20100222Decision Memo.pdf

DECISION MEMORADUM
TO: COMMSSIONER KEMPTON
COMMSSIONER SMITH
COMMSSIONER REDFORD
COMMISSION SECRETARY
COMMSSION STAFF
LEGAL
FROM: DON HOWELL
DEPUTY ATTORNEY GENERA R. u 1- - ù -10 -6 (
DATE: FEBRUARY 10,2010
SUBJECT: STAFF RECOMMNDATIONS TO AMND THE COMMSSION'S RULES OF
PROCEDURE, DOCKET NO. 31-0101-1001
In this Decision Memorandum, the Staff is recommending that the Commssion consider amendig
several of its Rules of Procedure, IDAPA 31.01.01. The reasons for the proposed changes can be
broken down into several areas: (1) conform the Commission's testimony and transcript rues to
changes in the Supreme Cour's Appellate Rules; (2) change Rule 43 (Representation of Parties) to
conform to recent Supreme Cour opinons regarding the representation of parerships and
corporations; (3) make it easier to determe when telephone companes are no longer conducting
business in Idaho; and (4) improve the clarty of rues and make other housekeeping changes.
The Commssion last updated its Rules of Procedure two years ago. To facilitate your review, the
reasons for the substantive changes to the Commssion's rules are discussed before each Rile in
chronological order below. To facilitate the legislative review process, Staff fuher recommends that
the Commission intiate a negotiated rulemakg and conduct a public workshop.
THE PROPOSED RULE CHANGES
Rule 0: Staff recommends that the Commssion update the citations of legal authority contained in
ths rule. Ths rule was last updated in 2000. Since that tie, the Commssion has been granted
additional authorities in: Stray Curent and Remediation Act (61-801 et seq.); Utility Cost Reduction
Bonds Act (61-1601 et seq.); Electrc Transmission Facilities Act (61-1701 et seq.); the Broadband
Tax Credit Act (63-30291); and other statutes.
o. LEGAL AUTHORITY (RULE 0).
These rues are adopted under the general legal authority of the Public Utilities Law, Chapters 1
though 7, Title 61, Idaho Code,; Chapters 9,8 though 10, and 13, 15 though 17, Title 61, Idaho
Code,; Chapters 3 and 4, Title 62, Idaho Code,; the Telecommuncations Act of 1988, as amended,
Chapter 6, Title 62,; and Chapters 12, Title 62, Idao Code, Chapter and 13, Title 62, Idaho Code,;
and the paricular authority of Sections 56-904, 61-304 though 61-309,61-501,61-502,61-503
thòugh 61-505,61-507,61-516,61-538,61-541,61-601 though 61-607,61-610 though 61-619,
61-6201 though 61-626,61-803 though 61-806,61-902 through 61-905,61-909,61-1003 though
61-1005,61-1007,61-1305,61-1306,61-1603 though 61-1607,61-1703 though 61-1709,62-304,
62-305,62-424,62-604,62- 605, 62-608 though 62-612, 62-61OA though 62-61OF, 62-614 though
62-616,62-619,62-622, 62-622A, 62-1201 though 62-1207,62-1303, and 62-1304,63-30291, and
67-6528, Idaho Code. (4-5-00)()
Rule 5: Staff recommends that the Commssion add a defintion for the term "utility" as used in the
Rules of Procedure.
005. DEFINITIONS (RULE 5).
Terms of art used thoughout these rules are defined with the rues themselves. The term "utility"
used in these rues includes every common carer, pipeline corporation, gas corporation, electrc
corporation, telephone corporation, and water corporation as defined in Chapter 1, Title 61, Idao
Code, and Section 62-602, Idaho Code. (7-1-93)()
Rule 16: Curently Sub~ection 02 of Rule 16 requies utilities to designate à person for the receipt of
service. The recommended changes to the title of the rule and new Subsection 03 sets out the
designation requirement more clearly in its own subsection.
