Brandon v. Arkansas Public Service Com'n

Decision Date23 June 1999
Docket NumberNo. CA,CA
Citation992 S.W.2d 834,67 Ark.App. 140
PartiesRobert BRANDON and Carl Brooks, Appellants, v. ARKANSAS PUBLIC SERVICE COMMISSION, Appellee. 97-1177.
CourtArkansas Court of Appeals

The Evans Law Firm, by: Marshall Dale Evans, Fayetteville, for appellants.

Larry E. Crane, Little Rock, for appellee Arkansas Public Service Commission.

Everett & Mars, by: Thomas A. Mars, Fayetteville, for appellee Arkansas Western Gas Company.

JUDITH ROGERS, Judge.

Appellants challenge Order No. 4 entered by the Arkansas Public Service Commission in which the Commission denied their request to act on behalf of other unnamed ratepayers and held that it lacked authority to award their counsel attorneys' fees under the common-fund doctrine. Appellants petitioned for rehearing on these issues, but the Commission denied their petition in Order No. 5.

On December 3, 1993, appellants, Robert Brandon and Carl Brooks, on behalf of themselves and "all ratepayers similarly situated," filed a complaint with the Arkansas Public Service Commission, requesting that it order Arkansas Western Gas Company (AWG) to refund to its Arkansas ratepayers the rates it collected in violation of the "least-cost gas purchasing statute," Arkansas Code Annotated section 23-15-103 (1987). Appellants alleged that, in an order entered in another docket, the Commission had held that the gas price charged by AWG to its customers violated section 23-15-103's requirement to purchase gas from the "lowest or most advantageous market" but that no request for a refund had been made to the Commission. Appellants, who alleged that they had been customers of AWG during the period in question, requested that the Commission make findings of facts and conclusions of law regarding AWG's alleged violations order AWG to make a monetary refund, award appellants the costs of their action pursuant to Arkansas Code Annotated section 23-2-428(b) (1987), and award them their attorneys' fees under the "common fund" doctrine. In response, AWG denied that appellants were entitled to the relief they requested. AWG filed two motions with the Commission. One motion asked the Commission to determine its jurisdiction to award appellants' counsel attorneys' fees under the common-fund doctrine. The other asked the Commission to determine appellants' authority to act on behalf of other ratepayers.

In Order No. 4, the Commission denied appellants permission to act on behalf of other unnamed ratepayers. In doing so, the Commission discussed its authority under Ark.Code Ann. § 23-3-119 (1987), noting that, as a creature of the legislature, it must act within the power conferred upon it by legislative act and that it had held on two prior occasions that it lacked jurisdiction to entertain a class action. The Commission concluded that, although section 23-3-119 gives it authority to adjudicate individual disputes between consumers and the public utilities which serve them, the statute does not give it authority to adjudicate class actions.

We first address appellants' contention that the Commission erred in finding that it lacked authority to hear class actions. In making this determination, the Commission focused on the phrase "individual disputes" used in section 23-3-119(f)(1) and cited its decisions in Bryant v. Southwestern Bell Telephone Co., Docket No. 94-283-C, Order No. 2, and Latin v. Southwestern Bell Telephone Co., 126 PUR 4th 302, 1991 WL 501895 (Ark.P.S.C.1991). Appellants contend, however, that the Commission has always had jurisdiction over complaints between ratepayers and regulated utilities, which includes the authority to decide disputes of a class nature, and that the passage of section 23-3-119 expanded the Commission's jurisdiction to include individual disputes between consumers and utilities and did not limit its existing authority.

The first rule in considering the meaning of a statute is to construe it just as it reads, giving words their ordinary and usually accepted meaning in common language. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994). Section 23-3-119 is part of Act 758 of 1985 that was passed by the legislature to expand the jurisdiction of the Commission. Section 23-3-119(f) provides:

(f)(1) It is the specific intent of the General Assembly in enacting the 1985 amendment to this section to vest in the Arkansas Public Service Commission the authority to adjudicate individual disputes between consumers and the public utilities which serve them when those disputes involve public rights which the commission is charged by law to administer.

(2) Public rights which the commission may adjudicate are those arising from the public utility statutes enacted by the General Assembly and the lawful rules, regulations, and orders entered by the commission in the execution of the statutes. The commission's jurisdiction to adjudicate public rights does not and cannot, however, extend to disputes in which the right asserted is a private right found in the common law of contracts, torts, or property.

