Louisiana Consumers' League, Inc. v. Louisiana Public Service Commission

• Decision Date: 10 October 1977
• Docket Number: No. 59819,59819
• Citation: 351 So.2d 128
• Parties: LOUISIANA CONSUMERS' LEAGUE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

Page 128

351 So.2d 128

LOUISIANA CONSUMERS' LEAGUE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 59819.

Supreme Court of Louisiana.

Oct. 10, 1977.

Stephen M. Irving, Woodrow W. Wyatt, Doris Falkenheiner, Baton Rouge, for plaintiff-relator.

Marshall B. Brinkley, Baton Rouge, for defendant-respondent.

Jane Johnson, New Orleans Legal Assistance Corp., New Orleans, for amicus curiae.

MARCUS, Justice.

After its petitions of intervention in two pending rate proceedings were denied by the Louisiana Public Service Commission, the Louisiana Consumers' League, Inc. brought this action in the Nineteenth Judicial District Court to enjoin the Commission from conducting further hearings on the rate applications until the League was permitted to intervene in said rate proceedings. La.Const. art. 4, § 21(E); La.Const. art. 5, § 2; La.R.S. 45:1192. The district court rendered judgment in favor of the Commission denying the League the relief sought. Thereupon, the League applied to the court of appeal for supervisory writs and a stay order which application was not considered by the court on the ground that the court lacked jurisdiction of the case under La.Const. art. 4, § 21(E) and art. 5, § 10. The League then applied to this court for supervisory writs and a stay order. La.Const. art. 4, § 21(E); La.Const. art. 5, §§ 2 and 5(A). Although we refused to stay the rate proceedings, we granted the writ to review the ruling of the Commission, as affirmed by the district court, denying the League's petitions of intervention and as provisional relief ordered the Commission to permit the League to intervene in the rate proceedings.¹

The facts are not in dispute. In the fall of 1976, Central Louisiana Electric Company² and Louisiana Power and Light Company³ filed applications for an increase in rates with the Commission. In both proceedings, the League filed formal petitions of intervention pursuant to Rule 10 of the Rules of Practice and Procedure of the Louisiana Public Service Commission, effective November 16, 1972, which rule provided that ". . . every civic and trade organization shall be permitted to intervene in any proceeding and present any relevant and proper testimony and evidence bearing upon the issues involved in the particular proceeding." (Emphasis added.) Relying on an amendment to Rule 10, effective July 1, 1976, which provided in pertinent part that ". . . every civic and trade organization shall be permitted to appear in any proceeding whether as a formal intervenor or otherwise, and present any relevant and proper testimony and evidence bearing upon the issues involved in the particular proceeding" (emphasis added), the Commission denied the League the right to intervene and instead permitted it to participate in the proceedings only as an "interested party." As such, the League was invited by the Commission to submit any relevant testimony or documentary evidence and to refer questions to be asked on direct or cross-examination of witnesses to counsel for the Commission, who would then ask them to the witnesses. Relegation of the League to the status of an interested party also prevented it from appealing a decision of the Commission, as a right of appeal extends only to an "aggrieved party or intervenor" in the proceeding under La.Const. art. 4, § 21(E).

The League then brought the present action in the district court, contending that the amendment to Rule 10 relied upon by the Commission in denying its right to intervene in the rate proceedings was ineffective in that it was not adopted in compliance with the rule-making provisions of the Administrative Procedure Act which act purportedly applies to all state agencies not specifically excluded. La.R.S. 49:951-954, 967. As defined in the act, "agency" means any state board, commission, or department which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof and the courts. La.R.S. 49:951(2). Prior to the adoption, amendment, or repeal of any rule, the agency must give at least fifteen days notice of its intended action, which notice must be published at least once in both the official Louisiana Journal and Louisiana Register. In addition, the agency is required to afford all interested persons reasonable opportunity to submit data, views, or arguments orally or in writing. La.R.S. 49:953. Subsequent to the adoption of a rule or an amendment thereto, the agency is required to file in the office of the Division of Administration a certified copy of the rule which becomes effective upon publication in the Louisiana Register. La.R.S. 49:954. The League contended that the Commission falls within the purview of the act since it is an agency as defined in the act and is not specifically excepted from its coverage under La.R.S. 49:967. The League argued that, since the Commission failed to give notice of the purported amendment to Rule 10 and to afford interested persons an opportunity to submit their views on the intended action, the amendment had not been validly enacted and was without effect. Hence, it contended that the former version of Rule 10 remained in force and conferred upon the League an unconditional right to intervene in the rate proceedings. The League further asserted that the Commission's denial of its petitions of intervention deprived it of equal protection of the laws since in prior proceedings the Commission had permitted industrial customers to participate as intervenors, and violated the due process clause of the federal constitution.

In opposition to the League's contentions, the Commission argued that it is not governed by the provisions of the Administrative Procedure Act since it is a constitutionally-created body independent of the legislature with its powers and duties defined in the constitution, one of which is the power to ". . . adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties . . . ." La.Const. art. 4, § 21(B). The Commission contended that this constitutional grant of rule-making power could not be subjected to the procedural restraints outlined in the act and imposed by the legislature on the rule-making power of state agencies. Therefore, the Commission was constitutionally empowered to amend Rule 10 and could validly deny intervenor status to the League.

Testimony taken at the hearing of this matter revealed that, prior to the adoption of the amendment to Rule 10, the proposed amendment was not published in the Louisiana Register or the Louisiana Journal nor was a copy of the amended rule sent to the office of the Division of Administration. However, subsequent to its adoption, copies of the amendment were sent by the secretary of the Commission to the Louisiana Register and were disseminated to interested persons on the Commission's official mailing list.

In his written reasons for judgment denying the League relief, the district judge concluded that the provisions of the Administrative Procedure Act do not apply to the Commission since La.Const. art. 4, § 21(B) grants to the Commission the power to establish its own rules of procedure, thereby precluding the legislature from enacting statutes, such as the Administrative Procedure Act, which restrict that power. The district judge further found that there was ample notice of the rule change in that after its adoption copies of the amendment were disseminated throughout the state and more than adequate time had expired between adoption of the amended rule and the rate proceedings for ...