New Hampshire Case Law
APPEAL OF CAMPAIGN FOR RATEPAYERS' RIGHTS, 137> <N.H>. <707> (1993)
634 A.2d 1345
APPEAL OF CAMPAIGN FOR RATEPAYERS' RIGHTS
(New Hampshire Public Utilities Commission)
No. 92-329
Supreme Court of New Hampshire
Public Utilities Commission
Decided November 23, 1993
1. Public Utilities - Public Service Commission - Judicial Review
Where Campaign for Ratepayers' Rights (CRR) appealed a ruling of New
Hampshire Public Utilities Commission denying CRR's request for a
finding of eligibility for compensation and ruling that CRR was required
to be represented by legal counsel to gain full intervenor status in
New Hampshire Electric Cooperative's financing, power supply and rate
increase requests, and while the appeal was pending, the merits of
the underlying case proceeded before the Commission, there was sufficient
public interest in this matter to warrant a discussion of the merits
even if the case was moot. N.H. ADMIN. RULES, Puc Part 205.
Page 708
2. Public Utilities - Public Service Commission - Procedure Before and By
Commission
To the extent that a proceeding before the New Hampshire Public
Utilities Commission involves ratemaking, a consumer may intervene to
raise consideration of the ratemaking standards. N.H. ADMIN. RULES,
Puc 205.01(j), 205.02(a).
3. Public Utilities - Public Service Commission - Procedure Before any By
Commission
Since petition of Campaign for Ratepayers' Rights (CRR) to intervene
in proceedings of New Hampshire Electric Cooperative before the New
Hampshire Public Utilities Commission (PUC) simply recited the
standards enumerated in New Hampshire Administrative Rules without
indicating its position on each issue it intended to raise under the
Public Utilities Regulatory Policies Act of 1978, PUC did not err in
denying CRR's request for a finding of eligibility for compensation.
N.H. ADMIN. RULES, Puc 205.03, 205.06(c).
4. Public Utilities - Public Service Commission - Procedure Before and By
Commission
Although the New Hampshire Public Utilities Commission is generally
authorized to determine the qualifications of persons permitted to
practice before it, the exercise of this discretion is limited by the
strictures preventing the unauthorized practice of law. N.H. ADMIN.
RULE, Puc 201.03.
5. Attorneys - Practice of Law - Pro Se Litigants
Since pro se representation has been construed to mean direct personal
conduct of litigation by a party on the party's own behalf, pro se
representation is inapplicable to corporations and unincorporated
associations. RSA 311:1.
6. Public Utilities - Public Service Commission - Procedure Before and By
Commission
The New Hampshire Public Utilities Commission may prohibit a
corporation or unincorporated association from appearing before the
commission pro se; it may, however, allow a citizen of good character
to appear on behalf of a corporation or unincorporated association
provided that citizen does not intend to appear commonly in violation
of the law. RSA 311:7.
7. Attorneys - Practice of Law - Acts Constituting
Whether or not one is engaged in the practice of law depends upon
the character of acts performed and not the place where he or she
performs them. RSA 311:7.
8. Attorneys - Practice of Law - Administrative Proceedings
Although public participation can add considerable value to commission
proceedings, where the conduct under scrutiny is congruent with well
accepted, exclusively lawyer functions, that conduct cannot lawfully
be performed by a non-lawyer, albeit with good character, who appears
commonly. RSA 311:7.
Robert A. Backus, of Manchester, and Joshua L. Gordon, of
Concord (Mr. Backus and Mr. Gordon on the brief, and Mr. Gordon
orally), for Campaign for Ratepayers' Rights.
Page 709
Broderick & Dean, P.A., of Manchester (Mark W. Dean and
Emily Gray Rice on the brief, and Mr. Dean orally), for the New
Hampshire Electric Cooperative, Inc.
