Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mississippi Rural Water Association, Inc. v. Mississippi Public Service Commission

Supreme Court of Mississippi, En Banc

June 8, 2017

MISSISSIPPI RURAL WATER ASSOCIATION, INC.
v.
MISSISSIPPI PUBLIC SERVICE COMMISSION, BRANDON PRESLEY, IN HIS OFFICIAL CAPACITY, CECIL BROWN, IN HIS OFFICIAL CAPACITY AND SAMUEL F. BRITTON, IN HIS OFFICIAL CAPACITY

          DATE OF JUDGMENT: 08/04/2015

          MOTION FOR REHEARING FILED: 02/21/2017

         HINDS COUNTY CHANCERY COURT HON. PATRICIA D. WISE TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: BEN H. STONE LARRY D. MOFFETT JAMES H. HERRING SHELLY M. BASS SHAWN S. SHURDEN LAURA H. DIXON FRANK F. FARMER

          ATTORNEY FOR APPELLANT: JAMES H. HERRING

          ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: FRANK F. FARMER LAURA H. DIXON

         ON MOTION FOR REHEARING

          WALLER, CHIEF JUSTICE

         ¶1. The motion for rehearing is granted. The original opinions are withdrawn and these opinions are substituted therefor.

         ¶2. The Mississippi Public Service Commission (MPSC) adopted a rule requiring utilities to waive utility deposits for certified domestic violence victims for a period of sixty days. The rule also required the utilities to keep the information regarding the domestic violence victims confidential and established penalties for violating that confidentiality. The Mississippi Rural Water Association, Inc. ("Water Association") appealed to the Hinds County Chancery Court objecting to the promulgation of the new rule, but the chancery court affirmed the MPSC's decision. We find that the MPSC lacks statutory authority to adopt any rule regulating the rates of nonprofit water utility associations and corporations. Accordingly, we reverse the order adopting the new rule and remand this case to the MPSC for proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶3. In June 2013, the MPSC declared its intent to consider the adoption of a Rule of Practice and Procedure regarding the waiver of initial utility deposits for domestic violence victims. The original proposed rule stated:

A customer or applicant that has been determined to be a victim of domestic violence by a domestic violence program, by law enforcement personnel, by the office of a District Attorney, or by the office of the Attorney General, shall be exempt from public utilities' initial deposit requirements as established in that utility's tariff. This determination shall be evidenced by submission of a certification letter to the utility. The certification letter must be printed on the letterhead of the certifying agency or accompanied by a letter on agency letterhead identifying the certifying individual. The utility shall deem the certification letter and the contents thereof as confidential. The certification letter expires after ninety (90) days.

         By its terms, this rule applies to all public providers of water service, both for-profit and nonprofit. Because the proposed rule would affect the MPSC's existing rules governing public utility service, the MPSC sought comment on the rule from all interested parties and public utilities. In October 2013, the MPSC filed a scheduling order regarding the due date for further comments or testimony regarding the proposed rule, set a public hearing for December 2013, and attached an Economic Impact Statement (EIS).

         ¶4. The Water Association is a Mississippi nonprofit corporation and operates as a trade association representing more than 500 water and/or sewage disposal companies, most of which are nonprofit corporations. The Water Association moved to intervene on behalf of its nonprofit members and submitted multiple comments to the proposed rule, including expert affidavits by engineer James A. Elliott. In its comments, the Water Association argued, among other things, that Section 77-3-5 of the Mississippi Code prohibited the MPSC from regulating nonprofit utilities' rates or internal affairs. It also argued that the MPSC had failed to comply with the requirements of the Mississippi Administrative Procedures Act because the EIS filed with the proposed rule was deficient.

         ¶5. The public hearing on the proposed rule ultimately was scheduled for August 5, 2014. On July 28, 2014, the MPSC sent counsel for the Water Association a draft of the new proposed rule, which included substantial changes from the original proposal:

A customer or applicant that has been determined to be a victim of domestic violence by a domestic violence program shall be exempt from public utilities' initial deposit requirements, as established in that utility's tariff, for a period of sixty (60) days. This determination shall be evidenced by submission of a certification letter to the utility. The certification letter must be printed on the letterhead of the certifying agency or accompanied by a letter on agency letterhead identifying the certifying individual. The certification letter expires after ninety (90) days.
The utility shall deem the certification letter and the contents thereof as confidential. Any employee, contractor, volunteer or agent of a public utility in possession of information which would tend to identify a victim of domestic violence, who discloses any information that is exempt from disclosure under the Mississippi Public Records Act of 1983, or makes any observation or comment about the identity or condition of any person admitted to a shelter or receiving services of a shelter, unless directed to do so by an order of a court of competent jurisdiction, shall be subject to all applicable penalties imposed by Mississippi law for violation of Commission rules and, in addition, shall be civilly liable to the person whose personal information was disclosed in the amount of Ten Thousand Dollars ($10, 000.00), plus any compensatory damages that the individual may have suffered as the result of the disclosure and any penalties imposed.

