Summary
In Toledo Coalition for Safe Energy, supra, this court identified those factors which are legally significant in evaluating the commission's discretionary decisions on permissive intervention.
Summary of this case from Senior Citizens Coalition v. Pub. Util. CommOpinion
No. 81-161
Decided March 3, 1982.
Public Utilities Commission — Rate increase proceeding — Leave to intervene — Denial of petition proper, when.
APPEAL from the Public Utilities Commission of Ohio.
The Toledo Coalition for Safe Energy, appellant herein, is a non-profit Ohio Corporation which has a membership of over 200 residential customers of the Toledo Edison Company (Toledo Edison), intervening appellee herein.
In August 1980, appellant petitioned the Public Utilities Commission (the commission), appellee herein, for leave to intervene in a rate increase proceeding initiated by Toledo Edison, notwithstanding the fact that the commission had already granted the Office of Consumers' Counsel leave to intervene on behalf of the residential customers in Toledo Edison's service area in the same rate increase proceeding.
Pursuant to R.C. 4911.01 et seq., the Office of Consumers' Counsel is charged with the responsibility of representing residential customers in proceedings before the commission when an application is filed by a public utility for a change of rates.
Subsequent to the filing of the petition for leave to intervene, the commission required appellant to submit a memorandum specifying how appellant's interest differed from that of, and would not be adequately represented by, Consumers' Counsel. Appellant contended that it advocated total exclusion of Toledo Edison's Davis-Besse nuclear power plant from the rate base on the grounds that the plant, during the first half of the test year, was non-operational more than one-half of the time and, during the second half of the test year, was shut down by the Nuclear Regulatory Commission for lengthy periods of time. According to appellant, Consumers' Counsel, on the other hand, argued that Davis-Besse was includable in the rate base, but that the rate base and operating income figures should be selectively reduced due to the plant's lack of operational availability.
Clearly, the pivotal intervention issue in this case pertains to the methodology of including Davis-Besse in the rate base and operating expense figures based on its availability. Appellant also contended that, unlike Consumers' Counsel, it advocated excluding civil fines imposed against Toledo Edison by the Nuclear Regulatory Commission from operating expenses. The commission states that the civil fines complained of by appellant, however, were never included in Toledo Edison's test year operating expenses or rate application, were not an issue in the rate proceeding and were not included as part of operating expenses in the commission's final order.
On November 19, 1980, the commission denied appellant's petition for leave to intervene for the reason that the resolution of the issues which appellant would pursue would not "affect subgroups of residential customers differently" and that appellant's interests were adequately represented by Consumers' Counsel. The commission also denied appellant's request for a rehearing.
The cause is now before this court on an appeal as of right.
Mr. Terry J. Lodge, for appellant.
Mr. William J. Brown, attorney general, Mr. Marvin I. Resnik and Mr. David M. Neubauer, for appellee.
Mr. Paul M. Smart and Mr. Fred J. Lange, Jr., for intervening appellee.
It is well-settled that pursuant to R.C. 4901.13, the commission has the discretion to decide how, in light of its internal organization and docket considerations, it may best proceed to manage and expedite the orderly flow of its business, avoid undue delay and eliminate unnecessary duplication of effort. Sanders Transfer, Inc., v. Pub. Util. Comm. (1979), 58 Ohio St.2d 21; Consumers' Counsel v. Pub. Util. Comm. (1978), 56 Ohio St.2d 220.
R.C. 4901.13 provides:
"The public utilities commission may adopt and publish rules to govern its proceedings and to regulate the mode and manner of all valuations, tests, audits, inspections, investigations, and hearings relating to parties before it. All hearings shall be open to the public."
A necessary concomitant of the commission's authority to regulate the manner and mode of its hearings is its discretionary power to permit or deny intervention in its proceedings. Consumers' Counsel v. Pub. Util. Comm., supra; Dworken v. Pub. Util. Comm. (1938), 133 Ohio St. 208. Indeed, we recently and unanimously rejected the concept of an unlimited right of intervention beyond the procedural control of the commission. Consumers' Counsel v. Pub. Util. Comm., supra, at pages 223-224, fn. 3.
As previously indicated, the commission denied appellant's petition for leave to intervene because (1) the resolution of issues which appellant would pursue would not "affect subgroups of residential customers differently" and (2) appellant's interests were adequately represented by Consumers' Counsel.
