State, Dept. of Health and Human Serv's v. Pub. Util. Comm'n of Nev. ( 2015 )

 reasons stated below, we conclude that the PUC misinterpreted NRS
427A.797 when it altered the ADSD's budget and therefore exceeded its
statutory authority.
In reviewing the PUC's final decision, our role is identical to
that of the district court. Nev. Power Co. v. Pub. Utils. Comm'n of Nev.,
122 Nev. 821, 834, 138 P.3d 486, 495 (2006). Thus, we
may affirm the decision of the [PUC] or set it aside
in whole or in part if substantial rights of the
petitioner have been prejudiced because the final
decision of the Commission is:
(a) In violation of constitutional or statutory
provisions;
(b) In excess of the statutory authority of the
Commission.
NRS 703.373(11); see also Nev. Power Co., 122 Nev. at 834, 138 P.3d at
495.
The ADSD is not limited in using the surcharge money at the deaf-and-
hard-of-hearing centers to funding services with a nexus to
telecommunication devices and the dual-relay system
The PUC's interpretation of NRS 427A.797 is an issue of law
that we review de novo. Nev. Power Co., 122 Nev. at 834, 138 P.3d at 495.
We interpret unambiguous statutes based on their plain meaning. D.R.
Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 476, 168 P.3d
731, 737 (2007). "A statute is ambiguous if it is capable of being
understood in two or more senses by reasonably well-informed persons."
Id.
As an initial matter, we address whether the surcharge money
may only be used to fund services with a nexus to telecommunication
devices and the dual-relay system. Here, the statutory scheme is helpful.
See In re CityCenter Constr. & Lien Master Litig., 129 Nev. 310
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P.3d 574, 580-81 (2013) (interpreting a statute by looking to a related
statute and construing them harmoniously); Hernandez v. Bennett -Huron,
128 Nev. „ 287 P.3d 305, 315 (2012) (identifying ambiguity as a
justification for looking beyond the statute at issue and referencing the
statutory scheme).
The Legislature directed that the provisions of NRS Chapter
427A are to be "liberally construed to effect its stated purposes." NRS
427A.030 (emphasis added). The Legislature expressly stated its intent to
serve the holistic needs and interests of people with disabilities, including
people with impaired hearing. NRS 427A.010. The statute provides, in
pertinent part, that the State, "within the limits of available resources,"
shall help people with disabilities
secure equal opportunity to the full and free
enjoyment of and access to:
(a) Full participation in the social and
economic life of the State;
(b) Opportunities for remunerative
employment;
(d) Freedom and independence in planning
and managing their lives, including, without
limitation, the ability to exercise individual
initiative;
(0 The best possible physical and mental
health, without regard to economic status;
(g) Necessary health, personal assistance
and independent living services that are designed
to enable persons with disabilities to avoid
receiving institutional care, or to transition from
an institutional setting back to their communities;
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(h) Respite for family members of persons
with disabilities from their duties as primary
caregivers; and
(i) Meaningful participation in a wide range
of civic, cultural and recreational opportunities.
NRS 427A.010(2). Inasmuch as NRS 427A.797 is unclear regarding the
specific services that the deaf-and-hard-of-hearing centers may provide
and what must be funded by the surcharge money, the statutory scheme
and its stated purpose offers a reliable basis for concluding that the
Legislature intended something broader than what the PUC purports.
Thus, we hold that the surcharge may fund services at the centers that
serve the various interests in NRS 427A.010.
The PUG lacks authority to determine ADSD's budget
The first provision of NRS 427A.797 (the "program provision")
requires the ADSD to create and manage a program that helps people
with impaired speech or hearing obtain and use telecommunication
devices or a "dual party-relay system." NRS 427A.797(1). While the
program provision tasks the ADSD with creating and managing the
program, it also requires the program to be "approved by the [PUC]." Id.
The second provision of NRS 427A.797 (the "surcharge
provision") requires "the Commission" to establish a surcharge amount
that customers of telephone companies must pay. NRS 427A.797(2). The
amount of the surcharge must be enough to (1) finance the program
concerning telecommunication devices and the dual-relay system that the
ADSD creates and manages, (2) "Mund the centers for persons who are
deaf or hard of hearing operated by this State," and (3) cover a portion of
costs that the ADSD incurs in carrying out the provisions of a statutory
scheme regarding regulation of interpreters and realtime captioning
providers. Id.
