Off. of Pub. Counsel v. Pub. Serv. Com'n
326 S.W.3d 868
| Mo. Ct. App. | 2010Background
- PSC issued Report and Order in GR-2009-0355 on Feb 10, 2010 implementing a natural gas rate increase.
- OPC and MGE separately filed applications for rehearing on Feb 19, 2010.
- On Feb 24, 2010, at about 1:16 p.m., PSC orally voted at an agenda meeting to deny rehearings; OPC directed to file writ of review at 1:18 p.m.
- PSC issued written Order denying rehearings at 2:18 p.m. and posted it; MGE filed writ of review in Jasper County at 2:24 p.m.
- OPC filed in Cole County first; MGE filed in Jasper County second; venue statutes govern first-filed petitions, but timing and denial of rehearing were contested.
- Trial court dismissed OPC’s petition as premature under section 386.510; OPC appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether voice-vote denial constituted denial under 386.510 | OPC: denial occurred by voice vote and triggered 386.510. | PSC: denial occurs only upon written Order under 386.280.1. | Voice vote denial not sufficient; denial occurred when written Order signed. |
| Whether petition was premature absent written denial | OPC: petition timely under 386.510 after voice denial. | PSC: petition premature until written denial under 386.280.1. | Petition premature; no timely denial before OPC filed. |
| Whether premature petition should be treated as timely upon later Order | OPC: treat as timely when Order issued, as in Knapp and APA. | State: cannot treat premature filing as timely absent statutory authority. | Knapp not controlling; not retroactively timely under 386.510. |
Key Cases Cited
- Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009) (distinguishes subject matter vs. personal jurisdiction)
- McCracken v. Wal-Mart Stores E., L.P., 298 S.W.3d 473 (Mo. banc 2009) (limits of statutory authority to grant relief)
- State ex rel. AG Processing, Inc. v. Public Service Comm'n, 276 S.W.3d 303 (Mo.App. W.D.2008) (premature petitions and review authority under 386.510)
- State ex rel. County of Jackson v. Pub. Serv. Comm'n, 14 S.W.3d 99 (Mo.App. W.D.2000) (venue rules for multiple petitions; first filing controls)
- State ex rel. Pub. Serv. Comm'n v. Dally, 50 S.W.3d 774 (Mo. banc 2001) (first filed petition governs venue when multiple petitions exist)
- Knapp v. Mo. Local Gov't Empls. Ret. Sys., 738 S.W.2d 903 (Mo. App. W.D. 1987) (premature filing treated as timely under APA; distinguishable)
- Tate v. State Highway Comm'n, 576 S.W.2d 529 (Mo. banc 1979) (premature notices of appeal; Rule 81.05(b) relief context)
- Coffer v. Wasson-Hunt, 281 S.W.3d 308 (Mo. banc 2009) (entry of judgment vs. ministerial act of recording)