20250123Brief in Support of Petition for Rehearing.pdf

Electronically Filed
1/23/20254:29 PM
Idaho Supreme Court
Melanie Gagnepain,Clerk of the Court
By:Brad Thies,Clerk
IN THE SUPREME COURT OF THE STATE OF IDAHO
SHERRY COLE, ) Supreme Court
Docket No. 51148-2023
Petitioner—Appellant, )
V. ) Idaho Public Utilities Commission No.
PAC-E-23-12
IDAHO PUBLIC UTILITIES COMMISSION )
and PACIFICORP,d/b/a ROCKY MOUNTAIN ) BRIEF IN SUPPORT OF
POWER COMPANY, ) PETITION FOR REHEARING
Respondents. )
Appeal from Idaho Public Utilities Commission
Commissioner Eric Anderson, Presiding
RAUL R. LABRADOR Sherry Cole
Idaho Attorney General 350 S. 12th W., #14
St. Anthony, ID 83445
Adam Triplett, ISB #10221 Petitioner-Appellant,pro se
Idaho Public Utilities Commission
11331 W. Chinden Blvd.
Building 8, Suite 201-A
Boise, ID 83704
Attorney for Respondent Idaho PUC
Joe Dallas
Senior Attorney
Rocky Mountain Power
825 NE Multnomah, Ste. 2000
Portland, OR 97232
Attorney for Respondent PacifiCorp d/b/a
Rocky Mountain Power Company

TABLE OF CONTENTS
I. STATEMENT OF THE CASE........................................................................................ 4
II. ARGUMENT................................................................................................................... 7
A. The Opinion deprives the Commission of statutory authority necessary for it to
effectively administer the Public Utilities Law. ........................................................... 7
B. The Opinion is inconsistent with the scope of appellate review authorized under
Idaho Code § 61-629 and this Court's precedent........................................................ 11
C. The Opinion establishes a procedure likely to result in the presentation of
constitutional issues with underdeveloped legal arguments and inadequate factual
findings for this Court to properly perform its reviewing function........................... 13
III. CONCLUSION.............................................................................................................. 15
CERTIFICATE OF SERVICE .............................................................................................. 17
i

TABLE OF AUTHORITIES
Idaho Constitution
■ Idaho Const. art V. § 9...................................................................................................... 12
Statutes
■ 16 U.S.C.A. § 791a, et seq................................................................................................ 10
■ 15 U.S.C.A. § 717, et seq.................................................................................................. 10
■ 42 U.S.C.A. § 7172........................................................................................................... 10
■ Idaho Code Section 61-101.................................................................................................4
■ Idaho Code Section 61-501........................................................................................passim
■ Idaho Code Section 61-612................................................................................................. 8
■ Idaho Code Section 61-629 .......................................................................................passim
Caselaw
■ AT& T Commc'ns of The Sw., Inc. v. Arkansas Pub. Serv. Comm'n, 40 S.W.3d 273, 280
(Ark. 2001)........................................................................................................................ 14
■ Doe v. Sex Offender Registry Bd., 170 N.E.3d 1143 (Mass. 2021).................................... 9
■ Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989)...................................................... 12
■ Fryer v. A.S.A.P. Fire & Safety Corp., 658 F.3d 85 (1st Cir. 2011)................................. 10
■ Hayden Pines Water Co. v. Idaho Pub. Utilities Comm'n, 122 Idaho 356, 834 P.2d 873
(1992)................................................................................................................................ 11
■ Idaho Power Co. v. Tidwell, 164 Idaho 571, 434 P.3d 175 (2018) ..............................4, 13
■ Idaho Power Co. v. Idaho Pub. Utilities Comm'n, 102 Idaho 744, 639 P.2d 442 (1981)10,
11
■ Indus. Energy Consumer Grp. v. Pub. Utilities Comm'n, 320 A.3d 437 (Me. 2024) 10, 15
■ New Jersey Conservation Found. v. FERC, 353 F. Supp. 3d 289, 308 (D.N.J. 2018)....... 9
■ Johnson v. Blaine Cmy., 146 Idaho 916, 204 P.3d 1127 n.2 (2009) .................................. 9
