CPUC Kicks Lutz's camera out of the room

Citizens Oversight (2013-05-13) Ray Lutz

This Page: https://copswiki.org/Common/M1358
Media Link: http://youtu.be/GVgSkFXlpio%20type%3d%22html%22
More Info: Brown Act, Coalition To Decommission San Onofre, Freedom Of Speech, Shut San Onofre

The CPUC, the California Public Utilities Commission is a state agency that regulates utilities. This meeting is a quasi-judicial hearing regarding the San Onofre Nuclear Generating Station (SONGS) outage during 2012 to determine if Southern California Edison, the operator and licensee of the plant, acted reasonably after the emergency shutdown of the Unit 3 reactor after a steam generator tube leak, and subsequent outage of both units at the plant.

This video documents the attempt by Administrative Law Judge Melanie Darling to suppress video recording of the meeting. The first day was not recorded at all.

The arguments made that morning by the Coalition to Decommission San Onofre along w/ ally, Women's Energy Matters, and the support of other parties to the proceeding were crucial to persuading ALJ Darling to webcast the rest of the meeting.

Subsequent days were webcast and they can be viewed at this link: http://www.californiaadmin.com/cpuc.shtml

Citizens Oversight is providing edited videos of the hearings HERE.

DEMAND LETTER
Citizens Oversight has taken the next step on this issue by submitting a "Demand Letter" to the CPUC. This demand, if unmet, will be the basis for legal action against the CPUC.

• COPS-Letter-To-CPUC-on-Bagley-Keene-Act-Violation_V4.pdf: Demand Letter, Sent to the CPUC on June 11, 2013
• Press_Rel-_COPS_submits_demand_letter_to_CPUC_over_Bagley-Keene_violation.pdf: Press Rel: COPS submits complaint and Demand letter to CPUC regarding open meeting violations

• Public Advisor - 866-849-8390

RESPONSE
Received the following response dated 6/13/2013, confirming their reception of my email and attachment:

Dear Ray Lutz,

This is to confirm that the CPUC has received your letter, and it will be reviewed accordingly. 

Best Regards,

Love A. Akrofi
Public Utilities Regulatory Analyst
CPUC - Public Advisor's Office
Ph 213 576 1310
laa@cpuc.ca.gov

Transcript of Interaction with ALJ Darling

~3:55 Darling: Who owns that camera back there? Who's responsible for the camera?

Lutz: Do I have to identify myself?

Darling: Of course you do.

Lutz: I'm with Citizens' Oversight, and so we're here to cover this so the people at home in San Diego can see the meeting and since it is 450 miles away, there's no webcasting provided, there's no recording that I know of that you guys are providing for download, and I'd appreciate it if you would allow this unobtrusive camera back here, it's not going to cause any trouble whatsoever, it's just going to record the meeting for educational purposes.

Darling: Well, unfortunately, we have a ruling in this case, uh, it's a matter of judicial discretion, and [not sure] a rather lengthy explanation of that ruling was sent out with the minutes report...

Barbara George (Womens Energy Matters): [makes a motion to have the recording occur]...

Darling: First of all, the outstanding ruling in this hearing room right now is there is no recording, so please take the camera down.

Lutz: I'd like to make a motion that we change that...

Darling: You're not a party.

Lutz: I am a party.

Darling: You don't have standing to make a motion, Ms. George made a motion. We we go on [the record] I will take oral arguments. Right now the camera goes off.

Lutz: I am a party [Citizens Oversight, Inc. is a party as a member and umbrella org over the Coalition to Decommision San Onofre] and I would like to make a motion that this be allowed

Barbara George: We need to wait until 10 o'clock where we are in the hearing and court reporters are documenting what is going on.

Darling: First of all, the camera goes down, or we don't start. That's it. There is a ruling that is active here in this courtroom, hearing room. Excuse me. There are multiple reasons why a last-minute order to broadcast or video tape quasi-judicial proceedings is inappropriate. It violates the due process of all the participants, and frankly, we've had experience in this proceeding with incredibly disruptive behavior.

Ms. George: I did make the motion...

Darling: (interrupting...) Excuse me, Ms. George.

