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.
During 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!