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

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COLUMBUS SOUTHERN POWER COMPANY ET AL., APPELLANTS, v. PUBLIC UTILITIES
COMMISSION OF OHIO ET AL., APPELLEES.
[Cite as Columbus S. Power Co. v. Pub. Util. Comm. (1997), 79 Ohio St.3d 1217.]
(No. 97-842 -- Submitted June 25, 1997 -- Decided July 3, 1997.)
APPEAL from the Public Utilities Commission, No. 96-406-EL-COI.
ON MOTION TO DISMISS, MOTION FOR LEAVE TO INTERVENE, MOTION TO STAY
BRIEFING, and MOTION TO EXPEDITE.
__________________

Edward J. Brady and Marvin I. Resnik, for appellants 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 appellee Public Utilities Commission of Ohio.

Vorys, Sater, Seymour & Pease and M. Howard Petricoff; and Janine L.
Migden, for interviewing appellee Enron Capital & Trade Resources, Inc.
__________________

This cause is pending before the court as an appeal from the Public Utilities
Commission of Ohio. Upon consideration of the motion to intervene of Enron
Capital & Trade Resources, Inc.; appellee's motion to dismiss; and appellants'
motion to stay briefing and motion to expedite motion to stay briefing,

IT IS ORDERED by the court that the motion to intervene be, and hereby is,
granted.

IT IS FURTHER ORDERED that appellee's motion to dismiss be, and
hereby is, sustained.

ACCORDINGLY, 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., would dismiss the
appeal for failure of appellants to file their notice of appeal with the court and the
Public Utilities Commission of Ohio as required by S.Ct.Prac.R. II(3)(B)(1) and
R.C. 4903.13.

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 appellant-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 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

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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 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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