All eyes toward Wisconsin this week as the Public Service Commission holds a "prehearing conference" on January 3 for the purpose of sorting the more than 50 intervenors to the Cardinal Hickory Creek proceeding.
On December 10, Administrative Law Judge Michael Newmark sent a letter to all intervenors calling the conference and explaining the rights and duties of intervenors... well, most of them anyhow.
I have great empathy for Judge Newmark. It's not going to be easy to manage this number of parties and still adjudicate this case efficiently. I get it. But not allowing due process for landowners and citizens affected by the Cardinal Hickory Creek transmission proposal is simply not an option. Judge Newmark is walking a tightrope between efficiency and due process. What he decides at the prehearing conference will overshadow this proceeding as it moves forward through the evaluation process, and beyond.
However, I think Judge Newmark leaned a little bit too much toward scare tactics in his letter. Yes, being an intervenor is a serious process, and those who intervene pro se have a steep learning curve. However, pro se intervenors are not held to the same standards as attorneys. There's a big amount of give and take here... if an intervenor makes a valiant effort to comply with rules and regs and comport themselves professionally, then they should be allowed to fully participate, with procedural guidance from the judge along the way. It's the least a judge can do for a citizen who faces the economic harm of eminent domain on his property. Yes, "...although a party may represent oneself, most parties hire an attorney for that purpose." However those who cannot afford an attorney may represent themselves, and it happens with increasing regularity in transmission line proceedings. Judge Newmark provides an exhaustive list of Additional Ordered Conditions for Contested Case Proceedings which is nothing more than a rule/style primer for intervenors. However I believe it is meant to be intimidating, instead of helpful. No intervenor needs to know all these things up front -- it's overload. Each little section can be applied when needed (and not all these things are required, in fact most intervenors will never do all these things).
Judge Newmark tries to steer intervenors towards "a more effective way for you to participate". Judge Newmark thinks it would be more "effective" for the majority of the pro se intervenors to make public comment instead. He describes it as "...an opportunity to express your opinion on the project in a formal, but limited way."
Limited. Instead of a participating party, the intervenor would be just one of a sea of faces making public comment which may or may not receive considered notice. In the 10 years I've been doing transmission work, I have NEVER seen an ALJ cite any individual public comment testimony in his decision. Instead it gets grouped in the catchall "public comment." Is this where you want your property rights noticed? In a lump sum of people who object to the transmission project for various reasons? Pretty cavalier treatment for the taking of private property for "public" use. While the PSC may only decide whether to approve or disapprove the project and grant the ability to take property via eminent domain in general, this is the turning point that decides to wrest your property from you against your will. You may still participate in the taking of your individual property in a future court proceeding, but by that time it's only about how much you may get in compensation, not whether or not the transmission owner may take it in the first instance. And it's not all about monetary compensation, although most courts hearing eminent domain cases believe that's the sole purpose. There's so much more that can go into an easement than mere monetary compensation.
Judge Newmark lists some of the rights that come with intervention and party status.
On December 10, Administrative Law Judge Michael Newmark sent a letter to all intervenors calling the conference and explaining the rights and duties of intervenors... well, most of them anyhow.
I have great empathy for Judge Newmark. It's not going to be easy to manage this number of parties and still adjudicate this case efficiently. I get it. But not allowing due process for landowners and citizens affected by the Cardinal Hickory Creek transmission proposal is simply not an option. Judge Newmark is walking a tightrope between efficiency and due process. What he decides at the prehearing conference will overshadow this proceeding as it moves forward through the evaluation process, and beyond.
However, I think Judge Newmark leaned a little bit too much toward scare tactics in his letter. Yes, being an intervenor is a serious process, and those who intervene pro se have a steep learning curve. However, pro se intervenors are not held to the same standards as attorneys. There's a big amount of give and take here... if an intervenor makes a valiant effort to comply with rules and regs and comport themselves professionally, then they should be allowed to fully participate, with procedural guidance from the judge along the way. It's the least a judge can do for a citizen who faces the economic harm of eminent domain on his property. Yes, "...although a party may represent oneself, most parties hire an attorney for that purpose." However those who cannot afford an attorney may represent themselves, and it happens with increasing regularity in transmission line proceedings. Judge Newmark provides an exhaustive list of Additional Ordered Conditions for Contested Case Proceedings which is nothing more than a rule/style primer for intervenors. However I believe it is meant to be intimidating, instead of helpful. No intervenor needs to know all these things up front -- it's overload. Each little section can be applied when needed (and not all these things are required, in fact most intervenors will never do all these things).
Judge Newmark tries to steer intervenors towards "a more effective way for you to participate". Judge Newmark thinks it would be more "effective" for the majority of the pro se intervenors to make public comment instead. He describes it as "...an opportunity to express your opinion on the project in a formal, but limited way."