Jeffrey R. Howard, attorney general (Harold T. Judd, senior
assistant attorney general, on the brief and orally) and Devine,
Millimet & Branch, P.A., of Manchester (Frederick J. Coolbroth
and Anu R. Mathur on the brief), for the State, as amicus curiae.
BROCK, C.J.
Campaign for Ratepayers' Rights (CRR) appeals an order of the New
Hampshire Public Utilities Commission (PUC). The PUC denied CRR's request
for a finding of eligibility for compensation under New Hampshire
Administrative Rules, Puc Part 205 (Puc Part 205) and the Public Utilities
Regulatory Policies Act of 1978, 16 U.S.C. § 2601-2645 (1978) (PURPA or
act). The PUC also ruled that CRR was required to be represented by legal
counsel to gain full intervenor status in the proceedings. We affirm.
In 1992, the New Hampshire Electric Cooperative (NHEC) filed a plan of
reorganization in the United States Bankruptcy Court for the District of
New Hampshire. The court approved the plan subject to affirmance of
certain terms by the PUC. Accordingly, NHEC filed applications with the PUC
for (1) authorization of the financing of the reorganized company; (2)
approval to sell the output of NHEC's interest in the Seabrook Nuclear
Power Plant to the Public Service Company of New Hampshire (PSNH); (3)
approval of a wholesale power purchase contract with PSNH; and (4)
implementation of temporary and permanent rate increases.
The PUC held a prehearing conference, at which CRR filed a petition
seeking intervention. CRR alleged that the proceedings were subject to the
provisions of PURPA and Puc Part 205, and asked for a finding that its fees
and expenses incurred in the proceedings would be eligible for
reimbursement. The pleading was signed on CRR's behalf by its agent.
The PUC granted CRR's petition to intervene on a limited basis. Full
intervention was conditioned on CRR retaining counsel. The PUC denied
CRR's request for a finding of eligibility for compensation. CRR's motion
for reconsideration was denied, and this appeal followed.
NHEC and the State urge dismissal of this case as moot, based on the fact
that while this appeal was pending, the merits of the underlying case
proceeded before the PUC. CRR neither appeared at any hearings, nor
presented any written statements on the merits. The PUC approved NHEC's
financing and power supply
Page 710
requests and authorized rate increases. CRR filed a motion for rehearing,
which was denied. CRR did not appeal to this court.
[1] We need not decide whether the case is moot because, even if it were,
there is sufficient public interest in this matter to warrant a discussion
of the merits. Silva v. Botsch, 120 N.H. 600, 601, 420 A.2d 301, 301-02
(1980); Proctor v. Butler, 117 N.H. 927, 930, 380 A.2d 673, 674 (1977). We
take this opportunity to delineate the requirements of PURPA and Puc Part
205. In doing so, we address only issues concerning CRR's claimed
entitlement to PURPA funding and representation by a non-attorney.
CRR's petition to intervene and request for eligibility for compensation
stated:
"This instant docket involves a number of PURPA
purposes and standards as adopted by this
Commission. CRR's intervention in this proceeding
will address those PURPA issues, including but not
limited to the following:
a) Conservation of energy supplied by
electric utilities. PUC 205.01(c)(1)
b) Optimization of the efficiency of use of
facilities and resources. PUC 205.01(c)(2)
c) Equitable rates to electric consumers,
including CRR in consideration of PURPA title I,
Subtitle B 113(b) as an Automatic adjustment
clause. PUC 205.01(3)b2 [sic].
d) Equitable rates to electric consumers,
including CRR members, in consideration of PURPA
title I, Subtitle B 113(b)(3), information to
consumers. PUC 205.01(c)(3)(b)(3)
e) Equitable rates to electric consumers,
including CRR members, in consideration of PURPA
title I, Subtitle B Standards that include the
following Rate Making Standards:
(1) Cost of Service PUC 205.01(c)(3)(d)(1)
(2) Time of Day Rates PUC 205.01(c)(3)(d)(3)
(3) Interruptible Rates PUC
205.01(c)(3)(d)(5)
(4) Load Management Techniques PUC
205.01(c)(3)(d)(6)
(5) Lifeline rates PUC 205.01(c)(3)(d)(7)[.]"
