Opposition — Gene Slagle, Inc. v. General Telephone Co.

"T MICHAEL RODAK, JR.,CL val |

—

IN THE

Supreme Court of the United States

October Term 1976

No. 76-322

GENE SLAGLE, INC., ET AL.,

Petitioners,

vs.

GENERAL TELEPHONE COMPANY OF OHIO

and

THE PUBLIC UTILITIES COMMISSION

OF OHIO,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

BRIEF FOR RESPONDENT

GENERAL TELEPHONE COMPANY OF OHIO

IN OPPOSITION

JOHN ROBERT JONES

ANDREW T. JONES

POWER, JONES & SCHNEIDER

100 East Broad Street

Columbus, Ohio 43215

(614) 221-7863

Attorneys for Respondent,

General Telephone Company of Ohio

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

>

INDEX

STATEMENT OF THE CASE

QUESTION PRESENTED

ARGUMENT

l. The Petition Does Not Comply With

U.S. Sup. Ct. Rule 23 (f)

Il. The Decision Of The Court Below Is

Not A Final Judgment

III. Petitioner Seeks Review Of A

Decision Of The Court Below In

Another Case

IV. Petitioner Has Not Been Deprived

Of Any Property Without Due

Process Of Law

CONCLUSION

TABLE OF AUTHORITIES

Cases:

Atlantic Coast Line R. Co. v. State of Florida,

295 U.S. 301 (1935)

Cincinnati Street R. Co. v. Snell

(1900) 179 U.S. 395

Cleveland Elec. Illuminating Co. v. Pub. Util

Comm. (1976), 46 Ohio St. 2d 105,

346 N.E. 2d 778

6

or

Gene Slagle, Inc. v. Pub. Util. Comm.

(1975), 41 Ohio St. 2d 44, 322 N.E. | IN THE

2d 641 cert. den. 423 U.S. 877 (1975) 2, 3, 4, 5, 6 | Supreme Court of the United States

General Telephone Co. v. Pub. Util. Comm. October Term 1976

(1972), 30 Ohio St. 2d 271, 285 N.E. 2d 34

to

General Telephone Co. v. Pub. Util. Comm. | . an9

(1976), 46 Ohio St. 2d 124, 346 N.E. 2d 790 3 No. 76-322

Securities & Exchange Comm. v. Chenery Corp., GENE SLAGLE, INC., ET AL., ;

318 U.S. 80 (1943) 5 Petitioners,

United States v. Carolina Freight Carriers sc

Corp., 315 U.S. 475 (1942) a ee GENERAL TELEPHONE COMPANY OF OHIO

and

Other Authority:

THE PUBLIC UTILITIES COMMISSION

U.S. Sup. Ct. Rule 23 (f), 28 U.S.C.A. 3 OF OHIO,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

BRIEF FOR RESPONDENT

GENERAL TELEPHONE COMPANY OF OHIO

IN OPPOSITION

STATEMENT OF THE CASE

On April 9, 1970, General Telephone Company of

Ohio (General Telephone) filed an application with the

Public Utilities Commission of Ohio (the “PUC”) for

authority to increase its rates. On August 17, 1971, the

PUC issued an order authorizing a rate increase, hav-

ing found that the existing rates were insufficient to

provide General Telephone with a reasonable compen-

ij sation and return. This finding was not challenged by

2

any of the parties and intervenors. However, Genera!

Telephone appealed to the Supreme Court of Ohio on

the ground that the rate of return fixed by the PUC was

unlawfully low and resulted in confiscatory rates. On

June 21, 1972, that court reversed the order of the

PUC and remanded the case for compliance with its

decision. General Tel. Co. of Ohio v. Pub. Util. Comm.

(1972), 30 Ohio St. 2d 271, 285 N.E. 2d 34 (Petitioner’s

Appendix, page la). The rates appealed from remained

in effect pending the PUC’s decision on remand, on

September 29, 1972, which authorized the same rates

as the August 17, 1971, order.

On September 5, 1975, petitioner Gene Slagle, Inc.,

purporting to represent all subscribers of General Tele-

phone, filed a complaint with the PUC against General

Telephone, alleging that the reversal of the PUC’s order

of August 17, 1971, voided that rate increase autho-

rized therein, and that General Telephone violated the

law of Ohio by continuing to charge such rates. The

complaint sought damages in the amount of more than

$6 million, trebled. The PUC granted a motion to dis-

miss the complaint for failure to state a claim upon

which relief could be granted, but on appeal the Su-

preme Court of Ohio reversed. Gene Slagle, Inc. v. Pub.

Util. Comm. (1975), 41 Ohio St. 2d 44, 322 N.E. 2d

641, cert. den. 423 U.S. 877 (1975) (Petitioner's

Appendix, page 9a).

When the complaint was returned to the PUC, Gen-

eral Telephone filed an answer asserting numerous

defenses. The PUC, however, by entry of June 10, 1975

( Petitioner’s Appendix, page 40a) refused to consider

these defenses and issued an entry adverse to General

Telephone terminating the proceeding, from which

entry General Telephone appealed. While that appeal

|

3

was pending, the Supreme Court of Ohio was asked, in

another case, to reconsider its holding in Gene Slagle,

Inc., supra, and on May 5, 1976, overruled that deci-

sion. Cleveland Elec. Illuminating Co. v. Pub. Util.

