State ex rel. Columbus S. Power Co. v. Pub. Util. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. COLUMBUS SOUTHERN POWER COMPANY ET AL. V. PUBLIC
UTILITIES COMMISSION OF OHIO.
[Cite as State ex rel. Columbus S. Power Co. v. Pub. Util. Comm. (1997),
___ Ohio St.3d ___.]

(No. 97-1082 -- Submitted June 25, 1997 -- Decided July 3, 1997.)

IN MANDAMUS.

ON MOTION TO DISMISS.
___________________

Edward J. Brady and Marvin I. Resnik, for relators Columbus
Southern Power Company and Ohio Power Company.

Betty D. Montgomery, Attorney General, Duane W. Luckey, Chief,
Public Utilities Section, Paul A. Colbert and Jodi J. Bair, Assistant
Attorneys General, for respondent Public Utilities Commission of Ohio.
___________________

This cause originated in this court on the filing of a complaint for a
writ of mandamus. Upon consideration of respondent's motion to
dismiss,

IT IS ORDERED by the court that the motion to dismiss be, and
hereby is, sustained.

IT IS FURTHER ORDERED by the court that this cause be, and
hereby is, dismissed.

DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur in
judgment.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur in the
dismissal.

DOUGLAS, J., concurring in judgment. I concur with the judgment of
the majority to dismiss these cases. The Public Utilities Commission's
entry on rehearing permitted relator (AEP) to file tariffs with the
commission with regard to the establishment by the commission of
guidelines for Conjunctive Electric Service ("CES") in Ohio. If AEP decided
not to file tariffs, then it had the option of proceeding to a hearing in a
separate case to explain why it believed it did not have to offer CES.

Apparently accepting the commission's invitation, AEP did not file
tariffs re CES. Therefore, pursuant to the order of the commission, AEP,
arguably, elected to proceed to hearing. The commission has not yet held

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such a hearing and has not even, as yet, set a hearing date. Accordingly,
the commission has not required AEP to offer CES and, thus, there is no
final order of the commission affecting AEP. Under these circumstances,
this court lacks jurisdiction to hear the appeal (case No. 97-842) of AEP,
even if timely filed, and that case along with the mandamus action (case
No. 97-1082) must be dismissed.

Finally, it should be noted that the commission, in its argument in
support of dismissal, makes some strong statements about the filing
requirement with the commission being of a dual nature -- filing with the
commission and service upon the chairman -- and that these requirements
are jurisdictional. In support of its position, the commission cites Clyde v.
Pub. Util. Comm. (1996), 77 Ohio St.3d 1418, 670 N.E.2d 1005, and
Consumers' Counsel v. Pub. Util. Comm. (1993), 66 Ohio St.3d 1435, 608
N.E.2d 1081 (two cases). The commission's citation of these cases is
misleading to the court. While the commission's position may be, or may
not be, an accurate interpretation of the law (R.C. 4903.13), the entries of
the court as cited by the commission certainly do not, without more, stand
for the proposition for which they are cited by the commission. All that the

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cited entries say is "cause dismissed." Those cases could have been
dismissed for any one of a number of reasons (premature appeal, late
filing, wrong parties, defective notice of appeal, etc.). To say that the
cases were dismissed because of a violation of a dual filing requirement is,
or at least should be, beyond the ken of the commission.

Such activity by the commission and its legal staff is, in addition to
the court's constitutional and statutory duties, yet another good reason for
the court to do an exhaustive review of the undertakings of the
commission. If not the court -- who?

RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur in the foregoing
opinion.

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