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The third provision of NRS 427A.797 (the "account provision"),
creates an "Account for Services for Persons With Impaired Speech or
Hearing" that the ADSD administers. NRS 427A.797(3). The money that
the ADSD obtains pursuant to the surcharge provision is credited to this
account, which can be used for enumerated purposes, including:
(d) For the general administration of the
program developed and administered pursuant to
[the program provision];
(f) To fund the centers for persons who are
deaf or hard of hearing operated by this State[.]
Id.
Thus, in both the surcharge provision and the account
provision, the Legislature identified funding for the program that concerns
telecommunication devices and the dual-relay system separately from
funding for the deaf-and-hard-of-hearing centers. Given that the
Legislature, on two occasions, listed the telecommunication device/dual-
relay system program separately from the deaf-and-hard-of-hearing
centers, and since the Legislature did not mention the centers when
defining the telecommunication device/dual-relay system program, we find
that the centers are distinct from the program and its purpose.
The language in NRS 427A.797 does not authorize the PUC to
alter the ADSD's budget. The program provision permits the PUC to
approve or disapprove of the program concerning telecommunication
devices and the dual-relay system. NRS 427A.797(1). The surcharge
provision permits the PUC to "establish by regulation" the amount of the
surcharge that must be "sufficient to . . [c]over the costs of the program,"
which provides telecommunication devices and the dual-relay system, and
to fund the deaf-and-hard-of-hearing centers. NRS 427A.797(2).
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Therefore, at most, the PUC can approve or disapprove of the program
concerning telecommunication devices and the dual-relay system and set a
surcharge rate to finance that program and the deaf-and-hard-of-hearing
centers. See NRS 427A.797.
However, that is not to say that the PUC must set the
surcharge rate at whatever level the ADSD requests. The PUC is still
bound by NRS 704.001(4), which requires the PUC to provide customers
with just and reasonable utility rates. Thus, while the PUC cannot
approve or disapprove of funding for individual budget items of the ADSD,
it may find that the overall amount requested by the ADSD leads to an
unjust or unreasonable surcharge rate for customers, and it may adjust
the surcharge rate accordingly. See Nevada Power Co. v. Eighth Judicial
Dist. Court, 120 Nev. 948, 957, 102 P.3d 578, 584 (2004) (holding that
"Mlle only limit on the PUC's authority to regulate utility rates is the
legislative directive that rates charged for services provided by a public
utility must be 'just and reasonable' and that it is unlawful for a public
utility to charge an unjust or unreasonable rate" (citation omitted)). 2
2 The dissent uses this "just and reasonable" requirement to argue
that "all approved rates reflect to some degree the costs actually caused by
the customer who must pay them," K N Energy, Inc. v. Fed. Energy
Regulatory Gomm'n, 968 F.2d 1295, 1300 (D.C. Cir. 1992), and thus the
ADSD should be limited in using the surcharge money at the deaf-and-
hard-of-hearing centers to fund services with a nexus to
telecommunication devices and the dual-relay system. The caselaw used
by the dissent to support this contention, however, concerns discretionary
rate setting by public utilities, id. at 1296; see also Sithe/ Independence
Power Partners, L.P. v. Fed. Energy Regulatory Comm'n, 285 F.3d 1, 1-3
(D.C. Cir. 2002); Illinois Commerce Comm 'n v. Fed. Energy Regulatory
Comm'n, 721 F.3d 764, 769-72 (7th Cir. 2013), cert. denied sub nom.
Schuette v. Fed. Energy Regulatory Comm'n, 571 U.S. , 134 S. Ct. 1277
continued on next page...
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Conclusion
We hold that the PUC misinterpreted NRS 427A.797 and,
thus exceeded its statutory authority when it altered the ADSD's budget.
As a result, the PUC prejudiced the ADSD's substantial rights because it
precluded the ADSD from exercising authority that it possessed.
Therefore, we
ORDER the judgment of the district court REVERSED and
REMAND this matter to the district court for proceedings consistent with
this order.
242 G"dia"te
°
Parraguirre
J.
