Wisconsin Public Service Corp. v. Public Service Com'n of Wisconsin
| Decision Date | 17 June 1993 |
| Docket Number | No. 92-1359,92-1359 |
| Citation | 501 N.W.2d 36,176 Wis.2d 955 |
| Parties | WISCONSIN PUBLIC SERVICE CORPORATION, A Wisconsin Corporation, Petitioner-Respondent, Dairyland Power Cooperative, Wisconsin Electric Power Company and Wisconsin Power & Light Company, Intervenors-Respondents, v. PUBLIC SERVICE COMMISSION OF WISCONSIN, Respondent-Co-Appellant, Wisconsin Public Power, Inc. System and Municipal Electric Utilities of Wisconsin, Intervenors-Appellants, NORTHERN STATES POWER COMPANY, A Wisconsin Corporation, Petitioner-Respondent, Dairyland Power Cooperative, Wisconsin Public Service Corporation, Intervenors-Respondents, Wisconsin Public Power, Inc. System and Municipal Electric Utilities of Wisconsin, Intervenors-Appellants, v. Charles H. THOMPSON, Chairman of the State of Wisconsin Public Service Commission, Mary Lou Munts, Commissioner, Cheryl L. Pofahl, Commissioner, Respondents, Public Service Commission of Wisconsin, Respondent-Co-Appellant. |
| Court | Wisconsin Supreme Court |
Previously Reported at: 174 Wis.2d 705, 497 N.W.2d 723 (1993).
MOTION FOR RECONSIDERATION DENIED, WITH $50.00 COSTS.
WILCOX, Justice, did not participate.
CECI, Justice .
All of the cases that this court decides are significant to the parties and to the development of the law in this state and therefore, of necessity, have state and national significance. That this case involves powerful utility corporations and the Public Service Commission of Wisconsin is not a valid reason to change our procedures.
I find no citation to our internal operating procedures in the dissent for its assertion that "now an alternative procedure is possible when this court divides evenly on a case before us on by-pass or certification." Dissenting op. at 38.
The reason there is no citation is obvious: there is no such alleged procedure; and for the dissent to assert that one is "possible" is inaccurate until this court adopts such a change in our internal operating procedures.
Further, the procedure suggested by the dissent, that is, to "remand the case to the court of appeals," dissenting op. at 38, is poorly thought out. Obviously, the publication of the votes of the members of this court would alert all parties and the court of appeals panel as to the thoughts of this court's members. This could, and may very well, lead to all sorts of problems.
Changes in our internal operating procedures, if warranted by more than just the outcome of a particular case, should be carefully thought out and researched.
I concur in the order of this court denying the motion for reconsideration.
SHIRLEY S. ABRAHAMSON, Justice .
I would treat the motion for reconsideration as a motion to vacate the court's order of April 13, 1993, to vacate the court's order accepting bypass of the court of appeals, and to remand the case to the court of appeals. I would schedule this motion for oral argument and give the parties the opportunity to file supplemental briefs.
Because the court is not willing to schedule this motion for further consideration, I would conclude on the basis of the briefs filed to date that we should vacate the court's order of April 13, 1993, and the court's order accepting bypass and remand the case to the court of appeals. Strong policy considerations mandate this result.
This case presents an issue of first impression on federal preemption of state utility regulation and apparently has state and national significance. The case came before our court on our granting a party's petition to bypass the court of appeals. 1
The court heard oral argument in this case on March 31, 1993. On April 13, 1993, less than two weeks after oral argument, we issued an order stating that a six-member court (one justice abstaining) was equally divided and that the judgment of the circuit court was affirmed.
The state has granted litigants the right of appeal to provide a second judicial forum which can scrutinize the case and review the trial court's action. Appellate review serves the goals of correcting errors and establishing precedent which will aid in preventing errors in the future. A reviewing court cannot perform either of these traditional functions when its members are evenly divided and the court is unable to render a decision and issue an opinion in a particular case. 2
Before the creation of the court of appeals in 1978, this court had no option but to affirm the judgment of the trial court when the justices divided evenly on a case. The April 13, 1993, order...
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State Of Wis. Ex Rel. Ismael R. Ozanne v. Fitzgerald
...the appellate process on both the parties and the judicial system. See Wisconsin Public Serv. Corp. v. Public Service Comm'n of Wis., 176 Wis. 2d 955, 958 n.1, 501 N.W.2d 36, 37 n.1 (1993) (Abrahamson, J., concurring). Because this appeal presents significant issues, we believe that the Sup......