.
Local 860 notes that when the juvenile court judges withdrew recognition of the union, the step eliminated disciplinary processes, safety and health responsibilities, wage increases for promotions, and other rights. Since January 2022, the juvenile court fired at least seven union members without following CBA protections and also refused to hear employee grievances on the basis that the CBAs had expired, Local 860 states.
Local 860 maintains that the juvenile court violated the terms of the CBAs when it stopped engaging in negotiations. This dispute falls under the arbitration clauses in the valid and enforceable CBAs and must be sent to arbitration, the union contends. The juvenile court voluntarily entered into the CBAs and can’t escape its contractual obligations, Local 860 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 Administrative Judge Thomas F. O'Malley, in his official capacity on behalf of the Cuyahoga County Juvenile Court: Robert Hunt, rthunt@ralaw.com
Representing Laborers’ International Union of North America, Local 860: Joseph Guarino III, jguarino@bmanganolaw.com
Was NBA Player Entitled to Three-Day Extension To Object to Child Support Order?
Jedda K. Eggleston v. Christian Wood, Case No. 2024-1791
Ninth District Court of Appeals (Lorain County)
ISSUE: Does a court rule for civil cases providing a three-day extension for actions after the service of documents by U.S. mail also apply to the deadlines for filing objections to a magistrate’s decision?
BACKGROUND:
Jedda Eggleston and Christian Wood are the parents of a son born in January 2021. According to Wood’s brief, he and Eggleston met through social media and had a relatively short romantic relationship. Eggleston lives in Elyria. When the child was born, Wood was a professional basketball player for the Dallas Mavericks. He filed a motion in Lorain County Domestic Relations and Juvenile Court to establish visitation and determine child support.
The court heard the case in April 2023. For the 2022-2023 season, Wood’s compensation was $13.7 million. He earned $12.7 million in the prior season. He was pursuing opportunities as a free agent for the 2023-2024 season and didn’t know what he would earn. His home in Dallas cost $3.5 million. Leading into the court proceedings, he was paying $5,000 per month in temporary child support. He argued for $3,000 to $4,000 per month in child support.
Eggleston had an associate’s degree in psychology. She had worked for minimum wage as a cashier, earning $15,000 per year, until the child was born. Her house in Elyria was $270,000. She requested $50,000 per month in child support.
When the combined income of both parents exceeds $336,467, the maximum amount on the child support schedule, courts look at the specific circumstances in the case. On Dec. 13, 2023, the magistrate issued a decision. The magistrate noted that if Wood and Eggleston had stayed together, the child would have a high standard of living and additional advantages. Given Wood’s high income, lifestyle, and limited career and earnings opportunities as a professional athlete, the magistrate determined that it was in the child’s best interest that Wood pay $25,000 per month for child support.
Father Files Objections 15 Days After Magistrate’s Order
On Dec. 28, Wood filed objections to the magistrate’s decision. He also made additional motions regarding deadlines. Wood maintained that the deadline for filing objections was Jan. 2, 2024. He argued the deadline could be extended by three days because of a court rule for civil cases. The rule gives a three-day extension when the documents are served by mail and “a party has the right or is required to do some act … within a prescribed period after the service of a notice or other document.”
The court determined that under rules for juvenile courts, Wood’s objections were due Dec. 27, 14 days after the magistrate’s decision. The court dismissed his objections because they were untimely.
Appeals Court Reviews Whether Three-Day Extension Applies
Wood appealed to the Ninth District Court of Appeals. He argued the juvenile court’s calculations were incorrect. The Ninth District agreed to apply the civil rules instead of the juvenile rules, finding both have a 14-day deadline for filing objections.
The Ninth District agreed with the juvenile court that the 14-day deadline for Wood to file his objections was Dec. 27. The appeals court then examined whether Wood was entitled to the three-day extension because the magistrate’s decision was mailed to him. The Ninth District explained that Wood’s right to object is triggered not by the date the decision was served on him, but by the date the decision was filed by the court. The rules don’t extend the time permitted for objecting to a magistrate’s decision, the appeals court concluded.
