CITIZENS'UTILITY BD. v. PUBLIC SERVICE COM'N,
| Decision Date | 23 September 2003 |
| Docket Number | No. 02-1834,,02-1834, |
| Citation | 2003 WI App 206,267 Wis.2d 414,671 N.W.2d 11 |
| Parties | CITIZENS' UTILITY BOARD (CUB), James Hannemann, David Hannemann, Bill and Fern Rowney, Sandy Lyon and Russel Decker, Petitioners, SAVE OUR UNIQUE LANDS (SOUL) and Wisconsin's Environmental Decade (WED), Appellants, Thomas and Margaret KREAGER, David and Lisa Graves, Raymond and Helena Jiskra, Marie Krenzelok, Bert Robertson, Marshall Robinson, Edward and Tamara Nichols, Roger and Maria Svoma, Gerald and Sally Bargender, Donald and Gladys Bauman, Bill Bonsall, Lowell Borchardt, Dennis and Sandy Cihlar, Allan and Peggy Cihlar, Bill and Nancy Dittman, Jeff and Tammy Fischer, Phil Hackel, Chester and Irene Hoffman, Henry and Marsha Imhoff, James Knauf, Neal Koepke, Jerry and Julie Kurth, Steve Soczka, Francis Steiber, Joel and Marcia Stencil, Ernie and Evelyn Walters, Lawrence and Joan Wirkus, Dale Pilgrim, Lawrence Svanda, June Svanda, Fred Svanda, Michael and Lynette Weis, Franke and Connie Wirkus, Timothy and Zoe Miller, Paul Meyer, Margaret and Claude Buchberger, Rick Magyar and Cynthia Haag, Intervenors-Appellants, v. PUBLIC SERVICE COMMISSION OF WISCONSIN and Wisconsin Public Service Corporation, Respondents-Respondents, AMERICAN TRANSMISSION COMPANY LLC and ATC Management Inc. (collectively ATC), Municipal Electric Utilities of Wisconsin, Federation of Cooperatives, Dairyland Power Cooperative, Minnesota Power, Wisconsin Paper Council, and Wisconsin Merchants Federation, Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the appellants, the cause was submitted on the briefs of Pamela R. McGillivray, Glenn M. Stoddard and Edward R. Garvey and Garvey & Stoddard, S.C.; and Frank Jablonski and Porter, Jablonski & Associates S.C. of Madison.
On behalf of the respondents-respondents, the cause was submitted on the brief of Robert J. Mussallem, of Public Service Commission of Wisconsin of Madison.
On behalf of respondents, there was a brief by Trevor J. Will, Bartholomew F. Reuter and Foley & Lardner of Milwaukee for Wisconsin Public Service Commission; Deborah A. Amberg, Steven W. Tyacke of Duluth, MN, for Minnesota Power Company; and David J. Hanson, Lauren L. Azar and Michael, Best & Friedrich LLP of Madison for American Transmission Company LLC and ATC Management Inc.
On behalf of respondents, there was a brief by Anita T. Gallucci and Boardman, Suhr, Curry & Field, LLP of Madison for Municipal Electric Utilities of Wisconsin; Warren J. Day of Madison for Wisconsin Federation of Cooperatives; and Rebecca A. Schmidt of Madison for Wisconsin Merchants Federation.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶ 1.
Save Our Unique Lands (SOUL) and Wisconsin's Environmental Decade (WED) were parties before the Public Service Commission of Wisconsin (PSC), an administrative agency, along with Citizens' Utility Board (CUB) when the PSC approved the placement of the Arrowhead-Weston power line.1 CUB, SOUL, and WED each petitioned for judicial review of the PSC's decision. Wisconsin Public Service Corporation (WPS) moved to dismiss SOUL's and WED's petitions for improper service. SOUL and WED then filed a conditional motion for intervention in CUB's case, contingent upon the court granting WPS's motion. The court dismissed the two parties' petitions for judicial review and then denied the motion for intervention, calling it an attempt to circumvent the statutory requirements and deeming it untimely. We agree with the trial court's conclusion and therefore affirm the order.
¶ 2. The Arrowhead-Weston power line is a proposed 345 kilovolt high voltage transmission line that would supply electricity to parts of Wisconsin. It would originate in Duluth, Minnesota, and crosses a large part of Wisconsin to terminate near Weston in Marathon County. WPS would own the line. CUB, SOUL, and WED objected to the line before the PSC, citing various environmental and aesthetic concerns. Nonetheless, the PSC approved placement of the line on October 30, 2001.
¶ 3. On November 29, 2001, the last day to file petitions for judicial review, CUB, SOUL, and WED each filed their petitions for review. Each petition was assigned a different case number and, although they were assigned to the same judge for coordination, they were never consolidated.