Ms. George: We are not in a formal part of this hearing. ... you told us we could have oral arguments on this

Darling: Ms. George. I need you to stop, now. We are not on the record, so you will get your opportunity.

Barbara George... {can't hear this}

Darling: I understand your point and I am explaining, We have a ruling, and the rulings for this proceeding are going to stand. There are different rulings, and right now, the ruling is, there is no videotaping because it abrogates the rights of the other participants

Ms. George: Are you going to repeat all that in the record?

Darling: Of course. Right now, the video will go down.

~6:50 Lutz: "Have you started the meeting yet?"

Darling "No"

Lutz: "Well then it is not part of your meeting."

Darling: "I can't tell from here what's going and what's not going, so you will take the camera out now.

Lutz: "It's running, it's running the whole time to document this."

Darling: "You will take the camera outside the hearing room please."

Lutz: "And so, Has the meeting started, because if the meeting hasn't started...

Darling: It is about to start. I do not want a camera in this hearing room because it is disruptive and violates the due-process rights of other individuals in this proceeding. There was an untimely request [by Environmental Options Network in cooperation with Barbara George of Women's Energy Matters] there is a balance of the public interest and the camera will go out of the courtroom."

Lutz: "How about if I make one last request that we leave it there until it is disruptive and then you can remove it.

Darling: I can't tell what's running and what's not and frankly, I'm not going to spend my time trying to figure out what's a violation of a ruling in this proceeding.

7:52 "We need to get down to business and not be distracted. So I'd like that camera taken down and removed from the hearing room.

Transcript of motions later in the day

MS. GEORGE: I would a like to make an oral argument, and I think other people would like to make an oral argument.

ALJ DARLING: You are the moving party, because it was your motion. Ms. George, you have five minutes to make your motion, and you need to address the issues that I've laid out for you.

MS. GEORGE: Thank you, your Honor. Actually, we've already made the motion. So we are arguing in favor of the motion.

ALJ DARLING: No, the motion has been denied. I sent out a notice, because there has been a great deal of misinformation out there. Well intentioned but highly misinformed people sent a flurry of e-mails to me suggesting a number of facts which were blatantly incorrect. In any event, I sent out, along with Judge Dudney yesterday, further information to explain the background of the ruling and why there are issues of due process and the fair administration of this proceeding at issue. I've asked you to address -- if you wish to make a motion for reconsideration I'll entertain it as long as you address those issues. You have five minutes.

MS. GEORGE: Here is my motion for reconsideration. First of all, I have a request. For the record, what time was the ruling made? It was the...

ALJ DARLING: The ruling on your motion on Friday?

MS. GEORGE: No, the one on Sunday.

ALJ DARLING: I don't have it in front of me. It was Sunday morning.

MS. GEORGE: That is Mother's Day, right, Sunday morning this week?

ALJ DARLING: That was not a ruling, that was comment. It was to try to stem the time of inaccurate information that was being disbursed.

MS. GEORGE: So the issues in that comment are the ones that you want me to respond to? Because those are much more detailed than what came out on Friday. I wanted to point out that the comments on Sunday also seemed to conflate the videotaping with members of the public having a banner, which was actually unfurled after the meeting was over not during the meeting. I want to put that on the record. And I also want to point out that there was an e-mail exchange. Mr. Weissmann from Edison sent you an e-mail I believe the day of the hearing trying to --

ALJ DARLING: Today? MS. GEORGE: No, this was in the prehearing conference in January. He wanted to ban videotaping at that meeting. And I replied a couple days later to his e-mail, and sent that to your Honor and to the commissioner and to the service list so that everyone in this proceeding is on notic since January that we intend to videotape these hearings. We did videotape the prehearing conference in January. There was not, as far as I know, any disruption. My videographer team that worked with me is Ecological Options Network. I do not recall your Honor ordering them to take their camera down because they were disruptive. There were several other parties and members of the public and the media that videotaped that prehearing conference. In my opinion, that sets a precedence for the hearings in this case. You could also acknowledge that the -- I wish you would acknowledge that the people from Southern California, many of whom wrote to you as well as people from the Bay Area and other parts of California, are very interested in these hearings and their ability to follow the procedures in any real time is severely constrained. You mentioned the -- there are transcripts. Well, the transcripts are not available for a couple of weeks for people, and then they have to pay for them. So I don't consider that a real public record. You mentioned that they would be in the library later. I wanted to ask Edison and not to take up my time, but I believe that the trans- -- that the documents in the original steam generator case which parties have looked for are no longer available in any library in Southern California. Have not been able to locate the NRC, the whole issue of the initial steam generator -- not steam generator, the initial licensing. Those are not available. So saying -- I mean if people have to go to Washington to access things in the library -- also, the libraries are not open every day of course.

