2. Background

A. Rule 63.2(b)

In Decision (D.) 97-12-043, we adopted final rules implementing Senate Bill (SB) 960 (Leonard, Stats. 1996, ch. 96-0856). These rules included Rule 63.2(b), which provides for the automatic reassignment of the ALJ in ratesetting proceedings.²

Petitions for automatic reassignment of the ALJ pursuant to Rule 63.2(b) differ substantially from our procedures for unlimited peremptory challenges of the ALJ and challenges of the ALJ for cause. As to the former, Rule 63.3 permits parties in adjudicatory or ratesetting proceedings to file an unlimited number of petitions for reassignment of the ALJ if the assigned ALJ has (1) served within the previous 12 months in any capacity in an advocacy position at the Commission or has been employed by a regulated public utility, (2) has served in a representative capacity in the proceeding, or (3) has been a party to the proceeding. As to the latter, Rule 63.4 permits a party to petition for reassignment of the ALJ in any proceeding if the assigned ALJ has a financial interest in the subject matter of the proceeding or in a party to the proceeding, or has bias, prejudice, or interest in the proceeding.

In contrast, under Rule 63.2(b), parties or persons who in good faith intend to become parties in ratesetting proceedings may petition for the automatic reassignment of the ALJ, based on a petition and a declaration³ stating under penalty of perjury that the party cannot have a fair or expeditious hearing before the assigned ALJ. This petition must be filed within 10 days after the notice of assignment of the ALJ. The Chief ALJ must issue a ruling granting the petition and reassigning the proceeding to another ALJ, unless the petition is not timely or exceeds the number of permitted petitions for the proceeding. If the petition is denied, the Chief ALJ, in consultation with the Commission President, must issue a ruling that explains the basis for denial.

Another party may file a second petition for automatic reassignment, no later than 10 days after the Chief ALJ's ruling on the first petition. The Chief ALJ must grant or deny the second application according to the same procedures and standards. Only two petitions for automatic reassignment are permitted in the same ratesetting proceeding.

B. History

In adopting the challenge rules, we recognized that although Public Utilities Section 1701.2⁴ (enacted by SB 960) requires provisions for the automatic reassignment of the ALJ in adjudicatory proceedings, Section 1701.3 (also enacted by SB 960) does not contain this requirement for ratesetting proceedings. However, we found that permitting petitions for automatic reassignment of the ALJ in ratesetting proceedings would give parties both the perception and the reality of a fair process.

In D.98-05-063, we denied the application of The Utility Reform Network (TURN) for a rehearing of D.97-12-043. TURN sought a rehearing solely on the grounds that the Commission did not have authority to adopt Rule 63.2(b), because Section 1701.3 does not require provisions for the automatic reassignment of the ALJ in ratesetting proceedings. We reasoned that the absence of a legislative requirement for such provisions does not indicate or imply that the Legislature intended to bar the Commission from permitting automatic challenges of the ALJ in ratesetting proceedings.

(b) A party to a proceeding preliminarily determined to be ratesetting under Rule 6(a)(1), 6(c)(2), or 6(d), or determined to be ratesetting under Rule 6(b)(1) or 6(c)(1), or a person or entity declaring the intention in good faith to become a party to such proceeding, shall be entitled to petition, only once, for automatic reassignment of that proceeding to another Administrative Law Judge in accordance with the provisions of this subsection; however, no more than two reassignments pursuant to this subsection shall be permitted in the same proceeding. The petition shall be filed and served as provided in subsection (a) of this rule, and shall be supported by a declaration similar in form and substance to that set forth in subsection (a) of this rule. Whenever a timely petition for automatic reassignment of a ratesetting proceeding is filed, the Chief Administrative Law Judge, promptly at the end of the 10-day period specified in subsection (c) of this rule, shall issue a ruling reassigning the proceeding. A party to the proceeding, or a person or entity declaring the intention in good faith to become a party to the proceeding, may petition for another automatic reassignment no later than 10 days following the date of such ruling. The petition shall be filed and served as provided in subsection (a) of this rule, and shall be supported by a declaration similar in form and substance to that set forth in subsection (a). The second automatic reassignment of the proceeding shall not be subject to further petitions pursuant to this subsection.