Gossett Dykema

LAW OFFICES DYKEMA GOSSETT 800 M ICHIGAN NATIONAL T OWER L ANSING , M ICHIGAN 48933- I 742 Detroit, Michigan Ann Arbor, Michigan Bloomfield Hills, Michigan Grand Rapids, Michigan Washington, DC Chicago, Illinois T ELEPHON E (5 I 7) 374-S IO0 F ACSIMILE (5 I 7) 374-S I 9 I WWW.DYKEMA.COM ALBERT ERNST DIRECT DIAL: (512) 324-9155 E-MA IL : [email protected] September 14,200O Ms. Dorothy Wideman Executive Secretary Michigan Public Service Commission 6545 Mercantile Way, Ste. 7 Lansing, MI 48911 Re: Case No. U-12134 CECo and DECO Code of Conduct Approval MECA Response in Opposition to MAFC’s Application for Leave to Appeal ALJ’s Ruling Dear Ms. Wideman: Enclosed please find original and four copies of Michigan Electric Cooperative Association Response in Opposition to Michigan Alliance for Fair Competition Application for Leave to appeal AlJ’s Ruling in the above-referenced matter. Also enclosed is Proof of Service upon the Parties of Record. If there are any questions or comments, do not hesitate to contact me. Sincerely, Albert Ernst AE/jmb Enclosures cc: Mike Peters Service List MECA Managers LANOl\ 69757.1 ID\ AE STATE OF MICHIGAN II BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION ***** In the matter of the approval of a code of conduct ) for CONSUMERS ENERGY COMPANY and ) Case No. U-12134 THE DETROIT EDISON COMPANY. 1 MICHIGAN ELECTRIC COOPERATIVE ASSOCIATION RESPONSE IN OPPOSITION TO MICHIGAN ALLIANCE FOR FAIR COMPETITION APPLICATION FOR LEAVE TO APPEAL ALJ’S RULING G 2 Pursuant to Rule 337( 1) of the Michigan Public Service Commission’s (“Commission’) I3 z 4 Rules of Practice and Procedure, R 460.17337(l), the Michigan Electric Cooperative Association Yz. B 5 (“MECA ‘7 respectfully submits this response in opposition to Michigan Alliance For Fair t i! 5 $ Competition’s (“MAFC ‘7 August 3 1,200O Request For Immediate Consideration Of And Appeal $ 5 j Of ALJ’s Ruling Striking The Testimony And Exhibits Of Michigan Alliance For Fair f: j Competition’s Witness Anthony M. Ponticelli. = ,: := 5 Per Rule 337(l), the Commission’s decision on MAFC’s appeal is divided into two i:: 2 : E : subparts - (i) should the Commission grant the application for leave to appeal, i.e., should it even 8 3 $ Q consider MAFC’s appeal and review the ALJ’s ruling at this time, and (ii) if the Commission does consider this matter at this time, should it reverse the ALJ’s ruling. As discussed below, MECA answers “yes” to (i) and “no” to (ii). II I With respect to whether the Commission should arant MAFC ‘s avvlication for leave to avveal and review the AU’s ruling at this time, Rule 337(2) sets forth the following standard: “The commission will grant an application and review the presiding officer’s ruling of any of the following provisions apply: 00 A decision on the ruling before submission of the full case to the commission for final decision will materially advance a timely resolution of the proceedings. w A decision on the ruling before submission of the full case to the commission for final decision will prevent substantial harm to the appellant or the public-at-large. cc> A decision on the ruling before submission of the full case to the commission for final decision is consistent with other criteria that the commission may establish by order. k 7 MECA believes that MAFC’s appeal meets subsections (a) and (b) above. In the event 0i E 5 that the Commission determines that MAFC should participate in this proceeding, it would be $ i best to find that out now rather than later. Time is of the essence in this proceeding. The ALJ’s $ $ schedule in this docket provides for the filing of initial briefs by September l&2000 and reply 9 g briefs on October 2, 2000 (Tr 728). Moreover, 2000 PA 141 requires the Commission to z 1 ; establish a code of conduct for utilities within 180 days after the effective date of the act. MCL ; 5 i 460.1 Oa(4); MSA 22.13( 1 Oa)(4). Thus, the Commission must issue its order in this docket no 11 5 z later than December 2,200O. Accordingly, an expeditious ruling on MAFC’s appeal is required. 