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042 Petition for Writ of Cert - Rule 50COLORADO SUPREME COURT 2 East 14th Avenue Denver, CO 80203 Trial Court below: DISTRICT COURT, BOULDER COUNTY, COLORADO The Honorable Thomas F. Mulvahill Case No. 2019-CV-030637, Division 5 Court of Appeals (pending): COLORADO COURT OF APPEALS 2 East 14th Avenue Denver, CO 80203 Case No. 2019CA1940 Petitioner: CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE CO. OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County Attorneys for Petitioner: Donald M. Ostrander, No. 12458 Richard F. Rodriguez, No. 25105 Hamre, Rodriguez, Ostrander & Dingess, P.C. 3600 S. Yosemite Street, Suite 500 Denver, Colorado 80237 Phone Number: 303.779.0200 Fax Number: 303.779.3662 Email: mail@hrodlaw.com COURT USE ONLY Case Number: DATE FILED: December 27, 2019 2:58 PM FILING ID: F94DE62C48E9B CASE NUMBER: 2019SC1006 ii Co-Attorneys for Petitioner: Thomas A. Carr, No. 42170 Kathleen E. Haddock, No. 16011 Office of the Boulder City Attorney P.O. Box 791 Boulder, Colorado 80306 Phone Number: 303.441.3020 Fax Number: 303.441.3859 Email: carrt@bouldercolorado.gov haddock@bouldercolorado.gov PETITION FOR WRIT OF CERTIORARI UNDER C.A.R. 50 iii CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 53 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with the applicable word limits set forth in C.A.R. 53(f)(1).  It contains 3,740 words (petition does not exceed 3,800 words; reply brief does not exceed 3,150 words). I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 53 and C.A.R. 32. HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. S/ RICHARD F. RODRIGUEZ’S DULY SIGNED PHYSICAL COPY OF THIS DOCUMENT IS ON FILE AT THE OFFICE OF HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. PURSUANT TO CRCP RULE 121, SECTION 1-26(9) By: Richard F. Rodriguez, No. 25105 iv TABLE OF CONTENTS – C.A.R. 53(a)(1) TABLE OF AUTHORITIES ........................................................................... vi-vii APPENDIX viii I. ADVISORY LISTING OF THE ISSUES PRESENTED FOR REVIEW ................................................................................................ 1 II. OPINION, JUDGMENT, OR DECREE FROM WHICH REVIEW IS SOUGHT ........................................................................................... 2 III. GROUNDS ON WHICH JURISDICTION OF THE SUPREME COURT IS INVOKED .......................................................................... 2 IV. DATE AND TIME OF OPINION, JUDGMENT, OR DECREE ......... 2 V. PENDING CASES IN WHICH THE SUPREME COURT HAS GRANTED CERTIORARI REVIEW ON THE SAME LEGAL ISSUE UPON WHICH REVIEW IS SOUGHT ................................... 2 VI. STATEMENT OF THE CASE ............................................................. 2 A. Introduction ................................................................................. 2 B. Background ................................................................................. 4 C. First Condemnation Action ......................................................... 5 D. PUC Proceedings ......................................................................... 6 E. The Second Condemnation Action ............................................. 7 F. The District Court’s Decision on the Second Condemnation Action .......................................................................................... 9 G. The Court of Appeals’ Proceeding .............................................. 9 VII. ARGUMENT ......................................................................................... 10 v A. The Supreme Court has not decided previously the extent to which a home-rule municipality must comply with PUC regulatory authority when a municipality intends to separate from a private utility provider and create and operate a municipal utility serving customers entirely within the municipality’s limits .................................................................... 10 B. The Court of Appeals is being asked to decide an important state question that has not been but should be decided by the Supreme Court as to the precise role of the PUC to approve the transfer of assets related to a municipality’s creation of a municipal utility that is entirely within municipal limits ............ 16 C. The extent to which a home-rule municipality must defer to the PUC’s regulatory authority before exercising the municipality’s constitutional rights is of such imperative public importance as to deviate from normal appellate processes and require immediate Supreme Court disposition .... 18 VIII. CONCLUSION ...................................................................................... 