# Opposition — Gene Slagle, Inc. v. General Telephone Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0551%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 922 ## Text "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, \ , | ee \ Wie Ny, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0551%3A2. Public record. Not legal advice.