Harold L. Green v. Cleary Water, Sewer & Fire District ( 2008 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CC-01618-SCT
HAROLD L. GREEN
v.
CLEARY WATER, SEWER & FIRE DISTRICT
DATE OF JUDGMENT: 09/03/2008
TRIAL JUDGE: HON. DAN H. FAIRLY
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: HAROLD L. GREEN (PRO SE)
ATTORNEY FOR APPELLEE: JAMES A. BOBO
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 09/17/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRAVES, P.J., RANDOLPH AND PIERCE, JJ.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. This is an appeal from decisions by the Mississippi Public Service Commission
(“Commission”) denying a motion to amend, and then dismissing the complaint and the
Rankin County Chancery Court’s order affirming the Commission. The complaint
challenged the Commission’s grant of a Supplemental Certificate of Public Convenience and
Necessity (“Supplemental CCN”) to the Cleary Water, Sewer and Fire District (“Cleary”)
in September 2000. This Court dealt with related matters in Green v. Cleary Water, Sewer
& Fire District, 910 So. 2d 1022 (Miss. 2005) (“Green I”), cert. denied, 547 U.S. 1098, 126
S. Ct. 1883, 164 L. Ed. 2d 568 (2006).
FACTS AND PROCEDURAL HISTORY
¶2. The Cleary Heights Water and Sewer District (“Cleary Heights”) was created in 1980.
That same year, the Commission issued Cleary Heights a Certificate of Convenience and
Necessity (“CCN”) to provide sewer services in a specified area in the Cleary Heights
community in southwest Rankin County. In 1986, Cleary Heights combined operations with
the Cleary Fire Protection District, and was renamed Cleary Water, Sewer and Fire District.
Under the CCNs in effect at that time, Cleary continued to operate a sewer for the originally-
specified area, but provided fire protection and potable water service to a larger area. Harold
Green (“Green”) resides in the larger area which was provided water service and fire
protection, but was not served by Cleary’s centralized sewer system. Residents of that area,
including more than 700 households and other customers, use individual on-site wastewater
disposal systems (“IOWDS”).
¶3. In 2000, Cleary sought to increase the sewer-service area so that it would be identical
to the area being provided water service and fire protection. Cleary applied to the
Commission for a supplemental CCN to enlarge the sewer-service area. Prior to the approval
of the supplemental CCN, Cleary adopted a new Sanitary Sewer Use Ordinance, which
required all property owners to connect to “a public sanitary sewer” if access was available,
or later became available, within one hundred feet of the property. Anyone installing a new
IOWDS would have to have it inspected and approved by the district. Residents with
existing IOWDSs would have to operate them in a sanitary manner.
¶4. Cleary asserted in its application for the supplemental CCN that it was “ready, willing
and able to construct, operate and maintain a sewer system so as to render sewer service to
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the public for compensation in the additional area proposed to be served.” In September
2000, after notice and a hearing, the Commission granted the supplemental CCN. The
Commission found that (1) Cleary was authorized and permitted to “construct, operate and
maintain a sewer system in the additional area,” (2) all persons requesting sewer service in
the new area would be served at the previously-approved rates, and (3) statutory notice
requirements had been met and “[n]o protest or objection [had] been filed.” The Commission
also stated in its order, “Construction of the proposed sewer system shall be commenced
within six (6) months from the effective date of this Order or this Certificate may be
cancelled.” (Emphasis added.)
¶5. In June 2001, Cleary adopted a Decentralized Wastewater Use Ordinance
(“Ordinance”). Green I, 910 So. 2d at 1024-25. With some exceptions, the ordinance
essentially codified the rules that had existed prior to the grant of the supplemental CCN.
The ordinance did not call for a new sewer system to be constructed, nor did it provide for
an extension of the existing central sewer to the residences in the new area. The ordinance
required IOWDS owners in the new area to have them inspected within one year, and
annually thereafter. Id. at 1025. The inspection results were to be sent to Cleary to prove
that the system was working properly. Id. Owners of properly-functioning IOWDSs were
not otherwise affected. Owners unable to show a properly-working IOWDS would be
required to install a new system. Id. Cleary was to accept ownership of the new IOWDS and
maintain them for the property owner for a monthly fee to be added to the water bill. Id.
Prior to adopting the ordinance, Cleary published a Notice of Public Hearing concerning the
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proposal. Id. After receiving no objections at the public hearing, Cleary adopted the
ordinance. Id.