5 E k* With respect to whether the Commission should reverse the AU’s ruling, the ALJ stated i 8 at the July 12,200O pre-hearing conference that additional testimony could be submitted under I 9 z limited circumstances: Anybody that wishes to file additional testimony will do so by July 27’h. And care should be taken that it should not be legal argument. which should be reserved for briefs, and it should not be matters that could have been and should 2 have been placed in the testimonv in the initial proceeding under this docket number (Tr 728)(emphasis added). Despite the ALJ’s warnings, MAFC attempted to introduce the pre-filed Direct Testimony of Anthony M. Ponticelli even though it consisted of legal argument and could have been submitted in earlier proceedings. Mr. Ponticelli’s testimony presents his opinion as to the state of the law in numerous states, including Michigan. As the ALJ astutely recognized in his decision granting the motion to strike: But nothing in [Mr. Ponticelli’s] testimony, as I see it, addresses anything new raised by the recent revisions to the new law, beyond a very small piece dealing with the coverage of the new Act and that is a legal issue that can be addressed in briefs. Carrying on that point, the bulk of the testimony is in fact legal argument. It’s a sort of state-of-the law type of presentation with respect to codes of conduct. As [Detroit Edison] states, the case law can be argued in brief. I don’t particularly like having witnesses, even lawyers, take the stand to explain the law. That’s reserved for briefs. That’s the way we do it here. That’s the most efficient and economic way to handle legal arguments. If every nartv. in order to bolster its leaal standing in the case, decides to put on a witness to discuss the law, we’re poinn to spend time cross-examining lawvers about the law. And I don’t believe the Commission wants me to start engaging in that kind of conduct on the evidentiarv records. It’s called an evidentiarv record because it’s for putting in evidence, not putting in leaal argument (Tr 767)(emphasis added). i Moreover, even if Mr. Ponticelli’s testimony did not consist of legal argument, which it does, j_ s z MAFC could have easily submitted this testimony in the initial proceedings in this docket. i n Finally, the ALJ’s ruling striking Mr. Ponticelli’s testimony must be upheld because the /; z $ testimony seeks to introduce inadmissible hearsay in the form of a recent FTC report (AMP-1)and c $ a letter from four Michigan legislators (AMP-3).’ As the ALJ properly noted, the FTC report was 5 ; I MAFC also sought to introduce a Maryland Public Service Commission ruling (AMP-2). This is a legal citation as opposed to substantive evidence, however, and properly belongs in MAFC’s brief. 3 not drafted by Mr. Ponticelli and is thus inadmissible under MRE 80 1 and 802. Because the FTC report also explicitly states that it “does not necessarily represent the views of the Federal Trade Commission,” and it was not compiled pursuant to a duty imposed by law, it cannot fall within the Public Records hearsay exception under MRE 803(S). Likewise, the ALJ correctly determined that Mr. Ponticelli did not draft the legislative correspondence and thus it confitures inadmissible hearsay. Accordingly, the ALJ”s ruling was clearly correct and Mr. Ponticelli’s testimony should not be allowed. WHEREFORE, MECA respectfully requests that MAFC’s appeal be denied and that ALJ Schankler’s ruling be affirmed. ? Respectfully submitted, DYKEMA GOSSETT PLLC Attorneys for the MICHIGAN ELECTRIC COOPERATIVE ASSOCIATION 5 Dated: September 14,200O BY Albert Ernst (P24959) / u Christine Mason Soneral (P58820) 800 Michigan National Tower Lansing, MI 48933 I 14 Tel: 517-374-9155/517-374-9184 i Fax: 517-374-9191 8 Email aernstadykema. corn 8 cmason@dykema. corn <o LANOI\ 69572.1 ID\ CMMA II STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION ***** In the matter of the approval of a code of conduct ) for CONSUMERS ENERGY COMPANY and ) Case No. U-12134 THE DETROIT EDISON COMPANY. ) /I ) I PROOF OF SERVICE STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) 1 Jeanne M. Beachnau, being first duly sworn, deposes and says that on the 14th day of g September, 2000, she caused to be served upon the persons listed in the attached Service List, 2 ! copies of Michigan Electric Cooperative Association Response in Opposition to Michigan B $ 2 Alliance For fair Competition’s Application for Leave to Appeal ALJ’s Ruling in the above- g % referenced matter by United States first class mail and electronic mail. f Subscribed and sworn to before $ me this 14’h day of September, 2000. g Ingham County, Michigan My commission expires: 12/l 7/03 II SERVICE LIST CASE NO. U-12134 Alpena Power Company Wisconsin Electric Power Company James D. Florip Northern States Power Company - WI Gillard Bauer Mazrum Florip Wisconsin Public Service Corporation Smigelski & Gulden Upper Peninsula Power Company 109 E. Chisolm Harvey J. Messing Alpena MI 49707 Sherri A. Wellman Phone: 5 17-356-3444 Loomis Ewert Parsley Davis & Gotting Fax: 517-354-2821 232 S.

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