20240313RESPONDENT BRIEF OF THE IDAHO PUBLIC UTILITIES COMMISSION.pdf

IN THE SUPREME COURT OF THE STATE OF IDAHO

______________________________________________

Appeal from Idaho Public Utilities Commission
Commissioner Eric Anderson, Presiding
______________________________________________

RAÚL R. LABRADOR
Idaho Attorney General

Michael Duval, ISB #11714
Idaho Public Utilities Commission
11331 W. Chinden Blvd.
Building 8, Suite 201-A
Boise, ID 83704
Attorney for Respondent Idaho PUC

Sherry Cole
350 S. 12th W., #14
St. Anthony, ID 83445
Petitioner-Appellant, pro se

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

SHERRY COLE,

Petitioner – Appellant,

v.

IDAHO PUBLIC UTILITIES COMMISSION
and PACIFICORP, d/b/a ROCKY MOUNTAIN
POWER COMPANY,

Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
Supreme Court
Docket No. 51148-2023

Idaho Public Utilities Commission No.
PAC-E-23-12

RESPONDENT BRIEF OF THE
IDAHO PUBLIC UTILITIES
COMMISSION
Electronically Filed3/13/2024 4:38 PMIdaho Supreme CourtMelanie Gagnepain, Clerk of the CourtBy: Brad Thies, Clerk
i

TABLE OF CONTENTS

I. STATEMENT OF THE CASE ........................................................................................ 1
II. COURSE PROCEEDINGS ............................................................................................. 1
III. STATEMENT OF FACTS ............................................................................................. 2
1. The Complaint ......................................................................................................... 2
2. The Company’s Answer .......................................................................................... 3
3. Final Order No. 35856 ............................................................................................. 4
4. Petition for Reconsideration .................................................................................... 4
5. Staff’s Affidavit ....................................................................................................... 5
6. Reconsideration Order No. 35903 ........................................................................... 5
IV. ISSUES ON APPEAL ..................................................................................................... 6
1. Whether the Commission regularly pursued its authority in dismissing Ms. Cole’s
Complaint ...................................................................................................................... 6

2. Whether Ms. Cole waived her remaining arguments on appeal by failing to raise
them below .................................................................................................................... 6

3. Whether Ms. Cole is entitled to attorney fees on appeal ......................................... 6
V. STANDARD OF REVIEW ............................................................................................. 6

ii

VI. ARGUMENT ................................................................................................................... 8
1. The Commission regularly pursued its authority in dismissing Ms. Cole’s
Complaint ...................................................................................................................... 8

2. Ms. Cole waived her remaining arguments on appeal by failing to raise them
below ........................................................................................................................... 10

3. Ms. Cole is not entitled to attorney fees on appeal ................................................ 12
VII. CONCLUSION .............................................................................................................. 12
CERTIFICATE OF SERVICE .............................................................................................. 14
iii

TABLE OF AUTHORITIES

Idaho Constitution
▪ Idaho Const. art. V, § 9 ...................................................................................................... 6
Statutes
▪ Idaho Code Section 61-629 ...................................................................................... 6, 7, 11
▪ Idaho Code Section 61-624 ................................................................................................ 7
Caselaw
▪ Eagle Water Co. v. Idaho Pub. Utilities Comm’n, 130 Idaho 314, 316-17, 940 P.2d 1133,
1135-36 (1997) ............................................................................................................. 8, 11
▪ Idaho Power Co. v. Idaho Pub. Utilities Comm’n, 155 Idaho 780, 786, 316 P.3d 1278,
1284 (2013) ........................................................................................................................ 7
▪ Idaho Power Co. v. Tidwell, 164 Idaho 571, 434 P.3d 175 (2018) ................................... 7
▪ In re Jay Hulet’s Complaint Regarding Idaho Power Co.’s Irrigation Buy-Back Program,
138 Idaho 476, 478, 65 P.3d 498, 500 (2003) .............................................................. 7, 10
▪ Intermountain Gas Co. v. Idaho Pub. Utilities Comm’n, 97 Idaho 113, 127, 540 P.2d 775,
789 (1975) .......................................................................................................................... 7
▪ Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 113, 524 P.2d 1338, 1341
(1974) ............................................................................................................................... 11
▪ Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009) ............................... 12
▪ Pandrea v. Barrett, 160 Idaho 165, 171, 369 P.3d 943, 949 (2016) ................................. 7
▪ Westby v. Schaefer, 157 Idaho 616,338 P.3d 1220 (2014) ................................................ 7
Administrative Rules
▪ Idaho Appellate Rule 35 ................................................................................................... 12
▪ IDAPA 31.01.01.331.01 ............................................................................................... 6, 10