You've mentioned Rule 1.150 of the outside courts which Mr. Weissmann actually addressed in his e-mail in January and which I responded to in January. This does not apply to the Commission. If the Commission abided by all of the rules, for example the rules of evidence and time of outside courts, this -- these proceedings would be a lot different than they are. So to say that this is a -- you know, this is what we're going to go on, I really disagree that this is valid.

In the past, we have videotaped, WEM and Ecological Options Network and other people have videotaped many meetings and proceedings and workshops at the CPUC. We have been told by the Commission that 24 hours notice to the parties was necessary as a courtesy.

We have the right under Bagley-Keene to videotape a public meeting. This is a public meeting, is that correct?

ALJ DARLING: No.

MS. GEORGE: Or is this not a public meeting?

ALJ DARLING: This not is not subject to the Bagley-Keene Act. The Bagley-Keene Act applies when there are three or more commissioners in a decision making position. That does not apply to evidentiary hearings.

These are run by administrative law judges who are subject to the judicial canon of ethics. That might surprise you.

And to the extent -- that's because these proceedings are indeed quasi-judicial.

They are very much like court proceedings. The California Supreme Court has opined on the issue of taping. They leave it to a matter of judicial discretion. There are 18 factors in the code about what to look for because it isn't just about the issue of should somebody be able to see it. Public access doesn't mean that everybody's access at the way they want it. It means reasonable public access.

MS. GEORGE: Let me just point out, Mr. Florio, Commissioner Florio is also here and Commissioner Florio is here on behalf of the commissioners. So in essence, the three of you represent the Commission in terms of the Bagley-Keene Act I believe. And since the Commission has no policy that's written down, I requested when I responded --

ALJ DARLING: One minute.

MS. GEORGE: -- ALJ Dudney to send me the Commission -- he said that there was an ALJ policy, ALJ Division policy on this issue. I have never seen any policy that's written down. I think if there is a such a policy, it should be in the Rules of Practice or at least posted on the CPUC website. It's not.

ALJ DARLING: We defer to the rules of judicial conduct which defer to the rules on taping which is -- it's a matter of judicial discretion. I understand the issues of public access. It's simply not the only set of rights that are at play.

MS. GEORGE: Okay.

ALJ DARLING: You've used your five minutes so let me give you 30 seconds to wrap up, Ms. George, and I'll see if other parties have comments.

MS. GEORGE: Thank you. The first factor to continue if we were going to go under Rule 1.150 is the importance of maintaining public trust and confidence in the judicial system. I think in view of the issues in this case and in view of the fact that the ruling came out on Friday, and I think there are other concerns about rulings that came out on Friday at the end of the day and evidence that was served on Friday at the end of the day, I think there are real problems with maintaining public trust and confidence and I urge you to allow video taping.

We have no plans to interrupt the meeting. We just want people to know about it.

ALJ DARLING: All right.

MS. GEORGE: Also --

ALJ DARLING: Thank you, Ms. George. I'm going to open this up to see if there are other parties that wish to comment. Mr. Geesman.

MR. GEESMAN: Your Honor, the Alliance for Nuclear Responsibility, not a party to the motion for reconsideration but we would like to be recorded as agreeing with Ms. George.

We don't agree respectfully with your ruling. We don't agree with your interpretation of the Bagley-Keene Act. We don't agree with your characterization of due process rights of particular witnesses.

I think you should ask the parties if any of their witnesses do have those concerns. The Edison companies made clear what their preference is. We disagree that that would rise to a due process issue. We think it's a statutory question. We agree no court has determined whether the Bagley-Keene Act, because Commissioner Florio is acting on behalf of his fellow Commissioners would in fact be triggered. We believe that a court would hold that it would.

