3. Procedural Issues
3.1 TURN
TURN filed a timely NOI on October 10, 2001. On November 1, 2001, Administrative Law Judge (ALJ) Sarah R. Thomas ruled TURN to be a customer and to meet the significant financial hardship condition. TURN filed its request for compensation on May 3, 2004, within 60 days of D.04-02-059 being issued. No party opposes the request. TURN has satisfied all the procedural requirements necessary to make its request for compensation.
3.2 WEM
WEM filed its NOI on November 20, 2001, more than 60 days after a September 10, 2001 prehearing conference. However, by a ruling dated July 1, 2003, ALJ Kim Malcolm found that WEM had made a reasonable showing that the Commission should accept its late filing.
The same ruling found that WEM met the definition of customer, as set forth in § 1802(b), because it was representing the interests of a customer, Ardys DeLu, in Pacific Gas and Electric Company's (PG&E) territory. WEM filed its request for compensation on May 3, 2004, within 60 days of D.04-02-059 being issued.1 Southern California Edison Company (Edison) opposes WEM's request on the ground that WEM did not make a substantial contribution to any Commission decision or order.
An intervenor seeking compensation must show that, without undue hardship, it cannot pay the reasonable costs of effective participation in the proceeding. An intervenor that is a "participant representing consumers" (Category 1) or a "representative authorized by a customer" (Category 2) must disclose financial information to the Commission, under appropriate protective order, to make this showing. (§ 1802(b), (g).) Such a finding is normally made in the ALJ's preliminary ruling as to whether the customer will be eligible for compensation (§ 1804(b)).
In her July 1, 2003 ruling,2 ALJ Malcolm stated the following with regard to WEM's financial hardship:
WEM seeks a finding of significant financial hardship because Ms. DeLu is a low-income ratepayer who was, at the time of filing, unemployed. WEM does not present any evidence of this claim. I will make a finding of significant financial hardship in this ruling, contingent upon WEM providing evidence of Ms. DeLu's financial status using official documents (for example, tax returns). WEM may provide that evidence in a supplemental motion or when it files its request for compensation. It may provide relevant information under seal.
On May 3, 2004, WEM sent, under cover of a handwritten note addressed to ALJ Malcolm, copies of DeLu's tax returns for the years 2001, 2002, and 2003 but did not disclose her monthly expenses. As described in D.98-04-059, Category 2 customers must disclose their gross and net monthly income, monthly expenses, cash and assets, including equity in real estate. Subsequent rulings have determined that it is reasonable to exclude the equity of a participant's personal residence from this disclosure.
Despite the fact that monthly expenses were not provided, we find that DeLu meets the significant financial hardship test because the tax returns reveal that DeLu has no income other than from her investments, so her total income, relative to the cost of living and the cost of participating in this proceeding, is quite low.3
1 At the request of ALJ Michelle Cooke, WEM supplemented its request, and the supplemental information has been placed in the correspondence file for this proceeding. 2 The ruling erroneously found WEM a "participant" (category 1); in fact, WEM is a "representative authorized by a customer" (category 2), and we so find. As a consequence, the financial information to be disclosed to demonstrate hardship need only pertain to the "customer" (here, Ms. DeLu) and not to customer's representative (here, WEM). 3 While we find that WEM meets the financial hardship standard, WEM should have made a better showing in this regard. The financial hardship rule is key to one's eligibility for compensation. In most litigation and regulatory contexts, each party bears its own attorney or advocate fees. The intervenor compensation statute is one limited provision that reverses the general presumption in the United States that each party to a legal proceeding should bear its own fees, thus, scrutiny of financial hardship claims is warranted. If it participates in this or other proceedings in the future and claims intervenor compensation, WEM shall better document its financial hardship claim by providing the value of the represented customer's assets (except the primary residence) and the customer's expenses.
