20240429Edwards Reply to Respondents Brief.pdf

RECEIVED
Monday, April 29, 2024 8:OOAM
IDAHO PUBLIC
UTILITIES COMMISSION
IN THE SUPREME COURT OF THE STATE OF IDAHO
Samuel and Peggy Edwards,
Complainants-Appellants, Reply to Respondents' Briefs
VS. Supreme Court Docket No. 51238-2023
IDAHO PUBLIC UTILITIES Public Utilities Commission No.
COMMISSION and PACIFICORP, PAC-E-23-05
dba ROCKY MOUNTAIN POWER
COMPANY,
Respondents.
Appeal from the Idaho Public Utilities Commission, The Honorable Eric Anderson
presiding.
Appellants, pro se
Samuel Z. and Peggy M. B. Edwards
333 Shoshone Ave.
Rexburg, Idaho 83440
Attorney for Respondent Idaho PUC:
RAUL R. LABRADOR
Idaho Attorney General
Adam Triplett, ISB #10221
Idaho Public Utilities Commission
11331 W. Chinden Blvd.
Building 8, Suite 201-A
Boise, Idaho 83704
Attorney for Respondent PACIFICORP:
Joe Dallas
Senior Attorney
Rocky Mountain Power
825 NE Multnomah, Ste. 2000
Portland, OR 97232

Table of Contents
Table of Cases and Authorities........................................................................................... 2
I. Nature of the Reply..................................................................................................... 5
II. Lingering Issues after Responses................................................................................ 6
A. Does the Commission determine whether Appellants have provided
reason for termination of service?..........................................................................................6
B. Should this Court defer to the Commission's interpretation of ESRs within
itsFinal Orders?.............................................................................................................................6
C. Must Appellants' constitutional argument be barred from consideration,
given that it has been raised for first time on appeal to the Idaho Supreme
Court?.................................................................................................................................................6
I11. Legal Standard......................................................................................................... 6
IV. Argument................................................................................................................. 7
A. Final Orders Do Not Answer Whether Appellants Have Provided Proper Legal
Grounds for Service Termination................................................................................................7
B. Commission Interpretation of ESRs within Final Orders Is Not Reasonable and
Avoids Regular Pursuit of Its Authority, so It Should Be Challenged.............................9
C. I.C. § 61-629 allows for a constitutional issue to be raised for the first time on
appeal................................................................................................................................................... 14
V. Conclusion................................................................................................................ 16
CERTIFICATE OF SERVICE......................................................................................... 18
1

Table of Cases and Authorities
Cases
73 C.J.S. Public Administrative Bodies & Procedure, § 105 at 425..........................11
83 Ohio App. 484, 84 N.E.2d 253 (Ohio 1948).................................................12
384 U.S. 951, 86 S.Ct. 1570, 16 L.Ed.2d 547 (1966)..........................................12
Cole v. Young, 351 U.S. 536, 556, 76 S.Ct. 861, 100 L.Ed. 1396 (1956)....................11
Cooper v. Bd. ofProfl Discipline, 134 Idaho 449, 454, 4 P.3d 561, 566 (2000)...........12
Duncan v. State Bd. of Accountancy, 149 Idaho 1, 3, 232 P.3d 322, 324 (2010)...........13
Ferguson v. Union Nat'l Bank of Clarksburg, 126 F.2d 753, 757 (4th Cir.1942)...........11
Hayes v. Yount, 87 Wash.2d 280, 552 P.2d 1038, 1044 (1976)..............................I I
Higginson v. Westergard, 604 P.2d 51, 100 Idaho 687 (1979).......................11, 12, 13
Hillman v. Northern Wasco County People's Utility Dist., 213 Or. 264, 323 P.2d 664, 680
(1958).......................................................................................11
Howard v. Missman, 81 Idaho 82, 337 P.2d 592 (1959)......................................11
Idaho Power and IPUC vs. Tidwell, 157 Idaho 616, 621, 338 P.3d 1220, 1225
(2018).....................................................................................6, 15
Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 112-113, 524 P.2d 1338,
1340-41 (1974)..............................................................................8
Murray v. Spalding, 141 Idaho 99, 101-02, 106 P.3d 425, 427-28 (2005).................14
Nelson, 144 Idaho at 718, 170 P.3d at 383.......................................................5
Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 227 P.2d 449, 452 (Cal.1951)...........I I
Pandrea v. Barrett, 160 Idaho 165, 171, 369 P.3d 943, 949 (2016)..........................6
Preston v. Idaho State Tax Comm'n, 131 Idaho 502,504, 960 P.2d 185, 187 (1998)......13
2

