Woodward v. Azcc
1 CA-CV 15-0825
Ariz. Ct. App.
Nov 8, 2016
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WARREN WOODWARD, Plаintiff/Appellant, v. ARIZONA CORPORATION COMMISSION; BOB BURNS; TOM FORESE; DOUG LITTLE; SUSAN SMITH; BOB STUMP, Defendants/Appellees.

No. 1 CA-CV 15-0825

ARIZONA COURT OF APPEALS DIVISION ONE

11-8-2016

The Honorable Crane McClennen, Judge, Retired

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County No. LC2015-000274-001 DT. AFFIRMED.

APPEARANCES

Warren Woodward, Sedona
Appellant

Arizona Corporation Commission, Legal Division, Phoenix
By Maureen A. Scott, Janet F. Wagner, Wesley C. Van Cleve
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Pаtricia K. Norris and Judge Margaret H. Downie joined.

B R O W N, Chief Judge:

¶1 Warren Woodward appeals the superior court‘s order dismissing his action challenging an Arizona Corporation Commission decision. Woodward asserts he timely filed his action under Arizona Revised Statutes (“A.R.S.“) section 40-254 and thus the court erred in finding it lacked jurisdiction over the appeal. Although we agree that Woodward‘s action was timely filed, for the reasons set forth below, we conclude the court did not err in dismissing the action and therefore affirm.

BACKGROUND

¶2 In 2013, Arizona Public Service Electric Company (“APS“) filed an application with the Commission to establish “opt-out” charges for customers who continued to use older “analog meters” (requiring traditional meter reading) instead of newer “smart meters” (allowing direct electronic communication between APS and customers’ premises). Woodward intervened in the proceeding and opposed the application. In Decision No. 74871, the Commission granted the application, approving a one-time setup fee and a monthly charge for customers who choose to opt out of smart metering.

¶3 Woodward filed an application for rehearing pursuant to A.R.S. § 40-253, which the Commission granted in January 2015 “for the limited purpose of further consideration.” On April 30, 2015, the Commission issued Decision No. 75047, rescinding Decision No. 74871 and granting Woodward‘s application for rehearing. The Commission explained that thе issues related to APS‘s proposed opt-out charges “attracted significant public attention” and “would benefit from the type of comprehensive review that is conducted in а general rate case.” The Commission therefore decided to grant relief “on an interlocutory basis” and ordered a stay of APS‘s application until its next general rate cаse.1

¶4 On May 12, 2015 Woodward submitted an application for rehearing on Decision No. 75047. The ‍‌‌​​​​​​‌‌‌‌​​‌​‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​​‌‌‌‍Commission did not respond, and Woodward filed an action in superior court pursuant to A.R.S. § 40-254, asserting in pаrt that the Commission‘s decision was arbitrary and capricious. After requesting briefing from the parties on whether Woodward‘s action was timely filed, the court dismissed the action for lack of jurisdiction.2 Woodward then appealed to this court.

DISCUSSION

¶5 Woodward argues the superior court had jurisdiction to consider his challenge to the Commission decision because his action was timely under A.R.S. § 40-254. Whether the superior court had jurisdiction over this matter is a question of law, which we review de novo. See .

¶6 The right to appeal an administrative decision “exists only by force of statute and is limited by the terms of the statute.” . Any party to a final оrder or decision made by the Commission may request a rehearing of any matter determined in the action within twenty days. A.R.S. § 40-253(A). If the party remains dissatisfied with the order, the party may institute an action in superior court against the Commission within thirty days of the date the rehearing was either granted or denied. A.R.S. § 40-254(A). An application for rehearing is considered denied if the Commission does not grant it within twеnty days. A.R.S. § 40-253(A).

¶7 The Commission argues that the second decision, Decision No. 75047, specifically granted Woodward‘s application for rehearing of its first decision, Decision No. 74871. Accordingly, the Commission contends that the thirty-day period within which Woodward was required to file his action in superior court under § 40-254(A) started on April 30, 2015, the day the second decision was issued. This interpretation would mean that Woodward‘s ‍‌‌​​​​​​‌‌‌‌​​‌​‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​​‌‌‌‍superior court action, filed on June 25, 2015, was untimely as being outside the thirty-day limitation.

¶8 Citing , the Commission argues that a party is precluded from filing a second application for rehearing and must file an action in superior court after the initial application for rehearing is granted or denied. . Because addressed whether a party could be excused from filing a second application for rehearing when a second decision is issued, and not whether that party was precluded from filing another application for rehearing, it dоes not support the Commission‘s position. See (adopting workers’ compensation principle that “[w]hile a party has the privilege of applying for a second reheаring, he is not compelled to do so in order to exhaust his administrative remedies“) (quoting ).

