20190122Appellant Brief.pdf

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Kiki Leslie A. Tidwell
Petitioner, Pro Se
300 Let Er Buck Rd Hailey, ID 83333
208-s78-7768
IN TIM SUPREME COURT OF THE STATE OF IDAHO
IN THE MATTER OF IDAHO )
POWER COMPATTY'S )
APPLICATION FOR )
CERTIFICATE OF PUBLIC )
COI\TVENIENCE AI\D )
NECESSITY FOR WOOD
RTVER VALLEY
' : ,.'rl'l r!1 ,}.tri.
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St-P- €- t't-o t
Case No.IPC-E-1628
REQUEST FOR
INTERVENOR FT'I\DING
_/'\ i ItJIT
BRIEF IN SUPPORT OT
PETITION FOR REIIEARING
Docket No. 456,44
Idaho Supreme Court
IDAHO POWER COMPA}TY,
Applicant-Respondent, v.
KIKI LESLIE A. TIDWELL,
Intervenor-Appellant-
Petiti,oner
and IDAHO PUBLIC
uTrLrnEs coMMIssIoN,
Respondent
TO: THE ABOVE NAMED RESPONDENTS, Idaho Public Utilities Commission, Idaho
Power Company, AND TI{E PARTYS' ATTORNEYS,
LAWRENCE WASDEN Idaho Attomey General
Edith Pacilio, ISB #5430 Karl Klein,ISB #5156 ldaho Public Utilities Commission
{12W. Washington Street Boise Idaho 83702
Attorney for Respondent Idaho PUC Donovan E. Walker,ISB #5921ldaho Power Company 1221
West Idaho Boise, Idaho &1702 Attomey for Applicant-Respondent ldaho Power Co.,
AND THE CLERK OF THE ABOVE-ENTITLED COURT, IGrel A. Lehman, Clerk
BRIEF IN SUPPORT OF PETITION FOR REI{EARING
1. The above named Petitioner, Kiki Leslie A. Tidwell petitions for rehearing the
Decision Iiled December 28,2018 Docket No. 45644 by the Idaho Supreme Court Aflirming
the denial of intervenor funding by the Idaho Public Utilities Commission to Tidwell
entered in the above-entitled action proceeding on the 17th day of September,20l8, Honorable
Chief Justice Roger S. Bnrdickpresiding.
2. Tidwell has a right to petition for rehearing to the Idaho Supreme Court under
Appellate rule I.A.R. 42.
3. A statement of the issues on which the petitioner asserts in the petition; provided, any such list
of issues shall not prevent the petitioner from asserting other issues on appeal:
Kiki Leslie A. Tidwell petitions the Supreme Court of the State of Idaho for a
rehearing on Tidwell's appeal of an order by the Idaho Public Utility Commission
(the Commission) denying her request for intervenor funding. Tidwell asserts that
the Supreme Court erred when it denied her appeal based on issues that she raised
with the Commission in her request for intervenor funding and her petition for
reconsideration; issues that the Supreme Court did not address and reconcile as to
evidence and Idaho law in its Opinion filed December 28,2018.
The Commission failed to notiff Tidwell of the date of 'the last evidentiary
hearing, or the deadline for submitting briefs, proposed orders, or statements of
position, whichever is last." as Rule 164 states. Tidwell did raise this issue in her
October 22,2017 Appeal to the Commission, "l appeal this decision on the grounds
that 1) the request was timely as it was submitted during the period that a petition for
reconsideration could have been submitted". And "The PUC issued a written decision
September 15,20L7 and noted that "Any person interested in this Order may petition for
reconsideration within twenty-one (2L) days of the service date of this Order", or up until
October 5,20L7. I, as an Intervenor, could have petitioned for reconsideration and
incurred additional legal expenses up until October Str, 2oL7. The Idaho Supreme Court
did mention this issue in its Analysis, stating, "There was no 'deadline for
submitting briefs, proposed orders, or statements of position' at the time the last
evidentiary hearing concluded on August 8,2017".
Tidwell agrees that, at the time of the evidentiary hearing, there was no deadline
noticed for submitting briefs, proposed orders, or statements of position, but
disagrees with the Court that such a deadline was not needed, and further argues
that such a deadline needed to be also clearly noticed by date for all intervenors.
