State v. Public Serv. Comm'n of the State of Mo
| Decision Date | 26 December 2001 |
| Docket Number | WD59196 |
| Parties | State of Missouri, ex rel., Atmos Energy Corporation, Laclede Gas Company, Arkansas Western Gas Company, d/b/a Associated Natural Gas Company, Missouri Gas Energy, a division of Southern Union Company, and Trigen-Kansas City Energy Corporation, Appellants, v. Public Service Commission of the State of Missouri, et al., Respondents, and Ameren Corporation and Union Electric Company, d/b/a AmerenUE, Appellants, v. Public Service Commission of the State of Missouri, et al., Respondents. WD59196 and WD59197 Missouri Court of Appeals Western District |
| Court | Court of Appeal of Missouri (US) |
Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown, III
Counsel for Appellant: Gary W. Duffy, Robert J. Hack, Michael C. Pendergast, Jeffrey A. Keevil, James M. Fischer, James B. Lowery, Joseph H. Raybuck and Thomas H. Byrne
Counsel for Respondent: Dana K. Joyce, Lera L. Shemwell and Douglas E. Micheel
Opinion Summary:
Atmos Energy Corporation (Atmos); Missouri Gas Energy (MGE); Laclede Gas Company (Laclede); Trigen-Kansas City Energy Corporation (Trigen); Ameren Corporation (Ameren); and Union Electric Company (UE), d/b/a as AmerenUE, appeal the judgment of the Circuit Court of Cole County affirming the final "orders of rulemaking" of the Missouri Public Service Commission (PSC), promulgating 4 CSR 240-20.015, 4 CSR 240-40.015, 4 CSR 240-40.016, and 4 CSR 240-80.015 (the Rules), whose purpose is to regulate transactions between certain regulated public utilities and their affiliates through asymmetrical pricing standards.
On appeal, the appellants are contesting the validity of the Rules by challenging the authority of the PSC to promulgate them and the procedure by which they were promulgated, claiming generally that as affected entities they were entitled by law, but failed, to receive contested case procedures before the PSC in voicing their objections to the promulgation of the Rules.
Because we find that the circuit court lacked jurisdiction to review under section 386.510 the orders of rulemaking of the PSC promulgating the Rules, we dismiss for a lack of jurisdiction.
Dismissed for lack of jurisdiction.
Division I holds: The appellants seek review by this court, pursuant to section 386.540, after a denial of their writ of review by the circuit court, pursuant to section 386.510. If the circuit court did not have jurisdiction, then we have no jurisdiction. Section 386.510 provides for review by the circuit court of an "order or decision" of the PSC after rehearing by the PSC, as authorized by section 386.500, is either denied or granted. However, as discussed, infra, the "order or decision" referenced in sections 386.500 and 386.510 does not include orders of rulemaking of the PSC, requiring us to dismiss.
Even though neither "order" nor "decision" is defined in Chapter 386, this court has previously held that these terms do not include interlocutory orders, which indicates that the terms are not all inclusive. Further, by looking at the statutes as they were originally enacted in 1913 when the PSC was created, it is clear that the only orders and decisions that were reviewable under section 386.510 were those that resulted from the filing of a complaint, pursuant to section 386.390. Complaints under section 386.390 may be filed when a utility is violating a rule or law of the PSC. Moreover, there was no provision in the original statutes that authorized the PSC to promulgate rules. Thus, the procedure originally set forth in Chapter 386 was that: (1) the PSC heard complaints, section 386.390; (2) the PSC reheard or reconsidered its orders and decisions entered with respect to those complaints, section 386.500; and (3) the circuit court then reviewed those orders and decisions, section 386.510. This interpretation, of course, necessarily excludes rehearing and judicial review of the PSC's orders promulgating rules, since complaints with respect to orders of rulemaking did not and do not fall within the purview of section 386.390.
