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.
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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