Utah Power & Light Co. v. Idaho Public Utilities Com'n

• Decision Date: 20 June 1984
• Docket Number: U-1009-84,No. 14433,14433
• Citation: 685 P.2d 276,107 Idaho 47
• Court: Idaho Supreme Court
• Parties: UTAH POWER & LIGHT COMPANY, Appellant, v. IDAHO PUBLIC UTILITIES COMMISSION, Idaho Irrigation Pumpers Assn., Inc., Beker Industries Corp., and Monsanto Company, Respondents. In the Matter of the MOTION OF UTAH POWER & LIGHT CO. TO ALTER AND AMEND ORDER NO. 13448, CASE NO.

Page 276

685 P.2d 276

107 Idaho 47

UTAH POWER & LIGHT COMPANY, Appellant, v. IDAHO PUBLIC UTILITIES COMMISSION, Idaho Irrigation Pumpers Assn., Inc., Beker Industries Corp., and Monsanto Company, Respondents In the Matter of the MOTION OF UTAH POWER & LIGHT CO. TO ALTER AND AMEND ORDER NO. 13448, CASE NO. U-1009-84.

No. 14433.

Supreme Court of Idaho.

June 20, 1984.

W.F. Merrill of Merrill & Merrill, Pocatello, Sidney G. Baucom, Salt Lake City, Utah, for appellant.

David H. Leroy, Atty. Gen., Michael S. Gilmore, Deputy Atty. Gen., Boise, Racine, Huntley, Olson, Nye & Cooper, Pocatello, Dan L. Poole, of Elam, Burke, Evans, Boyd & Koontz, Boise, for respondents.

BISTLINE, Justice.

The basic issue presented today is whether the Idaho Public Utilities Commission (PUC) has the authority to grant a public utility a surcharge to recover past losses caused by an invalid PUC order set aside by this Court on appeal.

On December 29, 1976, Utah Power & Light Company (UP & L) applied to the PUC to increase its rates and charges for its customers in the State of Idaho by $12,536,000. UP & L requested that the proposed rates and charges become effective on January 31, 1977. The proposed rates were suspended by the PUC pursuant to I.C. § 61-622. ¹

On September 29, 1977, pursuant to Order No. 13448, the PUC authorized UP & L to increase its rates and charges by $3,371,408 annually instead of by the $12,536,000 requested by UP & L. UP & L timely petitioned for rehearing from this order. On November 11, 1977, the PUC issued Order No. 13550 which denied in part and granted in part UP & L's petition for rehearing. UP & L timely appealed to this Court from Order No. 13550 denying in part its petition for rehearing.

In the meantime, a rehearing was held. On March 16, 1978, the PUC determined that it had erred in one aspect of its calculation of UP & L's revenue requirement and that Order No. 13448 of September 29, 1977, should have granted an increase of $3,647,900 to UP & L. The PUC then issued Order No. 13739 which superseded Order No. 13448 and authorized UP & L to file higher tariffs based upon its correction of the earlier order.

UP & L's appeal from Order No. 13448 came at issue in December, 1978. This Court issued an opinion in the appeal, Utah Power & Light Company v. Idaho Public Utilities Commission, 102 Idaho 282, 629 P.2d 678 (1981) (UP & L I ), in May of 1981. In UP & L I, the Court set aside PUC Order No. 13448 because it determined that the PUC erred by failing to make adjustments to the 1976 test year data for certain "known and measurable changes," which error resulted in the establishment of an artificially low rate base. Id. at 284, 629 P.2d at 680.

On July 27, 1981, UP & L filed a petition for hearing with the PUC requesting it to modify Order No. 13448 set aside by this Court in UP & L I and to recover UP & L's shortfall of operating revenue resulting from that order. By testimony and exhibits submitted, UP & L quantified the amount of additional revenue which it should have recovered during Order No. 13448's period of effectiveness from September 29, 1977, to March 21, 1978, as $6,068,000. It requested that it be allowed to recover this deficiency by a surcharge to its Idaho customers imposed over a 12-month period.

Upon receiving UP & L's petition, the PUC raised the question of its authority to impose a surcharge of the kind requested by UP & L and set oral argument in the matter. After argument, the PUC issued an informal oral ruling from the bench and declined to hold any further hearings on UP & L's petition.

The PUC summarized the Public Utility Law thus in denying UP & L's request for a surcharge:

"[W]e construe the Public Utility Law as follows: When any party, be it utility, ratepayer or the State of Idaho, appeals a rate setting Order of the Idaho Public Utilities Commission to the Supreme Court of Idaho, but does not stay the effectiveness of the Order by posting bond under the terms of the Public Utility Law, then the rates and charges set forth by that Order are final in all respects as service is provided and consumed so long as the Order continues in effect. If the Order is later set aside by the Supreme Court of Idaho, no rates and charges previously collected may be adjusted as a result; similarly, no rates and charges later established by the Commission may be adjusted from what they otherwise would have been to take into account what the appealed Order would have been before it was set aside had it, during the time it was in effect, conformed to or been altered or amended to meet the objections of the opinion of the Supreme Court of Idaho. The statutes governing rehearing, appeal and stay of our orders, and the general prohibitions against setting rates based upon previous periods of unreasonably high or unreasonably low rates, admit no other construction. We are a regulatory Commission, not a court of law, and have no authority to award damages except as given to us by statute." (Footnote omitted.)