■ Lewis v. State, Dep't of Transp., 143 Idaho 418, 146 P.3d 684, (Ct. App. 2006)............ 10
■ Louisiana Public Service Comm'n v. F.C.C., 476 U.S. 355 (1986)................................. 10
■ McConnell v. State Bd. of Equalization, 11 Idaho 652, 83 P. 494 (1905).................... 4, 12
■ New Jersey Dep't of Envir. Prot. v. Huber, 63 A.3d 197 (N.J. 2013).......................... 9, 14
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■ M'Culloch v. Maryland, 17 U.S. 316, 421 (1819).............................................................. 8
■ McBryde v. Comm. to Rev. Circuit Council Conduct, 264 F.3d 52, 62 (D.C. Cir. 2001) .. 9
■ Pentico v. Idaho Comm'n for Reapportionment, 169 Idaho 840, 504 P.3d 376 (2022)..... 7
■ Riggin v. Off. of Senate Fair Emp. Pracs., 61 F.3d 1563 (Fed. Cir. 1995) ........................ 9
■ State v. Heath, 168 Idaho 678, 485 P.3d 1121 (2021)...................................................... 14
■ State v. Yzaguirre, 144 Idaho 471, 163 P.3d 1183 (2007).................................................. 7
■ Wanke v. Ziebarth Const. Co., 69 Idaho 64, 202 P.2d 384 (1948)..................................... 9
■ Washington Water Power Co. v. Kootenai Env't All., 99 Idaho 875, 591 P.2d 122 (1979)
....................................................................................................................................... 8, 11
Idaho Public Utilities Commission Orders
■ Order No. 35856 ................................................................................................................. 6
■ Order No. 36207 ............................................................................................................... 11
Briefs
■ Edwards v. Idaho Public Utilities Commission and PacifiCorp, dba Rocky mount Power
Company, (Docket No. 51238), Appellant's Brief........................................................... 15
BRIEF IN SUPPORT OF PETITION FOR REHEARING—PAGE 3

STATEMENT OF THE CASE
The Idaho Public Utilities Commission (hereinafter, "Commission") submits this brief in
support of its petition for rehearing in the case of Cole v. Idaho Public Utilities Commission and
PacifiCorp d/b/a Rocky Mountain Power Company,No. 51148 (December 20,2024) (hereinafter,
"Opinion"). Although the Opinion affirms the Commission's orders dismissing Cole's complaint
and denying her motion for reconsideration, it strips the Commission of legislatively granted
authority and establishes a flawed process for reviewing constitutional issues associated with
Commission orders. This conflicts with statute and this Court's precedent. Accordingly,rehearing
is warranted.
By holding that the Commission cannot resolve constitutional questions, the Opinion
deprives the Commission of authority it needs to effectively administer the Public Utilities Law,
Idaho Code §§ 61-101, et seq. This is inconsistent with the authority granted to the Commission
by statute. See Idaho Code § 61-501 (granting the Commission the authority "to do all things
necessary to carry out the spirit and intent of' the Public Utilities Law). Additionally, by
authorizing the consideration of constitutional issues raised for the first time on appeal from a
Commission order, the Opinion is inconsistent with both the scope of this Court's review under
Idaho Code § 61-629, and this Court's precedent. See McConnell v. State Bd. of Equalization, 11
Idaho 652, 655, 83 P. 494, 497 (1905);Idaho Power Co. v. Tidwell, 164 Idaho 571, 575, 434 P.3d
175, 179 (2018). Moreover, this blanket error preservation exception establishes an appellate
process in which constitutional issues will likely be presented through underdeveloped legal
arguments with a record and factual findings inadequate for this Court to properly perform its
reviewing function.
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Upon rehearing, the Opinion should be modified to provide that 1) the Commission has
authority to address constitutional questions bearing on its jurisdiction or presented as part of a
parry's claim for relief the Commission has statutory authority to provide; and 2) constitutional
questions that can be addressed on appeal of a Commission order must be raised at the Commission
level to be properly preserved for appeal.Alternatively,the Court could remove discussion of these
issues from the Opinion entirely, leaving their further development for a later appropriate case.
