DktEntry_8-OPENING_BRIEF.pdf: Appeal of the decision that the Johnson Act does not allow any decisions by the federal court. But the Johnson Act requires that a fair hearing be held and when that is done, the utilities cannot appeal to the fed. court.
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Our federal complaint was filed even before the settlement was approved and thus long before the Warsaw, Poland RSG Notes were revealed. There were oral arguments heard in San Diego on April 16, 2015 and the utilities used the "Johnson Act" to block any review of the case at the federal level. Further review of the (Hiram) Johnson Act revealed that it was originally passed to block the unscrupulous utilities from using appeals to the federal court to delay after the issue was given a fair hearing within the regulatory agency.
The Johnson Act became law in 1934 or so (the discussion in the May 8 and May 9, 1934 in the Federal Register is informative reading). At that time, the utilities had a habit of not accepting the ruling of the Railroad Commission (the precursor to the CPUC) and then appealing it to the state appeals court, which only reviews the case based on the evidence provided in the case as heard by that commission. Then, the utilities, still not satisfied with that result and having no shortage of ratepayer funds to litigate the case, would then reopen the case in the federal courts, and they would hear it "de novo" i.e. newly, thus rehearing the case completely. By the time that is completed, decades may have passed, and many of the people who should get the rate relief have moved or died, so they just are allowed to keep the money.
So the Johnson Act was an attempt to put a stop to this misuse of the justice system by the utilities. But the federal courts are only excluded if they commission has provided the opportunity for a fair hearing. This brief points out that with the new evidence of the RSG Note from Warsaw Poland, the settlement was predetermined and the hearings became only a sham.
The original complaint included the fact that the evidentiary hearing on the settlement was not fair due to the fact that no evidence was allowed (because Phase III was discontinued) to determine if the claims of the ratepayer -- that the demise of the entire plant was due to the failure to complete the RSG project -- was indeed valid.
The result of the appeals court should be to say that indeed it is the responsibility of the federal courts to at least review whether a fair hearing was conducted and not just duck by saying they have not responsibility in the matter.
Appeal of the decision that the Johnson Act does not allow any decisions by the federal court. But the Johnson Act requires that a fair hearing be held and when that is done, the utilities cannot appeal to the fed. court.