Community Public Service Co. v. New Mexico Public Service Commission

660 P.2d 583, 99 N.M. 493
CourtNew Mexico Supreme Court
DecidedMarch 16, 1983
DocketNo. 14114
StatusPublished
Cited by8 cases

This text of 660 P.2d 583 (Community Public Service Co. v. New Mexico Public Service Commission) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Community Public Service Co. v. New Mexico Public Service Commission, 660 P.2d 583, 99 N.M. 493 (N.M. 1983).

Opinion

OPINION

PAYNE, Chief Justice.

This case presents several questions of first impression in New Mexico relating to the Public Service Commission’s (PSC) regulation of public utilities.

In January 1978, the PSC issued a notice of rulemaking regarding its intention to adopt a General Order. This was done pursuant to 16 U.S.C. Section 2601 (1978) requiring state regulatory authorities to hold hearings and adopt standards relating to various aspects of utility businesses. The proposed General Order set forth the PSC policy with respect to, inter alia, rate-setting treatment of public utility expenditures for advertising. The PSC also directed all gas and electric utilities within its jurisdiction to submit a list of these expenditures for the 1977 calendar year. The utilities submitted the requested information, and in May 1978, the PSC held a non-adversary, public hearing regarding the General Order.

In August 1979, the PSC approved and issued its order, entitled General Order No. 31 (G.0.31). The PSC denied applications for rehearing filed by several utilities. In November 1979, Community Public Service Company, et al. (Appellants), petitioned for review in district court pursuant to Section 62-11-1, N.M.S.A.1978 (Cum.Supp.1982). The district court dismissed the petition and found that it was without jurisdiction because none of the Appellants were “parties” to the proceeding according to Section 62-11-1, and therefore lacked standing. The court also found that “even if there were such standing, [Appellants’] petition for review is barred by the limitation of time specified in Section 62-11-1.”

I.

The term “party,” as used in Section 62-11-1, is not statutorily defined. The PSC notes that the meaning of the term has jurisdictional impact because any party to a proceeding before the PSC may petition for review. The PSC argues that Appellants were not parties because the proceeding involved was one of rulemaking for prospective application of standards which, because no one’s rights were foreclosed by the outcome, did not raise an immediate, adversarial controversy.

We cannot adopt the PSC’s argument for two reasons. First, the statutory language of Section 62-11-1 is too broad to support PSC’s contention. The statute states in pertinent part: “Any party to any proceeding before the commission may file a petition.... ” (Emphasis added.) ' In our view, this language is broad and requires liberal application which clearly encompasses Appellants. Therefore, we hold that Appellants were parties to the proceeding. Second, our interpretation of “party” fulfills the clear purposes of G.0.31. In the opinion attached to G.0.31, the PSC listed two main purposes to be accomplished by G.0.31:

(1) to reduce the length and expense of rate cases by instituting a general policy regarding expense items which often have minor dollar impact upon the rates ultimately charged ratepayers,
******
(3) to foster the establishment of just and reasonable rates to consumers.

If review of a General Order originating from a rulemaking proceeding were unavailable, as would be the case if there were no parties to the proceeding, objections to the policy expressed in the order could be raised only in individual cases. This time-consuming process would defeat the public policy of reducing the length and expense of rate cases. On the other hand, complete non-review of these cases would be equally undesirable. In our view, judicial review is the means specified by the Legislature to assure that rates are just and reasonable. It is clear that unnecessary postponement of this review cannot advance the legislative scheme to reduce the length and expense of rate cases. These considerations are especially compelling where, as here, the General Order governs items worth relatively minor sums of money. Even if the General Order were improper or unreasonable, its impact would be so minor that the utilities would probably not suspend rates in order to appeal issues involving such minor expenses.

STATUTORY LIMITATION PERIOD

Section 62-11-1 requires that in order to be heard “a petition for review must be filed within thirty days after the entry of the commission’s order.” We note that the district court does not state how Section 62-11-1 would bar Appellants’ claims if they had standing. The PSC offers two plausible bases for the trial court’s ruling that Appellants lacked standing. The PSC states that all of Appellants’ challenges to G.0.31 are either alleged due process violations arising under G.0.29’s rulemaking procedures, or are alleged problems with the standards themselves which were applied to Appellants before the official adoption of G.0.31. Because these problems and violations were never challenged, we choose to address them now.

1. The challenge of G.0.31 is actually a challenge of G.0.29.

G.0.29 became effective in June 1977. It establishes a rulemaking procedure which enables the PSC “to secure the views and statements of all interested persons concerning rules and regulations adopted pursuant to the Public Utility Act, § 68-5-1, N.M.S.A.1953.” PREAMBLE, G.0.29. G.0.29 states in pertinent part:

4. RULEMAKING PREREQUISITES: Prior to the adoption, amendment or repeal of any rule, the Commission shall, at least 45 days prior to its proposed action:
a. publish notice of its proposed action in newspapers of general circulation in the State of New Mexico * * *.
b. notify the utilities under its jurisdiction by mail * * *.
c. (1) give the date, time and place of any public hearing and state the manner in which comments may be submitted to the Commission by interested persons * * *.
d. [ajfford all interested persons reasonable opportunity to submit written data, views or arguments, in support of or opposition to, a proposed rule * * *.
******

Essentially, G.0.29 requires the PSC to give advance notice of proposed action in order to afford all interested persons reasonable opportunity to submit data and arguments relating to a proposed rule, and to adopt any rule or regulation by issuing a General Order. It also permits the PSC to appoint a hearing officer and to hold hearings at which the rules of civil procedure and evidence are not enforced.

The PSC argues that it followed G.0.29 when it adopted G.0.31, and that Appellants’ attack is actually a collateral attack on G.0.29. We hold that any attack on G.0.31 is time-barred because no challenge to G.0.29 was brought within the 30-day period set out in Section 62-11-1. Appellants argue that G.0.31 is not a “rule or regulation” and thus its adoption was not governed by G.0.29. Further, they argue that under Section 62-10-1, N.M.S.A.1978, the PSC must hold a hearing before adopting any order “affecting” rates. Section 62-10-1 states in relevant part:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bigelow v. Larry H. Miller Corp.
New Mexico Court of Appeals, 2022
NMAG v. NMPRC
New Mexico Supreme Court, 2013
N.M. Atty. Gen. v. N.M. Pub. Regulation Comm'n
2013 NMSC 42 (New Mexico Supreme Court, 2013)
Espinosa v. United of Omaha Life Insurance
2006 NMCA 075 (New Mexico Court of Appeals, 2006)
County of Bernalillo v. New Mexico Public Regulation Commission
14 P.3d 525 (New Mexico Supreme Court, 2000)
In Re Adjustments to Franchise Fees
14 P.3d 525 (New Mexico Supreme Court, 2000)
El Paso Electric Co. v. New Mexico Public Service Commission
706 P.2d 511 (New Mexico Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
660 P.2d 583, 99 N.M. 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/community-public-service-co-v-new-mexico-public-service-commission-nm-1983.