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Home My WebLink About20250214Motion for Judicial Notice and to Augment the Record .pdf Electronically Filed 2/14/2025 1:40 PM Idaho Supreme Court Melanie Gagnepain,Clerk of the Court By:Corby King-Clark,Clerk RAUL R. LABRADOR Idaho Attorney General ADAM TRIPLETT DEPUTY ATTORNEY GENERAL IDAHO PUBLIC UTILITIES COMMISSION P.O. BOX 83720 BOISE, IDAHO 83720-0074 TELEPHONE: (208) 334-0318 IDAHO BAR NO. 10221 Attorney for the Respondent on Appeal, Idaho Public Utilities Commission IN THE SUPREME COURT OF THE STATE OF IDAHO SAMUEL and PEGGY EDWARDS, ) SUPREME COURT Complainants-Appellants, ) DOCKET NO. 51238-2023 V. ) IPUC CASE NO. PAC-E-23-05 IDAHO PUBLIC UTILITIES COMMISSION ) and PACIFICORP, dba ROCKY MOUNTAIN ) RESPONDENT IDAHO POWER COMPANY, ) PUBLIC UTILITIES COMMISSION'S MOTION Respondents. ) FOR JUDICIAL NOTICE AND TO AUGMENT THE RECORD COMES NOW the Respondent, Idaho Public Utilities Commission ("Commission"), and respectfully moves this Court under Idaho Rule of Evidence 201 and Idaho Appellate Rule 30 to take judicial notice of Respondent PacifiCorp's Electric Service Regulations("ESR")Nos. 7& 10 and augment the record on appeal to include them. PROCEDURAL HISTORY On February 10,2025,this Court held oral argument in the above-captioned matter.During that proceeding, the Court noted the absence of ESR Nos. 7 & 10 from the record on appeal. Undersigned counsel verbally requested that the Court take judicial notice of ESR Nos. 7 & 10 RESPONDENT IDAHO PUBLIC UTILITIES COMMISSION'S MOTION FOR JUDICIAL NOTICE AND TO AUGMENT THE RECORD 1 during oral argument. This Court provided counsel with seven days to file a written motion requesting the same. ARGUMENT Idaho Rule of Evidence 201 governs judicial notice of adjudicative facts. The Rule authorizes courts to notice facts that"can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned," and are, therefore, not reasonably disputable. I.R.E. 201. Courts may take judicial notice of such facts "at any stage of the proceeding."Id. However, matters judicially noticed on appeal must be augmented into the settled record by motion under I.A.R. 30(a). Ellis v. Ellis, 167 Idaho 1, 5, 467 P.3d 365, 369 n. 2 (2020). Counsel notes that the copies of ESR Nos. 7 & 10 attached to this motion as exhibits do not strictly comply with the requirements of I.A.R. 30(a) as they do not bear a file stamp showing they were presented to the Commission in this proceeding. Additionally, although ESR No. 7 was considered by the Commission as indicated on pages 170 and 387 of the record on appeal,ESR No. 10 was not raised before the Commission. Accordingly, counsel cannot cite a portion of the record showing that the Commission considered ESR No. 10 as required by I.A.R. 30(a). In addition to the requirements of I.A.R. 30(a),there is an additional procedural hurdle that must be addressed. Specifically, the limitations on expanding the record on appeal contained in Idaho Code § 61-629. Although Idaho Code § 61-629 prohibits this Court from taking additional evidence on appeal, taking judicial notice of ESR Nos. 7 & 10 will not violate this prohibition as the purpose of judicial notice is to establish facts without the presentation of evidence. See Castell v. Money Metals Exch., LLC., 560 P.3d 990, 997 (Idaho 2024); 29 Am. Jur. 2d Evidence § 24 (observing that judicial notice is a "rule of convenience" that is "intended to avoid the formal introduction of evidence" where the fact to be proved is not subject to reasonable dispute). Accordingly,judicial notice of ESR Nos. 7 & 10 will not add evidence to the record on appeal. The Commission quoted a portion of ESR No. 7 in its orders dismissing the Edwards' complaint and denying reconsideration of that dismissal, a copy of that ESR was never formally entered into the record. See R. at 170 & 387.Additionally, ESR No. 10,which contains provisions RESPONDENT IDAHO PUBLIC UTILITIES COMMISSION'S MOTION FOR JUDICIAL NOTICE AND TO AUGMENT THE RECORD 2 authorizing PacifiCorp to terminate service without a customer's permission, was first raised in the Appellant's reply brief 1 Accordingly, ESR No. 10 is also absent from the record on appeal. These documents are publicly accessible on the Commission's website at the following url: https://puc.idaho.gov/Fileroom/PublicFiles/ELEC/PAC/General/Otarif`f/Pacificorp%20dba%20R ocky%20Mtn%2OPower%20ID%2ORules.pdf They can also be accessed from the front page of the Commission's website, https://puc.idaho._gov/, by clicking "Tariffs, Price Lists & Filing Instructions" on the "Laws & Rules" drop down menu and then selecting the link "Approved Tariffs & Price Lists,"then "Electric Tariffs", and finally the "Electric Service Regulations" link for PacifiCorp dba Rocky Mountain Power. Accordingly, their content can be accurately and readily determined from a source whose accuracy cannot reasonably be questioned. The "facts"proposed for judicial notice that are contained within these documents are the text of the provisions themselves. Consequently, ESR No. 7 and 10 are proper subjects for judicial notice. Copies of the relevant portions of ESR Nos. 7 & 10 are attached to this motion as Exhibits 1 and 2, respectively. CONCLUSION