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(2004) 117 Cal. App. 4th 1039
Court of Appeal, Second District,
Division 8.
SOUTHERN CALIFORNIA EDISON COMPANY, Petitioner,
v.
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, Respondent;
The Utility Reform Network, Real Party in Interest.
No. B166993.
April 19, 2004.
Stephen E. Pickett, Frank Cooley, Rosemead, and Laura Genao, Redwood Shores,
for Petitioner.
Roger J. Peters, Christopher J. Warner and Ann H. Kim, San Francisco, for
Pacific Gas and Electric Company as Amicus Curiae on behalf of Petitioner.
Lionel B. Wilson, Mary F. McKenzie, San Francisco, Joel T. Perlstein and
Ourania M. Vlahos for Respondent.
Harvey Rosenfield, Santa Monica, and Pamela M. Pressley for Foundation
for Taxpayer and Consumer Rights as Amicus Curiae on behalf of Respondent.
Michael Shames and Lee Biddle for Utility Consumers' Action Network
as Amicus Curiae on behalf of Respondent.
Richard Rothschild, Los Angeles, and Robert Newman for Western Center on
Law & Poverty as Amicus Curiae on behalf of Respondent.
Strumwasser & Woocher, Michael J. Strumwasser, Fredric D. Woocher,
Santa Monica, Becky L. Monroe; Robert E. Finkelstein for Real Party in Interest.
COOPER, P.J.
In 1984, the Legislature added various provisions to the Public Utilities
Code, authorizing the California Public Utilities Commission (PUC) to
award compensation "for reasonable advocate's fees, reasonable
expert witness fees, and other reasonable costs" (Pub.Util.Code,
§ 1801) to utility customers who participate in PUC proceedings.
[FN1] In doing so, the Legislature directed that the provisions be "administered
in a manner that encourages the effective and efficient participation
[in PUC proceedings] of all groups that have a stake in the public utility
regulation process." (§ 1801.3, subd. (b).) To promote such
participation, the Legislature authorized the PUC to compensate customers,
not only for their work before the PUC, but also for "the fees and
costs ... of obtaining judicial review" following a decision of the
PUC. (§ 1802, subd. (a).)
FN1. The provisions added to the Public Utilities Code in 1984 are contained
in sections 1801-1808. In 1992, the Legislature added section 1812. We
refer to these provisions, which make up article 5 of chapter 9, part
1, division 1, of the Public Utilities Code, as the Intervenor Compensation
Provisions.
As used in the Intervenor Compensation Provisions, "customer"
includes groups representing consumer interests. (Pub.Util.Code, §
1802, subd. (b).) All undesignated statutory references are to the Public
Utilities Code.
We issued a writ of review to consider a challenge by Southern California
Edison Company (SCE) to an award of compensation under the Intervenor
Compensation Provisions. The PUC awarded the compensation to The Utility
Reform Network (TURN), a nonprofit consumer advocacy organization that
actively participated in extensive PUC proceedings involving complex ratemaking
issues. Approximately $256,000 of the total award was compensation for
work TURN performed in federal lawsuits initiated by SCE and another utility
in an effort to overturn the PUC decisions in which TURN had participated.
SCE claims compensation for TURN's federal court work is not authorized
by the Intervenor Compensation Provisions.
The PUC concluded TURN's federal court work was compensable as work
associated with "obtaining judicial review" as provided for
in section 1802, subdivision (a). The PUC explained that interpreting
the judicial review language to provide for compensation when a customer
intervenes in a judicial proceeding to defend a PUC decision is consistent
with the Legislature's stated goal of encouraging effective and efficient
participation by customers in the utility regulation process. The PUC
observed that "[i]f an intervenor cannot gain compensation to defend
a Commission decision in which the intervenor prevailed, the intervenor's
effectiveness is severely limited."
Bearing in mind that the "PUC's interpretation of the Public Utility
Code 'should not be disturbed unless it fails to bear a reasonable
relation to statutory purposes and language' " (Southern California
Edison Co. v. Peevey (2003) 31 Cal.4th 781, 796, 3 Cal.Rptr.3d 703, 74
P.3d 795 (SCE v. Peevey ), quoting Greyhound Lines, Inc. v. Public Utilities
Com. (1968) 68 Cal.2d 406, 410-411, 67 Cal.Rptr. 97, 438 P.2d 801), we affirm.
