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Stopping Federal AbusesSmart Meters Are Only One Example of Federal Abuses!
by Vigilant Dave

(photo at right courtesy of ratch0013 at freedigitalphotos.net)

Michigan Stop Smart Meters is non-partisan. We do not endorse political parties or candidates for office. In order to build the broadest possible coalition, we do not usually get involved in issues other than smart meters. But we have seen so many examples of a growing federal tyranny in this country, of violation of our rights as citizens, of unconstitutional acts of our government, that it is impossible to remain silent about the overall trend of these matters.

Our federal government now boldly asserts the right to spy on ALL the communications of ALL of us, and to lock any of us up indefinitely without charges or a trial. Can it be any great surprise then that they now also assert the right to spy on us in our homes, to control our appliances and even to make many of us sick in the process? There is a pattern to all this. What we are learning is that elections make no difference to the long run trends. We are learning that, all too often, people spend thousands of dollars fighting injustices in courts, only to have their lawsuits thrown out by system loyal judges on the flimsiest of pretexts. We are learning that powerful interests really control this country and NOT the leaders we thought we were putting in power with the last election.

Smart meters are just one facet of this. This is a federal program with our federal tax dollars being used, in effect, to bribe utility companies and state regulators. The rights of individual utility customers are being trashed. Legislators, Attorney Generals and courts are choosing to maintain the “system” rather than to defend the citizens. Happily there are a few exceptions now and then as when the Michigan House Oversight Committee, under the leadership of now retired Rep. Tom McMillin, held a four hour hearing where most of us got a chance to voice our protests on the smart meter issue. Still, we have to wonder what will come of that hearing. After all, McMillin’s committee heard our grievances only after the House Energy and Technology Committee refused to do so. Is there going to be any desire in the new legislative term to follow through with a meaningful new law? Or is it going to be business as usual with our elected state lawmakers being manipulated by powerful corporations and by an all-powerful federal government?

More and more we are going to have to see the broader picture of which smart meters are only one part. We are going to have to find the will, the courage and the means to challenge a federal government that is out of control. We can’t do that by “voting the bums out”. We have seen over and over that doesn’t work. We only get new bums. And we have seen over and over that the federal court system does not check federal abuses.

Is there an answer? We think there is, and we can do no better than to recommend the work of the Tenth Amendment Center and heartily endorse their program for taking back our country:

 A Ten-Step Program for Constitutional Recovery
http://tenthamendmentcenter.com/2014/12/31/a-ten-step-program-for-constitutional-recovery/

 

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By David Sheldon*

(Article modified on 12/15/14)

Many of us who have been protecting our analog meters have been receiving threatening letters from DTE suggesting that our electricity might be “interrupted” within 15 days if we do not agree to let them install a “smart” or “advanced” meter or “opt-out” meter. These 15 day letters are not actual disconnect notices unless they say “Disconnect Notice” at the top, identify the customer of record, the service address where power will be disconnected, a date certain on or after which disconnect will take place and enumerate the appeal rights.

For a discussion of specific tactics in your communication with DTE we recommend an excellent article on another website with whom we work closely: http://www.smartmetereducationnetwork.com/optout-how-to-respond-to-dte-letters-phone-calls-threats.php#2 Sooner or later, however, there will be a need to state your position.

In this article we will try to provide some guidance as to how to state your position in a way that is legally valid and could be maintained  in a court proceeding should that ever become necessary.

(1) Simple Code Words Not Enough. Many have been hearing of late that there are simple code words like “de jure” that can be put into a letter or court brief to stop DTE in its tracks. Such is not the case. All cases in our regular courts are heard “de jure” and all disputes between private parties in this country are heard under civil law. To go into a court and demand that your case be heard “de jure” and “not under civil law” will do no more than cause a judge’s eyes to roll.

(2) There is no one magic court case that may be used as the key to open all doors. Many have been hearing that the mere mention of the case of Norton v. Shelby County will knock down all obstacles.

(3) The key is to understand the nature of the tariff (contract) under which we take electrical service from a regulated monopoly utility. The tariff and the regulations of the Michigan Public Service Commission (MPSC) say that when we sign up for electric service we give the utility permission to install an electric meter upon our property and to have access to that meter at all reasonable times in order to read it, inspect it, repair it or replace it with another meter at their sole discretion. Their access to the meter on our property is not trespass because we are deemed to have consented to such access.

(4) The tariff binds the utility as well as the customer. The situation we face is one in which Michigan utilities, DTE and Consumers Energy, are NOT complying with the terms of the tariff or the terms of duly promulgated regulations of the MPSC. The law will hold that when we signed up for electric service, we consented only to the installation and access to a “meter,”not to a computer or radio transmitting device. Those wanting a more detailed discussion of these issues will find it at this link: https://michiganstopsmartmeters.com/winning-smart-meter-legal-arguments/

(5) In court, which side has the initial burden of proof? When challenged in court, the burden will be on the utility to demonstrate that their “smart meter” conforms to the definition of meter in the law. If it does not, they are violating their contract and there will be no need for us to assume the burden of proving that it damages our health or violates our privacy. When they violate their contract the law of trespass comes into play.

