Atlanta Gas Light Co. v. Georgia Public Service Com'n

• Decision Date: 17 March 1994
• Docket Number: No. A93A1892,A93A1892
• Citation: 212 Ga.App. 575,442 S.E.2d 860
• Parties: , Util. L. Rep. P 26,401 ATLANTA GAS LIGHT COMPANY v. GEORGIA PUBLIC SERVICE COMMISSION et al.
• Court: Georgia Court of Appeals

Page 860

442 S.E.2d 860

212 Ga.App. 575, Util. L. Rep. P 26,401

ATLANTA GAS LIGHT COMPANY v. GEORGIA PUBLIC SERVICE COMMISSION et al.

No. A93A1892.

Court of Appeals of Georgia.

March 17, 1994.

Reconsideration Denied March 28, 1994.

Certiorari Denied May 13, 1994.

Long, Aldridge & Norman, Albert G. Norman, Jr., Gordon D. Giffin, L. Craig Dowdy, Atlanta, for appellant.

Michael J. Bowers, Atty. Gen., Beverly B. Martin, Sr. Asst. Atty. Gen., David I. Adelman, Roger M. Siegel, Asst. Attys. Gen., Troutman Sanders, Douglas L. Miller, Hugh M. Davenport, Nancy G. Gibson, Atlanta, for appellees.

BEASLEY, Presiding Judge.

Atlanta Gas Light Company (the Company) appeals pursuant to OCGA § 50-13-20 of the Administrative Procedure Act, from an order affirming a final administrative decision of the Georgia Public Service Commission (PSC) under OCGA § 50-13-19. Although this is an appeal from a judicial review of an administrative agency, which in most instances must follow the application procedure, OCGA § 5-6-35(a)(1) permits direct appeals with respect to decisions of the PSC.

On May 31, 1991, the Company initiated a rate-change proceeding under OCGA § 46-2-25(a), by filing new schedules with the PSC increasing the Company's rates and charges for gas service. The annual increase of $35,680,000 in gross revenues would begin July 1, 1991. On June 11, the PSC suspended the operation of the proposed new rate schedules for a period of five months, as authorized under OCGA § 46-2-25(b), and scheduled hearings. Appearances were entered on behalf of the Company and various intervenors, including Georgia Power Company. It opposed the Company's rate filing and has remained a party through the administrative and appeal proceedings.

At the conclusion of the administrative hearings, the PSC authorized the Company to increase its rates to produce additional annual revenue of $4,921,000. It also suspended the Company's annual capacity charge applicable when a gas furnace is used as a backup heat source to a heat pump or other heating source. A second detailed order followed in which the PSC explained its earlier rulings and entered additional findings and conclusions. Petitions for rehearing from both orders were denied. This rendered moot the Company's appeal to this court from the superior court's affirmance of the PSC's decision in a 1990 proceeding which reduced the annual capacity charge. Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 206 Ga.App. 315, 425 S.E.2d 340 (1992). The reason was that the 1991 suspension of the annual capacity charge altogether meant that even if this court had reversed the superior court, the Company could not have enforced the right insisted on, i.e., an increased annual capacity charge. Id. at 317, 425 S.E.2d 340.

As to the 1991 proceeding, the superior court affirmed the PSC's orders on review.

The Company originally filed its appeal from the affirmance in the Supreme Court, claiming that construction of the Constitution of Georgia and of the Constitution of the United States were involved, so as to give it jurisdiction under 1983 Ga. Const. Art. VI, Sec. VI, Par. II(1). That Court transferred the case to this court because, according to its order, "this appeal raises issues only of the application of constitutional principles ... See Woodside v. City of Atlanta, 214 Ga. 75, 76-77(1) (103 SE2d 108) (1958)."

1. In its second enumeration of error, the Company challenges the "any evidence" standard of review applied by the superior court, asserting that a more judicially expansive "substantial evidence" standard is required instead, for the performance of the task assigned to the courts in OCGA § 50-13-19(h)(5).

The first problem with this claim of error is that the question was not raised and ruled on in the superior court. At least, we cannot find it in the record, and appellant has not "set( ) forth the method by which each enumeration of error was preserved for consideration," as required by Rule 15(a)(1). It is true that the superior court in the order appealed from recites that where, as here, the appeal from the agency is on the ground that the agency decision was "clearly erroneous," OCGA § 50-13-19(h)(5), the "any evidence" standard applies. However, this was merely a statement in the court's fully explanatory order referencing the standard it used; it was not a ruling on an issue raised as to what standard subsection (h)(5) required. If appellant sought the use of a different standard by the superior court than had been established and continued in controlling cases, see, e.g., Lasseter v. Ga. Pub. Svc. Comm., 253 Ga. 227, 231(3), 319 S.E.2d 824 (1984), it was incumbent on appellant to seize the opportunity below to insist on the application of the different standard. As a court of review, this court does not decide questions which were not raised and ruled on and preserved in the record below. Cole v. State, 211 Ga.App. 236, 237-238, 438 S.E.2d 694 (1993).

