ARIZONA PUBLIC SERVICE COMPANY v. ARIZONA CORPORATION COMMISSION (1997)

OPINION

In December 1996, the Arizona Corporation Commission (“Commission”) adopted new rules governing competition in the provision of electricity.   Nine interested parties filed motions for reconsideration of the decision adopting the rules;  the motions were denied by operation of law.   Although the parties then filed appeals both in superior court and in this court, they have filed motions to dismiss the appeals here on the ground that we have no direct appellate jurisdiction.¹  We conclude that because these appeals do not concern “rate” cases, they do not fall within the terms of Ariz.Rev.Stat. Ann. (“A.R.S.”) section 40-254.01, which grants limited appellate jurisdiction to this court over decisions of the Commission.   We therefore grant the motions to dismiss.

DISCUSSION

In 1994, the Commission staff began preparing for a transition from a non-competitive to a competitive electric market, and in 1996, filed proposed new procedural rules to govern electric services.   Following a public comment period, in Decision No. 59943 on December 26, 1996, the Commission adopted the Electric Competition Rules, Arizona Administrative Code (“A.A.C.”) R14-2-1601 through R14-2-1616.   The appellants filed motions for reconsideration with the Commission, which were deemed denied.

In the motions to dismiss these appeals, the appellants contend that we lack jurisdiction over a direct appeal from Decision No. 59943 pursuant to A.R.S. section 40-254.01. We now turn to that statute.

 By statute, the legislature granted this court jurisdiction over direct appeals from Commission orders as follows:

The attorney general ․ or any party to a proceeding before the commission who is dissatisfied with any order of the commission involving public service corporations and relating to rate making or rate design pursuant to §§ 40-243, 40-246, 40-250 and 40-251 may file within thirty days after a rehearing is denied or granted, and not afterwards, a notice of appeal in the court of appeals to vacate, set aside, affirm in part, reverse in part or remand with instructions to the commission the order if the court of appeals determines upon a clear and satisfactory showing that the order is unlawful or unreasonable.

A.R.S. § 40-254.01(A) (emphasis added).   This statute represents an exception to the general requirement that dissatisfied parties appeal Commission decisions first to superior court and eliminates de novo review by that court.  Consolidated Water Utils., Ltd. v. Arizona Corp. Comm'n, 178 Ariz. 478, 481, 875 P.2d 137, 140 (App.1993).

 We decline to interpret the statute to give this court jurisdiction over direct appeals from a Commission's procedural order, such as this, that will only indirectly affect rates or that makes pro forma reference to one of the above enumerated statutes.   Such an interpretation would essentially eliminate most appeals to the superior court and exceeds what we believe the legislature intended.   Instead, we conclude that A.R.S. section 40-254.01 provides a limited avenue of direct appeal to this court if the order appealed from is an order in a rate case.   See A.A.C. R14-2-103 (filing requirements and time limits for rate cases, which involve setting rates and determining fair value of property and reasonable rates of return).   We find additional support for this interpretation in the legislative history.   The legislature believed that A.R.S section 40-254.01 would eliminate the “large amount of time and expense ․ [from] what is now required to be trial de novo in superior court if any party of interest wants to appeal a rate case.”   See Consolidated Water, 178 Ariz. at 481, 875 P.2d at 140 (citing Minutes of Senate Committee on Judiciary, April 16, 1991 at 10).

The Commission argues that the superior court may not review Decision No. 59943, but that issue is not yet before us.   We hold only that this court does not have jurisdiction over direct appeals from the Commission order promulgating the rules.   We, therefore, dismiss the appeals for lack of jurisdiction.

FOOTNOTES

1.   We have sua sponte consolidated these appeals in order to address the single issue raised in each of them.

TOCI, Judge.

GERBER, P.J., and SULT, J., concur.