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The Ohio Bell Telephone Company v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2007-1807
State Board of Tax Appeals
In re: M.M., Case nos. 2009-0090 and 2009-0318
2nd District Court of Appeals (Montgomery County)
Disciplinary Counsel v. David A. Rohrer, Case no. 2009-0719
Darke County
Tax Commissioner Challenges Appeals Board Ruling Reducing Valuation of Ohio Bell Property
The Ohio Bell Telephone Company v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2007-1807
State Board of Tax Appeals
ISSUE: Did the State Board of Tax Appeals (BTA) act unlawfully or unreasonably in reducing the tax valuation set by the State Tax Commissioner for property owned by the Ohio Bell Telephone Company based on a third-party appraisal that the utility did not submit for the commissioner’s administrative review, but introduced for the first time at its appeal hearing before the BTA?
BACKGROUND: This case involves a challenge by the Ohio Bell Telephone Company to the state tax commissioner’s valuation of the company’s telecommunication plants and equipment for the 2003 tax year. After the commissioner issued his initial property valuation, Ohio Bell filed objections and requested an administrative hearing to obtain a reassessment.
In its written pleadings and argument before the commissioner, Ohio Bell contended that the commissioner had erred in calculating the taxable value of the company’s property by using the “cost as capitalized minus annual allowances for depreciation” method set forth in R.C. 5727.11(A). The company argued that the statutory valuation method overstated the real value of its property. Instead Ohio Bell urged the commissioner to follow a “replacement cost new” valuation study that it submitted along with its petition for reassessment. The study contained estimates of the current costs and service lives of the company’s taxable Ohio plant property and equipment and the estimated service lives of that property, and concluded that the property should be valued at a significantly lower figure than the commissioner had set using the statutory valuation method. The commissioner rejected Ohio Bell’s valuation study and issued a final determination affirming the taxable value of the company’s property as calculated using the statutory method.
Ohio Bell appealed the commissioner’s final determination to the BTA. In the pleadings it submitted to the BTA, the company included a new appraisal of its property conducted by a third-party expert, Thomas Teagarden. Teagarden’s appraisal used neither the statutory “cost minus allowances” method nor the “replacement cost new” method the company had proposed in its petition for reassessment, but employed an “income based” approach to valuation. The tax commissioner moved to exclude the Teagarden appraisal from consideration by the BTA in its review of the case. The BTA denied the motion, and subsequently ruled that the Teagarden appraisal was a more reliable estimate of the real value of the property, overruled the commissioner’s valuation and adopted the valuation set by Teagarden as the true taxable value of the property.
The tax commissioner has exercised his right to appeal the BTA’s ruling to the Supreme Court. He argues that the BTA acted outside its jurisdiction in adopting the Teagarden appraisal because the appeals board has jurisdiction only to review specific objections to valuation that were set forth in writing in a taxpayer’s petition for reassessment, and the rulings on those objections that were made by the commissioner. In this case, he contends, in its petition for reassessment before the commissioner Ohio Bell never asserted a claim that its property should be valued using an income-based methodology, and the commissioner never reviewed or ruled on the methodology, underlying assumptions or results of Teagarden’s appraisal, which wasn’t conducted until after the commissioner had rejected the company’s petition for a replacement-cost valuation.
The commissioner asserts that, rather than reviewing his rulings on objections raised by Ohio Bell in its petition for reassessment, the BTA has improperly allowed the company to raise at the appellate level an entirely new proposed valuation that was not asserted in its petition for reassessment or ruled on by the commissioner. He argues that the BTA’s action in this case is contrary to the statutory scheme set up by the legislature, which presumes that the tax commissioner is the state’s expert assessor of property values and the role of the BTA is limited to reviewing proposed valuations that have previously been considered and ruled on by the commissioner.
Attorneys for Ohio Bell argue that the company’s petition for reassessment objected to the commissioner’s reliance on the statutory method of valuing its property as inaccurate and unfair, and that the BTA correctly agreed to consider the Teagarden income-based appraisal as relevant evidence supporting that objection, even though that appraisal was not reviewed by the commissioner during his reassessment proceedings. They point to prior court decisions holding that parties appealing other types of tax valuations are not limited to the evidence presented to the commissioner, and urge the Court to apply the same reasoning to BTA review of utility personal property tax valuations.
Contacts
Barton A. Hubbard, 614. 466.5967, for the State Tax Commissioner.
James F. Lang, 216.622.8563, for Ohio Bell Telephone Company.
Must Court Awarding Permanent Custody of Child to County Find It is ‘Only Way’ to Obtain Secure Placement?
