Opposition Brief — New York Telephone Co. v. Cahill

| co Sam

No. 90-255

MOGERALE. SPANIOL, JR.

ERK

IN THE

Supreme Court of the United States

OctToserR TERM, 1990

NEW YORK TELEPHONE COMPANY

AND

ROCHESTER GAS AND ELECTRIC CORPORATION,

Petitioners,

VS.

JOSEPH CAHILL

AND

ROBERT ABRAMS, ATTORNEY GENERAL OF

THE STATE OF NEW YORK,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

NEW YORK COURT OF APPEALS

MEMORANDUM OPPOSING CERTIORARI

ROBERT ABRAMS

Attorney General of the

QO. Perer SHERWOOD State of New York

Solicitor General 120 Broadway

New York, New York 10271

LAWEENGE 5. Kann (212) 341-2020

Deputy Solicitor General

[Counsel of Record]

Joun W. Corwin

Ricnarp W. GoLpEN

Assistant Attorney General

Counsel for Respondent

etait lle

TABLE OF CONTENTS

pe ee es ge ss» Sr i

TABLE OF AUTHORITIES ................... iii

STAtmeeems OF tre CASE................. 1

ie ke Nik gb OA Aa veeee seuss .s 5

Aa 5 Es ae Waa 6d oe heehee 7

| * APPENDICES

Public Service Commisison Case 29119, Petition

of the Attorney General Requesting Adoption of

a Rule Prohibiting Utilities from Recovering

from Ratepayers the Cost of the Utilities’

Charitable Donations, Order Requiring

Deferral of Revenues, Issued September 25,

eA eae lyin Vi i Ore e eee ables a's sos A-]

Excerpts from Opinion No. 89-34, issued October

13, 1989 in Public Service Commission Case

88-G-229, Proceeding on Motion of the

Commission as to the Rates, Charges, Rules

and Regulations of Consolidated Edison

Company of New York, Inc. for Gas Service... A-6

Excerpts from Opinion No. 90-17, issued July 6,

1990 in Public Service Commission Cases

89-E-166, 89-E-167 and 89-G-168, Proceedings

on Motion of the Commission as to the Rates,

Charges, Rules and Regulations of Rochester

Gas & Electric Corporation for Electric, Street

Lighting and Gas Service ................... A-9

ili

TABLE OF AUTHORITIES

Cases:

Bender v. Williamsport Area School District, 475

as kMie as ob WAwisTd 4s oo 0 «

Cahill v. Pubic Service Commission, 69 N.Y.2d

265 (1986), cert. denied, 484 U.S. 828 (1987) ..

Cahill v. Public Service Commission, 76 N.Y.2d

ES a

Cahill v. Public Service Commission, 147 A.D.2d

I isn 5s Was kwavasseviceecss

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ..

Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26 (1976) ............

Warth v. Seldin, 422 U.S. 490 (1975) ...........

Constitutional Provisions and Statutes:

U.S. Constitution, Article IT] ..................

New York Public Service Law, §65(1)...........

New York Public Service Law, §91(1).....-......

Other Authorities:

PSC Opinion No. 90-17, issued July 6, 1990 .....

PSC Opinion No. 89-34, issued October 13, 1989 .

PSC Order in Case 29119, issued September 25,

Ra eee gS Sale a sw as

No. 90-255

IN THE

Supreme Court of the United States

OctToser TERM, 1990

NEW YORK TELEPHONE COMPANY

AND

ROCHESTER GAS AND ELECTRIC CORPORATION,

Petitioners,

vs.

JOSEPH CAHILL

AND

ROBERT ABRAMS, ATTORNEY GENERAL OF

THE STATE OF NEW YORK,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

NEW YORK COURT OF APPEALS

MEMORANDUM OPPOSING CERTIORARI

STATEMENT OF THE CASE

The New York Public Service Commission (“Commission”)

is the regulatory agency empowered by the New York Public

Service Law to determine intrastate rates charged customers

located in New York by investor-owned utilities. New York

Public Service Law, §§65(1), 91(1).

