Attorney General of the State v. New Mexico Public Utility Commission

SERNA, Justice

(specially concurring).

{17} I agree with the majority opinion that the Commission lacked substantial evidence to modify the stipulation in this case. However, I respectfully believe that this appeal raises a more fundamental question: whether the Commission has the authority to modify an unopposed stipulation over the objection of a party to the stipulation or whether the Commission, in such a circumstance, must accept or reject an unopposed stipulation in its entirety. Contrary to the. majority opinion, which assumes that the Commission has authority to modify an unopposed stipulation without deciding the issue, I would resolve this appeal based on the threshold question of the Commission’s authority in order to provide guidance to the parties, especially the Commission, and to prevent recurrence of this issue on remand. See generally Office of Consumer Advocate v. Utilities Bd., 452 N.W.2d 588, 594-95 (Iowa 1990) (stating that “[wjhile the [Utilities] Board is free to reject the stipulation,” the Board has “no power to alter, amend, contradict, delete, or go beyond the terms of a stipulation”); Department of Pub. Advocate v. New Jersey Bd. of Pub. Utils., 206 N.J.Super. 523, 503 A.2d 331, 335-36 (App.Div.1985) (stating that the Board’s power to modify its orders “does not, in our view, include the authority to modify the stipulation in contravention of the express terms of the agreement over the objection of one party”). As a result, I specially concur.

BACA, J., concur.