Prosecuting an Appeal from a Decision of the Colorado Public Utilities Commission
| Publication year | 1987 |
| Pages | 2163 |
1987, December, Pg. 2163. Prosecuting an Appeal from a Decision of The Colorado Public Utilities Commission
Prosecuting an appeal in the nature of judicial review from a decision of the Colorado Public Utilities Commission ("PUC" or "Commission") can be confusing and complex. The PUC hearing statutes must be closely scrutinized because they contain the prerequisites which control the scope of the action for judicial review. This article outlines the two judicial review procedures set forth in statute: the seldom-used action in the nature of mandamus and the more common writ of certiorari. It also discusses the standard of review the court will use in evaluating the writ of certiorari and the requirements for obtaining a stay of the PUC decision.
All actions for review should be commenced and tried in the district court in the county where the petitioner resides. However, if the petitioner is a corporation or partnership, actions should be commenced and tried in the county in which it maintains its principal office or place of business, or in the District Court of the City and County of Denver. The choice is at the option of the petitioner.(fn1)
Only the district court is empowered to begin the judicial review of the Commission's decisions. Such a review may take two forms. Within thirty days after an Application for Rehearing, Reargument or Reconsideration ("RRR") is denied by the PUC, the party may apply to the district court for a writ of certiorari or review for the purpose of inquiring into and determining the lawfulness of the final decision.(fn2) Alternatively, the General Assembly has provided that in a "proper case," an action in the nature of mandamus may be brought for the purpose of compelling certain conduct where the PUC has taken arbitrary action or grossly abused its discretion.(fn3)
Mandamus is an action to compel a public agency or official to perform its duty. An action in the nature of mandamus shall lie from the district court to the Commission in all proper cases.(fn4) The Colorado Rules of Civil Procedure ("C.R.C.P.") describe the circumstances under which an action in the nature of mandamus is proper if the district court is to compel the performance of an official act.(fn5)
Mandamus is only justified when a state agency or official has failed to perform a statutory duty or to adhere to its statutory responsibility.(fn6) Although the PUC exercises quasi-legislative as well as quasi-judicial functions, mandamus ordinarily will not lie to compel a quasi-judicial tribunal to exercise its discretion in a particular way.(fn7)
Under People's Natural Gas v. Public Utilities Commission,(fn8) mandamus from the district court to the PUC is proper only when an action has been taken arbitrarily or reflects a gross abuse of discretion.(fn9) A writ of mandamus will not be proper where the PUC has performed its statutory duty or followed statutory procedure. In those instances, the party seeking to overturn a decision of the PUC must apply for the statutory writ of certiorari.
Mandamus is not an action seeking the review of the merits of a particular decision or act. It has its own procedural and substantive body of law which does not rely on the procedure and standard of review applicable to the writ of certiorari.
Whether the exhaustion of administrative remedies must be undertaken by filing for RRR is uncertain. However, if the PUC issues any formal decision in the matter, it is advisable to preserve the issues for judicial review as required by statute and discussed in this article.
The most widely used avenue of appeal from a PUC decision is petitioning the district court for a writ of certiorari. Certiorari is a writ issued by a superior court to an inferior court of record, or to some other tribunal or officer exercising a judicial function, requiring the certification and return of the record and proceedings in order that they may be revised and corrected in matters of law. The issuance of the writ is necessary to confer jurisdiction on the court.(fn10)
A writ of certiorari to review orders of the PUC does not issue as a matter of right, but only upon good cause shown.(fn11) This is consistent with the general rule.(fn12)
The district court has considerable discretion in granting the writ of certiorari. A petitioner seeking to overturn a PUC decision cannot "demand" that the court review the record; it is strictly a matter left to the district court's discretion.
Under North Glenn Suburban Co. v. District Court,(fn13) certiorari is not a new action. It is a directive to the inferior tribunal to certify to an appellate level a copy of the record for review. Citing Drieling Motor Co. v. Court of Appeals,(fn14) the...
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