Rule 164 states, "whichever is last", which directly implies that there are two
distinctly different dates; the date of the last evidentiary hearing and an additional
period of time, which could be later or before the hearing date. Did Chair Anderson
with his statement, 'o I'm just going to go atread and do a couple little housekeeping
things. . .. Intervenor funding requests under Rule 164 are due 14 days from today"
definitively end in the case the opportunity for any and all parties to file additional
briefs, submit statements, and propose orders in the case? No he did not.
Therefore, there was a second time period apart from the August 8th, 2017
evidentiary hearing, and that time period was never noticed as expired or what its
deadline to expire was. The Court itself in its analysis notes that "the Commission
correctly applied the first prong of Rule 164", recognizing that there are two prongs
to Rule 164. The Court did not address nor reconcile that the second prong of Rule
164 was not achieved. The language, "whichever is last" creates a sifuation where
the dates of the two prongs need to be compared and contrasted against each other
to determine which was last; achieving one prong is insufficient in itself. The Court
cannot ignore that both oprongs' of Rule 164 were not achieved by the Commission.
For the exact same duty to civil rights for participants in a case that there exists a
first deadline for Rule l64,the date of the last evidentiary hearing, there exists a
need for, and need for notice of the second deadline, the second prong. Participants
in a legal proceeding need to know what is expected of them. Tidwell's attorney
Samuel Linnet shared with the Court in Tidwell's Supreme Court Appeal, "The void
for vagueness docftine applies to statutes that do not sufficiently warn a person of common
intelligence as to the proscribed conduct required. H & V Eng'g,Inc. v. Idaho State Bd. of Prof I
Engineers & Land Surveyors, 1 13 Idaho 646, 649,747 P.zd 55, 58 (1987).
The Commission had a duty to notiff all parties that all briefs had been submitted,
proposed orders created, and statements of positions had been submitted, as well as
that the last evidentiary hearing had been heard. The statement that Chair Anderson
supposedly made, "Interyenor funding requests under Rule L64 xe due 14 days
from today" is not adequate notice of a specific date that comprehensively puts to
rest and defines an end period of all of the activities of submitting briefs, proposing
orders, creating statements of positions possible in a case. Other parties in the case
could have petitioned for reconsideration, submitted a brief, proposed an order, and
created a statement of position after August 8,2017 including and other than
Tidwell, without notice given to Tidwell. Tidwell needed to know from the
Commission that this time period was at an end in order to act properly within a
deadline. Commissioner Anderson also mentioned at the conclusion of the August
8'h, 2017 hearing," I really honestly appreciate your forbearance with me at my first
technical hearing....I made a few mistakes along the way...", acknowledging that
he was unfamiliar with leading a hearing. His lack of familiarity with his
obligations to inform all parties clearly as to proper action and proper deadlines
created a situation in which Tidwell could not act properly within a deadline as it
was not given.
The Court wrote, "...Tidwell's interpretation of Rule 164 "would mean that funding
requests could never be due 14 days after the evidentiary hearing, making that
provision of Rule 164 superfluous." Actually, funding requests could be due 14
days after the evidentiary hearing, if the two deadlines on the two prongs of Rule
164 were both noticed to have the same date. If, Chair Anderson had said, "This
date today, August 8,2017, is the last evidentiary hearing in this case and it also
ends the opportunity of time for any briefs to be submitted, orders proposed, ffid
statements to be submitted", it would have been a clear statement of a date to all
parties. It would have been even better if this statement had been sent to all parties
in writing as all other notices were. The Court did not address and reconcile the
issues brought up by Tidwell in her Appeal to the Idaho Supreme Court concerning
the two deadlines; the Court did not address the failure of the Commission to
achieve the 'secondprong' of Rule 164.
Due to being at her father's deathbed, Tidwell was not able to clarify the timeline of
interactions with her attorney Peter Richardson and the Sierra Club notice and the
Court seems unsure of what transpired. [n her September 16,2017 Tidwell also
wrote, "l was not aware of the possibility of Intervenor funding under ldaho Code 61-
6L7A; my attorney never presented me this information." Kelsey Jae Nunez, who filed
the petition for intervenor funding on behalf of the Sierra Club incorrectly noted on
her document that Tidwell was seryed this notice by her email. Tidwell was not
served this notice by email, which Nunez now acknowledges; she made a mistake.
