RENDERED: MAY 27, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0542-MR
PUBLIC SERVICE COMMISSION OF
KENTUCKY, AN INDEPENDENT
AGENCY OF THE
COMMONWEALTH APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NOS. 18-CI-01115, 18-CI-01117, AND 18-CI-01129
METROPOLITAN HOUSING
COALITION; ASSOCIATION OF
COMMUNITY MINISTRIES;
CHARTER COMMUNICATIONS
OPERATIONS, LLC; COMMUNITY
ACTION COUNCIL FOR
LEXINGTON-FAYETTE, BOURBON,
HARRISON, AND NICHOLAS
COUNTIES; KENTUCKY
INDUSTRIAL UTILITY
CUSTOMERS; KENTUCKY
UTILITIES COMPANY; LEXINGTON-
FAYETTE URBAN COUNTY
GOVERNMENT; LOUISVILLE GAS
AND ELECTRIC COMPANY;
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT; SIERRA
CLUB AND ITS INDIVIDUAL
MEMBERS; THE ATTORNEY
GENERAL OF KENTUCKY; THE
KENTUCKY SCHOOL BOARDS
ASSOCIATION; THE KROGER
COMPANY; THE UNITED STATES
DEPARTMENT OF DEFENSE; AND
WALMART, INC. APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: This consolidated case arises from two administrative utility
rate adjustment applications pending before the Public Service Commission (PSC).
Appellees include several entities representing the interests of individuals and
communities impacted by the potential rate adjustments as well as other entities
with interests in the underlying action. The present issue concerns Appellees’
petitions to intervene in the underlying administrative cases denied by the PSC and
then reversed by the Franklin Circuit Court which, in an order entered on March 5,
2019, granted Appellees’ request for declaratory and injunctive relief. PSC now
appeals to this Court as a matter of right arguing that there is no right of an appeal
from a denial of intervention of a non-utility before the PSC and, assuming
arguendo, that there is a right to appeal of a denial of intervention, there is no
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interlocutory appeal of a denial of permissive intervention. For the following
reasons, we reverse the circuit court’s order.
STANDARD OF REVIEW
The standard of review on appeal from a declaratory judgment is
whether the judgment was clearly erroneous. American Interinsurance Exchange
v. Norton, 631 S.W.2d 851, 852 (Ky. App. 1982). We review a circuit court’s
ruling on a request for injunctive relief for an abuse of discretion. Reynolds
Enterprises, Inc. v. Kentucky Bd. of Embalmers & Funeral Directors, 382 S.W.3d
47, 49-50 (Ky. App. 2012) (citing Price v. Paintsville Tourism Comm’n, 261
S.W.3d 482, 484 (Ky. 2008)). We also review the PSC’s denial of a motion to
intervene for an abuse of discretion. Inter-County Rural Elec. Co-op. Corp. v.
Public Service Commission, 407 S.W.2d 127, 130 (Ky. 1966).
ANALYSIS
The present case has an extensive appellate record that is necessary to
cite at length in order to appropriately convey the factual and procedural
foundation previously memorialized by our Supreme Court:
In the underlying case, Louisville Gas & Electric
Company (LG&E) and Kentucky Utilities Company
(KU) had each filed an application with the Kentucky
Public Service Commission to raise their base rates.
These applications triggered administrative proceedings
before the Commission pursuant to Kentucky Revised
Statutes (KRS) Chapter 278. Since LG&E and KU are
under common ownership, the cases were heard together.
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[Appellees] (real parties in interest below,
Metropolitan Housing Coalition; Association of
Community Ministries; Community Action
Council for Lexington-Fayette, Bourbon, Harrison,
and Nicholas Counties, Inc.; and Sierra Club and
its members, Alice Howell, Carl Vogel, Amy
Waters, and Joe Dutkiewicz) sought to intervene in
the hearings before the Commission. Though the
Commission allowed several other entities to
intervene, it denied [Appellees’] request.
[Appellees] sought review of the Commission’s
order denying intervention in Franklin Circuit
Court.
On November 21, 2018, the Franklin Circuit
Court issued a temporary injunction enjoining the
Commission from preventing Appellants’ full
participation in the rate cases as intervening
parties. On December 17, 2018, the Commission
filed a petition for a writ of prohibition with the
Court of Appeals, seeking the appellate court to
prohibit the Franklin Circuit Court from acting in
the case. The Commission did not ask the Court of
Appeals to issue an order staying the Franklin
Circuit Court proceedings. While the writ was
pending before the Court of Appeals, both the
underlying rate cases before the Commission and
the circuit court case proceeded. On March 5,
2019, two significant events occurred: (1) the
Commission convened the first day of a two-day
hearing in the rate cases, with [Appellees] fully
participating as intervening parties; and (2) the
Franklin Circuit Court entered its final opinion and
order in the case before it – issuing a permanent
injunction enjoining the Commission from
preventing Appellants’ intervention in the rate
cases. The very next day, March 6, 2019, the
Court of Appeals issued an opinion and order
granting the Commission’s writ petition to prohibit
the Franklin Circuit Court from taking further
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action in the case.[1] After finding out about the Court of
Appeals’ order, the Commission immediately dismissed
[Appellees] as intervening parties and they were not
allowed to present or cross-examine witnesses on the
second day of hearings on the rate cases.
