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Court splits over whether approval of entire contract must be voided

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Chief Judge Margret Robb dissented from her colleagues on the Court of Appeals Tuesday as to whether approval of a contract for the purchase and sale of substitute natural gas must be voided in its entirety because the contract definition of “retail end use customer” differs from the statutory definition.

The Indiana Finance Authority and Indiana Gasification LLC executed a contract in January 2011 that details the sale and purchase of substitute natural gas that IG plans to produce at a $2.7 billion Rockport plant, with delivery set to begin in the first quarter of 2016.

The IFA and IG sought approval of the contract by the Indiana Utility Regulatory Commission and requested that the commission order Indiana regulated gas utilities to enter into utility management agreements with IFA so that IFA could pass proceeds and costs to retail end use customers through the utilities, if necessary. Several utilities, industrial companies and citizens groups intervened.

After several public hearings, the commission approved the contract in November 2011. The commission didn’t address the scope of the term “retail end use customer” and found that it could be addressed at a future time. The industrial group filed a petition for reconsideration, arguing that industrial transportation customers were exempt from being classified as retail end use customers under statute and did not have to pay the pass-through costs of the substitute natural gas under the contract. The utilities and citizens groups also appealed.

The appellate judges agreed in Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company, et al. v. Indiana Finance Authority and Indiana Gasification, LLC, 93A02-1112-EX-1141, that the utilities’ and industrial group’s claims are justiciable and the industrial group has standing to sue. The court also unanimously found the commission did not exceed its jurisdiction under the Substitute Natural Gas Act when it approved the contract as a final purchase contract.

But Judges Patricia Riley and Senior Judge Carr Darden reversed the commission order approving the contract because the contract’s definition of retail end use customer did not conform to what the Legislature intended under the SNG Act. The majority found industrial transportation customers are not subject to the SNG Act as retail end use customers.

Robb believed that reversal of the commission’s approval of the contract in its entirety isn't necessary and that the court could “merely exclude the part of the contract which includes transportation customers in the definition of retail end use customers without frustrating the primary purpose of the contract.”
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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