This is an appeal from an order of the superior court referring a controversy between the City of Anchorage [hereinafter referred to as the City] and the Greater Anchorage Area Borough [hereinafter referred
The facts of the instant case are relatively simple. The City had a contract to provide electrical power to the Wagner Estates Subdivision, a real estate development located within the limits of the City. On October 13, 1969, the City applied to the Borough for a permit to install certain utility poles and power lines in a Borough right of way which runs along Aero Avenue, an arterial situated within the Spenard Service Area of the Borough. On October 27, 1969, the Borough's Public Works Director denied the City's application for a permit.
The City appealed the decision of the Public Works Director to the Borough Assembly on November 10, 1969. The appeal was denied.
On Saturday, November 22, 1969, the City disregarded the Borough's decisions and, through its contractor W.R. Grasle Company, commenced the unauthorized installation of utility poles within the Aero Avenue right of way.
On the same day, the Borough sought to curtail the City's construction activities and filed a complaint for injunction with the superior court. Later that day, the superior court issued a restraining order, enjoining the City and its contractor from further installation of the power lines.
At the hearing on permanent injunctive relief before the superior court on December 5, 1969, all three parties orally stipulated to a plan by which the City's power lines would be installed. A written stipulation to the same effect was filed with the superior court on December 8, 1969. With the signing of that written stipulation, the outstanding restraining order was dissolved.
Believing the controversy over City construction work on Borough rights of way to be a continuing one, the parties in the same instrument further stipulated to submit the question of "... whether or not the Borough has the power to regulate construction along its road rights of way ..." to the superior court on memoranda.
The case remained inactive until June 29, 1971, when the City and the Borough
The superior court handed down its written decision on July 20, 1971, in which the lower court declined to answer the stipulated question, but instead, "... ordered that the matter be referred to the Public Service Commission
The Borough appeals from the superior court's decision,
The City challenges the existence of appellate jurisdiction, contending that the lower court's referral order was an interlocutory one and not a final decree. The City reaches this position by maintaining that the superior court retained jurisdiction and referred to the PUC only a "facet" of the case: the narrower issue of duplication of service and facilities. The City alternatively argues that if appellate jurisdiction
The Borough argues in reply that the question of duplication of service and facilities became moot with the parties' first stipulation, and that only the second stipulated question was referred to the PUC.
The first question presented to this court is whether appellate jurisdiction exists so as to permit review of the superior court's referral order. The existence of appellate jurisdiction in the instant case depends initially upon whether the lower court's decision constitutes a "final judgment" within the meaning of Rule 6 of the Alaska Supreme Court Rules.
The requirement that a lower court judgment be "final" before an appeal therefrom is permissible is not a novel rule in American jurisprudence.
Numerous definitions and tests of finality have been advanced by various courts in other jurisdictions.
The basic thrust of the finality requirement is that the judgment must be one which disposes of the entire case, "... one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."
The relevant, operational portion of the superior court's referral order in the instant case is this:
Whether the order disposes of the entire case, however, depends on what "matter" the superior court meant to refer to the PUC.
The City argues that despite the previous settlement between the City and the Borough, and despite their submission of a carefully worded, stipulated question to the superior court, the "matter" referred to the PUC was only one "facet" of the entire case: "... the question of duplication of service and facilities to the subdivision... ." Having thus referred only a narrow aspect of the case to the PUC, the superior court, in the City's view, must have retained jurisdiction in order to subsequently decide the remaining stipulated question. Hence, the referral order would be interlocutory rather than final in nature, and under Rule 6, no appellate jurisdiction would exist.
The Borough contends on the other hand, that the initial dispute was settled with the parties' original stipulation, and that the only "matter" pending before the superior court at the time of its decision was the second stipulated question submitted on memoranda. Thus, the court could only have acted upon that stipulated question. By referring the sole remaining issue between the parties to the PUC for a determination, the lower court, in the Borough's view, completely and finally disposed of the entire case.
We are persuaded that the Borough's interpretation of the superior court's referral order is correct. The parties had settled their original dispute over the installation of utility poles and power lines within the Aero Avenue right of way. The restraining order pertaining thereto was dissolved. That particular controversy became moot when the parties signed their original stipulation. Accordingly, the dispute was no longer pending before the superior court at the time of its decision. For the lower court to have ignored the parties' settlement and to have referred a moot question to the PUC for a fresh determination would have meant the unraveling of a private, working arrangement which had been in effect for some months. Certainly, this was not the superior court's intention. Sound judicial policy dictates that private settlements and stipulations between the parties are to be favored and should not be lightly set aside.
Moreover, the superior court did not expressly retain jurisdiction in the case at bar. What the lower court said was:
The superior court spoke in terms of "appeal" from the PUC's decision rather than "retained jurisdiction." Appealing to a court for the purpose of obtaining review of an inferior tribunal's order and returning to a court with retained jurisdiction for the purpose of continuing litigation are separate and distinct legal processes. In this case, the lower court was merely apprising the parties of their rights to seek judicial review of an administrative adjudication under the Alaska Administrative Procedure Act.
In view of our conclusions that the superior court meant to completely dispose of the sole remaining issue pending before it, and that it did not intend to retain jurisdiction, we hold that the lower court's decision of July 20 was a "final judgment" within the meaning of Rule 6. Accordingly, we hold that appellate jurisdiction exists in this case.
Having concluded that this court possesses the requisite authority with which to review the proceedings and judgment below, we turn next to the question of whether the superior court erred in referring the parties' second stipulated question to the PUC. The resolution of this issue, however, depends upon the nature and scope of the PUC's jurisdiction.
Under the so-called "doctrine of primary jurisdiction", a court may, in appropriate cases, stay or dismiss pending litigation so as to enable a proper agency to initially pass upon an aspect of the case calling for administrative expertise.