Saitta
PICKERING, J., dissenting:
The majority identifies the question on appeal as being
whether the PUC exceeded its statutory authority by "alter[ing] the
ADSD's budget." Majority at 1. In actuality, the conduct by the PUC in
question intrudes less into the ADSD's domain than the majority's
...continued
(2014), and cert. denied sub nom. Hoosier Energy Rural Elec. Coop., Inc. v.
Fed. Energy Regulatory C'omm'n, 571 U.S. , 134 S. Ct. 1278 (2014), not
legislatively mandated surcharges for the purpose of funding services for
the deaf and hard of hearing, as in the present case.
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characterization of the circumstances suggests, inasmuch as the PUC only
acted to "set[ ] the telecommunication device for the deaf surcharge rate
per access line for telecommunication customers in Nevada" by refusing to
fund items in the ADSD's budget that lacked a nexus to
telecommunication devices for the deaf. Thus, the central issue raised
here is more properly framed as the extent to which an executive agency
like the ADSD, which has neither democratic accountability nor that
which exists between a utility provider and customer, can demand that
the PUC impose a surcharge for services entirely divorced from those
services that the PUC is tasked with regulating, and can do so without
allowing the PUC meaningful oversight authority—that is, what limits
exist as to the scope of services a utility's customer can be expected to fund
through his or her payments to said utility?
Based on the Legislature's statement that the provisions of
NRS Chapter 427 are to be "liberally construed," the majority lays out the
astonishing proposition that "[t]he ADSD is not limited in using the
[PUC's] surcharge money. . . to fund[] services with a nexus to" the utility
services that the PUC regulates. Majority at 2. This, then, is the world
which the majority envisions—if the Legislature has instructed that a law
imposing a surcharge be broadly interpreted to ensure its purposes are
fulfilled, those who pay the bills upon which said surcharge is imposed
may permissibly be required to subsidize every socially desirable but
otherwise unfunded spending program through that surcharge; a
legislatively imposed surcharge upon internet users to fund the purchase
of laptops for disadvantaged youth, for instance, could be extended by an
interpreting executive agency •to fund public schools generally, simply
because the extension of that surcharge would be consistent with the
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Legislature's purpose of improving educational opportunities for low-
income students, and the Legislature had instructed that the surcharge
provision be read "liberally." Even setting common-sense objections aside,
this ideation is simply incorrect. The Legislature's instruction that certain
laws be liberally construed is merely linguistic—it mandates this court's
generosity in its interpretation of statutory language, not in the doling out
of surcharge funds to deserving programs—and therefore its scope is
constrained by the actual textual limits of the relevant statutes. In the
instant case, it is NRS 704.001(4), which requires that any utility charges
imposed by the PUC be "just and reasonable," that ought to constrain our
interpretation of NRS 427A.797.
In the context of federal law, particularly the federal Natural
Gas Act and Federal Power Act, utility charges are limited—as they are in
Nevada—to those which are "just and reasonable," and, as derived from
this limitation, the concept of "cost-causation" sets the outward bounds of
service costs that may be imposed on utility customers. See K N Energy,
Inc. v. F.E.R.C., 968 F.2d 1295, 1300 (D.C. Cir. 1992); Sitheandependence
Power Partners, L.P. v. F.E.R.C., 285 F.3d 1, 5 (D.C. Cir. 2002); Illinois
Commerce Comm'n v. EE.R.C., 721 F.3d 764, 770-71 (7th Cir. 2013), cert.
denied sub nom. Schuette v. F.E.R.C., 134 S. Ct. 1277 (2014), and cert.
denied sub nom. Hoosier Energy Rural Elec. Co-op., Inc. v. F.E.R.C., 134 S.
Ct. 1278 (2014). This cost-causation principle provides that, "all approved
rates must reflect to some degree the costs actually caused by the
customer who must pay them"; or, put in the majority's terms, there must
exist a direct nexus between the benefit the customer draws from a utility
and the charges assessed against that customer. Illinois Commerce
Comm'n, 721 F.3d at 770; see Majority at 1-2 & n.1. The majority admits
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that it is "unlawful for a public utility to charge an unjust or unreasonable
rate" given NRS 704.001(4), but denies that cost-causation has any
bearing on the determination, providing no alternative and instead
attempting to elide the question of what categories of charges a utility
may justly and reasonably impose on its customers via surcharge.