The Commission respectfully requests that this Court take judicial notice of PacifiCorp's Electronic Service Regulation Nos. 7 & 10. Respectfully submitted this 14th day of February 2025. Adam Triplett Deputy Attorney General Attorney for Respondent on Appeal, Idaho Public Utilities Commission 1 The Commission's brief erroneously indicates that ESR No. 6 contains the provisions of PacifiCorp's tariff "authorizing it to terminate service when a customer obstructs access to an electric meter."Resp. IPUC's Br. at 12. The undersigned counsel withdraws and affirmatively disavows this assertion.Rather,it is ESR No. 10 that enumerates the reasons why PacifiCorp may involuntarily terminate a customer's service. RESPONDENT IDAHO PUBLIC UTILITIES COMMISSION'S MOTION FOR JUDICIAL NOTICE AND TO AUGMENT THE RECORD 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 141h day of February, 2025, I served the foregoing Motion forJudicial Notice and to Augment the Record,in Supreme Court Docket No. 51238-2023, by forwarding a copy thereof, to the following, via the manner indicated: Appellants,pro se Samuel Z. and Peggy M. B. Edwards ❑ U.S. Mail, postage prepaid 333 Shoshone Ave. ❑ Personal Delivery Rexburg, ID 83440 ❑ iCourt ❑X E-Mail pegandsam(d),gmail.com Attorney for Respondent on Appeal Pacificorp d/b/a Rocky Mountain Power Company Joe Dallas ❑ U.S. Mail, postage prepaid Senior Attorney Rocky Mountain Power El Personal Delivery 825 NE Multnomah, Ste. 2000 ® iCourt Portland, OR 97232 ❑ E-Mail joseph.dallas&pacificorp.com 4\/ L�'.-ftZ1V✓kt.P Keri J. ffawker Legal Assistant to Adam Triplett RESPONDENT IDAHO PUBLIC UTILITIES COMMISSION'S MOTION FOR JUDICIAL NOTICE AND TO AUGMENT THE RECORD 4 IDAHO PUBLIC UTILITIES COMMISSION ROCKY MOUNTAIN Approved Effective POWER Aug. 28, 2006 Sept. 15,2006 A DIVISION OF PACIFICORP Jean D.Jewell Secretary I.P.U.C.No. 1 Original Sheet No.7R.1 ELECTRIC SERVICE REGULATION NO.7 STATE OF IDAHO Metering 1. INSTALLATION All meter locations and provisions for connecting metering equipment are subject to approval by the Company. Meter locations shall be consistent with good engineering and safety practices and shall comply with appropriate codes and standards. The Company will furnish and maintain all meters and other metering equipment. The Customer will furnish and maintain the meter base and other accessories required by the Company, necessary for measuring the electric power and energy used by the Customer. Separate premises,even though owned by the same Customer,will not be supplied through the same meter. Service to new multi-unit residential complexes where residency is permanent in nature shall be provided only if it is possible to directly meter and bill the occupant of each dwelling unit. Multiple residential meters will not be required for those multi-family structures presently receiving residential service through a single meter for so long as service to that structure is not increased or altered. Demand meters may be installed on any account when the nature of the Customer's equipment and operation indicates that a demand meter may be required for correct application of the electric service schedule. 2. FAILURE TO REGISTER If any meter fails to register correctly the amount of electric power or energy used by the Customer, the amount of such use will be estimated by the Company from the best available information. If the Company finds that the meter has been tampered with, the Customer shall pay for such estimated usage together with the expense of restoring the Company's equipment to its normal operating condition. (Continued) Submitted Under Advice Letter No.06-06 ISSUED: August 14,2006 EFFECTIVE:September 15,2006 EXHIBIT 1 IDAHO PUBLIC UTILITIES COMMISSION _ROCKY MOUNTAIN Approved Effective POWER Aug. 28, 2006 Sept. 15, 2006 A DIVISION OF PACIFICORP Jean D.Jewell Secretary I.P.U.C.No. 1 Original Sheet No. 10R.1 ELECTRIC SERVICE REGULATION NO. 10 STATE OF EDAHO Termination of Service and Payment Arrangements 1. DENIAL OR TERMINATION OF SERVICE WITH PRIOR NOTICE The Company may deny or terminate service to a Customer or Applicant without their permission, but only after adequate notice has been given, for one or more of the following reasons: (a) Nonpayment of undisputed delinquent bills or paid a delinquent bill with any check not honored by the bank or, made an electronic payment drawn on an account with insufficient funds. (b) Failure to make a security deposit, make an advance payment, make an installment payment on a deposit where it is required. (c) Failure to abide by the terms of a payment arrangement. (d) Misrepresentation of his/her/its identity for the purpose of obtaining utility service. (e) Willfully preventing or denying the Company access to the meter. (f) As prescribed by relevant State or other applicable standards, willfully wasting service through improper equipment or otherwise. (g) The Applicant or Customer is a minor not competent to contract for service. Nothing in this rule requires the Company to connect service for a Customer or Applicant who owes money on an existing account or from a previous account. (Continued) Submitted Under Advice Letter No. 06-6 ISSUED: August 14,2006 EFFECTIVE: September 15,2006 EXHIBIT 2