We don't believe that the Bagley-Keene Act imposes any notice requirements upon Ms. George. And we think from a public policy standpoint, it's an extraordinarily poor choice not to allow videotaping.

ALJ DARLING: Okay, anyone else? Ms. Sullivan.

MS. SULLIVAN: Martha Sullivan with the Coalition to Decommission San Onofre. And as an organization that represents the people in Southern California that are most impacted by this proceeding, we have said from the beginning of this proceeding from the time that the Commission issued this Order Instituting Investigation that it is important and very meaningful to the people in Southern California to have the hearings in Southern California. And I think for the record, it's important to reiterate that.

And that it seems absolutely reasonable accommodation of those very justifiable concerns by the people who live around this plant and have their businesses around this plant to want to be able to monitor and follow this proceeding, particularly the evidentiary hearing that's laying the foundation in the record for the Commission's decision. It seems absolutely reasonable accommodation for those justifiable interests that you -- that the Commission provides either a live stream, a webcast which is very easily readily performed or provide the opportunity for the hearings to be videotaped. That seems absolutely a reasonable accommodation of a very justifiable public interest in these evidentiary hearings.

And I would just like to say it seems pretty, very much a stretch that anybody coming into publicly noticed evidentiary hearings presided over by a judge would have some kind of presumption of privacy. I mean, that just seems pretty much of a stretch for me.

ALJ DARLING: Let me offer some clarification on that. It's one thing to come into a proceeding as a witness. It's another, none of us know if someone is the subject of -- is a domestic violence victim, for example, and has a restraining order out there. We don't know what all possibilities are out there. They might be help they might be other.

The point is, is that due process requires, and under the Court rule this is one of the key elements and factors that judges are supposed to take into consideration, and that's the privacy of the participation of the witnesses. They have an opportunity to say, gee, you need to get somebody else to do this. In this day and age, it's one thing to come into here where what you say is what you say, it's in the transcript. It's a whole nother thing to be out in the distortional medium of the Internet where things are mashed up, taken out of context, and widely exposed.

I think parties, every participant has an opportunity to weigh in on that. That right is as important as the public access rights that you're arguing for. It is a factor. There are a number of factors, including the efficient administration of the proceeding. And I would point out that things were a little too out of control during the prehearing conference. There was shouting, screaming, yelling. It was inappropriate. That's a public hearing -- it's a prehearing conference and public comes in and tries to get into the proceeding, okay. But this is not that kind of a proceeding. This is down-and-dirty details with witnesses and cross-examination where the rhythm of the inquiry matters. The concentration of the witnesses matters. These are all factors that are also weighed in with public access. And when a request is dropped in the morning before the hearing, one business day before, that raises concerns.

So I just wanted to say that I recognize your issues and that there is reason for why parties in Southern California want access to this proceeding. I understand that. That point's loud and clear. And that's an important consideration, I grant you. It is absolutely an important factor. Are there any --

MS. SULLIVAN: We have asked for it since the very beginning of this proceeding.

ALJ DARLING: I don't know where that is.

MS. SULLIVAN: It has been in every comment we have made to the commission.

ALJ BEMESDERFER: I have not seen a motion to allow it.

MS. GEORGE: WEM also has made that very --

ALJ DARLING: For future reference, needs to be raised at each prehearing conference in each successive phase. But we will take these comments.

MS. SULLIVAN: We have --

MS. GEORGE: We raised it at the PHC and videotaping was allowed.

ALJ DARLING: That was at the PHC. It was never understood --

MS. GEORGE: You said we need to raise this at the every PHC so we did raise it --

ALJ DARLING: You asked to tape the PHC. You did not ask to tape the evidentiary hearings.

MS. GEORGE: In our comments in December as well as in our letter to Mr. Weissmann, we stated that the hearings should either hopefully be held in Southern California or be videotaped. If you want to --

ALJ DARLING: I have not seen your motion before Friday. Are there any other --

MS. GEORGE: That wasn't the motion. That was our early comment --

MS. SULLIVAN: Right.

MS. GEORGE: -- and statement in the record in this proceeding. So to say that --

ALJ DARLING: Okay.

MS. GEORGE: -- we never asked for this is simply not true. We did.

