Office of Consumer Counsel v. Department of Public Utility Control

Berdon, J.,

dissenting. Today, the majority denies the plaintiff, the city of Hartford, standing to appeal a decision of the department of public utility control (DPUC), allowing the defendant, Connecticut Light and Power Company (CL&P), an increase in its electric rates, solely on the narrow interpretation of the term “party” as used in General Statutes § 16-35.1

*651What makes this case particularly troubling is that Hartford sought in its appeal not only relief for itself as a ratepayer from substantial rate increases of $141 million granted to CL&P over a three year period, but also sought to protect the interests of its inhabitants who depend upon electric power. For Hartford, electricity is a major item in the city’s budget, with over $1.5 million spent on street lighting in the 1991-92 fiscal year. Decisions regarding this modern necessity of life, for which the state grants CL&P a monopoly, must be subject to judicial review when challenged, and in that judicial review the voice of Hartford must be heard. Such rate increases, as Hartford alleged in its petition to intervene before the DPUC, will “seriously jeopardize the ability of the city of Hartford as a consumer of electricity, and of its inhabitants as electricity consumers, to continue to meet existing financial burdens and economic necessities.”

Hartford’s deputy city manager, Patricia M. Williams, testified before the DPUC that Hartford is the fourth poorest city in the United States, is ranked the highest in Connecticut for the number of persons living below the poverty level in the state, and is the second highest nationally for poverty among children. These statistics and dire underlying concerns make it essential that the low income residents of the city have a voice through Hartford in the appeal.

In response to the city’s severe poverty, one of Hartford’s proposals before the DPUC was the initiation of a “life line” rate which would give low income residents a discount for electricity, but still cover the operating costs of CL&P. Indeed, Hartford, CL&P and others who participated in the hearings before the DPUC agreed to a partial settlement which provided for discounts for low income ratepayers and increased funding for energy conservation programs. For rea*652sons that are not disclosed in the record, the DPUC rejected this partial settlement agreement.

In their amici brief, the Conservation Law Foundation and the Connecticut Fund for the Environment, Inc., indicate that “a narrow interpretation of standing would limit the ability of all but public service companies and state agencies to appeal from decisions of the DPUC.” The amici brief further highlights that only through active participation by ratepayers in rate setting proceedings can public service monopolies be kept to their statutory mandate of “just, reasonable and adequate” rates. General Statutes § 16-19a. Participation, however, will not be active if the ratepayers are prohibited from appealing adverse decisions. Indeed, both the office of consumer counsel of the DPUC and the Connecticut Conference of Municipalities argued forcefully that because Hartford has actively participated in the proceedings and was legally aggrieved by the DPUC’s decision, the city is entitled to appeal.

In this case, the majority dismisses the broader meaning of “party” and employs the narrow technical definition of the term, requiring formal party status, when construing § 16-35. Presumably, the majority implicitly holds that to be a “party” for a right to appeal under § 16-35, the person or entity must comply with the rigorous statutory definition of “party” set forth in General Statutes § 4-177a (a)2 of the Uniform Admin*653istrative Procedure Act.3 General Statutes §§ 4-166 through 4-189. Consequently, the majority affirms the trial court’s dismissal of Hartford’s appeal because the city, pursuant to § 4-177a (b), participated in the DPUC’s administrative hearing as an “intervenor.” Hartford, however, argues that it is entitled to appeal under § 16-35 because “party” includes intervenors who appear before the DPUC.

A review of the legislative history reveals that the relevant language of § 16-35 first appeared in chapter 128 of the 1911 Public Acts, while § 4-177a was only *654recently enacted in 1988. Thus, the legislators who enacted § 16-35 could not have intended to define “party” in terms of the specific and restrictive definition of § 4-.177a (a). Moreover, the 1911 legislators could not have intended to distinguish between a “parly” and an “intervenor,” which are terms of art in modern administrative law. Consequently, the term “party” was utilized in § 16-35 in its general sense, to encompass any individual or entity who participates in an administrative hearing before the DPUC, including those individuals who participated as “intervenors.”4

The technical definition of “party,” set forth in § 4-177a (a), is extremely constrictive. Hartford, or for that matter any ratepayer, and even all the ratepayers collectively, are not eligible technically to be admitted as a “party” to an administrative agency proceeding under the Uniform Administrative Procedure Act. This standard is more rigorous than the aggrievement standard which merely requires that a ratepayer have a “specific personal and legal interest in the subject matter of the decision.” (Emphasis added; internal quotation marks omitted.) Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168, 173, 592 A.2d 386 (1991). Adherence to such a technically rigid standard would be counter to the promotion of full, active participation in the process of rate setting and the protection of the public.

