Ohio Supreme Court 2019 Follow-Up: Energy & Media

In my last post, I linked to my article for Crain’s Cleveland Business discussing some of the Ohio Supreme Court’s business-related decisions of 2019. I said then that I’d add blog posts discussing the remaining 2019 business cases that didn’t make the cut for that article. This post starts to make good on that commitment. The Court issued merits opinions in 17 business-related cases in 2019. Eight of those cases were discussed in my Crain’s article. Here are brief summaries of four of the other nine appeals.

Energy

In re Ohio Edison Co. – An Ohio statute, R.C. 4928.66(A)(1), requires electric-distribution utilities to implement programs to increase energy efficiency and reduce peak energy demand to meet specific annual targets.  After FirstEnergy (Ohio Edison’s parent company) submitted its required plan, which included a mechanism for recovering costs associated with the plan via charges to FirstEnergy’s customers, the Public Utilities Commission of Ohio (“PUCO”) modified the plan to place a cap–equivalent to four percent of FirstEnergy’s 2015 revenue–on the amount that FirstEnergy was permitted to recoup from customers.  The PUCO relied on its purported “broad authority” in the realm of public-utilities law as justification for unilaterally requiring the cap.  But the Ohio Supreme Court reversed the PUCO’s decision, concluding that no statute gave the PUCO the authority to add the cap and, as a creature of the general assembly, the PUCO did not have any authority except that expressly delegated to it by statute. 

Note that several environmental groups were also involved in the case, siding with First Energy.

In re Application of Ohio Edison Co. – This time around the Public Utilities Commission and FirstEnergy were in agreement, but both the Court and the environmental groups sided against the electricity giant. In litigation lasting nearly five years and involving nine rehearings before the PUCO, environmental groups, consumer groups, and others challenged the PUCO’s decision adding a “distribution modernization rider” to FirstEnergy’s mandatory electric-security plan.  The rider allowed FirstEnergy to collect roughly $168 million annually in the form of additional charges to customers.  On appeal, in a close 4-3 decision, the Supreme Court invalidated the rider.  The PUCO had pointed to a statute that allowed it to issue modernization “incentives” as the basis for its claimed authority to permit the rider.  But the Supreme Court ruled that the rider, which did not require that FirstEnergy meet any benchmarks and could not be refunded after collection, was not a true incentive and therefore was not permitted under the statute.

Media

Last year was a busy one before the high court for WBNS 10-TV, Columbus’s local CBS affiliate. The TV station was involved in–and won–both Ohio Supreme Court media decisions issued in 2019. In State ex rel. WBNS 10-TV v. Hawkins, after a Franklin County judge was arrested for driving under the influence, WBNS requested media access to record proceedings in the judge’s courtroom later that same day.  The judge refused the access request, in violation of the First Amendment.  WBNS brought a special action before the Ohio Supreme Court to address the judge’s wrongful denial of the request, seeking writs of prohibition and mandamus. While the case was pending, the Franklin County judge acquiesced and agreed to permit the required courtroom access going forward.

In Anderson v. WBNS-TV, WBNS was sued for defamation after reporting, following a police bulletin on the issue, that a group of siblings had robbed an eight-year-old at gun point.  The court of appeals had ruled that the plaitniffs could proceed with the case, stating that merely airing a defamatory report was enough to establish a defamation claim against WBNS.  But in another victory for the First Amendment, the Ohio Supreme Court reversed, affirming the long-established principle that the plaintiff in a defamation case must also prove fault, i.e., must prove that the TV station was at least negligent in deciding to air the report. Without such a showing, the claim could not proceed.