FACTUAL AND PROCEDURAL HISTORY
The PUC proceedings giving rise to the compensation award at issue here
arose out of California's attempt to deregulate the market for electrical
power. [FN2] These efforts produced Assembly Bill No. 1890 (1995-1996
Reg. Sess.) (hereafter AB 1890), which became law in 1996 (Stats.1996,
ch. 854) and provided for a transition to a competitive electricity market
at the end of a transition period ending no later than March 31, 2002.
The law also provided for the state's main electric utility companies,
including SCE, to divest themselves of substantial parts of their generating
assets. To give the utilities an opportunity to recover their investments
in these assets (known as "stranded" or "transition"
costs), the Legislature froze retail electricity rates (with some exceptions)
during the transition period. (See § § 330, 367, 368).)
FN2. Because the substantive aspects of the proceedings discussed below
are not particularly relevant to the legal issue before us, we focus primarily
on the procedural history of the case. Additional information regarding
some of the substantive aspects of the case can be found in SCE v. Peevey,
supra, 31 Cal.4th at pp. 787-792, 3 Cal.Rptr.3d 703, 74 P.3d 795, Southern
California Edison Co. v. Lynch (9th Cir.2002) 307 F.3d 794, 800-802, and
Pacific Gas and Electric Co. v. Lynch (N.D.Cal.2002) 216 F.Supp.2d 1016,
1019-1024, cases which arose out of some of the same PUC proceedings.
In 1999, SCE, Pacific Gas and Electric Company (PG & E), and San Diego
Gas and Electric Company filed applications in the PUC, proposing certain
methods for determining the end of the transition period and subsequent
ratemaking mechanisms. (The PUC's proceedings on these applications
are known as the "Post-Transition Ratemaking" (PTR) proceedings.)
The PUC issued a decision in October 1999 which, among other things, prohibited
the utilities from carrying over and recovering after the rate freeze
period any uneconomic costs that they had not recovered during the rate
freeze. PG & E petitioned the PUC for rehearing, which issued a decision
in March 2000, denying rehearing but making some modifications to the
original decision. TURN actively participated in these proceedings. [FN3]
FN3. After the PUC denied rehearing, PG & E unsuccessfully petitioned
the court of appeal and then the Supreme Court for review. TURN opposed
PG & E's Supreme Court petition and was awarded compensation for
its efforts.
In the summer of 2000, wholesale electricity rates increased dramatically.
In October of that year, SCE and PG & E petitioned the PUC to modify
its prior decisions in the PTR docket and allow for post-rate freeze recovery
of certain costs they had not recovered during the rate freeze period.
That same month, TURN filed an application in which it proposed a change
in the accounting method for determining the utilities' costs. The
PUC consolidated these matters. It ultimately issued a decision in March
2001, granting the utilities some rate relief and also adopting TURN's
accounting proposal.
Meanwhile, in November 2000, SCE and PG & E filed separate federal
court actions (in Los Angeles and San Francisco, respectively) against
the commissioners of the PUC, challenging the PUC's jurisdiction to
enter their ratemaking decisions. In early 2001, TURN successfully moved
to intervene in both federal actions and actively participated in those
proceedings on the side of the PUC. After TURN's intervention, the
district court presiding over SCE's action denied SCE's request
for a preliminary injunction, and the district court presiding over PG
& E's action denied motions by all parties for summary judgment. [FN4]
FN4. SCE ultimately settled its action against the commissioners of the
PUC. The district court approved the settlement and TURN appealed. The
Ninth Circuit affirmed in part, but it also certified several questions
to our Supreme Court, which the court answered in SCE v. Peevey, supra,
31 Cal.4th 781, 3 Cal.Rptr.3d 703, 74 P.3d 795.
Amici curiae who filed a brief in support of the PUC in this writ proceeding
urge us to consider these developments in the SCE federal action, even
though they occurred after TURN made its request for compensation and
were not part of the record considered by the PUC when it made its decision.
We decline to do so.
