No. 85-445
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
MONTANA POWER COMPANY,
Petitioner and. Respondent,
MONTANA DEPARTMENT OF PUBLIC SERVICE
REGULATION, MONTANA PUBLIC SERVICE
COMMISSION, and STATE OF MONTANA,
Respondents and Appellants.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely argued, Attorney General, Helena,
Montana
Robert Nelson argued, Public Service Commission,
Helena, Montana
For Respondent :
John Alke argued for Montana Power, Helena, Montana
Pamela Merrell, MPC, Butte, Montana
Submitted: October 23, 1985
Decided: November 27, 1985
Filed: kub' 27 1985
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
We determine in this case that the attempted. appeal by
the Attorney General from the judgment of the District Court
in the underlying cause in the Second Judicial District,
Silver Row County, must be dismissed for the reasons
hereafter stated. Further we d-etermine that the appeal of
the Montana Department of Public Service Regulation, Montana
Public Service Commission must also be dismissed as untimely.
On September 30, 1983, Montana Power Company (MPC) filed
an application with the Montana Department of public Service
Regulation, through the Montana Public Service Commission
(PSC) to increase the utility's electrical rates to produce
an annual gross income increase of $96,367,013. It was the
largest electrical rate increase request ever filed in the
State of Montana. Opposition to the proposed rate increases
developed. early, and parties appeared before the PSC in
opposition either as protestants or as intervenors.
Protestants included James C. Paine, the Montana Consumer
Counsel, and his staff attorney, John Allen. Intervenors
included Northern Plains Resource Council, Montana
Irrigators, District 11 Fuman Resources Council, Ideal Basic
Industries, ASARCO, Champion International, Conoco, Missoula
County, Atlantic Richfield, Stauffer Chemical, Exxon,
L.I.G.H.T., Butte Community Union, Montana Association of
Senior Citizens, and the IJnited States Air Force. The
Attorney Genera1 made no formal application or appearance
before the PSC either on his own behalf or on behalf of the
State of Montana as an interested party.
The application was given docket no. 83.9.67 by the PSC,
and several interim orders followed therein by the
Commission. On August 3, 1984, the Commission handed down
the critical order which became the basis of contention in
this action. In essence this order of the Commission granted
MPC authority to increase its electrical rates to generate
additional revenues in the amount only of $4,106,915 (a
figure later amended) and, most importantly, denied in toto
MPC1s application to increase its rates to recover costs
associated with the construction of its steam power plant
known as Colstrjp Unit 3.
The PSC order of August 3, 1984 is long and complicated,
but generally it may be stated that the PSC determined that
no portion of Colstrip Unit 3 was used or useful in the
generation or supply of electricity for the Montana Power
Company consumers, and therefore the PSC refused to include
its value in MPC1s rate base. The PSC determined that based
on a 1982 test year, the demand for energy by MPC's
electri-cal users could be satisfied through utilization of
other less expensive resources and through modification of
the maintenance schedule of Colstrip Units 1 and 2. The less
expensive resources were a natural gas-fired facility known
as the "Bird Plant" owned by MPC, and the available
electricity from the Hanford Project, a Washington State
nuclear energy facility, whose electricity the utility had
purchased in the past. The MPC had been offered a contract
from Hanford Energy for electricity for a 10 year period
commencing July 1983, but MPC had rejected it because of
Colstrip Unit 3's energy for commercial operation becoming
available in early 1984.
On October 10, 1984, MPC filed in the District Court,
Second Judicial District, Silver Bow County, its petition for
judicial review of the PSC order, under the provisions of the
Montana Administrative Procedure Act, 5 2-4-701, MCA.
Service of copies of the petition was made upon all of the
protestants and intervenors of record before the PSC by mail,
and in addition service of summons and copies of the petition
for review were personally served upon counsel for all of the
parties, the protestants and the intervenors. Such personal
service was also made on October 12, 1-984,upon the Attorney
General, and the Chief Assistant Attorney General sent notice
of such service upon him to the PSC by letter dated October
17, 1984.
