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Dr. Paul Williamson, Rev. Dr. Vern Klingman v. Montana Public Service Commission

December 20, 2012

DR. PAUL WILLIAMSON, REV. DR. VERN KLINGMAN, PATRICIA KLINGMAN AND RUSSELL L. DOTY; JAMES T. AND ELIZABETH GRUBA; LEO G. AND JEANNE R. BARSANTI, PETITIONERS AND APPELLANTS,
v.
MONTANA PUBLIC SERVICE COMMISSION AND NORTHWESTERN ENERGY, RESPONDENTS AND APPELLEES.



APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 10-1450 Honorable Susan P. Watters, Presiding Judge

The opinion of the court was delivered by: Beth Baker

December 20 2012

Submitted on Briefs: October 24, 2012

Filed:

Clerk

Justice Beth Baker delivered the Opinion of the Court.

¶1 Petitioners appeal an order of the Thirteenth Judicial District Court, Yellowstone County, denying their motions for assessment of costs against Respondent Northwestern Energy and for an immediate temporary rate reduction, and remanding this matter to the Public Service Commission (PSC). We affirm.

¶2 The issues on appeal are: (1) whether the District Court erred in denying Petitioners their costs for the initial proceedings in the District Court and first appeal to this Court; and (2) whether the District Court erred in denying Petitioners' request for a temporary rate decrease pursuant to § 69-3-304, MCA, pending the PSC's decision on remand.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Petitioners filed a complaint with the PSC, alleging that Northwestern Energy has been overcharging consumers for its street lighting services. The PSC dismissed the complaint on grounds that the originally-named Petitioners lacked standing and were procedurally barred from amending their complaint. Petitioners sought judicial review in the District Court, which dismissed their petition. Petitioners then appealed to this Court. In Williamson v. Mont. Pub. Serv. Commn., 2012 MT 32, 364 Mont. 128, 272 P.3d 71 (Williamson I), we affirmed the PSC's dismissal of the complaint as to the original four Petitioners, but remanded with instructions that the District Court remand the case to the PSC for a redetermination of whether to allow the filing of an amended complaint. Specifically, we stated: This action is remanded to the District Court with instructions to remand to the PSC so that the PSC may exercise its discretion, in the first instance, as to whether to allow the amended complaint.

Williamson I, ¶ 55.

¶4 On remand to the District Court, Petitioners promptly filed a motion seeking $1,137.44 in costs incurred "while responding to the standing and amendment objections before the [PSC], Yellowstone County District Court, and Montana Supreme Court." They also renewed a motion asking the District Court to initiate an "immediate rate reduction" pending the PSC's final decision. The PSC and Northwestern Energy filed a joint response opposing those motions on various grounds, and Petitioners filed a reply. The District Court then issued an Order and Memorandum denying both of the Petitioners' requests, on their merits, and remanding to the PSC. It is that order the Petitioners now appeal.

¶5 Although they have filed neither a cross-appeal nor a motion to dismiss this appeal, Respondents raise the preliminary question whether the District Court's order denying costs and a temporary rate decrease and remanding this case to the PSC constitutes a final, appealable order. It does.

¶6 The PSC is not a court, but an executive branch agency. See §§ 2-15-101 and -2602, MCA. For that reason, a court's remand of a matter to the PSC terminates the judicial proceeding. In Whitehall Wind, LLC v. Mont. Pub. Serv. Commn., 2010 MT 2, ¶ 18, 355 Mont. 15, 223 P.3d 907, we held that a district court order remanding a case to the PSC for further proceedings constituted a final order from which the PSC had ...


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