The PUC did not consider these developments, and we do not believe they
bear on the issue before us.
In February 2001, TURN filed in the PUC a notice of intent to claim compensation
for its participation in some of the PUC proceedings discussed above.
In July 2001, TURN filed its request for compensation, seeking approximately
$642,000 for its work, including its work in the federal court actions
initiated by SCE and PG & E.
In March 2002, an administrative law judge (ALJ) issued a draft decision
awarding TURN approximately $574,000 for its contributions, which included
compensation for TURN's involvement in the federal court actions.
The ALJ's draft decision rejected the utilities' contention that
TURN was not entitled to compensation for its involvement in the federal
court proceedings. The ALJ concluded TURN had made a substantial contribution
to PUC proceedings by participating in the federal court proceedings,
noting that, if the utilities had succeeded in their federal court actions,
the "outcome would have prevented the Commission from ever reaching
the issues raised by TURN in its petition for modification [filed in one
of the PUC's proceedings]."
Pursuant to the PUC's Rules of Practice and Procedure, SCE filed comments
to the ALJ's draft decision, claiming TURN was not entitled to compensation
for its federal court work because such compensation is not authorized
by the Intervenor Compensation Provisions.
In June 2002, a five-member PUC panel issued a decision awarding TURN approximately
$573,000 in compensation, including approximately $256,000 for its federal
court work. In the decision, the PUC offered two independent rationales
for awarding TURN compensation for its federal court work. First, the
PUC concluded such compensation could be awarded under section 1803, which
provides in pertinent part that "[t]he commission shall award reasonable
advocate's fees, reasonable expert witness fees, and other reasonable
costs of preparation for and participation in a hearing or proceeding...."
(Italics added.) The PUC concluded that the term "hearing,"
which is not defined in the Public Utilities Code, should be interpreted
to include participation in hearings before other entities, not just before the PUC.
Second, the PUC concluded TURN was entitled to compensation for its federal
court work under section 1802, subdivision (a), because the costs TURN
incurred were associated with obtaining judicial review.
SCE applied to the PUC for rehearing, challenging both rationales offered
by the PUC for its award of compensation for TURN's federal court work.
In April 2003, the PUC issued a decision denying rehearing, but substantially
modifying its original decision. The PUC determined it was not necessary
to rely on section 1803 and deleted the discussion concerning this section
from the original decision. Instead, the PUC focused on the "judicial
review" language of section 1802, subdivision (a), as the basis for
its award. The PUC explained that it did "not interpret the phrase
'obtaining judicial review' in Section 1802(a) to provide compensation
only when an intervenor initiates judicial review. Once judicial review
is initiated, all parties that participate in the process are seeking
to 'obtain' judicial review in their favor. Thus, an intervenor
can obtain judicial review not just by succeeding when it initiates judicial
review to challenge a Commission decision, but also when the intervenor
successfully defends a Commission decision against a challenge. Again,
this interpretation is buttressed by the legislative mandate to interpret
the statutory provisions to encourage effective intervenor participation.
(Section 1801.3(b)). If an intervenor cannot gain compensation to defend
a Commission decision in which the intervenor prevailed, the intervenor's
effectiveness is severely limited."
The PUC also emphasized the importance of TURN's federal court efforts:
"TURN's participation in the federal court forum was helpful
in protecting the Commission's authority to act as it eventually did....
In this way, TURN's federal court actions significantly contributed
to TURN's ability to make its substantial contribution to 'the
eventual decision in this matter.' The federal court litigation was
an essential component of these consolidated proceedings and the Commission
decisions that are the subject of TURN's compensation request. As
such, TURN could not practically or effectively advocate its position
before the Commission without first helping to overcome utility litigation
intended to prevent the Commission from acting on the very points TURN
was seeking to raise at the Commission."
SCE filed a timely petition for a writ of review (§ 1756, subd. (a)),
challenging the compensation award to the extent it included compensation
for TURN's federal court work. The PUC and TURN filed separate answers
opposing SCE's position.
We issued a writ of review to consider SCE's contentions on the merits.