Several of the parties who had contested the MPC in the
rate case before the PSC did in fact appear in the District
Court action for review. They included, besides the PSC,
which was the respondent, intervenors Champion International
Corporation, Conoco Inc., the Montana Consumer Counsel, and
Montana Irrigators Inc., but did not include the Attorney
General, who made no formal appearance in the District Court
case on his own behalf or on behalf of the State of Montana
as an interested party.
After receiving briefs and conducting a hearing, on June
17, 1985, the District Court entered findings of fact,
conclusions of law and order, in effect reversing the August
3, 1984 order of the PSC. The District Court remanded the
matter to the PSC "for a proper determination of the need for
the Colstrip 3 generating station which is in full compliance
with this court's decree," and further the District Court
enjoined the Commission from determining or attempting to
determine the need for Colstrip 3 generating station on the
MPC1s system in the manner that the District Court had found
to be unlawful.
After the judgment, on August 16, 1985, Northern Plains
Resource Council, District 11 Human Resources Council, and
Missoula County, (none of which had earlier appeared in the
District Court action, but had appeared before the PSC) filed
a motion in the District Court for permission to intervene in
the action. On the same date, August 16, 1985, the District
Court denied the motion of these parties for intervention.
On August 16, 1985, the Attorney General filed in the
District Court a notice of appeal, stating that "notice is
hereby given that the State of Montana, through its Attorney
General, appeals to the Supreme Court of the State of
Montana" from the order and judgment of June 17, 1985 of the
District Court.
On August 23, 1985, a notice of appeal was filed by the
Montana Department of Public Service and Regulation, Montana
Public Service Commission from the District Court's order
pursuant to Rule 5 of the Montana Rules of Appellate Civil
Procedure.
11.
On September 5, 1985, MPC filed in this Court its motion
to dismiss the appeal- filed by the Attorney General for lack
of standing and further to dismiss the appeal filed by t-he
Montana Public Service Commission as untimely.
MPC contends that the Attorney General has no standing
to appeal from the District Court decision in a judicial
review proceeding in which the Attorney General did not
appear on behalf of the State of Montana. MPC also contends
that the appeal of the Montana PSC is invalid because, since
it was filed under R.ule 5, M.R.App.Civ.P., and not within 60
days of the iudgment as required by S 2-4-711, MCA, and
69-3-405, MCA, the PSC appeal is untimely.
In opposing the motion to dismiss, the Attorney General
contends that the State was indeed a party to the proceeding
below because its Department of Public Service Regulation was
the named respondent, that the State was in fact a party to
the District Court proceedings, and that the Attorney General
was authorized to appeal from the District Court's judgment
under his common law and statutory powers.
Both parties rely on State ex rel. Olsen v. Public
Service Commission (1955), 129 Mont. 106, 283 P.2d 594. The
Attorney General claims that Olsen affirms his broad
constitutional, statutory and common law powers as attorney
general and that it affirmed the authority of the attorney
general to represent the State in district court proceedings;
while the Montana Power Company distinguishes Olsen, saying
in that case the Attorney General was an actual party taking
part on behalf of the State jn the District Court
proceedings.
The motion of MPC with respect to the Attorney General's
appeal puts in question squarely his right as an official or
as an attorney representing the State to perfect an appeal
from the District Court decision in this case.
There is not before us, and we make no comment on, the
legal sufficiency or propriety of the District Court order
reversing the PSC. Also not before us are the actions taken
by the PSC subsequent to the judgment of the District Court
which resulted in electrical rate increases granted by the
PSC relating to Colstrip Unit 3 based on a test year of 1983.
111.
Supervision, regulation and control of public utilities
are vested in the Montana PSC und.er the terms of statutes
found in Ch. 3, Title 69, MCA. The PSC is given specific
power "in its discretion" to investigate and ascerta.in in the
rate-making process the value of the property of every public
utility "actually used and useful" for the convenience of the
public. Section 69-3-109, MCA.
With respect to the Attorney General, the chapter on the
regulation of utilities under S 69-3-110(3) provides:
Upon the request of the commission, it is the duty
of the attorney general or the prosecuting attorney
of any county to aid in any investigation,
prosecution, hearing, or trial had under the
provisions of this chapter and to institute and
prosecute a11 actions or proceedings necessary for
the enforcement of this chapter.
