In Matter of Us W. Communications v. Pub. Regulation Comm'n

• Decision Date: 18 May 1999
• Docket Number: 25-560
• Parties: IN THE MATTER OF HELD ORDERS OF U S WEST COMMUNICATIONS, INC. U S WEST COMMUNICATIONS, INC., a Colorado corporation, Appellant, v. NEW MEXICO PUBLIC REGULATION COMMISSION, Appellee, and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Intervenor.Opinion Number: 1999-IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Filing Date:
• Court: New Mexico Supreme Court

IN THE MATTER OF HELD ORDERS OF U S WEST COMMUNICATIONS, INC. U S WEST COMMUNICATIONS, INC., a Colorado corporation, Appellant v NEW MEXICO PUBLIC REGULATION COMMISSION, Appellee, and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Intervenor

Docket No. 25,560

Opinion Number: 1999-NMSC-024

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: May 18, 1999

APPEAL FROM THE PUBLIC REGULATION COMMISSION

consolidated with:

Docket No. 25,580

IN THE MATTER OF THE CONSIDERATION OF THE ADOPTION OF A RULE CONCERNING COSTING METHODOLOGIES IN THE MATTER OF THE IMPLEMENTATION OF NEW RULES RELATED TO THE RURAL HIGH COST AND LOW INCOME COMPONENTS OF THE NEW MEXICO UNIVERSAL SERVICE FUND, U S WEST COMMUNICATIONS, INC., a Colorado corporation, Appellant,

v.

NEW MEXICO PUBLIC REGULATION COMMISSION, Appellee, and GTS TELECOM NEW MEXICO, INC., Intervenor.

APPEAL FROM THE PUBLIC REGULATION COMMISSION

Montgomery & Andrews, P.A.

Thomas W. Olson, Santa Fe, NM, Lynn Anton Stang, U S West Communications, Inc., Denver, CO for Appellant

Dana David, Associate Counsel, New Mexico Public Regulation Commission, Santa Fe, NM for Appellee

Hon. Patricia A. Madrid, Attorney General, Richard Weiner, Assistant Attorney General, Santa Fe, NM, Jones, Snead, Wertheim, Wentworth & Jaramillo, P.A., Carol A. Clifford, Santa Fe, NM for Intervenors

OPINION

MINZNER, Chief Justice.

{1} In these two consolidated cases, we are asked to determine the proper procedure for judicial review of three orders that were issued by the New Mexico State Corporation Commission (SCC) on July 15, 1998, December 15, 1998, and December 31, 1998. On January 1, 1999, the provisions in the New Mexico Constitution for removing the SCC's orders to this Court were repealed and a new statutory procedure for appealing orders of the New Mexico Public Regulation Commission (PRC) went into effect. None of the SCC's orders in these consolidated cases were removed to this Court prior to January 1, 1999. Under these circumstances, we conclude that the new statutory procedure for appealing orders of the PRC applies here because the cases at issue were not pending before the SCC or this Court at the time the new procedure took effect.

I.

{2} On December 15, 1998, the SCC issued its findings of fact, conclusions of law, and order regarding the held-order waiver petitions of U S West Communications, Inc. (the Held Orders Case). U S West filed a petition for removal with the SCC in the Held Orders Case on December 23, 1998. The SCC did not act on U S West's petition. On January 14, 1999, U S West filed a notice of appeal with this Court in the Held Orders Case to "protect its right to judicial review of the [SCC's] Order if the Court finds that the Order is not removable because of the change in constitutional and statutory appellate remedies." The PRC issued an order of removal in the Held Orders Case on February 16, 1999. U S West has not timely filed the PRC's order of removal in this Court pursuant to Rule 12-605 NMRA 1999.

{3} On July 15, 1998, and on December 31, 1998, the SCC issued findings of fact, conclusions of law, and orders regarding the adoption of a rule concerning costing methodologies and the implementation of new rules related to the rural high cost and low income components of the New Mexico Universal Service Fund (the Cost Docket Case). On February 1, 1999, U S West filed a petition for removal in the Cost Docket Case with the PRC and also filed a notice of appeal with this Court regarding that case. The PRC has not acted on U S West's petition for removal in the Cost Docket Case.

{4} On February 12, 1999, U S West filed a motion in this Court to determine the proper procedure for judicial review in the Held Orders Case. On March 1, 1999, the PRC filed a similar motion with this Court in the Cost Docket Case. We consolidated the two cases for purposes of these motions and instructed the parties to submit simultaneous memoranda of law on the issue of determining the proper procedure for judicial review of the SCC orders.

II.