¶6. In Green I, Green and more than one hundred other residents of the affected area
challenged Cleary’s authority to enact the ordinance. Id. This Court held that Cleary had
such authority under its general police powers. Id. at 1031. However, the Court declined to
affirm summary judgment in favor of Cleary, finding that genuine issues of material fact
existed as to whether the ordinance conflicted with Mississippi Department of Health
(“MDH”) regulations and whether the ordinance constituted a taking. Id. The taking issue
became moot when Cleary amended the ordinance, removing the clause providing for Cleary
to take ownership of the IOWDSs. The record does not reflect how the MDH issue was
resolved.
¶7. In August 2004, while Green I was still in litigation,1 Green filed a separate
complaint, in which he requested that the Commission vacate its order granting the
supplemental CCN. He argued that the Commission had reserved its right to cancel the
supplemental CCN if sewer construction did not begin within six months, and asserted that
nearly forty-eight months had passed without commencement of construction. He asserted
that this failure proved that Cleary had made “false statements” in its bid to gain approval of
the supplemental CCN.
1
Just before this filing, the Court of Appeals had held for Cleary, affirming its motion
for summary judgment. Green v. Cleary Water, Sewer & Fire Dist., 910 So. 2d 1, 5-6
(Miss. Ct. App. 2004), cert. granted, 892 So. 2d 824 (Miss. 2005).
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¶8. In December 2004, Green moved to amend his complaint to assert that notice of the
Commission’s hearing had not been proper or adequate. Green argued that the only notice
given was for the enlargement of the sewer-service area, without notice of intention to set up
a decentralized system. Green claimed that such a system was very rare in Mississippi, and
could not have been anticipated by the notice given.
¶9. In February 2005, the Commission denied Green’s motion to amend, stating that it had
complied with statutory notice requirements by publishing a notice of hearing in a newspaper
of general circulation published in Jackson, and a newspaper of general circulation in the
county where the certificated area is located. The Commission found that Green was seeking
notice beyond that required by statute. See Miss. Code Ann. § 77-3-47 (Rev. 2001).
¶10. On April 5, 2005, the Commission dismissed Green’s original complaint without a
hearing. In its dismissal order, the Commission found that Green’s only basis for seeking the
cancellation of the supplemental CCN was that construction of a sewer had not begun within
six months. The Commission noted that the order granting the supplemental CCN, as with
all of its certification orders where timing is not crucial, used permissive language
(“Certificate may be cancelled”), not mandatory language. Thus, the Commission was not
required to cancel the certificate, but had the option to do so, if warranted or advisable. The
Commission also found that the only method for cancellation of a CCN is set forth by statute
in Mississippi Code Section 77-3-21 (Rev. 2001). That statutory process requires a finding
that the utility is not “rendering reasonably adequate service,” which Green did not allege in
his complaint. The Commission noted also that, after Green filed his complaint, Cleary filed
a “Satisfaction of Complaint,” in which it offered to run a sewer line to Green’s house.
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Green did not respond to the offer; thus the Commission found that Green’s issue was not
inadequacy of service. The Commission cited Rule 11D of the Mississippi Public Service
Commission Public Utilities Rules of Practice and Procedure (“the Commission’s rules”),
which allows it to dismiss a complaint without a hearing, if “not necessary to the public
interest or for the protection of substantial rights.” The Commission found also that (1) Green
had shown no “direct and substantial interest in the subject matter of the complaint,” and (2)
Cleary had not made any false statements to the Commission.
¶11. On April 21, 2005, Green appealed to the Chancery Court of Rankin County on the
dismissal of his complaint, as well as the denial of his motion to amend. Later, Green filed
a Motion to Compel Supplementation of the Record, alleging that the supplemental CCN was
not lawfully granted because Cleary had not provided all the documents required under the
Commission’s rules. Up to this point in the proceedings, Green had been represented by
counsel. Both Green and his attorney submitted briefs to the chancellor. At oral argument
before the chancellor, Green appeared pro se. Although he has continued to proceed pro se,
he claims to represent 160 petitioners.2
¶12. In its order affirming the Commission, the chancery court analyzed the following
issues: (1) Whether the court had jurisdiction over the Commission’s decisions in 2000 and
2005, (2) whether Green had standing, (3) whether the Commission had committed reversible
2
Green closes his pleadings with the phrase, “Respectfully submitted by 160
petitioners.” Green obtained 160 signatures on a petition to the Rankin County Board of
Supervisors asking it to intervene with the Commission to have the supplemental CCN
canceled.
