Cincinnati Gas & Electric Co. v. Public Utilities Commission
Docket: No. 2003-2034
Court: Ohio Supreme Court; October 27, 2004; Ohio; State Supreme Court
An appeal as of right has been filed by Cincinnati Gas and Electric Company (CG&E) concerning decisions made by the Public Utilities Commission of Ohio regarding CG&E's application to modify retail electric and certified supplier tariffs, submitted on November 4, 2002. The commission, after receiving comments from interested parties, including the village of Indian Hill, decided on September 2, 2003, to hold a hearing on the proposed modifications. The commission ordered CG&E to comply with a rule mandating cooperation with governmental aggregators, requiring CG&E to provide the village with specific customer information. CG&E's subsequent application for rehearing was denied on September 23, 2003, with the commission reiterating its order for CG&E to deliver the requested information. The village confirmed compliance by CG&E with the commission's orders on October 3, 2003. CG&E filed a notice of appeal on November 21, 2003, challenging the commission's directives to supply customer information.
The hearing on CG&E's tariff modification was initially set for October 14, 2003, but was rescheduled for settlement discussions, with no final decision from the commission as of the appeal's filing. The court is reviewing an appellee motion to dismiss the appeal, citing lack of a final appealable order and mootness. According to R.C. 4903.13, only final orders from the commission can be appealed, and interim orders in ongoing proceedings are not appealable. The court has consistently dismissed premature appeals. CG&E contends the commission's orders are final and appealable due to the substantial harm they have caused.
CG&E's claims of prejudice and harm are unfounded, as any alleged issues do not stem from the commission's orders but from an existing administrative rule that CG&E is required to follow. The commission's orders serve merely as a reminder for compliance with this rule and do not impose any new obligations. CG&E is encouraged to challenge the administrative rule directly in ongoing commission proceedings, as its appeal pertains to interim orders that have not caused any actual harm.
The commission asserts that the appeal lacks merit since CG&E has complied with the directive to provide customer information to the village, rendering the issue moot. Historical case law supports the dismissal of appeals that become moot after compliance with a commission's order, as no effective remedy can be provided. Courts traditionally avoid issuing advisory opinions on abstract issues, focusing instead on actual controversies. CG&E does not dispute the application of this legal principle but argues that the commission has misapplied the law in its case. Despite acknowledging compliance, CG&E claims there are still remedies available that could address its concerns.
CG&E proposes three remedies in its appeal: (1) an order for Indian Hill to pay CG&E for a consumer information list; (2) a directive for Indian Hill to sign a supplier agreement and compensate CG&E for lost revenues due to a prior improper transfer; and (3) a request for due process regarding Indian Hill's complaints about CG&E not providing consumer account information. However, the court finds it lacks jurisdiction to grant these remedies, as none were included in CG&E’s notice of appeal, nor is there evidence to support them. Specifically, the court cannot determine payment amounts without prior commission rulings, and CG&E's requests cannot compel the commission to take actions based on unverified facts. Furthermore, there is no evidence of CG&E being denied due process, and ongoing commission proceedings allow CG&E to address compliance issues in future appeals. The court concludes that the appeal is moot, as the issues can be revisited in ongoing proceedings, leading to the dismissal of the appeal. Moyer, C.J., Resnick, F.E. Sweeney, Lundberg Stratton, O’Connor, and O’Donnell, JJ. concur, while Pfeifer, J. dissents. The case pertains to CG&E's application to modify its retail electric tariff under case No. 02-2906-EL-ATA.