Limited. Instead of a participating party, the intervenor would be just one of a sea of faces making public comment which may or may not receive considered notice. In the 10 years I've been doing transmission work, I have NEVER seen an ALJ cite any individual public comment testimony in his decision. Instead it gets grouped in the catchall "public comment." Is this where you want your property rights noticed? In a lump sum of people who object to the transmission project for various reasons? Pretty cavalier treatment for the taking of private property for "public" use. While the PSC may only decide whether to approve or disapprove the project and grant the ability to take property via eminent domain in general, this is the turning point that decides to wrest your property from you against your will. You may still participate in the taking of your individual property in a future court proceeding, but by that time it's only about how much you may get in compensation, not whether or not the transmission owner may take it in the first instance. And it's not all about monetary compensation, although most courts hearing eminent domain cases believe that's the sole purpose. There's so much more that can go into an easement than mere monetary compensation.
Judge Newmark lists some of the rights that come with intervention and party status.
Approval of a request for intervention makes the requester a “party” to the proceeding. A Commission proceeding is a formal legal action, and becoming a party to that action confers certain rights and expectations. For example, party status confers the rights to: (1) acquire evidence from other parties; (2) offer expert testimony; (3) cross-examine expert witnesses; and (4) present a written argument.
It seems that Judge Newmark has left one very important thing out... only a party may ask for rehearing or appeal the decision of the PSC in the courts. If you voluntarily give up party status in favor of public comment, you're stuck with the PSC's decision. You cannot appeal if you're not a party. Therefore, unless you expect that the PSC is going to decide in your favor (and when has this ever happened?) you've given up your right to appeal a decision with which you don't agree. Use caution when abandoning your legal rights!
Judge Newmark has proposed "grouping" of intervenors. It's as if he expects laypersons to practice law without a license and represent the rights of others before the PSC. The Judge suggests that SOUL of Wisconsin can represent the interests of a "group" of intervenors who filed similar petitions to intervene. I looked at SOUL's request to intervene and I don't see the appearance of counsel. And why should SOUL have to pay an attorney to represent the interests of separate parties if it chooses not to break the law and practice law without a license? Only a licensed attorney can represent the interests of others.
SOUL says:
Judge Newmark has proposed "grouping" of intervenors. It's as if he expects laypersons to practice law without a license and represent the rights of others before the PSC. The Judge suggests that SOUL of Wisconsin can represent the interests of a "group" of intervenors who filed similar petitions to intervene. I looked at SOUL's request to intervene and I don't see the appearance of counsel. And why should SOUL have to pay an attorney to represent the interests of separate parties if it chooses not to break the law and practice law without a license? Only a licensed attorney can represent the interests of others.
SOUL says:
“We are perplexed by the Judge’s idea that a not-for-profit organization could represent the detailed interests of numerous, unique, households-- not to mention those of six municipal governments with elected leadership,” observed Keith Ashley Wright, President of SOUL.
Both in principle and in practice, SOUL is unable to represent the land-based concerns raised by the private and municipal intervenors. The state’s requirement of multiple transmission route options makes it impossible for any organization to represent one landowner’s interests without creating conflicts with other landowners. Only nine of the requesting intervenors are SOUL members. The SOUL board restricted its intervention efforts to demonstrating the cost and environmental effectiveness of Non-Transmission Alternatives. The organization is not seeking funding from the state to pay for the required experts.
That's exactly right. SOUL cannot represent the property concerns of individual landowners as a group, and it certainly cannot represent the rights of municipal governments with elected officials. The idea of that is absurd (and also illegal).
Judge Newmark also seems concerned about a group of landowners who intervened by snail mail. Perhaps he didn't notice what I did when perusing the list of intervenors in this group. These intervenors are Amish. They don't have computers. They cannot participate electronically. By attempting to force these intervenors to participate electronically, the Judge would be infringing on their religious freedom. I'm pretty sure justice isn't reserved for only those religions who permit the use of electronic devices. I'm guessing there are numerous ways that these intervenors may be permitted to exercise their due process rights as their religion allows -- from having their filings directed to a PSC staff person who may upload them electronically, to preparing a separate service list for this small group of individuals who must be served by U.S. Mail.
It's a test of Judge Newmark's ability to protect the legal rights of the citizens of Wisconsin while still maintaining control of his court room. If everyone approaches this dilemma with an open mind, and an open heart, I'm sure it can be accomplished.
Judge Newmark also seems concerned about a group of landowners who intervened by snail mail. Perhaps he didn't notice what I did when perusing the list of intervenors in this group. These intervenors are Amish. They don't have computers. They cannot participate electronically. By attempting to force these intervenors to participate electronically, the Judge would be infringing on their religious freedom. I'm pretty sure justice isn't reserved for only those religions who permit the use of electronic devices. I'm guessing there are numerous ways that these intervenors may be permitted to exercise their due process rights as their religion allows -- from having their filings directed to a PSC staff person who may upload them electronically, to preparing a separate service list for this small group of individuals who must be served by U.S. Mail.
It's a test of Judge Newmark's ability to protect the legal rights of the citizens of Wisconsin while still maintaining control of his court room. If everyone approaches this dilemma with an open mind, and an open heart, I'm sure it can be accomplished.
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