Analysis by David Sheldon
(July 19th, 2015)

On July 15th, 2015, a decision was handed down by the Michigan Court of Appeals that, if not appealed, will severely constrain the rights of all Michigan utility customers. This article is written, in part, as a response to an inaccurate and misleading article published a few days ago on another smart meter website. Sadly that article unfairly characterized the efforts of a couple to defend themselves against utility bullying and implied that, if only they had hired a good lawyer, the outcome would have been different.

We know there are thousands of you, in southeastern Michigan alone, who have resisted the forced installation of a “smart” electric meter. Many of you have locked your meter enclosures or otherwise limited access by utility installers bent on replacing your traditional meters.

Thousands of others who have the new smart meters are now suffering serious health effects that limit them in the use and enjoyment of their homes. The universal experience has been that, once a smart meter is installed, the utility will not remove it for any reason. At least 20 families that we know of have found it necessary to resort to self help in order to rid themselves of an intrusive and life limiting device.

Such was the case for Ralph and Donna Stenman of Farmington Hills. In early 2012, after pleading with DTE to remove a smart meter that was making Donna ill, the couple finally resorted to removing the offending device themselves and replacing it with an industry standard calibrated analog meter. The smart meter itself was in no way tampered with. It was simply removed from the meter housing (owned by the homeowner) and safely returned to DTE.

The utility objected that the meter the couple installed was not an approved device. The couple responded that DTE was welcome to replace it at any time with an analog meter of their own specifications. The utility responded with threats and repeated attempts to re-install the smart meter. The Stenmans believed they had no choice but to notify the utility that any access to their meter would have to be by appointment only and under supervised conditions. The result was that DTE sued the Stenmans seeking, among other things, an injunction that would command the couple to allow DTE installers to enter upon their property for the purpose of re-installing the smart meter.

The lawsuit was heard by Oakland Circuit Judge Rudy Nichols in the fall of 2012. The couple wound up representing themselves after approaching a number of attorneys who refused to take the case, stating either that it was hopeless to go up against a utility or that DTE would bankrupt them if they took the case. A preliminary hearing was scheduled with DTE asking for a summary judgment.

In preparation for that hearing much research was done on the law to determine what sort of evidence the couple would need. Michigan Stop Smart Meters provided assistance. The couple filed a formal response to the suit, explaining why the smart meter had to be removed, and providing an affidavit from a doctor that an identical smart meter installed on another home had caused severe illness. Also presented was a government document explaining how these meters would invade privacy and that they should be installed only with consent of the homeowner. The couple fully expected that this preliminary evidence would be enough that the judge would schedule a trial. Instead, in December of 2012, the judge granted DTE a summary judgment with no opportunity for the couple to present any further evidence.

Judge Nichols stated in his decision that the Stenmans had not met their burden to present evidence showing that, if a trial were held, they had a reasonable chance to prevail. Yet another Oakland Circuit Judge had heard an identical lawsuit by DTE against another couple a month earlier, been presented with the identical evidence, and found that evidence sufficient to warrant scheduling a trial. Judge Nichols also ignored the fact that DTE had not presented any evidence that their smart device had ever been authorized by either the legislature or the Michigan Public Service Commission. The law is clear that a summary judgment is only legal when there are no material facts in controversy. The law is also clear that any ambiguity in the factual situation must be resolved in favor of the non moving party – in this case the Stenmans. Judge Nichols decision was clearly contrary to law.

An appeal was filed. The Stenmans filed their appeal brief without benefit of an attorney. The wheels of justice turn slowly. It took from December of 2012 until June of 2015 for oral argument to be scheduled. The Stenmans finally found an attorney to represent them at the oral argument. Some of you had the opportunity to hear that.