Because the Court of Appeals issued its order a
day after the Franklin Circuit Court issued its order fully
disposing of the case and remanding to the Commission,
[Appellees] filed a joint motion asking the Court of
Appeals to reconsider its order. The Court of Appeals
denied that motion and this appeal followed.
Metro. Hous. Coal. v. Shepherd, Nos. 2019-SC-000195-MR and 2019-SC-000196-
MR, 2020 WL 2831838, at *1 (Ky. May 28, 2020) (Shepherd II). The Kentucky
Supreme Court ultimately reversed the Court of Appeals’ order granting a writ of
prohibition on the basis that the issue was moot. The Court specifically reasoned
as follows:
The Franklin Circuit Court’s final opinion and order had
disposed of all issues regarding all parties and granted a
permanent injunction. That final order has been appealed
to the Court of Appeals, where it is currently held in
abeyance pending the outcome of the present cases. The
order was effective upon entry and was appealable at that
time. Since the Franklin Circuit Court’s order was
appealable at that time, “there [was a] remedy through an
application to an intermediate court.” Therefore, the
Commission cannot meet the second hurdle for a first-
class writ: that “there [was] no remedy through an
application to an intermediate court.”
1
That Court of Appeals decision is officially cited as Pub. Serv. Comm’n of Kentucky v.
Shepherd, No. 2018-CA-001859-OA, 2019 WL 1087266, at *1-11 (Ky. App. Mar. 6, 2019). It
will hereafter be referred to as Shepherd I.
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Id. at *3 (citation omitted). The present appeal is now ripe for a decision on the
merits. First, Appellees, Kentucky Utilities Company and Louisville Gas and
Electric Company, argue that because the substantive issues presented have already
been decided by the Court of Appeals in the original action Shepherd I, we are
bound to that decision based on the law of the case doctrine. See Brooks v.
Lexington-Fayette Urban Cty. Hous. Auth., 244 S.W.3d 747, 751 (Ky. App. 2007).
Therein, the Court observed that the law of the case doctrine is “an iron rule,
universally recognized, that an opinion or decision of an appellate court in the
same cause is the law of the case for a subsequent trial or appeal however
erroneous the opinion or decision may have been.” Id. (quoting Union Light, Heat
& Power Co. v. Blackwell’s Adm’r, 291 S.W.2d 539, 542 (Ky. 1956)). Critically,
however, the law of the case doctrine is “predicated upon the principle of finality.”
Id. at 751. We conclude that the law of the case doctrine does not apply here. See
Shepherd II, 2020 WL 2831838, at *4 (emphasis in original) (“Since the matter
was moot and the Court of Appeals erred in its application of our writ standard, we
will not delve into the important substantive issues this case presents.”). We
further conclude that the principle of stare decisis does not bind this Court to our
decision in Shepherd I, which was an original action subsequently reversed by our
Supreme Court. Therefore, it lacks the precedential value necessary to invoke
stare decisis.
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We now turn to the primary statute at issue here – KRS 278.410. It
provides in relevant part as follows:
Any party to a commission proceeding or any utility
affected by an order of the commission may, within thirty
(30) days after service of the order, or within twenty (20)
days after its application for rehearing has been denied by
failure of the commission to act, or within twenty (20)
days after service of the final order on rehearing, when a
rehearing has been granted, bring an action against the
commission in the Franklin Circuit Court to vacate or set
aside the order or determination on the ground that it is
unlawful or unreasonable.
KRS 278.410(1). Recently, a panel of this Court issued a published opinion that
addressed this provision in a case very similar to the present. See Biddle v. Public
Service Commission of Kentucky, 643 S.W.3d 83 (Ky. App. 2021).2 Therein, the
Court held that the prospective intervenor was a “party” with a right to seek
judicial review of the PSC’s denial of intervention and that remand was necessary
for the PSC to consider whether adjoining landowners had a special interest in the
action. Id. In so holding, the Court opined:
in Inter-County Rural Electric Cooperative Corporation,
the Court considered the import of the, then current, 1952
version of KRS 278.410(1). This version was
substantively the same as the current version of this
statute and contained the same “[a]ny party” language.
The Court believed KRS 278.410(1) provided a sufficient
basis for allowing judicial review of the denial of the
2
The Court denied a petition for rehearing in Biddle on November 22, 2021. A motion for
discretionary review was filed in the Kentucky Supreme Court on December 22, 2021, and was
denied on April 20, 2022.
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motion to intervene “on the ground that [the
Commission’s action] is unlawful or unreasonable.”
Inter-County Rural Elec. Coop. Corp., 407 S.W.2d at
129.
