Cole v. IPUC: Constitutional and Other Appellate Claims Are Waived in IPUC Appeals Absent Cogent Authority; Commission May Appear as Respondent Under I.C. § 61-630

1. Introduction

In Cole v. Idaho Public Utilities Commission (Idaho Sup. Ct. Mar. 14, 2025), pro se appellant Sherry Cole challenged two orders of the Idaho Public Utilities Commission (IPUC): (1) dismissal of her formal complaint against PacifiCorp d/b/a Rocky Mountain Power Company (RMP), and (2) denial of reconsideration.

Cole alleged she was overbilled because her electric meter was “cross-connected” with her neighbor’s meter. RMP initially credited her account $1,256.45 after an employee indicated a cross-connection existed, but later testing (two “breaker tests”) showed no cross-connection. RMP removed the credit and issued a separate $450 credit for inconvenience. IPUC dismissed the complaint for lack of evidence of overbilling.

On appeal, the case presented four principal issues: (i) whether IPUC could appear as a respondent, (ii) whether IPUC’s findings were supported by substantial and competent evidence, (iii) whether Cole’s other arguments were waived, and (iv) whether Cole could recover attorney fees on appeal.

2. Summary of the Opinion

  • IPUC participation: The Court held it was proper for IPUC to participate as a respondent because Idaho Code section 61-630 grants that right.
  • Merits/substantial evidence: The Court affirmed IPUC’s finding that there was no cross-connection and no overcharge, concluding IPUC’s decision was supported by substantial and competent evidence (including two breaker tests and an investigator’s bill-comparison analysis).
  • Waiver: The Court declined to consider Cole’s additional constitutional and related theories because they were inadequately developed—raised without cogent argument or supporting authority.
  • Attorney fees: The Court denied attorney fees, reiterating that pro se litigants are not entitled to attorney fees and noting Cole did not prevail.

3. Analysis

3.1 Precedents Cited

Administrative review and deference to IPUC factfinding

The Court placed the appeal within Idaho’s established framework for judicial review of IPUC decisions:

  • Intermountain Gas Co. v. Idaho Pub. Utilities Comm'n, 97 Idaho 113, 127, 540 P.2d 775, 789 (1975): cited for the principle that the Supreme Court reviews whether IPUC “abused or exceeded its authority or made findings unsupported by substantial evidence.”
    Influence here: This case provided the central lens for review: not whether the Court agreed with Cole, but whether IPUC stayed within its authority and grounded its findings in substantial evidence.
  • Indus. Customers of Idaho Power v. Idaho Pub. Utilities Comm'n, 134 Idaho 285, 288, 1 P.3d 786, 789 (2000): cited for the duty to affirm where IPUC findings are supported by substantial, competent evidence.
    Influence here: The Court treated substantial-evidence support as effectively dispositive, compelling affirmance.
  • Rosebud Enterprises, Inc. v. Idaho Pub. Utilities Comm'n, 128 Idaho 624, 631, 917 P.2d 781, 788 (1996): again emphasizes mandatory affirmance when supported by substantial, competent evidence.
    Influence here: Reinforced that the Court’s role is limited and not a re-trial of utility-billing facts.
  • Nelson v. Indus. Special Indem. Fund, ___ Idaho ___, 553 P.3d 953, 960 (2024): defines substantial and competent evidence as “more than a scintilla of proof, but less than a preponderance.”
    Influence here: The Court used this definition to validate IPUC’s reliance on testing and billing analyses even if not “preponderant” in the trial sense—so long as it crossed the “more than a scintilla” threshold.
  • Indus. Customers of Idaho Power v. Idaho Pub. Utilities Comm'n, 134 Idaho 285, 292, 1 P.3d 786, 793 (2000): cited for the presumption of correctness of IPUC factfinding and the appellant’s burden to show lack of substantial evidence.
    Influence here: Framed Cole’s problem: she offered largely anecdotal assertions and an initial RMP letter, while IPUC had multiple items of technical and documentary support.

Issue preservation in IPUC appeals

  • Eagle Water Co. v. Idaho Pub. Utilities Comm'n, 130 Idaho 314, 316-17, 940 P.2d 1133, 1135-36 (1997): states the rule that matters may not be raised for the first time on appeal, and issues not raised in a petition for rehearing will not be considered, to give IPUC a chance to correct errors.
    Influence here: Although the Court ultimately resolved waiver on a different ground (insufficient briefing/authority), Eagle Water supplied the background doctrine motivating strict appellate gatekeeping in IPUC cases.

Pro se litigants held to attorney standards

  • Merrill v. Smith, 167 Idaho 795, 799, 477 P.3d 230, 234 (2020) (citing Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005)): holds pro se litigants are held to the same standards as represented parties.
    Influence here: Underwrote the Court’s refusal to relax briefing and preservation requirements for Cole.

Waiver for inadequate briefing (lack of cogent argument/authority)

  • Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010): holds a general attack without specific legal or evidentiary errors is insufficient to preserve an issue.
    Influence here: Supported the Court’s view that Cole’s broad constitutional allegations did not mature into reviewable claims.
  • Barton v. Bd. of Regents of Univ. of Idaho, ___ Idaho ___, 550 P.3d 293, 302 (2024) (quoting Bach v. Bagley): holds issues mentioned in passing and unsupported by cogent argument/authority will not be considered.
    Influence here: This was the Court’s primary waiver tool—allowing it to avoid reaching complex constitutional theories.
  • Dickenson v. Benewah Cnty. Sheriff, 172 Idaho 144, ___, 530 P.3d 691, 697 (2023): states it is not the role of the Court to search the record for citation or argument.
    Influence here: Justified rejecting claims that required the Court to construct the legal theory and record support.
  • Wood v. Idaho Transp. Dep't, 172 Idaho 300, ___, 532 P.3d 404, 411 (2023): notes arguments without authority are too indefinite to be heard.
    Influence here: Reinforced the Court’s insistence on legal authority connecting asserted constitutional doctrines to the actual conduct of IPUC or RMP.