After receiving the certified record from the PUC, we received two amicus
curiae briefs--one by the Foundation for Taxpayer and Consumer Rights,
the Utility Consumers' Action Network, and the Western Center on Law
& Poverty (collectively the PUC's amici) in support of the PUC,
and another by PG & E in support of SCE. [FN5] We also received various
responses to the amicus curiae briefs and heard oral argument.
FN5. Concurrently with their brief, the PUC's amici filed a request
that we judicially notice certain documents from the legislative history
of the Intervenor Compensation Provisions. We have received no opposition
to the request and we grant it (Evid.Code, § § 452, 459), except
insofar as it asks for judicial notice of a Los Angeles Times article
by Assemblywoman Gwen Moore (see Quintano v. Mercury Casualty Co. (1995)
11 Cal.4th 1049, 1062, 48 Cal.Rptr.2d 1, 906 P.2d 1057 ["statements
of an individual legislator, including the author of a bill, are generally
not considered in construing a statute, as the court's task is to
ascertain the intent of the Legislature as a whole in adopting a piece
of legislation"] ).
DISCUSSION
1. Standard of Review.
While the proper interpretation of a statute is a question of law (Wang
v. Massey Chevrolet (2002) 97 Cal.App.4th 856, 868, 118 Cal.Rptr.2d 770),
we are mindful that the "PUC's interpretation of the Public Utility
Code 'should not be disturbed unless it fails to bear a reasonable
relation to statutory purposes and language' " (SCE v. Peevey,
supra, 31 Cal.4th at p. 796, 3 Cal.Rptr.3d 703, 74 P.3d 795, quoting Greyhound
Lines, Inc. v. Public Utilities Com., supra, 68 Cal.2d at pp. 410-411,
67 Cal.Rptr. 97, 438 P.2d 801).
2. The Intervenor Compensation Provisions.
The Legislature enacted the Intervenor Compensation Provisions in 1984
and they became effective on January 1, 1985. [FN6] (See Stats.1985, ch.
297, § 2, pp. 374-377.) The Legislature declared that the purpose
of the Intervenor Compensation provisions "is to provide compensation
for reasonable advocate's fees, reasonable expert witness fees, and
other reasonable costs to public utility customers of participation or
intervention in any proceeding of the commission." (§ 1801.)
The provisions "apply to all formal proceedings of the commission
involving electric, gas, water, and telephone utilities" and are
to be "administered in a manner that encourages the effective and
efficient participation of all groups that have a stake in the public
utility regulation process." (§ 1801.3, subds.(a), (b).)
FN6. The legislation was passed after several utilities initiated court
challenges to rules the PUC had adopted in 1983, which provided for the
award of "public participation costs," including attorney and
expert witness fees, to deserving intervenors in regulatory and rate-making
proceedings. After the legislation became effective, the Supreme Court
dismissed as moot petitions for review by three utilities which had challenged
the PUC's rules. (Southern Cal. Gas Co. v. Public Utilities Com. (1985)
38 Cal.3d 64, 211 Cal.Rptr. 99, 695 P.2d 186.)
The Legislature declared its intent that "[i]ntervenors be compensated
for making a substantial contribution to proceedings of the commission,
as determined by the commission in its orders and decisions." (§
1801.3, subd. (d), italics added.)
Section 1803 specifies the conditions for an award of compensation:
"The commission shall award reasonable advocate's fees, reasonable
expert witness fees, and other reasonable costs of preparation for and
participation in a hearing or proceeding to any customer who complies
with Section 1804 and satisfies both of the following requirements:[ [FN7]]
FN7. Section 1804 specifies the procedures that apply in the intervenor
compensation process, beginning with the customer's notice of intent
to claim compensation and ending with the PUC's decision.
"(a) The customer's presentation makes a substantial contribution
to the adoption, in whole or in part, of the commission's order or decision.
"(b) Participation or intervention without an award of fees or costs
imposes a significant financial hardship." (Italics added.)
" 'Substantial contribution' means that, in the judgment of
the commission, the customer's presentation has substantially assisted
the commission in the making of its order or decision because the order
or decision has adopted in whole or in part one or more factual contentions,
legal contentions, or specific policy or procedural recommendations presented
by the customer. Where the customer's participation has resulted in
a substantial contribution, even if the decision adopts that customer's
contention or recommendations only in part, the commission may award the
customer compensation for all reasonable advocate's fees, reasonable
expert fees, and other reasonable costs incurred by the customer in preparing
or presenting that contention or recommendation." (§ 1802, subd. (h).)
