UPDATE ON MICHIGAN COURT OF APPEALS DECISIONS
by Vigilant Dave
July 26th, 2015
This past week we saw first an unfortunate decision in the Sheldon smart meter appeal. That was the case in which the Court had found in April of 2012 that a Michigan Public Service Commission (MPSC) decision on smart meters did not have any substantial factual support. The Court had ordered the MPSC to do the case over and this time to consider all aspects of smart meters, including the “risks and burdens” on customers and the ”experience in other states.” But the Commission chose to defy the court’s order and consider only the effect of smart meters on utility rates. The Commission also chose to exclude the very interveners who could have presented evidence on the issues the appeals court wanted considered.
David Sheldon brought an appeal as one of the excluded interveners, essentially arguing that the Commission was in contempt of court. A panel of three judges heard the case, which was not the panel that had earlier ordered the Commission to consider all the aspects. This panel actually found no problem with the Commission’s conduct! They failed, in their written opinion and order, to state any logical basis for finding that the Commission had carried out the earlier order and should not be found in contempt.
A second decision this week was on a Motion for Reconsideration filed by the MPSC on the Consumers Energy case. This was the case, known as Rison et al, filed by a group of 16 Consumers customers from the Muskegon area. The Commission had been ordered back in May to redo a contested case involving their decision to approve funding and an opt-out plan for Consumers Energy customers. The scope of the remand was limited to rate issues, with no indication that the Commission need consider health or privacy concerns. And no requirement that the Commission need allow the Consumers customers who brought this case to participate in the remand hearings.
The MPSC wanted the Court to reverse that decision on grounds they had already thoroughly examined smart meter issues and there was no need for further inquiry. In this matter the majority of the justices simply denied the motion, so that the earlier order remained in effect and the majority made it clear that the scope of the case would remain limited as earlier ordered.
But this time something happened that was not business as usual. Judge O’Connell, who had participated in that earlier decision, filed a dissenting opinion in which he actually expressed his view that the scope of the earlier order should be expanded to specifically include health and privacy issues. He stated that due process requires that customers who have smart meter concerns have a forum in which to present evidence to back up their concerns. He also questioned the justice of charging opt-out fees, questioned the objectivity of the MPSC, questioned the propriety of the Attorney General representing both sides in a contested case and opined that it was time for the Michigan Supreme Court to get involved. It must be stressed this was a dissenting opinion and in no way was it the order of the court. But at least it gives us some reason for hope that we are beginning to change minds.