PSC chief sues to stop the firing of members


The chairman of the Public Service Commission sued the state yesterday to stop a bill that would fire all the panel's members, the latest move in a high-stakes standoff over electric rate increases that is dominating the closing days of the General Assembly session.

In a bold move to sidestep the legislature, Kenneth D. Schisler asked a judge in Talbot County, where he lives, for an injunction against the General Assembly, contending it abused its powers when it passed a bill that would replace the commission's members with a body controlled by the Senate president and the speaker of the House of Delegates.

Gov. Robert L. Ehrlich Jr. has indicated that he will veto the measure, but backers say they have the votes to override him.

Schisler's move - which the state's attorney general said might be improper - comes amid negotiations between the legislature and Baltimore Gas and Electric Co. over a pending 72 percent rate increase for residential customers.

Constellation Energy Chief Executive Officer Mayo A. Shattuck III met yesterday afternoon with Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch - their first meeting since last week - but they made no visible progress toward a settlement.

The talks are due for a jolt today, the deadline for Ehrlich to veto the PSC bill, and others rushed through the legislature last week and designed to pressure BGE and its parent company, Constellation Energy. One would give the legislature veto power over a proposed merger between Constellation and a Florida utility, and another would force the company to return $528 million to ratepayers.

But Schisler, unwilling to risk an override, acted first.

"By enacting legislation in this manner, the General Assembly has abused its power in an unprecedented manner to functionally deny the opportunity for judicial review of an unconstitutional enactment," the complaint, filed in Talbot County Circuit Court, says. "The bill will remove the incumbent commissioners without notice and opportunity to be heard and will leave the legal status of the commission and commissioners in question."

Attorney General J. Joseph Curran Jr. said he would review the suit and any case law the commission may cite, but he said the case suffers from at least two potential flaws: It is a suit challenging the constitutionality of a bill that has not yet been - and may never be - enacted into law, and it involves a state agency suing the state government.

"The general rule is an entity created by the state can't sue the very state that created it," Curran said. "That's pretty textbook clear.

"I'm not sure what their theory is, but if there is no law to challenge, I'm not sure on what basis they're challenging the law," he added.

Curran said his office has reviewed the bill and found it constitutional.

"The legislature created the PSC, and they can certainly change the law that affects it," he said.

Andrew Radding a former law professor and federal prosecutor who's in private practice, said he can't recall a similar case in Maryland.

"I'm very quizzical about how it can be successful," he said. "It's almost equivalent to the Postal Service filing a suit against the U.S. government."

Senate President Thomas V. Mike Miller, who pushed the PSC legislation, called the suit "frivolous litigation."

"This lawsuit will not stand," Miller said. "It's a waste of taxpayers' money. It's a classic example of stupidity at work."

One commissioner, Harold D. Williams, said he was not informed of the lawsuit until yesterday afternoon, after it had been drafted. He said he did not give his consent to be included in the suit.

Williams, the last remaining appointee of former Gov. Parris N. Glendening and the only African-American on the commission, was not invited to a meeting the other four commissioners held with Ehrlich's chief of staff last month, an omission that led to protests from the Legislative Black Caucus. Schisler said at the time that the meeting was not planned and that the omission was unintentional.

The commission is subject to a lawsuit over that meeting by the Maryland Public Interest Research group, which alleges that it was a violation of the state's open meetings law.

Commission spokeswoman Christine Nizer said she would not comment on the legal issues in the case. But she said Schisler and an attorney for the commission presented the suit to Williams before it was filed and that he initially gave his consent before retracting it. She added that he is not specifically listed as a plaintiff, though the suit is filed on behalf of the Public Service Commission, Schisler and "those members of the Public Service Commission similarly situated."

Nizer said the lawsuit was Schisler's idea. She said that he talked to the other commissioners individually and that the body did not take a vote to authorize the suit. The case was filed by an outside counsel, the Easton law firm of Cowdrey, Thompson and Karsten. Nizer said she did not know how they are being paid.

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