We Have Just Begun to Fight!

by David Sheldon

March 23rd, 2018 – Setback for Tom Mitchell’s Case. Tom had submitted a formal appeal concerning DTE Electric’s threat to terminate his electric service over his smart meter refusal. His refusal was based on medical evidence that, because of a pre-existing heart condition, the installation of a smart meter could trigger a heart attack. In support of his claim Tom had submitted an affidavit from his personal physician and an affidavit from electrical engineer Bill Bathgate.

Many of you attended the motion hearing on February 1st at the Michigan Public Service Commission (MPSC), where Administrative Judge Lauren Van Steel heard legal arguments as to whether Tom’s case should be heard at all. The attorney for DTE Electric and the attorney for MPSC staff both argued for summary dismissal of Tom’s case putting forth mostly very specious arguments which the judge found not persuasive. Tom held his own very well at that hearing against preposterous arguments from the other parties. Administrative judge Lauren VanSteel was very fair in the way she conducted that hearing and fired hardball questions at the attorneys for DTE and staff, and gave Tom ample opportunity to make his points.

We have waited six weeks for a decision from the judge. The judge has just issued her “Proposal for Decision” (PFD).  In this 27 page document she addresses all the arguments very carefully, but ultimately concludes that a ruling of the Michigan Court of Appeals must control this case. That ruling, on DTE’s opt-out plan in 2013, stated that the type of metering equipment used by a utility is a “management prerogative”, and that the MPSC has no jurisdiction to rule on what meters they can use. That court further concluded, therefore, that MPSC had no obligation to investigate any complaints about the meter, whether based on health claims, privacy or anything else. Judge Van Steel concludes her PFD by asserting that prior ruling of the Court of Appeals makes it necessary for her to recommend the summary dismissal of Tom’s case.

This then goes to the three member Commission appointed by the Governor for final decision. It is likely they will adopt the judge’s PFD as their final decision. It is hard to see how they could do otherwise, given that prior ruling by the appeals court.

This, then, is decision time for Tom’s case. What we need to do is get Tom’s case in front of that appeals court. We would be asking them to reverse the earlier ruling where, we believe, they incorrectly concluded that meter choice was purely a management decision. That ruling cannot be allowed to stand. It cannot be purely a management decision when the meter is located on a customer’s property, not the utility’s property, and where there are far reaching impacts on the customer’s health, privacy and safety from whatever meter choice a utility makes. The MPSC is charged by law with the responsibility to assure delivery of safe electric service. They cannot perform that function where a high court tells them they have no jurisdiction. The prior decision of the Court of Appeals virtually guarantees to a utility the right to deliver unsafe service!

The question now is the best route to follow to get Tom’s case before the Court of Appeals. One way is by direct appeal of the decision the Commission will make on this case. The other way is to start a suit in Macomb Circuit Court seeking a court order to block the installation of a smart meter on grounds that would amount to a deliberate infliction of a harm on a utility customer. And on the grounds the MPSC had already waived its jurisdiction by refusing to hear the case. A circuit judge might well summarily dismiss for the same reason the administrative judge recommended dismissal. But then that ruling could be appealed to the Court of Appeals. There would be advantages in reaching the COA by this route, since that court would have much broader discretion this way then they would on an appeal from an MPSC decision. But this way also would involve higher legal expenses.

Many of you have given generously to help Tom fund his case. Somewhat over $2,000 has been raised so far. But we need to ask all of you who care about the future of smart meter law in Michigan to dig even deeper to provide Tom with more financial support.

We ask that all checks be made out to Tom Mitchell and mailed to Jeanine Deal who will be maintaining records of all contributions.

Those who would like to read the judge’s entire 27 page decision will find it here: https://michiganstopsmartmeters.files.wordpress.com/2018/03/proposal-for-decision-mitchell-case-032318.pdf





6 thoughts on “We Have Just Begun to Fight!

  1. Has any one realized that the only way you are going to win this fight is to take the power away from them and hit them where it hurts the most! The bottom line is what they only care about is money! So why not take that power away from them and stop giving them your money! Why not be your own power company and be Energy Independent and go off-grid solar power now! No need to beg the mafia(DTE) or battling for years to get the MPSC to recognize that it DOES HAVE JURISDICTION? We can help you be independent and go off-grid now! Call us 248.489.3008 Mathews Electric Inc.

  2. 5G gets the highway to approval while HB4220 languishes in committee. It pretty much shows where the alliances of most of our elected officials are, except for a few that still believe in the will of the people. Which apparently most of the the elected official in the committee have forgotten.
    I personally wrote to every official on that Energy Committee last October. I received an immediate response from Senator Pat Colbeck who is on our side to further the cause of meter choice. It is now almost April 2018, 6 months later. And just received a letter via email from Rep. Lasinski.
    Which is copied below.

    Dear Mr. Wegener,

    Thank you for contacting my office regarding your problems with DTE. I appreciate hearing from your testimony and I will keep your advocacy in mind.
    As the Minority Vice-Chair of the House Energy Committee, I have heard a great deal about this issue in committee, meetings, and coffee hours with constituents. I am grateful to have heard from so many about HB 4220 and concerns about the health, privacy, and national security implications of smart meters.
    As you likely know, the sponsor of HB 4220, Representative Gary Glenn, is also the Chair of the Energy Policy Committee, to which HB 4220 was referred. As of now, Chairman Glenn has yet to bring it up for a hearing or vote, or to schedule it for one. I have been informed of an amendment to the bill that I look forward to reviewing when it is presented to me. As I continue to review HB 4220, please know that I will keep your advocacy in mind as I strive to ensure that our energy systems are safe, reliable, and affordable for all Michiganders.

    Once again, thank you for your involvement on this important issue. If I can be of any further assistance, please do not hesitate to contact me at (517) 373-0828 or at donnalasinski@house.mi.gov.


    Donna Lasinski

    My comment to her response:
    Just the same old mumbo jumbo to me !!!!!
    I will continue to push forth the efforts to get HB4220 passed for the good of the people, not corporate interests and or elitists, or those that consider themselves as such.
    We need to keep up the good fight !!!

    Mr. Adrian Wegener

  3. I think the argument that the meter is not on the utility’s property but on the homeowner’s property who ultimately will suffer some medical emergency with it on his home is a good one. How can someone deliberately do this to any person in this Republic of the United States of America? It would be similar to a hanging or a firing squad with justice like the wild west or a communist country! Unbelievable! This is totally unacceptable!!!!

  4. Who would you get as an attorney?


    Linda Kurtz

    Director, Smart Meter Education Network

    Sent from a hardwired computer–no wireless whatsoever, for the sake of you, me, and the bees.

    On Mon, Mar 26, 2018 at 1:29 AM, michiganstopsmartmeters wrote:

    > Vigilant Dave posted: “March 23rd, 2018 – Setback for Tom Mitchell’s Case. > Tom had submitted a formal appeal concerning DTE Electric’s threat to > terminate his electric service over his smart meter refusal. His refusal > was based on medical evidence that, because of a pre-existin” >

  5. That decision would be like saying DTE can install a meter that randomly shoots bullets through your house, and you can do nothing about it, because they are the ultimate authority. Ridiculous!

  6. Bastards! Thank you David for the excellent summary. This is a blatant give away to the monopoly utilities, and we MUST somehow prevail and put a stop this injustice once and for all. This is all the more reason we need everyone to keep contacting their Reps, even if youhave already done so. We must not let them forget how important this is and demand passage of HB 4220. Our next best hope would be for energy choice legislation.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s