Sammis v. Magnetek, Inc., 130 Idaho 342, 346, 941 P.2d 314, 318 (1997)...................5
Sanchez v.Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991).............................14
State ex rel. Merrill v. Greenbaum, 75 N.E.2d 598, 603 (Ohio Com.Pl. 1947).............12
Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005)...................................5
Theodore v. State, 407 P.2d 182, 189 (Alaska 1965)...........................................12
Twin Falls County v. Coates, 139 Idaho 442, 445, 80 P.3d 1043, 1046 (2003).............5
Statutes
Constitution of the State of Idaho, Article I, Section 1.........................................15
Idaho Code § 61-201................................................................................I I
Idaho Code § 61-305......................................................................11, 13, 16
Idaho Code § 61-315................................................................................I I
Idaho Code § 61-501..................................................................10, 12, 13, 16
Idaho Code § 61-503..................................................................11, 13, 14, 16
Idaho Code § 61-624...............................................................................7, 9
Idaho Code § 61-627................................................................................15
Idaho Code § 61-629.............................................................7, 9, 12, 14, 15, 16
Idaho Code § 67-5279..............................................................................13
Rules
Electric Service Regulations of Rocky Mountain Power, Salt Lake City, Utah,for Electric
Service in the State of Idaho under Idaho Public Utilities Commission, Tariff No. 1:
ESR1(2).......................................................................................14
3

ESR 6(2)(d)............................................................8, 9, 10, 12, 13, 14, 16
ESR7(1)...................................................................................10, 12
ESR10.1........................................................................................8
Idaho Administrative Procedures Act(IDAPA)
31.01.01.054......................................................................................9
31.01.01.066....................................................................................9
31.01.01.331........................................................................................................7
Idaho Rules of Civil Procedure Rule 84...........................................................8
IDAPA 31.21.01, also referred to as Utility Customer Relations Rules (UCRR):
UCRR301.......................................................................................8
4

Complainants-Appellants Samuel and Peggy Edwards ("the Appellants") submit a
reply to Respondent's Brief of the Idaho Public Utilities Commision("Commission") and
Response Brief of Respondent on Appeal—PACIFICORP, d/b/a ROCKY MOUNTAIN
POWER COMPANY ("Company").1
I. Nature of the Reply
This Reply does not attempt to restate the Arguments and Conclusions which
have been raised in A.B. So, it seems appropriate to explain the nature, structure or
methodology of this reply. Appellants have replied to Respondents' three similar counter-
arguments. The Commission also asserts that the Appellants' three issues could be
rephrased into a single issue: "whether the Edwards have failed to show that the
Commission did not regularly pursue its authority to deny their petition for
reconsideration."R.B.IPUC at 7. More on this in Section III, Legal Standard.
Acknowledging the Court's warning to pro se litigants2, we begin.
1 References to the Settled Agency Record on Appeal in this appeal are referenced herein as"A.R.".
References to the Appellants Brief are referred to herein as"A.B.".References to the Response Brief
of the Company are referred to herein as"R.B.RMP",and references to the Respondent's Brief of the
Commission are referred to herein as"R.B.IPUC".
2 It is not for convenience or cost that Appellants present themselves as pro se litigants to this Court.
Nevertheless,believing that certain issues of law would not otherwise be raised to this Court for
review,Appellants acknowledge that"pro se civil litigants are not accorded special latitude... [and]
are held to the same standards and rules as those represented by an attorney."Suitts v.Nix, 141
Idaho 706,709,117 P.3d 120,123 (2005) (quoting Twin Falls County v.Coates, 139 Idaho 442,445,
80 P.3d 1043, 1046(2003)).Moreover,"Pro se litigants are not accorded any special consideration
simply because they are representing themselves and are not excused from adhering to procedural
rules."Nelson, 144 Idaho at 718,170 P.3d at 383 (citing Sammis v.Magnetek,Inc.,130 Idaho 342,
346,941 P.2d 314,318 (1997)).
5

