CLEVELAND ELECTRIC ILLUMINATING COMPANY, APPELLANT, v. PUBLIC UTILITIES COMMISSION OF OHIO ET AL. APPELLEES.
No. 95-2157
Supreme Court of Ohio
July 31, 1996
76 Ohio St.3d 163, 1996-Ohio-296
Submitted June 5, 1996. APPEAL from the Public Utilities Commission of Ohio, Nos. 94-578-EL-CMR, 94-1176-EL-CMR and 94-1177-EL-CMR.
{¶ 1} This appeal involves the consolidated order of the Public Utilities Commission of Ohio (“commission“) refusing to render a decision on the merits regarding the non-ratе aspects of certain city of Garfield Heights ordinances and payment of the hearing costs in case Nos. 94-578-EL-CMR, 94-1176-EL-CMR and 94-1177-EL-CMR.
{¶ 2} On March 10, 1994, the city of Garfield Heights (“Garfield“) enacted Ordinance No. 21-1994, reducing its tariffed electric ratеs for all customers in the city by thirty percent and ordering the Cleveland Electric Illuminating Co. (“CEI“) to comply with numerous informational filing requirements with Garfield. CEI objected to the ordinance and filed a complaint with the commission undеr
{¶ 3} The commission established a test period for the complaints, beginning January 1, 1993, and ending December 31, 1993, with a date certain for property used and useful of March 31, 1994. The commission‘s technical staff filed its Report of Investigation (“Staff Report“) on January 23, 1995. CEI and Garfield each objected to the Staff Report.
{¶ 4} The evidentiary hearing on CEI‘s three complaints commenced March 20, 1995 and continued through March 29, 1995. CEI presented seven witnesses supporting its current elеctric rates for Garfield, but no witnesses on the non-rate aspects of these ordinances. The commisson presented ten witnesses supporting the findings and recommendations in the Staff Report. Garfield supported its ordinances with the testimony of Anthony J. Yankel.
{¶ 5} Two public hearings were held in Garfield. Post-hearing briefs and reply briefs were filed by the parties. On June 29, 1995, after reviewing the record and the briefs of the parties, the commission issued its opiniоn and order. See 1995 WL 447272. The commission found that CEI, as the complaining party, had the burden of proof in the complaint cases. However, the commission refused to discuss the non-rate aspects of Garfield‘s ordinances, stating:
“[T]he company presented no evidence to support its arguments on this issue. Therefore, * * * we express no opinion concerning the validity or enforceability of [the non-rate aspects of Garfield‘s ordinаnces].” (Emphasis sic.) Id. at 2, fn. 1.
{¶ 6} The commission then determined that it would adjust CEI‘s rates for Garfield only if the hearings justified a rate decrease. The commission thereupon discussed the various individual issues raised by the parties and held that no rаte decrease was justified because CEI was already earning less than a reasonable rate of return on its investment.
Terrence G. Linnert, Richard W. McLaren, Jr., and Mark R. Kempic, for appellant.
Betty D. Montgomery, Attorney General, Duane W. Luckey and Paul A. Colbert, Assistant Attorneys General, for appellee, Public Utilities Commission of Ohio.
Henry W. Eckhart, for intervening appellee, city of Garfield Heights.
Per Curiam.
{¶ 8} Appellant propounds two propositions of law, arguing that the commission abused its discretion by refusing to express an opinion on the non-rate aspects of Garfield‘s ordinances and by refusing to assess the hearing expenses and costs against Garfield. For the reasons expressed below, we find that neither рroposition of law has merit.
{¶ 9} This court will reverse a commission order only if we find it to be unlawful or unreasonable.
{¶ 10} CEI argues, in its first proposition of law, that the commission erred when it failed to render а decision regarding the non-rate provisions in Garfield‘s ordinances as required by
{¶ 11} CEI filed its complaints and appeals pursuant to
{¶ 12}
{¶ 13} CEI opposed, inter alia, Sections 5, 6, аnd 7 of Garfield Ordinance Nos. 21-1994 and 32-1994 in its various complaints. CEI also objected to the Staff Report‘s failure to address the non-rate provisions of these ordinances. CEI acknowledges that as the complaining party it had the burden of proof on the non-rate issues addressed in the complaints.
{¶ 14} CEI argues that statements by various witnesses support its position that the commission should have rendered a decision on Sections 5 and 6 of Garfield Ordinance Nos. 21-1994 and 32-1994. We disagree. CEI witnesses Cantwell and Seboldt did not mention or otherwise address Sections 5 or 6 in their testimony or on cross-examination. Generic statements presented for other purposes during cross-examination, that certain records are not presently kept by CEI and that it is expensive to analyze such data, are insufficient to obligate the commission to render a decision regarding the reasonableness of the non-rate aspects of Garfield Ordinance Nos. 21-1994 and 32-1994.
{¶ 15} Nor do we find any record support for CEI‘s objection to Seсtion 7 of Garfield Ordinance Nos. 21-1994 and 32-1994. Staff witness Maxwell‘s testimony has nothing to do with whether or not CEI‘s franchise remains in effect. No party offered any evidence relating to Section 7 of Garfield Ordinance Nos. 21-1994 and 32-1994.
{¶ 16} Under these сircumstances, the commission had no information before it concerning Sections 5, 6, and 7 of Garfield Ordinance Nos. 21-1994 and 32-1994 or the effect that compliance with such requirements would have on CEI,
{¶ 17} CEI contends in its second proposition of law that the commission should have assessed the hearing expenses and costs against Garfield. This proposition is also without merit.
{¶ 18} Pursuant to
“All fees, expenses, and costs of, or in connection with, any hearing or investigation may be imposed by the commission upon any party to the record or may be divided among any parties to the record in such proportion as the commission determines.” (Emphasis added.)
R.C. 4903.24 .
{¶ 19} The commission determined that it would not assess the costs and expenses of the hearing and investigation of Garfield‘s ordinances against Garfield:
“A complaint and appeal case takes a great deal of Commission and staff resources, and we were concerned that this work would be undertaken by the staff with no case being put on by the municipality. This did not occur in this case as the City presented a witness who presented substantial defenses for the ordinances in good faith, and after undertaking discovery from the company in order to make an informed presentation. We find, therefore, that our initial reasons for raising the possibility of assessment of costs has not been triggered in this case.”
{¶ 20} The commission had the discretion to assess costs and expenses against Garfield below. The commission chose not to dо so. That CEI does not like the commission‘s decision does not render that decision an abuse of discretion.
{¶ 21} Accordingly, the commission‘s order is affirmed.
Order affirmed.
MOYER, C.J., F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
DOUGLAS, RESNICK and STRATTON, JJ., concur in part and dissent in part.
DOUGLAS, J., concurring in part and dissenting in part.
{¶ 22} I concur with the majority in its decision as to and treatment of appellant‘s second proposition of law. I respectfully dissent to the majority‘s decision as tо appellant‘s first proposition of law.
{¶ 23} Pursuant to
RESNICK and STRATTON, JJ., concur in the foregoing opinion.