In January of 2023, Ms. Cole contacted Rocky Mountain Power(hereinafter"Company"),
alleging that her electric meter was cross-connected with her neighbor's, resulting in Ms. Cole
being charged for her neighbor's higher power consumption.R.Vol I,p. 5. According to Ms. Cole,
the Company's initial inspection indicated that her meter was cross-connected. Later in January,
the Company dispatched a technician, who Ms. Cole alleged uncrossed the meters. Id. Ms. Cole
also stated that a credit was subsequently applied to her account to remedy overbilling resulting
from the ostensible cross-connection.Id.
However, after discovering that its technician had not performed the proper test to
determine whether Ms. Cole's meter was cross-connected, the Company performed two breaker
tests, both of which indicated that Ms. Cole's meter was not cross-connected. Id. at 19.
Accordingly, the Company rescinded the credit to Ms. Cole's account, instead offering her a
smaller$450 credit for any inconvenience due to its initial misunderstanding.Id. at 21.
On March 16, 2023, Ms. Cole filed a Formal Complaint with the Commission regarding
the alleged cross-connection of her meter. Ms. Cole alleged that she had been overcharged for her
neighbor's higher power consumption because their meters were cross-connected. Id. at 5. Ms.
Cole requested compensation for costs arising from the alleged cross-connection of her electric
meter.Id.
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On July 24, 2023, the Commission issued Order No. 35856. Id. at 39. After reviewing the
record, the Commission dismissed Ms. Cole's Complaint finding that Ms. Cole had"not provided
anything in the record to substantiate that she was overcharged." Id. at 41. Cole moved for
reconsideration of the dismissal, which the Commission denied. Id. at 62-67.
On December 20, 2024, this Court issued the Opinion, affirming the Commission's orders
dismissing Cole's complaint and denying her motion for reconsideration. However, in doing so,
the Opinion addressed the Commission's authority to resolve constitutional questions and
established a blanket exception to error preservation requirements for constitutional arguments
raised for the first time on appeal stating, in pertinent part:
This Court does not normally address arguments raised for the first time on appeal.
At the same time, the Commission does not possess the authority to resolve
constitutional questions. See I.C. § 61-501 (investment of authority); I.C. § 61-502
(authority to set rates); I.C. § 61-503 (authority to investigate rates, charges, and
practices). Thus, in this unique circumstance, Cole's arguments can be raised for
the first time on appeal. See Allen v. Partners in Healthcare, Inc., 170 Idaho 470,
479-80, 512 P.3d 1093, 1102-03 (2022) (addressing merits of constitutional
challenge to Idaho Industrial Commission for the first time on appeal). That said,
we do not reach the merits because Cole's arguments have been waived on other
grounds.
Cole, at 6.
On January 9,2025,the Commission timely petitioned for rehearing for the limited purpose
of addressing this portion of the Opinion.
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ARGUMENT
A. The Opinion deprives the Commission of statutory authority necessary for it to
effectively administer the Public Utilities Law.
The Opinion states that the Commission lacks authority to resolve constitutional questions.
Cole, at 6. To support this conclusion, the Opinion cited various Idaho statutes that vest the
Commission with authority to, among other things, set and investigate the rates public utilities
charge for service. Id. Although the statutes cited in the Opinion do not expressly mention the
authority to address constitutional questions, Idaho Code § 61-501 grants the Commission
authority to address constitutional challenges bearing on its jurisdiction and certain "as applied"
constitutional challenges, as described below.
The Idaho legislature created the Commission to supervise and regulate public utilities.
Idaho Code § 61-501 (vesting the Commission with the "power and jurisdiction to supervise and
regulate"public utilities in Idaho).Additionally,as a creature of statute,the Commission is limited
to the authority provided by statute.McNeal, 142 Idaho at 691, 132 P.3d at 448. Thus,whether the
Commission is vested with authority to address constitutional questions is an issue of statutory
interpretation.
The goal of statutory interpretation is to derive the intent of the legislative body that
adopted the act. Pentico v. Idaho Comm'n for Reapportionment, 169 Idaho 840, 844, 504 P.3d
376, 380 (2022). The best indicator of legislative intent is the statutory text itself. State v.
Yzaguirre, 144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007).
