Jeff McDonald

By Jeff McDonald
Jan. 25, 2016 | Updated – 5:05 p.m.

  • Ruling: Utilities commission won’t get last word on withholding San Onofre emails

A San Francisco Superior Court judge on Monday rejected the California Public Utilities Commission’s request to dismiss a lawsuit aimed at forcing regulators to release dozens of emails to and from Gov. Jerry Brown’s office regarding the San Onofre nuclear plant failure.

“Withholding records of allegedly ex parte secret deals resulting in shifting $3.3 billion of utility losses to ratepayers cannot possibly be a regulatory function of the PUC,” Judge Ernest Goldsmith said. “It is not realistic that the Legislature intended that (Public Utilities Code) Sec. 1759 should be invoked to insulate PUC officials accused of corruption from public scrutiny.”

San Diego consumer attorney Michael Aguirre sued the commission in March after it declined to turn over documents he sought under the California Public Records Act.

Goldsmith stopped short of ordering the disputed records released. Instead, unless commission lawyers seek and receive an order from a higher court, the documents will be reviewed in private by another judge, who will then decide whether they can be withheld from the public.

“Absent some kind of stay imposed by some other court, I see this as proceeding ahead with the review,” said attorney Maria Severson, who filed the case on behalf of Aguirre, her law partner. “These records will have to go to a judge now.”

Spokeswoman Terrie Prosper said the commission intends to challenge the ruling, which came at the end of a 50-minute hearing in San Francisco Superior Court, just a few blocks from the commission’s Van Ness Avenue headquarters.

“The law is very clear that the Superior Court lacks jurisdiction,” she wrote in an email. “The CPUC has a legal and ethical obligation to ensure that only those courts with jurisdiction hear cases involving the CPUC.”

The PUC has special judicial authority and a staff of judges to hear appeals that arise out of its official proceedings on matters affecting privately owned power, telecommunications, water and transit companies.

What’s in dispute is whether the agency’s actions on an unregulated issue — such as public records law — can be appealed to Superior Court or must go to the higher level of the appellate court.

“If the lawsuit is filed in the correct court, we are fully prepared to provide the necessary factual and legal basis for the CPUC’s application of the Public Records Act,” Propser wrote. And “while we do not typically comment on pending litigation, I want to be clear that the emails in question did not relate to the San Onofre settlement, nor were they sent to or from the Governor personally.”

Aguirre sought records related to the January 2012 closure of the San Onofre nuclear power plant on the north San Diego County coast, a failure that has resulted in a wide range of commission business, not just the $4.7 billion settlement of premature closure costs approved by the commission in November 2014. The agreement assigned 70 percent of the costs to customers rather than to utility shareholders.

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