Georgia Power Co. v. Campaign For a Prosperous Georgia, 42274

• Decision Date: 02 December 1985
• Docket Number: No. 42274,42274
• Citation: Georgia Power Co. v. Campaign For a Prosperous Georgia, 336 S.E.2d 790, 255 Ga. 253 (Ga. 1985)
• Parties: GEORGIA POWER COMPANY v. CAMPAIGN FOR A PROSPEROUS GEORGIA.
• Court: Georgia Supreme Court

Page 790

336 S.E.2d 790

255 Ga. 253

GEORGIA POWER COMPANY v.CAMPAIGN FOR A PROSPEROUS GEORGIA.

No. 42274.

Supreme Court of Georgia.

Dec. 2, 1985.

Michael J. Bowers, Attorney General, Jim O. Llewellyn, Senior Assistant Attorney General, Sutherland, Asbill & Brennan, C. Christopher Hagy, Jacqueline S. Miller, amici curiae.

Hill, C.J., and Gregory, J., concurred in judgment only.

Weltner, J., filed dissenting opinion.

James E. Joiner, Douglas L. Miller, Robert P. Edwards, Jr., Robert P. Williams II, Troutman, Sanders, Lockerman & Ashmore, Atlanta, for Georgia Power Co.

Sidney L. Moore, Jr., Deppish Kirkland, James S. Thomas, J., Moore and Blanton, Decatur, for Campaign for a Prosperous Georgia.

BELL, Justice.

This case is here on certiorari to the Court of Appeals.Campaign For A Prosperous Georgia v. Georgia Power Company, 174 Ga.App. 263, 329 S.E.2d 570(1985).

Campaign For A Prosperous Georgia (Campaign) filed a motion to intervene, pursuant to OCGA § 46-2-59, ¹ in proceedings on an application by the Georgia Power Company(Georgia Power) to the Public Service Commission(PSC) for a rate increase.The PSC granted Campaign leave to intervene, as a representative of the consumer interest, and Campaign thereafter participated in the proceedings, which resulted in a rate increase for Georgia Power.

Under the judicial review provisions of the Administrative Procedure Act (APA),OCGA § 50-13-19, ² Campaign subsequently filed a petition to appeal the PSC decision in Fulton County Superior Court.It served a copy of the petition on the PSC, but only Georgia Power was named as a respondent in the style of the petition.

Georgia Power subsequently filed a motion to dismiss Campaign's petition on the grounds that Campaign had failed to name an indispensable party, the PSC, and that Campaign was not sufficiently "aggrieved" by the PSC's decision so as to have standing to seek judicial review thereof under OCGA § 50-13-19.The superior court agreed with Georgia Power as to both grounds and dismissed the petition.

The Court of Appeals reversed.It first found that, although the PSC was a proper partyrespondent to Campaign's judicial review petition, the dismissal of the petition for the failure to name the PSC as a respondent was inappropriate."Since the proceeding was of an appellate nature and the statute specifically requires only service of the petition, the deficiency in the style of the petition was an insufficient basis upon which to grant a motion to dismiss."Campaign, supra, 174 Ga.App. at 265, 329 S.E.2d 570.

It further found, largely on the basis of OCGA § 46-2-59, that Campaign had standing to seek judicial review of the PSC's decision.

We granted certiorari to consider the following two questions:

"1.Whether one who has been made a party to a Public Service Commission regulatory proceeding under the provisions of OCGA § 46-2-59 has automatic standing to petition for judicial review of the Public Service Commission's decision without the necessity of being an 'aggrieved person' under OCGA § 50-13-19(a)."

"2.Whether the superior court should grant a motion to dismiss a petition for judicial review of a Public Service Commission regulatory decision where a party to the Public Service Commission proceeding effects service of the petition on the Public Service Commission under OCGA § 50-13-19(e) but does not name the Public Service Commission as a party in the petition."

1.As to the first certiorari question, we disagree with the Court of Appeals.

As noted by the Court of Appeals, before 1975 there was no statutory right " 'in a Georgia consumer to obtain judicial review of the reasonableness of a rate order made by the [PSC].The Georgia [APA] of 1964 contains a statutory judicial review procedure; however, the legislature expressly the [PSC] from the terms of the Act.[Cits.].'Georgia Power Company v. Allied Chemical Corp., 233 Ga. 558, 560(212 SE2d 628)(1975).Only a short time later, the General Assembly ended the PSC's exemption from the mandate of the APA.Ga.L.1975, pp. 404, 407."Campaign, supra, 174 Ga.App. at 266, 329 S.E.2d 570.