{5} On November 5, 1996, New Mexico voters ratified a state constitutional amendment that created the PRC and granted it the authority to regulate public utilities in the manner provided by the Legislature. See N.M. Const. art. XI, §§ 1-2 (as amended 1996, effective 1999). This constitutional amendment also repealed the provisions in Article XI of the New Mexico Constitution that had granted regulatory authority to the SCC. See N.M. Const. art. XI, §§ 1-12, 15-17 (repealed 1999). The amendment took effect on January 1, 1999. On the same date, a new statutory procedure for appealing orders of the PRC also went into effect. See NMSA 1978, § 63-7-1.1 (1998, effective 1999).

{6} Under this new statutory procedure,

E. An interested party may appeal from a final order of the [PRC] by filing a notice of appeal with the supreme court asking for review of the order within thirty days of the final order. The appellant shall pay to the [PRC] any costs of preparing and transmitting the record to the court.

F. The pendency of an appeal shall not automatically stay the order appealed from. The appellant may seek to obtain a stay from the [PRC] or the supreme court.

G. The appeal shall be on the record of the hearing before the [PRC] and shall be governed by the appellate rules applicable to administrative appeals. The supreme court shall affirm the [PRC's] order unless it is:

(1) arbitrary, capricious, or an abuse of discretion;

(2) not supported by substantial evidence in the record; or

(3) otherwise not in accordance with law.

Section 63-7-1.1(E) to (G); see also Rule 12-601 NMRA 1999 (governing the procedure for filing and perfecting direct appeals to an appellate court from orders of administrative entities when the right to direct appeal is provided by statute).

{7} In contrast, the repealed provisions of Article XI stated, in pertinent part, that:

No general change in a rate, fare or charge shall be collected by any telephone or telegraph company or common carrier until such proposed increase is approved by the [SCC] or, in the event of removal, until such proposed increase is approved by the supreme court . . . . Any company, corporation[,] common carrier[, or other party to a hearing before the SCC] which does not comply with the order of the [SCC] within the time limited therefor, may file with the [SCC] a petition to remove such cause to the supreme court. . . .

In addition to the other powers vested in the supreme court by this constitution and the laws of the state, the said court shall have the power and it shall be its duty to decide such cases on their merits . . . .

N.M. Const. art. XI, § 7 (repealed 1999); see also Rule 12-102(A)(3) NMRA 1999 (providing that removals from the SCC shall be taken to the Supreme Court); Rule 12-605 (governing procedure for filing an order of removal in the Supreme Court).

{8} U S West contends that removal is the correct procedure for judicial review in these consolidated cases. According to U S West, there are two reasons why we must apply the repealed constitutional provisions of Article XI, Section 7 rather than the new statutory provisions of Section 63-7-1.1. The first reason is that Article IV, Section 34 of the New Mexico Constitution requires that: "No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case." N.M. Const. art. IV, § 34. The second reason is that the Legislature has enacted a statute which requires, in pertinent part, that:

Except as otherwise provided in this section, on January 1, 1999, all pending cases, legal actions, appeals and other legal proceedings of every description and all pending administrative proceedings that involve the [SCC] . . . shall be unaffected and shall continue in the name of the [PRC].

NMSA 1978, § 8-8-21(C) (1998, effective 1999). According to U S West, requiring appeal under Section 63-7-1.1 instead of removal under the former Article XI, Section 7 would unlawfully change the rules of procedure and affect the company's rights and remedies in a pending case because Section 63-7-1.1 employs a different standard of review and does not automatically stay enforcement of the SCC's orders while judicial review is pending. Compare § 63-7-1.1, with N.M. Const. art. XI, § 7 (repealed 1999).

{9} The PRC and the Attorney General contend that appeal under Section 63-7-1.1 is the correct procedure in these consolidated cases. According to the PRC and the Attorney General, there are two reasons why applying Section 63-7-1.1 in these consolidated cases does not violate the constitutional requirements of Article IV, Section 34 or the statutory requirements of Section 8-8-21(C). The first reason is that Article IV, Section 34 only applies to acts of the Legislature. The second reason is that these consolidated cases are not "pending" within the meaning of Article IV, Section 34 or Section 8-8-21(C).

{10} We agree with the PRC and the Attorney General that the amendment of Article XI of our state constitution ratified by New Mexico voters in 1996 is not an "act of the legislature" within the meaning of Article IV, Section 34. We reach this conclusion because a state constitutional amendment requires more than an act of the Legislature in order to become law. See N.M. Const. art. XIX, § 1 (requiring ratification by a majority of the electors before a state constitutional amendment proposed by the Legislature can become "part of this constitution").

{11} We do not agree, however, that the procedure for judicial review contemplated in Section 63-7-1.1 can be inferred from the 1996 amendment to Article XI of our state constitution alone. That amendment does not expressly state a new procedure for judicial review. Rather, the new provisions of Article XI only state that the PRC "shall have responsibility for regulating public utilities . . . in such manner...