The PSC contends that it made no request of the Attorney
General for aid in the investigation, prosecution, hearing,
or trial of the MPC rate increase proceedings. For that
reason, PSC contends that the Attorney General did not
represent it in the proceedings before the Commission itself,
or in the District Court when MPC filed its petition for
judicial review.
(Curiously, Ch. 14 of Title 6 9 , MCA, the part of our
code referring to the regulation of railroads by the Public
Service Commission provides in section 69-14-132, MCA, that
the Attorney General is the attorney of the Commission, but
tha.t the Commission may employ special counsel with the
approval of the Attorney General to assist in any case.
However, section 69-14-132, is confined by its terms to Ch.
14, pertaining to the regulation of railroads.)
In fact, the PSC employs counsel independently of the
Attorney General for the purpose of advising the Commission
and conducting proceedings and actions relating to rate
regulation and other matters within the purview of the
Commission. It is also true that when such counsel of the
Commission proceed in court, they do so as special assistant
attorneys general under commissions granted in writing to
them by the Attorney General. Typical letters from the
Attorney General which accompany the certificates of such
appointments for counsel include the following or similar
language:
Please find enclosed an official Certificate of
Appointment. This Commission will remain in effect
until its expiration on January 1, 1989, or
termination of your appointment by the Public
Service Commission, unless you are otherwise
notified by me in writing.
Please note that sections 25-1-501 and 25-1-502,
MCA, require that the Attorney General be notified
when a state department or board initiates or
intervenes in an action in any court or appeals a
judgment or order entered in any court. Special
assistant attorney generals should provide a copy
of the complaint, counterclaim, crosscl~aim, or
notice of appeal to my office when any of the
previously-stated actions are filed in any court.
Copies of pleadings and documents handled by you
under authority of this Commission n4&ed only be
provided to me upon specific requests. ;
Thus under this arrangement, the answer of the PSC in
the District Court to the petition for judicial review by the
MPC was filed on November 1, 1984. The appearing party was
described as
Department of Public Service Regulation
Montana Public Service Commission
2701 Prospect Avenue
Helena, MT 59620
Eileen E. Shore
Attorney for Respondents
/s/ Opal Winebrenner
Opal Winebrenner
staff Attorney
Montana Public Service Commission
Throughout the course of the District Court proceedings
then, the representation of the PSC was maintained by its
counsel and designated as such.
As we said, the judgment of the District Court was
entered on June 17, 1985. Under section 69-3-405, MCA, any
party to the action in the District Court has 60 days in
which to appeal to the Montana. Supreme Court. Thus the final
date for the filing of a notice of appeal was August 16,
1985.
The PSC decided on August 9, 1985, by a vote of 4 to 1
of its 5 members not to appeal the decision of the District
Court. No other party or intervenor who had appea-red in the
District Court action chose to appeal.
IV.
In every appeal, the first question is that of
jurisdiction. Hand v. Hand (1957), 131 Mont. 571, 312 P.2d
990.
The constitutional right of appeal is secured only where
the laws are followed and compl-iance is made with the
provisions necessary to give the Supreme Court appeal
jurisdiction. State Bank of New Salem v. Schultze (1922), 63
Mont. 410, 209 P. 599; State ex rel. Reid v. District Court
(1953), 126 Mont. 489, 255 P.2d 693. An appellant is charged
with a duty of perfecting his appeal in the manner and within
the time provided by law, and unless mandatory statutory
provisions are complied with, the Supreme Court acquires no
jurisdiction to entertain and determine the appeal. In re
Malick's Estate f1951), 124 Mont. 585, 228 P.2d 963.
Statutes relating to appeals are held to be mandatory
and jurisdictional, State ex rel. Clark v. District Court
(1955), 128 Mont. 526, 278 P.2d 1.000, and in a sense
prohibitory and jurisdictional in that they limit the right
of appeal to the method expressly provided by statute. Id.