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error in dismissing the complaint, and (4) whether the Commission may dismiss a complaint
without a hearing.
¶13. The chancellor found that Green was not appealing from the 2000 grant of the
supplemental CCN, but even if he was, the court would be without jurisdiction because the
appeal was not brought within thirty days of the order. See Miss. Code Ann. § 77-3-67(1)
(Rev. 2001). The court further held that it was without jurisdiction over the Commission’s
denial of Green’s motion to amend. The court then found jurisdiction over the dismissal, as
Green had perfected his appeal within thirty days of the dismissal order.
¶14. On the issue of standing, the chancellor found that Green did have an interest in the
litigation because a decision rendered by the court could affect his interest, as a property
owner, in the certificated area. The court found further that Green had alleged no loss,
damage, injury, or harm; nor had he shown any potential threat of any such loss, damage,
injury, or harm. The Court rejected Green’s argument that he was not given proper notice
of Cleary’s true intentions, because the issue of the supplemental CCN was expansion of the
service area, not what type of service would be provided. The chancellor affirmed the
Commission’s dismissal of the complaint. Finally, the chancellor held that the Commission
was within its authority to dismiss the complaint without a hearing, because such a hearing
was not necessary to the public interest or to protect substantial rights.
ISSUES
¶15. Green raises fourteen issues in his pro se brief to this Court. These can be reduced to
four, as follows: (1) whether the 2000 supplemental CCN was improperly granted based on
Cleary’s and the Commission staff members’ false statements, which were known by the
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Commission to be false; (2) whether the 2000 supplemental CCN was illegally granted
because the Commission failed to follow its own rules, requiring certain documents to be
filed; (3) whether the Commission was required to cancel the supplemental CCN because of
Cleary’s failure to construct a sewer system; and (4) whether it was error for the Commission
to deny Green’s motion to amend and to dismiss his complaint.
¶16. In fairness to Green, we will address the arguments made by Green’s counsel in his
chancery court brief. The issues raised were: (1) whether the dismissal was arbitrary,
capricious, and not supported by substantial evidence; (2) whether it was error for the
Commission to deny a hearing; (3) whether Green has standing; (4) whether the complaint
should have triggered an “adequacy of service” proceeding under Mississippi Code Section
77-3-21 (Rev. 2001); (5) in the alternative, whether the statute is inapplicable; (6) whether
administrative decisions based on legal errors are entitled to deference; (7) whether the
dismissal violated Green’s constitutionally-guaranteed rights; (8) whether the ordinance
constituted an improper taking; (9) whether Green was adequately notified of the 2000 grant
of supplemental CCN; and (10) if notice was inadequate, making the statutory appeal
deadline inapplicable, whether the court had jurisdiction.
¶17. Green identifies inter alia the Commission’s 2005 orders as issues for this Court to
review. Although he is in compliance with the requirement that he identify any such issues
under the “Statement of Issues” heading of his appeal brief, in his argument of these issues,
he cites no authority. See M.R.A.P. 28(a)(3). Thus, he is in violation of Mississippi Rule of
Appellate Procedure 28(a)(6). Nonetheless, his attorney’s chancery-court brief complies
with the above rules, and this Court may suspend the requirements of a rule. See M.R.A.P.
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2(c); United Am. Ins. Co. v. Merrill, 978 So. 2d 613, 631 (Miss. 2007) (arguments that cited
no authority, in violation of Rule 28(a)(6), were addressed “for informational purposes”);
Vicksburg Partners v. Stephens, 911 So. 2d 507, 512-13 (Miss. 2005), overruled on another
issue by Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds ex. rel. Braddock,
2009 WL 2393918 (Miss. August. 6, 2009) (a pro se appellee submitted no brief; Court used
“the briefs and pleadings submitted to the trial court by her trial attorneys”). Cleary cites
Entergy Mississippi, Incorporated v. Bolden, 854 So. 2d 1051(Miss. 2003), which states that
“‘an argument unsupported by cited authority need not be considered by the Court.’” Id. at
1057 (quoting Dowdle Butane Gas Co. v. Moore, 831 So. 2d 1124, 1136 (Miss. 2002)). The
language “need not” allows this Court to consider such an argument. Further, in Bolden, the
appellant was not proceeding pro se, and there were no briefs available from an intermediate
appeals court as we have here. Id. at 1051. Therefore, we suspend enforcement of Rule
28(a) and consider the issues raised, and the arguments made, by Green’s attorney.
