Gen. Marine Constr. Corp. v. Pub. Utilities Comm'n

• Decision Date: 31 March 2022
• Docket Number: Docket: PUC-20-198
• Citation: 271 A.3d 1166,2022 ME 20
• Parties: GENERAL MARINE CONSTRUCTION CORPORATION et al. v. PUBLIC UTILITIES COMMISSION
• Court: Maine Supreme Court

271 A.3d 1166

2022 ME 20

GENERAL MARINE CONSTRUCTION CORPORATION et al.

v.PUBLIC UTILITIES COMMISSION

Docket: PUC-20-198

Supreme Judicial Court of Maine.

Argued: June 2, 2021

Reargued: December 8, 2021

Decided: March 31, 2022

Edward S. MacColl, Esq. (orally), and Marshall J. Tinkle, Esq., Thompson, MacColl & Bass, LLC, P.A., Portland, for appellant General Marine Construction Corporation et al.

Leslie Raber, Esq. (orally), Mitchell Tannenbaum, Esq., Jordan McColman, Esq., and Amy Mills, Esq., Public Utilities Commission, Augusta, for appellee Maine Public Utilities Commission

Joseph G. Donahue, Esq. (orally), Preti Flaherty Beliveau & Pachios, LLP, Augusta, and Donna M. Katsiaficas, Esq., Portland Water District, Portland, for appellee Portland Water District

Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

Majority: STANFILL, C.J., and MEAD, GORMAN, and JABAR, JJ.

Dissent: CONNORS, HUMPHREY, and HORTON, JJ.

MEAD, J.

[¶1] General Marine Construction Corporation (General Marine) and its principals, Roger and Dorothy Hale, appeal from an order of the Public Utilities Commission (PUC) declining to open a formal investigation into a water bill issued to General Marine by the Portland Water District (PWD). Because the Commission's action was not an adjudication on the merits of General Marine's challenge to the bill but rather a decision not to proceed to a formal adjudicatory action, see 35-A M.R.S. § 1303(2) (2021),¹ General Marine's appeal is not taken "from a final decision of the commission" pursuant to 35-A M.R.S. § 1320(1) (2021). For that reason, we dismiss the appeal.

I. FACTS AND PROCEDURE

[¶2] General Marine owns Deakes Wharf on Commercial Street in Portland. Of the four buildings on the wharf, two are provided with metered water service by the PWD and a third has no water service. The water service provided to the remaining building, known as Building #4, is the subject of this appeal.

[¶3] In June 2018, the PWD issued General Marine a $15,803.70 "make-up bill" for unauthorized and unbilled water usage in Building #4 occurring during the previous six-year period, as provided by Chapter 660, § 8(E)(1)(a) of the Commission's Rules (entitled "Consumer Protection Standards for Water Utilities"). 65-407 C.M.R. ch. 660, § 8(E)(1)(a) (effective Aug. 28, 2011).² General Marine challenged the bill by filing a complaint with the Commission's Consumer Assistance and Safety Division (CASD).³ PUC § 13(G). A Senior Consumer Assistance Specialist in the CASD conducted an informal investigation pursuant to PUC § 13(G)(2)⁴ and sent General Marine a letter advising it of her conclusion that the PWD had complied with PUC rules in issuing the make-up bill. See 35-A M.R.S. § 1303(1)(A), (C) (2021) ; PUC § 13(G)(4)(d).

[¶4] General Marine appealed the CASD decision to the Commission, which reviewed the decision, upheld it, and declined to investigate the matter further. Gen. Marine Constr. Corp. , Appeal of CASD Decision, No. 2019-00293, Order (Me. P.U.C. May 27, 2020); see PUC § 13(H). The Commission denied General Marine's request for reconsideration, Gen. Marine Constr. Corp. , Request For Reconsideration, No. 2019-00293, Order (Me. P.U.C. July 7, 2020), and General Marine appealed to us, see 35-A M.R.S. § 1320(1).

II. DISCUSSION

[¶5] The central question that must be answered in resolving General Marine's appeal is whether the CASD process is a voluntary, informal dispute resolution alternative to formal civil litigation, as the Commission contends and as its rules specify, see PUC § 13(G)(2), or whether it results in an adjudicatory, binding decision of the Commission and therefore requires due process akin to a formal court proceeding, as General Marine contends.⁵ We agree with the Commission's view of the process that it created and administers pursuant to statute.

A. Statutory and Regulatory Framework

[¶6] In explaining our conclusion, we discuss the statutes and Commission rules that govern General Marine's challenge to its water bill. Viewed as a whole, they establish a comprehensive and coherent process for the informal resolution of utility billing disputes as a voluntary alternative to formal civil litigation. The Legislature has given the Commission broad authority to enact rules within its sphere of authority. See 35-A M.R.S. § 104 (2021) ("The commission has all implied and inherent powers under [Title 35-A], which are necessary and proper to execute faithfully its express powers and functions specified in this Title."); see also 35-A M.R.S. § 1301 (2021) ("Substantial compliance by the commission with the requirements of [Title 35-A] gives effect to all the commission's rules, orders and acts."). Acting pursuant to statutory authority, the process created by the Commission is as follows:

• When a customer disputes a utility bill, the customer is required to attempt to settle the dispute directly with the utility before filing a complaint with the PUC. 35-A M.R.S. § 1308 (2021) ; PUC § 13(G)(1). The utility, in turn, must have employees available to respond to questions from its customers and to resolve disputes.⁶ PUC § 13(A).