As reflected in the provisions discussed above, the Legislature sought
to encourage customers to participate in PUC proceedings and contribute
to PUC decisions. The Legislature recognized, however, that a decision
by the PUC is not necessarily the final word on a matter, and it saw fit
to assist customers who wished to continue advocating their positions
after the PUC has issued a decision. Therefore, it defined "compensation"
as "payment for all or part, as determined by the commission, of
reasonable advocate's fees, reasonable expert witness fees, and other
reasonable costs of preparation for and participation in a proceeding,
and includes the fees and costs of obtaining an award under this article
and of obtaining judicial review, if any." [FN8] (§ 1802, subd.
(a), italics added.)
FN8. The original version of the senate bill that contained the Intervenor
Compensation Provisions (Sen. Bill No. 4 (1983-1984 Reg. Sess.)) specifically
excluded the costs of obtaining judicial review from the definition of
"compensation." However, the phrase "does not include the
fees and costs of obtaining judicial review" was replaced with "includes
the fees and costs of obtaining judicial review" in the Conference
Committee.
3. TURN Was Entitled to Compensation for Its Federal Court Efforts.
a. The PUC's construction of the judicial review clause is reasonable
and is consistent with the statutory purpose of promoting effective customer
participation in the public utility regulation process.
"As in any case involving statutory interpretation, our fundamental
task here is to determine the Legislature's intent so as to effectuate
the law's purpose. [Citation.] We begin by examining the statute's
words, giving them a plain and commonsense meaning. [Citation.] We do
not, however, consider the statutory language 'in isolation.'
[Citation.] Rather, we look to 'the entire substance of the statute
... in order to determine the scope and purpose of the provision.... [Citation.]'
[Citation.] That is, we construe the words in question ' "in
context, keeping in mind the nature and obvious purpose of the statute...."
[Citation.]' [Citation.] We must harmonize 'the various parts
of a statutory enactment ... by considering the particular clause or section
in the context of the statutory framework as a whole.' [Citations.]"
(People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19
P.3d 1129, original ellipses, fourth and sixth brackets in original.)
In this case, however, we must also consider and afford considerable deference
to the PUC's interpretation of the statute because, as noted above,
the "PUC's interpretation of the Public Utility Code 'should
not be disturbed unless it fails to bear a reasonable relation to statutory
purposes and language.' " (SCE v. Peevey, supra, 31 Cal.4th at
p. 796, 3 Cal.Rptr.3d 703, 74 P.3d 795, quoting Greyhound Lines, Inc.
v. Public Utilities Com., supra, 68 Cal.2d at pp. 410-411, 67 Cal.Rptr.
97, 438 P.2d 801). [FN9]
FN9. SCE notes that in an earlier PUC decision in an unrelated case, the
PUC commented that customers cannot obtain compensation "following
their successful participation in federal proceedings." (Toward Utility
Rate Normalization v. Pacific Bell (1997) 72 Cal.P.U.C.2d 799, 800.) Because
entitlement to intervenor compensation was not at issue in the case, the
PUC's casual comment was mere dicta. In any event, it was not binding
on the PUC in subsequent cases. (See Hudson v. Board of Administration
(1997) 59 Cal.App.4th 1310, 1326, 69 Cal.Rptr.2d 737.)
SCE claims the award to TURN for its federal court work was improper because
TURN was not "obtaining judicial review" under subdivision (a)
of section 1802 when it intervened in the federal court actions filed
by SCE and PG & E. According to SCE, only a customer who initiates
a proceeding in a judicial forum is engaged in the process of obtaining
judicial review.
The PUC rejected SCE's narrow construction of the phrase "obtaining
judicial review." The PUC explained that "[o]nce judicial review
is initiated, all parties that participate in the process are seeking
to 'obtain' judicial review in their favor. Thus, an intervenor
can obtain judicial review not just by succeeding when it initiates judicial
review to challenge a Commission decision, but also when the intervenor
successfully defends a Commission decision against a challenge."
