SENIOR CITIZENS COALITION v. PUB. UTIL. COMM., 69 Ohio St.2d 625 (1982)

433 N.E.2d 583

SENIOR CITIZENS COALITION ET AL., APPELLANTS, v. PUBLIC UTILITIES COMMISSION OF OHIO ET AL., APPELLEES.

No. 81-946Supreme Court of Ohio.
Decided March 3, 1982.

Public Utilities Commission — Electric companies — Rate increase proceeding — Petition to intervene — Commission decision thereon proper, when — Distribution of revenue increase — Upheld, when.

APPEAL from the Public Utilities Commission.

In April 1980, the Cleveland Electric Illuminating Company (CEI), intervening appellee herein, filed a notice of intent to apply for a permanent rate increase with the Public Utilities Commission (the commission). Subsequently, the Office of Consumers’ Counsel[1] (Consumer’s Counsel), the city of Cleveland and the Industrial Electricity Consumers (IEC) all separately petitioned for and received leave to intervene in the rate increase proceeding.

On February 19, 1981, the Senior Citizens Coalition,[2] the Greater Cleveland Welfare Rights Organization,[3] the Western Reserve Alliance[4] and the North Shore Alert,[5]
appellants[6]

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herein, filed a joint petition with the commission for leave to intervene in the CEI proceedings.

Subsequent to the filing of the petition for leave to intervene, CEI entered written objections with the commission opposing intervention by all four petitioners on the grounds that not one of the groups had demonstrated “a distinct and special interest which is appropriate for presentation and consideration in this proceeding and which is not already represented.”

On March 5, 1981, after reviewing appellants’ petition for leave to intervene, CEI’s objections and appellants’ response to the objections, the attorney examiner issued an order denying intervenor status to North Shore Alert, but granted the Coalition’s petition for leave to intervene. However, the Coalition’s permission to intervene was restricted to rate[7]
and tariff design issues due to the examiner’s finding that the Coalition’s other interests in the rate base and operating expense issues were adequately represented by other intervenors, especially Consumers’ Counsel.

Appellants prosecuted an interlocutory appeal of this intervention ruling to the commission, which affirmed the decision of the attorney examiner.

Appellants then attempted to secure a writ of prohibition from this court in order to prevent the commission from continuing to limit their participation in the proceedings in the foregoing manner. This court dismissed appellants’ complaint in prohibition and denied the writ.

On May 4, 1981, the commission issued its opinion and order granting CEI a rate increase. The commission also denied appellants’ request for a rehearing of the intervention order.

The cause is now before this court on an appeal as of right.

[1] Pursuant to R.C. 4911.01 et seq., the Office of Consumers’ Counsel is charged with the responsibility of representing residential customers in proceedings before the commission when an application is filed by a public utility for a change of rates.

[2] The joint petition for leave to intervene alleged that the Senior Citizens Coalition was a group “working towards improving the living conditions of the elderly citizens, especially those living on fixed and low incomes.”

[3] The joint petition for leave to intervene alleged that the Greater Cleveland Welfare Rights Organization, Inc. was a corporation which “helps individuals who receive welfare, disability, and social security * * *” to insure that they “can obtain adequate electric power at prices which are within their budget.”

[4] The joint petition for leave to intervene alleged that the Western Reserve Alliance “unites low and middle income consumers in the area of northern Ohio.” The petition alleged that “many of its members live in communities serviced by the applicant * * *” and that the Alliance “promotes the conservation of scarce resources and lower rates for consumers.”

[5] The joint petition for leave to intervene alleged that North Shore Alert was a greater Cleveland area safe energy group which works “protesting the use of nuclear energy.”

[6] For the convenience of the reader, we will refer, collectively, to Senior Citizens Coalition, the Greater Cleveland Welfare Rights Organization, Inc. and Western Reserve Alliance as the Coalition.

[7] For a discussion of rate design issues, see Toledo Coalition for Safe Energy v. Pub. Util. Comm. (1982), 69 Ohio St.2d 559, fn. 4.

Mr. Joseph P. Meissner, for appellants.

Mr. William J. Brown, attorney general, Mr. Marvin I. Resnik
and Ms. Marsha R. Schermer, for appellee.

Messrs. Squire, Sanders Dempsey, Mr. Alan P.

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Buchmann and Mr. Richard W. McLaren, Jr., for intervening appellee.

Per Curiam.

The pivotal issues in this case are: (1) whether the commission lawfully exercised its discretion in refusing to grant North Shore Alert’s petition for leave to intervene and in granting limited intervention to the remaining three appellants and (2) whether the commission’s distribution of the revenue increase among the various CEI customer classes is amply supported by the record.

In the joint petition for leave to intervene, North Shore Alert alleged that it was a greater Cleveland area safe energy group which operates by “protesting the use of nuclear energy.” Indeed, appellants’ brief to this court admits that the interest of the North Shore Alert is “the dangers of nuclear power.” However, i Cleveland v. Pub. Util. Comm. (1980), 64 Ohio St.2d 209, we ruled, at page 215, that the federal government has preempted state regulation of the operational safety of nuclear power plants. Therefore, the commission clearly did not abuse its discretion in refusing to permit North Shore Alert to intervene in the proceedings to raise issues over which the commission has no jurisdiction.

