Judge insists he can decide extent of commissioner’s powers

Bob Burns explains why he was the lone vote against selecting Tom Forese as new chairman of the Arizona Corporation Commission (Capitol Media Services photo by Howard Fischer)

A Maricopa County Superior Court judge said he has the legal right to decide whether state regulator Bob Burns has the unilateral power to subpoena utility executives, even in the face of opposition of the other four members of the Arizona Corporation Commission.

In an extensive ruling Monday, Judge Daniel Kiley rejected arguments by Arizona Public Service that he is legally powerless to intercede in what the company contends is a dispute among commissioners.

APS attorney Mary O’Grady said that, at the very least, Burns should have to wait until the commission rules on its pending rate increase request.

But Kiley said this isn’t a simple internal dispute among commissioners. Instead, he pointed out, Burns wants a clear ruling on the scope of his constitutional and statutory authority as an elected member of the panel to compel the production of evidence and examine witnesses.

“Resolving such disputes is clearly within the province of the judiciary,” the judge wrote. “Moreover, Arizona courts have long recognized that declaratory judgment relief is an appropriate vehicle for resolving controversies as to the legality of acts of public officials.”

Tom Forese, chairman of the Arizona Corporation Commission (Capitol Media Services photo by Howard Fischer)

Kiley also rebuffed an argument by Chairman Tom Forese that the dispute between Burns and the other commissioners is “really a political question” beyond the scope of the judge to resolve.

“This case presents issue of constitutional interpretation and statutory construction that are squarely within the scope of judicial authority,” the judge said.

Kiley’s ruling came as the commission voted Monday to pay to hire separate attorneys for the other four commissioners to defend themselves in the lawsuit. That’s because Burns has expanded his legal claims beyond just the issue of his individual rights as a commissioner to questions about whether the other four may be disqualified from voting on the APS rate hike because the company provided – or is believed to have provided – cash to help get them elected.

But the panel refused to pay for Bill Richards, Burns’ own attorney, who the commissioner said has been working for free. Burns said he was told the policy is for taxpayer-financed legal help only when commissioners are defending their actions.

“I’m on offense, they’re on defense,” he said. But Burns said he hopes that Kiley eventually orders the commission to pick up the bill for his lawyer, too.

More immediate is the question of how much power does Burns – or any other commissioner – have to issue subpoenas and demand testimony from witnesses over the objections of his or her colleagues.

Burns wants documents from APS and parent company Pinnacle West Capital Corp. showing what they spent not only to influence the 2014 election. Two outside groups spent $3.2 million to elect Forese and Doug Little but have refused to disclose their funders.

He also wants information on the company’s spending on lobbyists and charities. And he wants to question CEO Don Brandt and others.

APS initially challenged his actions as premature. Kiley agreed, telling Burns to seek permission from his colleagues.

But when he did that, the other four voted to reject his request. Kiley, in Monday’s ruling, said that puts the question of Burns’ legal rights squarely before him.

And there are legitimate questions.

The Arizona Constitution spells out that the commission “and the several members thereof” have the power “to inspect and investigate the property, books, papers, business methods, and affairs of any corporation whose stock shall be offered for sale to the public.” Pinnacle West is a publicly traded corporation.

And the constitution specifically spells out the right to demand documents over regulated “public service corporations” like APS.

It also says that individual commissioners have the same power as a court “to enforce the attendance of witnesses and the production of evidence by subpoena.”

Kiley said it is now up to him, as the judge in the case, to decide whether the constitution and parallel statutes give Burns the independent powers he claims he has.