iv

Idaho Public Utilities Commission Orders
▪ Order No. 35856 ................................................................................. 1, 2, 4, 5, 8, 9, 10, 12
▪ Order No. 35903 ......................................................................................... 1, 2, 5, 9, 10, 12

RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
1

COMES NOW the Respondent on Appeal, the Idaho Public Utilities Commission
(“Commission”) and submits this opposition to the brief filed by Petitioner-Appellant (“Cole
Brief”) Sherry Cole (“Ms. Cole”), pro se. The Commission respectfully requests that the Court
affirm the Commission’s Final Order No. 35856 and Reconsideration Order No. 35903.
I. STATEMENT OF THE CASE
This case comes before the Idaho Supreme Court (“Court”) due to Ms. Cole’s appeal of
the factual findings of Commission Final Order No. 35856; in this order, the Commission found
that Ms. Cole’s objection was unsubstantiated when she objected to the reversal of a bill credit by
Rocky Mountain Power, a division of PacifiCorp (“Company”). Ms. Cole is also appealing the
Commission’s denial of her Petition for Reconsideration; this was denied when the Commission
noted that Ms. Cole failed to show how Final Order No. 35856 was “unreasonable, unlawful,
erroneous or not in conformity with the law.” R. Vol I, at 65-67.
II. THE COURSE OF PROCEEDINGS
On March 16, 2023, Ms. Cole filed a formal complaint (“Complaint”) and requested that
the Commission order the Company to compensate her for losses she claimed were incurred due
to an allegedly cross-connected electric meter. Id. at 5. Ms. Cole alleged that she was overcharged
for her neighbor’s higher power consumption due to the cross-connection. Id. The Commission
issued a Summons and Complaint directing the Company to respond to Ms. Cole’s Complaint. Id.
at 9.
On June 8, 2023, the Company filed its Answer and Motion to Dismiss (“Answer”). The
Company noted that, while initially agreed with Ms. Cole regarding the alleged cross-connection,
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
2

that later, more accurate, testing led the Company to believe that no cross-connection had ever
occurred. Id. at 17 and 19. The Company provided billing information to support its claim. Id. at
24-37.
On July 24, 2023, the Commission issued Final Order No. 35856 finding that Ms. Cole had
not substantiated her claim that a cross-connection occurred. Id. at 41.
On July 28, 2023, Ms. Cole filed a document intended to be her Petition for
Reconsideration. Id. at 47. On August 14, 2023, Commission Staff (“Staff”) filed an affidavit
regarding Staff’s analysis of Ms. Cole’s bills spanning the timeframe Ms. Cole believed that the
meters were cross-connected; Staff argued that Ms. Cole’s billing history showed that no cross-
connection had taken place. Id. at 58.
On August 22, 2023, the Commission issued Reconsideration Order No. 35903 denying
Ms. Cole’s request for reconsideration. Id. at 65-67. The Commission found that Ms. Cole had
failed to show how Final Order No. 35856 was “unreasonable, unlawful, erroneous or not in
conformity with the law.” Id. at 65-67.
On September 18, 2023, Ms. Cole filed a Notice of Appeal. Id. at 68.
III. STATEMENT OF FACTS
1. The Complaint.
Ms. Cole alleged that the Company cross-connected her meter with her neighbor’s resulting
in Ms. Cole being charged for her neighbor’s higher power consumption. R. Vol I, p. 5. Ms. Cole
stated that the Company’s initial inspection supported Ms. Cole’s cross-connection allegation. Id.
Ms. Cole stated that Company then told her a workman would be out to fix the issue. Id. In January
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
3