19 vi TABLE OF AUTHORITIES – C.A.R. 53(a)(2) Cases Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78 (Colo. 1997) ........... 12, 13 Buck v. District Ct., 608 P.2d 350 (Colo. 1980)................................................. 14, 17 City and County of Denver v. Pub. Util. Comm’n, 507 P.2d 871 (Colo. 1973) ........10 City of Fort Morgan v. Colorado Pub. Util. Comm’n, 159 P.3d 87 (Colo. 2007) ......................................................................... 10, 16 City of Loveland v. Public Util. Comm’n, 580 P.2d 381 (Colo. 1978) .....................10 Colorado & S.R. Co. v. Dist. Ct., 493 P.2d 657 (Colo. 1972) ...................... 13, 14, 17 Craig v. Public Utilities Comm’n, 656 P.2d 1313 (Colo. 1983) ................................14 Foster v. Plock, 394 P.3d 1119 (Colo. 2017) ............................................................12 Miller v. Public Service Co., 272 P.2d 283 (Colo. 1954) ............................. 15, 16, 17 Public Service Co. v. Shaklee, 784 P.2d 314 (Colo. 1989) ................................ 15, 16 Town of Holyoke v. Smith, 226 P. 158 (Colo. 1924) ................................................10 Statutes C.R.S. § 13-4-109 ....................................................................................................... 2 C.R.S. § 13-4-110 ....................................................................................................... 2 Other Authorities Colorado Constitution Art. XX, Sections 1 and 6 .....................................................10 vii Colorado Constitution Art. XXV ....................................................................... 10, 11 Colorado Constitution Article XX ............................................................................11 Rules C.A.R. 50 ..............................................................................................................2, 16 viii APPENDIX - C.A.R. 53(9)(A) AND (B) Appendix 1: Notice of Appeal 1 Petitioner, the City of Boulder (“Boulder”), hereby submits the following Petition for Writ of Certiorari under C.A.R. 50. I. ADVISORY LISTING OF THE ISSUES PRESENTED FOR REVIEW A. Did the District Court err when it determined a home-rule city had to obtain various permits or approvals from the PUC before it could commence its condemnation action contrary to numerous Colorado Supreme Court precedents holding that failure to obtain necessary regulatory approvals is not a viable defense to a condemnation action? B. Did the District Court err when it applied issue preclusion principles to deprive Boulder of its constitutional home-rule power to begin condemnation proceedings for a public project that is authorized under the State’s constitution and statutes where the commencement of condemnation proceedings in no way infringed upon any other party’s constitutional or statutory rights? C. Even assuming the District Court properly determined issue preclusion principles apply, did the District Court err when it determined, without an evidentiary hearing, the facts and circumstances raised in Boulder’s First Amended Petition were identical to the facts and circumstances raised in prior proceedings notwithstanding the fact the City’s plan was to serve only customers 2 within the City’s boundaries and the previous case was to serve c ustomers outside the City? II. OPINION, JUDGMENT, OR DECREE FROM WHICH REVIEW IS SOUGHT Boulder seeks review of the District Court’s September 4, 2019 Order: Motion to Dismiss First Amended Petition in Condemnation for Lack of Subject Matter Jurisdiction (the “September 4, 2019 Order”). III. GROUNDS ON WHICH JURISDICTION OF THE SUPREME COURT IS INVOKED The Supreme Court’s jurisdiction is invoked under C.A.R. 50 and C.R.S. §§ 13-4-109 and 110. IV. DATE AND TIME OF OPINION, JUDGMENT, OR DECREE September 4, 2019. V. PENDING CASES IN WHICH THE SUPREME COURT HAS GRANTED CERTIORARI REVIEW ON THE SAME LEGAL ISSUE UPON WHICH REVIEW IS SOUGHT None. VI. STATEMENT OF THE CASE A. Introduction This is an eminent domain action filed by Boulder, a home-rule municipality, in accordance with Boulder’s authority under Colorado’s Constitution and Boulder’s 3 home-rule charter. In the action, Boulder seeks to condemn certain real property assets of the City’s existing private utility service provider, Public Service Company of Colorado d/b/a Xcel Energy (“Xcel”), to operate a municipal electric utility that serves customers solely within Boulder’s city limits, in accordance with the will of the Boulder electorate, established over nine years ago (“municipalization”). Despite Boulder’s request for an evidentiary hearing, the District Court refused Boulder’s