ILNews

Duke loses appeal of scandal-touched IURC rate case reversal

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Utility Regulatory Commission’s reversal and subsequent rejection of deferred accounting of $11.9 million for Duke Energy was affirmed by the Court of Appeals Friday in a case revisited because of an ethics scandal involving state regulators.

Duke appealed an IURC ruling against its request for deferred accounting related to expenses incurred in a 2009 ice storm. The IURC previously had found in Duke’s favor, and the utility sued claiming that the decision against it was arbitrary and capricious.

Even though the IURC provided no reasons for denying Duke’s second request, the COA ruled that it didn’t have to in Duke Energy Indiana, Inc. v. Office of the Utility Consumer Counselor, Indiana Utility Regulatory Commission,  93A02-1111-EX-1042.

“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,” Judge Nancy Vaidik wrote for the court. “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.”

The IURC’s decision against Duke came after it was discovered that former IURC chairman David Lott Hardy was aware that administrative law judge Scott Storms was talking to the utility about a position at Duke while he was presiding over their cases.

Storms was hired by Duke and subsequently fired, and a state ethics panel fined him $10,000 and forbid him from holding future state employment. Hardy was fired and charged with three Class D felony counts of official misconduct.    
 
“Duke is unable to cite to any authority requiring the IURC to fully explain why it changed its mind following a new hearing on the issues at which updated evidence was presented,” Vaidik wrote, noting that the IURC did make required findings in the second case.

“What happened here is analogous to what sometimes happens in civil cases across this state. That is, it is similar to a trial court denying a party’s summary-judgment motion without explanation early in a case but then granting that very same summary-judgment motion, on the same evidence, one week before trial without explanation. In both instances, the evidence is essentially the same, and the ‘judge’ is not required to give an explanation as to why he changed his mind between one decision and another,” Vaidik wrote.

“Although the better practice would have been for the IURC to clearly articulate why it reached different conclusions, we find that the updated evidence presented at the second hearing justified the IURC’s decision to deny Duke relief in its October 2011 order, and, in any event, the IURC was not required to explain why it reached an opposite conclusion in its October 2011 order.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

ADVERTISEMENT