Friday, December 28, 2012
Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP)
For publication opinions today (3):
In Duke Energy Indiana, Inc. v. Office of the Utility Consumer Counselor, Indiana Utility Regulatory Commission , a 20-page opinion, Judge Vaidik writes:
On October 5, 2010, Governor Mitch Daniels fired Indiana Utility Regulatory Commission (“IURC” or “Commission”) Chairman David Lott Hardy. Hardy was aware that one of his administrative law judges (“ALJ”), Scott R. Storms, had been communicating with Duke Energy Indiana (“Duke”) regarding a position with the company while Storms was presiding over administrative proceedings involving Duke, yet Hardy did not remove Storms from matters involving Duke. This was one such case; Storms was the ALJ, the Indiana Office of Utility Consumer Counselor (“OUCC”) recommended denying Duke relief, but the IURC granted Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. The IURC conducted an audit but eventually found that Storms did not exert any undue influence in his decision. Nevertheless, the IURC reopened this case for further review and consideration of the evidence presented.NFP civil opinions today (4):
After another evidentiary hearing before a new ALJ and the full Commission at which updated evidence was presented, the IURC, in a lengthy order, denied Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. Duke now appeals, arguing that the IURC acted arbitrarily and capriciously when it looked twice at materially the same evidentiary record but came to diametrically opposed decisions without giving any reason for the change.
We, however, find that the IURC’s findings are based on substantial evidence that was placed into the record following the IURC’s order reopening this proceeding. These findings, in turn, support the IURC’s conclusion to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. As for Duke’s argument that the IURC should have explained why it changed its mind because failing to do so was fundamentally unfair, we find that there were changes in the evidence from the first hearing to the second hearing that justified the IURC’s decision to deny Duke relief the second time around, and, in any event, the IURC was not required to explain why it reached a different conclusion. We therefore affirm the IURC’s decision to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses.
NFP criminal opinions today (17):
Posted by Marcia Oddi on December 28, 2012 10:59 AM
Posted to Ind. App.Ct. Decisions