Attorney fees and pro se litigants

  • Michalk v. Michalk, 148 Idaho 224, 235, 220 P.3d 580, 591 (2009) (citing Barbee v. WMA Sec., Inc., 143 Idaho 391, 397, 146 P.3d 657 (2006)): holds pro se litigants are not entitled to attorney fees because fees are available only to licensed attorneys who incur fees representing a client.
    Influence here: Foreclosed Cole’s fee request as a matter of status (pro se) and outcome (non-prevailing).

3.2 Legal Reasoning

(a) IPUC’s right to participate as a respondent

The Court resolved this issue by straightforward statutory application: Idaho Code section 61-630 grants IPUC and any party to the proceeding the right to “appear and be heard on appeal.” Because IPUC’s participation is expressly authorized, allowing it to appear was not error.

(b) Substantial-and-competent-evidence review: why Cole lost on the facts

The Court emphasized its limited role on review: it does not reweigh competing narratives of what happened at the meter bank. Instead, it asks whether IPUC’s findings have substantial evidentiary support.

Key evidentiary anchors supporting IPUC’s finding included:

  • Two breaker tests (February and March) indicating the meters were not cross connected.
  • Billing records and calculations provided by RMP showing Cole’s usage.
  • Affidavit and analysis by Jon Kruck, a Commission investigator, comparing five years of billing and concluding usage was materially consistent (after temperature adjustments), which would be unlikely if a cross-connection had been corrected.

Against that, Cole relied primarily on her own account and RMP’s initial letter/initial employee statement—evidence that IPUC and the Court treated as insufficient to overcome the presumption of correctness attached to IPUC’s factfinding.

(c) Waiver: the Court’s choice to resolve on inadequate-briefing grounds

Cole advanced multiple constitutional theories (due process “property” interest in the credit, Article III arguments, regulatory taking, separation of powers, and an alleged public-private partnership). IPUC argued waiver because these were raised for the first time on appeal, and also noted that Idaho Code section 61-629 does not necessarily “open the door” to new constitutional claims on appeal.

The Court declined to decide the “first-time-on-appeal constitutional issue” question. Instead, it held the arguments were waived because they were unsupported by sufficient authority and cogent argument. Notably, the Court pointed out:

  • Cole cited no authority showing PacifiCorp (a private entity) was directly governed by the Fifth and Fourteenth Amendments on the asserted facts.
  • She offered definitions of regulatory takings but did not connect them to specific actions by IPUC that would constitute a taking.
  • Other constitutional assertions were conclusory and lacked relevant supporting legal development.

This framing matters: even if an issue is “important” or “constitutional,” it still must be briefed in a way that gives the Court something judicially reviewable—authority, elements, application to facts, and an articulated theory of error.

(d) Attorney fees

The Court reiterated a categorical rule from its precedent: pro se litigants are not entitled to attorney fees. The Court also noted Cole did not prevail, providing an additional basis to deny fees.

3.3 Impact

  • For IPUC appeals: The decision reinforces that IPUC orders are difficult to overturn absent concrete, record-based evidence showing lack of substantial support. Parties challenging IPUC determinations should expect the Court to defer to IPUC’s technical factfinding when supported by testing, billing records, and investigator analysis.
  • For utility-billing disputes: The opinion signals that a utility’s early misstatement or preliminary letter (here, the initial cross-connection representation and credit) may be treated as correctable when later technical testing contradicts it—so long as the agency’s final conclusion is supported by substantial evidence.
  • For constitutional claims in administrative appeals: The key practical takeaway is procedural: constitutional labels do not substitute for legal development. Future appellants must provide authority and a fact-to-elements application or risk waiver.
  • For pro se litigants: The Court again underscores it will not relax briefing burdens. Pro se parties must assemble a legally supported argument (and preserve issues where required), or the appeal will fail regardless of the party’s sincerity.

4. Complex Concepts Simplified

  • “Cross-connected” meters: A situation where wiring is misaligned so one customer’s meter measures some of a neighbor’s electricity use (or vice versa), potentially causing incorrect bills.
  • Breaker test: A practical field test in which power is temporarily shut off downstream of a specific meter to see what actually loses power, helping detect misalignment or cross-connection.
  • Substantial and competent evidence: Not “proof beyond doubt” and not even necessarily “more likely than not.” It means enough reliable evidence that a reasonable decisionmaker could reach the conclusion—“more than a scintilla,” even if conflicting evidence exists.
  • Presumption of correctness: IPUC’s factual findings start out presumed correct on appeal; the appellant must show the record lacks substantial support.
  • Waiver (in appellate briefing): If an argument is not developed with supporting legal authority and clear reasoning, the Court treats it as forfeited and will not decide it.
  • Regulatory taking: A claim that government regulation effectively takes private property without compensation. Even when discussed conceptually, it must be tied to a specific government action and the legal test for takings.

5. Conclusion

Cole v. IPUC is a reaffirmation of two decisive themes in Idaho administrative appeals: (1) strong deference to IPUC’s factfinding when supported by substantial and competent evidence, and (2) strict enforcement of appellate briefing rules, including waiver for undeveloped constitutional claims. The Court also confirmed IPUC’s statutory right to appear as a respondent under I.C. § 61-630 and reiterated that pro se litigants cannot recover attorney fees. In practical terms, parties challenging IPUC orders must build their case in the record and brief it with legal precision—or the Court will affirm.