In addition, the petition, stated:
"CRR is not in a position to identify all
positions it will take on the issues at the
present time due in part to the financial hardship
Page 711
CRR faces in participation for this proceeding.
It is the position of CRR that in order to have
equitable rates for consumers, promote the optimum
efficiency of use of facilities, and promote
conservation of energy suppl[i]ed by there [sic]
must be changes in the initial request of NHEC.
CRR also advocates an increase of information to
customers to help them make wise decisions to
further PURPA purposes."
The order denying CRR's request for eligibility for compensation
concluded that "the Commission finds that CRR has made no showing that it
is entitled to compensation under PURPA and/or the Commissions's [sic]
rules, N.H. Admin. Rule Puc 205." The commission further stated:
"We do not find the NHEC rate case to be the type
of matter for which PURPA compensation was
designed. PURPA and N.H. Admin. Rules, Puc Part
205, were developed to enable the meaningful
participation of consumer groups in cases in
which PURPA standards were to be developed
. . . . Although the NHEC rate case will
undoubtedly involve issues which relate to the
implementation of PURPA standards, we do not find
that to justify PURPA compensation. CRR has
failed to specifically identify an issue it
intends to raise in these proceedings or any
basis for its objection to the proposal to
justify PURPA compensation."
We find neither CRR's nor the commission's position fully in accord with
the requirements of PURPA or Puc Part 205.
Title I of PURPA was enacted by Congress to encourage conservation of
electricity, maximization of efficiency in facility and resource use of
electric utilities, and assurance of equitable rates to consumers.
16 U.S.C. § 2601 (1978); see Appeal of Concord Natural Gas Corp.,
121 N.H. 685, 688, 433 A.2d 1291, 1293 (1981). The act requires state
regulatory authorities to consider the adoption and implementation of six
approaches to structuring rates: (1) cost of service; (2) elimination of
declining block rates; (3) adoption of time-of-day rates; (4) promulgation
of seasonal rates; (5) adoption of interruptible rates; and (6) use of load
management techniques. 16 U.S.C. § 2621(d) (1978). PURPA has
subsequently been amended to add four additional standards. See
16 U.S.C. § 2621(d) (Supp. 1993). The act also directs States "to
consider promulgation of `lifeline rates' - that is, lower rates for service
that meets the essential needs of residential consumers - if such rates
have not been adopted by November 1980." FERC v. Mississippi,
456 U.S. 742, 748 (1982).
Page 712
The act provides that "any electric consumer . . . may intervene and
participate as a matter of right in any ratemaking proceeding or other
appropriate regulatory proceeding relating to rates or rate design which is
conducted by a State regulatory authority . . . or by a nonregulated
electric utility." 16 U.S.C. § 2631(a) (1978). The legislative
history indicates that this section "creates a Federal right of
participation and intervention in ratemaking proceedings." H.R. REP. NO.
1750, 95th Cong., 2d Sess. 63 (1978), reprinted in 1978 U.S.C.C.A.N. 7797,
7815. The report specifies that state law is to define the nature and
extent of consumer participation in ratemaking proceedings, while directing
that "the State regulatory authority or nonregulated utility should provide
maximum opportunity under State law to participate in ongoing proceedings."
H.R. REP. NO. 1750 at 82, reprinted in 1978 U.S.C.C.A.N. at 7816; see
Robinson v. Department of Public Utilities, 835 F.2d 19, 21 (1st Cir.
1987). In accordance with the directives of PURPA, the PUC considered and
adopted the federal ratemaking standards. See Re Compensation to
Intervenors in Electric Ratemaking Proceeding, 66 N.H.P.U.C. 332 (1981).
Those standards are set out in New Hampshire Administrative Rule, Puc
205.01(d).