*655Not only does the majority’s narrow interpretation of the term “party” stand in direct opposition to our recent interpretation of the term in Rose v. Freedom of Information Commission, 221 Conn. 217, 602 A.2d 1019 (1992), but it also ignores the legislature’s apparent intent to allow the voices of rate-paying consumers to be effectively heard. Additionally, the majority disregards the harsh public policy implications of its narrow interpretation.

Just three years ago, this court interpreted the term “party” as it is used in General Statutes § 1-21i (d).5 Id., 217. In Rose, we held that the use of the term “party” by the legislature did not require formal party status under § 4-177a in a freedom of information commission (FOIC) proceeding as a prerequisite for standing to appeal a decision of the commission that aggrieved the appellant. Id., 229. Rather, we construed “party” broadly to mean “ ‘[a] person concerned or having or taking part in any affair, matter, transaction, or proceeding . . . .’” Id., 227, quoting Black’s Law Dictionary. Under this definition of “party,” Hartford, which participated as an intervenor before the DPUC, would certainly qualify to appeal under § 16-35.

Today the majority performs linguistic gymnastics in an effort to distinguish Rose from the facts before us. The language of the statute at issue in Rose, § 1-21i (d), and the language of statute at issue in this case, § 16-35, are practically identical. The majority distinguishes the respective language by highlighting the phrase, “made a party” which is present in § 16-35.6 *656They assert that the use of the word “made” in § 16-35 “denotes the act of seeking and attaining actual party status.” If “party” is given its broad definition under § 16-35 as we gave it in Rose, then Hartford was “made a party” before the DPUC when it was allowed to participate as an intervenor. This is the same result we reached in Rose. In Rose, the plaintiffs were intervenors before the FOIC and were deemed “parties” for the purposes of appeal. Rose v. Freedom of Information Commission, supra, 221 Conn 221. Therefore, any distinction that may exist between deeming someone a party and “making” someone a party is insufficient to deny Hartford the more expansive interpretation of “party” we articulated in Rose.

As we noted in Rose, the technical use of a term is not to be employed when to do so may lead to “unacceptable results.” Id., 226. Unless the language is “absolutely clear,” a statutory term should be construed in a way that “give[s] effect to the intended purpose of the legislature.” (Internal quotation marks omitted.) Id., 225. In this instance, to construe “party” in the technical sense leads to the unacceptable result of ignoring the intervening status of Hartford in the DPUC’s proceeding and Hartford’s advocacy for its low income inhabitants.

Construing “party” technically in § 16-35 for a contested case flies in the face of the legislature’s intent *657to treat ratepayers the same as the publie services company. This legislative intent is demonstrated by General Statutes § 16-19pp, which provides that the DPUC “shall not hold an uncontested proceeding on any issue affecting ratepayers of the state unless such proceeding provides ratepayers with equal status and the same rights of participation as that of a public service company.” Thus, § 16-19pp demonstrates a clear legislative intent that the regulator and the monopolistic public service company are not to ignore the consumer.7

Beyond our holding in Rose, and beyond the legislative intent to allow ratepayers an opportunity to have their voices judicially heard, public policy requires that “party” in § 16-35 be defined to include “intervenors.” Despite the foreboding predictions of CL&P, the inclusion of intervenors in the definition of “party” will not open the floodgates of litigation. “Intervenor” status in a “contested case” is not granted to just anyone. Rather, to be an intervenor, a person, upon submitting a timely petition, must state “facts that demonstrate that the petitioner’s participation is in the interests of justice and will not impair the orderly conduct of the proceedings.” General Statutes § 4-177a (b). This standard adequately separates those ratepayers who have claims meriting the right to participate and appeal individually, from those who have general concerns that can be raised and appealed by the office of consumer counsel.