¶18. The issues discussed below are as follows:
(1) Whether this Court has jurisdiction over the decisions made by
the Commission in 2000 and 2005.
(2) Whether Green has standing to maintain this action on appeal.
(3) Whether it was reversible error to deny Green’s motion to
amend his complaint.
(4) Whether it was reversible error to dismiss Green’s complaint.
(5) Whether it was reversible error to deny Green a hearing.
(6) Whether the complaint should have triggered an “adequacy of
service” proceeding.
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DISCUSSION
¶19. Our standard of review is as follows:
A court faced with the review of a decision of an administrative agency is very
limited as to the scope and depth of its inquiry. Rule 5.03 of the Uniform
Circuit and County Court Rules provides that the reviewing court will
entertain an appeal only to determine if the order or judgment of the lower
authority was: 1) supported by substantial evidence; 2) arbitrary or capricious;
3) beyond the power of the lower authority to make; or 4) violated some
statutory or constitutional right of the complaining party.
Thomas v. Pub. Employees' Ret. Sys., 995 So. 2d 115, 118 (Miss. 2008) (citing Fulce v.
Pub. Employees' Ret. Sys., 759 So. 2d 401, 404 (Miss. 2000)); see also Miss. Code Ann. §
77-3-67(4) (Rev. 2001). “A rebuttable presumption exists in favor of the action of an
administrative agency, and the burden of proof is on the party challenging an agency's
action.” Hill Bros. Constr. & Eng'g Co. v. Miss. Transp. Comm'n, 909 So. 2d 58, 64 (Miss.
2005) (citing Pub. Employees' Ret. Sys. v. Marquez, 774 So. 2d 421, 425 (Miss. 2000)).
I. Whether this Court has jurisdiction over the decisions made
by the Commission in 2000 and 2005.
A. The Grant of a Supplemental CCN in 2000.
¶20. The chancellor found that Green was not appealing the grant of the supplemental
CCN, but if he had been, his appeal would have been time-barred. Thirteen of the fourteen
issues brought to this Court by Green deal with the Commission’s 2000 grant of the
supplemental CCN. His attorney argued in his chancery court brief that the court had
jurisdiction to revoke the supplemental CCN. Thus, Green is attempting to appeal the
supplemental CCN decision by way of appealing the Commission’s orders in 2005.
However, the chancellor correctly found that the court was without jurisdiction to hear such
10
an appeal. Mississippi Code Section 77-3-67(1) (Rev. 2001) requires an appeal of an order
of the Commission to be filed within thirty days of the order. Id. Green’s appeal was filed
more than four years after the order granting the supplemental CCN. This Court has stated,
“Where an appeal is not perfected within the statutory time constraints no jurisdiction is
conferred on the appellate court; and the untimely action should be dismissed.” Bowen v.
DeSoto County Bd. of Supervisors, 852 So. 2d 21, 23 (Miss. 2003) (citing Newell v. Jones
County, 731 So. 2d 580 (1999)). See also Dependents of Townsend v. Dyer Woodturnings,
Inc., 459 So. 2d 300, 302 (Miss. 1984) (dismissed for lack of jurisdiction; notice of appeal
not timely submitted to a state commission).
¶21. Further, as Green was not a party to the grant of the supplemental CCN, he may not
appeal from that decision. See Miss. Code Ann. § 77-3-67(1) (Rev. 2001) (“any party
aggrieved by any final finding, order or judgment of the commission . . . shall have the right
. . . of appeal to the chancery court”); see also In re Appeal of Final Decisions of Pub. Serv.
Comm’n, 604 So. 2d 218, 219-22 (Miss. 1992) (appeal by electricity customers dismissed,
as they had not properly intervened to become parties to a rate-setting decision). This Court
has held that “‘statutes which allow a 'party' to appeal, as a rule, limit the right to those who
were original parties to the action or proceeding.’” Id. at 222 (quoting Ridgway v. Scott, 237
Miss. 400, 405, 114 So. 2d 844, 845 (1959)).