To ensure that the Commission can fulfill its legislatively defined purpose, the Legislature
vested the Commission with authority to not only set rates and adjudicate complaints alleging acts
or omission by any public utility in violation of any provision of law or of any order or rule of the
commission, but also "to do all things necessary to carry out the spirit and intent of the Public
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Utilities Law. See Idaho Code §§ 61-501; 61-612. It is this latter elastic grant of authority that
authorizes the Commission to address certain constitutional issues that arise in connection with an
exercise of its authority.
That the Legislature expressly authorized this Court to review whether a Commission order
violated the appellant's constitutional rights demonstrates that the Legislature intended for
Commission orders to respect those rights. See Idaho Code § 61-629 (authorizing this Court to
review on appeal whether a Commission order violated the appellant's constitutional rights).
Consequently, it is unreasonable to conclude that the Legislature intended for the Commission to
exercise its statutory authority without considering whether the application of that authority
violates a party's rights under the constitution of the United States or of the State of Idaho. Such a
conclusion would require a party to suffer a violation of its constitutional rights and then expend
the time and resources on an appeal to redress that violation when it could have been avoided
entirely had it been presented to the Commission in the first instance.
The Commission does not contend that Idaho Code § 61-501 provides it authority to
address free standing constitutional questions independent of any statutory duty or function of the
Commission assigned to it under the Public Utilities Law. Indeed, this Court has traditionally
looked to more specific provisions of the Public Utilities Law to map the contours of the
Commission's authority. See Washington Water Power Co. v. Kootenai Env't All., 99 Idaho 875,
882, 591 P.2d 122, 129 (1979). However, like the elastic grant of authority provided to Congress
by the Necessary and Proper Clause of the U.S. Constitution,see M'Culloch v. Maryland, 17 U.S.
316, 421 (1819), Idaho Code § 61-501 authorizes the Commission to take all lawful,
constitutionally sound, and appropriate measures that are plainly adapted to carrying out the spirit
and intent of those powers expressly granted to it under the Public Utilities Law.
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Carrying out the spirit and intent of the Public Utilities law does not require the
Commission to consider all types of constitutional questions. It is well established that an
administrative body, like the Commission, lacks authority to declare a statute unconstitutional.
Johnson v. Blaine Cnty., 146 Idaho 916, 920 & n.2, 204 P.3d 1127, 1131 & n.2 (2009); Wanke v.
Ziebarth Const. Co., 69 Idaho 64, 75, 202 P.2d 384, 391 (1948). The rationale for this doctrine is
founded on considerations of separation of powers and the proper role of an administrative body.
Similarly, an administrative body effectuates the intent of the legislative body that created it, and
therefore cannot invalidate its own statutory charter or other legislative commands. See Riggin v.
Off. ofSenate Fair Emp. Pracs.,61 F.3d 1563, 1569(Fed. Cir. 1995).Notably,rather than carrying
out the spirit and intent of the Public Utilities Law, both types of constitutional challenges
discussed above seek outcomes contrary to it and, therefore, would not fall under the grant of
authority provided to the Commission under § 61-501. Accordingly, facial challenges and as-
applied constitutional challenges that seek to have the Commission act in conflict with its statutory
charter are not cognizable in Commission proceedings.
However, many as-applied constitutional challenges do not ask the Commission to act
contrary to its governing statutes. For these challenges—the ones that are relevant and necessary
to the resolution of a question concededly within [the Commission's] jurisdiction," New Jersey
Dep't of Envir. Prot. v. Huber, 63 A.3d 197, 218 (N.J. 2013), it does further the"spirit and intent"
of the Public Utilities Law for the Commission to decide the question. Idaho Code § 61-501; see
also Doe v. Sex Offender Registry Bd., 170 N.E.3d 1143, 1149(Mass.2021)("Although the agency
lacks the power to decide the constitutionality of its enabling statutes and regulations," "[w]here,
as here, a constitutional issue is closely intertwined with the facts of a specific case subject to
agency adjudication, it is appropriate for a party to raise the constitutional question in the agency
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proceeding and for the agency to assume jurisdiction").' Thus, Idaho Code § 61-501 authorizes
the Commission to consider constitutional questions presented as part of the petitioner's claim to
statutory relief that the Commission is authorized to grant. Federal preemption and rate setting are
two examples of constitutional claims that can arise during the Commission's performance of its
statutory duties.
