ATTORNEY GENERAL V MPSC
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STATE OF MICHIGAN
COURT OF APPEALS
ATTORNEY GENERAL,
UNPUBLISHED
Plaintiff-Appellant,
v
MICHIGAN PUBLIC SERVICE COMMISSION
and CONSUMERS POWER COMPANY,
No. 193794
MPSC
LC No. 10961
Defendants-Appellees.
ATTORNEY GENERAL,
Plaintiff-Appellant,
v
MICHIGAN PUBLIC SERVICE COMMISSION,
No. 193892
MPSC
LC No. 10997
Defendant-Appellee.
ATTORNEY GENERAL,
Plaintiff-Appellant,
v
MICHIGAN PUBLIC SERVICE COMMISSION,
Defendant-Appellee.
Before: Jansen, P.J., and Markey and O’Connell, JJ.
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No. 193894
MPSC
LC No. 10995
JANSEN, P.J. (dissenting).
I respectfully disagree with the majority’s opinion, although I recognize that we are bound by
MCR 7.215(H)(1) to follow this Court’s opinion in Attorney General v Public Service Comm, 227
Mich App 148; 575 NW2d 302 (1997). I believe that Attorney General was wrongly decided and
follow it only because I am bound by the dictates of MCR 7.215(H). Were I not so bound, I would
reverse the orders of the Public Service Commission (PSC) because I believe that the effect of the
contracts will result in increased rates for other consumers and that notice and a hearing was required
for approval of the contracts.
I believe that the PSC’s orders in the case are based on an error of law. Here, Consumers
Power has negotiated reduced rates with four major corporations: General Motors, Dow Corning,
Hemlock Semiconductor, and Bundy Tubing. In the contracts that Consumers Power sought approval
of from the PSC, it specifically reserved the right to seek appropriate ratemaking treatment which could
include requests to recover the effects of the reduced rates provided by these contracts. By giving
reduced rates to four large corporations, and by including such a reservation clause in the contracts, it
appears that rates to other customers will occur in the future and Consumers Power has clearly laid the
ground work in the current contracts to accomplish that goal.
Under MCL 460.6a(1); MSA 22.13(6a)(1), if the effect of the contracts will be to increase the
cost of services to its customers, than notice and a hearing must be provided. It is only where a change
in the rates will not result in an increase in the cost to its customers can the contracts be approved
without notice or a hearing. I agree with the Attorney General that the statutory language is mandatory
by the use of the word “will” under its plain and ordinary meaning. See McElroy v Luster, 254 SW2d
893, 896 (Tex Civ App, 1953); Black’s Law Dictionary (5th ed.) (1979) (“An auxiliary verb commonly
having the mandatory sense of ‘shall’ or ‘must.’ It is a word of certainty, while the word ‘may’ is one of
speculation and uncertainty.”). Thus, the fact that Consumers Power argues that an increase may not
occur is not enough; it must show that an increase will not occur. Consumers Power has not done so in
this case and, in fact, has clearly set forth the groundwork to raise rates in the future.
Further, the fact that if Consumers Power seeks to increase other customers’ rates in the future
as a result of these contracts will require notice and a hearing really does not address the question of
whether these contracts will result in increased rates for other customers. See Attorney General,
supra, p 151. In light of the fact that Consumers Power had granted reduced rates to four major
corporations will surely lead to increased rates for other customers to make up for the lost revenue as a
result of these contracts and it is highly unlikely that the PSC will deny Consumers Power’s request to
raise the rates of others to compensate for the lost revenue given that there are multiple corporations
involved in this case.
Accordingly, I would find that the effect of these contracts will be to increase the rates of other
customers and that notice and a hearing is required before the PSC can rule on the contracts. The PSC
erred in giving ex parte approval to the contracts. But for this Court’s decision in Attorney General,
supra, I would reverse the PSC’s orders and remand for a hearing.
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/s/ Kathleen Jansen
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