IN THE INDIANA COURT OF APPEALS CAUSE NO. 93A02-1301-EX-00076 CITIZENS ACTION COALITION OF INDIANA, INC., et al., Intervenors-Appellants, v. DUKE ENERGY INDIANA, INC., Petitioner-Appellee, and, INDIANA OFFICE OF UTILITY CONSUMER COUNSELOR, Respondent-Appellee, and, INDIANA UTILITY REGULATORY COMMISSION, Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Indiana Utility Regulatory Commission Cause Nos. 43114 IGCC-4, 43114 IGCC-4S1, 43114 IGCC-5, 43114 IGCC-6, 43114 IGCC-7, and 43114 IGCC-8 The Hon. James D. Atterholt, Chairman The Hons. Kari A.E. Bennett, Larry S. Landis, Carolene R. Mays, and David E. Ziegner, Commissioners The Hon. David E. Veleta, Administrative Law Judge BRIEF OF AMICI CURIAE ACLU OF INDIANA, COMMON CAUSE INDIANA, UNITED SENIOR ACTION, OTHER GROUPS IN SUPPORT OF APPELLANTS Gavin M. Rose ACLU OF INDIANA Attorney for amici curiae 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059, x106 <grose@aclu-in.org> TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION As set forth immediately below, the amici curiae are various non-profit organizations with an interest in this litigation. The amici write separately to address two (2) issues: (1) whether the Joint Intervenors were denied procedural due process insofar as this case was largely overseen by decision-makers who lacked impartiality; and (2) whether the Joint Intervenors were denied procedural due process when they were denied access to substantive reports prepared for the Indiana Utility Regulatory Commission by Black & Veatch Corporation, a private consultant retained specifically to oversee the project that is the subject of these proceedings. INTEREST OF AMICI CURIAE ACLU of Indiana: The American Civil Liberties Union of Indiana (“ACLU of Indiana”) is a not-for-profit legal organization that represents individuals who have suffered from constitutional or statutory violations committed by governmental entities. The ACLU of Indiana has a proud tradition of protecting the rights of minority groups by pursuing legal claims on behalf of aggrieved individuals in a variety of substantive areas, including constitutional violations associated with violations of procedural due process. The ACLU of Indiana therefore has an interest in the ensuring that the procedural safeguards mandated by the U.S. Constitution are fully upheld, and writes separately to address these issues. Common Cause Indiana: Common Cause Indiana is United Senior Action: United Senior Action is Other Groups SUMMARY OF THE ARGUMENT SUMMARY OF THE ARGUMENT ARGUMENT The underlying case here, at least in Indiana, is one of unique size that has been infected by unique improprieties. Of course, it is beyond serious dispute that the full panoply of procedural due process rights applies to proceedings before the Indiana Utility Regulatory Commission (“IURC”). See, e.g., Pub. Serv. Comm’n v. City of Indianapolis, 131 N.E.2d 308, 322 (Ind. 1956); see also, e.g., Railroad Comm’n of California v. Pacific Gas & Elec. Co., 302 U.S. 388, 393–94 (1938). Two (2) of the improprieties in the proceedings below independently rise to the level of a constitutional violation, and reversal is necessary. I. The proceedings below were unconstitutionally infected by the involvement of individuals whose impartiality may reasonably be questioned A. Procedural and Factual Background In November of 2007, the IURC issued certificates of public convenience and necessity and clear coal technology, which authorized Duke Energy Indiana, Inc. (“Duke”) to begin construction on the Edwardsport plant that is at the heart of this litigation, at an estimated cost of $1.985 billion. Over the ensuing years, the IURC repeatedly approved semi-annual project updates and requests for cost recovery submitted by Duke, and also twice approved increased cost estimates submitted by Duke: On January 7, 2009, the IURC approved Duke’s revised cost estimate of $2.35 billion for the project. (Sub-docket IGCC-1) On May 13, 2009, the IURC approved Duke’s request for actual recovery of costs through September of 2008. (Sub-docket IGCC-2) On December 2, 2009, the IURC approved Duke’s request for recovery of additional actual costs through March of 2009, its request for certain external costs, and its updated ongoing progress report for the project. (Sub-docket IGCC-3) On July 28, 2010, the IURC approved, on an interim basis, Duke’s ongoing progress report. (Sub-docket IGCC-4) Each of these approval orders was described by and incorporated