The general powers and duties of the PUC are set forth in AS 42.05.141:
The essence of the administrative power conferred upon the PUC is regulatory; the Commission is empowered to set rates, promulgate regulations, collect information, process complaints against utilities and the like. The statutory framework, however, does not grant unlimited adjudicatory authority to the PUC. The agency is not empowered to decide disputes between municipalities over the control of construction activities within rights of way belonging to one of the disputants. The City's reliance on AS 42.05.221(d)
Moreover, Chugach Electric Association v. City of Anchorage
Chugach and the instant case are distinguishable. In Chugach, the underlying legal controversy was a conflict between state statutes and a municipal ordinance.
Chugach involved the problem of the duplication of service and facilities by competing utilities to a single consumer located within a common service area. Here, there is no dispute over any duplicative provision of services. Nor is the customer located within a common service area. The consumer is located within the City limits and has contracted only with the City for the provision of electrical services. Further, two utilities are not in competition with each other in the instant case. The only dispute in the present action is over the control of construction work within the Borough's right of way.
In Chugach the superior court did not refer any controversy to a state agency for
In view of our conclusions that the Alaska Public Utilities Commission Act does not confer broad adjudicatory jurisdiction upon the PUC, and that Chugach does not compel a contrary result, we hold that the PUC lacks authority to decide the parties' second stipulated question. Accordingly, the superior court's referral order was erroneous.
Our holding that the PUC lacks jurisdiction to decide the parties' stipulated inquiry, however, does not necessarily compel the superior court to decide the question. That is, we interpret the parties' submission of the stipulated question to the lower court to be substantially in the nature of an application for declaratory relief. Their original dispute was settled with the signing of the first stipulation and the subsequent dissolution of the restraining order. The City and the Borough, however, apparently feared "... that the dispute over rights of way was a continuing one... ." Accordingly, they drafted, clarified and submitted to the superior court the stipulated question. With the foregoing modification of their original action, the parties effectively transformed their lawsuit into a declaratory judgment action.
Not all issues raised in applications for declaratory relief are justiciable. In order for such questions to be appropriate for adjudication, they must present an "actual controversy." While Article IV, section 1 of the Alaska Constitution
In Jefferson v. Asplund,
Parties seeking a judicial determination of a hypothetical, advisory or moot question will be denied declaratory relief. As we said in Jefferson:
Thus, the justiciability of the second stipulated question in the instant case depends upon whether such inquiry concerns an "actual controversy" or merely presents a hypothetical question calling for an advisory opinion.
In Jefferson, this court observed that a federal court's exercise of judicial discretion in an action brought under the federal Declaratory Judgment Act was subject to review.
In the case at bar, the superior court made no determination regarding the second stipulated question or the requested declaratory relief. Additionally, the parties have not clearly demonstrated nor does the instant record disclose how the litigants' "... dispute over the control of rights of way was a continuing one ... ."; or how the stipulated question involved an "actual controversy." Under such circumstances, we decline to advance our own view as to whether the stipulated question submitted in the present case involves the requisite "actual controversy." We further decline to substitute our own judgment for that of the lower court's on the issue of whether the requested declaratory relief should be granted or refused. Rather, we agree with Professor Borchard that a sound disposition of an appeal in a declaratory judgment action containing an insufficient record is to remand the case for further pleading and evidence.
Accordingly, we reverse the referral order of the superior court and remand the action for further proceedings consistent with this opinion.
Reversed and remanded.
RABINOWITZ, Chief Justice (concurring in part, dissenting in part).
While I agree that under Alaska Supreme Court Rule 6 this court has appellate jurisdiction, I disagree with the majority's disposition of the case. In my view the record fails to establish the existence of an actual controversy. I would therefore vacate the superior court's judgment and remand with instructions to dismiss.
In 1969, the Borough instituted an action seeking to resolve a dispute involving the right to regulate certain electrical power-line construction activity along its Aero Avenue right of way. On December 8, 1969, the parties stipulated to a settlement of the Aero Avenue dispute. This stipulation also attempted to reserve for judicial decision the question of whether "the Borough has the power to regulate construction along its road rights of way." In my opinion this stipulation mooted the 1969 action, since the parties agreed to abide by the settlement "regardless of the outcome" of the reserved question.
In June 1971, the parties filed with the superior court a document entitled "Stipulation to Clarify An Issue Submitted to Court." Apparently referring to the question "reserved" in 1969, this stipulation sought to raise the issue of "whether the [Borough] has the authority to regulate the use of rights of way outside the city limits, including construction in those rights of way... ." I agree with the majority that we may construe this 1971 stipulation as an attempt to commence an action for declaratory relief under Alaska Civil Rule 51(a) and AS 22.10.020(b). On the other hand, in Jefferson v. Asplund,
Though the 1971 stipulation can be construed as an attempt to commence a declaratory judgment action, the parties are not relieved from Jefferson's requirement of
In the case at bar the parties have made no effort to show that they are currently involved in a disagreement over power-line
See also the Court of Appeals' definition in Jacobsen v. Jacobsen, 75 U.S.App.D.C. 223, 126 F.2d 13 (1942):
Similarly, in Burstein v. United States, 232 F.2d 19 (8th Cir.1956) the court noted:
See also Annot., 161 A.L.R. 1161, 1192 (1946).
AS 44.62.560(a) provides in relevant part:
"At the outset it should be made clear that we approach a resolution to this problem by construing it as a conflict between the application of the municipal ordinance and the pertinent state statutes which vest power in the psc, rather than a situation where the state has implicitly preempted the entire field." 476 P.2d at 121.
We acknowledged however, that "[t]he difference between an abstract question and a `controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree... ." 458 P.2d at 999 n. 20.