City/county sewer lawsuit still being considered

While the Washington County Commissioners begin plans to comply with environmental orders to sewer Devola, litigation between the commissioners and the city of Marietta continues.

On Friday, legal counsel for both the county and city noted the potential next steps in two legal cases the city has mounted against the county.

But both City Law Director Paul Bertram and Washington County Assistant Prosecutor Nicole Coil said they also remained hopeful that a resolution between the two parties could be reached outside of the court system.

“I’m still cautiously optimistic now that the commissioners have submitted to comply with the (Ohio Environmental Protection Agency’s order) and we can come to a resolution,” said Coil.

Appointed Judge Linton Lewis granted a summary judgment against the commissioners and in favor of an Ohio EPA lawsuit forcing the commissioners to sewer Devola. That summary judgment was declared on Nov. 29 and the commissioners voted on Dec. 20 to not appeal it.

Meanwhile, the first of the two city lawsuits, filed in December 2017, is now before the Fourth District Court of Appeals, after procedural questions concerning the authority for outside counsel Matthew Dooley to file on behalf of the city led Appointed Judge Linton Lewis to dismiss the case at the close of 2018.

The city appealed that decision and Thursday filed a brief with the district court disputing the dismissal.

In the 2017 case, the next steps include a written county response and city rebuttal, then an oral argument before the district court which Bertram estimated to be scheduled in June.

“We requested an oral argument,” explained Bertram. “That would be before a panel of three judges there.”

By having the 2017 case before the court of appeals, Coil looked to pause the nearly-identical case filed in 2018 which was filed with Bertram at the helm and Dooley as the second chair.

“It’s an unnecessary duplication of cost and time to consider the new case while the first one is before the court of appeals,” she explained. “So I’ve filed a motion to stay the case until that one is resolved. In my opinion, there’s no reason to have conflicting results potentially.”

Coil agreed that the substantive issue in the 2017 and 2018 cases are the same and have yet to be considered by the court–that the county is in breach of a 40-year contract with the city to sewer Devola and Oak Grove on a schedule to tie into the city’s wastewater treatment plant.

“I don’t think it’s a stalling tactic,” noted Bertram of the focus on the procedure before content. “In any litigation, it’s a chess game and there are moves and counter moves as you act on behalf of your client.”

Bertram said Friday he filed a response in opposition of Coil’s motion to stay the case, and also filed three oppositions to motions for summary judgment and to dismiss the case.

“With this new case the next step lays with the judge (Linton Lewis) and what he wants to do,” said Bertram.

He said a judge typically at this point would call for a status or case management conference to talk with both legal representatives.

What’s next:

• Ohio Fourth District Court of Appeals to consider the original Marietta lawsuit filed in December 2017 against the Washington County Commissioners and rule on whether Marietta had the authority to be represented by outside counsel.

• Appointed Judge Linton Lewis to decide on a motion to stay a second Marietta lawsuit against the Washington County Commissioners, provide a summary judgment or to dismiss the new case filed in December 2018.

Source: Times research.