PHOENIX β A Maricopa County Superior Court judge said Monday he has the legal right to decide whether Bob Burns has the unilateral power to subpoena utility executives, even in the face of opposition of the other four members of the Arizona Corporation Commission.
In an extensive ruling, Judge Daniel Kiley rejected arguments by Arizona Public Service that he is legally powerless to intercede in what the company contends is a dispute among commissioners. APS attorney Mary OβGrady said that, at the very least, Burns should have to wait until the commission rules on its pending rate-increase request.
But Kiley said this isnβt a simple internal dispute among commissioners. Instead, he pointed out, Burns wants a clear ruling on the scope of his constitutional and statutory authority as an elected member of the panel to compel the production of evidence and examine witnesses.
βResolving such disputes is clearly within the province of the judiciary,β the judge wrote. βMoreover, Arizona courts have long recognized that declaratory judgment relief is an appropriate vehicle for resolving controversies as to the legality of acts of public officials.β
Kiley also rebuffed an argument by Chairman Tom Forese that the dispute between Burns and the other commissioners is βreally a political questionβ beyond the scope of the judge to resolve.
βThis case presents issue of constitutional interpretation and statutory construction that are squarely within the scope of judicial authority,β the judge said.
Kileyβs ruling came as the commission voted Monday to pay to hire separate attorneys for the other four commissioners to defend themselves in the lawsuit. Thatβs because Burns has expanded his legal claims beyond just the issue of his individual rights as a commissioner to questions about whether the other four may be disqualified from voting on the APS rate hike because the company provided β or is believed to have provided β money to help get them elected.
But the panel refused to pay for Bill Richards, Burnsβ own attorney, who the commissioner said has been working for free. Burns said he was told the policy is for taxpayer-financed legal help only when commissioners are defending their actions.
βIβm on offense, theyβre on defense,β he said. But Burns said he hopes that Kiley eventually orders the commission to pick up the bill for his lawyer, too.
More immediate is the question of how much power does Burns β or any other commissioner β have to issue subpoenas and demand testimony from witnesses over the objections of his or her colleagues.
Burns wants documents from APS and parent company Pinnacle West Capital Corp. showing what they spent to influence the 2014 election.
Two outside groups spent $3.2 million to elect Forese and Doug Little, but have refused to disclose where they got the money.
He also wants information on the companyβs spending on lobbyists and charities. And he wants to question CEO Don Brandt and others.
APS initially challenged his actions as premature. Kiley agreed, telling Burns to seek permission from his colleagues.
But when he did that, the other four voted to reject his request. Kiley, in Mondayβs ruling, said that puts the question of Burnsβ legal rights squarely before him.
And there are legitimate questions.
The Arizona Constitution spells out that the commission βand the several members thereofβ have the power βto inspect and investigate the property, books, papers, business methods, and affairs of any corporation whose stock shall be offered for sale to the public.β Pinnacle West is a publicly traded corporation.
And it specifically spells out the right to demand documents for regulated βpublic service corporationsβ like APS.
Kiley said it is now up to him, as the judge in the case, to decide whether the constitution and parallel statutes give Burns the independent powers he claims he has.
