State ex rel. Columbus S. Power Co. v. Fais

• Decision Date: 05 March 2008
• Docket Number: No. 2007-1382.,2007-1382.
• Parties: The STATE ex rel. COLUMBUS SOUTHERN POWER COMPANY v. FAIS, Judge.
• Court: Ohio Supreme Court

884 N.E.2d 1

117 Ohio St.3d 340

2008-Ohio-849

The STATE ex rel. COLUMBUS SOUTHERN POWER COMPANY v. FAIS, Judge.

No. 2007-1382.

Supreme Court of Ohio.

Submitted January 8, 2008.

Decided March 5, 2008.

Steven T. Nourse, Columbus, and Marilyn McConnell, for relator.

Ron O'Brien, Franklin County Prosecuting Attorney, and Robert E. Williams and Tracie M. Boyd, Assistant Prosecuting Attorneys, for respondent Judge David W. Fais.

Chester, Willcox & Saxbe, L.L.P., John W. Bentine, and Gerhardt A. Gosnell II, Columbus, for respondent city of Reynoldsburg.

PER CURIAM.

{¶ 1} This is an original action for a writ of prohibition to prevent a common pleas court judge from proceeding in a declaratory-judgment case involving a public utility's liability for the cost of relocating overhead electrical lines underground when the relocation has been ordered by a municipality. We conclude that in this case, the issue of liability for these costs has been addressed and resolved by the Public Utilities Commission in a tariff, over which the commission has exclusive original jurisdiction. We therefore grant the writ.

Commission-Approved Tariff

{¶ 2} Relator, Columbus Southern Power Company, is a public utility under R.C. 4905.02. See also R.C. 4905.03(A)(4). The Public Utilities Commission approved a tariff for Columbus Southern Power that requires municipalities and other public authorities to pay the cost of requiring public utilities to relocate overhead lines to the underground:

{¶ 3} "The Company shall not be required to construct general distribution lines underground unless the cost of such special construction for general distribution lines and/or the cost of any change of existing overhead general distribution lines to underground which is required or specified by a municipality or other public authority (to the extent that such cost exceeds the cost of construction of the Company's standard facilities) shall be paid for by that municipality or public authority."

{¶ 4} This provision is listed under a general heading of "Terms and Conditions of Service" and a more specific subheading of "Temporary and Special Service."

{¶ 5} The commission originally approved the tariff in 1992 as part of the Columbus Southern rate case, In the Matter of the Application of Columbus Southern Power Company for Authority to Amend its Filed Tariffs to Increase the Rates and Charges for Electric Service, PUCO No. 91-418-EL-AIR, 1992 WL 281188. In that case, a witness for Columbus Southern testified that unless the municipality that required the installation of underground electrical service paid the additional cost of that construction, all of the company's customers — including those living outside the municipality — would be paying the increased cost:

{¶ 6} "The Company has added language [to the proposed tariff] that will require a municipality that requires the installation of underground electric service to pay the additional cost of such construction. Underground construction is considerably more costly than overhead construction. When a customer requests that service lines be installed underground, the customer is required to pay the cost difference. If a municipality requires the Company to install the general distribution lines underground, the cost difference needs to be paid by the municipality. Otherwise, all of the Company's customers, including those outside the municipality, will have to pay more because of this increased cost. * * * This could mean that a customer in one city would be paying more because some other city requires underground construction."

{¶ 7} The commission's staff agreed with Columbus Southern's proposed revision because "the additional cost to provide underground service to one municipality should not be borne by ratepayers in another municipality." The commission approved the provision.

Reynoldsburg: Ordinance, Relocation Order, and Payment of Relocation Costs

{¶ 8} On May 9, 2005, the Reynoldsburg City Council enacted a "Comprehensive Right of Way Management Policy Ordinance" that authorized the city's public service director to designate portions of its rights of way as being suitable for underground utility facilities and to require a permittee to relocate its facilities underground at the permittee's "sole cost." Reynoldsburg City Code 907.06(A)(4).

{¶ 9} In July 2005, Reynoldsburg Safety/Service Director Sharon L. Reichard notified Columbus Southern that it would be ordered to relocate its facilities "within the public right of way of the [Reynoldsburg Major Commercial Corridor] Project into the underground duct bank." The city declared that the portion of the public right of way within the construction project "shall accommodate only utility facilities located underground."