-
Rule 1 of the Montana Rules of Appellate Civil Procedure
provides that "a party aggrieved" may appeal from a final
judgment of the District Court. The Attorney General
informed us at oral argument that he did not seek in this
appeal to represent the PSC as the party appellant. In his
notice of appeal, the Attorney General stated that "the state
of Montana, through its Attorney General" appealed to the
Supreme Court. The first question for us to determine
therefore is whether the State of Montana or the Attorney
General in his individual capacity, is a "party aggrieved"
within the purview of Rule I-, M. R.App.Civ. P. , independently
of the PSC.
We recognize in the beginning that the business of a
public utility is affected with a public interest. We stated
so emphatically in Olsen, 129 Mont. at 116, 283 P.2d at 599,
pointing out that rates and charges of a public utility cou1.d
not be regulated or controlled if its business were not
affected with a public interest. We also pointed out in
Olsen that aside from the public interest generally, the
state has a further interest in public utility rates if the
state and its institutions might be required to pay unlawful
and unreasonable rates. Olsen, 129 Mont. at 117, 283 P.2d at
600. Olsen further confirmed that the Attorney General had
the right to protect the public interest in litigation
affecting rate regulation proceedings.
We must also keep in mind, from the beginning, the
function of the PSC in the rate-regulating process and the
relation of courts to that function of the PSC:
The function of ratemaking is purely legislative in
character, whether it is exercised directly by the
legislature itself by the enacting of a law fixing
rates or by the granting of a charter wherein the
rates are regulated, or is exercised by some
subordinate administrative or municipal body to
whom the power of fixing rates has been delegated;
in any of such cases, the completed act derives its
authority from the legislature and must be regarded
as an exercise of legislative power. Therefore,
since the ratemaking power of the state is
legislative rather than judicial., it is not within
the power of a court to fi-x, directly or
indirectly, the rates to be charged by public
utilities, or to control, by writs which can issue
only for the purpose of controlling judicial
action, the action of properly authorized
ratemaking bodies, although it may, in general-,
restrain the imposition of palpably excessive or
confiscatory rates ...
64 Am.Jur.2d1 Public Utilities S 89.
The power of district courts in Montana to review a rate
order of the PSC is controlled by section 69-3-404, MCA. The
district court must proceed without a jury, and is confined
to the record unless application is made to the court to
present additional evidence. After the district court enters
its order or judgment, appeal to the Supreme Court may be
taken pursuant to a special statute for that purpose.
Section 69-3-405, MCA, provides that upon judgment "either
party to said action may appeal or take the case up on error
as in other civil actions."
Thus, Rule 1, M.R.App.Civ.P. provides for an appeal to
"a party aggrieved" while section 69-3-405, MCA, provides for
an appeal to "either party to said action." We determine in
this case that the two provisions must be interpreted in
harmony with each other.
We find in this case that the State of Montana, as such,
though entitled to appear as a party in interest, was not a
party either in the District Court action or in the
proceedings before the Montana Public Service Commission. No
formal appearance was made by the State of Montana through
its Attorney General in either of those proceedings, for the
representation of the separate interest of the state in the
proceedings. The PSC, it is true, is an agency of the state,
and may be thought to represent the state. However, the
posture of the PSC in the District Court review proceedings
was not so much to protect the interest of the state of
Hontana in defending the PSC order (although arguably they
may coincide), but rather to protect the propriety and the
integrity of the order which it had made denying any value in
the MPC rate base to Colstrip Unit 3.
The fact that the State of Montana was not itself a
party in either the administrative proceedings or the
District Court action is not in itself decisive of the right
of the state to appeal here. The test to determine one's
standing to appeal is whether one has a direct, immediate and
substantial interest in the subject which would be prejudiced
by the judgment or benefited by its reversal. Estate of
Tomlinson (111. 1976), 359 N.E.2d 109, 111. A nonparty has
standing to appeal if he has such an interest. Marcheschi v.
P.I. Corporation (111.App. 19801, 405 N.E.2d 1230, 1234.