A complex web of federal and state legal authority governs utility regulation. Just a few
examples of federal law affecting public utilities are the Federal Power Act(16 U.S.C.A. §§ 791a,
et seq.), the Natural Gas Act (15 U.S.C.A. §§ 717, et seq.), along with orders and regulations
promulgated by the Federal Energy Regulatory Commission (42 U.S.C.A. § 7172). Under the
federal preemption doctrine, these legal authorities can invalidate conflicting state laws. See
Louisiana Public Service Comm'n v. F.CC, 476 U.S. 355, 368-69 (1986) (recognizing that a
federal agency acting within the scope of its congressionally delegated authority may preempt state
regulation); see also Lewis v. State, Dep't of Transp., 143 Idaho 418, 422, 146 P.3d 684, 688 (Ct.
App. 2006). Claims of federal preemption in the utilities regulation context are not uncommon.
See, e.g.,Idaho Power Co. v.Idaho Pub. Utilities Comm'n, 102 Idaho 744, 753, 639 P.2d 442,451
(1981)(declining to hold that 16 U.S.C. § 2632 preempted state law regarding intervenor funding);
Indus. Energy Consumer Grp. v. Pub. Utilities Comm'n, 320 A.3d 437, 445-46 (Me. 2024)
(declining to address an argument that the Federal Power Act preempted a Maine Utilities
Commission order on the recovery of Net Energy Billing costs).
' Even federal regulators have this authority. New Jersey Conservation Found. v. FERC, 353 F. Supp. 3d 289, 308
(D.N.J.2018)("FERC may address threshold factual or legal questions that may accompany a constitutional claim");
see also McBryde v. Comm. to Rev. Circuit Council Conduct, 264 F.3d 52,62(D.C. Cir.2001)("[A]gencies ...have
an obligation to address properly presented constitutional claims which...do not challenge agency actions mandated
by Congress.")(cleaned up).
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Federal preemption is a constitutional issue in that it is an application of the Supremacy
Clause of the U.S. Constitution. Moreover, preemption claims can be jurisdictional when they
involve a choice of forum as opposed to choice of law. See, e.g., Fryer v. A.S.A.P. Fire & Safety
Corp., 658 F.3d 85, 90 (1st Cir. 2011). This Court has held that the Commission has authority to
determine whether it has jurisdiction. Washington Water Power Co., 99 Idaho at 879, 591 P.2d at
126 (observing that administrative bodies have authority to determine whether they have
jurisdiction over a matter). The Commission needs authority to consider constitutional preemption
claims to determine its jurisdiction and the applicability of state law to properly exercise its
regulatory authority.
Rate setting presents another salient example of a statutory obligation of the Commission
with constitutional considerations. The Commission has statutory authority to determine the rates
public utilities charge for service. Idaho Code §§ 61-502, -503. Rates set so low that they deny a
public utility the opportunity to obtain a reasonable return on its prudent investments dedicated to
serving the public are not only unjust,but also constitute an unconstitutional taking. See Duquesne
Light Co. v.Barasch,488 U.S.299,307-08(1989);Hayden Pines Water Co. v.Idaho Pub. Utilities
Comm'n, 122 Idaho 356, 358, 834 P.2d 873, 875 (1992). In this way, a constitutional issue is
inextricably bound-up in every rate setting proceeding. In addition to constitutional takings issues,
the recovery in Idaho rates of costs and expenses that a multi-state utility,like the Company,incurs
in the other states in which it operates has raised Dormant Commerce Clause issues. See
Commission Order No. 36207 (rejecting an argument that disallowing recovery in Idaho rates of
costs to comply with the Washington Climate Commitment Act violates the Dormant Commerce
Clause). Accordingly, if the Commission lacks jurisdiction to resolve constitutional issues
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connected with rates, it would be hamstrung in its effort to issue a rate setting order that respects
the constitutional rights of utility investors as the Idaho legislature intended.
B. The Opinion is inconsistent with the scope of appellate review authorized under Idaho
Code § 61-629 and this Court's precedent.