On July 15th a decision was finally issued that upheld Judge Nichols’ decision in all respects and provided no relief to the Stenmans. In reaching this conclusion the Court of Appeals found that:

  1. That even though the burden of proving the necessary elements of a complaint always (by law) falls on the plaintiff, that burden can be cast, when convenient, upon the defendant.
  2. That, although DTE had never presented any evidence, or even an assertion, that their smart meters were lawful, these meters were nonetheless lawful.
  3. That, even though the Michigan Public Service Commission (MPSC) had no jurisdiction to tell a privately owned utility what kind of meters to use(*), the MPSC nevertheless had the authority to authorize the new smart meters, and the utility could rely on that authority to force installation of the new meters.
  4. That, even though a private utility is required to have its rules and conditions of service approved by the MPSC, and no such approval had actually been given for the utility to make smart meters a condition of service, that the utility could, nonetheless, mandate smart meters.
  5. That, even though the MPSC has consistently refused to hold any evidentiary hearings on the possible health dangers of smart meters, they were entitled to conclude, as a matter of law, that health effects of smart meters are negligible.
  6. That, even though the “opt-out” plan offered by DTE allows nobody to avoid having a smart meter and was not even an available plan when the Stenmans resorted to self help, this plan is cited as one of the reasons Judge Nichols was justified in his ruling.
  7. That even though there is no practical alternative to DTE service for most people in southeastern Michigan, nonetheless being a DTE customer is “voluntary”.
  8. That even though evidence was provided the court that an identical smart meter had made a child severely ill, this did not constitute evidence that it might endanger the lives of an elderly couple.
  9. That even though the issue of the “opt-out” plan being an opt-out in name only was fully discussed in the Stenmans’ original pleadings before Judge Nichols, the Court of Appeals finds that this issue was not raised in the trial court.
  10. That, although the Stenmans provided an official publication of the U.S. government in which the National Institute for Standards and Technology concluded that smart meters will violate the privacy of homeowners wherever they are installed, the Court of Appeals finds that such concerns with privacy are merely “conjectural and hypothetical”, and that there has been no showing of “actual or imminent harm”. Therefore the Stenmans “have no standing” to raise the Fourth Amendment issue.

Whether one reaches this point fully represented by an attorney or reaches it through one’s own efforts makes little difference in the end.

What we see in this Appeals Court decision is not respect for or observance of law. What we see is a politically motivated decision based on the idea that nothing should get in the way of the smart grid agenda. Or that nothing should get in the way of powerful interest groups.

This is not to say that our legal system is hopeless or that we shouldn’t try to defend our rights through lawful means. Not every panel of the Court of Appeals will be as unreasonable as this one, and not every trial judge will be as unreasonable as Judge Nichols.


* Another panel of this same Court of Appeals so ruled in March, 2015 in the case of Cusumano v. MPSC.


David_O_Carpenter_from_the_University_at_AlbanyGives very strong and credible testimony on the health problems caused by “smart” meters in DTE’s current rate case.

July 6th, 2015

We were and are convinced that having the testimony of a highly credible and seasoned professional could help us strike a blow against “smart” meters in this rate case. More importantly the testimony will help us to make our case before the legislature and for our upcoming battles with DTE in the regular courts.

DTE brought the current rate case to the Michigan Public Service Commission. In this case, U-17767, DTE is seeking across the board rate increases for most of its services but also requesting the Commission to approve continued customer funding of “smart meters.”

Dr. Carpenter is known in professional circles all over the world. He is known for his view that smart meters represent a real threat to the health of utility customers. Dr. Carpenter was the leader of a group of 45 doctors and scientists who signed the “Toronto Statement” warning of the dangers of smart meters in 2012. He was one of the authors of the Bio-initiative Report and about 350 articles that have been published in peer reviewed journals. He is currently the Director of the Institute for Health and the Environment, State University of New York at Albany.

The doctor generously contributed his time for this case, asking only to be reimbursed for his out-of-pocket expenses for travel from New York. Even so, Michigan Stop Smart Meters is out about $1000 for the trip expenses so that we need to appeal to you, our fellow smart meter activists. You all now have a better shot at keeping a smart meter off your own homes because of the facts this doctor got on the record this week!

In accordance with the Commission’s normal procedures, all witnesses submit their direct testimony in written form many weeks prior to a hearing. They are required to be present at the hearing so that opposing parties may cross-examine them on that testimony. Dr. Carpenter’s cross-examination gave him an opportunity to make his written testimony come alive and to establish his credibility with the judge as a seasoned and highly credible professional.

