*1 PUBLIC SERVICE COMMISSIONER BRAD MOLNAR ON BEHALF OF RESIDENTS OF PUBLIC SERVICE COMMISSION DISTRICT
2 AND ALL OTHERS SERVED BY
NORTHWESTERN ENERGY, Appellant,
Plaintiff and MONTANA PUBLIC SERVICE COMMISSION and PENNSYLVANIA POWER AND LIGHT OF
MONTANA, LLC, Appellees. Defendants DANo. 06-0682. August Submitted on Briefs 2007. February Decided
JUSTICE delivered the (Molnar) Brad Molnar Public Service Commissioner Appellant ¶1 Court, Lewis and appeals from the order of the Judicial District First jurisdiction. for County, dismissing Clark lack of We complaint his affirm. appeal: the following address issue on
¶2 dismissing lack complaint Court the for of Did the District err in ¶3 jurisdiction untimely as filed?
FACTUAL AND PROCEDURAL BACKGROUND a May 24, 2006, complaint alleging that the On Molnar filed (PSC) federal and Montana Service violated state Public Commission (1999 by 25, 1999, May law Docket No. D99.4.82 its order entered Order) EWG, status granting exempt generator, or to wholesale (PPLM). Pennsylvania Power and of Montana Light complaint authority grant the to EWG alleged that without to set the 1999 Order. status the aside requested District Court 69-3- However, the District because both §§ Court determined 402(1) 2-4-702(2)(a), a MCA, for required thirty the it agency’s days of an decision to of be filed within complaint. Accordingly, lacked jurisdiction to on review Molnar’s 2006, September 6, motion to dismiss the granted PPLM, pursuant to M. R. Civ. P. complaint by Appellees filed PSC and 12(b)(6). appeals. Molnar OF REVIEW
STANDARD ruling a motion to dismiss We review de novo a district corut’s on 12(b)(6).Meagher M. R. Civ. P. pursuant for failure to state a claim 129, 13, 339, MT City-County, ¶ v. Bow 2007 ¶ Butte-Silver 12(b)(6) 13, 160 R. Civ. P. 552, 13. under M. P.3d Amotion to dismiss ¶ well-pleaded allegations has admitting the effect of all 422
complaint. Meagher, light 13. The is construed in the complaint most ¶ favorable to the fact plaintiff, allegations and all of contained therein are taken as The Meagher, true. determination whether a ¶ complaint State, states a claim a of law. v. is conclusion Plouffe 62, 8, MT A Mont. district court’s conclusions of law are if interpretation reviewed to determine of the law was Plouffe, correct. 8.¶
DISCUSSION Did the dismissing complaint District Court err in untimely lack as filed? Court erred in dismissing that the District his complaint because the of limitation either thirty-day statutes did not apply or were reply tolled. PSC and PPLM that the District Court correctly applied statutory thirty-day time limitation on appeals agency from decisions and that this Court need not reach the merits of Molnar’s claim. may validly We have held that only Legislature provide Livestock, Nye Dept. review of decisions. (1982). such, As a authority court’s rulings administrative constrained statute. In re
McGurran, 357, 12, 983 192, 12, 295 1999 MT 12. ¶ ¶ ¶ This governing includes the of limitation the applicable statutes time McGurran, for review. Accordingly, we have determined that ¶ “filing jurisdictional deadlines are petitions judicial for for review in nature, and the review of an judicial failure to seek administrative ruling within the statute makes such an prescribed by ‘appeal’ time McGurran, any ineffective for faced this same purpose.” issue ¶ involving the agency Corp. same in MCI Telecommunications v. PSC and explained that: by
The the jurisdiction period district court’s is controlled of time prescribed by provided the is limited to the time legislature and by right appeal the to an of applicable statute. The an agency’s by administrative is created statute and is limited ruling by provisions the to the time within which of the statute as the right must be asserted. (1993). 175, 178,
260 Mont. See also Hilands 858 P.2d 366 Golf 111, 18, Ashmore, Club v. 2002 MT ¶ (“a jurisdiction 18 court’s to review administrative decisions is limited.”). statutorily created and Here, agency review of governing judicial two statutes decisions . PSC that are provided decisions First, Legislature the
may apply.
69-3-402(1), MCA, which states:
pursuant to §
reviewable
with an
the
dissatisfied
order of
being
in
Any party
interest
fare, charge, classification,
joint
or
rate,
fixing any
commission
practice,
may,
or
regulation,
service
any
fixing any
order
rate or
in the
to
action
district court ...
days,
an
within
commence
....
order
any
vacate and set aside
such
Administrative
Act
Procedure
Second,
generally,
more
the Montana
filing
must be
a
by
instituted
review
“proceedings
for
provides
after
final
days
service of the
in district court
petition
within
2-4-702(2)(a),
Review
Section
MCA.
agency....”
written decision of the
Nye,
“contested cases.”