*658As this court has stated, “[sjtanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) Light Rigging Co. v. Dept. of Public Utility Control, supra, 219 Conn. 172. In this case, Hartford has actively participated in the proceeding and now suffers from an adverse decision of the DPUC. Unquestionably, there is a “hot controversy” to be decided on appeal. Therefore, rather than impose a constrictive, technical standard that will preclude virtually all ratepayers from appeal, regardless of their aggrievement, this court should recognize that those individuals or entities that have participated actively in the DPUC’s proceeding as intervenors have standing to appeal an adverse decision as a “party” under § 16-35. Accordingly, this court should go on to address the issue of whether Hartford was aggrieved.

Finally, even on the basis of the majority’s analysis, at the very least, procedural fairness requires that we not merely affirm the dismissal of Hartford’s appeal. Rather, the matter should be remanded to the trial court to determine whether Hartford “ought to have been made a party” as provided in § 16-35. Cf. Mannweiler v. LaFlamme, 232 Conn. 27, 36, 653 A.2d 168 (1995).8 In doing so, despite the majority’s refusal, we should clearly define “party” under § 16-35.9

*659The majority, however, claims that Hartford “neither pleaded nor established at the trial level that it should have been made an actual party to the proceedings.” Nevertheless, Hartford should not be deprived of the opportunity to do so for two compelling reasons. First, CL&P conceded at oral argument that Hartford had requested “party” status, but was denied such by the DPUC. For some reason, however, the majority ignores this concession. Second, the issue of whether Hartford had a right to appeal under § 16-35 was raised for the first time by CL&P in its brief and was never raised before the trial court. The sole issue before the trial court, and the issue which dominated oral arguments before this court, was whether Hartford was aggrieved, not whether Hartford is a “party” under § 16-35. The majority, realizing that Hartford was sufficiently aggrieved under Light Rigging Co. v. Dept. of Public Utility Control, supra, 219 Conn. 168,10 now switches its focus, and bases its decision on a claim that was never made at trial.

Accordingly, I respectfully dissent.

General Statutes § 16-35 provides that “[a]ny company, town, city, borough, corporation or person aggrieved by any order, authorization or decision of the department of public utility control, except an order, authorization or decision of the department approving the taking of land, in any matter to which he or it was or ought to have been made a party, may appeal therefrom in accordance with the provisions of section 4-183. The party so appealing shall give bond to the state, with sufficient surety, for the benefit of the adverse party,, in such sum as the department fixes, to pay all costs in case he or it fails to sustain such appeal.”

General Statutes § 4-177a provides in relevant part: “(a) The presiding officer shall grant a person status as a party in a contested case if that officer finds that: (1) Such person has submitted a written petition to the agency and mailed copies to all parties, at least five days before the date of hearing; and (2) the petition states facts that demonstrate that the petitioner’s legal rights, duties or privileges shall be specifically affected by the agency’s decision in the contested case.

“(b) The presiding officer may grant any person status as an intervenor in a contested case if that officer finds that: (1) Such person has submitted a written petition to the agency and mailed copies to all parties, at least 5 days before the date of hearing; and (2) the petition states facts that demonstrate that the petitioner’s participation is in the interests of justice and will not impair the orderly conduct of the proceedings.” (Emphasis added.)

The majority asserts, in footnote 23 of its opinion, that it does not define “party” in terms of § 4-177a (a), yet the majority does not specifically inform us what does constitute a “party” within the meaning of § 16-35. Rather, the majority states merely that Hartford was not a party in this instance. If “party,” as used in § 16-35, is not given its ordinary meaning as stated in Rose v. Freedom of Information Commission, 221 Conn. 217, 227, 602 A.2d 1019 (1992)—“ ‘a person concerned or having or taking part in any affair, matter, transaction, or proceeding . . .’ ’’—the definition of “party” under § 4-177a (a) of the Uniform Administrative Procedure Act would then logically control. If the majority believes that an ordinary ratepayer would satisfy the requirements of a “party” under § 4-177a (a), or that there may be some third definition of “party” under § 16-35, it seems to me that the majority has an obligation to disclose its reasoning or its understanding of what “party” might otherwise mean. As an appellate court, we write opinions not only for the benefit of deciding a case and for the parties before us, but also to furnish guidance to the trial court for future cases. Furthermore, in a case such as this, we do so to furnish notice to the legislature of the interpretation that we have placed on a statute that is in issue before us, so that if the legislature disagrees with our interpretation, that branch of government can take corrective action. The issue of how to interpret “party” under § 16-35 is clearly before us. The majority does a disservice to the trial court, to future litigants and to the legislature when it refuses to explain what it understands that word to mean.