Our thanks go to all of you activists, who made the trip from Detroit to Lansing to show support for our issue and for the doctor’s testimony. About half the people in the room were activists known to us. The other half were MPSC staff people, including all of the ones directly involved in the planning of smart grid.

Our thanks also go to smart meter activist Richard Meltzer, who conducted the primary cross-examination of the doctor, lasting more than two hours. This was necessary because we had advance indications that the attorneys for DTE and MPSC staff were going to waive cross. We think they made that choice in hopes of denying the doctor an opportunity to establish his bona fides. As it turned out DTE did not cross and staff’s cross was limited to about 3 questions. But their strategy ultimately failed because of Richard’s outstanding questions.

Richard was allowed only to ask questions designed to clarify the original testimony, not to expand on it. There were many objections from the attorneys for DTE and MPSC staff. Despite all the objections we wound up getting more than enough of the critical facts developed on the record. DTE and staff did not put any evidence into the record that would establish that smart meters do not cause harm.

In the end what we got on the record was that smart meters will adversely impact about 5% of the population almost immediately following installation, and are likely to cause cancers or neurological illnesses in the long run for a much larger share of the public. We got on record that the first cause of harm is the pulse modulation of the microwave radio carrier. This makes smart meters very different than am or fm radio broadcasting. We also got on record the fact these meters, even with radio off, put dirty electricity on the wiring of homes and businesses. This is critical because it shows that the so called “opt-out” meter DTE is offering is no true opt-out at all!

Michigan Stop Smart Meters asks you to consider if you are not better off because we finally got some real testimony on the record. This event set us back about $1000. Some have already made generous contributions. If you can send in a contribution of $100, $50, $25 or whatever you can afford, we will be made whole for the expense of this event. Any excess of contributions that come in will put us in a position to undertake other projects to advance the goals we all share of protecting our health and our privacy and forcing DTE to stop the bullying.

Please mail contributions to:

Michigan Stop Smart Meters
215 West Troy #4004
Ferndale, MI 48220



three judges panelSome of the Consumers customers who appealed may take some comfort in the Court’s decision to remand one small part of their case to the Michigan Public Service Commission (MPSC) for reconsideration. It is with some reluctance, therefore, that I write this story. On April 30th, 2015, the Michigan Court of Appeals (MCOA) issued a decision concerning the twin appeals that had been filed against the decision of the MPSC that, in turn, had both approved overall funding for the smart meter system and also approved a schedule of fees for persons wishing to opt-out of a transmitting smart meter. This decision may be found under the “Legal” menu tab on this website.

One appeal was by Michigan’s Attorney General and concerned his claim that when the MPSC made a decision allowing Consumers to recover the overall costs of its smart meter program from customers, that decision had not been properly supported by evidence on the record. The second appeal was by a group of 16 Consumers customers from the Muskegon area in which this same overall cost recovery was challenged as unsupported by the evidence. Also challenged was the inadequacy of the so called Consumers ‘opt-out’ tariff which, the appeal claimed, allows Consumers to force all their customers to have a smart meter, either with radio on or radio off. The two appeals were consolidated by the court and heard during one oral argument and decided by one court order.

The Attorney General’s appeal was denied altogether on grounds that he had apparently already signed off on funding the smart meter program as part of a settlement deal. In that settlement agreement, the AG had specifically exempted questions concerning the smart meter program to be decided at a later date. But the amount of revenue approved in the settlement included the amounts needed for the smart meter program. The Court took the position that MPSC’s only authority with respect to smart meters was to approve or not approve rates and, since the rates had already been approved, the AG’s appeal was held to have no merit.

The appeal of the Consumers customers, like that of the Attorney General, raised the issue that there was wholly inadequate evidence on the record to support the MPSC’s decision to approve overall cost recovery for the smart meter program. But, unlike the AG’s appeal, the Consumers customers had not signed off on these overall program costs. They had not participated in the original hearing of the case before the MPSC. The Court did not even comment on the argument of the Consumers customers that costs for the overall smart meter program had not been supported by appropriate evidence on the record. The Consumers appeal brief may be found under the “Legal” menu tab on this website.

