PSC firing blocked by Md. court

Dismissal on hold as justices weigh legislative power

rates unaffected

July 08, 2006|By JOHN FRITZE | JOHN FRITZE,SUN REPORTER

Prolonging the uncertainty surrounding one of the state's most high-profile political battles, the Maryland Court of Appeals ruled yesterday that the current members of the embattled Public Service Commission can keep their jobs - at least until the court issues a more formal opinion.

The two-paragraph order hands PSC Chairman Kenneth D. Schisler a temporary victory by immediately blocking parts of a law approved by the Democratic-controlled General Assembly last month that would have fired him and the other members of the regulatory agency and replaced them with new appointees selected by legislative leaders.

Attorneys representing both sides of the case were careful not to read too much into the ruling. Legal experts said the court issued the order because it needs more time to consider a case that centers on constitutional questions of the extent of the legislature's power to replace gubernatorial appointees.

FOR THE RECORD - A headline and article in Saturday's editions of The Sun referred erroneously to "justices" of the Maryland Court of Appeals. The members of the state's highest court are judges.
The Sun regrets the errors.

"It means nothing other than, `We need to think about this more; we need to discuss this among ourselves,'" said John F. Fader II, a former Baltimore County Circuit Court judge and a senior judicial fellow at the University of Maryland law school. "It's anybody's guess as to what they're thinking in their minds."

Though the outcome of the lawsuit carries political implications for the gubernatorial race between Gov. Robert L. Ehrlich Jr., who appointed Schisler, and Baltimore Mayor Martin O'Malley, who has called for the PSC's replacement, the court's action will not affect an underlying issue confronting more than 1 million Marylanders - electricity rates for BGE customers.

BGE rates had been set to rise 72 percent July 1, upon the expiration of six-year caps on rates that were part of the state's transition to a deregulated energy market.

Outcry over the higher costs dominated this year's General Assembly session, but lawmakers could not agree on a fix. Ehrlich then negotiated a rate-deferral plan last spring, which was approved by the PSC. But O'Malley sued to have the approval overturned, and his initial success spurred the legislature to convene a special session last month to seek a better plan.

The Assembly passed a law limiting the rate increase to 15 percent for 11 months, deferring the transition to full market rates until 2008. The law also ended the terms of the commission's five members - four of whom were appointed by Ehrlich. Though their terms technically expired July 1, they were allowed to remain in office until replacements were chosen.

Schisler sued, arguing that the legislature's PSC maneuvering was unconstitutional. His lawsuit did not address electricity rates, and the 15 percent interim increase remains in effect.

The deferral plan gave the governor until July 15 to appoint new members from a list drawn up by Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch, both Democrats. If he did not choose new members from that list, the new law allowed legislative leaders to create the PSC for him.

Yesterday's decision halted that process, pending another order from the Court of Appeals. The justices gave no indication of when that order might be issued and what, exactly, it will include. The court could ultimately allow the replacement of the PSC to go forward, or it could halt it indefinitely and send the case back to Circuit Court for further review.

Ehrlich has characterized the General Assembly's action as a politically motivated power grab intended to usurp the governor's authority in an election year. He also argued that the PSC is not to blame for a deregulation plan that was approved by a Democratic-controlled General Assembly.

"As many independent observers and experts have recognized, the General Assembly's election-year attack on the Public Service Commission exceeds legislative authority to the detriment of Maryland consumers," Ehrlich said in a statement. The court's "decision restores stability to the commission while the court more closely examines the constitutionality of the General Assembly's egregious actions."

Schisler supporters noted how quickly the court order was issued - it was released about an hour after the court heard oral arguments in the case yesterday - and said that they had effectively received the delay they had requested. O'Malley and other Democrats zeroed in on the apparent temporary nature of the ruling and continued to argue that the PSC had failed consumers when it initially approved the higher rate increase.

"They approved the 72 percent rate increase and cannot be trusted to administer rate relief fairly," O'Malley said. "I hope that following a full hearing, the authority of the legislature to replace the PSC will be upheld. If they can't replace the PSC, I will if I am elected governor."

Miller and Busch could not be reached for comment. A spokeswoman for the PSC referred questions to Schisler's attorney.

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