The Missouri Supreme Court held that the Office of Public Counsel was entitled to a writ of mandamus requiring the Public Service Commission to vacate its December 29, 2006 approval and January 1, 2007 implementation of Empire District Electric Company's proposed rate tariffs because the Commission abused its discretion when it failed to provide Public Counsel with a reasonable period of time to seek review of the order.
Empire District Electric Company (Empire), a public utility and electrical corporation, filed a petition on February 1, 2006 with the Public Service Commission (Commission) proposing new tariffs to increase consumer electricity rates by ten percent. On December 21, 2006, the Commission issued a report and order rejecting Empire's request and directing Empire to file tariffs conforming with the report and order. Empire filed a second proposal on December 27, 2006, but withdrew it the following day. Later on December 28, 2006, Empire replaced its withdrawn proposal with a new tariff proposal. Empire also requested that the Commission expedite approval of the proposal so that the new rates could be effective by January 1, 2007. On the same day, December 28, 2006, the Office of Public Counsel (Public Counsel), who represents the public in all proceedings involving utility rates before the Commission, filed an objection to Empire's proposal arguing that the tariffs did not conform to the requirements of the Commission's December 21st report and order. Public Counsel also argued that there was no need to expedite approval of the proposal because no local rule required that the new tariffs be put into effect by January 1, 2007.
At 3:40pm, on Friday, December 29, 2006, the Commission approved Empire's proposed tariffs and made the rates effective on Monday, January 1, 2007. The timing of the Commission's order, and the January 1st effective date, left Public Counsel with one hour and twenty minutes to timely file an application for rehearing with the Commission. As a result, Public Counsel was unable to file an application for review. On January 4, 2007, Public Counsel filed a petition for a writ of mandamus with the court of appeals and the writ was denied. Public Counsel then filed a petition for a writ of mandamus with the Missouri Supreme Court. Public Counsel argued that the tariffs put into effect by the December 29th order of the Commission were not in compliance with the December 21st report and order. In addition, because the tariffs order was received the last business day before the January 1st effective date, Public Counsel argued that it was left with an unreasonable amount of time in which to file an application for rehearing.
The Missouri Supreme Court held that Public Counsel was entitled to a writ of mandamus requiring the Commission to vacate its December 29th order and requiring the Commission to provide Public Counsel reasonable time to prepare and file an application for rehearing on the tariffs. The Court acknowledged that the Commission had discretion to set a period of time for rehearing that was reasonable, but held that by issuing the December 29th order with an effective date of January 1, 2007, the Commission abused its discretion to provide Public Counsel with a reasonable period of time in which to appeal the order.
II. Legal Background
A. Writ of Mandamus
Mandamus is a remedy used to enforce an established legal right by compelling a person, such as an administrative body, to perform a duty required by law.[2] Traditionally, mandamus is limited to enforcing ministerial duties and is not issued to control the exercise of an administrative body's discretionary powers.[3] However, an exception is recognized when the administrative body has abused its discretion.[4] "A litigant asking for relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed."[5] The Missouri Supreme Court is vested with constitutional authority to issue extraordinary writs against administrative bodies such as the Commission.[6]
B. Reasonableness
The Office of Public Counsel represents the public in all proceedings involving utility rates before the Public Service Commission.[7] When the Commission approves a tariff for new utility rates, Public Counsel is entitled to file an application for rehearing.[8] For an application for rehearing to be timely, the application must be filed "before the effective date of such order or decision."[9] An applicant is prohibited from seeking rehearing on any grounds not included in its application.[10]
RSMo § 386.490.3 provides that an "order or decision of the commission shall of its own force take effect and become operative thirty days after the service thereof, except as otherwise provided."[11] The Missouri Supreme Court has interpreted this language to allow the Commission to "fix a reasonable time in lieu of the…thirty day period" for the effective date of an order or decision of the Commission.[12] The Court has explained that applicants for rehearing should "be given a reasonable period of time in which to file their petitions."[13]
III. Commentary
As a matter of convenience, the Court could have resolved this question by setting a period of time that the Commission must wait before making its orders effective. Public Counsel made such a request and asked the Court to set the period at ten days. However, the Court's holding remained consistent with its prior interpretation of RSMo § 386.490.3 which have required the Commission to wait a "reasonable" period of time before making its orders effective.
[1] No. SC88390 (Mo. Oct. 30, 2007) (en banc), available at http://www.courts.mo.gov/file.jsp?id=26582. The West reporter citation is 236 S.W. 3d 632 (Mo. 2007) (en banc).
[2] 24 Daniel P. Card & Alan E. Freed, Missouri Practice Appellate Practice § 12.2 (2d ed. 2001).
[3] Id.
[4] Id.
[5] Office of Public Counsel, 236 S.W. 3d at 635 (citing Furlong Companies v. City of Kansas City, 189 S.W. 3d 157, 165-66 (Mo. 2006) (en banc)).
[6] Id. at 635-36. (citing State of Missouri ex rel. A & G Commercial Trucking, Inc. v. Director of the Manufactured Housing, et al., 168 S.W. 3d 680, 683 (Mo. App. 2005)).
[7] Id. at 634.
[8] Id.
[9] Id. at 636 (citing Mo. Rev. Stat. § 386.500.2 (2000)).
[10] Id.
[11] Id. (citing Mo. Rev. Stat. § 386.490.3 (2000)).
[12] Id. at 636.
[13] Id. at 636 (citing State ex rel. St. Louis County v. Public Service Commission, 228 S.W. 2d 1, 2 (Mo. 1950) (holding that the period of time between the Public Service Commission's report and order issued on January 18, 1949 and supplemented on January 31, 1949 and its effective date on February 1, 1949 was an unreasonably short period time for applicants to file an application for rehearing)).
Research Sources on Topic:
- State ex rel. St. Louis County v. Public Service Commission, 228 S.W. 2d 1 (Mo. 1950) (discussing an unreasonable period of time between the Commission's order and its effective date).
- State ex rel. Alton R. Co. v. Public Service Commission, 155 S.W. 2d 149 (Mo. 1941) (briefly discussing the Commission's ability to substitute a reasonable period of time in lieu of a 30-day effective date).
- 24 Daniel P. Card & Alan E. Freed, Missouri Practice Appellate Practice § 12.2 (2d ed. 2001) (discussing requirements for writ of mandamus).
