Southern California Edison

140 Cal. App. 4th 1085, 2006 Cal. PUC LEXIS 948 (June 26, 2006)

The Court of Appeal (Second District, Division 3) reversed that portion of a Commission decision in a rulemaking proceeding that directed utilities to pay “prevailing wage” on construction projects.  As a threshold matter, the Court held that the Commission’s order was not preempted by the NLRA.  In a textually brief (but legally more significant) portion of the opinion, however, the Court concluded that (1) the Commission decision under review departed so sharply from the original Scoping Memo (see Section 1701.1(b)) that the Commission had not “proceeded as required by law” (Section 1757(a)(2)) and (2) the departure from the Commission’s own rules was prejudicial.  Indeed, one aspect of this decision that should not be overlooked is that the annulment was based on the Commission’s violation of its own Rules of Practice and Procedure rather than violation of a specific statute.  The Third District took the same approach in Calaveras (Para. 1 supra).  (In an unpublished opinion issued March 16, 2012, TURN v. PUC, 2012 Cal. App. Unpubl. LEXIS 2049, the First District (Division Five) re-affirmed this aspect of the decision while annulling a Commission Order related to the Oakley Generation Project; the same Court revisited Oakley in 2014 in a published opinion. (See, Para. 10)).  While parties to Commission legislative (rulemaking) proceedings may not enjoy formal rights to “due process” in the constitutional sense, (see Para. 69, infra) the Commission is required to follow its own rules as well as those set by statute.  (Note that for the error to result in reversal, the Petitioner must show that the error prejudiced the Petitioner.)  The other notable aspect of the opinion is that it suggests that a court’s discretion to grant or deny a petition for writ of review is more narrow than that suggested by Pacific Bell (Para. 36); the Court stated that “a court ordinarily has no discretion to deny a timely-filed petition for writ review if it appears the petition may be meritorious.” (Emphasis supplied.)

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