Comm. (1976), 46 Ohio St. 2d 105, 346 N.E. 2d 778

(Petitioner’s Appendix, page 13a). On the same day

the Supreme Court of Ohio reversed the June 10, 1975,

entry of the PUC in the instant case, and remanded

the cause to the PUC for futher proceedings in con-

formity with its decision in Cleveland Elec. Illumi-

nating, supra. General Telephone Co. v. Pub. Util.

Comm. (1976), 46 Ohio St. 2d 124, 346 N.E. 2d 790

(Petitioner’s Appendix, page 35a). The petition for a

writ of certiorari asks this Court to review the decision

of the Supreme Court of Ohio in General Telephone Co.

(1976).

QUESTION PRESENTED

Does an order of the Supreme Court of Ohio that a

pending PUC complaint proceeding be governed by

Ohio law as currently construed by the Ohio Supreme

Court, rather than by an interpretation of Ohio law

favorable to petitioner which has been subsequently

overruled, violate due process of law?

ARGUMENT

I.

The Petition Does Not Comply With

U.S. Sup. Ct. Rule 23 (f)

U. S. Sup. Ct. Rule 23 (f), 28 U.S.C.A., requires peti-

tioner to specify the stage in the proceedings and the

manner in which the federal questions sought to be

reviewed were raised. The petition does not comply

with this rule. Petitioner did not timely and properly

raise any federal question in the proceedings below.

4

Il.

The Decision Of The Court Below Is Not

A Final Judgment

The decision of the Court below in the instant case

was that “the order of the commission is reversed,

and the cause is remanded to the commission for fur-

ther proceedings in conformity with this court’s de-

cision in Cleveland Elec. Illuminating, supra.” (Peti-

tioner’s Appendix, page 38a). A judgment of reversal

with directions for further proceedings lacks the requi-

site finality necessary for review by the United States

Supreme Court. Cincinnati Street R. Co. v. Snell

(1900) 179 U.S. 395.

III.

Petitioner Seeks Review Of A Decision

Of The Court Below In Another Case

Petitioner claims on page 6:

“In overruling its initial decision in the instant

case, the Ohio Supreme Court would give effect to

the PUCO’s unlawful order despite the express

requirements of the applicable Ohio statute * * *.”

The “initial decision” referred to by Petitioner is

Gene Slagle, Inc., supra, which was overruled by Cleve-

land Elec. Illuminating, supra, not by the decision

appealed from. The entire thrust of Petitioner’s argu-

ment is its disagreement with Cleveland Elec. Illumi-

nating, supra, which is not before this Court.

IV

Petitioner Has Not Been Deprived Of Any

Property Without Due Process Of Law

Petitioner bases its argument first on the fact that

the Supreme Court of Ohio reversed the August 17,

5

1971 rate order of the PUC for the reason that the

PUC did “not set forth in its order the reasons prompt-

ing its decision in sufficient detail,” as that Court

interpreted the requirements of Ohio Revised Code

$4903.09. Petitioner then asserts, on page 6, that the

statute was not followed “in a manner which nullified

the entire rate-making process”. This is simply in-

correct. The question of the consequences of the re-

versal of a PUC rate order was specifically ruled on

by the Supreme Court of Ohio in Cleveland Elec. Illum-

inating Co. v. Pub. Util. Comm. (1976), 46 Ohio St.

2d 105.

In overruling Gene Slagle, Inc., supra, and in Part II

of its opinion (Petitioner’s Appendix, pages 28a and

29a) in Cleveland Elec. Illuminating Co., supra, the

Supreme Court of Ohio rejected the contention that its

reversal of a PUC rate order for failing to comply

with the statutory requirements as to the form of an

order nullifies the rates filed pursuant to that order.

Accord, Atlantic Coast Line R. Co. v. State of Florida,

295 U.S. 301 (1935). Securities & Exchange Comm. v.

Chenery Corp., 318 U.S. 80 (1943) and United States

v. Carolina Freight Carriers Corp., 315 U.S. 475

(1942), cited by Petitioner, are neither in point nor to

the contrary. Petitioner’s statement that it and other

subscribers had to pay “unlawful” charges is not true.

It is contrary to the law of Ohio as stated by the Su-

preme Court of Ohio in Cleveland Elec. Illuminating

Co., supra.

There is nothing to Petitioner’s argument that it and

other utility customers have been deprived of property

without due process of law. Petitioner’s legal theory

that the reversal of a rate order by operation of law

6

nullifies rate tariffs on file with the PUC and rein-

states prior rates by operation of law was initially

accepted by the Court below in Gene Slagle, Inc., supra,

which was a year later overruled. No “arbitrary or

unlawful administrative action’ (Petitioner’s Brief,

page 6) is involved. It is not a violation of due process

of law for a State Court to order that a pending pro-

ceeding be governed by its latest pronouncement of

state law, rather than by a decision which has been

overruled.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

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Maal e\\ :

JOHN ROBERT JONES

ANDREW T. JONES

POWER, JONES & SCHNEIDER

100 East Broad Street

Columbus, Ohio 43215

(614) 221-7863

Attorneys for Respondent,

General Telephone Company of Ohio