Thus, nonparties, under the rule of virtual representation,
such as members of a class involved in a class action, or
nonparties to a wil.1 contest may have such an interest as
would entitle them to appeal. Marcheschi, supra. If the
State were mandated by law to have been made a party to the
review proceedings in the District Court or before the Public
Service Commission, it would then certainly have a right to
appeal. Estate - Tomlinson, supra.
of
We determine that the State of Montana is not an
aggrieved party, or a party to the action in the District
Court entitled to appeal from the District Court judgment.
It was pointed out on oral argument that the Attorney General
has failed to identify the direct, immediate and substantial
interest of the state on which he attempts to appeal here.
If the interest of the state is that of a consumer of
electricity provided by the MPC, its interest as a consumer
is no different from that of the corporate consumers that
appeared in the proceedings below, or of John 9 . Citizen.
Certain corporate or other organizations of consumers did
appear and identify their interests before the PSC and the
District Court but the State of Montana did not. As a
consumer, therefore, the State of Montana is precluded, as
would any John Q. Citizen who did not appear below be
precluded, from appea.rinq for the first time in the appellate
court to relitigate the issues.
The reasons are obvious: neither the PSC nor the
District Court was given an opportunity by the State of
Montana to identify its separate interest, and to resolve any
issues of interest relating to the state. Moreover, the
State is not privy to the record developed before the PSC and
the District Court. What issues could he framed in the
appeal here by the State? The pa.rty to the action in the
District Court, the PSC has acceded to the terms of the
judgment of the District Court. The Attorney General,
without a party client, is in effect asking for an advisory
opinion to reverse the District Court, a past.ime in which
this Court does not ordinarily indulge. Indeed, what relief
could be granted by us at this juncture? The PSC, within the
discretion granted to it by law, has acted to approve the
District Court decision. There is nothing now for an
appellate court to determine. The horse is out of the barn,
and it is too late to lock the stable door.
The cases are legion that we will not, for the first
time on appeal, resolve issues or determine questions not
presented in the first instance to the District Court. We
hold, therefore, that the State of Montana, as a nonparty to
the proceedings before the PSC and the District Court has no
standing to appeal, and the appeal on its behalf must be
dismissed.
v.
Implicit in this case is the question whether the
Attorney General, in his official capacity, is entitled to
appeal the decision in the District Court.
The Attorney General is a constitutional officer. Art.
VI, 5 1, 1972 Montana Constitution. He is constitutionally
empowered to be the legal officer of the state and to have
the duties and powers provided by law. Art. VI, S 4. His
lawful powers and duties with regard to the state are
expressed in two lines of a statute: he must "attend the
supreme court and prosecute or defend all cases to which the
state or any officer thereof in his official capacity is a
party." Section 2-15-501(1), MCA. He is therefore the legal
officer for the PSC, and it is for that reason that the
lawyers employed by the PSC act under the Attorney General in
court proceedings as special assistant attorneys general.
In a carefully worded opinion, this Court determined in
Woodahl v. State Highway Commission (19701, 155 Mont. 32, 465
P.2d 818, that the Montana Highway Commission had authority
to employ and engage outside fee counsel without approval of
the Attorney General. In Woodahl v. Montana Board of Natural
Resources and Conservation (1973), 163 Mont. 193, 516 P . 2 d
383, because factual questions were involved and the Attorney
General had a right to litigate the same issue in the
District Court, this Court refused to determine the right and
authority of the Attorney General to require all legal
counsel appearing in any judicial proceeding on behalf of
elected officials to first secure a commission of authority
from the Attorney General to so appear.
In State ex rel. Olsen v. Public Service Commission
(19551, 129 Mont. 106, 283 P.2d 594, this Court supported the
broad powers of the Attorney General as the first legal
officer of the state. We determined in Olsen that the
Attorney General not only had the constitutional and
statutory powers specifically enumerated for him, but broad
common law duties, when not restricted or limited by statute.
In this case, the PSC, as a state agency involved in the
District Court action, has acted to accept the decision of
the District Court and to forego an appeal. We look then to
determine whether the Attorney General, in the light of his
broad constitutional, statutory and common law powers, may
nevertheless maintain this appeal because of his official
capacity.