2-4-702,
for
See
MCA,
reserved
under
§
person
“[a]
(stating
who has
Mont. at
ran for issuance nearly years of2006, period seven after the complaint May was filed in thirty-day time the limit to seek review ended. Because complaint filed, the when agency expired review of had decisions under to either statute jurisdiction the District Court was without course, of the 1999 Order. Of request the entertain subject matter possessed general the District Court authority “jurisdictional not the did but Legislature the a entertain nature,” McGurran, 12, from provided time limit beyond for review filed governing statutes. statutes limitation were However, (1) arguments: five raising public tolled, inapplicable
either or were the 1999 Order was properly not hearing prior conducted to issuance may action illegal which noticed, thereby resulting in an (2) restraints; the statutes governing any without time be reviewed *4 which authorize precision” would “absolutely nothing provide PSC expressio unium est exclusio thus, the action it took and the doctrine grant “no with applies and leaves the alterius (3) PPLM; has a the PSC exempt generator wholesale status” “continuing with relationship” citizens, Montana making the 1999 (4) time; Order any voidable at the PSC and PPLM concealed crucial thereby facts from the public, breaching its fiduciary duty tolling and the thirty-day (5) time until periods the facts discovered; were tolling applies doctrine of equitable because of the lack of notice proper “jurisdiction.” and the lack of the PSC’s First, even that assuming the subject tolled, time period may be (5) arguments (3), (4), and are raised for the first appeal. time on We repeatedly held that this Court considers presented issues for the first untimely time to be and will not Corp. consider them. Point Serv. Myers, 31, v. 322, 2005 MT 502, 31, 125 Mont.
(relying Day on Payne,
(1996)).
arguments
This
new
includes
and changes
legal theory.
Day,
and are intertwined. As he public that because the hearing for the 1999 Order was noticed, not properly and because PSC’s do not governing statutes status, mention thirty-day EWG time limit apply does not because the PSC did “jurisdiction” not have order, to enter jurisdictional claims any can be time. raised Essentially, are Molnar’s claims the PSC acted outside of its statutory authority, procedure both However, and in substance. legal any does not cite authority for the proposition that where an its statutory acts outside of authority, petitions challenging action need not comply with statutes petitions. governing timing of those Molnar would have this Court grant him a period limitless time in which to file a petition pled he has simply because his claim as one challenging agency’s jurisdiction. There is no support for such a conclusion and the argument fails. the thirty-day conclude statute of limitations was
neither tolled inapplicable. nor Consequently, the District Court properly complaint. dismissed Molnar’s Affirmed. NELSON, LEAPHART,
JUSTICES COTTER and MORRIS concur.
JUSTICE concurs. NELSON conclude Opinion. I I also appeal concur in our this was taken ¶15 grounds and or reasonable under M. without substantial frivolous 19(5). award result, I App. attorney R. P. As a would fees and costs on and against PPLM in favor the PSC and appeal Molnar. complaint, with, To Molnar’s filed begin nearly years seven
¶16 limitations, misrepresented beyond statute the facts and the the PSC’s complains While Molnar about he law. never offered objections never before the PSC and to its appeared decision. Moreover, PPLM, it is doubtful argued as that Molnar even had he was standing to his as file lawsuit never a customer of Energy. Northwestern on arrival in Molnar’s was dead and, lawsuit District Court On summarily appeal,
properly, was dismissed. Molnar flaunts the Appellate Procedure. The Montana Rules of sole on appeal issue involves the trial court’s determination dismiss Yet being time-barred. Molnar barely review as addresses that that) (and issue-arguing poorly instead merits ofhis underlying raised claim and that were not theories trial court. 19(5) that this provides M. R. Court App. “may... sponte[] sua prevailing party an appeal...
award sanctions to the determined to substantial be frivolous ... or taken without or grounds. reasonable attorney fees, costs, or may Sanctions include such monetary other or non-monetary penalty supreme as the proper deems under the circumstances.” my view, In mention appeal-not this the underlying lawsuit or
itself-was taken grounds without substantial reasonable and was Therefore, attorney I frivolous. would award fees and costs on appeal against in favor of the PPLM PSC and Molnar. There is no reason taxpayers ratepayers should to fund the defense of this nonsense and there no reason courts should have to deal it. with caveat, With that I concur.