The Consumers appeal also challenged the very idea of opt-out fees, arguing that the MPSC should have considered an alternative opt-in approach. Regrettably, the issue that any true opt-out must allow customers to keep or get back their mechanical analog meters was not even raised in the appeal. Raising this issue would have supported another argument that Consumers customers are getting little or no benefit by joining the ‘opt-out’ program. The appeal of the Muskegon Consumers customers was denied for the most part, except for a question as to the amount of the opt-out fees. Not whether there should be opt-out fees, but just the question of the amount of those fees. For that one narrow issue the Court remanded the case back to MPSC to develop a competent body of evidence to support whatever opt-out fees it might ultimately set after such a review.

The Consumers appeal also raised a Fourth Amendment argument but left out a key point necessary to win such a point. Ordinarily the Fourth Amendment is applied to actions of law enforcement or to the actions of other government agencies. In order to have it apply to a private entity, such as an investor owned public utility, it is necessary to demonstrate that the private entity is what is called a “state actor” in the case law. Such a demonstration was not made in the appeal brief at all and not made in a convincing manner in the reply brief or the oral argument. This panel chose to ignore the Fourth Amendment argument, unlike the panel that heard the DTE opt-out case two months earlier.

Sadly the appeals court stated that the decision whether to allow the Consumers customers to participate in the remanded case would be up to the MPSC. The MPSC is already on record that these customers should not participate since they were not participants in the original hearings. The MPSC also has a track record of excluding people from a remanded DTE case on similar grounds.

So what will come of all this? The case will be sent back to MPSC for a rehearing of the opt-out fee question, but, in all likelihood, no participation by these appellants. The same folks who didn’t think the issue was all that important the first time around will be the only ones allowed to introduce evidence the second time around. The MPSC will go through the motions of fulfilling the Court’s Order and will almost certainly, in the end, again approve the same opt-out fees approved the first time. Nothing will have been gained, except perhaps to make the MPSC work harder to achieve the same outcome.

Did this appeals court make smart meters mandatory? Absolutely not! The appeals court in this case, as in the earlier reported DTE case, was constrained, when reviewing the actions of an administrative agency, to only consider whether the agency did anything wrong. They could not get into the broader issues of whether customers have a valid complaint about what they are being subjected to. The Court based its opt-out decision on the MPSC not having the authority to tell a utility what kind of meters to use. The appeals court stated, in these two cases, that MPSC only has the authority to set the rates for whatever Consumers or DTE wants to do. This is good because it deprives both utilities of the argument that their smart meter programs are mandatory because the MPSC ordered it. It leaves both utilities in the position of making their programs mandatory solely on their own say-so.

The silver lining: The door is now open for individual utility customers, acting singly or as a group, to go into one or more of the state’s circuit courts and argue that Consumers (or DTE) has no legal authority to force smart meters on non-consenting customers! If such a legal action were successful at the circuit court level it would doubtless land in front of this appeals court in due course. But the appeals court, when reviewing the decision of a circuit court has much broader discretion to look at all the issues, including constitutional issues.


Cut power wires at pole(1) HAS YOUR POWER BEEN CUT? Meeting of those whose power has been cut by DTE over a smart meter issue, or those who are facing imminent threats of shutoff. Of the thousands who have refused smart meter installation, a small number of families had their service cutoff. We have been asked to setup this meeting so that folks who are facing this situation can share experiences and options for how to cope and for next steps. There will be information about generators and solar panels and also about your legal choices.

If this is your situation we need to hear from you. Please email: or phone: (248) 604-7545. Let us know if you are interested in attending such a meeting, what city you are in, and whether you are currently without power. When we get an idea how many are interested we will determine a meeting time and suitable location. We will try to schedule this meeting for April 28th, 29th, or 30th.

Meeting for those who will consider representing themselves in court, if that is what it takes to keep a smart meter off your home. Will cover:

  • Why the recent appeals court decision upholding the decision of MPSC with respect to DTE opt-out program does NOT foreclose other legal avenues of resistance.
  • Why it is so hard to find a lawyer who will take a smart meter case and provide competent representation for a fee you can afford.
  • Why smart meters are illegal in Michigan, and existing laws that are not being enforced.
  • Your right to represent yourself in court protected by order of U.S. Supreme Court.
  • How to prepare a Complaint that states a cause of action for which a trial court can give relief, how to obtain a summary judgment against DTE resulting in a court order that DTE may not make their smart meter a condition for receiving electrical service.
  • How to obtain money damages if you have been without electric power for a considerable length of time.
  • Issues triable by jury and those not triable by jury.