Having in mind that the Attorney General did not appear
on his own behalf or on behalf of the State as a party before
the PSC or the District Court, we determine that his
participation in the proceedings below and in the District
Court must he limited to his representation of the PSC,
through the special assistant attorneys general.
In that sense, therefore, the contention of the PSC that
the Attorney General becomes the attorney for the PSC only
upon request of the Commission, pursuant to section
59-3-110(3), MCA, is incorrect. Under the constitution and
by virtue of his office, it is the duty of the Attorney
General to institute and prosecute all actions or proceedings
necessary for the enforcement of the regulation of utilities,
whether requested by the Commission or not. The Attorney
General may, however, as he did in this case, authorize
counsel employed by the Commission to act as special
assistant attorneys general in the prosecution of court
actions.
Moreover, the appearance of the Consumer Counsel in rate
proceedings would not foreclose an appearance by the Attorney
General on behalf of the State. The duties of the Consumer
Counsel and of the Attorney General are not co-extensive.
While the Attorney General is the legal officer for the
PSC in all cases to which the PSC is a party, the PSC remains
the party in the action. The Attorney General remains the
attorney, and as legal officer he is not empowered to make
the decisions that are vested by law in the discretion of the
PSC. The power of the State to make regulatory decisions on
utility rates is lodged in the PSC and not the Attorney
General. Rightly or wrongly, it is the PSC, within the
bounds of law that must regulate rates. The PSC is not
answerable for the lawful exercise of its discretion to a
fellow official, the Attorney General. The substantive
discretion as to what rates to deny or promulgate is only the
PSC's under the provisions of law. The Attorney General,
like the rest of us, must accept the PSC decision. He is not
free, because the result differs from what he would prefer,
to upset the lawful decisions of a public officer in the
guise of his attorney relationship to that officer. To
permit otherwise would make the Attorney General a
super-officer, whose discretion on any state subject could
override that of other public officers, by testing his
discretion against theirs in court. No more disruptive
arrangement for the operation of the government can be
imagined. The forum for testing the correctness of the PSC
decision not to appeal the adverse decision of the District
Court is not to test for the first time such decision in the
appellate court in the guise of an appeal-, but rather in the
forums provided by law, the proceedings before the PSC and
before the District Court on review.
The position of the Attorney General in this case is
untenable. As a nonparticipant in the proceedings before the
PSC and the District Court, he is not entitled to appeal
either on behalf of the State or his own behalf. This appeal
is not the place to contest the ultimate decision of the PSC
not to appeal. For these further reasons, therefore, the
attempted appeal by the Attorney General, whether on his
official behalf or on behalf of the State of Montana must be
dismissed.
~71.
We also determine in this case that the appeal of the
PSC in this case must be dismissed as untimely.
More than sixty days from the entry of judgment by the
District Court had elapsed when the PSC filed its notice of
appeal under Rule 5, M.R.App.Civ.P. Since the Attorney
General had filed a notice of appeal on behalf of the State
of Montana, the PSC, to protect its interest in this cause,
filed its notice of appeal within the seven days provided
under Rule 5.
The right of a party to file a notice of appeal within
seven days after the first notice of appeal is filed by
another party is conditioned upon the language of Rule 5,
which is "If a timely notice of appeal is filed by a party
. . ." Because we have determined that the appeal filed by
the Attorney General on the 60th day from the notice of entry
of judgment was invalid as an attempted appeal, the right of
any other party whose right to appeal depends on that
attempted appeal is without basis. The appeal of the PSC
must therefore be dismissed as untimely.
VII.
Accordingly, it is ordered that the appeals of the State
of Montana, through the Attorney General and of the PSC be
and are hereby dismissed. It follows that all pending
motions in this appeal are likewise denied.
We Concur:
Justices
Mr. Justice Frank B. Morrison, Jr. dissents as follows:
I disagree with the result reached by the majority
opinion although I believe it to be a well reasoned and well
documented discussion of law. I particularly commend the
majority for recognizing that the Attorney General is 1ega.l
counsel for the PSC. In light of 5 69-14-132, MCA, that can
hardly be denied. The section sta.tes:
Legal. assistance for commission. The attorney
general is the attorney of the commission, and the
county attorney of every county in the state shall,
on the request and at the direction of the attorney
general assist in all cases, proceedings, and
investigations undertaken by the commission under
this chapter in his own county.