         In addition to adding a penalty to the confidentiality provision, the new language changed the complete deposit exemption to a temporary, sixty-day waiver. After reviewing the new language, the Water Association submitted additional comments and a new affidavit by Elliot analyzing the new language in the proposed rule.

         ¶6. The public hearing was held on August 5, 2014. The Water Association and several other utility associations appeared at the hearing and opposed the new rule. On September 9, 2014, the MPSC unanimously passed a final order adopting the rule temporarily waiving deposits for domestic violence victims. The final rule, which applies to nonprofit water associations, states:

1. TEMPORARY WAIVER OF DEPOSIT A customer or applicant that has been determined to be a victim of domestic violence by a domestic violence shelter, as defined in Miss. Code Ann. § 93-21-101 (2014), shall be exempt from public utilities' initial deposit requirements, as established in that utility's tariff for new accounts at existing service locations, for a period of sixty (60) days. This determination shall be evidenced by submission of a certification letter to the utility. The certification letter must be printed on the letterhead of the certifying agency or accompanied by a letter on agency letterhead identifying the certifying individual. The certification letter expires after ninety (90) days .
2. CONFIDENTIALITY OF CERTIFICATION LETTER The utility shall deem the certification letter and the contents thereof as confidential. Any employee, contractor, volunteer or agent of a public utility in possession of information which would tend to identify a victim of domestic violence, who discloses any information that is exempt from disclosure under the Mississippi Public Records Act of 1983, or makes any observation or comment about the identity or condition of any person admitted to a shelter or receiving services of a shelter, unless directed to do so by an order of a court of competent jurisdiction, shall be subject to all applicable penalties imposed by Mississippi law for violation of Commission rules, and in addition, shall be civilly liable to the person whose personal information was disclosed in the amount of Ten Thousand Dollars ($10, 000.00), plus any compensatory damages that the individual may have suffered as the result of the disclosure and any penalties imposed.

         The Water Association applied for rehearing, which the MPSC denied.

         ¶7. The Water Association then appealed the MPSC's decision to the Hinds County Chancery Court on behalf of its nonprofit members, arguing that: (1) the MPSC lacks jurisdiction over the governance, management, or other internal affairs of the members of the Water Association and thus lacked jurisdiction to apply the rule to them; (2) the MPSC lacks authority to regulate the rates and rate-collection procedures, including deposit procedures, of the members of the Water Association and thus lacked authority to apply the rule to them; (3) the MPSC violated the Administrative Procedures Act by adopting a final rule that differed from the proposed rule in a manner not allowed under the Act; (4) the MPSC violated the Administrative Procedures Act's provisions governing consideration of the economic impact of a rule; and (5) the MPSC erred by allowing the members of the Water Association and their employees to become subject to civil and criminal liability for violation of the rule.

         ¶8. The chancery court affirmed the MPSC's adoption of the rule, reasoning that a deposit is not included in the definition of "rate" or "rate structure, " remains the property of the customer unless a debt is incurred, and is within the utility company's discretion to impose. The chancery court also found no violation of the Administrative Procedures Act. It concluded that the final rule was the logical result of comments filed by interveners and simply incorporates existing Mississippi law. The chancery court declined to find the EIS insufficient as a matter of law.

         ¶9. On appeal to this Court, the Water Association raises nineteen issues which essentially track the issues raised in its appeal to the chancery court. We find one issue to be dispositive: whether the MPSC lacked statutory authority to adopt the rule in question because nonprofit corporations and associations are not subject to MPSC regulation of rates. Accordingly, it is unnecessary to address the remaining issues.

         STANDARD OF REVIEW

         ¶10. When this Court reviews a chancellor's ruling concerning an administrative agency decision, we apply the same standard of review as the chancellor. Miss. Comm'n on Envtl. Quality v. Chickasaw Cty. Bd. of Supervisors, 621 So.2d 1211, 1216 (Miss. 1993). This Court has the authority to reverse the decision of the PSC if we find that it (1) was not supported by substantial evidence, (2) is arbitrary or capricious, (3) was beyond the PSC's power to adopt, or (4) violates of some constitutional or statutory provision. Town ofEnterprise v. Miss. Pub. Serv. Comm'n, 782 So.2d 733, 735 (Miss. 2001). "It is clear under Mississippi law that an administrative agency cannot exceed the scope of authority which was granted to it by the legislature." Miss. Bd. of Nursing v. Belk, 481 So.2d 826, 829 (Miss. 1985) (citations omitted). "Further, the Commission's authority to interpret the statutes under which it operates may not supersede the requirements thereof, nor may it ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.