Peter Richardson, attorney for Tidwell at the time, did receive the Sierra Club
notice, but saw that Tidwell was to be list-served the same notice and did not
forward the notice to Tidwell. Tidwell did not receive a paper mail copy of this
notice either. [n fact, the first she saw of it was last week. The Commission has not
produced evidence that Tidwell received this notice by email or USPS. Richardson
and Tidwell discussed the possibility of intervenor funding only after Tidwell
received the Commission's final decision September 15,2017; they did not discuss
it prior to that date. It was on September 15th, after Tidwell received the
Commission's decision in the case, that she and Richardson discussed his opinion
that intervenor funding was appropriate only for non-profits. Regardless of
Richardson's opinion, he was never served notice either of a specific date which
ended the period for the second prong of Rule 164, the time for any briefs to be
submitted, orders proposed, ffid statements to be submitted. There is no evidence
in the case record that anyone w€N.
The Commission had a duty to provide notice of the two specific dates in this case
which staxted a t4 day time period for intervenor reimbursement requests. It failed
to do so. It never informed all parties of such dates. When Tidwell submitted her
request September 16th, 2017, she was within the time period up until October 5th,
2017 in which she, or any other party could have submitted briefs, proposed orders,
and submitted statements of positions. As there was no other deadline date noticed,
the October 5e date would have been the last date that anyone could have submitted
briefs, proposed orders, and submiued statements of positions, therefore the date for
intervenor reimbursement requests would have changed to a date after September
17s, presumably 14 days after October 5s. Therefore, her request received on
September 17tr was within a valid period of submission to the Commission.
Tidwell may just be a female Idaho citizen homeowner applying Pro Se in this
petition to the Idaho Supreme Court's decision, but Tidwell believes that, in the
United States, our Constitution protects civil rights equally to all. Tidwell
respectfully requests that the Idaho Supreme Court reverse its opinion to allow
intervenor funding for Tidwell as the Commission failed to execute its duty under
Rule 164 to meet both 'prongs' of the rule and inform participants in the Case of the
second deadline under which to perform, thereby creating a defacto deadline of
October 19,2A18, a deadline which Tidwell's submission was within. Petitioner
reasserts her claim and request for attorney fees under Idaho Appellate Rule 40, as
more fully explained in the Appellant's initial briefing.
6. The Petitioner requests the following documents to be included in the clerk's (agency's) record
in addition to those automatically included under Rule 28, I.A.R.: Email correspondence between
Kelsey Jae Nunez and Tidwell, Peter Richardson and Tidwell dated in January 2019, following.
7. I certiff:
(d) (1) [ ] That the petitioner filing fee has been paid.
(e) That service has been made upon all parties required to be served pursuant to Rule 20 (and
the attorney general ofldaho pursuant to $ 67-1401(l), Idaho Code).
DATED THIS IO aav ot .{N .20 t7 .
Leslie
State of,ddah+ CAIfuVWA )
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County or i--ffll,r ,ttTD
Le S ir( ftnnr Tldulr ll , being sworn, deposes^and says
That the party is the appellant in the appeal, and that all statements in this
notice of appeal are true and correct to the best
of [Hrrort,c€*a7n
Subscribed and Sworn to before me this 13 ,oay or JAh. ,2oLL
coMM f 2269370
raorAiY PUBLTC .CALlFORlllA
SAN MATEO COUNTY
(sEAL)
DEC
IN TIIE SUPREME COURT OF TIIE STATE OF IDAHO
IDAHO POWER COMPAI{Y
DOCKET NO. 456452Afi
Applicant-Respondents,
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Kry LESLIE A. TIDWELL,
Interve,uor-Appellant,
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IDAHO PI.'BLIC UTIIJTIES COMMISSION,
Respondenl
AGENCY RECORD ON APPEill;t
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PARTIAL TRANSCRIPT :=
VOLI.'ME tr - PAGES 686.688
APPEAL FROM THE IDAIIO PUBLIC UTILTflES COMMISSION
Commissioner Eric Anderson" Prcsiding
)
SamuelL. Linnet
LinnetLawOffice
1 15 Second Avenue Soufi
Hail€y,ID 83333
Attorneys for Inten enor-Appetlent
Kiki Leslie A. Tidwell
DonovanE. \[alker
IdahoPower Company
1221 Westldaho(83702)
P.O. Box70
Boise,ID 83707
Attoraey for Rsspondent
Idsho Power Company
LawrenceG. Wasden
Attomey General
Camille Christen
Depfiy Afiorney General
KarlKein
Lead Dquty A$orney General
Idaho Public Utilities Commission
P.O. Box 83720
Boise,ID 8372Go074
Attomeys for Respondent on Appeal
Idaho Public Utilities Commission
a?{
CSBREPORTING
C*ffidshodtodRqorut
PostOfficeBox9774
Boisqldaho 83701
csbreporting@.fahoo.cem
Ph:208-t9&5198 Far: l-888623{899
Reporten
ConstrnceBocy'
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ORIGINAL
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CSB REPORTING
(208 ) 890-s198
APPEARANCES
For the Staff:Daphne Euang, Esq.