I also specifically agree with the following from the
majority opinion:
While the Attorney General is the legal officer for
the PSC in all cases to which the PSC is a party,
the PSC remains the party in the action. The
Attorney General remains the attorney, and as a
legal officer he is not empowered to make the
decisions that are vested by law in the discretion
of the PSC.
The PSC is the party and the Attorney General is the lawyer.
I disagree with the majority in the result. The
Attorney General, who was a lawful attorney for the PSC,
filed a notice of appeal on behalf of the State. For
purposes of litigation "State" means the State of Montana or
any office, department, agency, authority, commission, board,
institution, hospital, college, university or other
instrumentality thereof. Section 2-9-101 (7) . The State when
referring to the State of Montana includes the PSC and when
the Attorney General appealed in behalf of the State he did
in fact appeal for the PSC which he does, by law, represent
as counsel.
I do take issue with the statement in the majority
opinion that:
In this case, the PSC, as a state agency involved
in the District Court action, has acted. to accept
the decision of the District Court and to forego an
appeal.
Perhaps such a decision was made and perhaps such a
result may have been reported in the news media. I do not
believe that such a decision is part of the record in this
case.
I have carefully examined the record and the pleadings
filed by the parties. I find that there is a valid notice of
appeal filed by the Attorney General for the State of Montana
which includes the PSC. There is no indication in the record
that the Attorney General was acting outside of his
authority. In fact the Attorney General- is a lawful agent
for the PSC and his action in filing the notice of appeal is
ratified by the PSC's failure to repudiate that act. See
Restatement (Second) of Agency S 94 ( 1 9 5 7 ) .
The statutes referred to in both the majority opinion
and this dissent show that the Attorney General is an
a.ttorney for the PSC, and he appealed on behalf of the PSC
which he lawfully represented. If the PSC wished to
repudiate the action of the Attorney General it had only to
move to dismiss the notice of appeal as being filed without
its authority. Having failed to do so the PSC acquiesced in
the action of its attorney and, in my view, the appeal must
go foreword.
I would not reach the broader question of whether the
Attorney General can appeal on behalf of the people of this
State where the PSC and the Department of Public Service
Regulation were the only parties named as litigants in the
jud.icia1 review proceeding from which this appeal emanated.
The only issue before us is whether to dismiss the notice of
appeal which has been filed. Tha.t notice of appeal is not
void and the motion to dismiss should be overruled without
reaching the broader question.
The majority opinion engages technical construction to
prevent an appeal. Abundant legal authority supports the
proposition that a liberal construction should be engaged in
order to assure that litigation is heard on its merits and
not disposed of on a technical basis. See 4 Arn.Jur.2d 538,
Appeal and Error, S 7 .
2 Moore's Federal Practice S 1.13 provides:
The objective of the Rules has been variously
phrased: (1) "Decisions are to be on the merits
and not on procedural niceties"; (2) "to secure a
d-isposition of litigation on the merits rather than
by collateral methods"; (3) " ... to a.void
surprises and to promote justice"; ... (5) "to
avoid a strict technical interpretation which might
work a hardship on the litigants"; ... However
worded, liberality is the canon of construction.
The spirit of this Rule was affirmed by this Court in
Tefft v. Tefft (Mont. 19811, 628 P.2d 1094, 1097, 38 St.Rep
837, wherein we said:
This holding is in keeping with the philosophy of
modern appellate practice that technical defects of
procedure should not bar a party from access to the
courts.
The majority opinion seeks to buttress its technical
approach with the assertion that there is no aggrieved party
in this case. The reason for an aggrieved party is to assure
that each side will be spiritedly represented and through the
clash of advocacy the court can distill justice.
