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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.

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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: fdshel@gmx.com 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.

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(2) LEGAL CLINIC:
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: fdshel@gmx.com 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.

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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)
“michiganstopsmartmeters.com”

Smart Meter Education Network (or)
“smartmetereducationnetwork.com”

Warriors for the American Revolution (or)
“www.w4ar.com/smart-meter-home-page.html”

One if By Land (or)
“oneifbyland.org/Smart-Meters.html”

 

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.

 

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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.

WHY DONATE TO MICHIGAN STOP SMART METERS?

 

 

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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!

 

 

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January 14th, 2014: Yesterday about 15 of us attended oral arguments on the DTE ‘opt-out’ program before a 3-judge panel of the Michigan Court of Appeals. We have two appeals before the Court. Cynthia Edwards, LindaHall of Justice - large front view Kurtz and Leslie -Panzica-Gloppa, who are represented by attorney Kurt Koehler, filed the first. The second was filed by Dominic and Lillian Cusumano, representing themselves.

The judges listened passively to prepared statements first by Mr. Koehler, followed by the MPSC attorney and then the DTE attorney. The MPSC attorney spouted all the usual stuff we have seen from them in the past, including quite a number of blatantly false statements. A typical falsehood was that the issues of health and privacy, which they had refused to consider in the opt-out case, had somehow been decided by an earlier case. Another falsehood was that interveners in this case, who sought to raise these issues only as they related to the adequacy of the opt-out meter, were trying to introduce evidence on these points as related to the wisdom of the entire smart grid in Michigan.

The DTE attorney was new to the case and did not seem entirely up to speed on the facts. He stumbled more than once over pronunciation of the name of DTE’s star witness. Finally Mr. Koehler was given a few minutes to rebut, but apparently there wasn’t time enough to rebut all the falsehoods the Court had heard. Almost no questions were asked by the judges, or none, at any rate, that would provide any clue as to which way the judges were leaning. There was no presentation by the Cusumanos who had not requested oral argument.

The passivity of the judges we don’t feel should be taken as any reflection on their opinion of our appeals as we sat through hearings on 4 other cases before ours and they were the same way on all the cases.

At the end the presiding judge indicated that our cases were “submitted” for decision by the Court. Our understanding is that the Court’s decision will likely be mailed to us within 2-3 weeks, though there is nothing definite about that.

If the Court overturns the DTE’ opt-out’ plan, they will most likely remand it back to the Public Service Commission for a do-over with some specific instructions as to what they found lacking in the original hearing that must now be remedied.

For more detail on the issues in these twin appeals please see our earlier article: http://michiganstopsmartmeters.com/2015/01/04/appeals-of-dte-smart-meter-plan-will-be-heard/

 

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LET’S MOBILIZE OUR FORCES

Hall of Justice - large front viewWho Should Come? All of us who are angry about ‘smart’ meters and DTE’s unconscionable threats to turn off power to those of you who have been defending your homes!

What We Will See Tuesday: A hearing in front of a three-judge panel of the Michigan Court of Appeals. The issues are whether DTE’s ‘opt-out’ plan is legal and whether the Public Service Commission (MPSC) did its job properly in evaluating that plan. There will be oral arguments presented by an attorney on our side and by attorneys representing DTE and MPSC. Most interesting will be questions that some of these judges will pose to the attorneys. This may give us an early indication, which way the wind is blowing. For a more detailed discussion of what these appeals are all about see our earlier post: Appeals of DTE Smart Meter ‘Opt-Out’ Will Be Heard!

Just Added: Full brief of the Cusumano Appeal!

Where? The Michigan Hall of Justice, 2nd Floor. This building, shown above, is at 925 West Ottawa Street, in Lansing between Ottawa Street on the north, Allegan Street on the south and Martin Luther King, Jr., Boulevard on the west. It is on the opposite end of the mall from the Capitol Building.

When? Tuesday, January 13th at 10 am. This session of court runs from 10 am until noon. It is likely that other appeals will be heard before ours is called.

Why Should We All Come? This will not be a forum for us all to express our discontents. It is a legal proceeding in a courtroom in which only the named parties may take an active role. But it is important the judges see that there is strong public support for the parties who have brought this case. People watching in courtJudges are supposed to rule strictly according to law, but judges are human. And judges are often feeling pressure from the political establishment and from powerful special interests to uphold policies and programs we find unacceptable. If they look out upon a mostly empty courtroom their courage to buck the establishment may falter. But if they look out upon a courtroom that is jammed with people who CARE about the issue before them, and SUPPORT those who have brought the complaint before the Court, it may make a difference!

Who Has Brought This Issue Before the Court? There are actually two appeals. One was brought by Cynthia Edwards, Linda Kurtz and Leslie Panzica-Gloppa. The other by Dominic and Lillian Cusumano. Both appeals are by people who took part, two years ago before the MPSC, in the so-called DTE ‘opt-out’ case. Both appeals argue that DTE’s ‘opt-out’ plan, as approved by that Commission, is illegal and needs to be retooled so that people have a real CHOICE.

Map, Directions and Parking: The travel time from Detroit is about 1- 1/2 hours. Longer during rush hour or if there are adverse road conditions. Parking can be a challenge for first timers. Much helpful information at this link: http://www.michigan.gov/documents/gtfcj/Directions_to_the_MI_Hall_of_Justice_184038_7.pdf

Appropriate Attire: We have been advised that we will make a better impression if we are conservatively dressed. For the men a suit and tie is recommended. Blue jeans are out!

What Can We Hope For? A decision overturning the DTE ‘Opt-Out’ plan that was approved by the Public Service Commission. The case would then likely be remanded to the MPSC for a do-over, but with specific instructions as to issues that must be considered and evidence that must be heard. The forced installations and threats we are seeing now would stop until a new plan is approved. Alternatively, the Court might uphold the DTE ‘opt-out’ plan, in which case forced installations would continue and we would have to seek a remedy by starting a new action in a trial court.

There is a tentative plan for us all to go out to lunch at a restaurant within walking distance of the Hall of Justice. Meet after hearing in rotunda, outside courtroom.

 SEE YOU THERE!