On June 11, 1985, Robert Abrams, Attorney General of the

State of New York, filed a petition with the Commission seek-

ing discontinuance of its policy, initiated in 1970, authorizing

recovery from ratepayers of amounts paid by utilities for

charitable contributions. In response to the Attorney General's

petition, the Commission instituted its Case 29119 and invited

interested parties to comment.

During 1986, the Attorney General intervened rn cases involv-

ing the rates of three utilities, one of which was petitioner

Rochester Gas and Electric Corporation, again asking the Com-

mission to reverse its policy authorizing the recovery of charitable

donations The Commission rejected the Attorney General's re-

quest in each of these cases’ and, during 1987 and 1988, the At-

torney General commenced proceedings pursuant to article 78

of the New York Civil Practice Law and Rules against the Com-

mission and the three utilities seeking judicial review of these

Commission orders.’ The Attorney General brought these peti-

tions as parens patriae on behalf of the citizens of the State of

New York, who were affected by the Commission's policy.

In 1984, Joseph Cahill, a residential customer of petitioner

New York Telephone Company, had brought an article 78 pro-

ceeding against the Commission and that company seeking

similar relief on identical grounds.‘ In all of the proceedings aris-

ing from the Attorney General's and Cahill’s petitions, the Com-

mission was represented by its own counsel.

' The Commission rate cases were 29327 and 29328 (Niagara Mohawk Power

Corporation) (Joint Appendix [“].A.”] before the New York Court of Appeals

at 744), 29426, 29427 and 29428 (Rochester Gas & Electric Corporation) (J.A.

at 755), and 29433 (Central Hudson Gas & Electric Corporation) (J.A. at 756).

* The Commission rate case determinations were rendered in Opinion Nos.

87-3 and 87-3(A) (J.A. at 744), Opinion Nos. 87-13 (J.A. at 647-651) and

87-13(A), and Opinion No. 87-15 (J.A. at 634-645).

* Abrams vo. Public Service Commission and Niagara Mohawk Power Cor-

poration, Index No. 5865/87 (Sup.Ct.Alb.Co.), and Abrams v. Public Service

Commission, Rochester Gas & Electric Corporation and Central Hudson Gas

& Electric Corporation, Index No. 269/88 (Sup.Ct.Alb.Co.).

* Cahill v. Public Service Commission, Index No. 12464/84 (Sup.Ct.Alb.Co.).

Cahilf subsequently added the New York Telephone Company as a respondent

and Central Hudson Gas & Electric Corporation was granted leave to intervene

as a respondent.

On December 19, 1986, the New York Court of Appeals held

that the Commission's orders constituted state action and that

the petitions asserted a cognizable claim under the United States

Constitution. This Court denied certiorari. Cahill v. Public Ser-

vice Commission, 69 N.Y.2d 265 (1986), aff'g 121 A.D. 2d 842

(3d Dept. 1985), cert. denied, 484 U.S. 829 (1987).

On remand, the Supreme Court of the State of New York,

Albany County, consolidated the Attorney General's and Cahill’s

petitions,’ and granted the petitions insofar as they sought a

declaration annulling the Commission's orders.*

The Commission and the four utility respondents appealed

the Supreme Court order to the Appellate Division of the

Supreme Court. The Appellate Division affirmed. Cahill v.

Public Service Commission, 147 A.D.2d 49 (3d Dept. 1989).

The Commission and two of the four utilities which had been

parties ceased to participate in the Cahill litigation upon entry

of the Appellate Division order. Only the present petitioners

sought review of the Appellate Division order in the New York

Court of Appeals. On May 10, 1990, the Court of Appeals issued

its opinion and order affirming the order of the Appellate Divi-

sion. Cahill v. Public Service Commission, 76 N.Y.2d 102 (1990).

While Cahill was pending before the Court of Appeals, the

Commission implemented the Appellate Division order and

ultimately discontinued as to all utilities its policy authorizing

the recovery of charitable donations. First, in response to a

request by the Attorney General, on September 25, 1989 the

Commission issued an order requiring petitioners and the two

other utilities which had been parties to Cahill to establish

special accounts into which the utilities were directed to pay

amounts equal to the charitable donations which were recovered

under the now superseded rate case orders. The utilities were

* J.A. at 488-490.

