The Volokh Conspiracy
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David Hommrich Wins Case (Now Called Hommrich); Legislator Files Memo About "Closing the Hommrich Loophole"; Hommrich Sues for Defamation
Here's Mr. Hommrich's argument, as quoted in the Pennsylvania Record (Nicholas Malfitano) early last year:
"Plaintiff Hommrich is a pioneer in the development and production of solar energy within the Commonwealth, and his company has worked to further develop the use of solar energy as a sustainable and environmentally prudent alternative energy resource in Pennsylvania. Plaintiff's company is a legally compliant, qualified customer-generator that participates in a net-metering program – a program through which utility companies purchase excess (or 'net') solar energy produced by the company at retail value and use such surplus as an alternative energy source for electricity," the suit stated.
"Plaintiff was a successful party in the 2021 Supreme Court of Pennsylvania ruling that affirmed the Commonwealth Court's holding that the Public Utility Commission exceeded the scope of its regulatory authority, by issuing regulations which limited the eligibility of otherwise qualified participants in a net-metering program, and such restrictions were in direct contradiction with the plain meaning and purpose of the Alternative Energy Portfolio Standards Act. Per the Court's ruling in Hommrich, 'The PUC's definitions restrict the field of qualifying participants [in the net-metering program] and, in the process curtail the development of alternative renewable energy in the Commonwealth."
The suit continues the Hommrich decision "contained no mention of any ambiguity or inconsistency within the AEPS Act, no allusion or implication that the Court's ruling regarding the Act thus created a 'loophole,' enabled exploitation of the law, or other similar verbiage; rather, the Court deemed the plain meaning of the terms defined within the Act were unequivocal, and the PUC's modified definitions constituted a violation of its regulatory authority under the Act."
"On Oct. 3, 2023, at 3:18 p.m., defendant published a memorandum to all Senate members titled, 'Renewable Energy & Warehouse Solar Procurement Act.' The memorandum provides that defendant intends to introduce legislation to address perceived gaps in the AEPS Act 'upon the recommendation of the Public Utility Commission,' thus closing the 'Hommrich Loophole by limiting net metering to customer-generator systems designed to generate no more than 110% of the customer-generators' requirements for electricity. Defendant's memorandum pairs plaintiff's name with the term 'loophole,' a term which is widely recognized to refer to an ambiguity in the law which an individual or corporation has exploited for gain," the suit said.
"The text of the memorandum which reads 'Hommrich Loophole' contains a hyperlink to the Hommrich decision … thus implying that plaintiff exploits or misuses an ambiguity within the AEPS Act for improper gain. Since defendant's knowingly false publication of the memorandum, plaintiff has been notified by numerous individuals who do not serve in the Senate of the existence of such memorandum and its defamatory reference to plaintiff and his company. Such individuals include those with whom plaintiff maintains ongoing business relationships."
In response to the memorandum, the plaintiff said he both sent a cease-and-desist letter to the defendant to remove the "Hommrich Loophole" phrase from the document and to refrain from making further reference to the plaintiff and his company, attempted to call the defendant at her offices and sent her a final failure to comply notice – all three moves went unanswered, he added.
"Unless halted by the Court, defendant's knowingly false defamatory use of the phrase 'Hommrich Loophole' and refusal to remove such language and reference has caused, is causing, and will continue to cause measurable and immeasurable business and reputational injury to plaintiff and his company which cannot be compensated solely by pecuniary relief. Defendant is not entitled to falsely associate plaintiff and his company with her anticipated legislation, nor to name the aims of such legislation after plaintiff – particularly when such aims are portrayed in a negative and harmful light," the suit stated.
"By use of the phrase 'Hommrich Loophole,' defendant has improperly ascribed conduct and characteristics to plaintiff and his company which adversely affect his fitness for the proper conduct of his lawful business and profession."
I'm pretty skeptical that this claim is viable under normal defamation principles; I think a reference to the "Hommrich loophole," especially with a link to the Hommrich decision, would lead a reasonable reader to recognize that the speaker is referring to the case, not making allegations about supposedly "improper" behavior by the litigant who filed the case.
But in any event, Friday the Pennsylvania Commonwealth Court (Hommrich v. Boscola) rejected Hommrich's defamation claim under the state constitution's legislative privilege ("for any speech or debate in either House [legislators] shall not be questioned in any other place"). The opinion was written by President Judge Renée Cohn Jubelirer; Judge Michael Wojcik dissented on procedural grounds.
