1989-10-10_REVISION - M1988112 (35)

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C, • successfully litigating an issue that was related to general consumer interests. Thouqh O'Bryant follows Continental Airlines, it does not expand upon that decision. The Supreme Court states only that: Our decision in Continental Airlines controls our resolution of this case. ... In light of the fact that the settlement agreement between the PUC and Mountain had the effect of substantially modifying the prior decision of the PUC, and since such agreement was effectuated after the commencement of a judicial review proceeding in the district: court and without the consent and over thee objection of the Mountain Bell customer who was a party to the judicial review proceeding, we hold that such attempt by the PUC to changee or modify its prior decision was invalid anti beyond its authority. The reason the Supreme Court could follow Continental Airlines without expansion or modification was because tYie factual situation, though certainly more egregious in O!Bryant, was substantially identical in O'Brvant and Continental Aix^lines. In both cases, the agency issued an order compelling compliance with a statute, and thereafter, without notice to the parties sought to change the substance of the order prior to a judicial decision on the validity of the order. By changing the substance of the order the agency both affected the rights of the parties to the judicial review proceeding and infringed upon the jurisdiction o:. the court to determine the validity of the order. In an amendment to the O'Brvant decision datecd September 18, 1989, the Colorado Supreme Court expressly limited its decision to the factual situation where the agency acts ex partee to modify an order which is subject to judicial review. In refercence to the authority of the PUC to alter or amend an order once an action for judicial review has been filed, the opinion originally :stated that "there is nothing in the statutory procedure for judicial and appellate review which authorizes the PUC to alter or amend its decision once a judicial review proceeding has been c:ommenced." O'Brvant, supra at 19. The Supreme Court amended this :sentence to read, "there is nothing in the statutory procedure for judicial and appellate review which authorizes the PUC, once a judicial review proceeding has been commenced, to alter or amend its decision O'Brvant at Page 18 (Sept. 18, 1989 Amendment). (Empha:sis added). This clarification of the O'Brvant decision recognizes both the peculiar factual circumstances attending the PUC's settlement and the threat to O'Bryant's substantive rights caused by the agency's to