* J.A. at 412-423.

ordered to use the amounts deposited into these segregated ac-

counts as offsets against future rate increases. These deferral ac-

counts were made effective retroactive to June 29, 1989, the date

of entry of the Appellate Division order. Public Service Com-

mission Case 29119, “Petition of the Attorney General Requesting

Adoption of a Rule Prohibiting Utilities from Recovering from

Ratepayers the Cost of the Utilities’ Charitable Donations”,

Order Requiring Deferral of Revenues, Issued September 25,

1989. (Respondent’s Appendix [“R.A.”] at A-1.)

In a subsequent order involving a utility which had not been

a party to the Cahill litigation, the Commission denied recovery

of charitable contributions, referring to its September 25, 1989

order and noting that it had “recently revisited” its policy con-

cerning charitable donations and had “ended the allowance of

charitable contributions. . ..” Opinion No. 89-34, issued October

13, 1989 in Public Service Commission Case 88-G-229, “Pro-

ceeding on Motion of the Commission as to the Rates, Charges,

Rules and Regulations of Consolidated Edison Company of New

York, Inc. for Gas Service”, at 3]. (R.A. at A-7.)

On July 6, 1990, the Commission issued its first order deter-

mining the rates of petitioner Rochester Gas and Electric Cor-

poration following issuance of the September 25, 1989 order

establishing the deferral accounts. In the rate case order, the

Commission explicitly prohibited petitioner from recovering

charitable donations from ratepayers. Opinion No. 90-17, issued

July 6, 1990 in Public Service Commission Cases 89-E-166,

89-E-167 and 89-G-168, “Proceedings on Motion of the Com-

mission as to the Rates, Charges, Rules and Regulations of

Rochester Gas & Electric Corporation for Electric, Street

Lighting and Gas Service”, at Appendix A, Schedule B, page

1; Appendix B, Schedule B, page 1. (R.A. at A-ll, A-16.) The

Commission also ordered petitioner to pass back to ratepayers

$467,000 which it had segregated in accordance with the Com-

mission's September 25, 1989 order. Jd., Appendix A, Schedule

D at 1; Appendix B, Schedule C at 2. (R.A. at A-13, A-19.) The

Commission has not had occasion since September 25, 1989 to

issue an order determining the rates charged by petitioner New

York Telephone Company.

ARGUMENT

Petitioners seek from this Court an order reversing the deci-

sion of the New York Court of Appeals. If this Court were to

issue such an order, however, petitioners would still not be able

to recover their charitable donations from ratepayers. Since the

Commission has now issued orders removing charitable dona-

tions from the category of recoverable expenses, petitioners could

not resume recovery for this item unless the Commission were

to issue new orders authorizing such recovery.

Even if a reversal of the Court of Appeals decision placed the

Commission in a position where it could once more authorize

recovery for charitable donations, it would be under no legal

obligation to do so. The result of its recent “revisiting” of the

question led the Commission to end the allowance of the recovery

of charitable donations. What the Commission would do upon

a future review would be within the Commission’s discretion,

subject to further judicial review.

Given the present posture of this case, there is no “case or con-

troversy” as required by Article III. As the Court said in Simon

v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26

(1976), “.. .the ‘case or controversy’ limitation of Art. III...

requires that a federal court act only to redress injury that fair-

ly can be traced to the challenged action of the defendant, and

not injury that results from the independent action of some third

party not before the court.” 426 U.S. at 41-42. Similarly, there

must be a substantial likelihood that prospective relief by a

federal court will redress the alleged injury. Jd. at 45-46. Ac-

cord Bender v. Williamsport Area School District, 475 U.S. 534

(1986); Warth v. Seldin, 422 U.S. 490, 505 (1975); Linda R.S.

v. Richard D., 410 U.S. 614, 618 (1973).

In this case, even if this Court were to grant the petition for

certiorari and reverse the decision of the Court of Appeuls, the

petitioners could not resume the recovery of charitable dona-

tions from ratepayers. The only party who can authorize such

recovery, the Commission, was not before the Court of Appeals

and is not before this Court.

a

This Court in Simon explained that there was no case or con-

troversy when the party who could provide the relief sought was

not before the court and it was speculative whether the plain-

tiff could be benefitted by a favorable decision. In Simon, the

plaintiffs sought review of new Internal Revenue Service regula-

tions which, plaintiffs claimed, had diminished the amount of

care hospitals would provide the indigent without charge. The

Court dismissed the petition because “it does not follow from

the allegation. . .that the denial of access to hospital services

in fact results from petitioner’s new Ruling, or that a court-

ordered return by petitioners to their previous policy would result

in these respondents’ receiving the hospital services they desire.”

