Winning an Appeal from a Decision of the Colorado Public Utilities Commission

Publication year1988
CitationVol. 08 No. 1988 Pg. 1529
17 Colo.Law. 1529
Colorado Lawyer

1988, August, Pg. 1529. Winning an Appeal From a Decision of the Colorado Public Utilities Commission

Winning an Appeal From a Decision of the Colorado Public Utilities Commission

by Mark Bender

To win an appeal from a decision of the Colorado Public Utilities Commission ("PUC" or "Commission"), practitioners must be concerned with the substantive grounds for reversing that decision. A number of procedural problems presented by the PUC hearing statutes(fn1) were discussed in an article published in the December 1987 issue of The Colorado Lawyer.(fn2)

This article assumes that the procedural prerequisites have been met and that grounds for a valid judicial review have been established. Practitioners should then examine subsections (2) and (3) of CRS § 40-6-115. These subsections provide authority for the court to inquire into the Commission's findings of fact and contain the four grounds for reversing a PUC decision. Scrutinizing these grounds gives practitioners an opportunity to prepare successful arguments for overturning the decision.

Certifying the Record

The majority of PUC decisions are appealed through a writ of certiorari. A writ of certiorari is a command from the higher court for the lower court or tribunal to certify its record and deliver it to the higher tribunal for purposes of review.(fn3) A writ of certiorari directed to the PUC under statute should command that the PUC certify the record and file it with the district court within thirty days. There is no charge to the petitioner for this service, since the PUC is required by statute to perform the function. However, the record will not contain transcripts unless they previously had been transcribed by the request of one of the parties.(fn4)

Furthermore, CRS § 40-6-115 provides that "on the return date [the date the PUC is ordered to file the record], the cause shall be heard by the court unless for good reason shown, the same be continued." Thus, under statute, the date of the hearing is set for the same day that the certified record is filed with the court.

This presents two problems for the petitioner. The courts are not always willing to listen favorably to an often complex matter, on short notice, with an unreviewed record. Additionally, the administrative record of the Comission's decision can comprise several thousand pages with dozens of exhibits. When faced with a record of such magnitude, most counsel will prefer to submit written briefs to the court and conduct scheduled argument. Because the weight of case law is overwhelmingly in support of the PUC, unless careful preparation is made, the risk of an immediate hearing falls on the petitioner.

It is better for the petitioner to file a motion with the court requesting a briefing schedule which is triggered by the PUC certifying and filing the record. This motion should be filed soon after the writ of certiorari is issued. If the court has no set procedure for reviewing administrative matters, practitioners should urge the court to follow standard Administrative Procedure Act ("APA") procedures.(fn5) Typically, these procedures call for a briefing schedule allowing forty days for the petitioner's opening brief; thirty days for the answer briefs of the intervenors or the PUC; and fourteen days for the petitioner's reply brief.

The clerks of the Denver District Court almost routinely use a standard form to notify parties of the briefing schedule pursuant to the APA. This schedule provides petitioners a full opportunity to brief the initial issues and reply to any new issues raised by the PUC or intervenors. This is a valuable right not to be ignored if a client must sustain the burden of persuading the court to overturn the Commission's decision.

The Commission's actual certification of the record must be examined in order to be certain that the complete record has been filed. This is important because some PUC cases are of an ongoing or periodic nature. Also, the voluminous record of certain PUC cases may mean that the certification is incomplete due to human error.

An informal method to resolve the problem if the record requires completion is to ask the PUC executive secre-


tary or his or her attorney, by letter with copies to all parties, to file an addendum to the record. If this creates a dispute that...

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