Tagged In: , ,

HB 286 Seeks to Change Where State Officials are Prosecuted, Where Regulatory Appeals are Heard, and How Corruption is Prosecuted

Ohio Environmental Council, June 24, 2021

Author: Eliza VanNess, OEC Legal Intern

Venue is not one of law’s sexiest topics. Ohio’s new HB286 is not a sexy bill. It’s a dense bill that proposes changing where litigants can appeal agency decisions. While this procedural shift won’t make headlines, it could have powerful consequences on how litigants challenge state regulations. The bill seeks to change something fundamental: what court gets to hear appeals of agency final orders?

There’s more, however. Legislators have slipped in an amendment to the bill, giving a home-court advantage to state officials prosecuted for corruption.

An outline of the bill

Under current law, people challenging legal decisions appealing certain agency orders must bring their suit in the Franklin County Court of Common Pleas. HB 286 would eliminate that provision, broadly allowing litigants to appeal any agency decision to the court of common pleas in the county where the litigant lives or where their business is located. At present, when an agency issues an order pursuant to an adjudication, and the order adversely affects another party, that party can appeal to the Franklin County Court of Common Pleas (with a few exceptions). HB 286 would strike that provision, removing those third party litigants’ ability to always bring suit in Franklin County. 

Where a suit is brought—its venue—matters for two reasons. First, where a party argues a case impacts the convenience of working on the case. The party that travels further faces a greater burden of expense and inconvenience. 

Additionally, not all courts are created equal.The introduction of this bill alone is evidence that we could expect courts across the state to reach different decisions than the Franklin County Court of Common Pleas. The bill’s sponsor, Majority Floor Leader Bill Seitz, characterizes the bill as supporting those “‘playing defense’ against the regulatory leviathan.” The “regulatory leviathan,” comprised of Ohio’s state agencies, protects a host of interests held by Ohioans, including the protection of our air, land, and water. Our environment.

HB 286’s Rider: giving a home-court advantage to state officials being prosecuted

When state officials are charged with violations of state law, the case is tried in Franklin County. However, House Republicans attached a rider to HB 286 to alter the prosecution of public corruption cases. Under the proposed change, when a state official is charged with an offense in connection to the powers and duties of their role, the local prosecutor of the county in which the office resides would handle the prosecution of their case. If the official isn’t a resident of the state, the prosecutor of the county in which the alleged conduct occurred would prosecute the official. 

We can only hypothesize about the motivation for this amendment, but its timing is noteworthy. Ohio representatives are embroiled in the corruption scandal over HB 6, and without HB 286, the Franklin County Prosecutor, the first Democrat to fill the seat in sixty years, can prosecute any violations of state law that arise against additional Ohio representatives and senators in connection with FirstEnergy’s massive bribery scheme.

Regardless of the motives behind the rider, it would undoubtedly benefit state officials being prosecuted. These officials can expect a friendlier court in the counties where they reside, and representatives charged with offenses could count on the favorable opinion among the locals who elected them in the first place. 

Impact on environmental cases

HB 286’s impacts on environmental cases are not plainly laid out in the bill. Appeals of ODNR’s Division of Oil & Gas decisions are often brought to the Oil and Gas Commission, but may also be brought in the Franklin County Court of Common Pleas. HB 286 would create a new option for potential oil and gas litigants: appealing to the court of common pleas in their home county. 

Appeals from Ohio EPA decisions follow their own procedural pathway to the Environmental Review Appeals Commission (ERAC). ERAC reviews the appeal and makes a decision, which itself can be appealed. Appeals of ERAC decisions can be brought to the Franklin County Court of Appeals, or, if the appeal is centered around an alleged violation of a law or regulation, to the court of appeals in the district where the violation took place. It is unlikely that HB 286 would impact ERAC appeals, because the bill applies to appeals from “any order of an agency.” An attorney would need to stretch the definition of “agency” to make ERAC fit the category, though it’s not inconceivable that some bold litigant would try. 

In conclusion, HB 286’s rider is a brazen attempt to play politics with the public’s trust in its lawmakers. Controversial shifts in prosecutorial power should not be quietly tacked onto an otherwise unrelated bill. The two policies should be openly discussed separately.