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Burns v. Ariz. Pub. Serv. Co. - 3/4/2021

Arizona Court of Appeals holds that a member of the Corporation Commission lacks authority to individually enforce an investigatory subpoena in a ratemaking case over the opposition of the majority of the Commission.


An individual corporation commissioner issued a series of subpoenas to a public service corporation, seeking information on election-related spending.  After the corporation did not produce all information requested, the individual commissioner filed a motion to compel production.  The full Corporation Commission declined to enforce the subpoena.  It concluded that the information the individual commissioner sought was not relevant to the ratemaking case and that the request was unduly burdensome.  The ratemaking case then settled.  The individual commissioner sought relief from the trial court, seeking enforcement of the subpoenas.  The trial court concluded that the individual commissioner did not have authority to unilaterally enforce the subpoenas.  It reasoned that issuing an order directing the Commission to enforce the subpoenas would violate separation of powers, because the trial court would, in essence, be dictating the proper scope of a Commission investigation. 

The Court of Appeals affirmed.  It acknowledged that the state constitution gives individual commissioners broad authority to conduct investigations.  But it noted that the constitution also gives the Commission authority to issue rules that govern its own proceedings.  In fact, the Commission has a rule that states that the entire Commission must resolve objections to the scope of subpoenas.  The Court reasoned that although individual commissioners have the authority to issue subpoenas, that power is subject to the rules of the Commission which limit that power. 

The Court of Appeals also rejected the individual commissioner’s arguments that the Commission’s decision not to enforce the subpoena was arbitrary and capricious and that the participation of some of the other commissioners violated due process.  In rejecting the first argument, the Court of Appeals explained that arbitrary and capricious challenges to Commission rulings can be raised only by parties in interest or the attorney general.  The Court then concluded that only a party to a proceeding has standing to raise a due process challenge to a Commission order.

Judge Cattani authored the opinion; Judges McMurdie and Campbell joined.

Posted by: John Bullock

Disclosure: Osborn Maledon attorneys participated in this case.

Posted On: 3/10/2021