Citizens Energy Coalition of Indiana v. Sendak
| Decision Date | 16 October 1978 |
| Docket Number | No. IP 78-352-C.,IP 78-352-C. |
| Citation | 459 F. Supp. 248 |
| Parties | CITIZENS ENERGY COALITION OF INDIANA, INC., et al. v. Theodore L. SENDAK et al. |
| Court | U.S. District Court — Southern District of Indiana |
COPYRIGHT MATERIAL OMITTED
Louis Rosenberg and Sheila Farrell Rosenberg, Indianapolis, Ind., for plaintiffs.
Alan L. Crapo, Jr., and Lon E. Mullins, Deputy Attys. Gen., Indianapolis, Ind., for defendants.
Richard A. Young of Young & Young, Indianapolis, Ind., for defendant Frank J. Biddinger.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This action arises from the disapproval by the Attorney General of the State of Indiana of a proposed contract1 between the Public Counselor of the State of Indiana and the Citizens Energy Coalition of Indiana, Inc., d/b/a Citizens Action Coalition of Indiana. Plaintiffs' complaint alleges in substance that the defendants have violated their constitutional rights by the Attorney General's alleged policy of refusing to approve contracts between a state agency and an organization which employs a lobbyist and the Public Counselor's policy of refusing to consider applications for monetary grants from such organizations under the Energy Conservation and Production Act, 42 U.S.C. § 6805 (1976).2 Plaintiffs seek injunctive relief and also sue in quantum meruit for Five Thousand Dollars ($5,000.00) in monetary damages for work performed under the proposed contract. The Attorney General's policy allegedly stems from his interpretation that the proposed contract between the Public Counselor and Citizens Action Coalition may conflict with Ind.Code 2-4-3-7 (1978).3 The Public Counselor's policy is derived from his understanding of the Attorney General's policy concerning organizations which employ lobbyists.
After commencing this action, plaintiffs filed a motion for a preliminary injunction and defendant Attorney General Sendak filed a motion to dismiss. Having heard evidence and oral arguments on the motions on August 16, and 17, 1978, this Court now makes the following findings of fact and conclusions of law and issues its preliminary injunction in accordance therewith. By reason of its findings and conclusions, the Court hereby DENIES defendant Sendak's motion to dismiss the action as against him in his official capacity and in his individual capacity. On motion of the defendant Biddinger, the action was previously dismissed as against him in his individual capacity.
1. The Citizens Energy Coalition, Inc. (hereinafter CAC) is a private, not-for-profit organization which was incorporated in the State of Indiana in 1975. CAC maintains its headquarters in Indianapolis, but has local affiliates throughout the service territories of the major Indiana electric utilities. CAC has no less than 1,200 individual members and organizational members who represent over 250,000 Indiana citizens. CAC's governing board and membership include persons from diverse areas, backgrounds and occupations. One of CAC's principal purposes is to represent the interests of residential utility ratepayers. It has intervened in several rate and rule-making proceedings of the Public Service Commission of Indiana (hereinafter PSCI) and has registered a lobbyist to appear before the Indiana General Assembly in 1976, 1977, and 1978.
2. Fritz Wiecking (hereinafter Wiecking) is CAC's Executive Director.
3. The Indiana Public Interest Research Group (hereinafter InPIRG) is a private, not-for-profit organization, which was incorporated in the State of Indiana in 1973. InPIRG has 3,000 dues paying members, most of whom are students at the Bloomington campus of Indiana University. InPIRG's governing board consists of students, faculty and community representatives from the Bloomington vicinity. InPIRG's principal purposes are to provide its members with an educational experience in public policy research, provide useful data to Indiana policymakers and advocate consumer and environmental interest. InPIRG has published several studies on Indiana public policy questions, has participated in a few PSCI proceedings and has had registered lobbyists during the 1975, 1977, and 1978 sessions of the Indiana General Assembly.
