For our call set for 3 pm CDT
-----Original Message-----
From: Ed Duncan [mailto:EDuncan2@ArterHadden.com]
Sent: Thursday, September 06, 2001 7:03 PM
To: smara@enron.com
Cc: douglass@energyattorney.com
Subject: Direct Access Petition


Attached please find the draft Petition for Writ of Review before the California Supreme Court.  We are currently working on the Memorandum of Points and Authorities and anticipate sending a draft sometime tomorrow morning.  The Petition is based on the assumption that the Commission will adopt an order with retroactive application.  If the Commissions issues an Order consistent with the draft Interim Decision published today, then retroactivity will not be an issue and there wll be no need to seek judicial relief (at least on that ground). 
 
Enron Energy Services, Inc., is named as the Petitioner.  I am uncertain, however, whether this is the correct name or entity.
 
The Petition must be filed in the Supreme Court because the Legislature conferred exclusive and original jurisdiction on it when Public Utilities Code section 1768 was enacted.  The Petition does not  address the timeliness of the request for Supreme Court review.  Generally, all administrative remedies must be exhausted before a Petition is timely and Section 1768 appears to require that an application for rehearing be denied before a Petition can be filed.  Since there will undoubtedly be an argument that the Petition is premature because there has been no application for a rehearing, the Points and Authorities (and probably the Petition) will discuss the timeliness of the Petition.  The exceptions to the exhaustion doctrine should control making the Petition timely.
 
Dan Douglass and I will be available for your 1 p.m. conference call.  If you need to reach me at any time my office number is (818) 596-2291, my cell number is (805) 796-2198, and my Email address is eduncan2@arterhadden.com <mailto:eduncan2@arterhadden.com>.  EWD