Miller, Canfield, Paddock and Stone, P.L.C. One Michigan Avenue, Suite 900 Lansing, Michigan TEL (517) FAX (517)

Transcription

1 Founded in 1852 by Sidney Davy Miller SHERRI A. WELLMAN TEL ( FAX ( Miller, Canfield, Paddock and Stone, P.L.C. One Michigan Avenue, Suite 900 Lansing, Michigan TEL ( FAX ( MICHIGAN: Ann Arbor Detroit Grand Rapids Kalamazoo Lansing Troy FLORIDA: Tampa ILLINOIS: Chicago NEW YORK: New York CANADA: Windsor CHINA: Shanghai MEXICO: Monterrey POLAND: Gdynia Warsaw Wrocław April 4, 2018 Ms. Kavita Kale Executive Secretary Michigan Public Service Commission 7109 West Saginaw Highway Lansing, MI Re: Upper Peninsula Power Company Case No. U R Dear Ms. Kale: Enclosed for electronic filing is the Response of Upper Peninsula Power Company to Citizens Against Rate Excess s Motion to Reopen and Strike in the above matter. Also enclosed is our Proof of Service. If you have any questions or concerns, please kindly advise. Very truly yours, Miller, Canfield, Paddock and Stone, P.L.C. SAW/kld Enclosures cc w/enc: Hon. Suzanne D. Sonneborn John R. Liskey Donald Erickson Heather M.S. Durian Richard J. Aaron By: Sherri A. Wellman \

2 S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION * * * * * In the matter of the application of UPPER PENINSULA POWER COMPANY Case No. U R for authority to reconcile 2016 power supply costs and revenues. RESPONSE OF UPPER PENINSULA POWER COMPANY TO CITIZENS AGAINST RATE EXCESS S MOTION TO REOPEN AND STRIKE

3 I. INTRODUCTION On March 14, 2018, the Citizens Against Rate Excess ( CARE filed a Motion to Reopen the Record, or in the Alternative, Motion to Strike a Portion of the Arguments Submitted in Upper Peninsula Power Company s ( UPPCO Replies to Exceptions ( Motion. UPPCO hereby responds to the Motion and, for the reasons discussed herein, respectfully requests the Commission to deny CARE s Motion. II. RELEVANT BACKGROUND UPPCO s 2016 PSCR reconciliation was initiated over a year ago by the filing of its application and direct case on March 28, Consistent with contested case procedures, the matter was noticed and a prehearing conference held. On August 23, 2017, Staff and CARE filed their direct cases. On September 25, 2017, UPPCO filed the rebuttal testimony and exhibits of Mr. Wallin. Because UPPCO s September 25, 2017 filing included revised exhibits to its direct case filed on March 28, 2017 (Revised Exhibits A-1 and A-2, the revisions made to these exhibits necessarily required UPPCO to revise Mr. Wallin s direct testimony so as to correspond to the revised exhibits. These revisions were made on October 31, 2017, prior to the November 1, 2017 evidentiary hearing. At the November 1 evidentiary hearing, UPPCO entered the revised direct and rebuttal testimony of Mr. Wallin and admitted Revised Exhibit A-1, Revised Exhibit A-2, Exhibit A-3 and Exhibit A-4. CARE cross examined Mr. Wallin. CARE then bound in the prefiled testimony of Mr. Jester and admitted his prefiled exhibits. Staff also bound in the prefiled testimony of its witness. Thereafter the record was closed. Initial briefs were filed by UPPCO, Staff and CARE on December 1, 2017, and UPPCO and CARE filed reply briefs on December 18, Thereafter, on January 17, 2018, the Proposal for Decision ( PFD was issued. On February 7, 2018, CARE filed exceptions to the PFD, and on February 21, 2018, 1