"In 1981, the General Assembly again addressed the topic of the applicable administrative procedure as to the PSC,"id. at 266, 329 S.E.2d 570, declaring a public policy that consumers of utility services "deserve adequate representation in proceedings affecting utility rates and service,"Ga.L.1981, pp. 121, 122.OCGA § 46-2-59, one of the provisions enacted to effectuate the foregoing public policy, provides, inter alia, that persons who are allowed to intervene by the PSC, seeOCGA § 46-2-59(e), are automatically elevated to the status of a party to the proceedings, OCGA § 46-2-59(a).This provision differs from the general intervention provision of the APA, OCGA § 50-13-14, pursuant to which a person allowed to intervene in an agency proceeding does not automatically attain the status of a full party to the proceeding.

Based on the termination of the PSC's exemption from the APA in 1975, and the elevation of an intervenor to a party under OCGA § 46-2-59 and the express statement of public policy by the General Assembly in 1981, the Court of Appeals rejected Georgia Power's argument that it was possible for one to be a party to a rate-hike proceeding and still fail to meet the "aggrieved person"standard of OCGA § 50-13-19(a).

In reaching that result the court held that "[a]doption of Georgia Power Company's argument would nullify, or at least severely limit, the clearly expressed intent of the General Assembly to extend the applicability of the APA to PSC proceedings.It would also frustrate this State's public policy of affording consumers 'adequate representation in proceedings affecting utility rates....'Judicial review of a PSC decision in a rate case is clearly a proceeding 'affecting utility rates.'We cannot construe the legislative enactments following Georgia Power Co. v. Allied Chemical Corp., supra, as having had no effect whatsoever on the holding in that decision.The only interpretation of the entire statutory scheme applicable to PSC proceedings that is both logical and equitable is that any 'party' to those proceedings, whether it be the utility or its customers, may be 'aggrieved' by a decision which is adverse to the position that it takes therein.Accordingly, the superior court erred in holding that Campaign had no standing to seek judicial review in the instant case."Campaign, supra, 174 Ga.App. at 267-268, 329 S.E.2d 570.

We disagree with the conclusion that any party to a PSC proceeding has automatic standing to appeal an adverse decision by the agency.

To begin, we note that the language of OCGA § 50-13-19(a), by its breadth, clearly applies to parties to an agency proceeding, thereby requiring them, despite their status as parties, to demonstrate that they are "aggrieved" by the agency decision in order to have standing to seek judicial review thereof.OCGA § 50-13-19(a) provides that "any person who has exhausted all administrative remedies available within the agency and who is aggrieved" by the final decision of the agency may seek judicial review thereof.As defined by the APA, all parties to an agency proceeding (aside from the agency) are also "persons" within the meaning of the APA.OCGA § 50-13-2(4, 5).Other states adopting the Model State Administrative Procedure Act, upon which § 50-13-19(a) is based, Ga.Laws 1964, p. 338, 354, have so construed this provision, Bankhead v. City of Tacoma, 23 Wash.App. 631, 597 P.2d 920, 923(1979);City of New Haven v. Town of East Haven, 177 Conn. 749, 419 A.2d 349(1)(1979);Jordan v. Hamada, 64 Haw. 451, 643 P.2d 73(2)(1982).Thus, the language of OCGA § 50-13-19(a) does not permit the construction given to it by the Court of Appeals.

In addition, we do not find that the enactment of OCGA § 46-2-59 compels a contrary conclusion.As previously mentioned, the Court of Appeals concluded that the public policy of providing consumers "adequate representation in proceedings affecting utility rates," which OCGA § 46-2-59 was enacted to implement, would be frustrated unless the court construed OCGA § 50-13-19(a) as granting parties to a PSC proceeding an automatic right to judicial review of the PSC decision.

We do not find, however, that the policy behind the enactment of OCGA § 46-2-59 will be frustrated if OCGA § 50-13-19(a) is applied according to its plain language.First, it is clear that OCGA § 46-2-59 was enacted to effectuate the specific purpose, unrelated to judicial review of PSC decisions, of expanding the extremely limited right of participation theretofore given to intervenors in agency proceedings under the APA.The provision of the APA governing hearings provides that only parties to the hearings are entitled "to respond and present evidence on all issues involved."OCGA § 50-13-13(a)(3).Moreover, OCGA § 46-2-58, enacted along with OCGA § 46-2-59, sets out procedures for the conducting of PSC hearings, and provides, similarly to OCGA § 50-13-13(a)(3), that "[t]he hearing officer or commission shall permit only the Commissioners, the hearing officer, the parties, or the attorneys of record of the Commissioners, hearing officers, or parties to examine or cross- examine witnesses, except with the consent of the witness."OCGA § 46-2-58(c).

Before the enactment of OCGA § 46-2-59, the intervention provision applicable to the PSC and other agencies was OCGA § 50-13-14, which did not grant party status, for purposes of the agency proceeding, to persons permitted to intervene.Thus, before the enactment of OCGA § 46-2-59, intervenors in PSC proceedings were not entitled to present evidence, cross-examine witnesses, or otherwise be fully heard on the issues involved.OCGA § 46-2-59, by providing that persons allowed to intervene are given party status, grants this critical right to intervenors in PSC proceeding, and thus effectuates, in a manner...