426 US. at 42.

Similarly here, it is wholly speculative whether the Commis-

sion, which is not a party, would authorize the recovery of

charitable donations if it were free to do so. In light of the fact

that this Court cannot afford petitioners the relief they seek,

ie., reinstitution of the Commission’s policy authorizing the

recovery of charitable donations, there is no case or controver-

sy before the Court and certiorari should be denied.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the

State of New York

120 Broadway

New York, NY 10271

(212) 341-2020

O. PETER SHERWOOD

Solicitor General

LAWRENCE S. KAHN

Deputy Solicitor General

[Counsel of Record]

JOHN W. CORWIN

RICHARD W. GOLDEN

Assistant Attorneys General

Counsel for Respondent

Dated: New York, New York

October 5, 1990

APPENDIX

PROLOG SALE YR PR (mm OY OS aE IB en

Th I ONT SUM eee

ee

A-]

STATE OF NEW YORK

PUBLIC SERVICE COMMISSION

At a session of the Public Service Com-

mission held in the City of Albany on

September 7, 1989

COMMISSIONERS PRESENT:

Peter Bradford, Chairman

Harold A. Jerry, Jr.

Eli M. Noam, not participating

James T. McFarland, dissenting

Edward M. Kresky

Henry G. Williams

CASE 29119 — Petition of the Attorney General Requesting

Adoption of a Rule Prohibiting Utilities

from Recovering from Ratepayers the Cost

of the Utilities’ Charitable Donations.

ORDER REQUIRING DEFERRAL OF REVENUES

(Issued and Effective September 25, 1989)

BY THE COMMISSION:

Since 1970, the Commission has allowed utilities to recover

in rates, as a reasonable business expense, a portion of their

charitable contributions. On October 16, 1984, Mr. Joseph Cahill

instituted a court proceeding challenging (1) the Commission's

charitable contributions policy, and (2) the 1984 New York

Telephone Company rate case decision insofar as it allowed that

company to recover for charitable contributions. Mr. Cahill also

asked the court to grant such other relief as it deemed necessary

and proper.

Later, the Attorney General of the State of New York instituted

Article 78 proceedings challenging rate case decisions for Niagara

Mohawk Power Corporation, Central Hudson Gas & Electric

A-2 |

Corporation, and Rochester Gas and Electric Corporation. It

argued that those decisions violated customers’ First and Four-

teenth Amendment rights by allowing rate recovery of charitable

donations. The Attorney General’s petition asked the court to

prohibit rate recovery of charitable donations by these companies

and to require refunds of all sums recovered on account of

charitable donations pursuant to the decisions.

On June 1, 1989, the Appellate Division, Third Department,

upheld a lower court decision granting both petitions but re-

jecting the Attorney General’s request for monetary refunds. The

Court, therefore, annulled the charitable contributions policy

and the rate orders at issue. Although the utilities have expressed

an intention to appeal, they have not obtained a stay of the Ap-

pellate Division’s order.

By letter dated June 15, 1989, the Attorney General has asked

that we implement the Appellate Division's decision by requir-

ing all utilities— not only the four involved in the litigation —

to reduce rates. In the alternative, the Attorney General asks

that utilities be directed to defer revenues associated with the

deferrals to be used as offsets against future rate increases or,

as a last resort, to make rates temporary pending the utilities

appeals. The Consumer Protection Board has submitted a let-

ter in support of the Attorney General.

Various utilities oppose the request. They argue, among other

things, that there should be no rate change, or even a deferral,

until all utilities have been afforded an opportunity to be heard

on-the adequacy of current rates.

