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CASE NO.: 00-6105
IN THE ARTICLE III
one supreme Court for the united States of America
Albert Coombs and Paul Burge
Petitioners
vs.
SPRINT COMMUNICATIONS COMPANY LP, and
AT&T, COMMUNICATIONS of THE SOUTHERN STATES, INC.
On Petition For Writ Of Certiorari
To The
SUPREME COURT OF THE
STATE OF NORTH CAROLINA
Supplemental Brief to Petition of Certiorari
Albert Coombs, Sui Juris Paul Burge, Sui Juris Paul
Burge, Sui Juris
(Petitioner of record) (Intervener Petitioner) (Intervenor
Petitioner)
7055 Mountain Road c/o General Delivery c/o
General Delivery
Oxford, North Carolina Pittsboro
Post Office
Pittsboro, North Carolina
(919-545-0663)
This supplemental Brief is presented at this time
under Rule 15 (8), because
the following case was just discovered and the particular portions quoted
herein shows a double standard that both the Public Utilities Commission
(PUC)and North Carolina used to the prejudice of this Complainant and the
Intervener Paul Burge. It also shows why this one supreme Court has to allow
the man, Paul Burge, to have some vestige of remedy that has thus far been
denied him at the State levels and be reinstated in the caption as an
intervener to seek such a remedy. The Original Petition caption to this one
supreme Court has Paul Burge, the man, as an Intervenor. As can be seen by
the case below, 170A99, all the pleadings spelled out by the North Carolina
Supreme Court were denied both men, Albert Coombs and Paul Burge, even
though both men argued the same statutes and PUC
Rules of intervention in
Paul Burge's cause. Petitioner's noted facts are interspersed in the quotes
from the North Carolina Supreme Court's decision.
The case was No. 170A99, STATE OF NORTH CAROLINA EX
REL. UTILITIES COMMISSION; PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INC. (Applicant);
PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION (Intervenor); and MICHAEL F.
EASLEY, ATTORNEY GENERAL (Intervenor) v. CAROLINA UTILITY CUSTOMERS ASSOCIATION,
INC. (Intervenor)
Please note the automatic allowance of Intervenor
status in the above case,
which was denied Paul Burge in a same type situation; except for "type" of
utility even though every document filed contained Paul Burge's name in the
caption and that he had every right to become an Intervenor under the Same
General Statutes and PUC Rules. Also note the entire Record of Appeal was
accepted in the N.C. Supreme Court and Docketed with Paul Burge being a
recognized Intervenor. The fact that Intervenor Paul Burge was indeed
recognized when Paul Burge filed in the case a recusal to remove a one
justice Martin. The Court accepted that recusal and judge Martin recused by
Order, himself. That is an outright admission that Paul Burge was and is an
active and bona fide Intervenor, as Albert Coombs had no conflict with judge
Martin and never entered a single word toward that recusal petition.
Continuing to the next portion of the 170A99 decision
statement. Please note
Petitioners Coombs and Burge used this statute, N.C.G.S.
§ 62-133, in their
case and that exact statute is stated in presenting our Record of Appeal,
Appendix page viii of the Petition to this Court,
yet the North Carolina
Supreme Court dismissed Petitioner's Appeal of the Rate Case with no reasons
given. The decision from case 170A99 states;
N.C.G.S. § 62-133(a), (b), (d) (1999). The Commission must determine, in
accordance with the direction of this section, what constitutes a reasonable
charge for proposed services. SeeCarolina Util. Customers Ass'n, 348 N.C. at
459, 500 S.E.2d at 699; see also State ex rel. Utils. Comm'n v. Morgan, 277
N.C. 255, 267, 177 S.E.2d 405, 413 (1970).
The rates fixed by the Commission are deemed
prima facie just and reasonable pursuant to N.C.G.S. § 62-94(e). This Court
will uphold the Commission's decision unless it may be attacked on one of the
statutory grounds enumerated in N.C.G.S. § 62-94(b). See Carolina Util. Customers
Ass'n, 348 N.C. at 459, 500 S.E.2d at 699. Section 62-94 provides in pertinent
part:
(b) So far as necessary to the decision and where
presented, the court shall decide all relevant questions of law, interpret constitutional
and statutory provisions, and determine the meaning and applicability of the
terms of any Commission action. The court may affirm or reverse the decision
of the Commission, declare the same null and void, or remand the case for
further proceedings; or it may reverse or modify the decision if the substantial
rights of the appellants have been prejudiced because the Commission's findings,
inferences, conclusions or decisions are:
(1) In violation of constitutional provisions,
or
(2) In excess of statutory authority or jurisdiction
of the Commission, or
(3) Made upon unlawful proceedings, or
(4) Affected by other errors of law, or
(5) Unsupported by competent, material and
substantial evidence in view of the entire record as submitted, or
(6) Arbitrary or capricious.
© In making the foregoing determinations, the court
shall review the whole record or such portions thereof as may be cited by any
party and due account shall be taken of the rule of prejudicial error. The appellant
shall not be permitted to rely upon any grounds for relief on appeal which were
not set forth specifically in his notice of appeal filed with the Commission.
