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PSC head appeals to high court


With hours to go before his term expires, Public Service Commission Chairman Kenneth D. Schisler asked the state's highest court yesterday to block a law that would replace him and the four other members of the embattled regulatory body.

Schisler's appeal to the Maryland Court of Appeals -- the latest turn in a months-long debate over proposed electricity rate increases for BGE customers -- came a day after a Baltimore City Circuit Court ruled that the General Assembly did not overstep its authority in passing a law that replaces commission members appointed by the executive branch.

Though the latest legal scuffle will not affect electric bills, it extends the machinations of an issue that has dominated Maryland politics for months and leaves open the question of who will sit on the powerful regulatory agency, which has oversight of electric companies, water utilities and taxicabs.

Given the timing of the case, it appears unlikely the Court of Appeals will rule before the firings officially take place at the end of today, when the terms of five commissioners expire under a law passed by the General Assembly this month. The commissioners will stay on the job until they are replaced by appointees pre-selected by Assembly leaders.

"The schedule will be up to the Court of Appeals," said Schisler's attorney, Andrew Radding, when asked whether a ruling could come in time to save his client's job. "We look forward to a hearing."

Under the new law, Gov. Robert L. Ehrlich Jr. must select new members of the commission from two lists provided to him by legislative leaders by July 15. If he does not pick -- and the governor has said he might not -- Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch will appoint the commission.

Neither Miller nor Busch could be reached for comment yesterday, but a spokeswoman for the Senate president said the lists are likely to be completed today. One list will contain three candidates for the commission's chairmanship, and the other list will have 10 names, from which the other four members must be selected.

The Maryland attorney general's office, which represents the General Assembly in the dispute, declined to comment on the appeal. But a spokesman for the department, Kevin Enright, said he believes the Court of Appeals will set a schedule today.

Lawmakers convened a special session two weeks ago to approve a relief package that softened the blow of a proposed 72 percent electricity rate increase. That legislation also dissolved the current PSC, which had been criticized by Democrats as being too friendly to the utility industry.

Ehrlich vetoed the measure, but the General Assembly restored the law June 23.

Schisler sued in Baltimore Circuit Court on Monday, arguing that removal of the PSC was a politically motivated power grab by the legislature. Under the constitution, his attorneys argued, only the governor has the authority to remove executive appointments.

The lawsuit also said the commission should not be replaced because the transition could disrupt cases pending before the body. A new, inexperienced commission could spell chaos for financial markets tied to the utility, his lawyers said.

"The delays associated with new review of pending cases will harm not only the litigants awaiting commission decisions but, more importantly, will harm the public in general who ultimately bear the costs of any delay," Schisler's attorneys wrote in their brief.

In his ruling Wednesday, Baltimore Circuit Judge Albert J. Matricciani Jr. found Schisler had not met the threshold for the court to order a preliminary injunction, which would have temporarily delayed the firings. The judge also wrote that there are underlying problems with Schisler's constitutional argument.

"The General Assembly's authority to alter the terms of office of the Public Service Commission ... is not beyond its constitutional authority," the ruling stated, "and does not run afoul of the federal Constitution's dictates on separation of powers."

The law required Schisler -- a former Republican delegate from the Eastern Shore -- to file his lawsuit in Baltimore Circuit Court and prohibited him from using public funds for the challenge. PSC officials have not said who is funding the current suit. Earlier this year, Schisler used agency funds to file a suit in his home jurisdiction of Talbot County to block an earlier version of the PSC-replacement law. The Talbot judge issued an injunction.

A PSC spokeswoman could not be reached for comment.

In addition, the law directed the appeals process, forcing Schisler to bypass the Court of Special Appeals and file directly with the state's highest court. The law directs the court to expedite review of the case to the "greatest possible extent."

Despite the legal battle, the PSC is still involved with the electricity rates case. BGE officials are working with the commission to complete implementation of the new law.

"This has been a long process, and we're working to get something in customers' hands as quickly as possible so they understand the legislation's impact," BGE spokesman Robert L. Gould said.

Del. Dereck C. Davis, a Prince George's County Democrat who helped oversee the legislation's approval, said he was pleased with the lower court's ruling and is confident the legislature's action will prevail.

"We believe that we're on solid legal ground," Davis said.

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