Utah State Board of Regents v. Utah Public Service Commission

WILKINS, Justice

(concurring with comments).

I concur with the holding of the Court in this case. My comments here are prompted by the Court’s attempt “to give some direction as to whether CWIP [construction work in progress] should be included in the rate base.”

Questions necessary to the final determination of the case after granting of a new trial may only be passed upon if “presented on the appeal.” Utah Rules of Civil Procedure 76(a). The issue of the reasonableness of CWIP’s inclusion in the rate base has not been presented on appeal. It was not briefed by any of the parties nor was it even argued in this case before the Commission. Indeed the Commission’s refusal to hear arguments on this latter point is the very reason the case is before us now.

The adversary procedure of our judicial system is designed to allow the parties to frame and present issues before a proper tribunal. If an issue then reaches us on appeal after this procedure has been followed, we have the benefit of the parties research and argument and also the findings and conclusions of the trial judge or administrative commission as aids in making our determination. Therefore, I believe that this Court’s attempt “to give some direction” is improperly made and as such is clearly obiter dictum.