request and instead perfunctorily dismissed Boulder’s action for lack of subject matter jurisdiction based solely upon Xcel’s legal briefing on the matter, which argued in part Boulder’s action should be dismissed because the Colorado Public Utilities Commission (the “PUC”) has yet to complete certain transfer proceedings the PUC believes are necessary before Boulder may initiate a condemnation action. If the District Court’s decision is allowed to stand, Boulder and any other municipality that desires to exercise its home-rule authority to condemn a private utility’s property to establish a municipal electric utility serving customers entirely within the municipality’s limits will be forced to endure years of protracted, expensive, and indefinite proceedings before the PUC before the municipality is able to even initiate condemnation proceedings. In effect, a home-rule municipality will ultimately be deprived of its power to determine whether, when, and how it exercises 4 its Constitutional authority. Boulder is not the only municipality interested in forming its own electric utility. Numerous other municipalities are contemplating doing the same and have closely watched Boulder’s and Xcel’s years long battles over the City’s efforts to municipalize. As such, this matter involves an important state question that has not been but should be decided by this Court. Finally, despite Boulder’s voters approving municipalization over nine years ago and repeated elections approving municipalization since, Boulder still remains in a regulatory quagmire due to actions of Xcel and the PUC. The quagmire has been so pervasive and lengthy that if Boulder does not obtain immediate relief from this Court, Boulder’s project is imperiled and the will of its home-rule citizens likely will ultimately be negated. B. Background Over nine years ago, Boulder’s City Council decided not to renew a franchise given to Xcel. Instead, Boulder’s City Council chose to place a tax on the ballot to support exploration of the exercise of Boulder’s right to municipalize. Boulder’s voters overwhelmingly passed the ballot question and have since repeatedly continued to extend the tax on themselves and vote in support of municipalization. 5 C. First Condemnation Action After Boulder attempted unsuccessfully to acquire the real property assets it needed from Xcel to further Boulder’s project by negotiation, which was then intended to serve customers inside and outside of Boulder’s city limits, in July 2014 Boulder filed a condemnation action in Boulder District Court to condemn those assets (the “First Condemnation Action.”). On Xcel’s motion to dismiss, the Honorable Judith LaBuda dismissed the action, relying on her Prior Decision (noted below), because in her view the PUC must “determine how facilities should be assigned, divided, or jointly used to protect the utility system’s effectiveness, reliability, and safety . . . prior to the City’s condemnation of property for utility municipalization.” (Order dated February 13, 2015.) Previously, Judge LaBuda had ruled on an appeal of a PUC decision in City of Boulder v. Colorado Public Utilities Commission, Boulder District Court Case Number 14CV30047 (the “Prior Decision”) that: The City’s constitutional right to eminent domain over property outside of its territory does not extend to serving those outside the municipality. The City’s constitutional right is not unfettered because the PUC has constitutional authority to regulate public utilities for those outside the municipality. . . . Therefore it is necessary and appropriate for the PUC to determine how facilities should be assigned divided, or jointly used to protect the system’s effectiveness, reliability and safety. Such a 6 determination must be made prior to the City’s condemnation of property for utility municipalization. This finding does not abrogate the City’s constitutional right to eminent domain, but rather just delays the City’s constitutional right, a delay that would necessarily occur at some point in the process. In her February 13, 2015 Order, Judge LaBuda repeatedly made clear she did not address the situation where a home-rule municipality was operating an electric utility solely serving customers within the municipality’s boundaries. D. PUC Proceedings In accordance with Judge LaBuda’s dismissal order, in mid-2015, Boulder submitted a PUC application for approval of the transfer of assets owned by Xcel to Boulder. Upon Xcel’s objection, in late 2015, in an unprecedented decision, the PUC denied the application in part because the PUC held the City’s project impermissibly required Xcel to serve out of city customers over facilities