The Opinion does not suggest any limitation on the scope of constitutional issues that may
be considered for the first time on appeal, apparently indicating that even facial constitutional
challenges to the Public Utilities Law are cognizable. Cole, at 6. However, consideration of such
issues exceeds the scope of appellate review permitted under Idaho Code § 61-629 and this Court's
precedent. The Court should amend the Opinion to harmonize it with its prior precedent.
Article V, section 9 of the Idaho Constitution grants this Court appellate jurisdiction to
review Commission orders, under the conditions, scope, and procedures established by the
Legislature. Under Idaho Code § 61-629, this Court's review of Commission orders is limited to
a determination of whether the Commission "regularly pursued its authority" or violated an
appellant's constitutional rights. Less than a decade before the Commission's creation in the early
1900s, this Court noted that if it extended the review of whether an inferior tribunal, board, or
officer "regularly pursued" its authority to determine whether the Legislature could enact the
statute conferring such authority,the Court would be reviewing the Legislature's authority to enact
the enabling statute—not the exercise of authority thereunder by a tribunal, board, or office.
McConnell, 11 Idaho at 655, 83 P. at 497. Accordingly, challenges to the constitutionality of a
statute authorizing the Commission to take a certain action are not properly considered on appeal
from a Commission order under Idaho Code § 61-629. Rather,those challenges should be made in
a judicial court via a declaratory judgment action, petition for issuance of a prerogative writ from
this Court, or other proper procedural vehicle.
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C. The Opinion establishes a procedure likely to result in the presentation of constitutional
issues with underdeveloped legal arguments and inadequate factual findings for this
Court to properly perform its reviewing function.
The Opinion acknowledges that this Court generally does not address issues raised for the
first time on appeal. Cole, at 6. Following this acknowledgement, however, the Opinion cites the
Commission's perceived lack of authority to resolve constitutional questions to justify
consideration of such issues raised for the first time on appeal.2 Id. at 6. This holding should be
modified on rehearing for two reasons. First, it contradicts recent precedent from this Court
regarding constitutional claims not raised before the Commission. See Tidwell, 164 Idaho at 575,
434 P.3d at 179. Second, such a system of appellate review essentially invites parties to sandbag
before the Commission and present factually and legally underdeveloped constitutional claims for
this Court's review. This Court has disapproved of such sandbagging in other contexts. See State
v. Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010).
The Opinion creates discordance in its case law governing error preservation in appeals of
Commission orders. In Idaho Power Co. v. Tidwell, this Court declined to adjudicate a
constitutional claim because it was not raised before the Commission. 164 Idaho at 575, 434 P.3d
at 179. Instead, it adhered to its traditional rule that "constitutional issues may be considered for
the first time on appeal if such consideration is necessary for subsequent proceedings in the case,"
2 To further support this proposition,the Opinion cites Allen v. Partners in Healthcare,Inc., 170 Idaho 470,479-80,
512 P.3d 1093, 1102-03 (2022), a case in which this Court held that it could consider a constitutional issue that was
not preserved before the Idaho Industrial Commission because that body lacks authority to consider constitutional
issues.However,the statutory provisions providing for appeals of Industrial Commission orders do not limit the scope
of this Court's appellate review like those governing appeals of Commission orders. Compare Idaho Code § 61-629
(limiting review of Commission orders to a determination of whether the Public Utilities Commission "regularly
pursued [its] authority"or violated the appellant's constitutional rights) with Idaho Code § 72-732 (authorizing this
Court set aside Industrial Commission orders due to insufficient evidence,lack of jurisdiction or authority,fraud,and
factual findings that are legally insufficient to support the challenged order or award). Nor does it appear that the
Industrial Commission enjoys an elastic grant of authority like that afforded under Idaho Code§61-501.Accordingly,
Allen does not justify consideration of unpreserved constitutional issues during an appeal from a Public Utilities
Commission order.
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and declined to address the constitutional issue because no further proceedings were necessary.Id.
(quoting Murray v. Spalding, 141 Idaho 99, 101-02, 106 P.3d 425, 427-28 (2005)). The Opinion
does not explain why it departed from Tidwell. Indeed, the Opinion does not cite Tidwell at all.