New Hampshire Administrative Rule, Puc 205.02 sets out the procedure by
which a consumer is entitled to compensation for participation in PUC
proceedings. The rule states:
"(a) In any commission proceeding in which a
consumer substantially contributes to the
adoption by the commission, in whole or in part,
of a position advocated by the consumer in that
proceeding, and relating to a PURPA standard, or
for judicial review of that proceeding, the
utility shall pay the consumer an award of
compensation if such award is granted by the
commission in accordance with the procedures and
requirements of this rule."
N.H. ADMIN. RULES, Puc 205.02(a) (emphasis added). The term "proceeding"
is defined as "any application, case, investigation, rulemaking, or other
procedure of the commission in which a PURPA position is considered
subsequent to the effective date of PURPA." Id. 205.01(j) (emphasis
added). The term "PURPA position" is defined as "a factual contention,
legal contention, or specific recommendation promoting the [PURPA purposes
of energy conservation, efficient use of facilities and resources and
equitable rates to electric consumers with the consideration of one or more
of the PURPA ratemaking standards]." Id.
Page 713
205.01(c). The rules further establish that the commission shall grant a
motion to intervene under circumstances specified in the rule. See id.
203.02.
[2] The PUC's position that compensation for participation in proceedings
is limited to the consideration and determination of PURPA standards,
rather than the implementation of previously established standards, is at
odds with the broad language of the rule, and we hold that it is incorrect.
To the extent that a proceeding involves ratemaking, a consumer may
intervene to raise consideration of the ratemaking standards.
[3] The rules also establish, however, the procedure that must be
followed to establish eligibility for compensation. CRR did not adequately
comply with that procedure in this case. Rule 205.03 states:
"In order to receive an award of compensation
pursuant to Puc 205.02, the consumer shall file
with the commission . . . a `request for finding
of eligibility for compensation' setting forth
the following:
. . . .
(b) A statement of the PURPA issues which the
consumer intends to raise in the proceedings,
together with a statement of the consumer's
position on each such issue."
N.H. ADMIN. RULES, Puc 205.03 (emphasis added). CRR's petition simply
recited the standards enumerated in Rule 205.01(d) without indicating its
position on each PURPA issue it intended to raise. To comply with the
express requirements of Rule 205.03, a consumer requesting a finding of
eligibility for compensation must sufficiently establish that a factual or
legal contention or specific recommendation promoting a PURPA policy will
be raised and what position will be taken. Only then can the commission
determine eligibility and whether other consumers "will advocate the same
or similar positions with respect to any PURPA issue" for purposes of
consolidation in compliance with Rule 205.06(c). N.H. Admin. Rules, Puc
205.06(c). The PUC did not err, therefore, in denying CRR's request for a
finding of eligibility for compensation because CRR failed to sufficiently
specify its position on each issue it intended to raise.
The PUC granted CRR's request for intervention but limited that
intervention because CRR was not represented by an attorney. In support of
its ruling, the PUC stated:
"To the extent the proceeding is legislative and
more informal, an attorney may not be necessary.
Moreover, even during more formal evidentiary
hearings, the CRR will have the opportunity to
Page 714
participate through written and oral comment and
the entry of sworn exhibits and testimony.
However, should the participation include
activities which clearly constitute the practice
of law such as the filing of certain pleadings or
objections and engaging in prolonged cross-examination,
we conclude that the statutory restrictions on
non-attorney representation compel the Commission
to require the Association to obtain the assistance
of licensed counsel."
CRR maintains that the structure and function of the PUC makes the
requirement of an attorney inappropriate, and that the statutory provisions
regarding the unauthorized practice of law do not apply. In addition, CRR
contends that requiring an attorney as a condition of PUC intervention
infringes on the constitutional rights of CRR's members. We will not
address the constitutional issues because they were never raised in the
proceeding below. See Appeal of Campaign for Ratepayers Rights,
133 N.H. 480, 484, 577 A.2d 1230, 1233 (1990).
[4] The PUC is generally authorized to determine the qualifications of
persons permitted to practice before it.