ALJ DARLING: I just didn't see the motion. I'm sorry. You need to bring it to my attention. Mr. Weissmann, you had your hand up and Mr. Shapson.

MR. WEISSMANN: Just had two very brief comments, but I'll defer to Mr. Shapson.

ALJ DARLING: Mr. Shapson.

MR. SHAPSON: I'll be brief. DRA supports transparency as much as possible, along those lines supports the motion.

ALJ DARLING: Anyone else that's a party?

(No response)

MR. LEWIS: Your Honor, on behalf of the joint parties, National Asian American Coalition, Ecumenical Center for Black Church Studies, we'd also like to go on record supporting --

ALJ DARLING: Your name for the record please?

MR. LEWIS: Aaron Lewis, counsel for those parties. We'd like to go on to record supporting the videotaping so long as it's not disruptive.

ALJ DARLING: Okay, Mr. Weissmann.

MR. WEISSMANN: May I make two brief comments, your Honor?

ALJ DARLING: Yes.

MR. WEISSMANN: First of all in response to a comment Ms. George made about the SGRP application, those pleadings I believe are on the SCE website that's been established for this OII.

MS. GEORGE: Excuse me. That is not what I said.

ALJ DARLING: Ms. George.

MS. GEORGE: Needs a clarification.

ALJ DARLING: Ms. George, you need to -- excuse me.

MS. GEORGE: That is not what I said though.

ALJ DARLING: You need to be recognized before you speak.

MS. GEORGE: Okays.

ALJ DARLING: Or the order of this proceeding is going to disintegrate rapidly. Right now, it's Mr. Weissmann's time to talk. Okay, Mr. Weissmann.

MR. WEISSMANN: I apologize if I misunderstood her comment, but I wanted to indicate that we've made efforts to make that information available.

ALJ DARLING: So you're saying that the Edison record of the steam generator replacement proceeding the 04- whatever it is is on your website for SONGS?

MR. WEISSMANN: I believe that is correct.

ALJ DARLING: Any other comments before I move on?

MR. WEISSMANN: I wanted to suggest, your Honor may wish to clarify whether your ruling also extends to audiotaping of these evidentiary proceedings because there may be people in the audience who are audiotaping which may be less apparent. I don't know if your ruling extends to that, but you may want to clarify that.

ALJ DARLING: It did. It was audio and videotaping. I'll take one minute closing from anyone. Mr. Freedman, you haven't had a chance. You can a have a couple more.

MR. FREEDMAN: Thank you, your Honor. Matt Freedman on behalf of TURN. We support the motion. In our experience we have been part of hearings in the past that have been webcast where all the witnesses have been subject to having their images and voices played over the Internet, and we haven't experienced any problems or heard any concerns in those situations. We don't believe there's any sort of threshold problem here that is posed by videotaping.

ALJ DARLING: Okay. WEM, Ms. George, you have one minute to close.

MS. GEORGE: I would also like to say that the CPUC had an opportunity to provide webcasting. We specifically asked for that in our motion but it also is something that if the Commission felt that there was a problem with other cameras being here, the Commission could have webcast it as they have done in other evidentiary hearings. And we would ask for leave to distribute the transcripts on line. Right now we do not distribute transcripts because we understand that the Commission makes money on the transcripts and that would otherwise not be, you know probably considered kosher.

I don't know whether it says we can't do that or not, but I just wanted to say if all else fails, we would like to distribute transcripts.

I also want to respond to Mr. Weissmann, that was a red herring basically because we didn't discuss the SGRP. We said that the NRC documents from the original licensing hearing for the San Onofre nuclear power plants Units 2 and 3 and Unit 1 for that matter are not to be found in the libraries in California where people have consulted in Southern California. They used to be there but they are not anymore.

ALJ DARLING: That would be a topic for the Phase 3 prehearing conference. All right, we will take this motion under submission. I would like to hear by 1:30 if any party has a witness that has a problem. I want you to make an effort to check with your witnesses because I continue to believe under the Court rules that that is an important factor. So by 1:30 I'd like to hear back if any of your witnesses have a problem. And we'll rule on this later today.

MS. GEORGE: So can we videotape from now till then?

ALJ DARLING: No.

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