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Barrett v. Volz

United States District Court, D. Vermont

August 1, 2016

LISA BARRETT, Plaintiff,
v.
JAMES VOLZ, MARGARET CHENEY, and SARAH HOFMANN, members of the Vermont Public Service Board in their official capacities, Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION (DOC. 5)

          CHRISTINA REISS, CHIEF JUDGE

         On July 29, 2016, this matter came before the court for an evidentiary hearing on Plaintiff Lisa Barrett's motion for declaratory judgment, temporary restraining order, and preliminary and permanent injunction (Doc. 5). Plaintiff asks the court to enjoin Defendants James Volz, Margaret Cheney, and Sarah Hofmann, the members of the Vermont Public Service Board (the "Board"), from enforcing the Board's July 15, 2016 Procedural Order Re: Logistics for Technical Hearing (the "Procedural Order"). The Procedural Order prohibits the public from attending the Board's August 4, 2016 technical hearing on the petition of Vermont Gas Systems, Inc. ("VGS") to condemn easement rights in Hinesburg, Vermont as part of its natural gas pipeline extension project (the "VGS pipeline project").

         Plaintiff further requests a permanent and mandatory injunction requiring the Board to select a venue for the August 4, 2016 hearing that is large enough to accommodate the media and the public. In the event Plaintiff is the prevailing party, she asks for an award of her attorney's fees and costs pursuant to 42 U.S.C. § 1988.

         Defendants oppose the motion, arguing that the Procedural Order's prohibition on public attendance at the August 4, 2016 hearing is necessary to protect the due process rights of the participants and to ensure an orderly proceeding in light of significant public disruption of several previous VGS pipeline proceedings. The Board argues that the public will have adequate access to the hearing through a number of alternative means, including live Internet streaming of the proceedings, a call-in number for an audio recording of the proceedings, and the posting of a transcript of the hearing on the Board's website. In addition, the Board has agreed to let the media attend the hearing, which it contends will adequately protect the public's right of access.

         Plaintiff is represented by John L. Franco, Jr., Esq. Defendants are represented by Vermont Solicitor General Bridget C. Asay and Assistant Attorney General Benjamin D. Battles.

         I. Findings of Fact.

         For the purposes of the pending motion, based upon the admissible evidence, the court makes the following findings of fact:

         1. Plaintiff is a retired attorney who lives in Huntington, Vermont and opposes the VGS petition to extend its gas pipeline southward through a public park in Hinesburg. Although she is not a party to the VGS pipeline proceedings, she seeks to attend the August 4, 2016 hearing in person so that she can witness firsthand the proceedings, observe the demeanor of the Board and the parties, and communicate with the parties at appropriate times. Plaintiff has never previously disrupted a Board hearing. She is unable to receive reliable Internet streaming at her home. As live streaming will provide a video recording of the witnesses, but not of the parties or the Board members, she asserts that it will not allow her to fully observe the proceedings and determine whether they are fair.

         2. The Board, created by the Vermont Legislature in 1959, is a three member, quasi-judicial board that supervises, among other entities and issues, the rates, quality of service, and overall financial management of Vermont's public utilities: electric, gas, telecommunications, and private water companies. Pursuant to statute, "[t]he [B]oard shall have the powers of a court of record in the determination and adjudication of all matters over which it is given jurisdiction. It may render judgments, make orders and decrees, and enforce the same by any suitable process issuable by courts in this state." 30 V.S.A. § 9.

         3. The Board describes its operations as follows:

         [our statutory mandate] often requires public hearings, evidentiary hearings, and other forms of inquiry and investigation to ensure that high-quality service is provided by the utilities at rates that are just and reasonable for both the customer and the utility. To that end, we investigate issues ranging from existing or proposed rates to the siting of utility plant[s]. These inquiries may be the subject of informal investigations or formal hearings in which the Board Members or individual hearing officers sit in a quasi-judicial capacity. Hearings before us are open to the public and are transcribed by a court reporter. After the hearings are held, the Board renders a decision which is written into an order. Our orders are available for public review in the office of the Clerk of the Board and also are posted to this web site. In most instances, our orders are appealable to the Vermont Supreme Court.

         See About the Public Service Board, http://psb.vermont.gov/aboutthepsb (last visited August 1, 2016).

