ILNews

First impression in utility fee case

Back to TopE-mailPrintBookmark and Share

In a matter of first impression, the Indiana Court of Appeals had to determine whether the Indiana Utility Regulatory Commission properly reviewed the rates and fees charged by a regional sewage district at the request of a campground owner.

LaGrange County Regional Utility District v. Jerry and Sandy Bubb, owners of Gordon's Campground, No. 93A02-0905-EX-442, was the first time a campground owner utilized a 2005 statute that let an owner request the IURC review the fees charged by certain regional utility districts, including regional sewage districts.

Indiana Code Section 13-26-11-2.1 also provides when a request is made, the IURC's appeals division (CAD) will conduct an informal review, including a "prompt and thorough investigation of the dispute."

The Bubbs sent a letter to the IURC in March 2006 asking for a review of rates charged by LaGrange County Regional Utility District. In April, the CAD director informed LaGrange's attorney she would be handling the review and the process would be governed by 170 Administrative Code 8.5-2-5 (the rule). Nearly a year later, the CAD director sent a letter to LaGrange saying it received the complaint from the Bubbs and would conduct an informal review pursuant to statute. LaGrange filed a motion to dismiss in April 2007 because it believed the IURC no longer had jurisdiction over the dispute because it didn't complete the review in a timely manner as required by statute or the rule. The motion was denied and in November 2008, the CAD determined LaGrange overcharged the Bubbs and the utility was ordered to reimburse them the difference between the appropriate rate and the rate paid from March 2006 until the order.

On appeal, LaGrange again argued IURC lost jurisdiction because it didn't act in a timely matter pursuant to statute and the rule. The Court of Appeals determined the rule, which specified the timeframe of a review, didn't apply to the IURC because it failed to adopt the rule. Even though the CAD director originally told LaGrange's attorney the rule would apply, the IURC isn't estopped from arguing the rule is inapplicable. LaGrange failed to show it detrimentally relied on the director's statement, wrote Chief Judge John Baker.

The Court of Appeals also found the CAD review and disposition was conducted in a timely manner pursuant to the statute. Even though the dispute could have been handled more quickly than 32 months after the Bubbs originally filed the complaint, there is no specific timeframe within the statute in which the CAD must investigate a complaint and issue an informal disposition. The statute doesn't also say the IURC loses jurisdiction if the CAD fails to resolve the dispute in a timely manner, wrote the chief judge.

The appellate court relied on Hancock County Rural Elec. Membership Corp. v. City of Greenfield, 494 N.E.2d 1294, 1295 (Ind. Ct. App. 1986), because the statutes in either case don't contain language that restrains the IURC from acting if the CAD fails to conduct a prompt investigation, wrote Chief Judge Baker. Also, the statute in the instant case doesn't provide for an adverse consequence or say that the IURC loses jurisdiction if the CAD doesn't conduct a prompt investigation.

If the IURC lost jurisdiction because the CAD failed to complete a timely investigation, that would frustrate the purpose of the statute, he continued. If the IURC was without jurisdiction in the instant case, then the Bubbs would have no recourse to recover the excessive fees.

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. 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

  2. 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

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

ADVERTISEMENT