Weather in Town of Forest

Memo in Support of Petitioner’s Motion for Non-Summary Remedial Contempt of Court

STATE OF WISCONSIN CIRCUIT COURT ST. CROIX COUNTY

TOWN OF FOREST,

Petitioner,Case No.: 14-CV-18
Class Code: 30607
v.(Administrative Agency Review)

PUBLIC SERVICE COMMISSION OF WISCONSIN,

Respondent.

MEMORANDUM IN SUPPORT OF PETITIONERS MOTION FOR NON-SUMMARY REMEDIAL CONTEMPT OF COURT

INTRODUCTION
On August 27, 2015, this Court issued its Decision and Order in the above-captioned matter. This Court remanded the matter to the Public Service Commission (1) to hold a hearing on the issue of adopting a percentage compliance standard and (2) to reopen the application to determine if other sensitive residents identified in previous exhibits should be included with the original six residences that received a noise variance from the Commission. The Commission, upon remand, has decided to hold no hearings on either matter and has instead removed the protections extended to the original six residences. Petitioner now respectfully requests this Court provide notice and set a hearing to consider the Motion for Non-Summary Remedial Contempt of Court. Ultimately, Petitioner requests this Court grant the motion and order the modification of the Commissions Final Decision on Remand to restore the variances of the original six residences, with further instructions to reopen the matter to hold a hearing on whether other previously-identified residents should be included with the original six.
BACKGROUND
On August 27, 2015, this Court issued the Decision and Order remanding this matter to the Public Service Commission (Commission). On the question of whether the Commission failed to provide a full hearing on the selection of sensitive residences for additional protective standards, the Court found in the affirmative and ordered the following relief:
The matter is remanded to the Commission, not for further evidentiary hearing on other residents who may be sensitive to noise and/or shadow flicker, but for the purpose of allowing the Commission to state why, if it can, based on the record already accumulated, the six residences were selected and the other eleven were not. If, based upon the record herein, the Commission is not able to state why the six residences were selected and the other eleven were not, then the matter is reopened solely for the purpose of allowing the parties to state why other sensitive residences, already identified, should be considered and the Commission can then decide if others, already identified, should be included with the original six residences.

(Decision and Order, p. 114). On the question of whether the Commission adopted the staffs selection and Highlands proposal on the six sensitive residences without substantial evidence on the record, the Court found in the affirmative and ordered the following relief:
Pursuant to Wis. Stat. 227.57(2) & (6), the proceeding is remanded to the Commission with direction that the Commission to state on the record why, if it can, based on the record already accumulated, the six residences were selected and the other eleven were not. If, based upon the record herein, the Commission is not able to state why the six residences were selected and the other eleven were not, then the matter is reopened solely for the purpose of allowing the parties to state why other sensitive residences, already identified, should be considered and the Commission can then decide if others, already identified, should be included with the original six residences.

Id. at 114-115.
On the question of whether the Commission provided adequate notice and a proper hearing on the new compliance standard, the Court found in the negative and ordered the following relief:
Pursuant to Wis. Stat. 227.57(2) & (4), the action of the Commission adopting a 95% compliance standard is set aside and the matter remanded to the Commission for the purpose of providing proper notice and hearing on the issue of adopting a percentage compliance standard.