4 UPPCO filed replies to CARE s exceptions. On March 14, 2018, CARE filed its Motion to reopen the record ostensibly for the reason of addressing UPPCO s statement made in its Replies to Exceptions that CARE did not revise/update Mr. Jester s testimony 1. The next day, on March 15, 2018, this Commission issued its Order ( March Order rejecting CARE s proposed disallowances and finding that the Company experienced a 2016 PSCR net underreovery of $282,441, inclusive of interest. (March Order, 14 III. RESPONSE A. CARE s request to reopen should be dismissed as moot, because the Commission has already considered and rejected the argument CARE wishes to make upon reopening. In its Motion, CARE seeks to reopen the record to introduce documents 2 that it claims would show that the $2,199,046 figure it proposed for disallowance based on an alleged RTMP revenue shortfall was not inconsistent with the record. (CARE s Motion, p 2. CARE thereby aims to convince the Commission that the ALJ should not have rejected the proposed disallowance for a lack of evidentiary support. Since the time CARE filed its Motion, however, the Commission ruled that CARE s proposed disallowance is unwarranted no matter what evidentiary support may exist for the $2,199,046 figure. (March Order, pp Because the Commission rejected CARE s argument on the merits, reopening the record to introduce information which allegedly supports the proposed $2,199,046 disallowance would 1 As will be addressed below, this statement made by UPPCO is identical to a statement made in the Company s Reply Brief filed on December 18, 2017, more than almost 3 month prior to CARE s Motion. 2 The documents that CARE seeks to introduce are discovery responses served on CARE on October 17, 2017; 14 days prior to the November 1, 2017 hearing. As such, the documents were available at the November 1 hearing for CARE to use and seek to introduce into the record pursuant to cross-examination. 2

5 not change the Commission s March Order. As such, CARE s request is the epitome of a moot claim. The Commission has the power to dismiss a motion as moot. See, e.g., In re complaint of Hemlock Semiconductor Corporation, December 16, 2009 Order, U Courts in Michigan and across the country have consistently affirmed that it is proper to dismiss as moot a request that a tribunal examine claims that the tribunal has already considered and rejected, no matter what procedural vehicle a party uses to make that request. See, e.g., Matter of del Rio, 400 Mich 665, 685 (1977 (request for rehearing; Webb v Greer, 2003 WL at *1 (Mich App, July 17, 2003 (request for rehearing; In re Benjamin Moore & Co, 318 F3d 626, 630 (5th Cir (request for mandamus; Sabert Corp v PWP Industries, Inc, 2015 WL at (DNJ, August 20, 2015 (request for a sur-reply; see also Kennedy Liquor & Deli Shoppe, Inc v Liquor Control Comm, 2016 WL at *2 (Mich App, March 24, 2016 (issue raised by a party is moot if the party is properly denied relief on other grounds. The basic rationale of this rule, of course, is that the party has already effectively had the relief to which it would be entitled were the request to be granted: a consideration of its claims. And because the Commission has already rejected those claims, such consideration would have no practical effect, which is the very definition of mootness. See Gleason v Kincaid, Mich App, 2018 WL at *2 (2018 (Docket No Therefore, because the Commission has fully considered and rejected the argument that CARE wishes to pursue by reopening the record, CARE s Motion should be dismissed as moot. 3

6 B. CARE s request to strike should be denied, because CARE wishes to purge from the record a statement of fact. CARE next asks that, if the Commission decides not to grant its motion to reopen the record, the Commission should nevertheless strike certain language from UPPCO s Replies to Exceptions concerning CARE s failure to correct or revise its testimony in this case. The specific language that CARE moves the Commission to strike is the following: CARE s alleged revenue shortfall of what it now claims is $2,199,046 is once again made without the aid of a credible witness. CARE s witness took the stand and sponsored testimony into the record which supported an alleged RTMP revenue credit shortfall of $827,900 (2 Tr Although CARE was in possession of UPPCO s revised exhibits prior to taking the stand, CARE chose not to have Mr. Jester revise/update his testimony. (UPPCO s Replies to Exceptions, p 12. (Emphasis added. CARE asserts that UPPCO s statement regarding CARE s case is evasive, deceptive, and incomplete (CARE s Motion, p 5. CARE s assertion, however, is false. UPPCO s statement serves nothing more than a declaration of FACT, which can be corroborated by a review of the record and the transcript (2 Tr 166. Further, the language that CARE seeks to strike is identical to that appearing in UPPCO s Reply Brief filed on December 18, 2017: Moreover, not only is CARE s average RTMP credit and average PSCR cost comparison meaningless, it is without credible evidentiary support. CARE s witness took the stand and sponsored testimony into the record which supported an alleged RTMP revenue credit shortfall of $827,900 (2 Tr Although CARE was in possession of UPPCO s revised exhibits prior to taking the stand, CARE chose not to have Mr. Jester revise/update his testimony. (UPPCO s Reply Brief, pp 6-7. (Emphasis added. CARE did not file a motion to strike this portion of UPPCO s Reply Brief, and CARE has not addressed this apparent discrepancy. Further, CARE neither specifies the legal provision under which it brings its Motion to strike nor sets forth a standard under which the Commission should evaluate it. Nor does CARE 4

