Though the Senate took some action last week, Ohio’s General Assembly continues to dither over House Bill 6, the 2019 law to bail out — at consumers’ expense — the Perry and Davis-Besse nuclear power plants owned by a former FirstEnergy Corp. subsidiary, the independent Energy Harbor Corp. The Senate passed a partial HB 6 repeal Wednesday.
HB 6, as passed in 2019, then signed by Gov. Mike DeWine, would siphon $150 million a year from Ohio consumers’ checkbooks. Senate Bill 44, passed unanimously Wednesday, would repeal the $150 million in customer charges (temporarily blocked now by court action).
Those voting “yes” on SB 44 — to partially repeal HB 6 — included Senate Minority Leader Kenny Yuko, a Richmond Heights Democrat, and Sens. Matt Dolan, a Chagrin Falls Republican, and Sandra Williams, a Cleve-land Democrat. In 2019, they’d voted “yes” on HB 6. That was before a federal grand jury indicted then-House Speaker Larry Householder for alleged racketeering in connection with HB 6. (Householder is presumed inno-cent unless proven guilty.)
SB 6′s complete repeal — what’s really needed — would fully restore Ohio clean-energy requirements. But there’s something else a true HB 6 repeal should do: End Ohio’s no-utility-refund law, untouched by SB 44.
In 2014, here’s what then-Supreme Court Justice Paul E. Pfeifer, a Bucyrus Republican, wrote about Ohio’s no-refund rule in an American Electric Power Co. rate case: “Allowing AEP to retain the $368 million that it collected based on charges that were not justified is unconscionable. Doing so because of a 50-year-old case that is not supported by the statute on which it is based is ridiculous. The ratepayers of Ohio deserve better.”
That 50-year-old case Pfeifer referred to: a 1957 Ohio Supreme Court decision in Keco Industries Inc. v. Cincinnati & Suburban Bell Telephone Co.. The 2014 decision, which Pfeifer was denouncing, had relied on the court’s 1957 ruling to deny AEP customers refunds of overturned rates. Why? Then-Justice Judith Ann Lanzinger, a Toledo Republican, wrote this in 2014 for the court’s no-refund majority in the AEP case: “(This) court has consistently applied Keco and refused to grant refunds in appeals from (Public Utilities Commission of Ohio) orders.”
The backdrop: In 1952, the Public Utilities Commission of Ohio OK’d a Cincinnati & Suburban Bell increase in telephone rates. Then, in 1954, the Supreme Court ordered the PUCO to shrink the increase. Then, as today, Ohio lets utilities collect rate increases even if someone appeals an increase. Keco, for itself and other ratepayers, sued, saying Bell should have refunded the dollar difference between the higher rate Bell customers had paid during the appeal and the lower rate the Supreme Court ordered. Keco was seeking roughly $1.65 million in refunds — about $15.6 million today, according to a U.S. Bureau of Labor Statistics inflation calculator.
In a unanimous 1957 ruling, in an opinion by Justice John M. Matthias, a Columbus Republican, the Supreme Court refused to order the refunds Keco sought: “Common sense and reason lead us to a wholehearted endorsement of (that) conclusion, as (was) so well stated … in the opinion of Judge (Carson) Hoy of the Hamilton County Court of Common Pleas.”
That praise of the trial judge was Clue No. 1 that maybe there was a little more to the Keco doctrine than some kind of 11th commandment: Maybe Cincinnati’s Establishment was taking care of business. Hoy, once Hamilton County’s prosecuting attorney — arguably, that county’s most powerful job — was a big enough Republican that, even though he was not yet prosecutor, he was among those picked to greet 1940 GOP presidential nominee Wendell Willkie during a Cincinnati campaign stop.
Then came Clue 2 that the Keco case wasn’t just another day in Traffic Court: Keco’s appeal, maybe for appearance’s sake, was assigned to Toledo’s 6th Ohio District Court of Appeals — not Cincinnati’s 1st Ohio District court, which normally would hear appeals from Hamilton County.
The three Toledoans (at least one of them a Republican) overturned Hoy’s no-refund decision. But then, as usual, the Supreme Court protected the status quo. Its four Republicans and three Democrats ruled against Keco and sided with Cincinnati’s Hoy, saying, through Matthias, that “the General Assembly has … abrogated the common-law remedy of restitution in such cases.” That’s fair? No, that’s Ohio.
Thomas Suddes, a member of the editorial board, writes from Athens.
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