Id. at 89. The Court also provided the following notation that is particularly useful
in resolving the present issues:
A trio of unpublished Court of Appeals cases also
support our conclusion that Biddle and Potts have an
undeniable right to judicial review of the denial of their
motions to intervene. In Karem v. Kentucky Public
Service Commission, No. 2017-CA-001697-MR, 2019
WL 1579653, at *3 (Ky. App. Apr. 12, 2019), the Court
unequivocally declared that the person seeking review of
the denial of his motion to intervene in a Commission
action regarding placement of a solar facility “had
standing . . . to contest the [Commission’s] denial of his
motion to intervene.” In Young v. Public Service
Commission of Kentucky, No. 2009-CA-000292-MR,
2010 WL 4739964, at *2 (Ky. App. Nov. 24, 2010),
while the Court held that the appeal of a denial of a
motion for intervention before the final matter was
concluded was interlocutory and, accordingly, the circuit
court did not err in denying it, noting “any appeal of the
denial must occur after final adjudication in the
underlying case[,]” the Court did not question the right of
the would-be intervenors to bring such an action
challenging the denial of their motion to intervene after
the underlying commission action was final. Similarly,
while standing was not directly addressed in
EnviroPower, LLC v. Public Service Commission of
Kentucky, No. 2005-CA-001792-MR, 2007 WL 289328,
at *3-5 (Ky. App. Feb. 2, 2007), the Court in reviewing
the denial of a motion to intervene did not question the
propriety of the action or the appeal of it.
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Id. at n.6. In the same vein as these cases, it is clear that the provision permitting
Appellees to intervene, 807 KAR3 5:001 Section 4(11), is permissive, not
mandatory. See also Inter-County Rural Elec. Co-op. Corp., 407 S.W.2d at 130
(“Intervention as a matter of right is not specifically defined in the [intervention]
regulation” that was operative at that time.). It appears that the only mandatory
right of intervention in PSC cases is that of the Attorney General. See KRS
367.150(8)(b). Therefore, we conclude that based on the foregoing, Appellees
have a right to appeal the PSC’s denial of their motion to intervene. However, the
issue still remains whether an interlocutory appeal from that order is an available
option. We conclude that it is not.
KRS 278.410 omits any mention of finality concerning appealable
orders. As previously discussed, however, our recent Biddle decision noted two
unpublished cases that are particularly persuasive here. In Young, the Court
observed that:
Clearly precedent supports the trial court’s
conclusion that the denial of Young’s motion to intervene
was interlocutory and that any appeal of the denial must
occur after final adjudication in the underlying case.
In Inter-County Rural Elec. Co-op. Corp. v. Public
Service Commission, 407 S.W.2d 127, 130 (Ky. 1966),
the Court held that 807 KAR 5:001 Section 3(8) “reposes
in the Commission the responsibility for the exercise of a
sound discretion in the matter of affording permission to
3
Kentucky Administrative Regulations.
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intervene. Intervention as a matter of right is not
specifically defined in the regulation.”
2010 WL 4739964, at *2 (emphasis added). This echoed the sentiment found in
EnviroPower, LLC:
EnviroPower then filed on April 19, 2005,
an action in the Franklin Circuit Court requesting
injunctive and declaratory relief. The Court held a
brief hearing that same day and issued a restraining
order which among other things, prohibited the
PSC from holding its scheduled hearing.
Subsequently, the Court issued its May 6, 2005,
Order, which among other things, dissolved the
restraining order, rejected all of EnviroPower’s
challenges to the PSC’s denial of intervention, and
denied a temporary injunction to prohibit a PSC
hearing in the CON Case. EnviroPower
requested interlocutory relief in the Court of
Appeals, which was denied by Order entered May
31, 2005, and then interlocutory relief in the
Kentucky Supreme Court, which was denied by
Order entered June 7, 2005.
2007 WL 289328, at *2. Although these decisions are unpublished, we consider
them to be highly instructive as they have been cited by this Court in Biddle and
throughout the underlying litigation in the present case. Moreover, there appears
to be no binding authority to the contrary. Having considered the relevant record
and the law, we find the reasoning advanced by the Franklin Circuit Court in its
March 5, 2019, order to be contrary to this Court’s most recent decisions, or
otherwise unconvincing as a matter of law. Therefore, we need not address these
issues further.
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CONCLUSION
For the foregoing reasons, we hereby reverse the Franklin Circuit
Court’s order entered on March 5, 2019.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEFS FOR APPELLEE
ASSOCIATION OF COMMUNITY
John E.B. Pinney MINISTRIES:
Nancy J. Vinsel
Frankfort, Kentucky Lisa Kilkelly
Eileen Ordover
Louisville, Kentucky
BRIEF FOR APPELLEE SIERRA
CLUB AND ITS INDIVIDUAL
MEMBERS:
Joe F. Childers
Lexington, Kentucky
BRIEFS FOR APPELLEES
METROPOLITAN HOUSING
COALITION AND COMMUNITY
ACTION COUNCIL FOR
LEXINGTON-FAYETTE,
BOURBON, HARRISON, AND
NICHOLAS COUNTIES:
Tom FitzGerald
Iris Skidmore
Frankfort, Kentucky
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BRIEF FOR APPELLEES KENTUCKY
UTILITIES COMPANY AND
LOUISVILLE GAS AND ELECTRIC
COMPANY:
Kendrick R. Riggs
Steven B. Loy
Monica H. Braun
Mary Ellen Wimberly
Lexington, Kentucky
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