into the December 27, 2012, final order of the IURC under review in this appeal and, given the nature of regulatory proceedings before the IURC, they play a foundational role in that final order. In late 2010, the Indianapolis Star published a front-page article describing an apparent revolving door of top executives between the IURC and Duke. This so-called “ethics controversy” involved three (3) persons who played a role in the administrative proceedings below: former-IURC Executive Director Mike Reed (“Former Director Reed”); IURC Chairman David Lott Hardy (“Chairman Hardy”); and Chief Administrative Law Judge Scott Storms (“ALJ Storms”). Former Director Reed participated in approving the initial certificate of public convenience and necessity before being hired as President of Duke in June of 2010. Chairman Hardy approved all of the Edwardsport orders from the initial certificates for the project in November of 2007 through the interim order in Sub-docket IGCC-4 in July of 2010, before he was terminated by Governor Daniels and subsequently charged with three (3) felony counts of official misconduct stemming from this case. And ALJ Storms was the hearing officer presiding over much of the administrative proceedings while actively seeking top-level employment from Duke until he was officially hired by Duke in September of 2010. A formal ethics investigation into the actions of ALJ Storms found that he had received—on July 28, 2010—an e-mail from Former Director Reed confirming that he would be hired for an open attorney position with Duke (with an annual $42,000 increase over his IURC salary). Later that very day, ALJ Storms conducted a hearing in this case resulting in the aforementioned interim order. This ethics investigation thus concluded that ALJ Storms’s participation in this case had violated Indiana Code § 4-26-9(a) insofar as he “had a financial interest in the outcome of the . . . case.” See also, e.g., Duke Energy Indiana, Inc. v. Office of Utility Consumer Counselor (“Duke Energy”), 983 N.E.2d 160, 165 (Ind. Ct. App. 2012) (“Allegations began surfacing that [ALJ] Storms had been negotiating for employment with Duke from April to July 2010, which was when he was also presiding over administrative hearings involving Duke.”). Notwithstanding this conclusion, during the proceedings below the IURC took the position that Duke’s hiring of ALJ Storms was “not . . . relevant to the subject matter of this proceeding.” (Oct. 18, 2011 Docket Entry, at 2). This position was reiterated in its final order, wherein the IURC indicated that it “ha[d] stated repeatedly that [this case] is not the appropriate venue for the investigation or view of these particular issues [related to ex parte communications, improper conduct, and undue influence].” (Order of the Commission, at 121). B. The Joint Intervenors were deprived of their right to an impartial decisionmaker in the proceedings below It is, of course, a fundamental principle of due process that “an impartial decision maker is essential.” Goldberg v. Kelly, 397 U.S. 254, 271 (1970). While a demonstration of actual bias on the part of a decision maker would no doubt be sufficient to render that individual’s involvement constitutionally suspect, such a demonstration is not necessary. Rather, “[i]n lieu of exclusive reliance on that personal inquiry, or on appellate review of [a] judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias.” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 883 (2009) (citations omitted). The proper inquiry in defining these standards is whether, “‘under a realistic appraisal of psychological tendencies and human weaknesses,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” Id. at 883–84 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). In Caperton itself, the Court applied this objective standard to conclude that a state court justice was constitutionally prohibited from hearing a case in which one of the parties was a substantial campaign donor: the “significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—offer a possible temptation to the average judge to lead him not to hold the balance nice, clear, and true.” Id. at 886 (internal quotations and alterations omitted). While it is certainly only “extreme facts” and “extraordinary situation[s]” that might cause the bias of a hearing officer to rise to constitutional levels, id. at 886–87, the ethics scandal in this case is likely even more egregious than the