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