Office of Utility Consumer Counselor v. Public Service Co. of Indiana, Inc.

592 N.E.2d 709, 1992 Ind. App. LEXIS 864, 1992 WL 108218
CourtIndiana Court of Appeals
DecidedMay 26, 1992
DocketNo. 93A02-8805-EX-194
StatusPublished
Cited by2 cases

This text of 592 N.E.2d 709 (Office of Utility Consumer Counselor v. Public Service Co. of Indiana, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Office of Utility Consumer Counselor v. Public Service Co. of Indiana, Inc., 592 N.E.2d 709, 1992 Ind. App. LEXIS 864, 1992 WL 108218 (Ind. Ct. App. 1992).

Opinions

STATON, Judge.

The Office of the Utility Consumer Counselor (UCC) appeals from an order of the Indiana Utility Regulatory Commission (Commission) dismissing the UCC’s petition to set a hearing on a proposal by Public Service Company of Indiana, Inc. (PSI) to create a holding company through the transfer of all outstanding shares of PSI common stock. The UCC contends that Indiana law requires a hearing and Commission approval of such a transfer, while the Commission and PSI take the position that the statute relied upon by the UCC is inapplicable to the formation of a public utility holding company.

We reverse.

In November of 1987, PSI filed an application with the Federal Energy Regulatory Commission (FERC) pursuant to 16 U.S.C. § 824(b) for approval of PSI’s plan to form a holding company. After the Indiana Commission received a copy of this application, the UCC filed a motion to set a hearing on PSI’s proposal, contending that IND.CODE 8-1-2-83 requires the Commission to approve such a transaction after a hearing. PSI filed a motion to dismiss the UCC’s petition. On May 4, 1988, the Commission granted PSI’s motion to dismiss, concluding that the statute was ambiguous as to whether it applied to the proposed formation of a public utility holding company. The Commission also determined that transactions of this nature warranted an investigation in anticipation of rulemaking procedures. It is from this order that the UCC appeals.

Before addressing the merits of the appeal, we first turn to PSPs contentions in support of its renewed motion to dismiss the appeal for want of a justiciable factual or legal controversy. The Court of Appeals for the First District addressed this issue in dismissing a similar appeal as “not ripe for judicial review.” In Office of Utility Consumer Counselor v. Northern Indiana Public Service Co. (1989), Ind. App., 538 N.E.2d 957, trans. denied [hereinafter, NIPSCO ], the court held that the legality of a public utility’s formation of a holding company must be challenged in a declaratory judgment proceeding, rather than in a motion for a hearing before the Commission. Our application of the ripeness doctrine, however, compels a different result.

The federal ripeness doctrine is an element of Article III case and controversy requirements, the basic rationale of the doctrine being:

to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681.

The question raised by the UCC in this case, i.e., whether the Commission has the statutorily mandated authority to approve PSI’s proposed formation of a holding company, is a purely legal one. Indeed, in the cases cited in NIPSCO, supra, our court addressed similar questions when it reviewed several statutes in order to determine whether the Commission had subject matter jurisdiction. See Kentucky-Indiana Municipal Power Ass’n v. Public Service Co. of Indiana, Inc. (1979), 181 Ind.App. 639, 393 N.E.2d 776; U.S. Steel Corp. v. Northern Indiana Public Service Co., Inc. (1985), Ind.App., 482 N.E.2d 501, reh’g denied 486 N.E.2d 1082, trans. denied.1

[711]*711A controversy is considered “ripe” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. Sherwyn & Handel v. California State Dep’t of Social Services (1985), 173 Cal.App.3d 52, 218 Cal.Rptr. 778; California Water & Telephone Co. v. County of Los Angeles (1967), 253 Cal.App.2d 16, 61 Cal.Rptr. 618. An issue is ripe for review when further administrative processes will not aid in the development of the facts needed by the court to decide the question it is asked to consider. New York State Ophthalmological Soc. v. Bowen (D.C.Cir.1988), 854 F.2d 1379, cert. denied (1989), 490 U.S. 1098, 109 S.Ct. 2448, 104 L.Ed.2d 1003. See also Rocky Mountain Oil & Gas Ass’n v. Watt (10th Cir.1982), 696 F.2d 734 (issue is “ripe” when challenged agency action has direct and immediate impact on the chal lenging party); Mayne v. U.S. (1987), 13 Cl.Ct. 60 (judicial evaluation of agency action is “ripe” if the agency action is final and if legal issues are present); Kaylor v. Fields (8th Cir.1981), 661 F.2d 1177 (court must be assured that plaintiff will sustain an immediate injury and that such injury would be redressed by the relief requested).

Applying the multifarious interpretations of the ripeness doctrine to the challenged action leads to but one conclusion: the issue raised by the UCC is fit for judicial decision. The question presented is not academic or speculative; we need not ask the theoretical “what would happen if” question. The UCC will receive a hearing on PSPs proposal if we decide the Commission has jurisdiction. No hearing will be forthcoming if we reach the contrary result. Either determination will necessarily have a direct and immediate impact on the UCC, which is statutorily charged with representing the interests of all utility ratepayers in proceedings involving utilities in Indiana. There is no “threat” that a public utility could form a holding company; PSI’s proposal went far beyond the contemplative stage in its efforts to create such a company. Lastly, there is no question that the Commission’s grant of PSPs motion to dismiss was a final agency action. Indiana Civil Rights Comm’n v. Indiana Dep’t of Aging & Community Services (1988), Ind.App., 529 N.E.2d 872, trans. denied.

Having satisfied the first prong of the Abbott Laboratories test, we now look to the harm which may result from judicial abstention. Abbott, supra, 387 U.S. at 148-49; 87 S.Ct. at 1515, 18 L.Ed.2d 681. Int’l Union, UAW v.

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592 N.E.2d 709, 1992 Ind. App. LEXIS 864, 1992 WL 108218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-utility-consumer-counselor-v-public-service-co-of-indiana-inc-indctapp-1992.