Sprenger v. Public Service Commission

KENNEY, J. Paul C. Sprenger, Russell W. Bounds, Eric Tribbey, Paul Roderick, and Rebecca M. Harvey (“appellants”) appeal the dismissal of their petition for declaratory relief by the Circuit Court for Garrett County. In dismissing appellants’ petition, the circuit court found that it was: (1) an improper appeal from a decision of the Maryland Public Service Commission (the “Commission”) and (2) duplicative of litigation initiated in the Circuit Court for Baltimore City. Appellants present three questions to this Court, which we have consolidated and rewritten as follows: 1. Did the circuit court err in finding that appellants’ complaint was a belated appeal from the Commission’s order, and not a petition for declaratory relief? 2.

Did the circuit court err in finding that appellants’ claim was barred because it involves the same factual and legal issues properly before another of Maryland’s circuit courts? ⁴⁴⁷ For reasons that follow, we shall affirm the decision of the circuit court. 1 FACTUAL AND PROCEDURAL HISTORY On August 26, 2002, Clipper filed with the Commission an application for a Certificate of Public Convenience and Necessity to construct sixty-seven wind-powered turbines on rural mountainsides in Garrett County. Each turbine is described as being approximately four hundred feet tall and over two hundred and sixty feet wide with propeller blades “the same size as the Statue of Liberty.” The turbines would obviously impact the scenic view of the mountains and emit some degree of noise. Appellants are owners of land located adjacent to or very near the planned construction site. An evidentiary hearing was conducted on January 7 and 8, 2003.

On March 26, 2003, the Commission issued Order No. 78354, authorizing construction of the turbines. Appellants contend that the Commission prevented appellants from properly challenging Clipper’s proposal by failing to adequately notify the public of the January hearings. Under Maryland Code Annotated (1974, 2002 RepLVol.), § 3-114(c) of Public Utility Companies Article (“PUC”), “interested persons” aggrieved by an order of the Commission may request a rehearing within thirty days of an order. Accordingly, the deadline for requesting a rehearing was April 25, 2003.

On April 24, 2003, Tribbey, one of the five appellants in this case, requested a rehearing. In the request, he identified himself as the “Representative” of a class of concerned and interested citizens who would be affected by the turbine construction. On August 8, 2003, the Commission, finding that Mr. Tribbey was not an “interested party,” denied his request. ⁴⁴⁸ Section 3-204(c) of PUC provides that, “[i]f a rehearing by the Commission is applied for, a proceeding for judicial review may be filed after service of the decision of the Commission that denies the rehearing.” Tribbey, Sprenger, and Bounds, in addition to Troy Gnegy, filed for judicial review 2 of the Commission’s March 26, 2003 Order in the Circuit Court for Baltimore City on September 3, 2003—twenty-six days after the Commission’s denial of a request for rehearing and over five months after the Commission’s order. The circuit court determined that Tribbey, Sprenger, Bounds, and Gnegy were not “interested persons” within the meaning of PUC § 3—114(c), and that the deadline for seeking judicial review had not been extended by Tribbey’s rehearing request.

The circuit court dismissed their petitions for judicial review as untimely. This Court reversed the decision of the circuit court. We held that Mr. Tribbey was an “interest ed person” under the applicable statute and that his right to seek judicial review in the circuit court had been preserved by the rehearing request. See Sprenger v. Public Service Commission of Maryland, Nos. 257 and 259, September Term, 2004 (filed July 27, 2005).

The Court of Appeals granted certiorari on March 9, 2006, and oral arguments were heard on June 5, 2006. A decision by the Court of Appeals is pending. Fearing what they perceived to be preparation for construction of the turbines, and concerned that the merits of their claim would either not be heard or that the hearing would be delayed by the appeal of the decision of the circuit court, appellants sought declaratory relief in the Circuit Court for Garrett County on April 20, 2005. On August 26, 2005, that court dismissed appellants’ complaint on two grounds.

First, the court was persuaded that appellants’ complaint, although ⁴⁴⁹ styled as a petition for declaratory relief, was, in essence, a belated appeal from the Commission’s March 26, 2003 Order. Second, the court determined: Prior to the filing of [the] petition [in the Circuit Court for Garrett County], three of the Plaintiffs sought judicial review in the Circuit Court for Baltimore City based on the same issues presented to this court— It is not appropriate or judicially economical for this court to consider the same issues. STANDARD OF REVIEW In reviewing a motion to dismiss, we are mindful of the following rules: 1. Well pleaded allegations are accepted as true for purposes of the motion to dismiss, Sharrow v. State Farm Mut.

Auto. Ins. Co., 306 Md. 754, 768 , 511 A.2d 492, 499-500 (1986); 2. The inferences most favorable to the plaintiff are drawn from well pleaded facts, id; and 3. “Any ambiguity or want of certainty in the allegations must be construed against the pleader.” Read Drug & Chem.

Co. v. Colwill Constr. Co., 250 Md. 406, 416 , 243 A.2d 548 (1968). Manikhi v. Mass Transit Admin., 360 Md. 333, 344-45 , 758 A.2d 95 (2000). “[B]ecause we must deem the facts to be true, our task is confined to determining whether the trial court was legally correct in its decision to dismiss.” Debbas v. Nelson, 389 Md. 364, 372 , 885 A.2d 802 (2005). In other words, we review the trial court’s decision de novo.

