Teleco, Inc. v. Corporation Com'n of State of Okl.

Teleco, Inc. v. Corporation Com'n of State of Okl.
1982 OK 93
649 P.2d 772
Case Number: 51961
Decided: 07/27/1982
Supreme Court of Oklahoma

TELECO, INC., COMMERCIAL COMMUNICATIONS, INC., EXECUTONE OF OKLAHOMA, INC., AND BILL PATTERSON, APPELLANTS,
v.
CORPORATION COMMISSION OF THE STATE OF OKLAHOMA, THE STATE OF OKLAHOMA, AND SOUTHWESTERN BELL TELEPHONE COMPANY, APPELLEES.

Appeal from the Corporation Commission.

¶0 Application by the attorney general for leave to intervene in an appeal from the Corporation Commission's decision. LEAVE DENIED.

Arnold T. Fleig, Speck, Philbin, Fleig, Trudgeon & Lutz, Oklahoma City, for appellants.

Robert D. Allen, O. Carey Epps, Oklahoma City, for appellee, Southwestern Bell Telephone Co.

Jack A. Swidensky, Oklahoma City, for appellee, Oklahoma Corp. Commission.

Jan Eric Cartwright, Atty. Gen., Oklahoma City, petitioning intervenor.

OPALA, Justice:

[649 P.2d 773]

¶1 In this appeal from an order of the Corporation Commission [Commission], the State of Oklahoma stands joined as a party-appellee.

¶2 Two questions must be answered in passing upon the application before us: 1) May the attorney general be allowed to intervene even though the State has lodged no appeal from the order under review? and 2) May Jan Eric Cartwright, either personally or through his staff, appear here as counsel to challenge a decision rendered by the adjudicative body of which he was a member when the order sought to be reviewed was made? We answer both questions in the negative.

I.

¶3 Generally, intervention at the appellate stage is impermissible. The admission of a new party on review would tend to alter or expand the issues. Appellate litigation is traditionally confined within the posture of the proceedings in the court of first instance.

¶4 Until relieved from his duty, an attorney general must stand as counsel for the agency for which he acts. He may not participate in litigation opposite an agency where the subject of the action is the result of normal exercise of governmental functions.

¶5 In Howard v. Oklahoma Corporation Commission

¶6 Although the attorney general had the right to appear during the Commission's initial deliberations, no one representing that office participated in the proceedings before that body.

¶7 In public-law litigation of general interest the court looks with favor on proffered assistance from those who may be desirous of presenting different views by brief amicus curiae. These briefs must, of course, be confined to the issues raised in the trial tribunal and preserved on appeal.

II.

¶8 We must next determine whether Jan Eric Cartwright, personally or through his staff, stands precluded from appearing herein amicus curiae because he sat as a member of the Oklahoma Corporation Commission in the very proceeding which culminated in the order under review.

¶9 Mr. Cartwright concedes that it would be improper for him, while sitting as a member of a decision-making tribunal, to bring an appeal from a decision with which he disagrees.

¶10 In Howard,

¶11 We do not intimate by this conclusion that such public interest should go unrepresented. By statute, the Governor of Oklahoma is granted authority to "employ counsel to protect the rights or interest of the State in any action or proceeding, civil or criminal, which has been, or is about to be commenced . . ."

¶12 IRWIN, C.J., BARNES, V.C.J., and HODGES, LAVENDER, SIMMS, HARGRAVE and WILSON, JJ., concur.

Footnotes:

1 Rule 1.87, Rules of Civil Appellate Procedure, 12 O.S. 1981 ch. 15, App. 2.

2 Once a person is permitted to intervene, he becomes a party-litigant in the case with the right to raise and litigate independent issues. In re Application of H.L. Goodwin, Sr., Okl., 597 P.2d 762, 767 [1979]. Vaughan v. Latta, 168 Okl. 492, 33 P.2d 795, 797 [1934]. The rationale for this rule is that ". . . to admit strangers to participate in litigation here [on appeal] would be [to allow] the exercise of original jurisdiction. . . ." In re Chewaucan River, 89 Or. 659, 171 P. 402, 403 [1918].

3 Art. 9 § 20, Okl.Const.

4 Pennsylvania Public Utility Comm. v. Pa. Gas & Water Co., 19 Pa.Cmwlth. 214, 341 A.2d 239, 255 [1975] [Rev. on other grounds at 492 Pa. 326, 424 A.2d 1213].

5 Derryberry v. Kerr-McGee Corp., Okl., 516 P.2d 813, 818 [1973]; State v. Public Serv. Comm., 129 Mont. 106, 283 P.2d 594, 599 [1955].

6 Reiter v. Wallgren, 28 Wash. 2d 872, 184 P.2d 571, 575 [1947].

7 Howard v. Okla. Corp. Comm., Okl., 614 P.2d 45, 50 [1980]; D'Amico v. Board of Medical Examiners, 11 Cal. 3d 1, 520 P.2d 10, 20 [1974].

8 Hill v. Texas Water Quality Board, 568 S.W.2d 738, 741 [Tex. 1978].

9 City of York v. Pa. Public Utility Comm., 449 Pa. 136, 295 A.2d 825, 832-833 [1972].

10 Howard v. Okla. Corp. Comm., supra note 7 at 50.

11 When the attorney general, as an advocate for state interest, joins in an appeal from an order of the Commission brought by a public utility, there would appear to be no conflict in designating the counsel for the Commission as his authorized representative under Art. 9 § 20, Okl.Const. to appear on behalf of the "State of Oklahoma" who stands joined as appellee under Rule 1.87, supra note 1.

12 74 O.S. 1981 § 18b (c). Even if the Attorney General had appeared in this case below and appealed timely from an adverse decision of the Commission, he would be precluded from challenging on review any fact tacitly conceded during the hearing process. Mann v. Welch, 208 Okl. 580, 257 P.2d 1074, 1077 [1954]; State ex rel. Cartwright v. Okl. Natural Gas, Okl., 640 P.2d 1341, 1349 [1982].

13 Art. 9 § 20, Okl.Const., 74 O.S. 1981 § 18b (a).

14 The State has no greater authority to intervene in litigation between individuals and corporations than has any other party. Stevens v. First Nat'l. Bank of Nev., 64 Nev. 292, 182 P.2d 146, 148-149, 153-154 [1947].

15 Since we hold that intervention is not allowable, we need not address the question of whether appellants are properly classed as public service corporations, so as to require that the State of Oklahoma be joined as a party-appellee.

16 Stevens v. First Nat'l. Bank of Nev., supra note 14 at 155.

17 McTaggart v. Public Serv. Comm., 168 Mont. 155, 541 P.2d 778, 780 [1975].

18 Supra note 7, 614 P.2d at 53.

19 McTaggart v. Public Serv. Comm., supra note 17.

20 74 O.S. 1981 § 6 .