Majority at 6-7.
But, if neither cost-causation nor any similar nexus is
required to render a surcharge "just and reasonable," and if instead a
"liberal" reading of NRS 427A.797 tasks the PUC legislatively with using
its rate-setting authority to underwrite social programs completely
untethered from its utility services, a real question exists as to the
section's constitutionality. Under such an interpretation, NRS 427A.797's
surcharge provision would essentially be an "enforced contribution to raise
revenue" instead of one created "to reimburse the state for special services
rendered to a given party." Starr v. Governor, 802 A.2d 1227, 1229 (N.H.
2002). And, despite its official title, the contribution mandated by NRS
427A.797's surcharge provision would therefore be not a surcharge, but a
tax. Starr, 802 A.2d at 1229; see also Cumberland Farms, Inc. v. Tax
Assessor, State of Me., 116 F.3d 943, 946 (1st Cir. 1997) (the imposition of
a "tax-like" surcharge is taxation). Generally speaking, because "[t]he
only security against the abuse of [the taxation] power, is found in the
structure of the government itself," M'Culloch v. State, 17 U.S. 316, 428
(1819), a legislature may not, constitutionally, delegate its power to tax to
another branch of government unless the individual state's constitution
otherwise provides, see, e.g., Schultes v. Eberly, 2 So. 345, 346 (Ala. 1887);
Stewart v. Daytona & New Smyrna Inlet Dist., 114 So. 545, 547 (Fla.
1927); State ex rel. Howe v. City of Des Moines, 72 N.W. 639, 643 (Iowa
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1897); Mouledoux v. Maestri, 2 So. 2d 11, 15 (La. 1941) (power to tax can
be delegated but not surrendered based on constitutional language); Scott
v. Donnelly, 133 N.W.2d 418, 424 (N.D. 1965); Multnomah Cnty. v. Luihn,
178 P.2d 159, 165 (Or. 1947); Wm. Penn Parking Garage, Inc. v. City of
Pittsburgh, 346 A.2d 269, 291 (Pa. 1975); State ex rel. Field v. Smith, 49
S.W.2d 74, 79 (Mo. 1932); see also 84 John Bourdeau, et al., C.J.S.
Taxation § 14 (2014) (collecting cases), which Nevada's does not. See Nev.
Const. art. IX, § 2(1); Nev. Const. art. X, §1(1) (tasking the Legislature
with imposing any necessary tax). We should therefore endeavor to avoid
propounding such an interpretation of the section, Ford v. State, 127 Nev.
, 262 P.3d 1123, 1130 (2011) (stating that an interpretation of a
statute that casts it into constitutional doubt should be eschewed),
especially given that the Legislature's inclusion of the "just and
reasonable" statutory limitation makes it entirely unlikely that it intended
to affect such an unconstitutional delegation.
Thus, I cannot accept that the PUC was required to "set a
surcharge rate to finance ... the deaf-and-hard-of-hearing centers" despite
that many items in the centers' budgets—which, between 2011 and 2013,
included "trainings addressing domestic violence, child welfare, and
human trafficking issues, workshops addressing credit history, identity
theft, and tax issues, job coaching, mental health counseling, workshops
addressing breast cancer, diabetes, and hepatitis issues; cooking classes;
gingerbread house making classes; jeopardy games; bowling outings;
seminars on how to play poker; summer camps; and grant writing
courses," among other activities—were entirely divorced from any utility
service provided by the PUC. As demonstrated, if the PUC determined
that the surcharge required to fund the centers was unreasonable or
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unjust for the absence of any connection between the services funded and
the services that the PUC provides, it was legally obliged to adjust the
surcharge. To the extent that the majority has held otherwise, thereby
granting the Legislature unsought power to fund via utility surcharges as
set by an administrative agency, social programs unrelated to the services
that the utility provides, this court has announced a proposition so
extraordinary that it surely ought to have done so in a published
disposition.
For these reasons, I respectfully dissent.
greceitt. WI J.
Pickering, J.
cc: Hon. James E. Wilson, District Judge
Robert L. Eisenberg, Settlement Judge
Attorney General/Carson City
Attorney General/Las Vegas
Public Utilities Commission of Nevada
Carson City Clerk
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