In evaluating the exercise of the commission's discretion in this case, we note, preliminarily, that, unlike a rate design case, the rate base and operating income proceeding at bar does not present issues of competing, limited, identifiable interests which differentiate prospective intervenors, like appellant, from ordinary members of the public. Rather, as the commission indicated in its order denying appellant's petition for leave to intervene, the resolution of the rate base and operating income issues would similarly affect all residential customers.
"Rate design" refers to the process of determining the proportion of the granted rate increase which will be shouldered by the various classes of customers, i.e. residential, low income residential, commercial, industrial, etc. Thus, in rate design cases, some groups of customers may have specific interests which they wish to pursue that might be in conflict with that of the residential class as a whole. For example, low income residential customers may have a special interest in a particular rate which Consumers' Counsel, representing a broader spectrum of residential customers, does not choose to advocate. Thus, due to the competing interests in a rate design proceeding, the commission frequently allows groups of residential customers to intervene — even when Consumers' Counsel has already been granted intervenor status.
For a representative sampling of cases where the commission has granted multiple group intervention in rate design cases, see paragraph six of the commission's order (case No. 80-377-EL-AIR) denying appellant's petition for leave to intervene.
As a matter of appellate review, the factors which we deem legally significant in assessing the commission's discretionary decision on permissive intervention include, inter alia, the nature and extent of the prospective intervenor's interest; the legal position advanced by the prospective intervenor and its probable relation to the merits of the case; whether the prospective intervenor's interests are adequately represented by the parties; whether intervention will prolong or unduly delay the case; and whether the party seeking intervention will significantly contribute to full development and equitable resolution of the underlying factual issues in the case. See, generally, Shapiro, Some Thoughts On Intervention Before Courts, Agencies and Arbitrators, 81 Harv. L. Rev. 721. See, also, Pierson v. United States (D. Del. 1976), 71 F.R.D. 75; United States v. IBM (S.D. N.Y. 1974), 62 F.R.D. 530, certorari denied, 416 U.S. 995; State, ex rel. Brown, v. Bd. of County Commrs. (1977), 52 Ohio St.2d 24 (intervention properly denied when the prospective intervenor failed to show a lack of adequate representation).
We believe that cases construing Rule 24 of both the Federal and Ohio Rules of Civil Procedure are useful, by way of analogy, in evaluating the intervention arguments advanced by the litigants at bar.
We find that, as a practical matter, the interest and objective of appellant and Consumers' Counsel are essentially identical, not antithetical. Both appellant and Consumers' Counsel are seeking the establishment of rates which reflect Davis-Besse's lack of operational availability. As previously noted, appellant contended that Davis-Besse be totally excluded from the rate base. Consumers' Counsel, though, argued that Davis-Besse was includable in the rate base, but sought reductions in the rate base and operating income figures due to the plant's low availability. This difference in strategy should not obscure the fact that the goal of appellant and Consumers' Counsel was identical — rates reflecting Davis-Besse's low availability.
Furthermore, we have carefully reviewed the record in this case and conclude that appellant has utterly failed to make any showing that its interests were not adequately represented by the expertise and experience of Consumers' Counsel. Appellant has made no specific showing as to what evidence or information it would have offered in the proceedings before the commission that Consumers' Counsel overlooked. A difference in tactics or strategy is insufficient to demonstrate inadequate representation. Pierson v. United States, supra.
When the interest of a party and prospective intervenor are virtually identical, we believe that the prospective intervenor, as one prerequisite to intervention, must make a compelling showing that the party already participating in the proceeding can not or will not adequately represent the prospective intervenor's interest. This is a showing that appellant has failed to make — even after the commission gave appellant the additional opportunity of demonstrating, in a memorandum, (1) its different interests or (2) the inadequacy of the Consumers' Counsel representation.
This court, in Krupp v. Poor (1970), 24 Ohio St.2d 123, paragraph two of the syllabus, defined judicial discretion in the following fashion:
"Judicial discretion is the option which a judge may exercise between the doing and not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in light of the particular circumstances of the case." See, also, State v. Adams (1980), 62 Ohio St.2d 151, 157 (abuse of discretion "connotes more than error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.")
Thus, applying the aforementioned definitions of discretion and abuse of discretion to the facts at bar, we conclude that the commission correctly and lawfully exercised its discretion in deciding that appellant's position on the rate base and operating expense issues did not differ from that of and would be adequately represented by Consumers' Counsel.
For all the foregoing reasons, therefore, the commission's order denying appellant's petition for leave to intervene is affirmed.
Order affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.
LOCHER, J., concurs in the judgment.