If you are interested in attending such a meeting, presented by someone who has successfully represented himself in court on many occasions, please email: or phone (248) 604-7545. Let us know what city you are in and what day of week works best for you. When we get an idea how many are interested we will determine a meeting time and suitable location. We are shooting for first or second week in May.


from the Ad Hoc Smart Meter Bill Drafting Committee

Dear Smart Meter Activist,

Michigan_state_capitolAttached is the culmination of untold hours of intense effort, careful thought, research, collaboration,  and numerous revisions  over an almost two month period.  The primary writers of the bill were passionate activists, highly motivated to draft legislation that would guarantee our health, safety and privacy would be secured by giving everyone the right to choose to have, or not to have, a dangerous, life threatening surveillance device installed upon their living or working quarters.

The bill’s title simply, directly and clearly states its singular purpose:

“Utility Meter Freedom of Choice Amendment” (to Michigan Public Act 3 of 1939).

Attached are two versions:  one for the State House of Representatives and one for the State Senate. It’s the same bill with different captions.  Be sure to send the correct bill to your lawmakers.

This bill was drafted for all smart meter activists and their organizations, as well as all legislators: local, county, state and federal. Not only did we activists have a common goal before the bill was drafted, but we now have a document unlike any other that puts our legislative demand into words.

Please share freely with all parties of interest.

We need to bombard our state legislators with requests to bring this bill up for passage.

 Points to consider for presentation:

  1.  Call their office.  Ask to speak to the legislator.  If unavailable, explain to the staff member that you will be Emailing him/her a bill that you want introduced or co-sponsored if it’s already been introduced. Ask the legislator or staff if they are familiar with the issue.
  2. If yes, ask if they will champion the bill and help move it through committee and bring it up for passage.
  3. If no, give them a general statement as to its purpose and that in addition to sending the bill you will be sending information that will explain the necessity for its passage. (see some ideas below)
  4. Ask for them to get back with you after they have read the bill and looked at the information to let you know where they stand on the issue.
  5. If you don’t hear from them in a week call back and let them know that you would like to know what their position is.
  1.  You might ask if you could set up a meeting to make a presentation.  Have documents, websites, videos and other activist friends available.
  2. The more of us who contact the legislators, even if it’s the same legislator, the greater our impact will be.

Not everyone is expected to use the same method for persuading their legislators.   In fact it’s far better that we each use our own individual ingenuity for turning this bill into law, with the above points as a guide.

We could not have a more highly qualified group of well-informed, passionate activists, all very capable of presenting the need to pass this legislation.  The bill is intended to be rallying point around which we can all now focus our attention as it will unite us as one mass movement to secure our rights.

Please distribute the bill widely and spread the word that we will persist until we once again secure the blessings of life, privacy, liberty, safety, health, property rights  and freedom.

In tribute to all our thousands of smart meter activists,

David Lonier, Chairman,
Ad Hoc Smart Meter Bill Drafting Committee

David Sheldon, Dan Childs, Linda Kurtz, Richard Meltzer

Here are the bills (House and Senate versions. Download these .pdf files to your own hard drive, then attach to email you send your legislative rep, after first contacting him or her by phone)

Utility Meter Freedom of Choice Bill, House
Utility Meter Freedom of Choice Bill, Senate

Ideas for information to share with your legislators:

Websites (if links don’t work in your browser, copy and paste the actual web address into your browser, deleting the quotation marks)

Michigan Stop Smart Meters   (or)

Smart Meter Education Network (or)

Warriors for the American Revolution (or)

One if By Land (or)


4 ½ Minute Introduction to Smart Meters by Jerry Day

And whatever else you may wish to include, based on the tons of health, safety and privacy info. related to smart meters.