operated by Boulder. The PUC required Boulder to submit a supplemental application to allow Boulder to establish a municipal utility to serve customers inside of Boulder city limits only. In accordance with the PUC’s decision, Boulder submitted a second supplemental application for approval of transfer of assets by Xcel that provided for serving only customers within the municipal boundaries. After receiving additional PUC input, Boulder submitted a third supplemental application. Due to PUC 7 processing requirements, each of these applications took significant time and effort to prepare and cost the Boulder’s taxpayers hundreds of thousands of dollars. Finally, more than two years after Boulder filed its original application, the PUC issued a ninety-page decision (the “2017 PUC Decision”). In the 2017 PUC Decision, the PUC granted the City approval for transfer of assets and stated its decision satisfied Judge LaBuda’s prior dismissal order, subject to three conditions. For the next year, Boulder met with Xcel twenty-one times to work towards a joint filing to demonstrate satisfaction with the PUC’s conditions. All of these meetings were done at Boulder’s expense, as it was required to pay Xcel’s costs to effectuate the separation of assets. On October 28, 2018, the parties’ made a joint filing to demonstrate the parties’ compliance with the PUC’s conditions. In January, 2019, Xcel withdrew from the joint filing, alleging certain disagreements over the list of assets. After several failed efforts over the next several months during which Xcel did not disclose what its disagreements were, Boulder filed the Second Condemnation Action. E. The Second Condemnation Action Believing that it had satisfied the PUC’s conditions set forth in Judge LaBuda’s dismissal order, that the 2017 PUC Decision stated Boulder had satisfied that order and that Boulder did not need to come back to the PUC prior to initiating 8 condemnation, after five years of protracted negotiations with Xcel and no Xcel or PUC resolution in sight given Xcel’s position on various issues, and with Boulder needing to accomplish condemnation prior to an upcoming election on the municipalization project, the City decided to file a second condemnation action to acquire certain Xcel real property assets to allow Boulder to serve customers wholly within Boulder’s city limits (the “Second Condemnation Action”). Xcel filed a motion to dismiss Boulder’s Second Condemnation Action under Rule 12(b)(1) of the Colorado Rules of Civil Procedure for lack of subject matter jurisdiction. In short, Xcel argued the Second Condemnation was barred by Judge LaBuda’s dismissal order and the 2017 PUC Decision under the doctrine of issue preclusion. Xcel further argued that additional PUC proceedings needed to be conducted before Boulder could condemn Xcel’s assets. The PUC and certain other parties attempted to intervene in support of Xcel’s motion to dismiss or to assert an independent motion to dismiss. In response, in addition to requesting an evidentiary hearing on the matter, Boulder explained that Judge LaBuda’s dismissal order and the 2017 PUC Decision had been fully satisfied. Boulder further explained that issue preclusion did not apply because the issues in the Second Condemnation Action were not identical to the issues in the First Condemnation Action, most notably because Boulder no longer 9 sought to serve customers outside its city limits. Finally, Boulder argued no additional PUC proceedings were necessary and even if additional proceedings were necessary, the Second Condemnation Action could proceed simultaneously and in parallel with any remaining required PUC proceedings. F. The District Court’s Decision on the Second Condemnation Action A mere day after Xcel filed its reply brief, Judge Mulvahill (the “District Court”) issued a two-paragraph order granting Xcel’s motion to dismiss (the “September 4, 2019 Order”). In the Order, the District Court granted the motion “[f]or the reasons stated in [Xcel’s] Motion to Dismiss and the reply thereto, which legal reasoning and conclusion the Court adopts as its own . . .” (September 4, 2019 Order at 1.) G. The Court of Appeals’ Proceeding. On October 23, 2019, Boulder timely appealed the District Court’s decision and the Court of Appeals has docketed the case as Case No. 2019-CA-001940. A copy of the Notice of Appeal is attached as Appendix 1. 