In re: M.M., Case nos. 2009-0090 and 2009-0318
2nd District Court of Appeals (Montgomery County)
ISSUE: In order to award permanent custody of a child to a county children’s services agency, must a juvenile court specifically determine that permanent custody is the only way the court can satisfy its duty under R.C. 2151.414(D)(4) to ensure that the child obtains a legally secure placement?
BACKGROUND: In April 2007, Montgomery County Children’s Services (MCCS) filed a motion in juvenile court to obtain permanent custody of a child identified by the initials M.M. Prior to a hearing on that motion, M.M.’s great aunt, Kathy Richards, filed an alternative motion seeking to obtain legal custody of the child. Following a hearing on both motions in August 2007, a magistrate recommended that the court grant permanent custody to MCCS. The child’s mother, Jessica Lairson, and Richards both filed objections to the magistrate’s recommendation. In July 2008, the juvenile court rejected the objections and awarded permanent custody of M.M. to MCCS.
Lairson and Richards appealed, arguing that Richards had presented evidence at the magistrate hearing, including testimony by the guardian ad litem appointed to represent the interests of M.M., establishing that Richards was a suitable family member willing and able to assume custody of the child, and therefore that it was possible for the court to make a secure placement of M.M. without granting permanent custody to MCCS. The court of appeals affirmed the juvenile court’s custody order, ruling that it was sufficient for the court to find that placement with a children’s service agency was the best available option, and it was not necessary to find that awarding permanent custody to MCCS was the only way to make a secure and permanent placement of the child. The 2nd District subsequently certified that its ruling was in conflict with a decision of the 12th District on the same issue.
The Supreme Court agreed to hear arguments in the case in order to resolve the conflict between appellate districts.
Attorneys for Richards and Lairson note that the applicable state law, R.C. 2151.414(D), mandates that in determining what custody disposition is in the “best interest” of a child, juvenile courts must consider five specific factors. They point out that one of those factors is “the child’s need for a legally secure and permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency.” They argue that, if evidence shows that secure placement of a child can be made without an award of permanent custody, the statute requires a court to adopt that alternative disposition and deny permanent custody to a child welfare agency. They also point to prior court decisions holding that, if a court renders a decision that goes against the specific recommendation of a child’s guardian ad litem, the court must state in its judgment its basis for doing so. They contend that, because the juvenile court’s ruling in this case did not find that Richards was an unsuitable alternative custodian, and made no explanation for going against the guardian ad litem’s opinion that granting custody to Richards was in M.M.’s best interest, the court’s award of permanent custody to MCSS is invalid and must be reversed.
Attorneys for MCCS respond that juvenile courts have discretion to consider a wide range of factors in deciding what custody disposition is in a child’s best interest. They argue that the wording of R.C. 2151.414(D)(4) does not require a court to give preference to an alternative custodian, or to find that granting permanent custody to a child welfare agency is the only way to attain a secure placement, but merely requires the court to consider whether an alternative placement may be possible. In this case, they say, the court did consider Richards’ petition to take custody of M.M., but ultimately determined that awarding permanent custody to MCCS was in the child’s best interest.Contacts
Richard Hempfling, 937.223.5200, for Kathy Richards.
Richard A.F. Lipowicz, 937.224.1427, for Jessica Lairson.
Johnna M. Shia, 937.225.5600, for Montgomery County Children's Services.
Attorney Discipline
Disciplinary Counsel v. David A. Rohrer, Case no. 2009-0719
Darke County
The Board of Commissioners on Grievances & Discipline has recommended that the law license of Greenville attorney David A. Rohrer be suspended for six months, with all six months stayed, for violating a court order that barred him from communicating with the news media regarding a pending case and later making false statements to the court denying that he intentionally leaked information about the case to a newspaper.
The Office of Disciplinary Counsel, which prosecuted the disciplinary complaint against Rohrer, has filed objections to the board’s findings and recommended sanction. They argue that Rohrer’s misconduct, which included violations of multiple state disciplinary rules and involved making false statements to a court in an official contempt proceeding, is deserving of an actual suspension from practice, and point to prior attorney discipline cases in which attorneys making false statements to a court have received such sanctions.
Rohrer urges the Court to adopt the findings and sanction proposed by the disciplinary board. He points out that the board found as substantial mitigating factors that Rohrer’s impulsive violation of the “gag” order arose from his concern for the welfare of a 10-year-old charged with murder who was being held in a county detention facility; and that his initial denial of responsibility for leaking a document to the media was motivated by fear that admitting guilt would result is his removal from the case and loss of ability to continue acting on behalf his vulnerable client.
Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
Geoffrey Stern, 614.462.5400, for David A. Rohrer.
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.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.