The majority claims that we do not have subject matter jurisdiction to do this. If the majority has jurisdiction to deeide who is not a party, and the majority has jurisdiction to write a voluminous opinion on the subject, surely it would not offend our subject matter jurisdiction for the majority to define “party” for the purpose of determining whether we have jurisdiction. A court always “has authority to determine its own authority, or as it is sometimes put, ‘jurisdiction to determine its jurisdiction.’ ” 1 Restatement (Second), Judgments $ 11, comment (c), p. 110 (1980).

In New Haven v. Public Utilities Commission, 165 Conn. 687, 345 A.2d 563 (1974), this court allowed the city of New Haven to take an appeal from an adverse decision of the public utilities commission, the predecessor to the DPUC, although the city was not a formal “party” in that action. It is true, as the majority points out, that the meaning of “party” status apparently had not ‘ ‘been raised by the parties or otherwise brought to the attention of the court in that case.” Nevertheless, it is ironic that in this case the majority effectively deprives Hartford access to the courts, yet in New Haven this court never questioned the city’s right to appeal. Furthermore, although § 16-35 was first enacted more than eighty years ago, in 1911, the majority is unable to cite a single case in which an entity that had actively participated in proceedings before the public utilities commission or the DPUC was not considered a “party” for appeal purposes.

General Statutes § 1-211 (d) provides in relevant part: “Any party aggrieved by the decision of [the freedom of information commission] may appeal therefrom . . . .”

In defense of its constrictive interpretation, the majority also points out that the legislature amended § 1-21i (d) in 1977 as evidence of legislative intent that “party” be interpreted broadly only in that context. This *656legislative history, however, can equally support employing the broader construction of “party” in this case. The legislature altered § 1-21i (d) from “[a]ny person aggrieved” to “[a]ny party aggrieved”so that state agencies would be able to appeal. (Emphasis added.) Rose v. Freedom of Information Commission, supra, 221 Conn. 227-28. Thus, rather than add “state agency” to the statutory definition of “person” (General Statutes § 1-18 [a]), or change the statute to read, “[a]ny person or state agency aggrieved,” the legislature chose to replace “person” with “party.” Therefore, it appears to be the legislature’s understanding that “party” is a more expansive term than “person,” thereby evidencing the legislative intent that the term encompass more than just individuals who have obtained formal party status.

This intent is also reflected in the legislative history of § 16-19pp. Prior to enacting the statute, Senator Gary A. Hale commented that “the Department of Public Utility Control shall not hold an uncontested proceeding into any issue affecting ratepayers without a notice of intent to the public so that ratepayers themselves will have the ability to be a party in the proceedings.’-’ (Emphasis added.) 35 S. Proc., Pt. 3, 1992 Sess., p. 1040. Not only does this statement indicate the legislative intent to empower ratepayers to participate in DPUC proceedings, but this statement also serves to illustrate how the legislature liberally uses the term “party.”

Just as the record can be corrected by furnishing proper notice to achieve subject matter jurisdiction in an action for a declaratory judgment; see Mannweiler v. LaFlamme, supra, 232 Conn. 36; so, too, should Hartford be allowed in this case to establish a record in the trial court on the issue of whether it “ought to have been made a party” under § 16-35.

See footnote 3 of this dissent.

This court concluded that the city of New Haven was aggrieved and could take an appeal in New Haven v. Public Utilities Commission, 165 Conn. 687, 345 A.2d 563 (1974). That case involved an attempt by the United Illuminating Company to run high voltage power lines through the city of New Haven. Id., 690. The trial court had found “that the city of New Haven, as a municipal body, has a substantial interest in the matter of construction of facilities by public service companies within its corporate limits.” Id., 699. We refused to overturn the trial court’s conclusion as contrary to law. Id., 704. Under this same rationale, Hartford must be deemed aggrieved in this case. If a municipality has a sufficient interest in its corporate limits to demonstrate aggrievement, certainly a municipality that itself spends more than $1.5 million annually on electricity for street lighting, and the inhabitants of which will bear a substantial share of any increase in electricity rates, similarly is aggrieved for the purpose of taking an appeal from the DPUC.