¶22. Green argues that the appeal deadline in Mississippi Code Section 77-3-67 is
inapplicable because the notice did not give him “fair notice and an opportunity to be heard.”
Miss. Power Co. v. Goudy, 459 So. 2d 257, 263, 271 (Miss. 1984) (the Commission’s rate-
approval procedure survived constitutional challenge). Green does not deny that notice was
11
made in accordance with the statute, but claims that notice was inadequate because it did not
inform him that a decentralized system would be implemented. The applicable notice statute
requires the following:
The commission shall fix the time and place of hearings and shall serve notice
thereof, not less than twenty (20) days before the time set for such hearings .
. . . Notice of all such hearings shall be given the persons interested therein by
mailing such notice to each public utility which may be affected by any order
resulting therefrom and by publication in a newspaper of general circulation
published in Jackson, Mississippi, and, in a proceeding for a facility certificate
or an area certificate, by publication in a newspaper of general circulation in
the county or counties where the facility or area is located.
Miss. Code Ann. § 77-3-47 (Rev. 2001). It is undisputed that the Commission filed a timely
notice in The Clarion-Ledger, a newspaper published in Jackson and of general circulation
in the City of Jackson and in Rankin County. The remaining cases cited by Green on this
issue all are clearly distinguishable.
¶23. The Commission found that Green was attempting to impose a notice requirement (the
type of sewer to be utilized) beyond that required by statute. See Miss. Code Ann. § 77-3-47
(Rev. 2001). The statute does not require such notice. Green was notified of the planned
implementation of the decentralized sewer system, not at the time of the expansion of the
certificated area, but the next year when Cleary adopted the ordinance. Cleary published
notice concerning the adoption of the ordinance, and then passed the ordinance after a public
hearing at which no one expressed opposition. Green I, 910 So. 2d at 1025.
¶24. Green’s central complaint is that Cleary pulled a “bait and switch” on him and the
other petitioners, by claiming it would construct a sewer system for the area, while having
no intent to do so. Cleary’s manager said in a newspaper article as early as 2002 that the
12
decentralized sewer system was “not something we did overnight. This was two or three
years in the making.” Cleary’s manager also said that a centralized system would cost
approximately $17,000 per home. The allegations against Cleary are of no event, for, even
if the chancellor had granted them credence, they do not alter the fact that the appeal was
untimely filed.
B. The D enial of L eave to A m end and the
Dismissal of the Complaint in 2005.
¶25. Following the same analysis, the chancellor found that the chancery court was without
jurisdiction to hear an appeal of the denial of Green’s motion to amend. The thirty-day
appeal deadline applies to any “final finding, order or judgment of the commission . . . .”
Miss. Code Ann. § 77-3-67(1) (Rev. 2001). The Commission issued its “Order Denying
Motion” on February 23, 2005. Green did not appeal until April 21, 2005. Thus, if the
statute applies to the February order, the chancellor was correct. However, in Mississippi
Power Company v. Mississippi Public Service Commission, 240 Miss. 621, 128 So. 2d 351
(1961), this Court affirmed a chancery court’s dismissal of an interlocutory appeal from the
Commission’s procedural orders. Id. at 629. This Court held that it was without jurisdiction
over interlocutory appeals from the Commission. Id. at 627, 629. In doing so, the Court
applied a prior version of the applicable statute, section 7716-26 of the Mississippi Code of
1942, which has not been amended in any way relevant to this issue. Therefore, Green was
not required to appeal the denial of his motion to amend within thirty days of the order. If
he had, as an interlocutory appeal, it would have been properly dismissed and remanded to
the Commission. The thirty-day appeal deadline applies only to the final order issued April
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5, 2005. Thus, the chancery court did have jurisdiction to consider the order denying Green’s
motion to amend. Further, the chancery court had jurisdiction to entertain an appeal of the
April 5, 2005, dismissal of Green’s complaint. Green appealed within the thirty-day
statutory deadline of the final order dismissing his complaint. See Miss. Code Ann. § 77-3-
67(1) (Rev. 2001).
II. Whether Green has standing to maintain this action on
appeal.
¶26. Standing is a legal question; thus the decision of the Commission on this matter is not
entitled to the same level of deference as cited supra. The applicable standard of review is
as follows:
The order shall not be vacated or set aside either in whole or in part, except for
errors of law, unless the court finds that the order of the commission is not
supported by substantial evidence, is contrary to the manifest weight of the
evidence, is in excess of the statutory authority or jurisdiction of the
commission, or violates constitutional rights.