• If the customer is not satisfied with the utility's resolution of the customer's dispute, "the customer may appeal the decision to the commission." 35-A M.R.S. § 1308. By PUC rule, the "appeal" is assigned to the CASD for investigation, PUC § 13(E), (G), a process authorized by 35-A M.R.S. § 704(2) (2021) ("The commission shall adopt rules which provide a procedure for resolution by the commission or its delegate of disputes ....") and by 35-A M.R.S. § 1303(1) (2021), see supra n.1.⁷

• The CASD conducts "an informal investigation of the complaint that may include ... informal[ly] meeting with the customer and/or the utility"; reviewing the utility's initial investigation; and "examin[ing] ... any other information that the [CASD] deems relevant to the complaint." PUC § 13(G)(2). As the entity subject to PUC regulation,⁸ the utility is required to provide the information requested by the CASD. PUC § 13(G)(3).

• The CASD's investigation results in a written decision within thirty days of the CASD receiving necessary information from the utility. PUC § 13(G)(4). The CASD "shall impose any just and reasonable requirements [on the utility] necessary to resolve the complaint." Id. The CASD may not mandate that the customer pay the disputed bill, although it may "determin[e] that a utility may proceed with disconnection in appropriate circumstances." PUC § 13(G)(4)(e). Because the dispute is resolved by a "delegate" of the Commission and not the Commission itself,⁹ the customer is again afforded "a procedure for appeal of the decision to the commission." 35-A M.R.S. § 704(2) ; PUC § 13(H); see supra n.7.

• After the Commission reviews the summary investigation, it may affirm the CASD's decision; remand to the CASD for reconsideration or to gather more information; issue an order reversing or altering the CASD's decision; or, "[i]f ... the commission is satisfied that sufficient grounds exist to warrant a formal public hearing as to the matters investigated," open a formal investigation and hold a hearing pursuant to 35-A M.R.S. § 1303(2). See PUC § 13(H)(4).

• The customer, if dissatisfied by the CASD's summary investigation and the Commission's subsequent review, is not precluded from then filing a civil lawsuit against the utility. See 35-A M.R.S. § 1501 (2021) ; Pub. Utils. Comm'n , Investigation Into Central Maine Power Company's Metering and Billing Issues , No. 2019-00015, Order at 76, 2020 WL 1888314 (Me. P.U.C. Feb. 26, 2020) ; Levesque v. Cent. Me. Power Co. , No. 2:19-cv-00389-JDL, 2020 WL 8300506 at *––––, 2020 U.S. Dist. LEXIS 250179 at *20 (D. Me. Nov. 25, 2020).

[¶7] This procedure has, as intended by the Commission, resulted in an oft-used, informal process that benefits utility customers. According to the PUC's 2020 annual report to the Legislature, the CASD received 1,793 complaints in 2019, decreasing to a still-substantial 759 complaints in 2020 during the pandemic with its associated moratorium on utility disconnections. State of Maine Public Utilities Commission, 2020 Annual Report to the Maine Legislature at 52 (Feb. 1, 2021).¹⁰

[¶8] It is simple logic that if the CASD is not able to informally and quickly collect information from sources that it "deems relevant to the [customer's] complaint," PUC § 13(G)(2)(c)—including through "informal meeting[s] with the customer and/or the utility," PUC § 13(G)(2)(a)—but must instead resort to discovery and other procedures more akin to civil litigation, then it will be unable to respond in a timely way to the hundreds or thousands of complaints filed each year by ordinary citizens seeking help with their utility bills. As the Commission states in its brief: "If the CASD process was a formal adjudication it would not serve the purpose it was created to serve: provide a rapid, inexpensive, low-barrier way for financially distressed customers to keep their lights on, heat their homes, keep water coming out of their taps, and reasonably pay their bills."

[¶9] We conclude that in permitting the PUC to conduct summary investigations of billing disputes and to then exercise its broad discretion in deciding whether to hold a formal public hearing, see 35-A M.R.S. §§ 104, 1301, 1303, the Legislature intended to allow the type of voluntary, informal process created by chapter 660 of the Commission's Rules. See Desgrosseilliers v. Auburn Sheet Metal , 2021 ME 63, ¶ 8, 264 A.3d 1237 ("Our main objective in construing any statute is to give effect to the will of the Legislature.").

[¶10] The full, formal procedure associated with civil litigation remains available to any utility customer who elects to invoke it, see 35-A M.R.S. § 1501, including General Marine, a sophisticated, well-represented litigant with a complex billing dispute that chose to pursue the informal CASD process to resolve its dispute rather than commence a...