II. Lingering Issues after Responses
A. Does the Commission determine whether Appellants have provided reason for
termination of service?
B. Should this Court defer to the Commission's interpretation of ESRs within its
Final Orders?
C. Must Appellants' constitutional argument be barred from consideration, given that
it has been raised for first time on appeal to the Idaho Supreme Court?
III. Legal Standard
The review on appeal shall not be extended further than to determine
whether the commission has regularly pursued its authority, including a
determination of whether the order appealed from violates any right of the
appellant under the constitution of the United States or of the state of
Idaho. Upon the hearing the Supreme Court shall enter judgment, either
affirming or setting aside or setting aside in part the order of the
commission. In case the order of the commission is set aside or set aside in
part, the commission, upon its own motion or upon motion of any of the
parties, may alter or amend the order appealed from to meet the objections
of the court in the manner prescribed in section 61-624, Idaho Code.
I.C. § 61-629 with emphasis added
The party appealing a Final Order has the burden to first show whether and how
the Commission erred in regularly pursuing its authority. Also, the Supreme Court has
asserted that when it reviews a lower tribunal's decision to grant or deny a motion for
reconsideration, it uses "the same standard of review the lower [tribunal] used in deciding
the motion for reconsideration."Pandrea v. Barrett, 160 Idaho 165, 171, 369 P.3d 943,
949 (2016) (quoted in Idaho Power and IPUC vs. Tidwell, 157 Idaho 616, 621, 338 P.3d
1220, 1225 (2018)). Acknowledging the Commission's request (R.B.IPUC at 9 footnote),
the Appellants include the standard of review until this Court may rule:
6

Petitions for reconsideration must specify (a) why the order or any issue
decided in it is unreasonable, unlawful, erroneous or not in conformity
with the law, and (b) the nature and quantity of evidence or argument the
petitioner will offer if reconsideration is granted. (IDAPA 31.01.01.331)
Besides the determining whether the Commission has regularly pursued its authority, I.C.
61-629 also requires this Court to include "a determination of whether the order appealed
from violates any right of the appellant under the constitution of the United States or of
the state of Idaho."
The Supreme Court must affirm the Final Orders of the Commission,unless it
determines that the Commission has not regularly pursued its authority, including
violation of some right of the appellant, as stated above. Upon the hearing this Court shall
enter judgment either setting aside or setting aside in part the order of the Commission. In
this case, the Commission, "upon its own motion or upon motion of any of the parties,
may alter or amend the order appealed from to meet the objections of the court in the
manner prescribed in section 61-624, Idaho Code." (I.C. § 61-629)
IV. Argument
A. Final Orders Do Not Answer Whether Appellants Have Provided
Proper Legal Grounds for Service Termination.
Both Responses argue that"a finding pertaining to the UCRRs was not necessary
to resolve the claims raised in the complaint". R.B.RMP at 2 and R.B.IPUC at 11. The
Commission further explained that tariffs "bind both the customer and public utility with
the force of law upon filing and approval by the Commission."R.B.IPUC at 12. Yet, the
Commission's specific reference to controlling law is dubious: "[the] provisions of the
Company's tariff authorizing it to terminate service when a customer obstructs access to
7

an electric meter are found in ESR No. 6. (R. 21)."R.B.IPUC at 12. To clarify, ESR 6
sets forth the regulation affecting company installation, including circumstances required
for the Customer to provide safe, unencumbered access. Further, the Commission found
and the Company has also asserted that"removing metering devices" is not necessarily
service termination, but is an essential element of meter replacement. See A.R. at 387 and
R.B.RMP at 5. Rather, ESR 10 sets forth regulations affecting termination of service, and
ESR 10.1 lists reasons the Company may terminate service without their permission after
adequate notice.
The Company asserts (R.B.RMP at 3)that"the Commission only needed to
establish that PacifiCorp had authority to install AMI meters and that the notice of
disconnection of service was lawful..." and concludes (ibid at 4) that"this Court should
find that the Commission made sufficient findings to dismiss the unsupported claims in
the complaint related to the notice of disconnection of service."Yet, authority to install
AMI meters does not constitute a finding for service termination, and unsupported claims
including the various criminal and tort offenses3 of the Complaint are irrelevant to this
appeal. Rather, Appellants have argued that Order 35904 is unreasonable because the
Commission does not find whether Appellants have provided grounds for service
termination, now clarified as per ESR 10.1.
As Appellants argue on A.B. at 13-14, UCRR 301 allows "the applicant [to] file
an informal or formal complaint with the Commission." Standards of review"must be
provided by statute." Idaho Rules of Civil Procedure Rule 84[2]. So, the Commission
3 The various criminal and tort offenses cited by the Company in reference to Complaint are not
preserved for appeal,since"It is a well settled rule that in an appeal from the commission matters
may not be raised for the first time on appeal".Key Transp.,Inc.v. Trans Magic Airlines Corp.,96 Idaho
110, 112-113,524 P.2d 1338,1340-41 (1974).
8

