Colorado § 40-6-114 - Reconsideration, reargument, or rehearing - application - basis of review - order - exception.

§ 40-6-114. Reconsideration, reargument, or rehearing - application - basis of review - order - exception.

(1) After a decision has been made by the commission or after a decision recommended by an individual commissioner or administrative law judge has become the decision of the commission, as provided in this article, any party thereto may within twenty days thereafter, or within such additional time as the commission may authorize upon request made within such period, make application for rehearing, reargument, or reconsideration of the same or of any matter determined therein. Such application shall be governed by such general rules as the commission may establish and shall specify with particularity the grounds upon which the applicant considers the decision unlawful. Any such application shall, within thirty days after the filing thereof, be considered and acted upon by the commission. Failure to act upon the application within such period shall constitute a denial thereof. Rehearing, reargument, or reconsideration may be granted if sufficient reason therefor is shown.

(2) An application for rehearing, reargument, or reconsideration of a decision of the commission made in accordance with the provisions of this section and the rules and regulations of the commission shall not stay or postpone such decision unless the commission, upon motion by the party seeking such stay or postponement or the commission upon its own motion, so orders; except that orders of the commission issued for the installation of automatic or other safety appliance signals or devices at railroad crossings shall be processed and handled to completion when such application deals solely with the matter of allocation of the costs thereof among the railroad company and the state and the political subdivisions pursuant to section 40-4-106.

(3) If after rehearing, reargument, or reconsideration of a decision of the commission it appears that the original decision is in any respect unjust or unwarranted, the commission may reverse, change, or modify the same accordingly. Any decision made after rehearing, reargument, or reconsideration, reversing, changing, or modifying the original decision may be subject to the same provisions with respect to rehearing, reargument, or reconsideration as an original decision or any such decision may be subject to judicial review as provided in section 40-6-115, at the option of the party seeking review. If the commission denies said application, the original order shall become effective according to its terms, unless the commission otherwise orders, except as provided in section 40-6-116.

(4) If no application for rehearing, reargument, or reconsideration has been made or, if made, is withdrawn, a suit to enforce, enjoin, suspend, modify, or set aside any final decision of the commission, in whole or in part, may be brought in a district court of the state of Colorado as set forth in this article; except that, if any party to a proceeding applies for reconsideration, reargument, or rehearing, no other party may appeal until the commission has ruled on the application. For purposes of judicial review, a decision on an application for rehearing, reargument, or reconsideration shall be deemed final on the date said decision is served on the parties to the proceeding.

(5) Any court may stay or suspend, in whole or in part, the operation of any commission decision under section 40-6-116, even though the commission had not been previously requested to suspend or stay such decision.

(6) (Deleted by amendment, L. 93, p. 2065, § 20, effective July 1, 1993.)

Source: L. 13: p. 496, § 51. C.L. § 2960. CSA: C. 137, § 51. L. 53: p. 470, § 1. CRS 53: § 115-6-14. L. 61: p. 630, § 1. C.R.S. 1963: § 115-6-14. L. 69: p. 949, § 46. L. 77: (2) amended, p. 1859, § 1, effective May 20. L. 81: (2) amended, p. 1924, § 1, effective March 27. L. 89: (1) amended, p. 1532, § 16, effective April 12. L. 92: (3), (4), and (5) amended and (6) added, p. 2130, § 2, effective July 1. L. 93: (4) and (6) amended, p. 2065, § 20, effective July 1.

ANNOTATION

Law reviews. For article, "Prosecuting an Appeal from a Decision of the Colorado Public Utilities Commission", see 16 Colo. Law. 2163 (1987).

The act makes provision for review on rehearing which is comparable to a motion for new trial in judicial proceedings, and is, of course, a prerequisite to judicial review. Pub. Utils. Comm'n v. Nw. Water Corp., 168 Colo. 154, 451 P.2d 266 (1969).

This section calls for a motion for rehearing within 20 days after a decision of the commission. Mtn. States Tel. & Tel. Co. v. Pub. Utils. Comm'n, 345 F. Supp. 80 (D. Colo. 1972).

An applicant for expanded authority acquires no final rights until the time for filing a petition for rehearing has expired. Denver Clean-Up Serv., Inc. v. Pub. Utils. Comm'n, 174 Colo. 329, 483 P.2d 974 (1971).

Action on application for rehearing is limited to grant or denial. It is clear from the wording of this section that, in passing upon an application for rehearing, the permissible affirmative action of the commission does not go further than to grant or deny the application. Snell v. Pub. Utils. Comm'n, 108 Colo. 162, 114 P.2d 563 (1941).