(3) The commission's quasi-judicial jurisdiction to adjudicate public rights and claims in individual cases is in addition to the commission's traditional legislative authority to act generally and prospectively in the interest of the public. The quasi-judicial commission authority recognized in this section is a legitimate function and does not, in the judgment of the General Assembly, constitute an unlawful delegation of judicial authority under either the Arkansas Constitution or the United States Constitution.

In its decision in Latin v. Southwestern Bell Telephone Company, supra, the Commission acknowledged that the language of section 23-3-119 was unclear and that various words or phrases used in section 23-3-119 support a legislative intent either to authorize or to preclude class actions before the Commission. When a statute is ambiguous, the court must give effect to the legislative intent. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). To determine the intent of the legislature, the court must look to the whole act and, as far as practicable, give effect to every part, reconciling provisions to make them consistent, harmonious, and sensible. Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993). The language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject are used by the court in an attempt to construe legislative intent. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). While the title of an act is not part of the law, it may be referred to in order to help ascertain the intent of the General Assembly. Routh Wrecker Serv., Inc. v. Wins, 312 Ark. 123, 847 S.W.2d 707 (1993).

The title of Act 758, which is codified at section 23-3-119, describes the legislative purpose behind the Act:

AN ACT to Amend Section 17 of Act 324 of 1935, as Amended, [Ark. Stats. 73-216] to Confer upon the Arkansas Public Service Commission Authority to Hear Complaints Brought by any Consumer(s), or Representative thereof, of an Arkansas Public Utility Against Said Utility; to Conduct Public Hearings and Make Determinations Regarding Alleged Violations of any Law or Regulation Administered Under the Jurisdiction of the Commission; to Mandate Refunds or Other Relief to an Injured Party as Deemed Appropriate by the Commission; and for Other Purposes.

The emergency clause further provides:

It is hereby found and determined by the General Assembly that the authority of the Public Service Commission to enforce the laws which it is charged to administer has been interpreted on occasion not to include quasi-judicial authority to vindicate public rights. This interpretation has resulted in delay of justice in the courts, and may as a practical matter have denied justice to ratepayers and utilities....

Act 758 clearly demonstrates a legislative intent to place primary jurisdiction over consumer disputes in the Commission, see Ozarks Electric Cooperative Corporation v. Harrelson, 301 Ark. 123, 782 S.W.2d 570 (1990), and we disagree that the use of the word "individual" in section 23-3-119(f) was intended by the legislature to deny the Commission the authority to hear consumer disputes brought in a representative capacity. Although a statute should be construed so that no word is void, superfluous, or insignificant, and meaning and effect must be given to every word contain therein, if possible, see Locke v. Cook, 245 Ark. 787, 434 S.W.2d 598 (1968), we will not interpret a statute so strictly as to reach an absurd conclusion that is contrary to legislative intent. Jackson v. State, 336 Ark. 530, 986 S.W.2d 405 (1999).

We conclude that section 23-3-119 does not prevent the Commission from hearing class actions. We now must ascertain whether the authority to hear class actions is included within the Commission's "traditional legislative authority to act generally and prospectively in the interest of the public." Ark.Code Ann. § 23-2-301 (1987). The issue of whether the Commission has been granted authority to hear class actions has never been directly addressed by the legislature or the Arkansas appellate courts; however, several supreme court decisions have held that the Commission is the proper forum for actions brought by a class.

In General Telephone Co. of the Southwest v. Lowe, 263 Ark. 727, 569 S.W.2d 71 (1978), the appellee brought a class suit in the Miller County Chancery Court to enjoin the enforcement of a rate increase in Texarkana, Arkansas. The chancellor enjoined the rate increase, but on appeal, the supreme court held that the chancellor erred in deciding the case on its merits. The supreme court held that the appellee had a complete remedy by application to the commission:

A court of equity does not have concurrent jurisdiction with the Public Service...

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  • Austin v. Centerpoint Energy Arkla
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    ...in the PSC. See Ozarks Electric Cooperative Corp. v. Harrelson, 301 Ark. 123, 782 S.W.2d 570 (1990); Brandon v. Arkansas Pub. Serv. Comm'n, 67 Ark.App. 140, 992 S.W.2d 834 (1999). In addition, the PSC is a creature of the legislature and must act within the power conferred on it by legislat......
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