O'Bryant v. Public Utilities Com'n of State of Colo.
| Decision Date | 17 July 1989 |
| Docket Number | No. 87SA423,87SA423 |
| Citation | 778 P.2d 648 |
| Parties | Larry D. O'BRYANT, Petitioner, v. The PUBLIC UTILITIES COMMISSION of the STATE OF COLORADO; Commissioners Ronald L. Lehr, Edythe S. Miller, and Andra Schmidt; and Mountain States Telephone and Telegraph Company, Respondents. |
| Court | Colorado Supreme Court |
Hill & Robbins, P.C., Robert F. Hill, Karen A. Tomb and Ronald L. Wilcox, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Mark W. Gerganoff, Asst. Atty. Gen., Denver, for the Public Utilities Commission of the State of Colo., Commissioners Ronald L. Lehr, Edythe S. Miller and Andra Schmidt.
Sherman & Howard, Steven H. Denman and Lily D. Appelman, Denver, for Mountain States Tel. and Tel. Co.
The question in this case is whether the Colorado Public Utilities Commission, after rendering a decision on a dispute between a public utility and the public utility's customer and during the pendency of a judicial review proceeding filed by the public utility in which the commission and the customer have been named as respondents, may effectuate a settlement of the case with the public utility in a manner that modifies the prior decision of the Public Utilities Commission and, by entering into the settlement agreement, obtain the dismissal of the application for judicial review of the prior decision despite objections from the customer of the public utility. In approving the settlement agreement and granting the motion to dismiss the public utility's application for judicial review, the district court concluded that, notwithstanding the customer's nonparticipation in the settlement agreement, the agreement was fair and did not prejudice the public utility or the customer. We reverse the judgment and remand for further proceedings.
During 1984 Larry D. O'Bryant received local telephone service from Mountain States Telephone and Telegraph Company (Mountain Bell) and long distance service from AT & T Communications of the Mountain States, Inc. (AT & T Communications). Because Mountain Bell and AT & T Communications had entered into a private contract which authorized Mountain Bell to collect from its customer the long distance charges of AT & T Communications, O'Bryant would receive one monthly bill from Mountain Bell which included his AT & T Communications charges. In May 1984 O'Bryant received his monthly bill from Mountain Bell for $165.48, of which $24.18 was for Mountain Bell's local charges and $141.30 was for AT & T Communications' long distance charges. O'Bryant was unable to pay the entire bill, so on May 10, 1984, he remitted payment of $24.18 to Mountain Bell for local charges and noted on the bill that he would pay later the long distance charges of AT & T Communications. On May 18, 1984, Mountain Bell informed O'Bryant by written notice that unless he paid the remainder of his May bill, Mountain Bell would disconnect his local service. O'Bryant failed to pay the remainder of his bill, and on May 30, 1984, Mountain Bell disconnected O'Bryant's local service.
On July 11, 1984, O'Bryant filed a pro se complaint with the Public Utilities Commission (PUC or commission) pursuant to section 40-6-108(1)(a), 17 C.R.S. (1984), 1 and based on the then existing Rule 13(b) of the Rules Regulating the Service of Telephone Utilities (hereinafter referred to as Rule 13(b)), which stated that "[s]ervice shall not be discontinued or refused for failure to pay any indebtedness except as incurred for utility service rendered by the utility in the State of Colorado." 2 O'Bryant alleged in his complaint that Rule 13(b) prohibited Mountain Bell from disconnecting its service to him for nonpayment of the long distance service charges of AT & T Communications and, further, that since he paid his local charges for the month of May, Mountain Bell violated Rule 13(b) by disconnecting his local service. O'Bryant in his complaint requested that his telephone be reconnected, that Mountain Bell not be permitted to require a security deposit before reconnection, and that the PUC order any further relief as may be appropriate.
Pending a hearing on O'Bryant's complaint, the PUC ordered Mountain Bell to reconnect O'Bryant's local telephone service without payment of a security deposit. O'Bryant paid the remainder of his May 1984 bill on August 15, 1984, and a few days thereafter Mountain Bell reconnected his local telephone service. Following the PUC order, Mountain Bell filed a motion to dismiss O'Bryant's complaint as moot because O'Bryant had paid his outstanding long distance charges and Mountain Bell had reconnected his local service. The PUC denied the motion on the basis that there still existed the issue of Mountain Bell's alleged violation of Rule 13(b).