Miss. Code Ann. § 77-3-67(4) (Rev. 2001) (emphasis added).
¶27. Cleary cites rule 11B(1) of the Commission’s rules, which states that a complainant
“must affirmatively show . . . a direct and substantial interest in the subject matter . . . .”
Code Miss. R. 26-000-001 (2008). Green cites caselaw requiring the assertion of a
“colorable interest . . . or . . . an adverse effect . . . .” City of Belmont v. Miss. State Tax
Comm'n, 860 So. 2d 289, 296 (Miss. 2003); State v. Quitman County, 807 So. 2d 401, 405
(Miss. 2001) (emphasis added). Both the Commission and the chancery court held that
Green was without standing. The Commission found that Green had shown no justiciable
interest. The chancellor used a two-step analysis, finding that it was “clear” that Green had
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an interest, as a decision of the court “could affect an interest Green has in his property.”
However, the chancellor found Green to be without standing because he had alleged no
injury or threat of an injury. While it may be true that Green cited no injury, that does not
equate to a lack of standing. He claims injury from the fact that he would have expenses in
connecting to a central sewer system, although there are no current plans to construct or
extend the sewer into Green’s area. Green also claims injury from Cleary’s plans to take
ownership of IOWDSs, but that claim is moot, as the ordinance no longer includes such a
clause.
¶28. Despite the lack of showing of an injury, Green could still have standing. This Court
has stated, “It is well settled that ‘Mississippi’s standing requirements are quite liberal.’”
Quitman County, 807 So. 2d at 405 (quoting Dunn v. Miss. State Dep’t of Health, 708 So.
2d 67, 70 (Miss. 1998)). This liberality is due to the lack of “cases and controversies”
language in Mississippi’s Constitution as compared to Article III, Section 2 of the U.S.
Constitution. Quitman County, 807 So. 2d at 405. “Therefore, this Court has been ‘more
permissive in granting standing to parties who seek review of governmental actions.’” Id.
(quoting Van Slyke v. Bd. of Trs. of State Insts. of Higher Learning, 613 So. 2d 872, 875
(Miss. 1993)). In USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783 (Miss.
1997), this Court held that “the ‘standing’ requirement . . . allow[s] a private citizen to
challenge governmental actions contrary to law where the actions would otherwise escape
challenge . . . .” Id. at 789.
¶29. The test for standing in Mississippi is as follows: “Parties may sue or intervene where
they assert a colorable interest in the subject matter of the litigation or experience an adverse
15
effect from the conduct of the defendant, or as otherwise authorized by law.” City of
Belmont, 860 So. 2d at 296 (emphasis added) (citations omitted). See also City of Starkville
v. 4-County Elec. Power Ass’n, 909 So. 2d 1094, 1104 (Miss. 2005). The chancellor found
correctly that Green had an interest in the litigation. As Green is a resident of the certificated
area, a decision by the Commission may affect an interest he has in his property. However,
in his apparent attempt to resurrect Green I claims, he pleaded no injury, loss, harm, or the
threat of same. His 2004 complaint would be subject to an analysis akin to that of
Mississippi Rule of Civil Procedure 12(b)(6), and therefore, was subject to dismissal under
MPSC Rule 11B(3). There being no new claim offered, we cannot say there is an
inconsistency with the Commission’s rule, which “cannot supersede the requirements of .
. . the pertinent rules of law.” Capital Elec. Power Ass’n v. Miss. Power & Light Co., 240
Miss. 139, 153, 125 So. 2d 739, 744 (1961).
III. Whether it was reversible error to deny Green’s motion to
amend his complaint.
¶30. Green moved to amend his complaint to say that notice of the supplemental CCN was
not proper or adequate because he received no notice that a decentralized system would be
used. In its order denying the motion, the Commission noted that the statutory notice
requirements had been met, and stated that Green was seeking to impose a notice requirement
beyond that required by statute. The chancellor treated this as a moot issue, for he already
had found that the court had no jurisdiction over this matter. Since jurisdiction was proper,
we consider this issue.
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¶31. The Commission’s rules do not explicitly grant the power to deny a motion to amend,
but as an administrative agency “in the exercise of judicial or quasi-judicial powers,” the
Commission has that authority. Love v. Miss. State Bd. of Veterinary Exam’rs, 230 Miss.
