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Duke loses appeal of scandal-touched IURC rate case reversal

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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.”

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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