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April 19, 2007

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Public Utility - electric services
- Constitutional Rights - Search and Seizure
- United Nations Convention Against Torture
 

Ohio Supreme Court

 

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First District Court of Appeals

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U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

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U.S. Sixth Circuit Court of Appeals: Other States Cases

 

Cookeville v. Upper Cumberland (April 19, 2007) (Appeal from M.D. Tenn)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0138p-06.pdf
-  In this case, we affirm the federal district court's resolution of a dispute over one element of the compensation that Tennessee law requires when a city annexes territory and exercises its right to purchase electric utility property within the annexed territory. The federal court had jurisdiction because a federal agency, the Rural Utilities Service ("RUS"), was a party defendant. We reverse, however, a post-judgment order enjoining the city from providing electric service in this annexed area pending resolution of the compensation dispute. When a Tennessee municipality that owns and operates its own electric system annexes territory in which an electric cooperative is providing electric services to customers, the municipality has two choices of how to provide electric services to those customers under Tennessee law. See City of South Fulton v. Hickman-Fulton Counties Rural Elec. Coop. Corp., 976 S.W.2d 86, 90 (Tenn. 1998). The municipality can either "grant such cooperative a franchise to serve the annexed area" or, as the City of Cookeville chose to do here, "offer to purchase any electric distribution properties and service rights within the annexed area owned by any electric cooperative." Tenn. Code Ann. § 6-51-112(a). The same Tennessee statute that requires this choice also provides a formula for determining the amount of compensation that the municipality must offer the cooperative. See Tenn. Code Ann. § 6-51-112(a)(2). As part of this compensation, the municipality must offer "[a]n amount equal to the cost of constructing any necessary facilities to reintegrate the system of the cooperative outside the annexed area after detaching the portion to be sold." Tenn. Code Ann. § 6-51-112(a)(2)(B). Cookeville annexed nine areas in which the Upper Cumberland Electric Membership Corporation ("UCEMC") provided electric services. Cookeville sued UCEMC, originally in state court, to condemn UCEMC's facilities and electric service rights in the annexed areas. RUS was later added as a defendant. Cookeville and UCEMC disagreed on the cost of reintegration*Cookeville argued that the cost was approximately $127,000 whereas UCEMC argued that the cost was $5.825 million. The district court agreed with UCEMC and ordered Cookeville to pay the higher amount so that UCEMC could build a new substation and distribution loop. Cookeville appealed. While that appeal was pending, Cookeville began building electric facilities in the annexed areas and providing electric services to customers in those areas. UCEMC sought and obtained an injunction from the district court enjoining Cookeville from building facilities or providing service until it paid UCEMC the damages owed for the condemnation. Cookeville appealed, and now the propriety of both the damage award and the injunction are before this court. Cookeville also challenges the district court's jurisdiction over the entire case and the district court's jurisdiction to enter the injunction while the first appeal was pending. The district court properly exercised jurisdiction because a federal agency was a party. The district court order requiring Cookeville to pay reintegration costs of $5.825 million was legally proper and not clearly erroneous. The district court's injunction, entered during the pendency of the appeal from the district court's compensation order, however, improperly expanded the scope of the previous order. We therefore affirm in part and reverse in part.
 
Revis v. Meldrum (April 19, 2007) (Appeal from E.D. Tenn)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0139p-06.pdf
-  Laschinski T. Emerson obtained a money judgment in a sexual-harassment lawsuit from a Tennessee trial court against her former employer Nathaniel Revis and his company, Oak Ridge Research, Inc. (ORRI). Revis appealed, but failed to post an appeal bond. Emerson subsequently sought and obtained two writs of execution for Revis's real and personal property in Roane County, Tennessee to satisfy the judgment. Roane County Deputy Sheriff Larry Eaton, accompanied by Tracy Waldo, a paralegal from the law firm representing Emerson, appeared at Revis's house to serve the writs. Under Eaton's direction, private contractors seized Revis's personal property and changed the locks on his residence. Deputy Eaton also ordered Revis to leave the residence and inquired about any cash that Revis was carrying on his person. Revis filed suit pursuant to 42 U.S.C. § 1983 against the persons and entities involved in executing the writs, alleging that the seizure of his residence and the search of his person pursuant to the writs violated his constitutional rights. The district court granted summary judgment to some of the defendants, dismissed all claims against the rest, and further ordered Revis to pay the privateparty defendants' costs of litigation. For the reasons set forth below, we AFFIRM in part, VACATE in part, and REMAND the case for further proceedings consistent with this opinion.
 
Sarr v. Gonzales (April 19, 2007) (Appeal from Board of Immigration Appeals)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0140p-06.pdf
-  The petitioner, Amadou Sarr, seeks review of a ruling of the Board of Immigration Appeals (Board) that affirmed an immigration judge's decision denying Sarr's requests for asylum, withholding of removal, and relief pursuant to the United Nations Convention Against Torture. Sarr contends that he proved by sufficient evidence that he had suffered past persecution in his native Senegal and that country conditions have not changed sufficiently to alleviate the threat of future persecution if he is returned to Senegal. Sarr also contends on appeal that he was denied due process by the immigration judge's adverse credibility finding and by the Board's refusal to adjudicate certain of his requests for relief. Because we conclude that Sarr has failed to satisfy the heavy burden imposed upon him to overturn the administrative decisions in question, we must deny Sarr's petition for review relating to those determinations. In addition, because there is no basis upon which to conclude that the petitioner has been denied procedural due process, we cannot grant review on constitutional grounds, even though we reject the government's argument that the Board's decision in In re Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), confers upon the government the power single-handedly to prevent the Board's consideration of an otherwise meritorious motion to reopen or remand a request for adjustment of status.
 

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