Casey v. Beeker

• Decision Date: 04 September 2020
• Docket Number: 1190400
• Citation: 321 So.3d 662
• Parties: Laura CASEY v. Chris "Chip" BEEKER, Jr., Twinkle Andress Cavanaugh, and Jeremy H. Oden, in their official capacities as commissioners of the Alabama Public Service Commission
• Court: Alabama Supreme Court

321 So.3d 662

Laura CASEY

v.Chris "Chip" BEEKER, Jr., Twinkle Andress Cavanaugh, and Jeremy H. Oden, in their official capacities as commissioners of the Alabama Public Service Commission

1190400

Supreme Court of Alabama.

September 4, 2020

J.S. "Chris" Christie, Jr., of Sirote & Permutt, P.C., Birmingham, for appellant.

Robert D. Segall and Wallace D. Mills of Copeland Franco Screws & Gill, P.A., Montgomery; and Luther D. Bentley IV, Montgomery, for appellees.

SELLERS, Justice.

Laura Casey appeals from a judgment entered by the Montgomery Circuit Court in Casey's action against Chris "Chip" Beeker, Jr., Twinkle Andress Cavanaugh, and Jeremy H. Oden ("the commissioners"), in their official capacities as commissioners of the Alabama Public Service Commission ("the PSC"). In her complaint, Casey asserted that a gathering of the commissioners at a public hearing held by the PSC in November 2019 constituted a "meeting" under the Alabama Open Meetings Act, § 36-25A-1 et seq., Ala. Code 1975 ("the Act"). She alleged that proper notice of the hearing was not given as required by the Act and that she was prohibited from recording the hearing in violation of the Act. The trial court, however, ruled that a "meeting" had not occurred at the hearing and that the Act therefore does not apply. We affirm.

Section 37-1-83, Ala. Code 1975, which is part of the statutory scheme governing the PSC, requires the PSC to investigate complaints of unfair utility rates. It also provides that "no order affecting such [utility] rates ... shall be entered by the [PSC] without notice and a hearing." In addition, § 37-1-96, Ala. Code 1975, provides that "[n]o order shall be made by the [PSC] affecting any rate or service, except as otherwise specifically provided, unless or until a public hearing has been held in accordance with the provisions of [Title 37]."

Two individuals, James Bankston and Ralph Phifer, filed a complaint with the PSC regarding Alabama Power Company's "capacity-reservation charges," which are purportedly aimed at enabling Alabama Power to recover the costs associated with serving the backup-power needs of customers with "onsite interconnected generation." Bankston and Phifer complained specifically about charges levied against Alabama Power customers who generate their own electricity through the use of solar panels. According to a representative of Alabama Power, its capacity-reservation charges allow Alabama Power to recover the cost of "reserving" backup electricity for customers whose solar panels are not producing enough power. The Alabama Attorney General's Office and two nonprofit organizations, G.A.S.P. and Energy Alabama, intervened in the proceedings.

On November 21, 2019, the PSC held a public hearing regarding the capacity-reservation charges. Pursuant to § 37-1-89, Ala. Code 1975, the PSC appointed an administrative law judge to preside over the hearing. Notice of the hearing, in the form of an order of the administrative law judge setting a hearing date, was posted in advance on the PSC's Web site. The hearing was widely attended. Although all three PSC commissioners attended the hearing, affidavits submitted to the trial court indicate that there was no prearranged plan to have a quorum of the PSC present.

Casey, a resident of Shelby County, attended the PSC hearing. Using her cellular telephone, Casey began to record the hearing. The record suggests that she may have also simultaneously "streamed" the hearing over the Internet. Before the hearing was over, the administrative law judge stated:

"I continue to hear the chirping of an electronic device. It's annoying the heck out of me and it's taking away my focus. If anybody's streaming this proceeding, shut it down right now. We don't record proceedings. We don't stream live hearings here at the Commission. Any live streaming needs to be shut down right now. It's not permitted. If that's what I'm hearing, the chirping, that needs to stop ...."

Casey alleges that, after the administrative law judge's comments, her cellular telephone was confiscated and she was escorted out of the proceedings and was not allowed to return until she agreed to stop recording.¹

Section 36-25A-9, Ala. Code 1975, allows for civil actions alleging violations of the Act. Interested parties can sue members of a governmental body, in their official capacities, who remain in attendance at a meeting allegedly held in violation of the Act. Pursuant to that Code section, Casey sued the commissioners, averring that they had violated the Act by failing to give the notice called for by the Act and by preventing Casey from recording the hearing.