Even if this procedural hurdle were cleared, there is another, and that is the problem of mootness. We are dealing with a 1991 rate proceeding, and it is not contested that since then there has been a 1992 proceeding and PSC decision. ¹ Any error of the superior court in affirming the PSC on the issues preserved for our review could not be corrected by a reversal. The rates superseded by the 1992 PSC decision could not now be revised; the Company could not go back and recompute the rates charged in accordance with the 1991 PSC order. So it would be an exercise in futility for the superior court to reconsider the evidence under a "substantial evidence" test, which is the remedy the Company seeks from this court.

That, however, would not necessarily close the door to review of this question of the proper standard of review. As repeated in Atlanta Gas Light Co., supra 206 Ga.App. at 317, 425 S.E.2d 340, " 'There is ... an exception to the mootness doctrine with respect to an issue of a recurring nature, of general public interest and importance, and which will evade appellate review unless the court exercises its discretionary jurisdiction.' " See also Chastain v. Baker, 255 Ga. 432, 339 S.E.2d 241 (1986). Obviously, the correct standard must be known, as it is called into service every time there is a review under that subsection, from any agency covered by the Administrative Procedure Act. This issue, the construction of OCGA § 50-13-19(h)(5) with respect to the scope of judicial review of evidence underlying an administrative decision, is just such an issue for this appellant. As the Company pointed out at oral argument, it should not have to sacrifice its right to seek a "just and reasonable" rate change under OCGA § 46-2-25, which it believes necessary to avoid a deteriorating financial condition, in order to preserve for ultimate appellate review the issue of the correct standard of review contemplated in the APA. However, the issue is not one which inherently would evade review, because mootness would not occur in the cases of most appellants who are challenging administrative agency decisions. See, e.g., the myriad of workers' compensation cases.

Even if we consider this question as an exception to the bar of mootness, there is yet another hurdle which the appellant cannot clear, before a review of the merits of the issue could be considered, and it is a formidable one. That is, we are bound by the decisions of the Supreme Court of Georgia. 1983 Ga. Const. Art. VI, Sec. VI, Par. VI.

The Company acknowledges the Supreme Court's application of an "any evidence" standard to administrative decisions in Hall v. Ault, 240 Ga. 585, 242 S.E.2d 101 (1978), "leaving only a determination of whether the facts found by the board are supported by 'any evidence.' " Id. at 586, 242 S.E.2d 101. ²

Not to be deterred, the Company urges that this authority is no longer controlling, due to changes in the 1983 Georgia Constitution which designates our appellate courts as "court[s] of review." See Art. VI, Sec. VI, Par. II, for the Supreme Court, and Art. VI, Sec. V, Par. III, for the Court of Appeals. When Hall v. Ault was decided, the 1976 Constitution was in effect. It provided in Art. VI, Sec. II, Pars. IV and VIII, that the appellate courts shall be courts "for the trial and correction of errors of law." ³

This argument of the Company faces two obstacles. First, the Supreme Court has continued to apply the "any evidence" standard to the superior court's review of administrative decisions, notwithstanding the changes in the Constitution. See Emory Univ. v. Levitas, 260 Ga. 894, 898, 401 S.E.2d 691 (1991), in which the Court held that the "any evidence" standard applies to the superior court's review of decisions of a local administrative agency or local governing body. It reiterated that "OCGA § 50-13-19(h)(5) only permits a superior court to apply an any-evidence standard of review to a state administrative agency's decision." See also Ga. State Indemnification Comm. v. Lyons, 256 Ga. 311, 312, 348 S.E.2d 642 (1986). We, too, have continued its use despite a challenge. Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga.App. 572, 579(5), 396 S.E.2d 562 (1990). We recognize that this particular argument has not been addressed in the post-1983 decisions. There is authority for considering the issue as open. As repeated in Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89(1), 114 S.E.2d 529 (1960): " ' "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." ' [Cits.]" We have recently applied this principle, which is related to constitutional authority (as to Supreme Court rulings) as well as to the judicial decision-making process (as to prior Court of Appeals rulings) in Union Camp Corp. v. Southern Bulk Indus., 193 Ga.App. 90, 92, 386 S.E.2d 866 (1989), aff'd, 259 Ga. 828, 388 S.E.2d 524 (1990). There...