campaign contribution addressed in Caperton. Neither the IURC nor Duke appears to dispute that the involvement at the administrative level of ALJ Storms or Commissioner Hardy was constitutionally impermissible. Nor could they: during their involvement in these proceedings, each of these individuals clearly had a relationship with Duke that created a “serious risk of actual bias based on objective and reasonable perceptions.” Id. at 884 (internal punctuation omitted). Indeed, in another case before the IURC to which Duke was a party and that was overseen by ALJ Storms, the IURC found it necessary to reopen proceedings “for further review and consideration of the evidence presented.” Duke Energy, 983 N.E.2d at 167. Although not discussed by this Court in Duke Energy, and while it is unclear why the IURC did not believe similar action to be appropriate in this case, this step is mandated by due process. After all, in Caperton itself, a justice’s likely gratitude to a party for enabling that justice to obtain his position—through substantial campaign contributions—was deemed sufficient to create a due process violation. By contrast, ALJ Storms here was serving as the decision-maker in a case involving a party from whom he hoped to obtain employment, and from whom he actually did obtain employment. If anything, there is an even greater risk of actual bias in the present case. Indeed, the manner in which the IURC took action to relieve ALJ Storms and Commissioner Hardy of involvement in this case is a tacit admission that their involvement had impermissibly infected the proceedings. C. The arguments previously raised by the IURC and Duke are without merit Rather than attempting to justify the involvement of ALJ Storms and Chairman Hardy in the proceedings below, it appears from previous filings before this Court that the IURC and Duke are relying on two (2) arguments to justify the administrative proceedings: the purported “curing” of any bias prior to the approval of the Settlement Agreement; and the IURC’s failure to find that the bias of its officers actually affected any administrative order. Neither of these arguments is meritorious. 1. The constitutional violation is not cured merely because the individuals whose impartiality is subject to reasonable question were no longer decision-makers at the IURC at the time of the issuance of a final order First, it has been asserted that any constitutional violation was cured prior to the approval of the settlement agreement here. (See Duke Energy Indiana’s Opp. to Joint Intervenors’ Mot. to Bifurcate [“Duke’s Opp. to Bifurcation”] [filed Mar. 25, 2013], at 10 [“None of those involved with alleged improper communications . . . had anything to do with the decision under appeal. Moreover, individuals accused of improper actions were fired . . . well before consideration of the Order now on appeal.”]; Response of IURC in Opp. to Mot. to Bifurcate [“IURC’s Opp. to Bifurcation”] [filed Mar. 22, 2013], at 3 [“The Joint Intervenors reference ex parte contacts in 2010. The IURC approved the order at issue in this appeal more than two years later.”]). This argument wholly ignores the nature of the administrative proceedings below. It is, of course, true that “mere participation in earlier decisions that relate only tangentially to the current adjudication does not constitute an impermissible conflict of interest” absent “evidence that bias in fact infected resolution of [the] case.” Greer v. Amesqua, 212 F.3d 358, 368 (7th Cir. 2000). The problem for the appellees in this case, however, is that the approval of the settlement agreement does not stand independent from prior orders below. To the contrary, these prior orders—issued in the midst of the well-publicized ethics scandal—play a foundational role in the ultimate approval of the settlement agreement. This seems self-evident in proceedings such as this, where the IURC first must determine that certain pre-conditions are met that warrant the granting of a “certificate of public convenience and necessity,” and then must approve the progress of (and future estimates for) the project on a semi-annual basis. Simply ensuring an impartial decision-making on a prospective basis does not cure the underlying due process violation unless future decisions truly stand independent from those that came before. Here, they do not.1 Thus, given the nature of proceedings before the IURC, simply removing persons whose impartiality may reasonably be