222, 230, 92 So. 2d 463, 467 (1957). “Administrative agencies are, as a general rule,
unrestricted by the technical or formal rules of procedure which govern trials before a court.”
Id. Specifically, the Mississippi Rules of Civil Procedure are not applicable at administrative
proceedings. Miss. Real Estate Appraiser Licensing & Certification Board. v. James, 730
So. 2d 1135, 1139 (Miss. 1999).
¶32. Green cites Rule 11B(3) of the Commission’s rules, alleging that the Commission
violated its own rule by not notifying Green and his attorney of Green’s right to amend. The
rule reads as follows:
Procedure. Upon the filing of such a complaint, the Commission will
immediately examine the same to determine whether it alleges a prima facie
case and conforms to these rules. If the Commission is of the opinion that the
complaint does not allege a prima facie case or does not conform to these
rules, it will notify the complainant or his attorney to that effect, and
opportunity may be given to amend the complaint within a specified time.
Code Miss. R. 26-000-001 (2008). The rule applies to the original complaint, for which there
would have been no reason to have notified Green or his attorney. Further, the rule uses
permissive, not mandatory, language regarding the opportunity to amend. The remainder of
Green’s argument refers to alleged problems with the 2000 grant of a supplemental CCN for
which the time to appeal has lapsed. As we find that the Commission did not commit
reversible error in denying Green’s motion to amend, the result, although for a different
reason than articulated by the chancellor, is the same.
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IV. Whether it was reversible error to dismiss Green’s
complaint.
¶33. The Commission dismissed Green’s complaint for two reasons: (1) The statutory
procedure under Mississippi Code Section 77-3-21 (Rev. 2001) is the exclusive method for
canceling a CCN. It requires a finding that a utility is not providing “reasonably adequate
service,” a contention Green did not allege. (2) Because of the permissive language in the
supplemental CCN, the Commission was not required to cancel it when sewer construction
did not commence within six months. The chancellor used the same analysis in affirming
the Commission.
¶34. “‘Substantial evidence means more than a scintilla or suspicion.’” Miss. State Dep't
of Health v. Baptist Mem’l Hosp.-DeSoto, Inc., 984 So. 2d 967, 975 n.13 (Miss. 2008)
(quoting Miss. State Dep't of Health v. Natchez Cmty. Hosp., 743 So. 2d 973, 977 (Miss.
1999)). This court has defined arbitrary and capricious as follows:
“Arbitrary” means fixed or done capriciously or at pleasure. An act is
arbitrary when it is done without adequate determining principle; not done
according to reason or judgment, but depending upon the will alone, – absolute
in power, tyrannical, despotic, nonrational, – implying either a lack of
understanding of or a disregard for the fundamental nature of things.
“Capricious” means freakish, fickle, or arbitrary. An act is capricious when
it is done without reason, in a whimsical manner, implying either a lack of
understanding of or a disregard for the surrounding facts and settled
controlling principles.
Hill Bros. Constr., 909 So. 2d at 70 (quoting In re Hous. Auth. of Salisbury, 70 S.E.2d 500,
503 (N.C. 1952)).
¶35. Mississippi Code Section 77-3-21 (Rev. 2001) allows the Commission to make
findings on whether a utility is providing “reasonably adequate service.” Id. The
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Commission may order a utility to correct specified problems, and if the utility fails to do so,
the Commission may revoke a CCN if it finds that revocation would be in the “best interest
of the consuming public . . . .” Id. This Court has held that this statutory process is the
“exclusive method” for cancellation of CCNs. Delta Elec. Power Ass’n. v. Miss. Power &
Light Co., 250 Miss. 482, 506-07, 149 So. 2d 504, 511 (1963) (“The statutory expression of
one method for cancellation of certificates is justly to be construed as an exclusion of other
methods”).
¶36. The order granting the supplemental CCN stated, “Construction on the proposed
sewer system shall be commenced within six (6) months from the effective date of this Order
or this Certificate may be canceled.” (Emphasis added.) Rule 7A(4) of the Commission’s
rules allows the use of mandatory language requiring commencement within 180 days,
leading to automatic voiding of a CCN if the deadline is not met. See Code Miss. R. 26-000-
001. The Commission submits that it uses this mandatory provision when timing is crucial.
Here, timing was not crucial, and the permissive language merely allowed the Commission
to begin revocation proceedings if necessary. Green’s arguments on this issue are without
merit.