016. SERVICE BY COMMSSION - DESIGNATION OF AGENT (RULE 16).
The Commssion Secretar serves all notices, orders, sumonses, and complaits issued by the
Commission or by the Secretar. (7-1-93)
01. Servce of Orders and Notices. All notices and orders served by the Commssion may be served
by United States maiL. Notices and orders may also be served by electronic mail in cases designated
by the Commssion. Unless otherwise provided by statute, these rues, order or notice, servce of
orders and notices is complete when a copy, properly addressed and stamped, is either deposited in
the United States mail or transmitted electronically. All orders and notices shall be affxed with the
Commission Secretar's offcial servce date on the first page. The Commssion Secretar wil sere
all orders and notices in a proceedig on the representatives of each par designated pursuant to
Rule 41 for that proceeding and upon other persons designated by these rues or by the Commssion
or any Commissioner. (3-16-04)
02. Servce of Summonses and Complaints. The Commission Secretar wil serve complaints
against utiities upon the person designated for that purose by the utility. All utilities must maintain
on fie with the Commssion Secretary a designation of such a person. Sumonses and complaints
directed to regulated utilities or other persons shall be served by registered or certified maiL. Writs of
sumons or subpoena and warrants of attachments diected to all other persons must be served by a
person authorized to serve process by statute or by the Idaho Riles of Civil Procedure. (4-5-00)( )
03. Designation of Agent for Servce. All utilities shall designate a person as their agent to be
served with sumons and complaints. Utilities shall be responsible for maintaing on file with the
Commission Secretary the curent name, mailing address and e-mail address of the person designated
as the agent to receive service. ( )
Rule 19: The Idaho State Bar has proposed changing the rue number of the "Limited
Admssions/Pro Hac Vice" rule. The four changes to this section are housekeeping changes to update
the reference to the curent Idaho Bar Commssion rule number.
019. INCORPORATED BY REFERENCE - IDAHO BAR COMMSSION
RULE (RULE 19).
Rule 43 incorporates by reference Idao Bar Commission Rule 2227 (Limited Admssion!ro Hac
Vice) effective ,2010. Bar Rile 2227 is promulgated by the Idaho State Bar and adopted by
order of the Idaho Supreme Cour. Bar Rule 2227 may be obtaied from the Idaho State Bar, PO Box
895, Boise, ID 83701, or online at ww2.state.id.us/isb/ www.isb.idaho.gov under the "Rules" icon.
Bar Rule 2227 is also available for inspection and copying at the Idaho State Law Librar or at the
offces of the. Idaho Public Utilities Commssion. (3-16-04)()
Rule 20: Staff recommends that the Commssion consider adding a new rue regarding the
discontiuance of telecommuncations services in Idaho. This rue wou1d require that a telephone
corporation intending to discontinue servce notify the Commssion of ths fact. Ths would allow the
Commssion Staff to keep better track of companies operating in Idao and would allow the fiscal
division to more easily update its assessment records.
020. (RESERVED). DISCONTINUANCE OF
TELECOMMUNICATIONS SERVICE (RULE 20).
A telephone corporation that intends- to discontinue servce in Idao shall file a notice with the
Commssion of the date that it intends to cease operations. The telephone corporation proposing to
discontinue service shall also publish a notice of such discontinuance in a legal newspaper circulated
in its servce area pursuat to Section 62-612, Idaho Code. If the telephone corporation held any
customer deposits, the telephone corporation shall indicate in the notice how the deposits are to be
retued to customers. ( )
Rule 43: Staff is recommending that the Commssion update Ru1e 43 to conform to a recent Idaho
Supreme Cour opinion. The existing Ru1e 43 governs the representation of paries at PUC
proceedings. The existing rule generally follows the contours set out by our Supreme Cour in Idaho
State Bar Association v. Idaho PUC, 102 Idao 672, 637 P.2d 1168 (1981). In that opinon, the Cour
indicated that it had no objection to the Commission's procedural rues regarding representation
To the extent they allow representation of a sole proprietorship by the ownèr, or representation of a
parership by the parers, or representation of a corporation or non-profit organzation by the
officers of those entities. . . . It is well settled that in proceedings before a reguatory body such as the
Commission, that thd persons unconnected with the entity in acting in a representative capacity in
such proceedings would necessarly be engaged in the activities commonly associated with the
practice of law.
Id. at 676,637 P.2d at 1172. The Cour also recogned that many proceedings before the
Commssion "often involve matters more adminstrative than judicial in natue, (consequently) some
relaxation of the traditional rule against the practice of law by lay persons is appropriate." Id.