(6) Is there a Fourth Amendment violation as well? We also know that “advanced” or “smart” meters do violate our privacy and that too should not be hard to prove in court. Because the utilities are deploying these devices at the behest of the government, in order to gather data for the government, they are enabling the government to violate our Fourth Amendment rights to be secure in our homes. They are enabling the government to do an end run around the warrant requirement.

(7) What about damage to my health? You may be quite certain that your smart meter or your neighbor’s smart meter has damaged your health. With testimony from your doctor it may not be hard to prove in court that your health did decline in the months following smart meter installation. The really hard part will be proving what is the cause of your health decline. We think the other arguments enumerated here are much easier to prove.

(8) Are utilities also violating statutory law? Utilities are violating the penal surveillance law MCL 750.539d, which makes the attachment of a surveillance law to a private home without the owner’s knowledge and consent a felony punishable by 2 years in prison for a first offense, 5 years for a repeat offense. Attorney General Bill Schuette, when asked why he is not enforcing this law, argues both that the new meters are not surveillance devices or, alternatively, that if they are surveillance devices it matters not because the utility customer has consented to their installation by signing up for utility service. Both of his arguments are an insult to the intelligence of Michigan utility customers.

So there is no single silver bullet. But if we combine all of the above arguments we think it will be quite enough to obtain a court order prohibiting DTE from continuing to intimidate and bully its customers. Achieving this result will require one or more individuals with the courage to bring a legal action against DTE. Such a case would begin with a well pleaded complaint and a request for a preliminary injunction to stop DTE’s bullying tactics until a determination can be made as to the legality of DTE’s forced installations.

Why is it so hard to find an attorney to represent us? We know that many attorneys in today’s world have priced their services out of reach of an individual of average means. There is an old British expression, originally attributed to author Wilkie Collins that says “But the Law is still, in certain inevitable cases, the pre-engaged servant of the long purse.” We know too that utilities like DTE and Consumers Energy have long purses.

Those of us who can afford the high costs of an attorney are encouraged to shop around for one that will honestly present their case. It will not be easy to find one for this issue even if you can afford one. For those who cannot afford an attorney or cannot find a competent one willing to take on DTE, the only option may be to represent themselves in court. Those who choose this path will need to engage in much study and preparation. For those willing to travel this path we can provide some assistance for which we make no charge. Our help is free to those who are fighting a battle that will help us all in the end.

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* The author is not an attorney, but has represented himself successfully in court on many occasions. Readers are encouraged to seek out the advice of their own attorneys before choosing a course of action.

 

 

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March 22nd, 2013 – What the Naperville Setback Means for Our Michigan Strategy.  Federal judge issues decision, after 14 months of litigation, dismissing all four counts of the Complaint of the Naperville Smart Meter Awareness group and individual plaintiffs against the City of Naperville, Illinois.

The plaintiffs had argued that their rights to due process were being denied by the city, that their Fourth Amendment rights to privacy in the home were being violated, and that their Fifth Amendment rights against arbitrary taking of private property without just compensation were violated, and also had argued for a Federal Civil Rights complaint under Section 1983.  They had, over a year ago, argued for a temporary injunction to prevent the City of Naperville from forcing the installation of smart meters on unwilling homeowners.  The injunction, had it been granted, would have prevented the recent ugly incident where two Naperville women were carted off to jail for resisting smart meter installations on their own homes.  This injunction request was held to be moot in view that the entire lawsuit was being dismissed. 

If the Complaint was without merit, as the judge finally ruled, one wonders why it would take him 14 months to reach this conclusion.  It is true the judge dismissed most of the counts “without prejudice”, meaning that the plaintiffs were granted leave to re file their complaint after correcting what the judge held to be deficiencies.  However the judge gave plaintiff’s only 14 days in which to correct the alleged faults in their complaint.  Since the main deficiency alleged was failure to exhaust remedies in state courts, it is very hard to see how such a fault could be corrected in 14 days. 

Readers are invited to read the judge’s 24 page decision.

11-cv-9299-Memorandum-Opinion-and-Order-03-22-2013

What is apparent on reading this decision is the Alice in Wonderland world of federal law that has been created by Congress in passing statutes that grant vast powers to administrative agencies and simultaneously deny jurisdiction to federal courts to hear the most fundamental complaints of injustice, except in narrow areas that Congress carves out where it wants the courts to take an active role.

We earlier indicated that our strategy would be the initiation of a lawsuit against Detroit Edison and the Michigan Public Service Commission in a state trial court.  We believe that this still offers the best hope in light of what happened in Naperville, and also in light of what happened in Maine.

The plaintiffs in Maine had more success than those in Naperville in that they did get the Maine Supreme Court to order their PUC to reopen the smart meter case for a full consideration of privacy, health and safety issues.  However their supreme court also noted that they could not reach the Constitutional issues on an appeal from a PUC decision.  Plaintiffs there were instructed that, to raise such issues, they must initiate a lawsuit in a trial court in that state. Their victory may prove to be only temporary in that the Maine PUC is very likely to reach the same conclusion supporting smart meter deployment and requiring opt-out fees.  Only this time they will be sure to cross their t’s and do everything by the book.

What happened in the Maine Supreme Court may give us some indication of what we can expect when we appeal the decision of the MPSC granting opt-out fees to Detroit Edison and denying the right to keep an analog meter.  We encourage all our readers to watch the video of the Maine Supreme Court oral arguments here.