Office of Utility Consumer Counselor v. Public Service Co. of Indiana, Inc., 93A02-8805-EX-194
| Decision Date | 26 May 1992 |
| Docket Number | No. 93A02-8805-EX-194,93A02-8805-EX-194 |
| Citation | 592 N.E.2d 709 |
| Parties | OFFICE OF UTILITY CONSUMER COUNSELOR, Appellant, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Appellee. |
| Court | Indiana Appellate Court |
James L. Turner, Robert K. Johnson, Office of the Utility Consumer Counselor, Indianapolis, for appellant.
Greg K. Kimberlin, Kay E. Pashos, Public Service Co. of Indiana, Inc., Plainfield, for appellee.
The Office of the Utility Consumer Counselor (UCC) appeals from an order of the Indiana Utility Regulatory Commission (Commission) dismissing the UCC's petition to set a hearing on a proposal by Public Service Company of Indiana, Inc. (PSI) to create a holding company through the transfer of all outstanding shares of PSI common stock. The UCC contends that Indiana law requires a hearing and Commission approval of such a transfer, while the Commission and PSI take the position that the statute relied upon by the UCC is inapplicable to the formation of a public utility holding company.
We reverse.
In November of 1987, PSI filed an application with the Federal Energy Regulatory Commission (FERC) pursuant to 16 U.S.C. Sec. 824(b) for approval of PSI's plan to form a holding company. After the Indiana Commission received a copy of this application, the UCC filed a motion to set a hearing on PSI's proposal, contending that IND.CODE 8-1-2-83 requires the Commission to approve such a transaction after a hearing. PSI filed a motion to dismiss the UCC's petition. On May 4, 1988, the Commission granted PSI's motion to dismiss, concluding that the statute was ambiguous as to whether it applied to the proposed formation of a public utility holding company. The Commission also determined that transactions of this nature warranted an investigation in anticipation of rulemaking procedures. It is from this order that the UCC appeals.
Before addressing the merits of the appeal, we first turn to PSI's contentions in support of its renewed motion to dismiss the appeal for want of a justiciable factual or legal controversy. The Court of Appeals for the First District addressed this issue in dismissing a similar appeal as "not ripe for judicial review." In Office of Utility Consumer Counselor v. Northern Indiana Public Service Co. (1989), Ind.App., 538 N.E.2d 957, trans. denied [hereinafter, NIPSCO ], the court held that the legality of a public utility's formation of a holding company must be challenged in a declaratory judgment proceeding, rather than in a motion for a hearing before the Commission. Our application of the ripeness doctrine, however, compels a different result.
The federal ripeness doctrine is an element of Article III case and controversy requirements, the basic rationale of the doctrine being:
to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681.
The question raised by the UCC in this case, i.e., whether the Commission has the statutorily mandated authority to approve PSI's proposed formation of a holding company, is a purely legal one. Indeed, in the cases cited in NIPSCO, supra, our court addressed similar questions when it reviewed several statutes in order to determine whether the Commission had subject matter jurisdiction. See Kentucky-Indiana Municipal Power Ass'n v. Public Service Co. of Indiana, Inc. (1979), 181 Ind.App. 639, 393 N.E.2d 776; U.S. Steel Corp. v. Northern Indiana Public Service Co., Inc. (1985), Ind.App., 482 N.E.2d 501, reh'g denied 486 N.E.2d 1082, trans. denied. 1
A controversy is considered "ripe" when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. Sherwyn & Handel v. California State Dep't of Social Services (1985), 173 Cal.App.3d 52, 218 Cal.Rptr. 778; California Water & Telephone Co. v. County of Los Angeles (1967), 253 Cal.App.2d 16, 61 Cal.Rptr. 618. An issue is ripe for review when further administrative processes will not aid in the development of the facts needed by the court to decide the question it is asked to consider. New York State Ophthalmological Soc. v. Bowen (D.C.Cir.1988), 854 F.2d 1379, cert. denied (1989), 490 U.S. 1098, 109 S.Ct. 2448, 104 L.Ed.2d 1003. See also Rocky Mountain Oil & Gas Ass'n v. Watt (10th Cir.1982), 696 F.2d 734 (); Mayne v. U.S. (1987), 13 Cl.Ct. 60 (); Kaylor v. Fields (8th Cir.1981), 661 F.2d 1177 ().