¶37. The rest of Green’s argument against the dismissal is based on claims of the
following: (1) an inadequate and improper notice of the 2000 supplemental CCN
proceedings, (2) a taking of his property, and (3) false statements and concealment of facts
by Cleary and the Commission and its staff. All these issues have been dealt with elsewhere
in this opinion. Based on the analysis above, we find that the Commission did not commit
reversible error in dismissing Green’s complaint.
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V. Whether it was reversible error to deny Green a hearing.
¶38. The Commission cited Commission Rule 11D, which allows for the dismissal of a
complaint without a hearing if such a hearing is “not necessary to the public interest or for
the protection of substantial rights.” Code Miss. R. 26-000-001. The Commission justified
this by stating the following: (1) Cleary had explained the delay in sewer implementation,
(2) Green had no direct and substantial interest in the subject matter, (3) Green had not
alleged inadequate service, and (4) the Commission was not required to revoke the
supplemental CCN if sewer construction did not begin in six months. The chancellor
affirmed the Commission’s ruling, using the same analysis.
¶39. The Commission is authorized, by a Commission rule (11D) and by statute, to dismiss
a complaint without a hearing. See Code Miss. R. 26-000-001; Miss. Code Ann. § 77-3-47
(Rev. 2001). See also Arnold Line Water Ass'n v. Miss. Pub. Serv. Comm’n, 744 So. 2d
246, 250 n.2 (Miss. 1999). A hearing was “not necessary in the public interest or for the
protection of substantial rights.” Miss. Code Ann. § 77-3-47 (Rev. 2001). Green’s rights
were not infringed by the lack of a hearing. As noted elsewhere, (1) the takings issue, as
alleged in Green I, is now moot; and (2) the statutory notice requirements were satisfied. See
Green I, 910 So. 2d at 1030-31. The public interest would not have been served by granting
Green a hearing, which would have been futile. We find that the Commission did not
commit reversible error in denying Green a hearing.
VI. Whether the complaint should have triggered an “adequacy
of service” proceeding.
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¶40. Neither Green’s complaint, nor his aborted amendment, alleged any inadequacy of
service on the part of Cleary. Mississippi Code Section 77-3-21 (Rev. 2001) is the exclusive
method by which the Commission may cancel a CCN. Delta Elec. Power Ass’n, 149 So. 2d
at 511. The Commission may call for hearings on adequacy of service on its own motion.
See Miss. Code Ann. § 77-3-21 (Rev. 2001). Alternatively, the Commission is obliged to
hold such hearings if at least ten percent of a public utility’s subscribers file a complaint
alleging inadequate service. See Miss. Code Ann. § 77-3-11(5) (Rev. 2001).
¶41. Green argues that his complaint should have been taken as an allegation of inadequate
service. Green attempts to buttress his argument by stating that (1) he was joined by 122
others in Green I, and (2) he obtained 160 signatures on his petition asking the Rankin
County Board of Supervisors to intervene with the Commission. See Green I, 910 So. 2d
at 1024. It is true that either of these numbers (122 or 160) represents a sufficient number
of complainants. However, none of Green’s arguments can make up for the fact that he did
not allege any inadequacy of service in his complaint to the Commission. Further, none of
the other “petitioners” actually joined in Green’s complaint to the Commission. We find that
the Commission did not err by failing to institute adequacy of service proceedings against
Cleary.
CONCLUSION
¶42. This Court has jurisdiction over the orders of the Commission in 2005, but not over
the grant of the supplemental CCN in September 2000. Green has standing to bring this
action. It was not reversible error for the Commission to (1) deny Green’s motion to amend
his complaint, (2) dismiss Green’s complaint, (3) deny a hearing, (4) decline to institute
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adequacy of service proceedings. Although we employ a different analysis than the tribunals
below, “‘[i]t is well established in our jurisprudence that the right result reached for the
wrong reason will not be disturbed on appeal.’” Cucos, Inc. v. McDaniel, 938 So. 2d 238,
247 (Miss. 2006) (quoting Accredited Sur. & Cas. Co., Inc. v. Bolles, 535 So. 2d 56, 60
(Miss. 1988)). Therefore, the judgments of the Mississippi Public Service Commission and
of the Chancery Court of Rankin County are affirmed.
¶43. AFFIRMED.
WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT
ONLY.
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