The North Carolina Supreme Court did none of the
above in
Petitioner's Direct Appeal showing extreme prejudice when both cases are the
same, a Rate case matter. We now go to the next portion showing the lower
Court applied another double standard as the Petitioner/Plaintiff's entered
all the cogent and "substantial evidence" available and the Respondents
entered no evidence whatsoever. Therefore, as the lower Court stated in the
170A99 decision, "This Court cannot affirm the Commission's order unless
the
facts and findings included therein are contained in the record."
Petitioners direct the attention of this one supreme Court to our Record of
Appeal to see that the North Carolina Supreme Court has denied remedy by
extreme prejudice and contradicted the order of dismissal in Petitioner's
case, with this decision in the 170A99 case. The
court stated;
N.C.G.S. § 62-94(b), © (1999).
Under section 62-94(b) this Court must review
the Commission's order on appeal to determine whether the findings of fact are
supported by competent, material, and substantial evidence in view of the entire
record. See Carolina Util. Customers Ass'n, 348 N.C. at 460, 500 S.E.2d at 699.
Substantial evidence means "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Consolidated Edison
Co. of N.Y. v.N.L.R.B., 305 U.S. 197, 229, 83 L. Ed. 126, 140 (1938).
This Court cannot affirm the Commission's order
unless the facts and findings included therein are contained in the record.
See Carolina Util. Customers Ass'n, 348 N.C. at 460, 500 S.E.2d
at 700. Section 62-79(a) establishes the standard against which Commission orders
will be analyzed on appeal:
(a) All final orders and decisions of the
Commission shall be sufficient in detail to enable the court on appeal to determine
the controverted questions presented in the proceedings and shall include:
(1) Findings and conclusions and the reasons or
bases therefor upon all the material issues of fact, law, or discretion presented
in the record, and
(2) The appropriate rule, order, sanction, relief
or statement of denial thereof.
N.C.G.S. § 62-79(a) (1999). "Failure to include all necessary findings
of fact is an error of law and a basis for remand under section 62-94(b)(4)
because it frustrates appellate review."
Carolina Util. Customers Ass'n, 348 N.C. at 460, 500 S.E.2d at 700.
The above statement
shows the double standard and extreme prejudice the
North Carolina Supreme Court has toward Petitioners in not granting the
nihil dicit judgement filed and Demanded of RIGHT
upon the Record of Appeal.
Petitioner's case shows that all cogent evidence entered came from
Petitioner/Plaintiffs and nothing from the Respondents. Petitioners brought
this to the attention of the North Carolina Supreme Court and the PUC, as
noted in the Appendix, Record of Appeal, Brief 21 on page viii of the
Petition for Cert. which is before this Court. Since
the N.C. Supreme Court
clerks reviewed our entire Appeal and docketed it
rather than return it for
lack of any findings below, in accordance with 62-79 (a), proves there was
enough evidence on the Record of Appeal to issue judgement in our favor. Yet
the Court did not, although overwhelming "substantial
evidence" was entered
by Petitioners to which the court in 170A99 stated,
"This Court recognized that "the legislature has established
an elaborate procedural, hearing, and appeals process that contemplates the
full consideration of all evidence put forth by each of the parties certified
via the statute to have an interest in the outcome of contested proceedings."
Id. at 463, 500 S.E.2d at 701. The Court acknowledged the value of settlements
to the efficient administration of justice but emphasized that "[c]hapter
62 contemplates a full and fair examination of evidence put forth by all of
the parties." Id. at 464, 500 S.E.2d at 702.
Therefore, the court, in not returning
the Direct Appeal for remand due to lack of sufficiency of The PUC
Order pursuant to it's quote of 62-79, had a duty per 62-94 (b), as stated on
page 2 above, "or it may reverse or modify the decision if the
substantial rights of the appellants have been prejudiced because the Commission'sfindings,
inferences, conclusions or decisions."
This flagrant abuse of "any" Due Process and
multiple Constitutional violations demands a grant of Cert.
to correct egregious rulings of the Court and the PUC which denied "Substantial
rights" of Plaintiffs by
disregarding all the cogent evidence entered by Plaintiffs and the General
Accounting Office of the United
States and sidestepping basic constitutional protections afforded the Petitioners
in this Writ of Cert.
Under Penalty of Perjury 28 U.S.C. 1746, on this date October 10, 2000,
this is Presented by:
____________________________
Petitioner Albert Coombs
PROOF OF SERVICE
Please take Notice that I, Albert Coombs, under penalty of perjury, 28 U.S.C.
1746, placed in prepaid first class U.S. Mail certified, R.R.R., 10 copies of
a Supplemental Brief in case # 00-6105 to the one supreme Court and copies to
following parties:
T. John Policastro
AT&T
150 Fayetteville Street Mall, Suite 1340
Raleigh, North Carolina 27601
Cert. Mail # Z 532 060 674
Robert Carl Voight, Senior Attorney
Sprint Mid-Atlantic TeleCom Inc and Carolina Telephone and Telegraph Company
Legal Department- Mailstop NCKWFR0313
14111 Capital Blvd.
Wake Forest, North Carolina 27587
Cert. Mail # Z 532 060 675
Attorney General Mike Easley
2 East Morgan Street, Justice Bldg.
P.O. Box 629
Raleigh, North Carolina 27602
Cert Mail # Z 532 060 676
Solicitor General of The United States
Room 5614
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
Cert. Mail # Z 532 060 678
Paul Burge
c/o General Delivery
Pittsboro, North Carolina
Dated and sent this 10th Day of October 2000
______________________
Albert Coombs
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