¶9 The most plausible reading of the statute allows a second application for rehearing. Thus, аlthough not required, it was within the scope of the statute for Woodward to file a second application for rehearing, particularly when the Commission‘s first decision did nothing more than indiсate the issue needed further consideration. See (“When a party is aggrieved by a decision or order of the corporation commission, he must apply for a rehearing before the commission. . . . “) (emphasis added). The thirty-day period for filing an action in superior court under § 40-254(A) did not begin to run until June 1, 2015, twenty days after he filed an application for rehearing of the second decision bеcause the application was deemed denied at that point in time. See A.R.S. § 40-253(A). Thus, the superior court erred in concluding that Woodward‘s action was untimely under § 40-254(A).

¶10 Notwithstanding our conсlusion that Woodward‘s action was timely filed, we must consider whether other issues raised by the Commission support the superior court‘s dismissal order. See (recognizing that appellate courts will affirm the superior court for any reason that supports the decision). The Commission ‍‌‌​​​​​​‌‌‌‌​​‌​‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​​‌‌‌‍argues that because Decision No. 75047 is not a final order, and defers APS‘s application for opt-out charges to a rate case filing under A.A.C. R14-2-103, Woodward‘s action is neither final nor ripe for judicial review. We agree.

¶11 Section 40-253(A) allows any party to a final order or decision by the commission to apply for a rehearing. In interpreting statutes, we give the words used their plain meaning unless the context demands otherwise. See . A “final order or decision” plainly implies a ruling that disposes of the issues, lеaving the litigant no remaining avenue of relief. See A.R.S. § 40-253(A). Such a decision was not reached by the Commission in Decision No. 75047, which states both that relief is granted “on an interlocutory basis” and thаt APS‘s application is “stay[ed]” until further proceedings can decide the matter. Until the Commission makes such a final decision regarding APS‘s proposed opt-out charges, it would be prеmature and even disruptive for this court to render a decision. See (explaining that the “legislature intended to protect the jurisdiction of the Commission when properly invoked by permitting judicial review only after the Commission has had an opportunity to rule“); cf. (noting the “underlying rationale of requiring a final judgment . . . is to avoid the constant disruption of the trial process, to рrevent appellate courts from considering issues that may be addressed later . . . and to promote efficiency . . . .“).

¶12 Furthermore, Woodward‘s action is not ripe for review. The ripeness doctrine prevents a court from deciding an issue that may later be rendered moot by a pending question. See , vacated on other grounds, ; . When reviewing an administrative decision, the ripeness doctrine prevents courts from interfering until the decision “has been formalized and its effects felt in a concrete way by the challenging parties.” (quoting ).

¶13 Woodward maintains that his action is ripe because the Commission‘s delay in reaching ‍‌‌​​​​​​‌‌‌‌​​‌​‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​​‌‌‌‍a conclusive ruling on APS‘s application, caused by the decision to proceed under A.A.C. R14-2-103, has caused him hardship. However, it is well within the Commission‘s authority to require the matter to be considered as part of a full rate case under A.A.C. R14-2-107(T) after review of APS‘s original application for opt-out charges. Furthermore, while hardshiр of the parties can be considered by a court in evaluating ripeness for judicial review, such hardship must also be paired with a final and conclusive decision. .

¶14 Based on the record before us, the Commission has nоt taken conclusive action with regard to APS‘s application. If the Commission were to deny the application at APS‘s future rate case, Woodward‘s action in this case would be rendered moot. Thus, Woodward‘s claim can ripen only after the Commission takes final and conclusive action on APS‘s pending application.3

CONCLUSION

¶15 Based on the foregoing, we affirm the superior court‘s order dismissing Woodward‘s appeal.

AMY M. WOOD • Clerk of the Court
FILED: AA

Notes

1
A rate case filing is a detailed application of any proposed rate increases that is reviewed by the Commission for approval. Ariz. Admin. Code (“A.A.C.“) R14-2-103 (defining filing requirements for an application in support of proposed rate increases or charges by an electrical utility). APS‘s application tо establish opt-out charges was filed under the more abbreviated process listed in A.A.C. R14-2-107 (defining filing requirements for an alternative application which is available on a limited basis for lеss substantial rate changes).
2
Prior to the court‘s ruling, the Commission filed its answer, asserting in part that Decision No. 75047 was a non-final interlocutory order and that the action was not ripe for reviеw.
3
Based on our conclusion that Woodward attempted to challenge a non-final decision and because the issue ‍‌‌​​​​​​‌‌‌‌​​‌​‌​​​​‌‌‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​​‌‌‌‍is not ripe for decision, we need not address the other grounds for dismissal raised by the Commission.
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