The Ninth District rejected Wood’s challenge to the child support order. Because he didn’t file his objections to the child support order by the deadline, he couldn’t appeal the support amount, the court noted.
Wood appealed to the Supreme Court of Ohio, which accepted the case.
Father Argues Mail Delays Affect Rights, Due Process
Wood notes that in Rule 53 of the Rules of Civil Procedure, before the section detailing the deadline for filing objections, there is a section about issuing the magistrate’s decision. It states, “A magistrate’s decision shall be … filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed.”
Wood maintains that the magistrate’s decision was filed on Dec. 13, but his attorney didn’t receive the document until Dec. 22, nine days after the decision was filed. Wood argues the civil rules allow a trial court to extend the time to file objections for good cause. According to the rules, good cause “includes, but is not limited to, a failure by the clerk to timely serve the party seeking the extension with the magistrate’s order or decision.”
He contends that the rights of individuals are at risk when mail is delayed or there is an error by the clerk of courts. His brief describes how delivery by U.S. mail has changed over the decades. The one-day standard for mail delivery was eliminated in 2015. Today, Wood maintains, a three-to-five-day delivery of mail is commonplace. He also contends that other Ohio appellate courts have allowed extensions to file objections based on the “mailbox rule.”
Individual rights are obstructed when a judge fails to review objections to a magistrate’s decision without allowing a three-day extension for mail service, Wood asserts. “Such a failure undermines the core principles of due process, as it denies the party the opportunity to seek redress or challenge the decision on its merits through the appropriate appellate channels,” his brief argues. Those rights would be better protected by applying court rules allowing a three-day extension of deadlines, Wood concludes.
Mother Not Participating in Appeal
Eggleston didn’t file a brief with the Supreme Court in this appeal. Because she didn’t file a brief, she has waived oral argument and won’t be permitted to argue before the Court.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Christian Wood: Corinne Hoover Six, corinne@hooverkacyon.com
Representing Jedda K. Eggleston: James Barilla, ohiofamilylawyer@yahoo.com
Can Natural Gas Utility Recover Costs To Close Old Propane Caverns?
In re Application of Duke Energy of Ohio Inc., Case No. 2024-1505
Public Utilities Commission of Ohio
ISSUE: Did the Public Utilities Commission of Ohio improperly allow a natural gas company to recoup $17 million in expenses for decommissioning propane facilities that were replaced by newer natural gas pipelines?
BACKGROUND:
Duke Energy Ohio supplies natural gas service to 450,000 customers in Southwest Ohio. Since 1959, the company’s Dick’s Creek plant in Butler County has housed man-made propane caverns where the gas was stored and used to supplement the service territory’s needs. The caverns and associated facilities were primarily used to supplement gas during the winter heating season, but have also served customers during peak energy use throughout the year and as an emergency backup when there was a sudden loss of pressure in a gas pipeline.
In 2019, Duke sought Ohio Power Siting Board approval to construct the Central Corridor Pipeline, which allowed the utility to retire the propane facilities. After the project was approved, Duke asked the Public Utilities Commission of Ohio (PUCO) to allow it to defer $39 million in costs to abandon the propane facilities and collect the money from ratepayers over time.
When the Central Corridor Pipeline came online, the PUCO set a test period to determine what rate Duke could charge for natural gas services. A March 31 “date certain” was set to establish what facilities the company used to provide service and base its rates on them. In June 2022, Duke sought a rate increase from the PUCO.
In November 2023, the PUCO approved Duke’s rate case and permitted the company to collect $29 million from customers instead of $39 million, by charging $2.9 million per year for 10 years to recover the costs of decommissioning the propane facilities. The Ohio Consumers’ Counsel opposed the rate increase. The consumers’ counsel noted the $29 million included a $17 million charge to abandon the propane caverns, $5 million for propane gas costs, and $7 million for decommissioning the facilities.