10 VII. ARGUMENT A. The Supreme Court has not decided previously the extent to which a home-rule municipality must comply with PUC regulatory authority when a municipality intends to separate from a private utility provider and create and operate a municipal utility serving customers entirely within the municipality’s limits. The Colorado Constitution provides that home rule municipalities such as Boulder have the constitutional right to use the power of eminent domain to create and operate a municipal utility. Colorado Constitution Art. XX, Sections 1 and 6. The PUC has the constitutional authority to regulate private utilities wholly or partially within a home-rule municipality. Art. XXV of the Colorado Constitution (noting that “nothing herein shall be construed to apply to municipally owned utilities.”). But it is clear the PUC lacks constitutional authority under Article XXV of the Colorado Constitution when a municipality operates a municipal utility solely within its boundaries. City of Loveland v. Public Util. Comm’n, 580 P.2d 381, 383 (Colo. 1978); City and County of Denver v. Pub. Util. Comm’n, 507 P.2d 871, 874-875 (Colo. 1973); Town of Holyoke v. Smith, 226 P. 158, 161 (Colo. 1924). Indeed, where a home rule municipality seeks to create a municipal utility to serve the City of Boulder residents only, it could do so without any PUC involvement. City of Fort Morgan v. Colorado Pub. Util. Comm’n, 159 P.3d 87 (Colo. 2007). 11 While in the utility context the Supreme Court has addressed a home-rule municipality’s power and the PUC’s power with respect to regulatory processes generally, the Supreme Court has not addressed directly or precisely the PUC’s powers under Article XXV as they relate to a home-rule municipality’s powers under Article XX where the home-rule municipality plans to separate from an existing private utility company to create a municipal utility solely within its city limits and where the private utility company will continue to serve other customers outside of the city limits. Boulder initially sought to create a municipal utility that served customers outside of the municipality. This was the fact pattern presented to Judge LaBuda in the First Condemnation Action. Judge LaBuda ruled in the First Condemnation Action that Boulder may not condemn Xcel’s assets for utility municipalization until after the PUC determines how Boulder’s and Xcel’s facilities should be assigned, divided, or jointly used to protect Xcel’s system’s effectiveness, reliability, and safety. Boulder complied with Judge LaBuda’s order and participated in various PUC proceedings. After determining the PUC proceedings were protracted, complicated, and seemingly endless, Boulder made the decision to create and operate a municipal utility solely within its municipal limits. After lengthy delay where the PUC did not 12 rule upon or approve the transfer of the joint list of assets submitted by Boulder and Xcel to permit the transfer, Boulder filed its Second Condemnation Action. As noted elsewhere, in that action Boulder sought to condemn certain Xcel assets to operate a municipal utility wholly within Boulder’s city limits. This was the fact pattern presented to Judge Mulvahill in the Second Condemnation Action. As noted above, rather than analyze, or even discuss, the different fact patterns between the First Condemnation Action and Second Condemnation Action, and without holding a hearing, despite Boulder’s request, Judge Mulvahill simply granted Xcel’s motion to dismiss the Second Condemnation Action on issue preclusion grounds, relying entirely on Xcel’s legal briefing. For issue preclusion to apply, among other things, the party advocating for preclusion must show “the issue in the current proceeding is identical to the issue actually adjudicated in a prior proceeding.” Foster v. Plock, 394 P.3d 1119, 1122 (Colo. 2017). An issue is “identical” only where the issue in the second action is identical to an issue actually litigated and necessarily adjudicated in a prior proceeding. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 83 (Colo. 1997). An issue is “actually litigated” if it is one that a party, by an appropriate pleading, asserts through a claim or cause of action against the other or tried with the 13 consent of the parties. Id. at 84-86. An issue is “necessarily adjudicated” when a determination on that issue was necessary to a judgment.” Id. at 86. Boulder and Xcel did not actually litigate in the First Condemnation Action whether a home-rule municipality creating a municipal utility entirely within municipal limits must obtain PUC approval before filing a condemnation action. Furthermore, Judge LaBuda did not determine that “issue,” as she repeatedly stated her ruling did not address the creation of a municipal utility wholly within the boundaries of a municipality. Thus, whether a home-rule municipality needs prior PUC approval before condemning property for a municipal utility