7 cite any cases or Commission decisions dealing with a motion to strike. That failure does not make it easy for UPPCO to discern and confront any argument as to why CARE is entitled to the relief it requests. But in any case, the handful of Commission decisions dealing with motions to strike non-evidentiary materials show that CARE s request is entirely unwarranted. In the past, the Commission has stated that it has the power to strike non-evidentiary materials under MCR 2.115(B, which applies to these proceedings pursuant to R (1. See, e.g., In re application of Consumers Energy Company, February 8, 2010 Order, U-15611, p 24; In re application of Michigan Consolidated Gas Company, March 18, 2010 Order, U-15699, p 14. MCR 2.11(B provides that: On motion by a party or on the court s own initiative, the court may strike from a pleading redundant, immaterial, impertinent, scandalous, or indecent matter, or may strike all or part of a pleading not drawn in conformity with these rules. In both of the aforementioned 2010 Orders, the Commission chided a party for unhelpful personal attacks, which are not present here, and yet still stopped short of striking material, invoking the name but not the power of MCR 2.11(B. The Commission criticized a party s offensive characterizations of the opposing witnesses and ad hominem attacks on wellqualified professionals that did nothing to advance the Commission s understanding and resolution of the issues presented. In this case, UPPCO has certainly not attacked CARE s witness, Mr. Jester, and CARE itself has made no such allegation. UPPCO s argument pointed to FACT: That CARE s witness did not revise or update his testimony and exhibits which resulted in a disconnect between CARE s recommended disallowance and the record evidenced. Both the ALJ and the Commission observed this fact, meaning that the quoted language from UPPCO was not redundant or immaterial under MCR 2.11(B. 5

8 In sum, the arguments that CARE has asked this Commission to strike... do not consist of redundant, immaterial, impertinent, scandalous, or indecent matter,... as contemplated by MCR 2.115(B. On the contrary, [UPPCO s] arguments, in particular, point out a significant deficiency in [CARE s] proposal that [CARE] itself should have addressed in this case. [...] Moreover, striking [UPPCO s] arguments would not change the Commission s finding that [CARE s] proposal is unreasonable and inappropriate. Therefore,... [CARE s] motion to strike should be denied in its entirety. In re application of Consumers Power Company, May 7, 1991 Order, U-9493, 1991 WL at *21. II. RELIEF REQUESTED WHEREFORE, for the reasons set forth above, Upper Peninsula Power Company respectfully requests that the Commission deny CARE s Motion. UPPER PENINSULA POWER COMPANY Dated: April 4, 2018 By: Its Attorney Sherri A. Wellman (P38989 MILLER, CANFIELD, PADDOCK and STONE, P.L.C. One Michigan Avenue, Suite 900 Lansing, Michigan ( \

9 S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION * * * * * In the matter of the application of UPPER PENINSULA POWER COMPANY Case No. U R for authority to reconcile 2016 power supply costs and revenues. STATE OF MICHIGAN ss PROOF OF SERVICE COUNTY OF INGHAM Kim L. Delinescheff, being first duly sworn, deposes and says that on April 4, 2018, she served a copy of the Response of Upper Peninsula Power Company to Citizens Against Rate Excess s Motion to Reopen and Strike upon the persons below via as follows: Honorable Suzanne D. Sonneborn Administrative Law Judge Michigan Public Service Commission 7109 W. Saginaw Highway, 3 rd Floor Lansing, MI sonneborns@michigan.gov John R. Liskey 921 North Washington Avenue Lansing, MI john@liskeypllc.com Heather M.S. Durian Assistant Attorney General Michigan Public Service Commission 7109 W Saginaw Highway, 3 rd Floor Lansing, MI DurianH@michigan.gov Donald E. Erickson 16 Aviemore Drive Mason, MI donaldericksonatty@sbcglobal.net Jason T. Hanselman Richard J. Aaron Kyle M. Asher Dykema Gossett Capitol View 201 Townsend Street, Suite 900 Lansing, MI jhanselman@dykema.com raaron@dykema.com kasher@dykema.com Subscribed and sworn before me on this 4 th day of April, Kim L. Delinescheff Crystal L. Chacon, Notary Public State of Michigan, County of Eaton My Commission Expires: May 25, 2018 Acting in Ingham County \