Deputy Attorney General
472 West WashingtonBoise, Idaho 83720-0074
For Idaho Power Company:Donovan E. Walker, Esq.
Idaho Power Company
Post Office Box ?0Boise, fdaho 83707-0070
For Leslie A. Tidwell:RICHARDSON ADAMS, PLLC
by Pater iI. Richardson, Esq.
Post Office Box 72LBBoise, Idaho 83702
For Rock RollingProperties, LLC:
RICHARDSON ADAMS, PLLCby Gregory M. Adams, Esq.
Post Office Box 12lB
Boise, Idaho 83102
For the Sierra CIub:KELSEY JAE NUNEZ LLCby KeJ.sey 'Ja,e Nunez, Egq.
920 North Clover DriveBoise, Idaho 83703
Eor City of Ketchum:WHITE PETERSON GIGRAY
& NrcHoLS, PA
by Uatthew A. ilohnson
5700 E. Eranklin Road
Nampa, Idaho 83687
For Coxcom, LLC:ARKOOSH LAW OEEICES
by C. Eom Arkoosh, Esg.Post Office Box 2900Boise, fdaho 83701
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APPEARANCES
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MR. WALKER: Pardon me, I didn't hear
that, Mr. Chairman.
COMMISSIONER KJELLANDER: You shouldn't
have.
COMMISSTONER RAPER: Never mind.
COMMISSIONER ANDERSON: Did you hear iL
now? Okay, while we're concludj-ng here, I'm just going
to go ahead and do a couple little housekeeping things.
One is that pursuant to RuIe 257, all exhibits that were
identifled during the hearing and to which no objection
was made are admitted into evj-dence, just a little
catchall for us up here,
(AII exhibits previously marked for
identification were admitted into evi-dence. )
COMMfSSfONER ANDERSON: fntervenor funding
requests under RuIe 164 are due L4 days from today.
Thatrs the other item that we need to discuss. Is there
anything else we need to discuss? And public comment is
closed as of now. I do want to thank everybody. I
appreciate everybodyrs input today. I really do
appreciate the courteous conduct and I really honestly
appreciate your forbearance with me at my first technical
hearing. I had great help on each side. I made a few
mistakes along the way, but thanks for not throwing any
rotten fruit or vegetables at me, and the Commission wiII
CSB REPORT]NG(208) 890-s198
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consider this record fully developed and we will
deliberate on it and try to render a decision within the
timeline set before usr so with that, I don't know what
that time line is. Do we need to -- it will be when we
get, it done, so with nothing else to be said and our work
here complete today, we are adjourned. Thank you.
(The Hearing adjourned at 5221 p.m. )
CSB REPORTING(208) 890-s1e8
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CSB REPORT
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AUTHENTICATION
This is to certify that the foregoing
proceedings held in the matter of the application of
Idaho Power Company for a certificate of public
convenience and necessity for the Wood River Val1ey,
comrnencing at 9:30 d.rIr.r on Tuesday, August B, 20L1 , at
the Commission Hearing Room, 472 West Washington Street,
Boise, Idaho, is a true and correct transcript of said
proceedings and the original thereof for the file of the
Commission.