wholly within the municipality’s boundaries, was not an issue necessarily adjudicated in the First Condemnation Action. If the Court of Appeals upholds the Trial Court’s decision on issue preclusion, this Court’s prior precedent on the second element of issue preclusion will be overturned. In support of its motion to dismiss filed with the District Court in the Second Condemnation Action, Xcel relied on Colorado & S.R. Co. v. Dist. Ct., 493 P.2d 657 (Colo. 1972) to argue the PUC must first determine the division and transfer of assets before Boulder’s condemnation. Colorado & S.R. Co. did not involve the creation of a municipal utility wholly within the municipality’s limits. Rather, the case involved a private railroad company’s efforts to condemn an easement over another private 14 railroad company’s tracks. Upon the condemnee railroad company’s motion to dismiss, condemnor railroad company brought an original proceeding before this Court to determine whether a certain public utilities law statute trumped the statute upon which the condemnor railroad company relied for its taking authority. This Court held the public utilities law statute trumped the condemnor’s statute because the utilities law statute set forth the PUC “had the power to determine what property the condemning railroad can use as the “particular point of crossing.” Colorado & S.R. Co., 493 P.2d at 659; see also Craig v. Public Utilities Comm’n, 656 P.2d 1313 (Colo. 1983) (the PUC’s decision to close railroad crossings in the interest of public safety was not an adjudication of property rights in the crossing but a condition precedent to such an adjudication). In Buck v. District Ct., 608 P.2d 350 (Colo. 1980), however, this Court addressed an owners’ efforts to dismiss a railroad company’s condemnation action with respect to the owners’ lands. The owners argued the railroad company had to obtain approval of dust levees from the Public Utilities Commission as a condition precedent to the institution of a condemnation action. This Court rejected that argument, holding “such approval is not required as a prerequisite to the condemnation of lands required for the proposed construction.” Buck, 608 P.2d at 351. 15 In Miller v. Public Service Co., 272 P.2d 283 (Colo. 1954), a utility company sought to condemn an owner’s land for construction of a new electric generating plant. The trial court denied the owner’s motion to dismiss the proceeding. Upon the owner’s petition for review and for an order to show cause, this Court determined the utility company did not need to first obtain a certificate of public convenience from the PUC before seeking condemnation because the “certificate is not necessary for the purposes of the condemnation and relates solely to the question of use after the property has been acquired by the condemnation.” Miller, 272 P.3d at 284. Accordingly, this Court discharged the rule in order that the utility’s proceedings to condemn the owner’s property could go forward. Miller, 272 P.2d at 287. Similarly, in Public Service Co. v. Shaklee, 784 P.2d 314 (Colo. 1989), this Court reviewed a utility company’s attempt to condemn an easement over certain private property to provide electrical service to another property owner for mining activities. Upon an original proceeding, this Court again held the obtaining of a certificate of public convenience “is not required to go forward with a condemnation proceeding.” Id. at 316. Thus, in the context of railroad company condemnations, this Court has determined the PUC has the power to determine the property needed for a particular point of crossing before a railroad company may file a condemnation action but a 16 railroad company does not need the PUC’s prior approval to condemn property for other railroad company project purposes. In the context of electric utility condemnations, this Court has repeatedly determined an electric utility condemnor need not obtain the PUC’s approval before the electric utility condemnor may initiate a condemnation proceeding. If the Court of Appeals affirms the District Court’s decision to disregard Boulder’s efforts to create a municipal utility entirely within Boulder’s city limits, the Court of Appeals’ decision will result in the overturning of numerous Supreme Court precedent, including, without limitation, City of Fort Morgan, supra; Miller, supra; Shaklee, supra. For the above reasons, the Court should accept certiorari under C.A.R. 50 and review this case. B. The Court of Appeals is being asked to decide an important state question that has not been but should be decided by the Supreme Court as to the precise role of the PUC to approve the transfer of assets