Applying the multifarious interpretations of the ripeness doctrine to the challenged action leads to but one conclusion: the issue raised by the UCC is fit for judicial decision. The question presented is not academic or speculative; we need not ask the theoretical "what would happen if" question. The UCC will receive a hearing on PSI's proposal if we decide the Commission has jurisdiction. No hearing will be forthcoming if we reach the contrary result. Either determination will necessarily have a direct and immediate impact on the UCC, which is statutorily charged with representing the interests of all utility ratepayers in proceedings involving utilities in Indiana. There is no "threat" that a public utility could form a holding company; PSI's proposal went far beyond the contemplative stage in its efforts to create such a company. Lastly, there is no question that the Commission's grant of PSI's motion to dismiss was a final agency action. Indiana Civil Rights Comm'n v. Indiana Dep't of Aging & Community Services (1988), Ind.App., 529 N.E.2d 872, trans. denied.
Having satisfied the first prong of the Abbott Laboratories test, we now look to the harm which may result from judicial abstention. Abbott, supra, 387 U.S. at 148-49; 87 S.Ct. at 1515, 18 L.Ed.2d 681. Int'l Union, UAW v. Facet Enterprises, Inc. (S.D.Mich.1984), 601 F.Supp. 292. It is apparent from the manner in which the parties capably and vigorously argued the issue of jurisdiction that the adversarial process has been well served. Dismissing this appeal would require the UCC to make an identical argument, presumably in an action for declaratory relief, even though there would be no public utility proposal to form a holding company at issue. The subsequent action would cause the Commission to defend a matter that has been fully argued by PSI. Considerations of fairness to the litigants and judicial economy dictate that we consider the issue before us at this time.
This is not to say that the UCC could only have pursued its chosen course of action instead of seeking declaratory relief; the two are not mutually exclusive. Ind.Trial Rule 57 expressly states that: "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." The Civil Code Study Commission Comments indicate that: "[Trial Rule 57] will extend the remedy in cases where other remedies also will lie...." See 4 W. Harvey Indiana Practice 1 (1991). Because we have determined that this issue is ripe for review, however, we believe that further delay in deciding this question is unnecessary.
We agree with the reasoning of the court in Sherwyn & Handel, when it recognized:
the requirement [of ripeness] should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question.
173 Cal.App.3d at 58, 218 Cal.Rptr. at 781-82. For these reasons, PSI's renewed Motion to Dismiss is hereby denied.
While it is true the Commission has no authority to issue declaratory judgments, NIPSCO, supra, it is authorized to hold hearings to gather facts on matters subject to its authority. The question remains whether IC 8-1-2-83 extends to the Commission the authority to conduct a hearing on the proposed formation of a public utility holding company. We find that it does.
The statute in question reads in pertinent part:
No public utility ... shall sell, assign, transfer, lease, or encumber its franchise, works, or system to any other person, partnership, or corporation, or contract for the operation of any part of its works or system by any other person, partnership, or corporation, without the approval of the commission after hearing.
IC 8-1-2-83(a) (hereinafter "section 83").
The Commission based its order primarily on the following reasons: (1) The UCC did not object to the formation of the holding company in any of its filings with the Commission; (2) the UCC did not allege that the formation of the holding company would be contrary to the public interest; and (3) the UCC did not allege that PSI's rates were unreasonable or that its service was deteriorating. Record, p. 187. However, if it is determined the Commission has jurisdiction by virtue of section 83, the above listed reasons lose all significance, for the Commission must then schedule a hearing to gather facts on the proposed transfer.
Although the Commission refrained from resolving what it perceived to be an ambiguity in section 83, the parties on appeal agree that the provision is plain and unambiguous. Where the...
To continue reading
Request your trial
-
Office of Utility Consumer Counselor v. Public Service Co. of Indiana, Inc., 93S02-9302-EX-224
...and directed the Commission to conduct a hearing on the proposed holding company formation. Office of Util. Consumer Counselor v. Public Serv. Co. of Indiana, Inc. (1992), Ind.App., 592 N.E.2d 709. We grant On appeal the issue presented by the Consumer Counselor is whether the stock exchang......