Analysis by David Sheldon
(March 4th, 2015)

On February 19th, 2015 a decision was handed down by the Court of Appeals that may have some far reaching effects on the thousands of angry utility customers and on the 34 city, township and county governments that had sought relief for their citizens from DTE’s bullying meter conversion tactics. three judges panel

Discontent with this plan centered on the fact that the Michigan Public Service Commission (MPSC) had approved a plan that did not address the issues that caused the MPSC to begin its investigation in the first place.

We will address first, what was decided in this case, and then, on a more hopeful note, what was not decided by this case and remains open for further legal proceedings.

There had been two appeals, one by Cynthia Edwards, Linda Kurtz and Leslie Panzica-Glapa, represented by attorney Kurt Koehler, and a second by Dominic and Lillian Cusumano representing themselves. Both appeals had argued that the MPSC had not done its job correctly in approving the DTE plan. The Cusumano appeal further raised the issue that DTE’s plan was an unconstitutional violation of the Fourth Amendment privacy rights of its customers. The two appeals were consolidated, i.e. treated as one case for purposes of the Court’s analysis and decision.

This appeal concerned directly the so called “opt-out case”, identified by the PSC as its U-17053 case, which the Court refers to as the “instant case”. This appeal turned indirectly on the earlier U-17000 comments case, wherein utilities, the public and staff were asked to submit their comments regarding smart meters. The earlier case was deemed to set the scope of this case.

What the Court Decided: That the Public Service Commission had done its job according to law, and that there were no adequate grounds presented in these appeals as to why its decision should be reversed by the Court. In reaching this conclusion:

  1. That, although the PSC made a ruling in Case U-17000 that all Michigan utilities with smart meter programs must offer an opt-out to their customers, the Court held that the PSC was under no obligation in the opt-out case (U-17053), to consider whether DTE’s plan actually addressed any of the complaints that had caused it to issue such an order.
  2. That, although DTE had not appealed the ruling in U-17000, the Court held that any decision concerning the type of meters to be provided utility customers was a “management prerogative” of DTE and that the MPSC had no authority to interfere with DTE’s decisions in that regard.
  3. That, although the PSC’s Order in U-17000 mandated an opt-out for all customers, The Court held that DTE’s decision to limit the ‘opt-out’ program to residential customers was a “management decision with which the PSC cannot interfere.”
  4. That, although there were numerous written complaints from professional people, including doctors, dentists and chiropractors posted to the docket in the U-17000 case, there was, according to the Court, “no evidence that any of DTE’s commercial or industrial customers had sought an opt-out option.”
  5. That, although the PSC had taken no evidence in the U-17000 case, issued no ruling on privacy issues and no ruling on health issues (that was compliant with the requirements of the Administrative Procedures Ac), when appellants raised the issue that the ‘opt-out’ meter being offered to opt-out customers still raised health and privacy issues, the Court held that appellants “cannot collaterally attack the ruling in Case U-17000 in the context of the instant case.”
  6. That, although appellants provided evidence that a federal agency had labeled smart meters a “surveillance device”, and that both federal and state governments were driving the whole smart grid program through regulations and financial incentives, the Court ruled that “Appellants have not established that the installation of either a transmitting or a non-transmitting AMI meter constitutes a search, or that even if it did, that DTE acts as an agent of the government.”
  7. That, although the PSC has much broader powers than just rate regulation under certain conditions:

 “MCL 460.58 provides in pertinent part:
 Upon complaint in writing that any rate, classification, regulation or 
 practice charged, made or observed by any public utility is
 unjust, inaccurate, or improper, to the prejudice of the complainant,
 the Commission shall proceed to investigate the matter.”

Notwithstanding the above, the Court found that “Case
U-17000 was not initiated by a ‘complaint in writing’ …” and that the
“resolutions expressing concern about AMI meters passed by
various municipalities were not filed …” with the PSC. Therefore,
the resolutions passed by nine city and county governments that
had caused the PSC to open the U-17000 case did not count and
the PSC’s authority was limited to rate regulation.

What can one say about a three judge appellate panel that renders a decision characterized by the above seven points? Perhaps it is better to say nothing and let each reader reach his or her own conclusions. But, in any case, what this panel did may not be indicative of what other three judge panels will do on other smart meter cases that come before the Court.