related to a municipality’s creation of a municipal utility that is entirely within municipal limits. As noted above, whether a home-rule municipality seeking to create a municipal utility wholly within the municipality’s city limits must seek and obtain PUC approval prior to commencing a condemnation action is a matter of first impression. Also as noted above, the PUC’s constitutional authority is limited to 17 oversight of private utility providers and its primary function is to ensure the private utility system is safe, effective, and reliable. Boulder is aware that several other municipalities are considering or have approved the creation of a municipal utility. These other municipalities are observing closely Boulder’s municipalization efforts. A decision by this Court will lend much needed guidance to municipalities, private utility service providers, and the PUC as to the proper role, interplay, and rights of the various interested parties in the context of the creation of a municipal utility. This Court has repeatedly found previously that issues involving a condemnor’s authority vis-a-vis the PUC’s authority are particularly suitable for this Court’s expedited review. See, e.g., Miller, supra (original proceeding for review of trial court’s orders under a show cause order); Colorado & S.R. Co., supra (original proceeding under C.A.R. 21); and Buck, supra (original proceeding under C.A.R. 21). 18 C. The extent to which a home-rule municipality must defer to the PUC’s regulatory authority before exercising the municipality’s constitutional rights is of such imperative public importance as to deviate from normal appellate processes and require immediate Supreme Court disposition. As noted above, Boulder’s electorate approved municipalization over nine years ago. Since that time, Boulder’s voters have repeatedly and consistently approved of Boulder’s municipalization efforts. Most recently, Boulder’s voters passed a ballot measure approving an extension and increase of tax funding and passed a charter for another vote before Boulder may issue debt to allow separation of its system from Xcel’s system to allow construction. The future vote is to be informed by the just compensation determination in this eminent domain action. Boulder’s citizens anticipated an election in 2019 or 2020. If the normal appellate processes are allowed to proceed, Boulder likely will be unable to obtain relief in advance or sufficiently in advance of Boulder’s anticipated future vote on municipalization. For this and the other reasons set forth in this Petition, Boulder believes this matter is of such imperative public importance as to warrant the Court accepting certiorari now in deviation from the normal appellate processes. 19 VIII. CONCLUSION For the above reasons, the City of Boulder respectfully requests this Court grant the City’s Petition. Respectfully submitted this 27th day of December, 2019. HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. S/ RICHARD F. RODRIGUEZ’S DULY SIGNED PHYSICAL COPY OF THIS DOCUMENT IS ON FILE AT THE OFFICE OF HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. PURSUANT TO CRCP RULE 121, SECTION 1-26(9) By: Richard F. Rodriguez, No. 25105 Donald M. Ostrander, No. 12458 ATTORNEYS FOR PETITIONER OFFICE OF THE BOULDER CITY ATTORNEY Thomas N. Carr, No. 42170 Kathleen E. Haddock, No. 16011 CO-ATTORNEYS FOR PETITIONER 20 CERTIFICATE OF DELIVERY I hereby certify that on this 27th day of December, 2019, a true and correct copy of the foregoing PETITION FOR WRIT OF CERTIORARI UNDER C.A.R. 50 (WITH ATTACHMENTS) was sent via Colorado Courts E-Filing system or sent via United States mail, first class, postage prepaid, and properly addressed to the following: John R. Sperber, No. 22073 Brandee L. Caswell, No. 30706 Sarah M. Kellner, No. 38111 Katie M. Gray, No. 42331 Matthew D. Clark, No. 44704 FAEGRE BAKER DANIELS LLP 1144 Fifteenth Street, Suite 3400 Denver, CO 80202 jack.sperber@faegreBD.com brandee.caswell@faegreBD.com sarah.kellner@faegreBD.com katharine.gray@faegreBD.com matthew.clark@faegreBD.com Attorneys for Public Service Company of Colorado (Sent via Colorado Courts E-Filing) Olivia D. Lucas, No. 36114 Boulder County Attorney’s Office P.O. Box 471 Boulder, CO 80306 olucas@bouldercounty.org Respondent Paul Weissmann, in His Official Capacity as Treasurer of Boulder County (Sent via Colorado Courts E-Filing) 21 Morgan Guaranty Trust Company Of New York Registered Agent: CT Corporation 4400 Easton Commons Columbus, OH 43219 (Sent via US Mail) HAMRE, RODRIGUEZ, OSTRANDER & DINGESS, P.C. By: s/ Lori A. Argo DATE FILED: December 27, 2019 2:58 PM FILING ID: F94DE62C48E9B CASE NUMBER: 2019SC1006