2023, the Company dispatched a technician. Ms. Cole alleged that this technician then fixed a
cross-connection in the meters. Id. Ms. Cole represented she was provided a written report dated
January 25, 2023. Id. Ms. Cole also stated that a $1,620.08 credit was subsequently applied to her
account. Regarding her issue with the Company, Ms. Cole stated that “[w]e were good at this
point.” Id.
However, Ms. Cole explained that when she received her bill for February, the $1,620.08
credit had been reversed. Id. Upon inquiry, Ms. Cole stated that the Company told her that her
meter had never been cross-connected which is why the credit was reversed. Id. Ms. Cole stated
that the Company offered her a $450 credit as a sign of goodwill. Id. Ms. Cole requested that the
Commission order the Company to reinstate the $1,620.08 credit. Id. at 6.
2. The Company’s Answer.
The Company admitted that its own technician did not initially utilize the proper process
to accurately evaluate Ms. Cole’s meter. The Company stated that this led to an erroneous belief
and representation that Ms. Cole’s electric meter had been cross-connected with her neighbor’s.
Id. at 17. The Company explained that the previous technician should have performed a breaker
test. Id. The Company explained that a breaker test:
involves temporarily disconnecting the electrical supply to each meter and
observing any impact on neighboring meters to identify potential cross-
connections. The main service disconnect breaker is utilized, if available, to turn
off the electrical supply downstream from a specific meter, allowing an individual
to assess what is served (or not served) by that meter. This helps in identifying any
cross-connections or misalignments in the electrical wiring between meters.

RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
4

Id. at 18. The Company stated that once the breaker test was performed, the results revealed that
Ms. Cole’s meter was working properly and was not cross-connected. Id. at 19. The Company
represented it conducted a second breaker test and confirmed there was no cross-connection. Id.
The Company stated that it offered Ms. Cole a $450 credit for any inconvenience due to its initial
misunderstanding. Id. at 21. However, the Company maintained that Ms. Cole had not identified
any legal authority that would require the Company to provide Ms. Cole with any compensation.
Id. at 22. The Company’s Answer also contained billing information contextualizing its claims. Id.
at 24-37.
3. Final Order No. 35856.
On July 24, 2023, the Commission issued Final 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.
4. Petition For Reconsideration.
Ms. Cole asked that the Commission reconsider its decision to dismiss the Complaint. Id.
at 47. Ms. Cole largely restated the narrative of her Complaint and disputed certain exhibits from
the Answer. Id. at 48-49. Ms. Cole requested that the Commission order reimbursement of the
money she claimed to have been overcharged for the alleged cross-connection. Id. at 50.
Ms. Cole also attached the Company’s letter that initially, but incorrectly, informed her
that her meter was cross-connected, and that she would be granted a credit of $1,262.521 applied

1 The January 25, 2023, letter stated that her credit would be $1,262.52. The “Adjustments” portion of Ms. Cole’s
second attached bill lists a “+1,621.08” number which appears to be where Ms. Cole arrived at her $1,620.08 request
for compensation. R. Vol I, p. 56.
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
5

to her next bill. Id. at 52. Ms. Cole also provided two billing statements that showed a credit
initially being applied to her account balance. Id. at 54-56.
5. Staff’s Affidavit.
On August 14, 2023, Staff filed the Affidavit of Jon Kruck (“Affidavit”), which represented
that Staff reviewed five years of Ms. Cole’s utility bills, both before and after the period when Ms.
Cole alleged there was a meter cross-connection. Id. at 58. Staff did not believe the data from these
utility bills supported a finding that Ms. Cole’s meter was ever cross-connected. Id. Staff compared
the months after the alleged cross-connection with the same months from the previous years (the
period Ms. Cole stated that her meter was cross-connected with her neighbor’s meter). Staff could
see no material change in consumption which would indicate that there was ever a cross-
connection. Id. at 59. Staff also correlated this data with the average monthly temperature for each
comparable month in each year. This comparison increased Staff’s confidence that the immaterial
differences in price when comparing one month to the same month from another year could be
explained by temperature fluctuations in the average monthly temperature. Id. Accordingly, Staff
concluded that the billing data did not support a finding that the meters in question were cross-
connected. Id. at 58-59.
6. Reconsideration Order No. 35903.
The Commission found that Ms. Cole’s Petition did not “meet the substantive requirements
for a petition for reconsideration” as she “largely reiterate[d] information that was already in the
Complaint. . . . [F]acts regarding the Company’s previous actions were already known by the
Commission and factored into the Commission’s decision in Order No. 35856.” Id. at 66.
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
6

