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Entergy Miss., Inc. v. State

Supreme Court of Mississippi, En Banc

February 20, 2014

ENTERGY MISSISSIPPI, INC.
v.
STATE OF MISSISSIPPI

Page 569

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/06/2012. TRIAL JUDGE: HON. JOHN HUEY EMFINGER.

FOR APPELLANT: CHARLES EDWIN ROSS, LINDA FAYE COOPER, JAMES W. SNIDER, JR.

FOR APPELLEE: BRYAN P. BUCKLEY, THOMAS RICHARD MAYFIELD, MICHAEL GUEST.

KITCHENS, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

NATURE OF THE CASE: CIVIL - OTHER

Page 570

KITCHENS, JUSTICE

¶1. This appeal arises out of a grand jury subpoena duces tecum served upon Entergy Mississippi, Inc., requesting the names and billing addresses of all of Entergy's residential customers in two zip codes in Madison County. The subpoena followed Entergy's refusal to provide its customer list to the Madison County Tax Assessor's Office for those geographic areas which the tax assessor had requested in an effort to identify and combat homestead exemption fraud. Entergy appeals the Madison County Circuit Court's denial of Entergy's Motion to Quash. We affirm.

PROCEDURAL HISTORY

¶2. Entergy Mississippi, Inc., (Entergy) is an investor-owned public utility that has customers in forty-five counties in Mississippi. Entergy is the exclusive provider of electric power to Madison County customers in zip codes 39110 and 39046. Customers are required to provide to Entergy certain personal information for billing purposes.

¶3. On October 7, 2011, Gerald Barber, Tax Assessor for Madison County, communicated with Steven Lee, Entergy's Customer Operations Manager, and requested a list of customer names and addresses in order to investigate homestead-exemption fraud by comparing the customer list to

Page 571

the current tax roll.[1] In November 2011, Lee responded that Entergy would comply only with a valid grand jury subpoena. During the 2012 session of the state legislature, the Madison County Tax Assessor's Office supported a bill that would have given tax assessors the authority to demand customer lists from public utilities without court review. That bill never emerged from the legislative committee to which it was assigned.

¶4. On January 18, 2012, Entergy was served with a Madison County grand jury subpoena duces tecum, directed to the attention of Lee. It commanded presentation of all names, billing addresses, and account numbers for the Deerfield, Lake Caroline, and Ashbrooke subdivisions. The subpoena commanded that the requested documents be produced directly to " Fraud Investigator Brad Harbour of the Madison County Tax Assessor's Office." On January 24, 2012, Lee responded to the subpoena via email, saying that " the preference would be to query an absolute, like a number (zip code)." On January 27, 2012, Barber received a letter from Entergy objecting to the subpoena.

¶5. On March 12, 2012, a second grand jury subpoena duces tecum was issued to Entergy, directed to its agent for service process. The second subpoena commanded the immediate production of all account names and billing addresses in zip codes 39110 and 39046. As in the first subpoena, Entergy was commanded to produce the documents directly to the Madison County Tax Assessor's Office, not to the grand jury. On March 19, Entergy objected to the second subpoena.[2] Entergy expressed its concern that, among other things, the subpoena was vague and overly broad. Entergy also stated that the subpoena did not " target individuals specifically suspected of committing homestead exemption fraud, but, rather, seeks information about all citizens" in general. Finally, Entergy was concerned that the subpoena commanded it " to provide private account information to . . . the Tax Assessor's office," stating " documents are normally presented to the grand jury itself and grand jury proceedings have privacy protections."

¶6. On May 27, 2012, Entergy filed a motion to quash the March 12, 2012, grand jury subpoena. A hearing was set for August 10, 2012. Two days before the hearing, the Madison County District Attorney withdrew the second grand jury subpoena and caused a third grand jury subpoena to be issued. The August 2012 subpoena commanded the production of the names and billing addresses for all " residential accounts" in the zip codes 39110 and 39046. Unlike the first two subpoenas duces tecum, the third was not returnable to the tax assessor's office, but to the grand jury. Entergy filed an amended motion to quash, and a hearing was set for September 6, 2012. After the hearing, the Madison County Circuit Court denied Entergy's motion to quash. On the same day, September 6, the circuit court entered a stay order.[3] Entergy timely

Page 572

filed a notice of appeal on September 20, 2012, raising the following issues:

I. Whether it is an abuse of the grand jury process to allow the Madison County Tax Assessor's Office to obtain Entergy's customer list for the purpose of civil tax enforcement.
II. Whether the tax assessor's involvement improperly influenced the grand jury, violated the secrecy rules of grand jury proceedings or ...

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