questioned from continued oversight of the Edwardsport project does not suffice. Rather, it was necessary for the IURC to At the beginning of the years-long process ultimately resulting in the approval of the settlement agreement, Duke was required to apply for and obtain from the IURC a “certificate of public convenience and necessity.” See IND. CODE § 8-1-8.5-2; IND. CODE § 8-1.8.7-3(a). This required a factual finding by the IURC that certain preconditions were met, IND. CODE §§ 8-1-8.5-2–5; IND. CODE § 8-1-8.7-3(b), and also required that certain cost estimates be provided and that a public hearing be held, IND. CODE § 8-1-8.5-3; IND. CODE § 8-1-8.7-4. Even after this initial certificate is approved, the IURC continues in an all-important oversight role: it must hold a public hearing and approve annually a public utility’s construction progress and cost estimates (although this was done every six months in the present case). IND. CODE § 8-1-8.5-6.5; IND. CODE § 8-1-8.7-7. And, it may modify or revoke the certificate if the project’s construction is deemed to no longer be in the public interest. IND. CODE § 8-1-8.5-5.5. In other words, the final appealable order in this case did not occur and does not exist in a vacuum; to the contrary, it is entirely dependent on earlier approvals that were issued by persons with an illicit stake in the outcome of these proceedings. That is obvious from the order approving the settlement agreement itself, which contains a lengthy description of this procedural backdrop. 1 employ procedures similar to those employed in Duke Energy and to vacate and reopen the previous orders in which ALJ Storms and Chairman Hardy were involved. While the relative size of both these proceedings and the Edwardsport plant may certainly have caused reluctance on the part of the IURC to take this step, due process demands nothing less. 2. It is no answer for the appellees to insist that the constitutional violation did not alter the substantive outcome of this case Second, Duke has argued previously that no unconstitutional taint exists in this case insofar as the IURC “performed a complete audit of every Duke . . . case that Scott Storms worked on as administrative law judge . . . and [found] ‘no anomalies in this case.’” (See Duke Opp. to Bifurcation, at 10–11 [quoting the IURC’s audit]). This argument, however, confuses a substantive challenge with a procedural one. Under the procedural prong of the Due Process Class, an entity is required to demonstrate only that it was not provided with procedures (that is, an impartial decision-maker) to which it is constitutionally entitled; that entity need not also demonstrate that constitutionally adequate procedures would have resulted in a different outcome. Duke’s argument thus improperly places on the Joint Intervenors a nearly insurmountable burden that, not surprisingly, they are not required to meet. Contrary to Duke’s apparent argument, “the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions.” Carey v. Piphus, 435 U.S. 247, 266 (1978); see also, e.g., Multistar Indus., Inc. v. U.S. Dep’t of Transp., 707 F.3d 1045, 1054 (9th Cir. 2013) (“[A] plaintiff alleging a procedural due process violation need not demonstrate that it would prevail had it been accorded adequate process.”). Thus, in Caperton itself, the U.S. Supreme Court did not ask whether the court below had erred in reversing a jury verdict; rather, as indicated, it asked only whether the decision-maker’s “interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” 556 U.S. at 883–84 (quoting Withrow, 421 U.S. at 47). A violation of procedural due process simply does not depend on whether the substantive result is supportable. To be sure, in the present case the IURC conducted an internal audit “to ensure no undue influence was exerted” in any decisions by ALJ Storms. Of course, the selfdescribed purpose of this audit reveals its own obvious short-comings: any conclusion that “no undue influence was exerted” would require an auditor to get inside of ALJ Storms’s head and to determine the actual motivations (both conscious and unconscious) underlying his decision-making process, which is plainly impossible. While the decision to conduct an audit certainly should not be condemned, its purpose is precisely the sort of subjective inquiry that the Caperton Court and its predecessors thus rejected as conclusive of the due process issue. See 556 U.S. at 883 (“The . . . inquiry into actual bias . . . is not one that the law can easily superintend or review.”); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986) (“We make clear that we are not required to decide whether in fact [the decision-maker] was influenced, but only whether sitting on the case . . . would offer a possible temptation to the average judge.”) (internal quotation and alteration omitted). Accordingly, even were it appropriate for an audit of the decision-making of IURC officers to be conducted by the IURC itself, at best this internal audit revealed only the IURC’s belief that the none of ALJ Storms’s orders constituted an abuse of discretion under prevailing law; the audit did not address, nor could it address, whether this discretion was employed in a manner beneficial to Duke or whether the relationship of ALJ Storms or Commissioner Hardy to Duke was such that recusal was required under Caperton’s objective test. Cf. Duke Energy, 983 N.E.2d at 167–69 (describing the manner in which the IURC reached a different decision after reopening proceedings involving ALJ Storms, notwithstanding the fact that the internal audit did not reveal any improprieties). The IURC’s audit did not cure the due process violation. II. The communications between the IURC, Duke, and Black & Veatch Corporation constitute constitutionally impermissible ex parte conduct A. Procedural and Factual Background A second significant due process violation also tainted the proceedings below, and independently requires reversal. In June of 2008, the IURC ordered Duke to retain Black & Veatch Corporation (“Black & Veatch”), a professional engineering firm selected by the IURC to oversee the Edwardsport project. While the IURC referenced Black & Veatch as a “Commission Contractor” that would report directly to the IURC, its order also required Duke to enter into a contract with Black & Veatch and to pay its fees. During the course of the proceedings below—from August of 2008 on—personnel from Black & Veatch attended numerous meetings concerning the Edwardsport project (generally occurring at least monthly) that were also attended by Duke and IURC staff. At these meetings, discussions concerned issues such as the construction status of the project, the awarding of contracts, the procurement of equipment and materials, engineering issues impacting the project’s construction, quality control issues, and safety statistics. Black & Veatch’s involvement included the preparation of substantive reports for the IURC. Notwithstanding the vital role of Black & Veatch to the project, when the Joint Intervenors sought access to its reports, the IURC took the position that the reports were protected as containing “both trade secrets and deliberative information.” It further concluded that these reports need not be disclosed insofar as they were provided “to the IURC so that the IURC could decide whether or not action was needed with respect to the [Edwardsport project].” Nonetheless, the IURC also took the position that the extensive meetings and other communications between Black & Veatch, Duke, and the IURC did not constitute improper ex parte communications insofar as Black & Veatch “d[id] not assist in making findings of fact or conclusions of law.” The IURC thus issued multiple orders below prohibiting the introduction of evidence concerning Black & Veatch’s involvement in the project and, indeed, prohibiting the parties from even referencing Black & Veatch in testimony.2 B. The one-sided involvement of Black & Veatch in the administrative proceedings below violated due process Of course, the most fundamental rights protected by the Due Process Clause are “(1) oral or written notice of the charges, (2) an explanation of the evidence, and (3) an opportunity to respond.” Koessel v. Sublette County Sheriff’s Dep’t, __ F.3d __, No. 118099, 2013 WL 1960568, at *9 (10th Cir. May 14, 2013) (citation omitted). It is thus rudimentary that parties in administrative proceedings have the right to confront adverse witnesses and evidence. See, e.g., Goldberg, 397 U.S. at 270; see also, e.g., Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 288 n.4 (1974) (“A party is entitled, of course, to know the issues on which the decision will turn and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Indeed, the Due Process Clause forbids an agency to use evidence in a way that forecloses an opportunity to offer a contrary presentation.”). While “not every ex parte communication is a procedural defect that is so substantial and so prejudicial as to undermine the due process guarantee . . . ‘ex parte communications that introduce new In opposing the Joint Intervenors’ Motion to Bifurcate in this Court, the IURC appeared to attempt to justify its treatment of the Black & Veatch Reports with the astonishing assertion that “[t]he record, on which the order at issue in this appeal is based, does not reference these reports.” (IURC Opp. to Bifurcation, at 3–4). Of course, the reason for the limited references to the reports is that the reports were not disclosed and that the IURC ordered that Black & Veatch not even be referenced. 