15.6 State Corporation Commission (scc)

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

15.6 STATE CORPORATION COMMISSION (SCC)

15.601 Introduction. No survey of Virginia administrative law would be complete without a separate discussion of the State Corporation Commission of Virginia. The SCC is created by the Virginia Constitution and given broad duties and authority there. ⁴⁰⁸ It has been described as the fourth branch of government in Virginia. Often statutes applicable to executive agencies are not applicable to the SCC in the same manner, if at all. The SCC is subject to a separate and distinct body of administrative law. ⁴⁰⁹

15.602 Exemption from the Administrative Process Act. The SCC is not subject to the Administrative Process Act. ⁴¹⁰ The Act requires it to publish SCC regulations in the Virginia Register, ⁴¹¹ but the provisions of the Act governing rulemaking, case decisions, and judicial review do not otherwise apply to the SCC.

15.603 Sources of SCC Law. The unique position of the SCC in the Virginia Constitution and statutes means that the sources of law governing the SCC are almost always entirely different from the administrative law provisions governing executive agencies. Although the body of law is different,

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many procedural concepts of administrative law applicable to the SCC will be familiar to counsel versed in other areas of administrative law.

15.604 Administrative Procedure Generally. The SCC is established, and exercises its duties, under title 12.1 of the Virginia Code. It is authorized to adopt rules and regulations in the administration and enforcement of all laws within its jurisdiction and is given the powers of a court to enforce its own orders through fines and penalties and to issue temporary and permanent injunctions. ⁴¹² It may also make its own rules of practice and procedure. ⁴¹³ Before adopting a rule or general order, the SCC must give reasonable notice to the public and afford interested persons an opportunity to present evidence and be heard. ⁴¹⁴ Before adjudicating any case against any person, the SCC must give "such person reasonable notice of the time and place at which he shall be afforded an opportunity to introduce evidence and be heard." ⁴¹⁵ The sessions of SCC hearings must be public and its decisions "shall be made public forthwith." ⁴¹⁶

15.605 Forms of SCC Proceedings. The SCC has a variety of substantive authorities and duties. Therefore, there are several types of formal proceedings under the SCC's Rules of Practice and Procedure. ⁴¹⁷ Regulatory proceedings are those in which a regulated business or activity is granted the authority to conduct the business or activity or a modification of authority previously granted by the SCC. ⁴¹⁸ Adjudicative proceedings are initiated by action of the SCC staff or on its own motion to enforce Commission requirements against a defendant. ⁴¹⁹ Proceedings to make rules and regulations, and other proceedings involving controversy between private parties, including declaratory judgments, are also set forth in the rules. ⁴²⁰

15.606 SCC Rulemaking. For the most part, the SCC conducts rulemaking by a notice and written comment procedure familiar to administrative

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law. Occasionally, the statutory requirement to provide "an opportunity to present evidence and be heard" ⁴²¹ requires an evidentiary hearing in SCC rulemaking. An evidentiary hearing in a rulemaking case, if required, is similar to a trial-type proceeding conducted in adjudications, ⁴²² but discovery and technical evidentiary rules do not apply. ⁴²³

15.607 SCC Adjudications. The SCC has some of the powers of a court of record ⁴²⁴ and has been held to be a tribunal of at least equal dignity to a circuit court in this capacity. ⁴²⁵ The SCC treats adjudications with more formality than some other kinds of proceedings.

Discovery is permitted by written interrogatories as in other proceedings, and depositions and requests for admissions are permitted in limited circumstances. ⁴²⁶ In SCC practice, discovery against the SCC staff is permitted only in adjudicative proceedings to discover a limited category of statements by the defendant. ⁴²⁷

Evidentiary rules in SCC adjudications are the rules applicable in Virginia courts, rather than the less stringent rules applicable when complicated...