If an application for rehearing is granted, the original order or decision is not to be abrogated, changed, or modified until after such rehearing and as a result thereof. Snell v. Pub. Utils. Comm'n, 108 Colo. 162, 114 P.2d 563 (1941).

The public utilities commission (PUC) acts without authority when it attempts to amend or modify an order duly entered as a part of its action in passing upon an application for a rehearing of such order. Rescission, alteration, or amendment of orders must be upon notice to the public utility affected, and after opportunity to be heard, as provided in § 40-6-112. Snell v. Pub. Utils. Comm'n, 108 Colo. 162, 114 P.2d 563 (1941).

However, commission need not state conclusion that original order unjust. Subsection (3) provides that if, after rehearing, "the commission shall be of the opinion that the original order...is in any respect unjust or unwarranted, or should be changed, the commission may abrogate, change or modify the same". To deny an application for expanded authority on rehearing after an order granting such authority, the PUC would necessarily have to conclude that the original order was unjust or unwarranted, and it would seem to be a useless thing to require that to be stated. Denver Clean-Up Serv., Inc. v. Pub. Utils. Comm'n, 174 Colo. 329, 483 P.2d 974 (1971).

Upon denial of application, order becomes final. If an application for rehearing is denied, the order or decision to which the application was addressed becomes final. Snell v. Pub. Utils. Comm'n, 108 Colo. 162, 114 P.2d 563 (1941).

Court will not review if commission judgment not final. Unless and until a matter before the PUC is reduced to final judgment, settling all the issues between the parties, the court will not review it. Denver-Climax Truck Line v. Jim Chelf, Inc., 156 Colo. 372, 399 P.2d 244 (1965); Pub. Utils. Comm'n v. Poudre Valley Rural Elec. Ass'n, 173 Colo. 364, 480 P.2d 106 (1970).

Failure to apply for a second hearing regarding the commission's rehearing decision which modified a prior tariff decision precludes judicial review of such rehearing decision. Office of Consumer Counsel v. P.U.C., 752 P.2d 1049 (Colo. 1988).

Court may not ignore conditions on which objector's intervention was granted by commission, which precluded challenge to the commission's procedures and which objector accepted. Hausam v. P.U.C., 751 P.2d 627 (Colo. 1988).

Service by mail on attorney of record is sufficient. In review by certiorari proceedings in the district court of a commission decision, an indispensable party need not receive personal service of process through its registered agent for service, and service by mail upon the attorney of record in the administrative hearing is sufficient. N. Glenn Sub. Co. v. District Court, 187 Colo. 409, 532 P.2d 332 (1975).

Failure to raise question waives it. Where the applicant argued in the supreme court that the PUC in issuing a new order after rehearing had made no finding that the original order was unjust or unwarranted, but it had not at any time raised this question before the commission, nor mentioned it in its petition for certiorari in the district court, it had waived the point. Denver Clean-Up Serv., Inc. v. Pub. Utils. Comm'n, 174 Colo. 329, 483 P.2d 974 (1971).

Petition not filed within 20-day period following decision of commission is disallowed. Hausam v. P.U.C., 751 P.2d 627 (Colo. 1988).

Objector has no standing to petition for reconsideration where he has previously been denied intervenor status because proceeding had been terminated prior to objector's petition for intervention. Hausam v. P.U.C., 751 P.2d 627 (Colo. 1988).

Petition for reconsideration of rate increase was premature and properly struck where commission has neither approved nor denied such rate increase. Hausam v. P.U.C., 751 P.2d 627 (Colo. 1988).

Proceedings under this section are special statutory proceedings to which rules of civil procedure do not apply when inconsistent or in conflict with the practice and procedure as provided by statute. Peoples Natural Gas Div. v. P.U.C., 698 P.2d 255 (Colo. 1985).

Subsection (3) does not require a subsequent decision of the commission to be a substantial modification of the original decision in order for the provisions of said subsection to be applicable. Office of Consumer Counsel v. P.U.C., 752 P.2d 1049 (Colo. 1988).

Where administrative remedies are provided by statute, the statutory procedure must be followed when the matter complained of is within the jurisdiction of the administrative authority. Unless the administrative remedies are exhausted, it can never be known but that a correction would ensue if the administrative authority were given full opportunity to pass upon the matter. Denver-Laramie-Walden Truck Line v. Denver-Fort Collins Freight Serv., Inc., 156 Colo. 366, 399 P.2d 242 (1965).

Applied in Pollard Contracting Co. v. Pub. Utils. Comm'n, 644 P.2d 7 (Colo. 1982); Pub. Serv. Co. v. Pub. Utils. Comm'n, 644 P.2d 933 (Colo. 1982); Union Rural Elec. Ass'n v. Pub. Utils. Comm'n, 661 P.2d 247 (Colo. 1983).