Michigan Smart Meter Appeal Hearing
Mark Your Calendar! The long awaited appeals of the DTE smart meter opt-out plan will be heard by the Court of Appeals in Lansing on January 13th, 2015 at 10 AM! It is important that we have as many as possible attend!
Two appeals were filed June 14th, 2013 of the DTE opt-out plan approved by the Michigan Public Service Commission. Dissatisfaction with this opt-out plan focused on two primary issues:
a) the plan did not allow anyone to keep (or get back) their analog electric meter, and
b) the plan requires payment of extortionate “opt-out fees” which will prevent many from opting out and are only likely to be increased in future years.
Analog electric meters are the only kind that is accepted by most smart meter protesters. The reasons are that they cannot invade privacy by tracking household behavior minute by minute, because they do not emit microwave radiation and because they do not put low frequency “dirty electricity” on home wiring. DTE would have us believe that they are addressing our concerns by offering a “non-transmitting” smart meter as the opt-out meter. They are NOT. Two appeals were filed on June 14th, 2013 to try to overturn the May 15th, 2013 decision of the Michigan Public Service Commission (MPSC) that approved DTE’s “opt-out” program. These appeals have taken 19 months to reach the point where they can be heard and decided. They are:
The Edwards/Kurtz/Panzica appeal – issues as follows:
- The MPSC effectively did mandate smart meters by its opt-out decision and lacked statutory authority to make such a mandate.
- The opt-out decision cannot stand because there was no consideration of what benefits, if any, the so called opt-out meters provide the opt-out customers in exchange for the fees being imposed.
For a more detailed discussion of the issues raised by this appeal see the discussion at: http://smartmetereducationnetwork.com/optout-status-appeal-mpsc-decision.php.
The Dominic and Lillian Cusumano appeal – issues are as follows:
- The scope of the MPSC hearings of DTE’s opt-out proposal was improperly limited by the administrative judge. No consideration was given to the type of meter to be offered opt-out customers, no attention to privacy concerns and no attention to the fact that many opt-out customers would be paying fees just to maintain the health they had before smart meters were deployed.
- The administrative judge incorrectly applied a doctrine of “managerial prerogatives” to limit the jurisdiction of the MPSC regarding issues profoundly affecting the welfare, health and privacy of utility customers and the public.
- Issues ruled “beyond the scope” in this case based on the notion they had been addressed in earlier MPSC cases had not, in fact, ever been addressed at all.
- Appellants were denied the opportunity to establish an evidentiary foundation for their complaint that both the ‘smart meter’ and the ‘non-transmitting’ opt-out meter violate the Fourth Amendment to the U.S. Constitution.
The two above appeals were consolidated into one for hearing purposes.
What will happen at this appeal hearing: A three judge panel will hear oral arguments for and against these appeals. Typically the judges take turns throwing questions out to be answered by the parties. In this case there will be attorneys representing DTE, attorneys representing the MPSC and attorneyKurt Koehler will be representing appellants in the first case (above). The second appeal was brought by the Cusumanos without benefit of an attorney and they will not be eligible to participate in oral argument. They must stand on their written briefs. It is likely however that some argument will be heard about their briefs since judges may wish to question the attorneys for DTE and MPSC with regard to the Cusumano appeal. Sometimes the type of questions judges pose give a clue, which way the judge is leaning. Sometimes not. A good way to get a sense of how this might go is to watch the video of the Maine Supreme Court hearing on smart meters on this website: https://michiganstopsmartmeters.com/2013/03/29/maine-supreme-court-hears-smart-meter-case/
What Are the Possible Outcomes:
1) The court may uphold the decision of the MPSC and deny both appeals.
2) The court may find that the decision was illegal because the MPSC exceeded the authority granted it by the legislature.
3) The court may find that the decision must be reversed because the scope was improperly limited by the MPSC so as to prevent building a record of competent evidence to support the decision. In this case the court would likely remand the case back to the MPSC for a do-over, with specific instructions about issues they must consider and types of evidence they must hear the second time around.
4) The court may find that the decision must be reversed and remanded to MPSC with instruction to consider what benefits, if any, the opt-out plan provides the opt-out customers.
PLEASE COME AND SUPPORT US! THIS COULD BE A DAY OF VICTORY FOR ALL OF US WHO HAVE RESISTED THESE METERS! YOU WILL BE GLAD YOU WERE THERE TO SEE IT FIRST HAND!!!
2nd Floor, Hall of Justice
925 West Ottawa St.