"Any person may appear before the commission in
his own behalf, by attorney authorized to
practice in this State, or by agent thereunto
authorized in writing. . . . Nothing in these
rules shall be interpreted in such a way as to
permit the unauthorized practice of law; nor
shall this rule in any way be construed to
restrict or limit the right of any person to
conduct his own representation with or before the
commission."
N.H. ADMIN. RULES, Puc 201.03. The exercise of the commission's discretion
is limited, however, by the strictures preventing the unauthorized practice
of law. See Bilodeau v. Antal, 123 N.H. 39, 45, 455 A.2d 1037, 1041 (1983).
[5] RSA 311:1 (1984) provides: "A party in any cause or proceeding may
appear, plead, prosecute or defend in his proper person or by any citizen
of good character." In State v. Settle, 129 N.H. 171, 176, 523 A.2d 124,
127 (1987), we construed the language "in his proper person" to mean pro se
representation and "the direct personal conduct of litigation by a party on
his own behalf." As such, pro se representation was held inapplicable to
corporations and unincorporated associations. Id. at 178-79, 523 A.2d at
128-29.
[6] In addition, we construed the "citizen of good character" provision
of RSA 311:1 as "merely provid[ing] an opportunity for
Page 715
lay counsel to appear in an individual case. It could not provide a
blanket exception allowing lay counsel to file appearances as a matter of
course." Id. at 180, 523 A.2d at 130. In accordance with RSA 311:1 and our
decision in Settle, therefore, the commission may prohibit a corporation or
unincorporated association from appearing before the commission pro se.
The commission may, however, allow a citizen of good character to appear on
behalf of a corporation or unincorporated association provided that citizen
does "not intend to appear `commonly' in violation of RSA 311:7." New
England Capital Corp. v. The Finlay Co., 137 N.H. 226, 228, 624 A.2d 1358,
1359 (1993). The PUC stated in its order that CRR's agent commonly appears
before it on CRR's behalf.
[7] RSA 311:7 (1984) provides: "No person shall be permitted commonly to
practice as an attorney in court unless he has been admitted by the court
and taken the oath prescribed in RSA 311:6." We disagree with CRR that RSA
311:7 only applies to proceedings in a court of law and not to an
administrative agency adjudicative proceeding. Whether or not one is
engaged in the practice of law depends upon the character of acts performed
and not the place where he or she performs them. See Denver Bar
Association v. Public Utilities Commission, 154 Colo. 273, 279,
391 P.2d 467, 471 (1964). "It is not the place, the forum or the status of
the trier of fact and selector of law that determines whether what is done
before him is the practice of law but rather the nature, character and
quality of the acts and conduct." Public Serv. Commission v. Hahn
Transportation, Inc., 253 Md. 571, 584, 253 A.2d 845, 852 (1969).
[8] It would be difficult to give an all-inclusive definition of the
practice of law, and we will not attempt to do so. "[T]here is [no] single
factor to determine whether someone is engaged in the unauthorized practice
of law and, consequently, may be prohibited from undertaking the legal
representation of another. That determination must be made on a
case-by-case basis." Bilodeau v. Antal, 123 N.H. at 45, 455 A.2d at 1041.
CRR's position that it ought to be permitted to intervene without
restriction in the adjudicatory aspects of a commission proceeding is,
however, untenable. See SELECTED OPINIONS OF THE ATTORNEY GENERAL OF NEW
HAMPSHIRE 1987, No. 87-46, at 144-45 (Equity 1989). There is no dispute
that public participation can add considerable value to commission
proceedings, and the commission should ensure that such participation is
maximized. Where, however, the conduct under scrutiny is congruent with
well accepted, exclusively lawyer functions, that conduct cannot
Page 716
lawfully be performed by a non-lawyer, albeit with good character, who
appears commonly.
Affirmed.
All concurred.
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