Will This Decision Be Published?
At present this decision has been designated as “Unpublished”. What that means is that (1) it won’t become part of any bound volume in a law library, and, more importantly (2) it will not constitute a firm precedent for courts judging future cases. It can be cited by attorneys only to suggest a course of action for other courts. It is not binding precedent for any future case.

There are, however, requests to the Court from both DTE and from MPSC that this case should be published because it should become a firm precedent for all the other smart meter cases that are already pending. We understand that an attempt will be made by one or both of the parties who lost this case to discourage the Court from publishing, so as to limit the damage from this case.

Can This Judgment Be Appealed?
Appeal is possible, both to the Michigan Supreme Court and, where federal questions are involved, to the U.S. Supreme Court. Neither of these courts, however, is obliged to hear any appeal unless it chooses to do so. These courts are very selective in picking cases to review and tend to make these decisions, not on the basis of achieving a just outcome for the particular parties, but based on maintaining consistency in the law or setting firm guidelines for the lower courts to use in future cases.

What This Court Did NOT Decide:
This Court did not approve DTE’s opt-out plan as such. All that it did was address whether the MPSC did its job within the limits of its authority in reviewing and approving the DTE opt-out plan. It did not make the DTE plan the law of the land. Let us examine why that is so:

  • For a court to find that MPSC has no authority to interfere with DTE’s “management prerogatives” is really a statement about the powers and responsibilities of the MPSC. Such a finding does not preclude the possibility that a court of general jurisdiction, i.e. one of the state’s circuit courts, might have the authority found lacking in the MPSC.
  • There are forms of legal action, both in tort law and in contract law, that cannot be heard by the MPSC but could be heard in one of the state’s circuit courts.
  • With regard to the Fourth Amendment privacy argument, all that the Court found was that these particular appellants had not met their burden to prove that smart meters are a surveillance device nor met their burden to show that the utility was acting as an agent of the government. These findings, even if published, do not preclude other parties or appellants in future cases from proving both of these points.
  • There exists the possibility of getting from a circuit court a declaratory judgment that would define the rights of a utility customer, an injunction to enforce those rights, and an award of money damages for any harm that has been suffered by a party.

We can win some of the battles ahead!!!

What we desperately need is:

  • One or more plaintiffs willing to sue DTE in one of the state’s circuit courts. A multi-plaintiff suit would probably be best. Object would be to get a declaratory judgment outlining the rights of the utility customer, an injunction to protect those rights, and money damages for any harm suffered.
  • People willing to help us with the legal costs involved by donating money or time.

PLEASE DONATE! We need to raise some serious money to pay legal fees and witness fees – both for circuit court actions and for administrative actions before MPSC.





Could this Smart ‘Meter’ Case Have Been Won?
by David Sheldon

Many of us have been planning for some time how to bring a really good smart electric “meter” lawsuit against DTE. This would be a case seeking injunctive relief against DTE’s illegal installations, and based on sound legal principles.

LawDuring the week of January 26th, we saw an example of what can happen when a poorly conceived and/or poorly executed lawsuit against a utility gets in court. This article is based on an actual review of the public court documents in the case of Andrea McNinch and Phillip R. Sullivan vs. DTE. It is with some reluctance we tell this story as we remain grateful for all McNinch did in arranging a free showing of the movie “Take Back Your Power” at the Royal Oak Main Theater on December 10th.

Nevertheless, not to report this story would leave an impression on many who are fighting smart “meters” that our cause was dealt a major setback. As reported by the Oakland Press  and Channel 7 News, DTE shut off electric power to Royal Oak resident Andrea McNinch in December over a smart meter issue. She and her husband filed, representing themselves, a lawsuit against the utility in January in Oakland Circuit Court. Her husband was DTE’s customer of record. The suit sought an injunction to require DTE to restore her power. On January 28th the court, following a motion hearing, declined to grant an injunction to plaintiff but did not close the case. A counter claim by DTE is apparently still pending.