must specify the legal standard for involuntary service termination and the Commission's
determination of how grounds for involuntary service termination are found. Otherwise,
the Complaint has not been answered in regular pursuit of the Commission's authority
(I.C. § 61-629) and, as argued in A.B. at 16-17, the Company is left with a conflict of
interest related to the Complainant. Appellants therefore conclude that as the Commission
has clarified that ESRs "bind both the customer and public utility with the force of law"
and ESR 10.1 lists the reasons for service termination; so, the Commission, in regular
pursuit of its authority should rescind Order 35904, per I.C. § 61-624, and state the legal
standard and its determination concerning service termination if an AMI meter is refused.
Otherwise,this Court should find that the Commission has not regularly pursued its
authority in Final Orders responding to Appellants' Formal Complaint4 about notified
service termination.
B. Commission Interpretation of ESRs within Final Orders Is Not
Reasonable and Avoids Regular Pursuit of Its Authority, so It Should
Be Challenged.
The Respondents did not respond to the Appellants' argument that"the Company
has never been denied access for purposes listed in the Electric Service Regulations of
4 Both Respondents point out that the Complaint did not cite the"specific provision of statute,rule,...
or other controlling law that the utility...has violated."IDAPA 31.01.01.54.See also R.B.IPUC at 9 and
R.B.RMP at 2.Yet,IDAPA 31.01.01.066 directs that"pleadings will be liberally construed,and defects
that do not affect parties'substantial rights will be disregarded".Therefore,the claim that Appellants
have not"denied access to the meter"for purposes explicitly stated in ESR 6(2)(d)has been properly
before the Commission for determination since the Formal Complaint.The Commission did not
dismiss the Complaint on grounds of improper filing,per IDAPA 31.01.01.054.See A.R.at 169-171
and 386-390.Further,the precise provision of controlling law has remained a critical issue of these
proceedings.See A.B.at 14-15.Without the specific provision,the Complaint yet"fully states the facts
constituting the acts or omissions of the utility"(IDAPA 31.01.01.054.02)relevant to a single relief
desired:that the Company be withheld from terminating service despite Appellants'objections to
AMI meter installations.
9

Rocky Mountain Power(ESRs)." Compare A.B. at 17-22 with R.B.IPUC at 13-14 and
R.B.RMP at 4-8. Instead, Respondents supplement the Appeal with the applicable
standard of review for agency deference, and ask the Court to not consider the
Appellants' argument(R.B.IPUC at 13) and "give no weight to the appellants'
arguments". R.B.RMP at 4.
The Company benefits substantively from the Commission's expansive
interpolation of the ESRs 6 & 7. Along with"other public utilities, such as Idaho Power
Company and Avista Corporation", the Company has achieved a very high percentage of
voluntary AMI meter replacements5 and various programmatic benefits, including
"improved grid reliability benefits through enhanced information and billing options,
such as time-of-use rates and demand response programs."R.B.RMP at 7. However, the
Company's relevant discussion of agency deference (R.B.RMP at 4-8)must be viewed in
context of what arguments were not discussed. For example, Appellants raised the
following cogent and relevant arguments within A.B. at 17-22:
• Commission regulatory power: constructive interpolation of ESRs 6 & 7,
particularly use of the phrase"among other things", as well as tolerance of
Company's misleading language in termination notices appear
inconsistent with regulating the Company, per I.C. § 61-501. See A.B. at
19-21 for further discussion.
5 Calculated at 99.812%from data provided in the Company's"Answer and Motion to Dismiss".A.R.
at 144-145.
6 Order 35849 is apparently the first documentation of the Commission's"among other things"
interpolation of ESR 6 and 7,because it is provided without previous reference.A.B.at 19.Yet,
Company termination notices preceded Order 35849 (A.R.at 158 and A.B at 20).
10