Id. at 113. The Court also set aside, as unauthorized rulemaking that exceeded its authority, the Commissions action modifying its noise protocols to include a 95% compliance standard. Id.
On March 15, 2016, the Commission issued its Order to Reopen, Notice and Request for Comments, for the limited purpose of addressing the issues remanded by the Decision and Order in this case. (Exhibit A: Order to Reopen, Notice and Request for Comments, p. 1). The Commission reopened the matter and provided an opportunity to be heard on three issues:
1.The Commissions intention to modify its Final Decision on Reopening to remove the pre-established 95 percent compliance standard and address any complaints concerning alleged noncompliance with the noise standards, based on the specific factual situation, at the time any noncompliance is alleged.
2.To allow the parties to state why the six identified potentially sensitive residences, and other potentially sensitive residences already identified in Ex.-Forest-Junker-20, should be considered for lower noise requirements than is provided for in Wis. Admin. Code PSC 128.14(3), so that the Commission can decide whether to include lower noise requirements for either these six or any additional residences.
3.To take official notice under Wis. Stat. 227.45 of certain governmental reports of peer-reviewed studies, relating to whether any identified health concerns are affected by wind electric generation facilities, and provide the parties an opportunity, as required by Wis. Stat. 227.45, to rebut or present countervailing evidence.
Id. at 2-3.
On August 11, 2016, Respondent issued its Final Decision on Remand on the application of Highland Wind Farm LLC for a Certificate of Public Convenience and Necessity. (Exhibit B: Final Decision on Remand). The Commission invoked Wis. Stat. 196.39 to directly amend the Final Decision on Reopening, purportedly to comply with the Courts Decision and Order.
On the issue of the percentage-based compliance standard, the Commission found as a matter of fact that [i]t is not reasonable to adopt any percentage-based compliance standard at this time, and that [i]t is reasonable to remove the pre-established 95 percent compliance standard and address any complaints concerning alleged noncompliance with the noise standards, based on the specific factual situation, at the time any noncompliance is alleged. Id. at 6. It further concluded as a matter of law that [n]o hearing is required by the Decision and Order or Wis. Stat. 196.39(1) or 227.42 to remove the pre-established 95 percent compliance standard. Id. at 7.
On the issue of the variances for sensitive residences, the Commission found as a matter of fact that [i]t is not reasonable to require Highland to comply with a noise limit lower than that specified in Wis. Admin. Code PSC 128.14(3) to either the six previously identified residences or any other identified residences in the project area. Id. at 6. It further concluded as a matter of law that [n]o hearing is required by the Decision and Order or Wis. Stat. 196.39(1) or 227.42 to require Highland to comply with the noise limits in Wis. Admin. Code PSC 128.14(3) for all nonparticipating residences in the project area, nor require Highland to comply with a lower noise limit to individuals previously identified as potentially sensitive. Id. at 7.
This Court ordered remand for the holding of a hearing on the issue of adopting a percentage-based compliance standard, and to reopen the matter to determine whether other identified residents should be included with the original six residences. (Decision and Order at 110-115). The Commission has responded by holding no hearings, and by completely removing the protections granted to the original six residences.
LEGAL STANDARD
While the power to employ contempt of court stems from the inherent authority of the court, the procedures and penalties for contempt of court are controlled by Wisconsin Statutes Chapter 785. Frisch v. Henrichs, 2007 WI 102, 32. The statutes define contempt of court in a number of ways, but the applicable definition in this matter is for [d]isobedience, resistance or obstruction of the authority, process or order of a court. Wis. Stat. 785.01(1)(b). Petitioner here seeks a remedial sanction, which means a sanction imposed for the purpose of terminating a continuing contempt of court. Wis. Stat. 785.01(3).
An order which requires specific conduct can be enforced by contempt, regardless of whether the specific conduct is in the form of an injunction. Carney v. CNH Health & Welfare Plan, 2007 WI App 205, 16-17. The imposition of contempt of court is a matter of discretion for the court, and will be affirmed if the court reached a reasonable decision after applying the proper legal standards to the relevant facts. Society Ins. v. Bodart, 2012 WI App 75, 7.
Nonsummary contempt, as opposed to summary in which the contempt occurs in the actual presence of the court, allows that [a] person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter. Wis. Stat. 785.03(1)(a). [U]nder the nonsummary contempt procedure, a separate hearing or trial on the contempt charge is required. The hearing or trial is to be preceded by the filing of a motion or complaint and notice. Matter of Contempt in Interest of M.P., 154 Wis.2d 1, 9, 452 N.W.2d 354 (1990).
Disobedience of the terms of a court order constitute contempt. A partys unwillingness to obey a court order is the very definition of contempt. Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44, 23. The fact that a party subject to a court order finds legal tension or error in a courts order does not alleviate its requirements to abide by the decision. A judgment imposes a legal obligation and violating it can subject an individual to contempt proceedings. This is true even if the judgment was entered in error, unless the court lacked jurisdiction to impose the judgment. Tensfeldt v. Haberman, 2009 WI 77, 37. The person may disagree with the order, but he or she is bound to obey it until relieved therefrom in some legally prescribed way. Monicken v. Monicken, 226 Wis.2d 119, 125, 593 N.W.2d 509 (Ct. App. 1999).
To summarize, remedial nonsummary contempt of court in this matter is a civil allegation that a party subject to a court order has disobeyed the terms of the court order. The partys arguments that the order was based on an error are inapposite. The statutes for nonsummary procedure require a separate hearing on the matter once it is initiated by notice and motion. The remedy for remedial contempt is at the discretion of the court and terminates the conditions underlying the continued contempt.
ARGUMENT
It is an interesting form of compliance that accomplishes none of the relief ordered by the Court. Here, the Court issued an order requiring a hearing on the compliance standard, and the reopening of the matter to determine whether additional residents should be included with the original six residences provided protective noise variances by the Commission. The Commission now claims to abide by the Decision and Order by holding no hearings and revoking the variances granted to the original six residences.
The Town of Forest focuses this motion on the revocation of the variance granted to the original six residences. While the Commissions failure to hold a hearing on the percentage compliance standard is included in this motion, Petitioner recognizes that it is possible that the Commissions method of remediating its procedural deficiency was within the intent of the Decision and Order. While the Commissions Final Decision on Remand clearly fails to undertake the specific actions ordered by the Court, the Commission nevertheless did correct the underlying errors in its unauthorized rule-making by completely retreating from the rule. Petitioner includes the compliance-standard hearing in the motion for two reasons: (1) to challenge the fact that the Commission declined to hold a hearing on the matter, despite receiving specific instructions to do so; and (2) to demonstrate the degree of legal contortion employed by the Commission to avoid undergoing the specific relief described in the Decision and Order.
The removal of the six sensitive residences, however, is clearly a violation of the specific instructions mandated by the Court. The language of a court order can only be contorted so far, and here the Commission bends the words to the breaking point. Not only did the Commission decide to remove the six residences despite specific instructions militating against this outcome, but it did so purportedly to correct the inherent contradiction in the Courts Decision and Order. (Final Order on Remand at 27). Legal advocacy will involve arguments before the Court, but it is another matter entirely to argue with the Court.
I.The Commission removed the variances for the six original residences, despite the Decision and Order specifically restricting this outcome.