         4. "Customarily, the Board hearing room is open to the public, who frequently enter and observe Board proceedings." See Procedural Order, Ex. 1 at 5. Generally, the Board "welcome[s] the public's presence at [its] hearings[.]" Id.

         5. The Board concedes that the August 4, 2016 will be an evidentiary, adjudicative proceeding. The Board further concedes that members of the public have a presumptive right of access to it. The parties agree that the Board's hearing room is not a public forum.

         6. The Board's hearing room has an occupant capacity of seventy individuals. It is located in a multi-tenant building that includes other state offices. There is no security screening at the entrance to the building, or at the entrance to the Board's hearing room. There is a narrow hallway to the hearing room in which members of the public tend to congregate.

         7. Unlike a civil proceeding in court, the Board's hearings do not have a bailiff or other officers to maintain order during proceedings. If additional security is required, the Board contracts with local law enforcement agencies to provide the appropriate planning and personnel.

         8. At previous Board proceedings pertaining to VGS's pipeline project, the disruptive conduct of some members of the public interfered significantly with the Board's ability to conduct the proceedings and provide the participants with a meaningful opportunity to be heard. This disruptive conduct consisted of members of the public singing, humming loudly, clapping, whistling, and calling out, forcing the participants in the hearing to gather close to the court reporter and conduct the proceedings in a manner that rendered them inaccessible and unintelligible to anyone outside their small circle. Several disruptive members of the public moved close enough to the participants to impede their efforts to proceed. The noise was sufficiently loud and persistent that other tenants in the building complained. The disruptive conduct took place both before and after a uniformed law enforcement officer advised the disruptive members of the public that disorderly conduct consisted of conduct that interfered with the Board's ability to conduct its business and could result in their arrest. On previous occasions, the disruption persisted even after the hearing officers repeatedly asked members of the public to refrain from engaging in conduct that interfered with the orderly conduct of the proceeding.

         9. In its Procedural Order, the Board identifies the proceedings that were disrupted as "preliminary conferences . . . held on December 30, 2015, in Docket 8645; February 6, 2016, in Docket 8641; and February 19, 2016, in Docket 8642." (Ex. 1 at 1 n.2.)

         10. Prior to and during the disrupted VGS pipeline proceedings, the Board directed contracted law enforcement officers to refrain from interacting with disruptive members of the public. As a result, disruptive members of the public were neither asked nor ordered to leave the Board's hearing room. No member of the public was either arrested or directly and personally threatened with arrest if he or she persisted in disruptive conduct.

         11. Video recordings of the disrupted VGS pipeline proceedings permit relatively accurate identification of the primary participants in the disruptive conduct by appearance, although not by name. During a recess in one disrupted proceeding, members of the public, including individuals who had previously been disruptive, discussed their views regarding the VGS pipeline in a courteous manner with a law enforcement officer who was present in the Board's hearing room. This suggests that not all disruptive members of the public would refuse to obey a lawful command to leave the premises and risk an arrest.

         12. The Board has incurred additional expenses resulting from the need to provide security at Board proceedings that are charged to VGS ratepayers.

         13. On March 17, 2016, the Board issued an Order seeking input regarding "what steps, if any, the Board should consider taking to ensure that future hearings can be conducted in an orderly fashion and to ensure the safety of all participants and anyone else in attendance." Id. at 2. VGS and the Vermont Department of Public Service ("DPS") responded to the Order.

         14. VGS recommended issuing a notice of technical hearing that informs the public of its right to attend the hearing while making clear that disorderly conduct aimed at disrupting the proceeding will not be tolerated. It further recommended that the Board describe standards of acceptable and unacceptable behavior. VGS alternatively suggested holding the hearing in a larger room or conducting the hearing in a smaller space while allowing the public to observe via closed-circuit television.

         15. DPS advocated for the continued presence of the public in the Board's hearing room, but suggested that members of the public who disrupt the proceedings be removed by law enforcement. It also made the alternative suggestion that members of the public view the proceedings in a separate space by means of broadcasting devices.

         16. After investigating a number of potential locations for the August 4, 2016 hearing, all of which proved either unavailable or unworkable, the Board selected a state-owned training facility in Berlin, Vermont which law enforcement has ...


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