• Transparency of regulations: Commission has power to establish new
regulations (I.C. § 61-503),but Orders 35849 and 35904 are not sufficient
public availability, since I.C. § 61-3057 requires a utility's tariff to include
all rules and regulations affecting service. See R.B.IPUC at 12 and A.B. at
18-20.
Also, the Commission responded that
The Edwards failed to provide any citations to relevant legal authority
supporting a conclusion that the Commission erred. In short, the Edwards
failed to identify the legal standards applicable to the interpretation of
utility tariffs. Nor did they provide cogent argument showing how, under
these unidentified legal standards, the Commission erred such that they
should prevail on appeal. R.B.IPUC at 13.
Therefore, the Appellants reply by reviewing in greater detail Higginson v.
Westergard(1979) and apply the four-prong test to determine the appropriate level of
deference to the agency interpretation, as recommended by the Company.
A rule or regulation of a public administrative body or officer ordinarily
has the force and effect of law and is an integral part of the statute under
which it is made just as though it were prescribed in terms therein.
Howard v. Missman, 81 Idaho 82, 337 P.2d 592 (1959). Since the
[Commission] is an administrative body under [I.C. § 61-201 et seq], the
same principles of construction that apply to statutes apply to rules and
regulations promulgated by an administrative body. 73 C.J.S. Public
Administrative Bodies & Procedure, § 105 at 425; Orloff v. Los Angeles
Turf Club, 36 Cal.2d 734, 227 P.2d 449, 452 (Cal.1951); Hillman v.
Northern Wasco County People's Utility Dist., 213 Or. 264, 323 P.2d 664,
680 (1958); Hayes v. Yount, 87 Wash.2d 280, 552 P.2d 1038, 1044
(1976)...
Indeed, some courts have gone so far as to hold that in suits involving a
public administrative agency the rules and regulations of such agency
should be strictly construed against it." See Cole v. Young, 351 U.S. 536,
556, 76 S.Ct. 861, 100 L.Ed. 1396 (1956); Ferguson v. Union Nat'l Bank
of Clarksburg, 126 F.2d 753, 757 (4th Cir.1942). Any ambiguities
7 Appellants initially cited I.C.§61-315 (A.B.at 20),but the Commission has cited the more relevant
reference for public visibility of utilities'regulations or services in R.B.IPUC at 12.
11

contained therein should be resolved in favor of the adversary. State ex rel.
Merrill v. Greenbaum, 75 N.E.2d 598, 603 (Ohio Com.Pl. 1947), rev'd on
other grounds, 83 Ohio App. 484, 84 N.E.2d 253 (Ohio 1948); Theodore
v. State, 407 P.2d 182, 189 (Alaska 1965), cert. denied, 384 U.S. 951, 86
S.Ct. 1570, 16 L.Ed.2d 547 (1966). From Higginson v. Westergard, 604
P.2d 51, 100 Idaho 687 (1979).
As the Commission's investment of authority(I.C. § 61-501) is great- supervising
and regulating every public utility in the state and affecting most Idaho residents—so, the
regular pursuit of its authority(I.C. § 61-629)is critical. The Appellants have argued that
"the effect of Final Orders#35849 and#35904 is not to adjust the Company's practices to the
written ESRs,but rather to loosen ESR No. 6(2)(d) and ESR No. 7(1) so as to permit the
Company access to Complainants-Appellants' property for the purpose of meter
replacement."A.B. at 20. The Appellants do not contest Commission authority,but argue
that clarifying this reason for access in Final Orders is insufficient,unless followed by an
update to the ESR. This Court has ruled that,until such a time as ESR 6(2)(d)is updated,
"ambiguities contained [in the regulation] should be resolved in favor of the adversary."
Higginson v. Westergard, 604 P.2d 51, 100 Idaho 687 (1979).
This strict interpretation of ESR 6(2)(d) is not absurd, as alleged by the Company
(R.B.IPUC at 6), and electric customers in Idaho are already refusing utility access to their
meter for replacement. Instead,updating ESR 6(2)(d)would make the Commission intention
clear and provide the Company with unambiguous authority. AMI meter replacements have
been occurring(mostly voluntarily) for 20 years already, so the Company's concerns about
disfavored outcomes seem exaggerated, especially as future meter upgrades must be
anticipated. R.B.IPUC at 6-7.
The actions of an agency like the Board are afforded a strong presumption
of validity. Cooper v. Bd. ofProfl Discipline, 134 Idaho 449, 454, 4 P.3d
561, 566 (2000). This Court may not substitute its judgment for that of the
Board. Id. The Board's decision may be overturned if it: "(a)
12

