Southwestern Bell Telephone Co. v. Oklahoma Corp. Com'n, 80579

• Court: Supreme Court of Oklahoma
• Writing for the Court: SIMMS; ALMA WILSON and WATT, JJ., and ADAMS and BOUDREAU; HODGES, C.J., and SUMMERS; OPALA
• Citation: 1994 OK 38,873 P.2d 1001
• Parties: , 1994 OK 38 SOUTHWESTERN BELL TELEPHONE COMPANY, Petitioner, v. OKLAHOMA CORPORATION COMMISSION, Respondent.
• Docket Number: No. 80579,80579
• Decision Date: 13 April 1994

Page 1001

873 P.2d 1001 62 USLW 2666, 1994 OK 38 SOUTHWESTERN BELL TELEPHONE COMPANY, Petitioner,
v.
OKLAHOMA CORPORATION COMMISSION, Respondent. No. 80579. Supreme Court of Oklahoma. April 13, 1994.

Page 1003

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR WRIT OF PROHIBITION

Petitioner seeks this Court's assumption of original jurisdiction and petitions for writ of prohibition to disqualify Corporation Commissioner Anthony from further participation in PUD-260 and all pending or future cases involving petitioner before the Commission.

APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED. PETITION FOR WRIT OF PROHIBITION DENIED.

REHEARING GRANTED AND OPINION OF THE COURT ISSUED MAY 25, 1993, IS WITHDRAWN AND THIS OPINION ORDERED SUBSTITUTED THEREFOR.

Andrew M. Coats, Richard C. Ford, Crowe & Dunlevy, Melanie S. Fannin, Roger K. Toppins, Oklahoma City, for petitioners.

Maribeth D. Snapp, Patricia A. Morris, Oklahoma Corp. Com'n, Rick Chamberlain, Office of the Atty. Gen., Robert D. Allen, Ronald E. Stakem, Clark, Stakem, Pherigo, & Douglas, Ron Comingdeer, Oklahoma City, Eric R. King, King & King, Edmond, Jerry Cord Wilson, Nancy Thompson, Oklahoma City, Major Kenneth C. Kitzmiller, Staff Judge Advocate, Tinker AFB, Laurence M. Huffman, Elizabeth S. Wood, McAfee & Taft, William J. Bullard, Williams, Box, DeBee, Forshee, Synar & Bullard, Cody Waddell, Anderson & Waddell, David Lee, Lee & Fields, Michael J. Hunter, Oklahoma Corporation Commission, Oklahoma City, for respondents.

SIMMS, Justice:

In this original proceeding Southwestern Bell Telephone Company (SWB) seeks this Court's order disqualifying Corporation Commissioner Anthony (Anthony) from further participation in Corporation Commission proceeding PUD-260, a rate hearing, as well as in all pending and future SWB cases. SWB asserts that Anthony is biased and prejudiced against it, and his continued participation in cases where its substantive rights are at issue will deny SWB its right to due process of law because it will not be able to receive a fair hearing from an impartial tribunal.

I.

The focus of SWB's claim centers on Commissioner Anthony's startling public announcement on October 2, 1992, that for four years he had been secretly acting as an investigator and informant in an ongoing FBI investigation concerning the conduct of his fellow commissioners and employees and representatives of SWB. ¹ SWB asserts that

Page 1004

Anthony's announcement makes it clear that he has formed an opinion that SWB's agents and employees have engaged in improper conduct; that he has conflicting interests because of his different public and undisclosed roles, and, as a result of his investigation, he may be a potential witness in future proceedings against SWB. These facts, SWB argues, make it patently impossible for Anthony to be a neutral and unbiased adjudicator of its rights and interests before the Commission.

SWB argues that the same federal and state due process requirements which assure litigants in judicial proceedings a right to be heard by an impartial judge in a fair hearing apply with equal force in administrative hearings, and they should apply to the Corporation Commission hearing on PUD-260 and to Commissioner Anthony who sits, SWB contends, in an adjudicatory capacity. SWB asserts that Anthony's conduct and public statement, together with a motion he filed in the case below, seeking to compel SWB to produce certain records, present fundamental issues regarding its right to due process. SWB claims that Anthony's position is the same as a judge and the Canons of Judicial Conduct, 5 O.S.1991, Ch. 1, App. 4, require him to voluntarily disqualify in these circumstances. Because he refuses to do so, this Court should exercise its Okla. Const. Art. 7, Sec. 4 superintending control over the judiciary and issue its writ to prohibit Anthony from further participation in an adjudicatory capacity in SWB's cases.