We cannot say that this construction bears no "reasonable relation
to statutory purposes and language." (SCE v. Peevey, supra, 31 Cal.4th
at p. 796, 3 Cal.Rptr.3d 703, 74 P.3d 795.) In seeking to intervene in
the federal court actions, TURN was seeking to ensure that its views concerning
the issues would be fully considered (i.e., reviewed) by the courts in
those actions. When the federal courts granted TURN's requests to
intervene, TURN "obtained judicial review." That there would
have been some form of judicial review even absent TURN's participation
does not negate the fact that TURN also obtained judicial review.
Moreover, the PUC's construction of the statutory language is entirely
consistent with the express statutory purpose. As the PUC explained, its
"interpretation is buttressed by the legislative mandate to interpret
the statutory provisions to encourage effective intervenor participation.
(§ 1801.3(b)). If an intervenor cannot gain compensation to defend
a Commission decision in which the intervenor prevailed, the intervenor's
effectiveness is severely limited." [FN10]
FN10. SCE claims the public interest will not be served by permitting compensation
in cases such as this because the cost of such awards will be passed on
to ratepayers. The same can be said about any award of intervenor compensation.
We also find it somewhat ironic that SCE invokes the interests of ratepayers
to support its position, while TURN represents those very ratepayers and
the PUC concluded TURN had made a substantial contribution to its proceedings.
SCE seeks support for its position from the fact that, when the Legislature
was considering amendments to the Intervenor Compensation Provisions in
1992, an early draft of the bill included language that would have defined
"compensation" to include compensation for fees and expenses
incurred "in a court of law considering a decision or proceeding
of the commission, whether on appeal or otherwise," but that language
was ultimately not included in the final bill.
[7] However, SCE offers nothing reflecting on the reason why the language
was later omitted from the bill. "The deleted language might equally
have been intended to clarify existing law. 'We can rarely determine
from the failure of the Legislature to pass a particular bill what the
intent of the Legislature is with respect to existing law. "As evidences
of legislative intent they [unpassed bills] have little value." [Citations.]'
[Citations.]" (Lolley v. Campbell (2002) 28 Cal.4th 367, 378-379,
121 Cal.Rptr.2d 571, 48 P.3d 1128, first two brackets in original.)
Moreover, what the Legislature may or may not have intended in 1992 when
it was considering amendments to the Intervenor Compensation Provisions
demonstrates nothing about what the Legislature intended in 1984 when
it enacted those provisions and authorized judicial review compensation.
[FN11] (Lolley v. Campbell, supra, 28 Cal.4th at p. 379, 121 Cal.Rptr.2d
571, 48 P.3d 1128; Harry Carian Sales v. Agricultural Labor Relations
Bd. (1985) 39 Cal.3d 209, 230, 216 Cal.Rptr. 688, 703 P.2d 27.)
FN11. In connection with its argument, SCE notes that "[w]hen courts
have construed a statute and the Legislature thereafter reenacts that
statute without changing its language, the Legislature is presumed to
have been aware of and acquiesced in the judicial construction."
(Reese v. Wong (2001) 93 Cal.App.4th 51, 59-60, 112 Cal.Rptr.2d 669.)
Here, however, no court had construed the language in question when the
1992 amendments were considered.
b. TURN was entitled to compensation for its federal court work notwithstanding
the PUC's involvement in the cases.
Citing section 1801.3, subdivision (f), SCE, as well as PG & E in its
amicus brief, claim that compensating customers who intervene to oppose
a utility's position in federal court is not warranted because the
PUC is fully capable of defending its own position. [FN12]
FN12. Section 1801.3, subdivision (f), provides that it is the Legislature's
intent the Intervenor Compensation Provisions "be administered in
a manner that avoids unproductive or unnecessary participation that duplicates
the participation of similar interests otherwise adequately represented
or participation that is not necessary for a fair determination of the
proceeding."
The PUC's answer to SCE's writ petition in this case is evidence
that it is capable of defending its position in a highly competent manner.
However, in enacting the Intervenor Compensation Provisions, the Legislature
recognized the importance of obtaining a customer perspective on matters
before the PUC. For the very same reason, it is important that the customer
perspective be fully represented when a matter shifts to a judicial forum.