violate[s]constitutional or statutory provisions; (b) exceed[s] the agency's
statutory authority; (c) [is] made upon unlawful procedure; (d) [is] not
supported by substantial evidence on the record as a whole; or (e)
[is]arbitrary, capricious, or an abuse of discretion." Id. (citing I.C. § 67-
5279(3)). Further, the Board's decision will be upheld unless the appellant
demonstrates that one of his substantial rights has been prejudiced. Id.
(citing I.C. § 67-5279(4)).
Where an agency interprets a statute or rule, this Court applies a four-
pronged test to determine the appropriate level of deference to the agency
interpretation. This Court must determine whether: (1) the agency is
responsible for administration of the rule in issue; (2) the agency's
construction is reasonable; (3)the language of the rule does not expressly
treat the matter at issue; and(4) any of the rationales underlying the rule of
agency deference are present. Preston v. Idaho State Tax Comm'n, 131
Idaho 502,504, 960 P.2d 185, 187 (1998); Duncan v. State Bd. of
Accountancy, 149 Idaho 1, 3, 232 P.3d 322, 324 (2010).
Soberly, therefore,Appellants argue that this Court should substitute its judgment for
that of the Commission's, since loosening of Company regulations in the Final Orders instead
of updating ESR 6(2)(d)to include "meter replacements" or the like, does not execute the
Commission's authority in accordance with I.C. § 61-305, 61-501 and 61-503 and is
therefore an unlawful procedure. Construction of this interpretation within Final Orders
35849 and 35904 has the effect of loosening of Company regulations, as exemplified by the
phrase "among other things". Such loosening of Company regulation is expected to have
negative affects to Commission regulatory power and transparency of regulations as
discussed briefly above. Further, the Final Orders are not afforded the same weight of law
as the rule or regulation of an administrative agency, as discussed by this Court in Higginson
v. Westergard. The Company is also responsible to"keep open to public inspection ...all
rules,regulations, contracts,privileges and facilities which in any manner affect or relate
to... service." I.C. § 61-305. Finally,Appellants have argued that one of their substantial
(that is, Constitutional)rights is prejudiced by Final Order 35904. For each of these reasons,
13

agency construction of this interpretation of Company authority to replace meters is not
reasonable.
For these reasons,this Court should not defer to the Commission's interpretation in
this case. This Court should determine that the Commission has not regularly pursued its
authority for regulating Customer and Company responsibilities (per ESR 1[2]) as pertaining
to access for meter replacement and set aside or set aside in part Orders 35849 and 35904. As
the Commission has the authority to establish new regulations (I.C. § 61-503), so an
update to ESR 6(2)(d)to allow for meter upgrades is required, or else the Commission
should be grant to Idahoans the ability to "opt-out" of the AMI metering program, as
previously argued.
C. I.C. § 61-629 allows for a constitutional issue to be raised for the first
time on appeal.
The review on appeal shall not be extended further than to determine
whether the commission has regularly pursued its authority, including a
determination of whether the order appealed from violates any right of the
appellant under the constitution of the United States or of the state of
Idaho. I.C. § 61-629
A plain reading of I.C. § 61-629 marks constitutional rights as separate from this
Court's other actions to "determine whether the commission has regularly pursued its
authority". Other case law which Respondents cite as related to error preservation,
including Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991), adhere to a
different section of Idaho Code than section 61. On this point, Sanchez v. Arave and Murray
v. Spalding both pertain to criminal lawsuits rather than responding to IC 61-629 which
8 Murray v.Spalding, 141 Idaho 99, 101-02, 106 P.3d 425,427-28 (2005)
14