This Court provided a series of specific instructions on the matter of variances for sensitive residences. First, the Commission was obligated to state on the record why the six residences were selected and the other eleven were not. (Decision and Order at 114-115). The Commission determined on remand that it is clear there is not substantial evidence to differentiate the six. (Ex. B, Final Order on Remand at 35). This triggers the second part of the Order:
If, based upon the record herein, the Commission is not able to state why the six residences were selected and the other eleven were not, then the matter is reopened solely for the purpose of allowing the parties to state why other sensitive residences, already identified, should be considered and the Commission can then decide if others, already identified, should be included with the original six residences.

(Decision and Order at 114-115) (emphasis added).
The language of the Decision and Order is clear, and it is conjunctive as regards the six residences. The matter is reopened solely to determine if others should be included with the original six residences. There is no reasonable reading of the Order that permits the removal of those residences, and the Commission, perhaps recognizing this, opted to avoid the Orders language when reopening the proceeding. Instead, the Commission reopened so that the Commission could decide whether to include lower noise requirements for either these six or any additional residences. (Ex. B, Final Order on Remand at 4) (emphasis added). This is very different language, and perhaps the language the Commission would have preferred in the Courts Decision and Order. The Commissions reticence to use the verbatim text of the Order is understandable, given the result here, but nevertheless based on an impermissible reading.
a.The Commission cannot justify its departure from the terms of the Order by either the text or intent of the Order.

The Commission relies on a statement within the Decision and Order to support the proposition that it was authorized to remove the six residences: [t]his Court is fully aware that no accommodation needed to be ordered by the Commission for any of the 17 identified residences. (Ex. B: Final Decision on Remand at 26) (citing Decision and Order at 109). Focusing on this sentence ignores the remainder of the Decision and Order on this point, as well as the legal question of whether an amended order of the Commission under Wis. Stat. 196.39 is even a permissible mechanism for revoking variances granted to specific members of the public.
First, this Court noted that the Commission was considering the needs of the public by requiring further accommodation to the six residences, and it owes the same public an explanation why the other eleven were not given that accommodation. (Decision and Order at 110). This corresponds with the Commissions original position, that it erred on the side of caution and acted out of an abundance of caution when extending the variance to the six residences. (Id. at 105). The Decision and Order was based upon a recognition that an error on the side of public health and welfare was acceptable, as long as the Commission could adequately explain to the other eleven residences why they were not also extended those protections.
Second, the fact is that the Commission did provide the variance to those six residences. While the parties may in the future be compelled to argue which procedure is appropriate to revoke those variances, we state here only that some form of process beyond an amended order is likely necessary. Viewed from the perspective of the residences, the variance entitling them to a lower noise threshold could be a conditional use permit on the land, triggering the permit revocation process. Viewed from the perspective of the CPCN applicant, the decision to impose greater requirements on individual wind turbines impacting the six residences would be an individual consideration for exceptional or unusual situations, triggering Wis. Stat. PSC 128.02(4). This Court need not decide this issue here; we raise it only to show that the Court likely envisioned complications with due process when it crafted the language of the Decision and Order. The Decision and Order was crafted in these terms for a reason.
Whether for the reasons provided above, or any others, this Court specifically held that any new decision by the Commission would potentially add to the protected residences. Adding no new residences, but properly articulating the rationale, would also have sufficed. Removing the six residences was clearly outside the permissible scope of the Decision and Order.
b.The Commission may not disregard an order that it finds legally erroneous or inherently contradictory.