2 and material information’ to the deciding official violate the due process guarantee of notice.” Young v. Dep’t of Hous. & Urban Dev., 706 F.3d 1372, 1376 (Fed. Cir. 2013) (quoting Stone v. Fed. Deposit Ins. Co., 179 F.3d 1368, 1376 (Fed. Cir. 1999)). In Stone, the Federal Circuit set forth a variety of factors that it deemed useful in determining whether ex parte communications rise to the level of a due process violation. These include (a) “whether the ex parte communication merely introduces ‘cumulative’ information or new information”; (b) “whether the [opposing party] knew of the error and had a chance to respond to it”; and (c) “whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner.” 179 F.3d at 1377. Analyzing the Black & Veatch reports here under the Stone test is not necessarily an easy endeavor, if only because the zeal with which the IURC has guarded the contents of those reports means that their precise contents are still unknown. However, the extent of IURC’s interaction with Black & Veatch (and simultaneously with Duke) was not the type of incidental contact that, while improper, has generally been considered to be short of a due process violation. Rather, the contact was long- standing, pertinent to the issues presented by the proceedings below, and substantive. As indicated, Black & Veatch was retained to oversee the Edwardsport project. Its representatives attended regular meetings with IURC staff-members that covered a wide array of issues presented by the project (and relevant to both the proceedings below and to this appeal). And ultimately it generated an unknown number of reports for the IURC “so that the IURC could decide whether or not action was needed with respect to the” project. Indeed, nothing is more telling with respect to the Black & Veatch reports than is the IURC’s invocation of the “deliberative material” exception to Indiana’s public records law, see IND. CODE § 5-14-3-4(b)(6), to prevent the disclosure of the reports. After all, this exception applies only to documents “that are communicated for the purpose of decision-making.”3 Whether viewed in the guise of improper ex parte communications or as a violation of the Joint Intervenors’ right to confront adverse evidence, the manner in which the Black & Veatch reports were treated by the IURC violated due process. C. The attempts by the IURC and Duke to justify the treatment of the Black & Veatch reports are without merit Earlier in the proceedings before this Court, neither the IURC nor Duke sought to justify the failure to disclose the Black & Veatch on the merits. Rather, they argued instead that the Joint Intervenors’ ability to prevail on their constitutional argument is contingent on the demonstration that the IURC actually relied on evidence that it obtained ex parte. (Duke Opp. to Bifurcation, at 13 [“This issue raises no due process While this exception certainly applies to public contractors as well as public agencies, it governs only whether documents must be produced pursuant to a public records request. It says absolutely nothing about whether information must be produced as a matter of due process in the context of adversarial administrative proceedings. 