Accordingly, the Commission denied Ms. Cole’s Petition for Reconsideration for her failure to
engage with the requirements for a reconsideration of her case.2 Id. 65-67.
IV. ISSUES PRESENTED ON APPEAL
The Commission restates the issues on appeal as follows:
1. Whether the Commission regularly pursued its authority in dismissing Ms. Cole’s
Complaint.
2. Whether Ms. Cole waived her remaining arguments on appeal by failing to raise them
below.
3. Whether Ms. Cole is entitled to attorney fees on appeal.
V. STANDARD OF REVIEW
The Idaho Constitution grants the Court jurisdiction to review any order of the public
utilities commission, and it grants the legislature the authority to “provide conditions of appeal,
scope of appeal, and procedure on appeal from orders of the public utilities commission.” Idaho
Const. art. V, § 9. “Pursuant to that authority, the legislature has enacted Idaho Code section 61–
629 which limits the scope of review to determining 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.” Idaho Power Co.

2 The Idaho Public Utilities Commission Rules of Procedure provide that: “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
31.01.01.331.01.
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
7

v. Idaho Pub. Utilities Comm’n, 155 Idaho 780, 786, 316 P.3d 1278, 1284 (2013) (internal
quotation omitted).3 Idaho Code § 61-629 provides in full:
No new or additional evidence may be introduced in the Supreme Court, but the
appeal shall be heard on the record of the commission as certified by it. 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.
As part of its review, the Court may consider whether the Commission “abused or exceeded
its authority or made findings unsupported by substantial evidence.” Intermountain Gas Co. v.
Idaho Pub. Utilities Comm’n, 97 Idaho 113, 127, 540 P.2d 775, 789 (1975). “The Commission’s
findings of fact are to be sustained unless it appears that the clear weight of the evidence is against
its conclusions or that the evidence is strong and persuasive that the Commission abused its
discretion.” In re Jay Hulet’s Complaint Regarding Idaho Power Co.’s Irrigation Buy-Back
Program, 138 Idaho 476, 478, 65 P.3d 498, 500 (2003).

3 In Idaho Power Co. v. Tidwell, 164 Idaho 571, 434 P.3d 175 (2018), the Court utilized the following standard of
review: “‘When we review a [lower tribunal’s] decision to grant or deny a motion for reconsideration, we use 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) (quoting Westby v. Schaefer, 157 Idaho 616, 621, 338 P.3d 1220, 1225 (2014)).”
The Commission has been unable to find any other instance of the Court utilizing this standard with respect to appeals
from the Idaho Public Utilities Commission.

RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
8

“The burden is on the party challenging the Commission’s findings to show that they are
unsupported by the evidence.” Id.
The Court will not consider arguments raised for the first time on appeal:
It is a well settled rule that in an appeal from the commission matters may not be
raised for the first time on appeal and that where the objections were not raised in
the petition for rehearing, they will not be considered by this court. The rationale
behind the rule is to afford IPUC the opportunity to rectify any mistake before
presenting the issue to the Supreme Court.
Eagle Water Co. v. Idaho Pub. Utilities Comm’n, 130 Idaho 314, 316-17, 940 P.2d 1133, 1135-36
(1997) (internal citation and quotation omitted).
VI. ARGUMENT
1. The Commission regularly pursued its authority in dismissing Ms. Cole’s
Complaint.
To the extent that Ms. Cole presents any arguments on appeal concerning any errors in the
Commission’s orders, it appears that Ms. Cole contends that the orders were not supported by
sufficient evidence:
The Decisions made by the Idaho Public Utilities Commission are in error due to
ignoring the facts of the case and accepting perjured sworn statement of the
commission investigator and false information provided by Rocky Mountain Power
when the appellant, Sherry Cole’s submitted evidence predated Rocky Mountain
Powers false claim.
Cole Brief at 10-11. Ms. Cole is incorrect.
In its Final Order No. 35856, the Commission stated: “Having reviewed the Complaint,
Answer, and the Petitioner’s reply, we dismiss the Complaint. Other than her statements, the
Petitioner has not provided anything in the record to substantiate that she was overcharged.” R.
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
9