Our holding is further bolstered by a review of the amendments to the implicated administrative laws since 1913. While we acknowledge that later statutory amendments, such as section 394.312, have made it clear that section 386.390 complaints are not the only ones that may be reviewable under sections 386.500 and 386.510, the review in all such instances is specifically provided for in the statute. Moreover, the enactment of Chapter 536, the Missouri Administrative Procedure Act, in 1945 clearly indicates that rulemaking by the PSC is not subject to review under sections 386.500 and 386.510. In this regard, the PSC's authority to promulgate rules regulating utilities, section 386.250(6), was first enacted in 1977 and makes no reference to sections 386.500 and 386.510. Rather, section 386.250(6) provides that all proposed rules must be filed and published in accordance with Chapter 536, and nothing in Chapter 536 refers PSC rulemaking proceedings back to the procedures of sections 386.500 and 386.510 for review. Instead, Chapter 536 provides for review of agency rules and rulemaking procedures by declaratory judgment, under section 536.050.
Additional support for our conclusion regarding this statutory scheme is found in the present definitions of "rule" and "contested case," set forth in Chapter 536. "Rule" is defined in section 536.010(4)(d) as A "contested case" is defined in section 536.010(2) as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing." These two definitions are in keeping with the two separate powers of the PSC: (1) the "legislative power," which is "to formulate rules to effect a policy of statute"; and (2) the "judicial power," which is "to decide legal rights." Recognizing these two distinct powers of state agencies, including the PSC, the legislature created in Chapter 536 separate and distinct procedures of review: (1) review by declaratory judgment, under section 536.050, as to a rule; and (2) review of contested cases, under section 536.140, or uncontested cases, under section 536.150.
In interpreting the implicated statutes as we do, we are aware of the Missouri Supreme Court's decision in Union Electric Co. v. Clark, 511 S.W.2d 822 (Mo. 1974). There, the Court, faced with the issue of whether the validity of a PSC regulatory rule was subject to review by the declaratory judgment act, under section 536.050, or whether section 386.510 was the exclusive means for such review, held, in a division opinion authored by Commissioner Stockard and adopted by the Court, that review was solely by section 386.510. However, the Court never read section 386.510 in pari materia with the other sections of Chapter 386, nor did it cite any cases that had previously addressed and decided that issue. It is also significant to note that in its opinion the Court summarily concluded that it was "agree[d] . . . that the issues asserted present[ed] a 'Contested case' . . . ."
We recognize that if Clark is still good law, we are bound by its holding. However, the Supreme Court has never revisited the issue raised in Clark. Further, within three years after Clark was decided, the legislature not only amended the definition of "rule" in section 536.010(4)(d) to specifically provide that a "rule" can never be a "contested case," thus abrogating that portion of Clark, but enacted what is now section 386.250(6), authorizing the PSC to promulgate rules in accordance with Chapter 536, without referencing the review procedures of sections 386.500 and 386.510. Thus, in our view, the legislature in amending section 536.010(4)(d) and enacting section 386.250(6) intended to overrule the holding in Clark such that it and its progeny are no longer good law.
Accordingly, the appellants, in seeking to invalidate the PSC rules in question, were required to file a declaratory judgment action pursuant to section 536.050. Instead, they first sought rehearing by the PSC, under section 386.500, and when that was denied, review by the circuit court, under section 386.510, and consequently, review by us, under section 386.540. As a result of their pursuance of review by an improper procedure, the circuit court lacked the authority under section 386.510 to review the validity of the rules in question, and we lack jurisdiction to review the merits of the appellants' appeal, requiring us to dismiss.
Dismissed for lack of jurisdiction. Smart and Howard, JJ., concur.
Atmos Energy Corporation (Atmos); Missouri Gas Energy (MGE); Laclede Gas Company (Laclede); Trigen-Kansas City Energy Corporation (Trigen); Ameren Corporation (Ameren); and Union Electric Company (UE), d/b/a as AmerenUE, appeal the judgment of the Circuit Court of Cole County affirming the final orders of rulemaking of the Missouri Public Service Commission (PSC), promulgating 4 CSR 240-20.015, 4 CSR 240-40.015, 4 CSR 240-40.016, and 4 CSR 240-80.015 (the Rules). The stated purpose of the Rules is to regulate transactions between certain regulated public utilities and their affiliates. Among the provisions of the Rules are "asymmetrical pricing standards" that prohibit certain transactions between a corporate utility and its affiliates, unless the mandated pricing standards are met. On appeal, the appellants are contesting the validity of the Rules by challenging the authority of the PSC to promulgate them and the procedure by which they were promulgated, claiming generally that as affected entities they were entitled by law, but failed, to receive contested case procedures before the PSC...
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