{¶ 10} In November 2005, Reynoldsburg agreed to pay in advance the estimated cost of Columbus Southern's facility relocation — in an amount not to exceed $1,185,535.30 — and the parties agreed that the dispute over the ordinance's "sole cost" provision would be resolved in an appropriate forum.

Declaratory-Judgment Case

{¶ 11} In July 2006, Reynoldsburg filed a complaint for declaratory relief in the Franklin County Court of Common Pleas. Reynoldsburg requested a declaration that Columbus Southern had a legal obligation to relocate its facilities at its own cost and that the city is entitled to reimbursement of the cost incurred under the parties' agreement. Columbus Southern filed a motion to dismiss the case for lack of subject-matter jurisdiction, contending that the Public Utilities Commission has exclusive jurisdiction over this matter.

{¶ 12} Respondent, Judge David W. Fais, denied Columbus Southern's motion. Judge Fais determined that although the commission has exclusive jurisdiction over challenges to rates, services, and public-way fees, the relocation costs were not such rates, services, or fees. Judge Fais concluded that "[b]ecause this Court does not find that the portion of [Columbus Southern]'s tariff that addresses the relocation costs is a `rate' or `charge,' the Court finds that the dispute in the instant case over which entity is responsible for the relocation charges is properly before the Court and within its basic jurisdiction."

Prohibition Case

{¶ 13} In July 2007, Columbus Southern filed this action for a writ of prohibition to prevent Judge Fais from further proceeding in the declaratory-judgment action. Judge Fais filed a motion to dismiss. Reynoldsburg filed a motion to intervene, an answer, and a motion for judgment on the pleadings. Columbus Southern filed a memorandum in opposition. On October 24, we granted an alternative writ. The parties responded with evidence and briefs.

{¶ 14} This cause is now before the court for our S.Ct.Prac.R. X(5) determination.

Prohibition Claim

{¶ 15} To be entitled to the requested writ of prohibition, Columbus Southern must establish that (1) Judge Fais is about to exercise judicial power, (2) the exercise of that power is unauthorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Westlake v. Corrigan, 112 Ohio St.3d 463, 2007-Ohio-375, 860 N.E.2d 1017, ¶ 12. Judge Fais has exercised and continues to exercise judicial authority by proceeding in the declaratory judgment case filed by Reynoldsburg.

{¶ 16} For the remaining requirements, "[i]f a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions." State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12; see also State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 22. "In cases of a patent and unambiguous lack of jurisdiction, the requirement of a lack of an adequate remedy of law need not be proven because the availability of alternate remedies like appeal would be immaterial." State ex rel. State v. Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 18.

{¶ 17} For the following reasons, Columbus Southern has established that Judge Fais patently and unambiguously lacks jurisdiction to proceed in the declaratory-judgment case.

{¶ 18} "The General Assembly has created a broad and comprehensive statutory scheme for regulating the business activities of public utilities. R.C. Title 49 sets forth a detailed statutory framework for the regulation of utility service and the fixation of rates charged by public utilities to their customers. As part of that scheme, the legislature created the Public Utilities Commission and empowered it with broad authority to administer and enforce the provisions of Title 49. The commission may fix, amend, alter or suspend rates charged by public utilities to their customers. R.C. 4909.15 and 4909.16. Every public utility in Ohio is required to file, for commission review and approval, tariff schedules that detail rates, charges and classifications for every service offered. R.C. 4905.30. And a utility must charge rates that are in accordance with tariffs approved by, and on file with, the commission. R.C. 4905.22." Kazmaier Supermarket, Inc. v. Toledo Edison Co. (1991), 61 Ohio St.3d 147, 150, 573 N.E.2d 655.

{¶ 19} Moreover, "`[t]he commission has exclusive jurisdiction over various matters involving public utilities, such as rates and charges, classifications, and service, effectively denying to all Ohio courts (except this court) any jurisdiction over such matters.'" State ex rel. Illum. Co. v. Cuyahoga Cty. Court of Common Pleas, 97 Ohio St.3d 69, 2002-Ohio-5312, 776 N.E.2d 92, ¶ 18, quoting State ex rel. Cleveland Elec. Illum. Co. v. Cuyahoga Cty. Court of Common Pleas (2000), 88 Ohio St.3d 447, 450, 727 N.E.2d 900. The commission's jurisdiction comes from statutory authorization. See Time Warner AxS v. Pub....