We assume original jurisdiction but deny the requested relief. Rehearing of our decision issued on May 25, 1993, is granted and that decision is withdrawn.

II.

The Corporation Commission is created by Article 9 of our Constitution. Its three members are elected by the people at a general election and a concurrence by a majority of the Commission is necessary to decide any question. Among the many powers and duties given the Commission, it is required to exercise the authority of the state to supervise, regulate and control public service corporations, and to that end it has been clothed with legislative, executive and judicial powers. Okla. Const. Art. 9, §§ 15, 18, 19, and 20. St. Louis & S.F.R. Co. v. Williams, 25 Okla. 662, 107 P. 428 (1910). Russell v. Walker, 160 Okla. 145, 15 P.2d 114 (1932); Oklahoma Cotton Ginners' Ass'n. v. State, 174 Okla. 243, 51 P.2d 327 (1935).

The validity of the union of these powers in one constitutional body has been upheld and found consistent with the separation of powers provision, Okla. Const. Art. 4, § 1, as well as Okla. Const. Art. 7, § 1, which vests judicial power in certain constitutionally and statutorily created courts and tribunals. Monson v. State, ex rel., Oklahoma Corp. Comm., 673 P.2d 839 (Okla.1983); Oklahoma Cotton Ginners' Ass'n., supra. In any proceeding the requirements which the Commission's actions must meet and the standards by which they are measured, depend on the character of the particular power being exercised in the matter at issue. Monson, supra; Oklahoma Cotton Ginners' Ass'n., supra.

For example, in Monson, an action involving the drilling of salt water disposal wells, we recognized that when the Commission sits and decides matters in its adjudicative capacity, it exercises the power of a court of record pursuant to Okla. Const. Art. 9, § 19, and the Commission should therefore be treated as the "functional analogue of a court of record." We held that because the Commission's actions in question were a judicial function, the exemption accorded the judiciary in the Open Meeting Law would apply to the Commission. Likewise, in Hair v. Okla. Corp. Comm., 740 P.2d 134 (Okla.1987), which involved a drilling and spacing order, we held that because the Commission is considered a court of record when it is performing in a judicial capacity, it may correct its orders by order nunc pro tunc.

The proceeding at issue here, PUD-260,

Page 1005

is a rate hearing. ² The authority to establish rates for all public service corporations is exclusively vested in the Corporation Commission by Art. 9, § 18, of the Oklahoma Constitution. Rate hearings are legislative in nature, and SWB's assertion that this was a proceeding of a judicial nature is erroneous. Turpen v. Oklahoma Corp. Comm., 769 P.2d 1309 (Okla.1989); State, ex rel. Cartwright v. Southwestern Bell Tel. Co., 662 P.2d 675 (Okla.1983); Chickasha Cotton Oil Co. v. Corp. Comm., 562 P.2d 507 (Okla.1977); Wiley v. Oklahoma Natural Gas Co., 429 P.2d 957 (Okla.1967).

When Anthony and his fellow Commissioners hear PUD-260 they will act in their legislative capacity. That distinction is determinative of the issue presented for, as discussed below, proceedings which are legislative in nature do not implicate judicial processes and do not require application of the judicial standards urged by SWB. More importantly, this Court has no power to grant the relief sought against constitutional officers acting in a legislative capacity.

In Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908), the Supreme Court of the United States was asked to determine whether the federal courts could enjoin the Virginia Corporation Commission from enforcing railroad rates alleged to be confiscatory. At issue was the nature of the challenged commission action. The Virginia constitutional provision (which is nearly identical to provisions of our article 9) invested the Commission with legislative, executive, and judicial powers. The Court assumed that while the Commission was for some purposes, a court, which would be protected from interference by federal courts, in setting the rates the Commission had acted in a legislative capacity and could therefore be enjoined. Speaking through Justice Holmes, the court analyzed the distinctions between legislative and judicial proceedings:

"A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind, ..."

The Court then made the point that:

"Proceedings legislative in nature are not proceedings in a court, * * * no matter what may be the general or dominant character of the body in which they may take place. * * * That question depends not upon the character of the body, but upon the character of the proceedings. * * * And it does not matter what inquiries may have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up ... The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law, he must know or discover the facts that establish the law. So, when the final act is legislative, the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case." 211 U.S. at 226-27, 29 S.Ct. at 69-70 (Citations omitted).

The Supreme Court of the United States has quite recently reaffirmed both the general mode of analysis...