By David Sheldon*
(Article modified on 12/15/14)
Many of us who have been protecting our analog meters have been receiving threatening letters from DTE suggesting that our electricity might be “interrupted” within 15 days if we do not agree to let them install a “smart” or “advanced” meter or “opt-out” meter. These 15 day letters are not actual disconnect notices unless they say “Disconnect Notice” at the top, identify the customer of record, the service address where power will be disconnected, a date certain on or after which disconnect will take place and enumerate the appeal rights.
For a discussion of specific tactics in your communication with DTE we recommend an excellent article on another website with whom we work closely: http://www.smartmetereducationnetwork.com/optout-how-to-respond-to-dte-letters-phone-calls-threats.php#2 Sooner or later, however, there will be a need to state your position.
In this article we will try to provide some guidance as to how to state your position in a way that is legally valid and could be maintained in a court proceeding should that ever become necessary.
(1) Simple Code Words Not Enough. Many have been hearing of late that there are simple code words like “de jure” that can be put into a letter or court brief to stop DTE in its tracks. Such is not the case. All cases in our regular courts are heard “de jure” and all disputes between private parties in this country are heard under civil law. To go into a court and demand that your case be heard “de jure” and “not under civil law” will do no more than cause a judge’s eyes to roll.
(2) There is no one magic court case that may be used as the key to open all doors. Many have been hearing that the mere mention of the case of Norton v. Shelby County will knock down all obstacles.
(3) The key is to understand the nature of the tariff (contract) under which we take electrical service from a regulated monopoly utility. The tariff and the regulations of the Michigan Public Service Commission (MPSC) say that when we sign up for electric service we give the utility permission to install an electric meter upon our property and to have access to that meter at all reasonable times in order to read it, inspect it, repair it or replace it with another meter at their sole discretion. Their access to the meter on our property is not trespass because we are deemed to have consented to such access.
(4) The tariff binds the utility as well as the customer. The situation we face is one in which Michigan utilities, DTE and Consumers Energy, are NOT complying with the terms of the tariff or the terms of duly promulgated regulations of the MPSC. The law will hold that when we signed up for electric service, we consented only to the installation and access to a “meter,”not to a computer or radio transmitting device. Those wanting a more detailed discussion of these issues will find it at this link: https://michiganstopsmartmeters.com/winning-smart-meter-legal-arguments/
(5) In court, which side has the initial burden of proof? When challenged in court, the burden will be on the utility to demonstrate that their “smart meter” conforms to the definition of meter in the law. If it does not, they are violating their contract and there will be no need for us to assume the burden of proving that it damages our health or violates our privacy. When they violate their contract the law of trespass comes into play.
(6) Is there a Fourth Amendment violation as well? We also know that “advanced” or “smart” meters do violate our privacy and that too should not be hard to prove in court. Because the utilities are deploying these devices at the behest of the government, in order to gather data for the government, they are enabling the government to violate our Fourth Amendment rights to be secure in our homes. They are enabling the government to do an end run around the warrant requirement.
(7) What about damage to my health? You may be quite certain that your smart meter or your neighbor’s smart meter has damaged your health. With testimony from your doctor it may not be hard to prove in court that your health did decline in the months following smart meter installation. The really hard part will be proving what is the cause of your health decline. We think the other arguments enumerated here are much easier to prove.
(8) Are utilities also violating statutory law? Utilities are violating the penal surveillance law MCL 750.539d, which makes the attachment of a surveillance law to a private home without the owner’s knowledge and consent a felony punishable by 2 years in prison for a first offense, 5 years for a repeat offense. Attorney General Bill Schuette, when asked why he is not enforcing this law, argues both that the new meters are not surveillance devices or, alternatively, that if they are surveillance devices it matters not because the utility customer has consented to their installation by signing up for utility service. Both of his arguments are an insult to the intelligence of Michigan utility customers.
So there is no single silver bullet. But if we combine all of the above arguments we think it will be quite enough to obtain a court order prohibiting DTE from continuing to intimidate and bully its customers. Achieving this result will require one or more individuals with the courage to bring a legal action against DTE. Such a case would begin with a well pleaded complaint and a request for a preliminary injunction to stop DTE’s bullying tactics until a determination can be made as to the legality of DTE’s forced installations.
Why is it so hard to find an attorney to represent us? We know that many attorneys in today’s world have priced their services out of reach of an individual of average means. There is an old British expression, originally attributed to author Wilkie Collins that says “But the Law is still, in certain inevitable cases, the pre-engaged servant of the long purse.” We know too that utilities like DTE and Consumers Energy have long purses.
Those of us who can afford the high costs of an attorney are encouraged to shop around for one that will honestly present their case. It will not be easy to find one for this issue even if you can afford one. For those who cannot afford an attorney or cannot find a competent one willing to take on DTE, the only option may be to represent themselves in court. Those who choose this path will need to engage in much study and preparation. For those willing to travel this path we can provide some assistance for which we make no charge. Our help is free to those who are fighting a battle that will help us all in the end.
* The author is not an attorney, but has represented himself successfully in court on many occasions. Readers are encouraged to seek out the advice of their own attorneys before choosing a course of action.