¶ 4. On January 9, 2002, WPS filed a motion to dismiss SOUL's and WED's petitions for improper service. On January 11, the trial court notified CUB, SOUL, and WED that it would hear any intervention petitions on March 25. On January 17, the trial court sent notice that it would also hear WPS's motion on March 25.
¶ 5. On March 22, SOUL and WED filed a motion to intervene, contingent upon the trial court's dismissal of their petitions for review and for the purpose of resurrecting the seventeen issues in their petitions for review. Sixteen of those issues had not been raised by CUB. WPS objected.
¶ 6. At the March 25 hearing, the trial court granted WPS's motion to dismiss for lack of subject matter jurisdiction. It did not, however, discuss the petitions for intervention but instead adjourned the hearing to accommodate a briefing schedule. On April 8, SOUL and WED filed an amended motion to intervene. On June 5, the court denied SOUL and WED's motion for intervention. It concluded that they failed to comply with the procedural requirements for filing their own petitions for review and the time for joining CUB's petition had passed, resulting in a forfeiture of any right to intervene. The court also concluded that in any event, the petition for intervention was untimely under Wis. STAT. § 227.53(1)(d).2 SOUL and WED appeal. We affirm the order.3
[1-3]
¶ 7. We are not asked to review the administrative agency decision underlying this case. Instead, the question is whether the trial court properly denied SOUL and WED's petition for intervention. Whether to allow intervention is a discretionary decision for the trial court. Town of Delevan v. City of Delevan, 160 Wis. 2d 403, 415, 466 N.W.2d 227 (Ct. App. 1991). Normally, a trial court considers whether the potential intervenor has standing and whether that intervenor's interests are already adequately represented by another party. Id. However, SOUL and WED allege the trial court misinterpreted the statute in reaching its decision. A discretionary decision based on an error of law is an erroneous exercise of that discretion. State v. Gesch, 167 Wis. 2d 660, 666, 482 N.W.2d 99 (1992).
[4-9]
¶ 8. Construction of a statute is a question of law that we review de novo. State v. Dean, 163 Wis. 2d 503, 510, 471 N.W.2d 310 (Ct. App. 1991). When we interpret a statute, our purpose is to ascertain legislative intent and give it effect. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). The primary source for the statute's construction is the statutory language itself. Dean, 163 Wis. 2d at 510. If the language is unambiguous, we arrive at the intention of the legislature by giving the language its ordinary and accepted meaning. Id. Moreover, although a word or a phrase may seem ambiguous standing alone, the context of the word or phrase may eliminate the ambiguity. State v. Johnson, 171 Wis. 2d 175, 181, 491 N.W.2d 110 (Ct. App. 1992). Under noscitur a sociis, ordinarily the coupling of words denotes an intention that they be understood in the same general sense. Id. That is, a word "is known from its associates." Id. (citation omitted).
¶ 9. Under WIS. STAT. § 227.53(1), any person aggrieved by an administrative agency decision "shall be entitled to judicial review."4 The petition must be filed and served within thirty days of service of the agency's decision. Wis. STAT. § 227.53(1)(a)2. The petition must be served on all parties to the agency decision, especially when the agency decision specifically lists parties "for purposes of review"; § 227.53(1)(c) prohibits the court from dismissing a proceeding for review solely because of lack of service "unless the petitioner fails to serve a person listed as a party for purposes of review . . . ." These parties to the agency proceedings have the right to participate in the judicial review proceedings. Wis. STAT. § 227.53(1)(d). Participation of other parties is a discretionary decision for the trial court. Id. If a party served with a petition for review wishes to exercise its right to participate in the review, it must serve a notice of appearance stating its position on each allegation in the petition for review as well as an opinion as to whether the agency's decision should affirmed, modified, or vacated. Wis. STAT. § 227.53.
¶ 10. SOUL and WED thus had two statutory options for obtaining judicial review of the PSC's decision approving the Arrowhead-Weston line. First, they had the right to file a petition for review, which each did. However, they failed to comply with the service requirements, depriving the trial court of jurisdiction.5 Second, SOUL and WED could have filed a notice of appearance in CUB's petition for review. The record is not clear why they did not, although we suspect two reasons: SOUL and WED likely expected to proceed on their own petitions, and CUB's petition raised only one issue compared to SOUL and WED's seventeen.
¶ 11. The trial court concluded first that SOUL and WED were attempting to circumvent their own ineffective petitions for review. SOUL and WED, however, contend they are "Any person petitioning the court to intervene" under Wis. STAT. § 227.53(1)(d) and their petition should have been granted. We disagree.
¶ 12. WISCONSIN STAT. § 227.53(1)(d) starts by granting "the agency and all parties to the proceeding before it" the right to participate in judicial review proceedings filed by other individuals. The next sentence, however, gives the court discretion to allow "other interested persons to intervene" in the judicial review. Because the prior...
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