Moreover, the Legislature specifically provided for compensation to customers,
even if their efforts may duplicate to some extent those of the PUC. (See
§ 1802.5 ["Participation by a customer that materially supplements,
complements, or contributes to the presentation of another party, including
the commission staff, may be fully eligible for compensation if the participation
makes a substantial contribution to a commission order or decision, consistent
with Section 1801.3" (italics added) ].) [FN13]
FN13. Of course, before making an award, the PUC must first conclude that
the fees and costs for which compensation is sought were "reasonable."
(§ 1802, subd. (a).) Therefore, where a customer's presentation
in court adds nothing to claims already presented, the PUC could conclude
the costs incurred in connection with that presentation were not reasonable.
c. TURN was entitled to compensation for its federal court work, regardless
whether such work made a "substantial contribution" to the PUC
decisions for which compensation was sought.
SCE claims the costs of TURN's federal court work are not compensable
because the federal court work did not make a "substantial contribution"
to the PUC decisions for which TURN sought compensation. Indeed, SCE claims,
TURN's federal court work could not have made a substantial contribution
to the PUC decisions because the federal court work was performed after
the PUC issued those decisions.
It is true, as SCE notes, that the Intervenor Compensation Provisions were
designed to compensate customers who make a "substantial contribution"
to PUC proceedings. (§ 1801.3, subd. (d).) Indeed, making a substantial
contribution is a prerequisite to an award of compensation. (§ 1803.)
However, once a customer makes such a contribution to a PUC proceeding,
that customer may obtain compensation for the fees and costs of obtaining
judicial review, regardless whether that judicial review work made a substantial
contribution to the PUC proceeding. Any contrary construction would render
the judicial review clause of section 1802, subdivision (a), meaningless
in most cases because such review virtually always occurs after the PUC
has issued its decision. [FN14]
FN14. To the extent SCE and PG & E were challenging in the federal
actions the PUC's authority to issue the decisions it made in the
PTR proceedings, one can say that TURN's federal court efforts in
opposition to the utilities did make a "substantial contribution"
to those decisions, even if the decisions were issued before the federal
actions were filed.
We also note that the PUC's decision adopting TURN's accounting
proposal was issued in March 2001, approximately five months after the
federal actions were filed and a month after the federal court hearing
SCE's action denied its request for a preliminary injunction. In that
sense, the compensation for TURN's federal court efforts could be
viewed as compensation for TURN's "costs of preparation for and
participation" in the PUC proceeding considering its accounting proposal.
(§ 1802, subd. (a).)
d. Judicial review compensation is not limited to state court review.
SCE also claims the Intervenor Compensation Provisions authorize compensation
for judicial review only when such review is sought in state court. However,
SCE cites no authority for this assertion.
As this case demonstrates, judicial review of a PUC decision may be sought
in federal court (though on more limited grounds than in state court).
There is nothing in the language of the Intervenor Compensation Provisions
limiting judicial review compensation to instances where that review is
sought in state court. [FN15] It was therefore not unreasonable for the
PUC to conclude that compensation for federal court review was authorized.
FN15. SCE appears to rely on the fact that elsewhere in the Public Utilities
Code, the Legislature authorized parties aggrieved by a PUC decision to
file a petition for a writ of review in the California Court of Appeal
or in the California Supreme Court, not in a federal court. (§ 1756.)
As the PUC's amici point out, however, it is not surprising the state
Legislature did not presume to create a federal right of action. Moreover,
there is nothing to indicate the Legislature intended judicial review
compensation under the Intervenor Compensation Provisions to be limited
only to compensation for the writ review provided for in section 1756.
SCE also notes that TURN voluntarily omitted compensation for federal court
work from a prior compensation request. We fail to see, however, how TURN's
decision to include or omit certain costs from a compensation request
bears on the meaning of the statutory language before us. Moreover, TURN
claims it omitted many hours from the compensation request to which SCE
refers and most of those hours had nothing to do with federal litigation.
DISPOSITION
PUC decision 02-06-070, as modified by PUC decision 03-04-034, is affirmed.
We concur: RUBIN and BOLAND, JJ.
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