3 problem because the {IURC} did not consider the Black & Veatch information when it made the decision under review in this appeal.”]; IURC Opp. to Bifurcation, at 4 [“To make the determination . . . the Court would need to review the entire record . . . to see if the findings in the IURC order are incorrectly based on the outside consultant reports or correctly based on the evidence in the record.”]). This argument, however, suffers from two (2) profound flaws. First, once again, the argument confuses a substantive challenge with a procedural one. As indicated above, a procedural due process challenge does not require a demonstration that the constitutional violation affected the substantive outcome. See, e.g., Carey, 435 U.S. at 266; Multistar Indus., 707 F.3d at 1054. This established principle is just as true when the procedural due process violation concerns improper ex parte contacts, for such a constitutional violation “is not subject to the harmless error test.” Young, 706 F.3d at 1376 (citing Stone, 179 F.3d at 1377). Thus, the most important Stone factor is not whether the ex parte information affected the outcome, or even whether the information was of the type likely to unduly influence the decision-maker; instead, the most important factor is simply whether “new and material information has been received.” Stone, 179 F.3d at 1377. The notion that the Black & Veatch reports may simply have been cumulative of other evidence contravenes both the evidence in the record concerning the scope of these reports and, indeed, the entire purpose of retaining and paying an expert consultant. Not surprisingly, therefore, it does not appear that either the IURC or Duke has argued that these reports offered nothing new. And second, the argument that the ex parte communications were not ultimately relied upon by the IURC is entirely at odds, once again, with the nature of the “deliberative processes” privilege that has been invoked. As indicated, this privilege applies exclusively to information that is communicated “for the purpose of decisionmaking,” IND. CODE § 5-14-3-4(b)(6); as such, even were the Joint Intervenors required to make such a showing—which they are not—neither the IURC nor Duke may insist that the reports were unlikely to or incapable of influencing the outcome of these proceedings.4 The arguments previously raised in an attempt to justify the failure to disclose the Black & Veatch reports to all parties in the proceedings below cannot withstand scrutiny. This failure was violative of due process and independently mandates reversal. CONCLUSION It does not appear that either the IURC or Duke has argued to this point that the Black & Veatch reports were intended to influence some decision-making independent of these proceedings. Any argument to that effect is immediately contradicted by the fact that it was through a docket entry in these proceedings that the IURC required Black & Veatch to be retained in the first place. 4 For the foregoing reasons, the amici curiae respectfully request that this Court reverse the order below and remand this case to the IURC for further proceedings. The amici express no opinion on any other issue presented by this appeal. Respectfully submitted, ______________________________ Gavin M. Rose, No. 26565-53 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Ph: 317.635.4059, x106 Fax: 317.635.4105 <grose@aclu-in.org> Attorney for the amici curiae CERTIFICATE OF WORD COUNT CERTIFICATE OF SERVICE J. David Agnew LORCH NAVILLE WARD, LLC 506 State Street P.O. Box 1343 New Albany, IN 47150-1343 Michael A. Mullett Mullett & Associates 723 Lafayette Street P.O. Box 2084 Columbus, IN 47202 Jennifer A. Washburn Citizens Action Coalition of Jerome Polk Polk & Associates, LLC Indiana, Inc. 603 E. Washington Street, Ste. 502 Indianapolis, IN 46204 Kelly A. Karn Elizabeth Herriman Duke Energy Indiana, Inc. 1000 E. Main Street Plainfield, IN 46168 Jon Laramore Jane Dall Wilson Faegre Baker Daniels LLP 300 N. Meridian Street, Ste. 2700 Indianapolis, IN 46204-1782 Kay E. Pashos Ice Miller LLP One American Square, Ste. 2900 Indianapolis, IN 46282-0200 Robert K. Johnson P.O. Box 329 Greenwood, IN 46143 Anne Becker Lewis & Kappes, P.C. One American Square, Ste. 2500 Indianapolis, IN 46282-0003 Damon E. Xenopoulos Peter J. Mattheis Shaun C. Mohler Brickfield, Burchette, Ritts & Stone, P.C. 1025 Thomas Jefferson Street, N.W. Eighth Floor – West Tower Washington, DC 20007 Todd A. Richardson Timothy L. Stewart Joseph P. Rompala Tabitha J. Lucas Lewis & Kappes, P.C. One American Square, Ste. 2500 Indianapolis, IN 46282-0003 101 W. Ohio Street, Ste. 2000 Indianapolis, IN 46204 David Steiner Deputy Attorney General Office of Attorney General Indiana Government Center South Fifth Floor 302 W. Washington Street Indianapolis, IN 46204-2770 David Stippler Randall Helmen Lorraine Hitz-Bradley Office of Utility Consumer Counselor PNC Center 115 W. Washington St., Ste. 1500 S Indianapolis, IN 46204 Doug Webber Beth Krogel Roads Indiana Utility Regulatory Commission PNC Center 101 W. Washington St., Ste. 1500 E Indianapolis, IN 46204