Vol I, p. 41. At the time of the Commission’s decision, Ms. Cole had not submitted any evidence
outside of her written statements in her Complaint to support her claims. Id. 5-6.
Upon reconsideration, Ms. Cole submitted evidence consisting of a letter from the
Company indicating a modification had been made to her bill, and copies of her billing statements
from January and February of 2023. Id. 47-57. Notably, prior to reconsideration the two billing
statements had already been submitted by the Company in its Answer to the Complaint. Id. 24-31.
Further, the letter from the Company indicating a modification was made to Ms. Cole’s bill
pertained to an undisputed fact, as the Company did not contend that an initial modification had
not been made, rather that the initial modification was in error. Id. 16-22. During the
reconsideration proceedings, Staff submitted the affidavit of Utilities Compliance Investigator Jon
Kruck, who performed an analysis of the monthly billing from February 27, 2018, through August
2, 2023. Id. 58-59.
In its Reconsideration Order No. 35903, the Commission reasoned:
The Petition largely reiterates information that was already in the Complaint—
including information that shows that, at one point, the Company believed that the
Petitioner’s meter was cross-connected and provided the Petitioner with a bill
credit. After investigation, the Company determined that no cross-connection
occurred and reversed the bill credit. Staff’s analysis corroborated the Company’s
assertion that there was no cross-connection. These facts regarding the Company’s
previous actions were already known by the Commission and factored into the
Commission’s decision in Order No. 35856. The Petitioner has not presented
sufficient evidence to show that her meter was cross-connected, or that she was
overcharged for electric service.
Id. 66. Further, the Commission evaluated the evidence submitted and held that Ms. Cole failed to
argue that Final Order No. 35856 was “unreasonable, unlawful, erroneous, or not in conformity
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
10

with the law” as required by the Public Utilities Commission’s Rules of Procedure, IDAPA
31.01.01.331.01; R. Vol I, p. 66.
The record shows that the Commission fully evaluated all evidence presented in the
underlying record before making its determination—including the Company’s information
concerning the breaker test and all evidence offered by Ms. Cole. To the extent that the Court may
view the evidence in the record differently, “[t]he Court will not displace the Commission’s
findings of fact when faced with conflicting evidence, even though the Court would have made a
different choice had the matter been before it de novo.” In re Jay Hulet’s Complaint, 138 Idaho at
478 (internal quotation omitted).
The record shows that the Commission regularly pursued its authority in dismissing Ms.
Cole’s Complaint. The Commission pursued its authority in the Commission’s Final Order No.
35856 (dismissing the Complaint for lack of evidence to support the claim). The Commission
likewise pursued its authority in the Commission’s Reconsideration Order No. 35903 (dismissing
Ms. Cole’s Petition for Reconsideration for lack of evidence and failure to meet the substantive
requirements of the Public Utilities Commission’s Rules of Procedure).
For those reasons, the Commission’s Final Order No. 35856 and Reconsideration Order
No. 35903 should be affirmed.
2. Ms. Cole has waived her remaining arguments on appeal by not raising them
below.
For the first time on appeal, Ms. Cole presents arguments concerning regulatory takings
and violations of the Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
11

States. Cole Brief at 12-19.4 Ms. Cole waived those arguments by not raising them before the
Commission, and those arguments are not properly before the Court. While Idaho Code § 61-629
does allow the Court to consider “whether the order appealed from violates any right of the
appellant under the constitution of the United States or of the state of Idaho,” section 61-629
provides the “scope” of the review for issues properly raised before the Court, not an open door
for all constitutional issues to be argued for the first time on appeal. As set forth above, the Court
will not consider arguments raised for the first time on appeal:
It is a well settled rule that in an appeal from the commission matters may not be
raised for the first time on appeal and that where the objections were not raised in
the petition for rehearing, they will not be considered by this court. The rationale
behind the rule is to afford IPUC the opportunity to rectify any mistake before
presenting the issue to the Supreme Court.
Eagle Water Co., 130 Idaho at 316-17 (internal citation and quotation omitted).
The purpose of an application for the rehearing provided by statute, and it must be
presumed to have a useful purpose, is to afford an opportunity to the parties to bring
to the attention of the Commission, in an orderly manner, any question theretofore
determined in the matter, and thereby afford the Commission an opportunity to
rectify any mistake made by it before presenting the same to the Supreme Court.
Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 113, 524 P.2d 1338, 1341 (1974)
(internal citations and quotations omitted).