Without rehearing, the inconsistency between Tidwell and the Opinion in relation to unpreserved
constitutional arguments will persist, risking confusion in future cases and Commission
proceedings.
Additionally, the Court's holding will result in underdeveloped claims being presented for
judicial review in future cases involving the Commission. Resolving constitutional questions often
requires significant legal analysis and factual development that is best accomplished in an
adversary proceeding. This Court does not sit as a factfinder in an appellate proceeding like this
one, see State v. Heath, 168 Idaho 678, 685, 485 P.3d 1121, 1128 (2021), nor can it take new or
additional evidence to resolve open factual questions relevant to a constitutional issue being
reviewed. See Idaho Code § 61-629 (prohibiting the introduction of new or additional evidence
during appeals of Commission orders). Thus, the Commission is the only forum where the facts
and associated legal arguments relevant to a constitutional issue can be fully developed for
presentation to this Court in a direct appeal of a Commission order. Indeed, requiring the claim to
be raised before the agency"may result in fact-finding or interpretation and application of statutory
processes that may obviate the need to adjudicate a constitutional question" on appeal. Huber, 63
A.3d at 218.
These concerns motivated the Arkansas Supreme Court to require all constitutional issues
(even facial challenges)to be raised before the Arkansas Public Service Commission, despite that
body lacking the ability to pass on a statute's constitutionality.AT& T Commc'ns of The Sw., Inc.
v.Arkansas Pub. Serv. Comm'n,40 S.W.3d 273,280(Ark. 2001).As the Arkansas Supreme Court
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explained, "the Commission is the only forum where a full development of the facts and law can
occur," and "without that complete development of the facts and arguments below, this court
cannot fulfill its reviewing function."Id.
A recent utilities decision from the Maine Supreme Court further illustrates the importance
of a Commission-level decision on constitutional issues. In Industrial Energy Consumer Group v.
Public Utilities Commission, a group representing industrial electric customers asserted for the
first time on appeal that the Federal Power Act preempted a rate order by the Main Public Utilities
Commission governing recovery of Net Energy Billing costs.3 320 A.3d at 446. Recognizing the
complexity that non jurisdictional preemption claims presented and the relative dearth of relevant
decisions from other jurisdictions, the Maine Supreme Court determined that a well-developed
administrative record and thorough Commission order were prerequisites for the Court to consider
the issue. Id.
In this case, the Court determined that Cole could raise her constitutional arguments for
the first time on appeal,but that she had forfeited them on other grounds. Consequently,the Court
did not have to address any substantive constitutional questions supported by underdeveloped legal
arguments or a deficient factual record. However, unless the Court amends its opinion, it is likely
only a matter of time before such a circumstance will arise.
CONCLUSION
The Commission requests that the Court revise its Opinion regarding 1)the Commission's
authority to address constitutional questions; and 2) the blanket exception to error preservation
exception recognized for constitutional issues. Rehearing should be limited to these issues, and
s The Maine Supreme Court described"Net Energy Billing"as an incentive program aimed at encouraging renewable
electric generation.Indus.Energy Consumer Grp,320 A.3d at 441 n.1.
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they should be either revised as set forth in this brief or deleted entirely, leaving their further
development for a later appropriate case.
DATED this 23rd day of January, 2025.
/s/ Adam Triplett
Adam Triplett
Deputy Attorney General
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this 23rd day of January, 2025, served a true and correct
copy of the foregoing BRIEF IN SUPPORT OF PETITION FOR REHEARING to the individuals
listed below by means of iCourt File and Serve:
Appellant,pro se
Sherry Cole [ ] U.S. Mail,postage prepaid
350 S. 12th W., #14 [ ] Certified Mail
St. Anthony, ID 83445 [X] iCourt
[ ] E-mail [e-mail]
Attorney for Respondent, PacifiCorp:
Joe Dallas [ ] U.S. Mail,postage prepaid
Rocky Mountain Power [ ] Overnight Mail
825 NE Multnomah St., Ste. 2000 [X] iCourt
Portland, OR 97232 [ ] E-mail joseph.dallaskpacificorp.com
I6 , &-NZI1n/kel"
Keri Ha er
Legal Assistant to Adam Triplett
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