In 1985, the Cour had an occasion to revisit the issue of representig another entity before a public
agency. In Kyle v. Beco Corporation, 109 Idaho 267, 707 P.2d 378 (1985), the Cour was asked to
invalidate an Industral Commssion practice (subsequently a rue) which restrcted the representation
of a corporation to Idaho licensed attorneys. In the underlying admstrative proceedig, an
Industral Commission referee denied the president and sole shareholder of Beco Corporation the
opportty to cross-exame witnesses and present a closing arguent in a worker's compensation
proceeding. In affirg the Industral Commssion's decision, the Cour stated that the general rule
among this and other states has been that representation of another person before a public agency or
service commission constitutes the unauthorized practice of law, where the proceedings before those
trbunals are held for puroses of adjudicating the legal rights or duties of a par.
Id. at 271, 707 P.2d at 382 (emphasis added).
In dissent, Justice Bakes voiced surrise that the majority cited the Idaho State Bar case as its lead
authority to support its holding. He noted that the Cour in the State Bar opinion relaxed the
traditional rue of representation in admnistrtive proceedings before the PUC. Justice Bakes urged
Beco to seek rehearg so that "sole owner and offcer of a small family-held corporation" could
represent his business in the Industral Commission proceeding. Kyle v. Beco, 109 Idao at 272-73,
707 P.2d at 383-84 (1. Bakes, Dissenting). The Cour subsequently denied rehearig.
More recently in Indian Springs v. Indian Springs Land Investment, the Cour agai had an
opportty to review the question of who may represent a business entity. 147 Idao 737, 215 P.3d
457 (2009) (rehearng denied). In Indian Springs, non-attorney pricipals sought to represent a
limted liability company, a parership, and two trsts in a civil action filed in Idaho Distrct Cour.
After reviewing the issue of representation, the Cour stated that the law in Idaho is that a business
entity, such as a corporation, limted liability company, or partership must be represented by a
licensed attorney before an admstrative body or a judicial body. . . . It is fairly well-established
that a trstee's duties in connection with his or her offce do not include the right to present an
arguent pro se in the cours.
Id. at 744-45,215 P.3d at 464-65 (emphasis added). The Cour did not reference or acknowledge the
Idaho State Bar case.
Based upon Kyle and Indian Springs, Staff recommends that the Commssion refine the requirements
of its Ru1e 43. In admstrative proceedings (e.g., tarff advices, tariff schedules, price lists,
interconnection agreements), Staff believes that these tye of admstrative filigs may be made by
"a natul person pro se, a parer in a partership, an employee or offcer of a corporation, or an
attorney." However, in quasi-judicial proceedings "for the purose of adjudicating the legal rights or
duties of a par," a parership, corporation, governental agency, non-profit organation, or other
entity must be represented by a licensed attorney.
043. REPRESENTATION OF PARTIES AT PROCEEDINGS (RULE 43).
Recogning that Proceedigs before the Commssion are someties admstrtive in natue or
quasi-judicial in natue, appearances and.
(3-16-04)( )
01. Administrative Proceedings. Admstrtive proceedings before the Commssion include
matters such as the fiing of tariff schedules, tarff advices, price lists, certificates to provide local
exchange service, interconnection agreements, wrtten comments in modified procedure, or written
comments provided at a customer hearng. These filings may be made by a natual person pro se, a
parner in a partership, an employee or offcer of a corporation, or a licensed attorney. ( )
02. Quasi-Judicial Proceedings. The representation of pares at quasi-judicial proceedings for the
purose of adjudicating the legal rights or duties of a par is restrcted as set out below. Quasi-
judicial proceedigs before the Commission include matters such as formal complaints, petitions,
motions, applications for modified procedure or techncal/evidentiar heargs. Representation of
paries at these tyes of proceedings shall be as follows:() ,
01a. Natural Person. A natual person must may represent hiself or herself or be represented by a
duly authorized employee, or an licensed attorney.