directly questions whether the Order appealed from violates any right of the appellant
under the constitution of the United States or of the state of Idaho. Further, it could not be
determined whether Order 35904"violates any right of the appellant under the constitution of
the United States or of the State of Idaho"until Order 35904 existed. Also, I.C. § 61-627 and
61-629 pertain directly to appeals to the Supreme Court and not to earlier petitions to the
Commission for reconsideration (I.C. § 61-627).
In seeking consideration of a constitutional issue raised for the first time on
appeal, I.C. § 61-629 is more direct justification than reference to this Court's statement
in Murray v. Spalding, which provides an"exception to [the well-settled] rule if such
consideration is necessary for subsequent proceedings in the case", as quoted in Idaho
Power and IPUC vs. Tidwell, 157 Idaho 616, 621, 338 P.3d 1220, 1225 (2018).
Therefore, even though the Appellants have twice concluded in this Reply that the
Commission has not regularly pursued its authority in Final Order 35904—the Appellants
ask that the Court consider the Appellants' argument on its merit, independent of whether the
Court finds that the Commission has regularly pursued its authority.
While most of the Responses to Appellants' constitutional argument were focused
entirely upon barring consideration; yet, the Commission asserted that"the validity of the
Edwards' constitutional claim depends substantially upon the notion that smart meters are
unsafe for use near their residence."R.B.IPUC at 16. Also, the Company asserts that"the
appellants' claim is premised on the factual finding that AMI meters are unsafe."R.B.RMP
at 9. Appellants take issue with these comments,because they presuppose an external
determination of safety before Appellants could act to secure our safety. The Appellants
have not delegated Constitutional rights under Article I, Section 1 to anyone. In other
words "the Commission's duty to require safety regulations does not replace individuals'
15

responsibilities to secure their own safety, but rather appears intended to create an
atmosphere in which employees, customers or the public may more readily choose health
and safety."A.B. at 25.
V. Conclusion
In response to this Court's invitation to reply to Respondents' briefs, the
Appellants re-affirm that Final Orders do not answer whether Appellants have provided
proper legal grounds for service termination. Therefore, the Commission, in regular
pursuit of its authority should rescind, alter or amend Final Order Denying
Reconsideration 35904 and state the legal standard and its determination concerning
service termination if an AMI meter is refused. Likewise, the Commission interpretation
of ESRs within Final Orders is not reasonable and avoids regular pursuit of its authority,
so the Commission should update to ESR 6(2)(d) to allow for meter upgrades or else
grant to Idahoans the ability to "opt-out" of the AMI meter program, as previously
argued. Otherwise, this Court should determine that the Commission has not regularly
pursued its authority for regulating Customer and Company responsibilities as pertaining
to access for meter replacement.
This Court should not defer to the Commission's interpretation of ESRs in Orders
35849 and 35904. Rather, in accordance with I.C. § 61-629, the Appellants respectfully
request that this Court set aside or set aside in part Orders 35849 and 35904 and enjoin
the Commission to regulate public utility companies consistent with I.C. § 61-305, 61-
501, and 61-503. All other Conclusions from A.B. at 30-31 still apply.
16

RESPECTFULLY SUBMITTED this 261h day of April, 2024.
f
Samuel Z. Edwards, Sui Juris
Peggy M. B. Edwards, Sui Juris
1
17

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this 26th day of April 2024, served the
"Complainants-Appellants Brief"which Peggy and I signed on 26 April 2024 for
Supreme Court docket# 51238-2023,by forwarding a copy thereof,to the
following,via e-mail addresses listed:
Interim Commission Secretary, Idaho Public Utilities Commission:
Monica Barrios-Sanchez
11331 W. Chinden Blvd.
Bldg. 8, Ste. 201-A
-Boise, ID 83714
Via email: monica.barriossancheznpuc.idaho.gov
Attorney for Respondent on Appeal, Idaho Public Utilities Commission:
Adam Triplett
Deputy Attorney General
Idaho Public Utilities Commission
11331 W. Chinden Blvd.
Bldg. 8, Ste. 201-A
Boise, ID 83714
Via email: [e-mail]
Attorney for Respondent, PacifiCorp:
Joe Dallas
Rocky Mountain Power
825 NE Multnomah, Ste. 2000
Portland, OR 97232
Via email: ioseph.dallas@l)acificorp.com
Samuel Z. Edwa s, Sui Juris
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