4. Thomas Wathen (hereinafter Wathen) is the Staff Director of InPIRG.
5. Theodore L. Sendak (hereinafter Attorney General) is the Attorney General of Indiana. Alan Crapo is an Assistant Attorney General, who, among his other duties, is principally responsible for reviewing state contracts as to legality and form.
6. Frank J. Biddinger (hereinafter Public Counselor) is the Public Counselor of Indiana.4
7. In August of 1977, the grant application of the Public Counselor to the United States Federal Energy Administration (hereinafter USFEA), now the Department of Energy (DOE), was approved by the Indiana Attorney General as to "form and legality."
In September of 1977 the DOE approved the application for $200,000.00 under 42 U.S.C. § 6805 and the Public Counselor's office was approved as an "office of consumer services" to assist consumers in their presentations before the Indiana public utility regulatory commission. The period during which the funds were to be spent was September 30, 1977 through September 29, 1978. Eighty-four thousand dollars ($84,000.00) of the grant was allocated for financial and technical assistance to consumer groups in order to facilitate participation in utility rate proceedings. Five thousand dollars ($5,000.00) was budgeted for bringing together consumer groups regarding utility regulation matters and for the development of guidelines to govern the administration and distribution of financial assistance to consumer groups.
8. The Public Counselor was required to submit guidelines to the Department of Energy (DOE) by February 2, 1978.
9. On December 21, 1977, CAC and the Public Counselor executed a proposed contract whereby, among other undertakings, CAC would perform or provide the following:
In consideration for the performance of the contract CAC was to be paid $5,000.00. The Public Counselor and the CAC understood that CAC would have to perform in time for the Public Counselor to submit the guidelines to DOE by February 2, 1978.
10. Under the statute, 42 U.S.C. § 6805, and the DOE rules and regulations, 10 C.F.R. § 460 (1978), prior to the expenditure of any grant funds and no later than six months from the date of notification of the grant award made under the regulations, the grantee had to have in existence, or was required to establish a consumer-interest office meeting the requirements of the Act and the DOE rules and regulations, and in addition was required to establish procedural guidelines for administering the grant or financial assistance to eligible consumer groups to enable them to make presentations before utility regulatory commissions. The purpose of the contract of December 21, 1977, was to assist the Public Counselor in establishing the procedural guidelines for administering the grant award to his office, and to meet the requirements of the regulations governing financial assistance or subgrants to eligible consumer groups. In other words, to assist the Public Counselor in meeting the minimum program requirements to enable that office to provide technical and financial assistance to eligible consumer-interest groups, such as CAC itself. The grant application to DOE from the Public Counselor specifically mentioned the Public Counselor's intent to contract with CAC for the technical assistance described above.
11. Except for a 30-minute conference on January 30, 1978, between the Public Counselor and Wiecking, by January 24, 1978, CAC fully performed its duties under the December 21 contract.
12. The Public Counselor had no prior authority from any of the other state officials to proceed with or authorize work to proceed under the alleged contract. The Public Counselor alone cannot bind the state. Other signatures are required before any contract is valid, in this instance the signatures of the Attorney General, the Governor, and the State Budget Director.
13. On January 25, 1978, CAC registered with the Secretary of the State of Indiana that it had designated Fritz Wiecking as its legislative agent for the remainder of the second session of the 100th Indiana General Assembly. The application for registration stated that the subject matter of the lobbying may include any issues affecting the Public Service Commission of Indiana and the office of the Public Counselor. Mr. Wiecking acted as CAC's legislative agent from January 25, 1978, until the adjournment of the 100th General Assembly on March 4, 1978.
On January 11, 1978, InPIRG registered with the Secretary of the State of Indiana that it had designated Thomas Wathen as one of its legislative agents for the remainder of the second session of the 100th Indiana General Assembly. Thomas Wathen acted as InPIRG's legislative agent from January 11, 1978, until the adjournment of the 100th General Assembly on March 4, 1978.
14. On February 8, 1978, fifteen (15) days after completion of the proposed contract, the same was submitted to the State Budget Agency. This was forty-nine (49) days...
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