In view of the Court’s decision, which has not been stayed,

some action is required with respect to the four companies in-

volved in the litigation, whose rates the Court has held to be

excessive. Reducing rates now would be unwarranted, for it

would impose substantial and costly administrative burdens

while having a barely noticeable effect on customers’ bills. The

better alternative is to require the four companies to defer the

revenues associated with their allowances for charitable con-

tributions and offset those deferrals against future rate awards

LL Os Ct a A cy

A-3

The deferrals should be effective as of June 29, 1989, the date

on which the order implementing the Appellate Division’ s deci-

sion was entered.

The deferrals here required are necessary to insure that the

mandate of the Court is complied with and that the rates of

the companies affected are just and reasonable, in accordance

with the Court's determination. Accordingly, this Order is

adopted as an emergency action pursuant to Sec. 202(6) of the

State Administrative Procedure Act (SAPA), inasmuch as its im-

mediate adoption is necessary for the preservation of the general

welfare and compliance with the requirements of Sec. 202(1)

of SAPA would be contrary to the public interest.

The Commission orders:

1. Commencing June 29, 1989, New York Telephone Com-

pany, Niagara Mohawk Power Corporation, Central Hudson Gas

and Electric Corporation, and Rochester Gas & Electric Cor-

poration shall defer monthly an amount equivalent to one-

twelfth (1/12) of the annual revenue allowance for charitable

contributions authorized in each company’s most recent rate pro-

ceeding(s) for electric, gas or telephone service as applicable.

The federal income tax effect of these amounts shall also be

deferred. Such deferrals shall continue unti] the Commission

renders a decision in the respective company’s next major rate

proceeding(s) for the affected services (electric and gas or

telephone). The amounts so deferred shall be disposed of in a

manner consistent with their treatment for rates.

2. The amounts deferred pursuant to Ordering Clause 1 above

shall accrue interest at the unadjusted customer deposit rate.

Such amounts of interest, and their income tax effect, shall be

deferred for disposition by the Commission.

3. The following accounts shall be used for the deferrals

described in Ordering Clauses 1 and 2 above:

Electric and Gas:

Account 253, Other Deferred Credits, and

Account 190, Accumulated Deferred Income Taxes

A-4

Telephone:

Account 4360, Other Deferred Credits, and

Account 1360, Current Deferred Income Taxes - Dr, or

Account 1510, Noncurrent Deferred Income Taxes - Dr.

4. Records for the above deferrals shall be maintained in such

a manner so as to readily identify to which department each

is applicable.

5. This proceeding is continued.

By the Commission,

(SIGNED) JOHN J. KELLIHER

Secretary

A-5

STATE OF NEW YORK

PUBLIC SERVICE COMMISSION

CASE 29119 - Petition of the Attorney General Requesting

Adoption of a Rule Prohibiting Utilities from

Recovering from Ratepayers the Cost of the

Utilities’ Charitable Donations.

JAMES T. McFARLAND, Commissioner, dissenting:

The long standing Commission policy of permitting utilities

to expense charitable contributions was and is a proper and

reasonable regulatory judgment.

Investor-owned utilities are not public entities such as a

municipal subdivision or public benefit corporations. They are

only publicly regulated in their mission and finances and are

thus essentially private corporations. As such they are obligated

to meet their traditional American corporate civic responsibilities

by participating in charitable activities.

I believe the practice of utilities giving charitable contribu-

tions, if not abused and in reasonable amounts, is a worthwhile

and laudable utility practice which should be continued.

Further, to conclude that a ratepayer can follow the fraction

of a cent of his or her monthly payment to a utility to its ultimate

destination with a particular charitable activity strains credulity.

It makes as much sense as suggesting that one can follow the

wool from a single sheep in the flock to its ultimate destination

as a thread in a man’s suit. To justify the preclusion of the

charitable giving practiced by utilities as a violation of freedom

of speech or freedom of religion is simply an over-extension of

those treasured doctrines.

I would hope that ultimately the decision of the intermediate

appeallate court will be reversed on appeal. There should be

no change in this Commission's policy until a final judicial deter-

mination of this is made.

A6

STATE OF NEW YORK

PUBLIC SERVICE COMMISSION

OPINION NO. 89-34

CASE 88-G-229 - Proceeding on motion of the Commission as

to the rates, charges, rules and regulations

of Consolidated Edison Company of New

York, Inc. for gas service.