The consumers’ counsel argued the $17 million charge to discontinue use of the caverns couldn’t be passed on to customers. The PUCO disagreed and upheld its approval of the rate plan. The consumers’ counsel appealed the decision to the Supreme Court of Ohio, which must hear such appeals.
Company Can’t Recoup Cavern Costs, Advocate Asserts
The consumers’ counsel explains the primary issue in this case is how the PUCO classified the propane caverns, which allowed Duke to recoup the costs of abandoning them. The consumer advocate argues the caverns should be classified as investments under R.C. 4909.15(A)(1). To charge a rate based on an investment, the facility must be “used and useful” on the date certain used to determine rates. Instead of classifying the caverns as investments, the PUCO used R.C. 4909.15(A)(4) to classify them as part of the cost to render service, which doesn’t require the caverns to be used and useful.
The consumers’ counsel argues that the PUCO misapplied the law and prior Supreme Court rulings when it determined that unused facilities can be transformed from investments to costs to render service. The caverns weren’t being used to provide service when the rate increase was proposed, the advocate argues.
Duke indicated that the caverns were in use during the March 2022 date certain, and served as a “backup” until mid-April 2022 in case there was an issue putting the new pipeline into service. The PUCO considered this as evidence that the caverns and the propane facilities were in use, and ruled their costs were justified under both R.C. 4909.15(A)(1) and R.C. 4909.15(A)(4).
The consumers’ counsel maintains the law requires the asset to be both “used and useful” during the date certain to recover the costs. The organization notes that having the propane facilities online might be prudent, but there was no evidence the facilities were necessary. The Supreme Court has ruled there is a difference between “prudent” and “useful,” the consumers’ counsel argues. Further, the consumers’ counsel indicates evidence it received from Duke reveals that no propane has been used to supplement gas service since January 2020. The consumers’ counsel argues the caverns were neither used nor useful at the time needed to qualify as an investment that the company could recoup from customers.
The caverns weren’t a cost to provide service because they were not used to provide service under R.C. 4909.15(A)(4), and the PUCO had no authority to classify them as such, the consumers’ counsel maintains. The advocate is asking the Court to order the company to refund $17 million to customers.
Cavern Costs Recoverable, Regulator Maintains
Because the caverns were placed in service, used for decades to store propane, and remained operational and in service as a backup option until April 2022, the costs of abandoning and decommissioning the assets can be considered as costs to render service, the PUCO argues. The used and useful standard doesn’t apply, the PUCO maintains, because the costs to discontinue propane use are a cost to render service. Further, the caverns still qualify because they were used and useful, the commission asserts. The PUCO argues that Duke provided evidence it was still using the caverns when the pipeline was placed in service, and the consumers’ counsel provided no evidence to indicate the caverns weren’t in use.
The PUCO also argues that the treatment of the facilities in the rate case is consistent with its prior decision allowing Duke to abandon the caverns once the pipeline was constructed. The commission asserts that it followed the statute when it approved the recovery for decommissioning and continued to follow the law when it approved the actual recovery of $29 million in the rate case.
Commission Order Appropriate, Gas Provider Argues
The Court permitted Duke to intervene in the case and argue on its own behalf. The company supports the PUCO’s decision and counters that the consumers’ counsel misinterprets prior Court rulings regarding unused assets. Duke claims that the consumers’ counsel has cited cases where companies sought to charge customers for utility projects that were never put into use. However, the caverns were in use for more than 60 years, the company notes. Duke argues the consumers’ counsel contends that because the propane facilities were once considered assets, they can never be regarded as an ordinary operating expense. Duke maintains that, unlike projects that were never used, the previously used caverns could transform into an operating expense when they were retired. The PUCO correctly classified them as an expense and can allow the company to recoup the costs.
– 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 Office of the Consumers’ Counsel: William Michael, william.michael@occ.ohio.gov
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Thomas Lindgren, thomas.lindgren@ohio.ago.gov
Representing Duke Energy Ohio Inc.: Elizabeth Brama, ebrama@taftlaw.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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