Appeals court denies ex-PSC chief lawsuit costs

The Baltimore Sun

The Maryland Court of Special Appeals rejected an effort yesterday by the former head of the Public Service Commission to recover attorneys' costs related to his successful legal battle against the legislature's attempt to remove him from his job.

Kenneth D. Schisler, who resigned his $117,000-a-year position last January in the midst of a political fight with top General Assembly Democrats and Gov. Martin O'Malley, had sought to be reimbursed for the legal bills he incurred while persuading Maryland's highest court to block legislation passed by the legislature during a special session in 2006.

Schisler and the other members of the PSC appointed by former Gov. Robert L. Ehrlich Jr. had been portrayed by Democrats as industry-friendly regulators, and they drew intense partisan scrutiny during the fight over a planned 72 percent increase in electricity rates.

The Assembly passed legislation that effectively fired Schisler and the other members of the PSC. Ehrlich vetoed the measure, but lawmakers overrode the veto.

Schisler sued, saying that only the governor could fire commissioners and then only because of incompetence or misconduct. He won in the state's highest court, the Court of Appeals.

He resigned last January, soon after O'Malley took office.

After his victory, Schisler filed an amended complaint, naming additional defendants and seeking reimbursement of attorneys' fees and other costs. Though the Maryland Republican Party had picked up some of the costs of Schisler's lawsuit, others close to the former GOP delegate said he had still accumulated considerable debt in the legal struggle.

On Jan. 27, a Baltimore Circuit Court judge dismissed Schisler's amended complaint, essentially concluding that the case had already been decided because the Court of Appeals had struck down the legislature's effort to fire the PSC.

Yesterday's unanimous three-judge ruling upheld that Circuit Court decision.

"Appellants added new defendants, federal and state claims and a claim for attorney's fees to the amended complaint. They could have included the additional defendants, new federal and state claims, and new claim for relief in their original complaint, but did not," wrote Judge James R. Eyler on behalf of the court.

"Without pleading additional facts, appellants cannot now add new defendants and claims after the Court of Appeals' judgment," Eyler said. "This would be contrary to the law of the case, and would, in effect, permit piecemeal litigation."

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