We agree with the PUC's interpretation of the Public Utilities Law and therefore affirm its decision in this case.

I.

UP & L contends that the stay and bond procedures provided by the Public Utilities Laws, I.C. §§ 61-633 through 61-638, ² do not provide the exclusive means for obtaining monetary relief from PUC orders denying public utilities' requested rate increases. UP & L argues that these procedures are not always available to a petitioning party and so should not be construed as providing the exclusive means for obtaining monetary relief.

A. EXCLUSIVE REMEDY

UP & L contends that the granting of a stay by either the district court or the Supreme Court pursuant to I.C. §§ 61-633 and -636 is discretionary with the courts. UP & L argues that under the PUC's interpretation of the stay and bond provisions an appeal can only be an effective remedy if the reviewing court chooses to exercise its discretion in granting a stay. UP & L argues that to make the effectiveness of an appeal hinge upon the granting of a discretionary stay conflicts with its basic due process rights and with I.C. § 61-627 which grants any aggrieved party a direct right of appeal to the Supreme Court.

In Joy v. Winstead, 70 Idaho 232, 238, 215 P.2d 291, 293 (1950), this Court, in addressing the question of a district court's jurisdiction to stay PUC orders, first observed "that due process requires that courts stay an order of a commission, i.e., regulatory body, if enforcement thereof may result in confiscation and irreparable loss, until the final adjudication, through appropriate channels, of the correctness of the order." The Court followed with the declaration that "pendente lite, the Company must be protected against confiscation, if irreparable, and to insure and accomplish this Courts may and must, if the Commission does not, stay enforcement of a confiscatory rate, correspondingly protecting the consumer." 70 Idaho at 238, 215 P.2d 291. Our reading of this passage, with the following correction of the obvious clerical error in capitalization and another in punctuation, is that "to insure and accomplish a company's protection against confiscation, courts may, and must if the Commission does not, enter appropriate stay orders."

Four years later this Court in Mountain States Tel. & Tel. Co. v. Jones, 75 Idaho 78, 267 P.2d 634 (1954), in commenting on Joy v. Winstead, observed that it had not therein in any way outlined the procedure or what was necessary to be shown in order to justify a stay order. 75 Idaho at 82, 267 P.2d at 636. After citing Joy v. Winstead for the proposition that a proceeding to obtain a stay "is not a rate hearing, but an extraordinary, emergency proceeding ... pendente lite for the sole and only purpose of considering temporary relief against probable confiscation," 75 Idaho at 83, 267 P.2d at 637, the Court concluded that the issuance of a stay laid in the "sound, considered judicial discretion of the trial court after a full hearing on the single issue of probable confiscation." ³ Giving the guidance which was not contained in Joy v. Winstead, the Court quoted from Public Service Commission v. Indianapolis Rys, 225 Ind. 30, 72 N.E.2d 434, 439 (1947), for the rule that:

" ' "All that is necessary is that plaintiff show that it is prima facie entitled to an injunction; that the injury to plaintiff will be certain and irreparable if the application for an interlocutory injunction be denied, and, if the injunction be granted, that the injury to the opposing party, even if the final decree be in its favor, may be adequately indemnified by bond." ' "

75 Idaho at 84, 267 P.2d at 637.

We read the language of the Mountain States case as modifying the language of Joy v. Winstead only to the extent of requiring a prima facie showing to establish probable confiscation pendente lite.

UP & L additionally argues that the remedy provided by the stay and bond procedures should not be thought exclusive because the remedy is not available in cases in which there has been no showing of "irreparable damage to the petitioning party." Irreparable damage is that injury which cannot be adequately compensated for monetarily. See Black's Law Dictionary 707 (rev. 5th ed. 1979). In response to the contention that the issuance of a stay was not necessary to protect the utility pending appeal from a confiscatory rate order and so was discretionary with the court, the Court, in Joy v. Winstead, held that:

"[T]o await appeal before a stay order could be issued by this Court would be inadequate, is apparent for these reasons: First, the losses sustained during the time from May 14, 1948, when increased rates were asked and until appeal to this Court, not yet taken and now unavailable until the rehearing before the Commission is concluded, because the rehearing must be completed (Sec. 61-627, I.C.) before an appeal will lie and we have jurisdiction to grant a stay, could not be recouped by an...