Opinion: NCUC Public Comment Hearings Produced First Amendment Concerns

Rep. Dean Arp, R-Union with Rep. John Szoka, R-Cumberland and Chris Ayers of the N.C. Public Utilities Commission Public Staff. Image from ncleg.gov

By Andre Beliveau
John Locke Foundation

July 11 through August 23, the North Carolina Utilities Commission (NCUC) conducted several public comment hearings regarding the state’s plan to reduce carbon emissions. At these meetings, members of the public could (or should have been able to) freely speak out and address the commission on their implementation of the carbon plan, which the General Assembly mandated they do in H. B. 951.

However, members of the public who spoke at these public comment hearings were faced with being sworn in like in a courtroom and were subjected to cross-examination by NCUC attorneys, even if they did not have legal representation.

What average citizen shows up with a lawyer to what should have been, effectively, a town hall meeting? This does not seem like a typical public comment hearing we should appreciate as citizens of the United States in North Carolina – where we should have the right to reasonably petition the government without infringement.

The NCUC does, in its ordinary proceedings, operate much like a court. Their website states, “Commissioners have a job similar to that of a judge. They are required to make decisions based on the law and upon the facts of a case.” While this may be a suitable procedure for their usual meetings, subjecting citizens to cross-examination by a government lawyer is not an appropriate method to conduct public comment hearings.

Imagine for a minute that during the redistricting public comment hearings, the Republican majority General Assembly forced every member of the public to swear an oath and be subjected to questioning by legislative attorneys.

People would be enraged, rightfully so, at such an infringement of their right to petition the government. Likewise, people should be equally concerned about the restrictions on free speech which occurred to those who wished to speak out about the NCUC’s proceedings and perhaps to those who showed up to speak but decided not to when they saw the conditions.

Of course, the current jurisprudence on free speech demonstrates that it can and should be limited sometimes. You cannot shout fire in a movie theatre that is not actually on fire, for example, or incite imminent violence against another person. Restrictions on speech are constitutional in some cases.

However, when we, the citizenry, are encouraged to offer public comments to an entity of government, we should be allowed to do so freely and reasonably articulate our concerns without significant restrictions. Committee hearings at the General Assembly, where public comments are heard, are an excellent example of an open and fair process. It is left to the discretion of the committee chairman on who speaks and for how long, which is a reasonable example of ordered liberty, but no one is sworn in, and no person from the public is subjected to deposition by government lawyers.

Currently, the NCUC is holding expert witness testimonies at their Dobbs Building location in Raleigh. Here is the appropriate time (which they are doing, of course) to have sworn testimony from expert witnesses and those who are officially intervening in the carbon plan docket, where cross-examination from attorneys can take place. This is distinct and categorically different from public comments.

Suppose an agency of the state solicits public comments. In that case, the public should not be forced to overcome excessive burdens further imposed on them by the state, which negatively impacts their ability to petition the government. The General Assembly should consider and reevaluate the procedures of the NCUC moving forward to ensure the fairness and transparency of public comments.

André Béliveau is the Strategic Projects and Government Affairs Manager at the John Locke Foundation. He is an M.A. in Government Candidate at The Johns Hopkins University and previously served as a policy advisor in the North Carolina Senate.

3 COMMENTS

  1. Sounds like a procedure from the Republican playbook, to shut you up when they don’t want people to hear what you have to say. The LIE & Deny Republican strategy is spreading.

  2. No different than any of the quasi-judicial hearings that the JoCo planning board holds. If you’re afraid of being sworn in to tell the truth, then maybe you’re the problem, not the swearing in.

    Yet another false flag being raised by RINOs

Leave a Reply