Stewart v. Utah Public Service Commission

HOWE, Justice,

concurring in the result in part and dissenting in part:

I concur in the result of parts I and II of the majority opinion. However, because the issue of the constitutionality of a public utility’s veto power under Utah Code Ann. § 54-4-4.1(2) is not justiciable, I respectfully dissent as to parts III, IV, and V. I also dissent as to part VI because there is no statute authorizing the award of attorney fees and because a substantial part of the time and effort of the ratepayers’ attorneys has been spent in pursuing moot issues, as explained in this opinion.

In the instant case, USWC proposed an incentive rate regulation plan which the Public Service Commission rejected. Pursuant to section 5444.1(1), the Commission then formulated its own incentive rate plan, but USWC “electfed] not to proceed” with that plan. Utah Code Ann. § 5444.1(2). The ratepayers argue that this veto power is an unconstitutional delegation of legislative and judicial power to a private party. USWC counters that’the issue is moot because “no plan of any kind is now in effect under the powers granted to the Commission by Section 5444.1.”

In Duran v. Morris, 635 P.2d 43, 45 (Utah 1981), we held that “[i]f the requested judicial relief cannot affect the rights of the litigants, the case is moot and a court will normally refrain from adjudicating it on the merits.” This is the case here. No incentive rate plans were left on the table after USWC vetoed the Commission’s incentive rate plan. The Commission then ordered the traditional method of regulation, which the ratepayers have consistently regarded as desirable and lawful. Thus, the ratepayers’ interest in maintaining traditional rate regulation of USWC has been realized, and declaring section 5444.1(2) unconstitutional will not affect that interest. See State v. Sims, 881 P.2d 840 (Utah 1994) (holding case moot where ruling on constitutional question would have no legal effect on the parties).

The majority concludes that if this case is held to be moot, the constitutionality of the veto provision will escape review presumably because the veto will always operate to eliminate the plan authored under the authority of section 5444.1. However, the absence of such a plan is not the reason this case is moot. It is moot because no party has sought to have the vetoed plan reinstated. Obviously, USWC objects to the plan because it vetoed it. The Commission has not appealed that veto, and the ratepayers have consistently opposed incentive rate regulation in general. By declaring the veto power unconstitutional, the majority revitalizes the vetoed incentive rate regulation plan formulated by the Commission, a result no party to this case seeks.

With the parties uniformly opposed to the legal effect of declaring section 5444.1(2) unconstitutional, the majority’s opinion amounts to nothing more than an advisory opinion. See Merhish v. H.A. Folsom & Assocs., 646 P.2d 731, 732 (Utah 1982) (recognizing strong judicial policy against giving advisory opinions). We should wait to decide the constitutionality of section 544-4.1(2) until one or more parties favor the vetoed plan and argue for its reinstatement. Then a ruling on the constitutionality of the veto power will affect the interests of the litigants. Until then, it is not the province of this court “to exercise the delicate power of pronouncing a statute unconstitutional in abstract, hypothetical, or otherwise moot cases” such as the one now before us. Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980).¹

Furthermore, the ratepayers do not have standing to challenge the statute. The constitutionality of a statute cannot be attacked “by parties whose interests have not been, and are not about to be, prejudiced by the operation of the statute.” Id.; see also Cavaness v. Cox, 598 P.2d 349, 351-52 (Utah 1979) (holding that party may challenge constitutionality of statute only when it is being or is about to be applied to his or her disadvantage); Sims v. Smith, 571 P.2d 586, 587 (Utah 1977) (holding that before party may attack constitutionality of statute, he or she must be adversely affected by that very statute).

The ratepayers’ interests were not prejudiced by the operation of section 54^4-4.1(2). Rather, USWC’s veto cleared the way for the Commission to order the traditional rate regulation which they seek. As we explained in McRae v. Jackson, 526 P.2d 1190 (Utah 1974), “The function of appellate courts, like that of courts generally, is not to give opinions on merely abstract or theoretical matters, but only to decide actual controversies injuriously affecting the rights of some party to the litigation.” Id. at 1191 (emphasis added) (quoting 5 Am.Jur.2d Appeal and Error § 761 (1962)); see also Reynolds, 788 P.2d at 1045. Because section 54-4^4.1(2) did not operate to their disadvantage, the ratepayers lack standing to challenge its constitutionality.

Finally, the majority notes that USWC “vigorously argues that Utah Code Ann. § 54-4-4.1(1), the provision authorizing incentive rate regulation, is constitutional” and that the “ratepayers argue just as vigorously to the contrary.”² It then reaches the question because it “is presented in the requisite adversarial context. However, “[a] constitutional question does not arise merely because it is raised and a decision is sought thereon.” Hoyle, 606 P.2d at 242. The question must also be justiciable. In the recent case of State v. Sims, 881 P.2d 840 (Utah 1994), we held that the question of the constitutionality of a roadblock under the Utah Constitution was moot even though both parties had briefed and argued the question and sought our opinion. We declined because any opinion “would have no legal effect on the parties.” Id. at 842.

By declaring the veto power in section 54-4 — 4.1 (2) unconstitutional, the majority breathes life into the Commission’s incentive rate plan but then quickly proceeds to shoot the plan down by finding it unlawful. This contradictory course is unwarranted. The constitutionality of section 54-4-4.1(2) as presented in this case is a nonjusticiable question. That being the case, it is unnecessary to decide the severability of section 54-4-4.1(1) or the lawfulness of the Commission’s incentive rate plan under that section.

HALL, J., heard the arguments but retired before he could act on the opinion.

1 . The exceptions to the mootness doctrine do not apply. See Sims, 881 P.2d at 842 (listing exceptions to mootness doctrine) (citing Reynolds v. Reynolds, 788 P.2d 1044, 1045-46 (Utah Ct.App.1990)). As explained, while capable of repetition, the instant case is not "likely [to] escape judicial review.” Wickham v. Fisher, 629 P.2d 896, 899 (Utah 1981). Likewise, no “irreparable injury” will result if the case is not decided immediately, In re J.P., 648 P.2d 1364, 1371 (Utah 1982), and the controversy has not continued to exist "after the issue has become moot for the litigants.” Reynolds, 788 P.2d at 1046. USWC’s veto of the Commission's incentive rate plan advanced the ratepayers' interest in maintaining traditional rate regulation, and no party argues for reinstatement of that plan.

2 . USWC argues the constitutional question in the alternative, stating that its constitutional arguments "are only relevant if the Court declines to rule that those issues are moot.”