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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. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  2. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  3. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

  4. The is putting restrictions on vaping just because big tobacco companies are losing money. http://vapingisthefuture.com

  5. Oh, and I should add ... the stigma JLAP attaches lasts forever. As my documents show, I had good reason to reject the many conflicted diagnoses for not thinking like the state wanted me to. BUT when I resisted and raised constitutional and even ADA "regarded as" arguments I was then denied licensed in Indiana for LIFE. As in until death does us part. Evidence in comments here: http://www.theindianalawyer.com/scotus-denies-cert-to-kansas-attorney-seeking-to-practice-in-indiana/PARAMS/article/40522 Resistance is futile, comrades.

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