AT & T Communications petitioned to intervene in the proceeding and was permitted to do so. O'Bryant, who was now represented by counsel, and Mountain Bell and intervenor AT & T Communications filed a stipulation of facts with the PUC, and all the parties thereafter submitted motions for summary judgment. In October 1985 a hearing examiner issued a recommended decision pursuant to section 40-6-109(2), 17 C.R.S. (1984). 3 In the recommended decision, the hearing examiner noted that Rule 13(b) had been in existence for over a decade, that Mountain Bell and AT & T Communications had not sought permission from the PUC to deviate from the rule but rather had attempted to evade the rule by entering into a confidential contract, and that the PUC could not permit Mountain Bell and AT & T Communications to "simply ignore the rule." 4 The hearing examiner entered a recommended order requiring Mountain Bell to immediately cease from disconnecting any of its customers for failure to pay any charges except for services rendered by Mountain Bell and to restore service to customers currently disconnected for failure to pay for other telephone service.
Mountain Bell and AT & T Communications filed joint exceptions to the recommended decision on several grounds, including the following: that the recommended decision was contrary to law, because Rule 13(b) was promulgated in 1973 before the divestiture of the Bell System and was not intended to prohibit Mountain Bell's disconnection of O'Bryant's local service under the circumstances of this case; that the hearing examiner's recommended decision improperly expanded O'Bryant's complaint into a class action; and that the hearing examiner's decision contained findings unsupported by the record. In responding to the exceptions O'Bryant argued, inter alia, that the hearing officer's recommended decision did not enlarge the complaint into a class action, since the complaint was directed to a particular practice, i.e., disconnection of local service, and that statewide relief from such practice was mandated by virtue of the PUC's statutory responsibility to regulate utility service. The PUC denied the exceptions of Mountain Bell and AT & T Communications, stating in its order that it was "fully persuaded by the factual and legal arguments set forth in Mr. O' Bryant's response to the joint exceptions" and that O'Bryant's response was "fully dispositive of the various matters raised in the joint exceptions," and then adopted the hearing examiner's recommended decision as its own.
Mountain Bell and AT & T Communications filed applications for rehearings, which were denied. On March 21, 1986, Mountain Bell, pursuant to section 40-6-115, 17 C.R.S. (1984), filed an application for a writ of certiorari or review in the Denver District Court. 5 Named as respondents in the complaint were O'Bryant, the PUC, and individual members of the PUC. Mountain Bell's complaint alleged that the PUC had improperly resolved O'Bryant's complaint by summary judgment, that the PUC had misapprehended the purpose of Rule 13(b), that the PUC's application of Rule 13(b) constituted an ex post facto application of the rule, that the PUC decision violated Mountain Bell's right to due process of law and equal protection of the laws, that the PUC improperly expanded O'Bryant's complaint into a class action, and that the PUC decision was contrary to law and was unsupported by the record. The district court issued a writ of certiorari or review requiring the PUC to certify and file the record in court on or before April 21, 1986. The PUC filed an entry of appearance in the case, and O'Bryant filed an answer in which he sought a dismissal of the complaint with prejudice, attorney fees and costs, and other relief.
Mountain Bell and the PUC filed a "Joint Motion to Dismiss" Mountain Bell's complaint for judicial review on the basis that Mountain Bell and the PUC had settled all contested matters. Attached to the joint motion to dismiss was a settlement agreement that contained the following relevant provisions: (1) a stipulation that the PUC decision requiring Mountain Bell to cease disconnecting its customers for failure to pay charges, except for services furnished by Mountain Bell, was rendered moot by an amended Rule 13 which would allow Mountain Bell to disconnect its service for failure to pay the long distance charges of AT & T Communications; (2) a stipulation that the portion of the PUC order requiring Mountain Bell to immediately restore service to customers whose telephones were disconnected in violation of Rule 13(b) be modified in such a manner as to require reconnection only upon the customer's request; (3) a stipulation that the PUC specifically agreed that its prior decision was not a finding by the PUC that Mountain Bell had willfully or intentionally violated the provisions of Rule 13(b).
O'Bryant, who was not a party to the settlement agreement, objected to the motion to dismiss and asserted that the PUC was without authority to enter into the agreement or to modify...
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