In reviewing the intervention arguments advanced by the three remaining appellants, we receive precedential guidance from the companion case of Toledo Coalition for Safe Energy v. Pub. Util. Comm. (1982), 69 Ohio St.2d 559, in which we ruled that the commission, as part of its inherent power to manage the orderly flow of its business, has the discretionary power to permit or deny intervention in its proceedings. See, also, Consumers’ Counsel v. Pub. Util. Comm. (1978), 56 Ohio St.2d 220; Dworken
v. Pub. Util. Comm. (1938), 133 Ohio St. 208. See, generally Sanders Transfer, Inc., v. Pub. Util. Comm. (1979), 58 Ohio St.2d 21.

In Toledo Coalition for Safe Energy, supra, this court identified those factors which are legally significant in evaluating the commission’s discretionary decisions on permissive intervention. The critical factors include, inter alia: the nature and extent of the prospective intervenor’s interest; the legal position advanced by the prospective intervenor and its probable relation to the merits of the case; whether the prospective

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intervenor’s interests are adequately represented by other parties; whether intervention will prolong or unduly delay the case; and whether the party seeking intervention will significantly contribute to full development and equitable resolution of the underlying factual issues in the case.[8]

Applying these criteria to the appellants, we find that the commission correctly decided to prohibit their intervention on the rate base and operating expense issues because (1) appellants failed to demonstrate any limited, identifiable interest which differentiated them from ordinary residential customers of CEI who were already represented in this proceeding by Consumers’ Counsel and, to a lesser extent, the city of Cleveland, and (2) failed to demonstrate that Consumers’ Counsel and the city of Cleveland did not adequately represent appellants’ interests.

As such, appellants failed to make the “compelling showing,” which we required in Toledo Coalition for Safe Energy, supra, as a prerequisite to intervention in cases where the interest of a party and a prospective intervenor are virtually identical. Limiting intervention in these situations enables the commission to avoid undue delay and unnecessary duplication of effort.

By the same reasoning, however, the commission properly allowed the Coalition to intervene on the rate and tariff design issues because the resolution of these issues necessarily entails some groups of customers having specific interests that conflict with the residential class as a whole.[9]

In reviewing the commission’s decision on the distribution of the revenue increase among the various CEI customer classes, this court will not disturb the findings and order of the commission unless it appears from the record that such findings and order are manifestly against the weight of the evidence and are so clearly unsupported by the record as to

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show misapprehension or mistake or willful disregard of duty Cleveland Elec. Illuminating Co. v. Pub. Util. Comm. (1975), 42 Ohio St.2d 403, paragraph eight of the syllabus, certiorari denied 423 U.S. 986.

In deciding how to distribute the revenue increase the commission adopted the “base-rates-excluding-fuel” method. A review of the record reveals that: (1) this was the method recommended, at the outset of the proceedings, by the commission’s staff; (2) several expert witnesses testified in favor of this method; and (3) a stipulation[10] entered into by CEI, the city of Cleveland, and the IEC supported this method.

Furthermore, the record reflects that appellants did not object to the aforementioned stipulation and did not present any evidence challenging the commission’s revenue distribution, despite the fact that appellants had been granted limited intervention on this precise issue.

After assessing the voluminous documents, evidence, testimony, and competing inferences in this case, the commission decided to adopt the “base-rates-excluding-fuel” method of distributing the revenue increase. After a careful review of the record in this case, we conclude that the commission’s adoption of the “base-rates-excluding-fuel” method of distributing the revenue increase is consistent with the manifest weight of the evidence and is clearly supported by the record. Cleveland Elec. Illuminating Co., supra. See, also, Sanders Transfer, Inc., supra, at 24.

Accordingly, for all the foregoing reasons, the order of the commission is affirmed.

Order affirmed.

CELEBREZZE, C.J., W. BROWN, SWEENEY, HOLMES, C. BROWN and STEPHENSON, JJ., concur.

LOCHER, J., concurs in the judgment.

STEPHENSON, J., of the Fourth Appellate District, sitting for KRUPANSKY, J.

[8] Since the scope of our review of a commission permissive intervention decision is the abuse of discretion standard, these factors embrace the major considerations that we elect to employ in reviewing the commission’s disposition of a petition for leave to intervene. Therefore, since the abuse of discretion test is essentially one of reasonableness, it is unnecessary for this court to decide whether Ohio Adm. Code 4901-1-04 or 4901-1-11
applies to appellants’ petition for leave to intervene.

[9] See Toledo Coalition for Safe Energy v. Pub. Util. Comm., supra, at fn. 4.

[10] Stipulations entered into between some, but not all, of the parties present in a rate proceeding can be “accorded substantial weight” by the commission. Akron v. Pub. Util. Comm.
(1978), 55 Ohio St.2d 155, 157.

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