The Commission is not empowered to correct an inherent contradiction in the Courts Decision and Order. (Ex. B, Final Decision on Remand at 27). The Commission notes that the selection of which residences would receive a more protective standard was not supported by the evidence on the record. Id. It is therefore unclear, asserts the Commission, how the Commission could continue to require Highland to extend the lower noise levels to the six or extend it to others without substantial evidence to support the lower noise limit. Id. Consequently, the Commission decided to reopen the matter in order to obtain sufficient evidence to determine that nobody should receive more protective noise standards. See id.
This is significantly beyond the scope of the reopening ordered by the Court, which specifically limited any reopening solely for the purpose of allowing the parties to state why other sensitive residences, already identified, should be considered. (Decision and Order at 115) (emphasis added). Nevertheless, the Commission opted to pursue this route instead of pursuing the process described in the Order.
First, Petitioner does not share the view that there exists any inherent contradiction in the Decision and Order requiring a sua sponte and extrajudicial correction by the Commission, for the reasons explained above. Second, even if the Decision and Order was based on a manifest error of law, this is not an acceptable reason to disobey the order. A judgment imposes a legal obligation and violating it can subject an individual to contempt proceedings. This is true even if the judgment was entered in error, unless the court lacked jurisdiction to impose the judgment. Tensfeldt, 2009 WI 77 at 37. The person may disagree with the order, but he or she is bound to obey it until relieved therefrom in some legally prescribed way. Monicken, 226 Wis.2d 119 at 125 (Ct. App. 1999).
Consequently, the Commissions determination that the order contained an inherent contradiction is inapposite. The terms of the order were clear, and the Commission did not find the contradiction significant enough to merit an appeal or other legally-cognizable way of rectifying the alleged deficiency. The Commission should not be permitted to circumvent the order in this way, and remedial sanctions are therefore appropriate.
II.The Commission disobeyed the Decision and Order by refusing to hold a hearing on the issue of adopting a percentage compliance standard.

The Decision and Order specifically states that the matter of the percentage-compliance standard is set aside and remanded for the purpose [of] conducting a further hearing on the issue of adopting a percentage compliance standard. (Decision and Order at 114). The Commission responded by concluding as a matter of law that [n]o hearing is required by the Decision and Order or Wis. Stat. 196.39(1) or 227.42 to remove the pre-established 95 percent compliance standard. (Ex. B, Final Decision on Remand at 7) (emphasis added).
The Commission is likely correct that its method resolves the legal deficiency identified by the Court. It is, nevertheless, not what the Court actually ordered. Petitioner raises this matter in order to provide this Court an opportunity to clarify whether this mechanism was within the scope of the Decision and Order. The actions on remand also highlight the lengths to which the Commission went to avoid actually undergoing the relief ordered by the Court. The Commission may argue that it has complied with the Decision and Order, but it will be hard-pressed to argue that its relief bears any reasonable resemblance to the relief fashioned by the Court.
PRAYER FOR RELIEF
For the foregoing reasons, Petitioner respectfully requests this Court set a hearing to decide the issue of remedial nonsummary contempt of court. Petitioner further requests this Court grant the motion upon conducting the hearing and direct the Commission to abide by the terms of the order, as well as any other relief the Court in its discretion sees fit to fashion.

Dated this 9th day of September, 2016.

Respectfully submitted,
LEVINE LYON LLP

____________________________
By:Jeremy B. Lyon, SBN 1094374
Attorney for the Town of Forest
Levine Lyon LLP
14 West Mifflin Street, Suite 206
Madison, WI 53703
(888) 367-8198 (Telephone)
(608) 268-8607 (Facsimile)
jeremy@levinelyon.com