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June 05, 2005


Jim Westwood

The Oregon Supreme Court may indeed be jumping into more questions surrounding constitutional separation of powers. On May 3, 2005, the Court allowed the petition of Portland General Electric Company for an alternative writ of mandamus, directed to Judge Paul Lipscomb of Marion County Circuit Court. Judge Lipscomb has allowed to go forward a class action against PGE that seeks refunds of utility rates allegedly collected under rate schedules that all sides agree were adopted in procedurally proper fashion by the Oregon Public Utility Commission. The plaintiffs allege that the rate schedules contained an unlawful element. The principal question in the mandamus proceeding is whether a court (the judicial branch) violates the Article 3 section 1 of the Oregon Constitution by entertaining a lawsuit that could effectively result in the retroactive adjustment of utility rates, a function that is given by statute to the OPUC, and then only in limited circumstances. The OPUC, created by the legislature and appointed by the Governor with Senate confirmation, has been said to act quasi-legislatively when it exercises its ratemaking powers.

Briefing is underway in the mandamus proceeding. It's Dreyer v. PGE, Supreme Court Nos. 52217 and 52284 (Marion County Nos. 03-C10639 and 03-C10640).

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