4 There is one area Ms. Cole discusses in her brief related to regulatory takings that warrants clarification. Due to the
Commission deciding in the Company’s favor in the underlying case, Ms. Cole alleges without evidence that improper
conduct between the Company and the Commission resulted in a Public Private Partnership. Cole Brief at 10. To
partially illustrate the foundations of this claim, Ms. Cole states that the Commission’s attorney is also listed as the
Company’s attorney in the Court’s i-Court system. Id. at 9. The source of this mistake is unclear, but the i-Court
information depicting this mistake was furnished to the Court’s staff by Ms. Cole—not the Commission or the
Company. It is worth mentioning that the Company and the Commission are represented by separate and unrelated
counsel.
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
12

In this case, the Commission by its orders denied Ms. Cole’s Complaint and Petition for
Reconsideration on July 24, 2023, and August 22, 2023, respectively. Ms. Cole appealed to the
Court on September 18, 2023. After a close review of the record, the Commission notes that only
on appeal did Ms. Cole argue that a regulatory taking had occurred. Ms. Cole fails to show where
this argument was made in her Complaint or Petition for Reconsideration; Ms. Cole’s brief fails
to cite to where this was argued in the underlying record—before her Notice of Appeal was filed.
Instead, Ms. Cole’s brief raises new claims on appeal.
3. Ms. Cole is not entitled to attorney fees.
In her brief, Ms. Cole states that: “Appellant is seeking the return of all her money legally
owed by Rockey [sic] Mountain power, Legal fees incurred and damages.” Cole Brief at 21. Ms.
Cole does not provide any argument or authority to support her claim for attorney fees as required
by Idaho Appellate Rule 35. Additionally, the Court has previously held that pro se litigants are
not entitled to attorney fees. Michalk v. Michalk, 148 Idaho 224, 235, 220 P.3d 580, 591 (2009).
For those reasons, Ms. Cole is not entitled to the attorney fees.
VII. CONCLUSION
The record shows that: (1) the Commission regularly pursued its authority in dismissing
Ms. Cole’s Complaint; (2) Ms. Cole waived her remaining arguments on appeal by failing to raise
them below; and (3) Ms. Cole is not entitled to attorney fees on appeal as she is not an attorney.
The Commission requests that the Court affirm the Commission’s Final Order No. 35856 and
Reconsideration Order No. 35903.
RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
13

The Commission does not believe that oral argument is necessary in this case. Should the
Court determine otherwise, the Commission stands ready to participate in any scheduled oral
argument.

Respectfully submitted this 13th day of March 2024.

Michael Duval
Deputy Attorney General
Attorney for Respondent on Appeal,
Idaho Public Utilities Commission

RESPONDENT BRIEF OF THE IDAHO
PUBLIC UTILITIES COMMISSION
14

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 13th day of March, 2024, one true and correct copy of
Respondent Brief of the Idaho Public Utilities Commission, in Supreme Court Docket No. 51148-
2023, was served via iCourt electronic service to the following:

Petitioner-Appellant, pro se
Sherry Cole 350 S. 12th W., #14 St. Anthony, ID 83445

[ ] U.S. Mail, postage prepaid
[ ] Certified Mail
[X] iCourt E-Service [e-mail]

Attorney for Respondent, PacifiCorp:

Joe Dallas
Rocky Mountain Power
825 NE Multnomah St., Ste. 2000
Portland, OR 97232

[ ] U.S. Mail, postage prepaid
[ ] Overnight Mail
[X] iCourt E-Service [e-mail]

__________________________________
Michael Duval
Deputy Attorney General