Why did this happen? Of course this electric power shut off was, in fact, an injustice to McNinch. The device DTE calls a “smart meter” or “advanced meter” is in fact an electronic device that in no way conforms to the definition of “meter” that is in the statute and in the MPSC regulations. While it has the ability to measure electric consumption for billing purposes it is so much more than that so that we will refer to it as the “smart device”. No law or MPSC regulation has established that a condition for receiving electrical service from DTE is that the customer must accept either a smart device with radio on or a smart device with radio turned off.

There is authority in the law and in the regulations for the installation of a “meter” only. When DTE installed the “smart device” on the McNinch home without customer consent they committed an illegal act. They are getting away with such illegal acts on a massive scale because public officials who know better are “looking the other way”. The refusal of the utility to remove what they had illegally installed led to the necessity for self help.

Confronted with this situation, the utility’s proper and legal response should have been to acknowledge their error and either accept the analog meter McNinch had installed or substitute one of their own. Instead they chose to bully the customer into submitting to the illegal smart device with threats and then an actual shutoff. McNinch requested an informal utility hearing, but neither she nor anyone representing her interests showed up for the hearing. She lost that round by default. Her power was shut off the same day she failed to appear for her hearing.

An informal appeal was next made to the Michigan Public Service Commission (MPSC). McNinch and her husband filed a lawsuit in Oakland Circuit Court seeking an injunction to require DTE to turn the power back on. A staff analyst with MPSC eventually sided with the utility, though there is no date on his decision. It is unclear therefore if his decision came before or after the lawsuit was filed. The only arguments put forward in the suit were that McNinch got headaches from the smart device and from the ‘opt-out’ device and that the utility was wrong to turn off power the same day the no show hearing took place. She argued that, since the written hearing decision did not come out until 4 days later, and there was a 7 day right to appeal, the power should have stayed on at least until the MPSC issued its staff report on the informal appeal.

What is amazing about this lawsuit is that no argument was made that the smart device installation had been illegal or that the device was never actually authorized by any law or MPSC regulation. Nor did McNinch present any explanation as to why DTE’s alternative meter was not an acceptable solution to any health complaints. Nor did she present any evidence from worldwide health experts who have condemned smart ‘meter’ technology. Nor were privacy or Fourth Amendment issues raised in the court filings. She presented no argument as to why she was justified in changing her own meter.

On top of all that DTE’s main argument for immediately disconnecting power without waiting for the hearing officer’s report was that McNinch had created an unsafe situation by changing her own meter. Incredibly no effort was made to rebut this argument.

To win in court you have to present legally admissible evidence AND a legal theory (argument) under which you are entitled to relief under those facts. It is not up to the judge to come up with a legal theory if you fail to state one. The burden is on the plaintiff to make a prima facie case before any real burden is on the defendant. McNinch and her husband did not make a prima facie case. There are risks, of course, in representing yourself without an attorney. There are also risks in being represented by an attorney (if you choose the wrong one).

Why do we analyze this case? When McNinch arranged the showing of the film “Take Back Your Power” she also bore the expense of bringing this film producer to Michigan to meet with us after the film showing. This led to a workshop wherein she and Mr. Del Sol convinced many people they had a winning legal strategy that could be implemented by sending DTE a series of letters. We expressed great skepticism about this approach in an article on this website in December. Our criticism of the legal tactics had to do with the concept of the “self-executing contract”, unsupported assertions and the use of biblical references rather than citations to prior court decisions. When it came time to sue the utility McNinch did not use any part of the “failsafe” legal strategy that she and the film producer had earlier promoted.

When Judge Nanci Grant issued her decision she denied McNinch’s motion for an injunction to restore her power. What the judge did NOT do, so far at any rate, is issue a declaration that changing one’s own meter is, per se, an illegal act as claimed in the Channel 7 news story. Instead she ruled that, in this case, McNinch had not presented facts or arguments sufficient to show that DTE should be compelled to restore her power after she substituted her own meter for theirs. The case is still open and a further ruling is possible.

If we labor all this now it is because we do not want others who might be thinking of a lawsuit against DTE to be in any way discouraged by the outcome in this case. We think that a well prosecuted case based on sound legal theory and verifiable facts has an excellent chance to win. We are just waiting now for just the right plaintiff to appear and we stand ready to provide whatever assistance we can!