The PSC is certainly an aggrieved party which sought
judicial review. If in fact the PSC did make a determination
not to appeal they must have done so to avoid risk of this
Court affirming the District Court action. In other words a
decision not to appeal, if indeed one was made, would surely
have involved a compromise settlement. I have no doubt that
the PSC, if they are in court through the notice of appeal-
filed by 'the Attorney General, can vigorously defend. the
commission's original decision.
The PSC, in seeking judicial review and in appealing to
this Court, represents the rate payers of Montana. Those
rate payers have an interest in seeing that this case be
decided on its merits in the Supreme Court. I feel that the
majority opinion employs an unduly restrictive and narrow
interpretation of the Rules which results in the rate payers
being denied Court access.
There is a valid notice of appeal on file and the PSC
should he directed to go forward or, in the alternative, to
dismiss the appeal filed by its lawyer, the Attorney General
of Montana.
Mr. Justice William E. Hunt, Sr., dissenting:
Montana Power's motion to dismiss the appeal filed by
the Attorney General on behalf of the State of Yontana has
been granted by the majority because the State was never a
party of record in the administrative proceedings before the
Commission nor the proceedings before the District Court.
"Utter stranger" is the phrase used by the Power Company to
describe their view of the status of Montana and. its Attorney
General trying to bring the case before this Court. The long
and turbulent history of rate setting in this state, makes
that phrase utter nonsense. One need only read the
proceedings of the 1972 Constitutional convention to find the
interest of the members and the citizens in rate matters.
Montana Constitutional Convention verbatim transcript pp.
2373-2423, Vol. VI (1981).
That interest carries over to the present case. An
agency of the State of Montana, the Public Service
Commission, held extensive hearings on this matter. As
experts in rate setting they reached a decision adverse to
the Power Company. The utility appealed the District Court
that reversed their decision. Parties named in the
proceedings before the Commission and the District Court
elected not to appeal for reasons of their own. The Attorney
General in his capacity as the top-elected attorney for the
state correctly filed an appeal that should be granted.
Under State ex rel.. Olsen v. Public Service Commission
(1955), 129 Mont. 106, 283 P.2d 594, the Attorney General not
only has the power but in my opinion has the duty to maintain
an action such as this on appeal. In Olsen, the Court quoted
with approval from 5 Am.Jur. Attorney General S 6 (1936):
Moreover, i t is generally held that the attorney
.
general, in addition to the powers and duties
conferred and imposed upon him by statute, is
clothed and charged with all the common-l.aw powers
and duties pertaining to his office as well, except
in so far as they have been expressly restricted.
The duties of the office are so numerous and varied
that it has not been the policy of state
legislatures to attempt specifically to enumerate
them; and it cannot be presumed, therefore, in the
absence of an express inhibition, that the attorney
general has not such authority as pertained to his
office at common law. Accordingly, as the chief
law officer of the state, he may, in the absence of
some express legislative restriction to the
contrary, exercise all such power and authority as
public interests may from time to time, require,
and may institute, conduct, and maintain all such
suits and proceedings as he deems necessary for the
enforcement of the laws of the state, the
preservation of order, and the protection of public
rights.
129 Mont. at 114-15, 283 P.2d at 598-99; - 7 Am.Jur.2d
see
Attorney General S 9 (1980). It later stated, citing 5
FJn.Jur. Attorney General 5 8, that "'[olbviously there can be
no dispute as to the right of an attorney general to
represent the state in al.1 litigation of a public character.
The attorney general represents the public and may bring all.
proper suits to protect its rights. ' ..." 129 Mont. at 115,
283 P.2d at 599; - 7 Am.Jur.2d
see Attorney General 5 14.
Addressing the issue of whether the district court proceeding
affected "the public interests or ... had for its purpose
the protection of public rights," The Court concluded that
an action "questioning the reasonableness and lawfulness of
the [telephone] rate" did involve the public interest. 129
Mont. at 116, 283 P.2d at 599. "Hence public interest being
affected the state is a party in interest and the attorney
general under the broad powers given him by the common law
may represent the state in litigation." 129 Mont. at 117,
The Attorney General should be allowed to maintain the
appeal and this Court should deny the motion to dismiss and
the case should be heard in interest of the State of Montana
represented by the Attorney General.