Accuracy of all prefi,led testimony as
originally submitted to the Reporter and incorporated
herein at the direction of the Commission is the sole
responsibility of the submitting parties.
La ld.L 5
CONSTANCE S. BUCYrtified Shorthand Reporter
llln
(208) 890-519
688 AUTHENTICATION
Kiki Tidwell
Sent:
To:
Cc:
From:
Attachments:
KELSEY N UN EZ < kelsey@kelseyjaenu nez.com >
Wednesday, January 9, 2A19 3:13 PM
KikiTidwell
Zack Waterman
Fwd: Sierra Club's Request for lntervenor Funding
Request for lntervenor Funding.pdf
Subiect:
Hello Kiki
I found the email from when we filed our petition for intervenor funding in Aug 2017.I am sorry but you are
not included in the email; I had you on the paper service list but inadvertently did not include your
personal address on the email. I am sorry for that omission.
Kelsey Jae Nunez LLC
Law & Policy I Community Building I Education
rvwrv.l awfo rc o n s c i o u s lea d ers h in. co m
kelsev@.kelsevi aenu nez.com
208.391.2961
Kelsey Jae Nunez LLC is a boutique firm supporting social enterprise, cooperative culture, and the sharing
economy with a compassionate focus on low and policy, community building, ond education.
Click here to read my latest musing and sign up.fbr m,r.,mailins list!
Htrisl6tffi 1QB:**,r*mCONRDENTIALITY NOTICE: rnis e-maii"iftilifri5"r,uf . If you have received it in error, ptease advise the sender by repty emait andimmediately delete the message and any attachments without copying or disclosing the contents. Thank you.
Forwarded message
From : KELSEY IYUNEZ <kelsel'@kelseljae
Date: Mon, Aug 21,2017 at4:10 PM
Subject: Sierra Club's Request for Intervenor Funding
To: Diane Holt <[e-mail]
Cc : dwalker@,idahopower.com @>, dockets@ idahoporver. com
@, [e-mail] ,
[e-mail] <egrnille.chdsten@puc. , [e-mail]
<ttatum@idahopower. , zack.rvaterman,@tsierraciub.org <[e-mail]>,
[e-mail] <michael.p.heckler , mjohnsonrGirv'hitepeterson.com<qiohnson@'i$'hitepete , Midelev2215,@email.com <Midgle)'22IS@gmd ,
[e-mail] <tom.atkoosh,,@:arkoos , Peter Richardson <peter,@richardsonadams.com>,
Greg Adams <Gre g@richardsonad
Please see the attached Request for Intervenor Funding, filed today at the PUC
1
-Kelsey
Kelsey Jae Nunez LLC
Law & Policy I Communify Building I Education
kelsev@.kelsevi aenunez.com
ww-w.kels ey i a en u n ez. corn
208.391.296t
Kelsey Jae Nunez LLC is a boutique Jirm supporting social enterprise, cooperative culture, and the sharing
econom)) wtth a compassionate foctts on lav, and policy, community building, and education.
Cllick here to read my letest musinggncl sign upJbr ffiy mailine list!
Sustainabie
Economies
Law Fellow {,f,A (qffi**nm
CONRDENTIALITY NOTICE: This e-mail is confidential. If you have received it in error, please advise the sender by reply email and
immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
2
Kiki Tidwell
From:
Sent:
To:
Subject:
The certificate of service attached to the Aug 21, 2017, request by the Sierra Club for intervenor funding indicates that it
was served on you via email.
http://wwrv.puc.idaho.eov/fileroom/cases/elec/lPC/lPCE1628/interveDpC/SlERRA%20CLUB/20170821RIQU EtT%20FOR
%2OINTERVENOR%zOFUNDING.PDF
From: Kiki Tidwell <[e-mail]>
Sent: Friday, January 04,2OL9 5:12 PM
To: Peter Richardson <[e-mail]>
Subject: FW: Supreme Court Decision
Peter -
You received notice on Aug 21that Sierra Club received intervenor funding and didn't share that notice with me? I have
no records that I ever received that notice by email nor mail.
Kiki
Peter Richardson < [e-mail] >
Saturday, January 5,201911:43 AM
KikiTidwell
RE: Supreme Court Decision
1