OPINION AND ORDER APPROVING REVENUP

REQUIREMENT SETTLEMENT AND PRESCRIBING

RATE DESIGN

Issued and Effective: October 13. 1989

- A7

Con Edison is to return excess earnings to its ratepayers over

a 12-month period.

4. Charitable Contributions

The Stipulation reflects inclusion of $303,000 of charitable

contributions, and provides that the allowance shall continue

until the Commission's policy of allowing charitable contribu-

tions as a recoverable expense is finally found to be unconstitu-

tional and al! rights of appeal are exhausted. The recommended

decision rejected, on the basis of existing Commission policy,

the Attorney General's request that company revenues attrib-

utable to charitable contributions be collected subject to refund.

The Attorney General excepts, and argues on the basis of the

Appellate Division's decision in Cahill that the Commission is

bound legally and morally to implement the decision by pro-

hibiting continued recovery of charitable contributions in rates.

Con Edison points out in Reply Exceptions that the treatment

of charitable contributions follows the requirements of the

Stipulation, which the Attorney General has neither supported

nor opposed. Since all court appeals have not been exhausted,

the company would have the terms of the Stipulation control.

Staff replies that it sees no reason to depart from the Stipula-

tion. However, as a possible compromise of the opposing posi-

tions, staff suggests that allowed revenues be reduced by

$303,000, but that Con Edison be permitted to record the ex-

pense in a deferred account. If the final outcome of Cahill is

contrary to any allowance, the expense deferral can be reversed:

if the final outcome of Cahill supports an allowance, we can

prescribe a method for recovery of the deferred amount.

We have recently revisited our policy concerning charitable

contributions. We ended the allowance of charitable contribu-

tions, by means of a deferral of revenues, for the companies

' Cahill o. Public Service Commission, 147 App. Div. 2d 49 (3d Dept. 1989)

AS

involved in the Cahill litigation.’ No action was taken in that

order on the Attorney General's request that the rates of all

utilities be reduced to reflect disallowance of charitable con-

tributions or that the utilities be directed to defer the related

revenues. For utilities not involved in Cahill, we decided to reflect

the court's prohibition on rate recovery of charitable contribu-

tions in the next rate case of each company. Accordingly, in

Brooklyn Union's pending gas rate case; a settlement that left

rates unchanged was approved, but we reflected a disallowance

of charitable contributions by reducing the amortization of

deferred tax credits. Consistent with Brooklyn Union, in this

proceeding, which involves a rate increase as part of the settle-

ment Stipulation, the appropriate vehicle for reflecting

disallowance of charitable contributions is the increase itself.

The revenue increase calculated according to the terms of the

Stipulation should be reduced by $303,000 to reflect elimina-

tion of any recovery for charitable contributions expense.

Clarification as to Second- and Third-Stage Increases

The language of the Stipulation with respect to the permit-

ted second and third stage increases appears susceptible to

misinterpretation and future argument, despite present agree-

ment by staff and the company as to what is intended. In order

to avoid future controversy and to make clear the basis upon

which we are evaluating the Stipulation,

‘ Case 29119. Petition of the Attorney General Requesting Adoption of a Rule

Prohibiting Utilities from Recovering from Ratepayers the Cost of the Utilities’

Charitable Donations, Order Requiring Deferral of Revenues, issued

September 25, 1989.

' Case 88-C-226, The Brookiyn Union Cas Compeny.

ee

AY

STATE OF NEW YORK

PUBLIC SERVICE COMMISSION

CASE 89-E-166 - Proceeding on Motion of the Commission as

to the Rates, Charges, Rules and Regulations

of Rochester Gas & Electric Corporation for

Electric Service.

CASE 89-E-167 - Proceeding on Motion of the Commission as

to the Rates, Charges, Rules and Regulations

of Rochester Gas & Electric Corporation for

Electric Street Lighting Service.

CASE 89-G-168 - Proceeding on Motion of the Commission as

to the Rates, Charges, Rules and Regulations

of Rochester Gas & Electric Corporation for

Gas Service.

OPINION AND ORDER DETERMINING

REVENUE REQUIREMENT AND RATE DESIGN

Issued and Effective: July 6, 1990

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