Reichs Ford Road Joint Venture v. State Rds. Comm’n of the State Highway Admin., 388 Md. 500, 509 , 880 A.2d 307 (2005). DISCUSSION I. Did the circuit court err in finding that appellants’ complaint was a belated appeal, and not a petition for declaratory relief? On April 20, 2005, appellants filed in the Circuit Court for Garrett County (Case No. 24-C-03-006325) a “Petition for ⁴⁵⁰ Declaratory Relief’ based on three grounds. 3 All parties to this appeal, however, focus primarily on PUC § 3-201 and, alternatively, the Maryland Uniform Declaratory Judgments Act (the “Act”), Maryland Code (1974, 2002 Repl.Vol.), § 3-401 et. seq. of the Courts and Judicial Proceedings article (“CJ”).

Counsel for appellants explained, at the hearing on appellees’ motions to dismiss, why the petition was brought under multiple theories: I raised all of those options, because one of them, I believe, has to be right. It doesn’t really make any difference to me which one it is, but an individual who has an interest in a proceeding[ ] ... has to have some remedy to correct that, and if it’s not proceeding before the Public Service Commission, and if it’s not [pursuant to the Public Utility Companies Article], then it has to be a typical declaratory judgment action, and ... I wouldn’t miss an opportunity because of failing to raise a technical issue. It was the task of the circuit court, and now, this Court, to determine whether appellants’ petition for declaratory relief was sufficient under either theory.

A. The Public Utility Companies Article PUC §§ 3-201 and 202 provide for challenging the two primary forms of agency actions—(1) rule-making, and (2) adjudications. Section 3-201 governs the challenge to regulas ⁴⁵¹ tions/rules that are promulgated by the Commission. The section reads, in pertinent part: 4 (a) In general—(1) The validity of a regulation of the Commission may be determined on a petition for declaratory judgment whenever it appears that the regulation, or its application, actually or potentially interferes with or impairs the legal rights or privileges of the petitioner. (Emphasis added.) Section 3-202 relates to challenges of decisions or orders resulting from adjudications by the Commission.

It provides, in pertinent part: (a) In general.—[A] party or person in interest ... that is dissatisfied by a final decision or order of the Commission may seek judicial review of the decision or order as provided in this subtitle. (Emphasis added.) After Clipper filed its application with the Commission to authorize the construction of its turbines, a hearing examiner conducted two days of hearings on January 7 and 8, 2003. The hearing examiner then issued a proposed order on February 11, 2003, which was adopted by the Commission as its final order on March 26, 2003. The Commission’s order was an adjudication of Clipper’s application for a Certificate of Public Convenience and Necessity.

Appellants do not contend otherwise. On August 16, 2005, the Circuit Court for Garrett County conducted a hearing on appellees’ motions to dismiss. During the proceeding, counsel for appellants acknowledged that “3-201 ... allows the bringing of, essentially, a declaratory judgment action, of actions of the Public Service Commission, if it is rule making or if there is an objection to the application of the rule.” (Emphasis added.) During the ⁴⁵² hearing, counsel expressed his concern that the length of the appeals process, arising from the Baltimore City judicial review action, would cause irreparable harm to his case: It came to our attention that it looked like Clipper was getting ready to build the wind turbines in Garrett County, and having fought the procedural battle [in the Circuit Court for Baltimore City], we were looking for other ways to raise the issue to see if we could get some decision on the merits because, although this has been pending for a long time, we’ve had no—no review of the merits. We’ve had no opportunity to present to a judge our issues for decision on the merits. [I]n the meantime, Clipper can proceed with this project.

There’s no way—there’s no way for us to do anything to get this issue resolved, and my concern is once there’s sixty-seven 400-foot wind turbines out on Backbone Mountain and we finally get in front of a judge and say we should have had a hearing, and the judge says you should have had a hearing, but there’s already sixty seven turbines standing out there. And so, we brought this proceeding[ ].... Because the Commission’s Order No. 78354 did not constitute rule making, appellants cannot seek declaratory relief under § 3-201. Moreover, the aforesaid argument highlights the fact that the Garrett County proceeding is, in essence, an attempt to seek judicial review of the Commission’s order.

In their Petition for Declaratory Relief, appellants “request[ed] that the orders of the Public Service Commission ... be stricken and the Application remanded to the Public Service Commission to conduct proceedings on the Application in compliance with [certain enumerated requirements].” This is the same relief sought in the petition for judicial review in the Circuit Court for Baltimore City under PUC § 3-202. In dismissing appellants’ claim, the Circuit Court for Garrett County stated: ⁴⁵³ Plaintiffs petition, no matter how captioned, is a petition for judicial review of an order of the Commission that was issued over two years ago. The petition does not ask this court to declare any rights, status, or other legal relations of the Plaintiffs, nor does the petition challenge a regulation of the Commission. Prior to the filing of this petition, three of the Plaintiffs sought judicial review in the Circuit Court for Baltimore City based on the same issues presented to this court.

Not only had a petition for judicial review been filed previously by some of the appellants in the Circuit Court for Baltimore City, no authority, statutory or otherwise, would enable appellants to seek judicial review of an order of the Commission issued over two years prior to the filing of their complaint. The right to judicial review rises or falls with the proceedings in the Circuit Court for Baltimore City. B. The Maryland Uniform Declaratory Judgments Act The Act is “remedial.” Its stated purpose is to “settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” CJ § 3-402. Relying on the purpose provision of the Act, appellants assert that the “uncertainty and insecurity with respect to rights of landowners” and “individuals’ rights to notice” permit them to seek relief under the Act.

Again, we do not agree.