PSC suit ready to be heard

Schisler to argue tomorrow that legislature abused power with firings

July 06, 2006|By JOHN FRITZE | JOHN FRITZE,SUN REPORTER

Fighting to keep his job, Public Service Commission Chairman Kenneth D. Schisler will tell the Court of Appeals this week that the General Assembly ran roughshod over the state constitution when it voted to fire him and the other members of the embattled regulatory agency.

The legislature, represented by the Maryland attorney general's office, will counter that it has virtually unlimited power to oust members of a commission that it created - in this case, a panel that has been criticized for its handling of a 72 percent electric rate increase that BGE customers were facing, effective this month.

Their arguments, summarized in lengthy motions filed with the state's highest court yesterday, offered a preview of a hearing scheduled for tomorrow in a case that could determine whether lawmakers may remove gubernatorial appointees because they are dissatisfied with their decisions.

At issue is a law approved by the Democratic-controlled General Assembly last month that limits the BGE rate increase to 15 percent for 11 months, and defers the transition to full market rates until January 2008. The law also cut short the terms of the commission's five members, including four appointed by Republican Gov. Robert L. Ehrlich Jr. While the commissioners' terms technically expired Saturday, most will remain until their replacements are chosen.

The deferral plan, enacted into law by the General Assembly over Ehrlich's veto, gives the governor until July 15 to appoint new PSC members from a list provided by Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch, both Democrats. If he doesn't choose, legislative leaders will decide for him, according to the law.

Schisler filed the suit in Baltimore City Circuit Court on June 26 and requested a temporary restraining order to block only the provisions of the law that deal with the commission's composition. The lower court denied his request, and Schisler appealed directly to the Court of Appeals on June 29. Schisler's attorneys said in the motion filed yesterday that the state constitution permits only the governor to remove appointments, and then only for misconduct or incompetence. By reconstituting the commission, the attorneys write, the legislature overstepped its power for political gain.

The state constitution says the governor "may remove for incompetency, or misconduct, all civil officers who received appointment from the executive for a term of years."

The law "is nothing more than a politically motivated attempt by the General Assembly to circumvent the express provisions of the Maryland constitution, which only permits the removal of the incumbent commissioners for cause by the governor," Schisler's motion states.

In his brief, Assistant Attorney General Michael D. Berman counters that nothing in the constitution prohibits the legislature from changing the law that establishes the commission, the term of its members or how they are appointed. "The General Assembly created the PSC and can abolish it," Berman writes. "In short, officials hold their offices subject to the possibility that they may be ousted by a change in the statute creating their office."

Berman also argues that Schisler has sued the state as an individual, not in his capacity as chairman of the PSC, because the board never voted to sue. At least one commissioner, Karen A. Smith, has resigned, and another, Harold D. Williams, the lone Democratic appointee, said he does not support the lawsuit.

A PSC spokeswoman could not be reached for comment on views of the other two members.

Whatever the outcome, the lawsuit will not affect the rate increase that went into effect Saturday. If Schisler is not successful in his request for a temporary restraining order, which requires evidence that he would suffer "immediate, substantial and irreparable harm," he may take his lawsuit to Circuit Court for a decision on whether his underlying argument is valid.

"The fact that you lose on a [restraining order] does not mean necessarily that you would lose on the merits," said Abraham Dash, a professor at the University of Maryland School of Law.

The Court of Appeals has agreed to hear the case on an expedited schedule, which required the attorneys to file their written motions yesterday and prepare for oral arguments tomorrow. It is not clear whether the court will issue its decision before the commission is replaced.

Legislative leaders last week presented Ehrlich with a list of 10 names he can choose from to select a new commission. The list included Baltimore Circuit Judge Joseph H. H. Kaplan; a former Carroll County Republican lawmaker and Circuit Court judge, Raymond E. Beck Sr.; and an administrative law judge with the Federal Energy Regulatory Commission, Lawrence Brenner.

An Ehrlich spokesman said yesterday that the governor is undecided about whether to pick new members.

john.fritze@baltsun.com

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