The parties submitted legal briefs and documentary evidence to the trial court. After hearing arguments, but without receiving any oral testimony, the trial court entered a final judgment in favor of the commissioners. In support of its judgment, the trial court ruled that the Act did not apply here because the gathering of the commissioners at the PSC hearing was not a "meeting" that would trigger applicability of the notice and recording provisions of the Act. Casey appealed.

The parties agree that this Court should apply a de novo standard of review. See Alfa Mut. Ins. Co. v. Small, 829 So. 2d 743, 745 (Ala. 2002) ("[W]here there are no disputed facts and where the judgment is based entirely upon documentary evidence, no ... presumption of correctness applies [to the trial court's judgment]."). See also Pitts v. Gangi, 896 So. 2d 433, 434 (Ala. 2004) (noting that questions of statutory interpretation are subject to de novo review on appeal). Under the Act, Casey had the burden of demonstrating by a preponderance of the evidence that a "meeting" occurred and that the provisions of the Act were violated. See § 36-25A-9(b), Ala. Code 1975 (stating in part that, at a preliminary hearing on a complaint alleging a violation of the Act, "the plaintiff shall establish by a preponderance of the evidence that a meeting of the governmental body occurred and that each defendant attended the meeting"); § 36-25A-9(e), Ala. Code 1975 (requiring a trial court to enter a final judgment against a defendant in an Open Meetings Act case "[u]pon proof by a preponderance of the evidence of a defendant's violation of [the Act]").

Section 36-25A-1(a), Ala. Code 1975, provides, with some exceptions not applicable here, that "no meetings of a governmental body may be held without providing notice pursuant to the requirements of Section 36-25A-3[, Ala. Code 1975]." (Emphasis added.) As for recording a meeting, § 36-25A-6, Ala. Code 1975, provides, in part:

"A meeting of a governmental body, except while in executive session, may be openly recorded by any person in attendance by means of a tape recorder or any other means of sonic, photographic, or video reproduction provided the recording does not disrupt the conduct of the meeting."

(Emphasis added.)

There is no dispute in this case that the PSC is a "governmental body" under the Act. See § 36-25A-2(4), Ala. Code 1975 (defining "governmental body"). The dispute is whether a "meeting" occurred during the PSC hearing. On appeal, Casey relies on the following definition of "meeting":

"(6) Meeting. a. Subject to the limitations herein, the term meeting shall only apply to the following:

"....

"3. The gathering, whether or not it was prearranged, of a quorum of a governmental body during which the members of the governmental body deliberate specific matters that, at the time of the exchange, the participating members expect to come before the full governmental body at a later date."

§ 36-25A-2(6) a.3., Ala. Code 1975. In the present case, whether a "meeting" occurred at the hearing depends on whether the commissioners "deliberated" a matter at the hearing that they expected to come before the PSC at a later date. It is not contested that the commissioners expected Alabama Power's capacity-reservation charge to come before the PSC at a later date. Thus, whether a meeting occurred depends on whether the commissioners "deliberated" that matter at the hearing.²

Although the Act defines the term "deliberation," § 36-25A-2(1), Ala. Code 1975, Casey argues that this Court, in determining whether the commissioners deliberated at the PSC hearing, should not consult that definition. Rather, she asserts that we should apply Merriam-Webster's definition of "deliberate," which is "to think about or discuss issues and decisions carefully." Merriam-Webster's Collegiate Dictionary 329 (11th ed. 2020) (emphasis added). We disagree. The Act uses the terms "deliberative," "deliberate," and "deliberation." See § 36-25A-1(a), Ala. Code 1975 ("It is the policy of this state that the deliberative process of governmental bodies shall be open to the public during meetings ...."); § 36-25A-2(6), Ala. Code 1975 (defining "meeting" in part as a gathering of a quorum of a governmental body where the members of the quorum "deliberate" a matter they expect to come before the full governmental body); § 36-25A-7(a)(3), Ala. Code 1975 (stating that, if, during an executive session where litigation against a governmental body is discussed with counsel, "deliberation begins among the members of the governmental body regarding what action to take relating to pending or threatened litigation based upon the advice of counsel, the executive session shall be concluded and the deliberation shall be conducted in the open portion of the meeting or the deliberation shall cease"). Thus, among other things, the Act is aimed at making the "deliberative process" transparent and open to the public during "meetings," which include gatherings at which governmental bodies "deliberate." It also requires transparency when "deliberation" occurs during an executive session where litigation is discussed with counsel. It is obvious to the Court from the entirety of the Act and from the definition of "deliberation" that term refers to the act of deliberating. In other words, it defines what it...