(3-16-04)( )
02b. Partnership. A parership or corporation must shall be represented by a
parer, du1y authorized employee, or an licensed attorney. (7-1-93)()
03. Corporation. A corporation must be represented by an officer, duly authorized employee, or an
attorney. (7-1-93)
04c.Other Entity. A muncipal corporation,; a state, federal, trbal, or local governent agency,; or
entity, an uncorporated association,; or a non-profit organzation, or other entity must shall be
represented by an officer, a duly authoried employee or an licensed attorney. (7-1-93)()
053. Attorney Representation. Only an active member of the Idaho State Bar may represent a par
as an attorney except as provided by Idaho Bar Commssion Rule 2227 (Limted Admssion!ro Hac
Vice). The Commssion adopts by incorporation Bar Rule 2227 as modified below. (3-16-04)
a. Given the admnistrative natue of many proceedigs, lLimted admission by out-of-state attorneys
wil not be necessar in conjunction with admstrative fiings such as taff schedules, taff
advices, price lists, certficates to provide local exchange servce, and interconnection agreements.
Out-of-state attorneys representing the same par in one (1) or more quasi-judicial cases proceedings
(such as formal complaints, motions, petitions, and applications that request modified procedure or
an evidentiar hearg), must request limited admssion at least one (1) tie per calenda year.(3-16- .
04)( )
b. An attorney applying for limted admssion to appear before the Commssion in a representative
capacity shall file a written motion with the Commssion Secretary and serve a copy on all paries.
The motion shall be substantially in the form set out in Bar Rile 2227(1) with references to the
Commission instead of the cour. (3-16-04)()
c. A copy of the written motion shall be submitted to the Idao State Bar accompaned by the fee
prescribed by in Bar Rile 22270). (3-16-04)()
Rules 231 and 286: The Commssion Staff is recommending changes to these two rules based upon
recent amendments to the Idaho Appellate Riles. In paricular, the Idao Supreme Cour no longer
requires that transcripts be submitted in "ASCII" format. Consequently, Staff is recommending that
ths computer format be deleted from Rule 231.05. See i.A.R. 24(a) (deleting the language about a
computer searchable disk in ASCII format).
In addition, the recently amended Appellate Rules now allow for "compressed trancripts." As
recommended below, Staff proposes that any par may request a compressed transcript with no
more than four pages of regular transcript on each page. I.A.R. 26(m) and (P).
231.PREPARD TESTIMONY AND EXHIBITS (RULE 231).
01. Prepared Testimony May Be Required. Order, notice or rue may require a par or pares to
submit prepared testimony and exhbits to be presented at hearg. (7-1-93)
02. Format for Prepared Testimony. (7-1-93)
a. Prepared testimony and exhbits must be accompaned by a cover sheet showing the case caption
and case title, the person testifying, the par for whom the testiony is offered, and the natue of the
testimony (direct, rebuttal, etc.). (7-1-93)
b. The first page of prepared testimony should contai testimony only (i.e., it should begin with the
first question to the witness and not repeat the information on the cover page). (7-1-93)
c. Prepared testimony must be submitted on white eight and one-half by eleven inch (8-1/2" x 11")
paper, be double-spaced (except for quoted material and tables or other collections of numerical
data), and contain no more than ten (10) characters per inch and no more less than twenty-five (25)
lines of double-spaced testimony or more than thrt (30) lines per page. Each page may be printed
on the front and back (duplexed). (5-8-09)()
d. Each line of prepared testimony must be numbered at the left margi (except single spaced
quotations or tables of numerical data, which may be numbered at the left margin as though they
were double spaced). Each page of testiony must have a one and one-half (1-1/2) inch left margi
that wil allow the page to be bound on its left side without obscurng the prited materiaL.
Indentations for paragraphig and for "Q" and "A" must be seven (7) spaces. (7-1-93)
e. Each page of prepared testimony must be numbered at the lower right corner and must be blan in
the center of the bottom margin to allow the reporter to insert transcript page numbers there. Each
page of prepared testimony must have at least a one-inch (I") top and bottom margin. (7-1-93)
f. Each page of prepared testimony must contain the witness's surame followed by the designation
"Di" (signifying direct testimony) or "Di-Reb" (signfying direct testimony on rebuttal) and the name
of the par sponsorig the testimony prited in the lower right margin. For example, the marginal
notation on page 5 of the testimony of the witness Lyn Accountant of ABC Company would be:5 or Accountat, Di 5
Accountant, Di ABC Company
ABC Company