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(Updated May 29th, 2017)

May 27th, 2017 – An Opportunity to Show Support for Chairman Glenn’s Efforts to Move Michigan Toward a Freer Energy Environment – We strongly encourage all smart meter activists who can to attend the hearing of the Michigan House Energy Committee on Tuesday May 30th at 9 am in the Anderson House Office Building, Room 519, at 124 North Capitol Avenue, Lansing. There is a parking ramp 2 blocks north of the Anderson building on Capitol Avenue.

Chairman Gary Glenn has arranged for two of the leading proponents of replacing some of the regulation with more competition in the energy markets. This program should be quite different from some of the industry and state government people who have testified up to now.

Smart meters are just one example of what happens when there is too much monopoly power. Utilities in Michigan are forcing us to take these unwanted meters while at the same time charging us some of the highest rates in the midwest and providing less reliability and fewer choices.

The experts Glenn is bringing in can provide competent testimony about what happens when utility customers have more choices:

Todd Snitchler is former Chair of the Public Utilities Commission of Ohio (PUCO). He was first appointed in 2011 by Governor John Kasich and served on that commission until 2014. He is now a practicing attorney. Under Snitchler’s leadership Ohio made major progress in moving its utility industry away from a highly regulated model toward more competition and innovation. A scholarly article discussing utility deregulation in that state with many citations to his contributions can be found here:

http://cua6.urban.csuohio.edu/publications/center/center_for_economic_development/ElectricityMarketsInOhio

Dr. Gary L. Wolfram, an adjunct scholar at the Mackinac Center for Public Policy, is a Professor of Economics at Hillsdale College. In 2015 he released his new study Improving Michigan’s Electric Utility Industry. In the study, Wolfram highlights inefficiencies in Michigan’s regulated energy sector and recommends that legislative action is needed to control costs, reduce pollution and improve outcomes. A discussion of his work may be found here:

http://www.micef.org/press/2015/9/17/hillsdale-economist-gary-wolfram-releases-energy-study-improving-michigans-electric-utility-industry-released-today

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Analysis of the Michigan Court of Appeals Decision
May 24th, 2017

by David Sheldon*

(This case illustrates the difficulties of fighting a utility in court over smart meters, particularly when there is
perceived to be judicial bias in our courts in favor of
large corporations. It is presented at this time in view
of the recent decision of the U.S. Supreme Court not to hear this case and to underscore the necessity for our present efforts to secure legislation to protect utility customers.)

NATURE OF THE APPEAL: The defendant’s in this case, Ralph and Donna Stenman, having experienced some health symptoms from installation of a DTE smart meter, and concerned about further damage to their health and loss of privacy, strenuously objected to the installation of the smart meter, asking for return of their analog meter. When DTE ignored their pleas, the couple went ahead and replaced the smart meter with an analog meter they had purchased. DTE brought suit against them, asking the Oakland County Circuit Court for a “summary judgment” against the couple. A court can legally make a summary judgment when there are ‘no material issues of fact’ that might require a trial to resolve.

The Stenmans interviewed several attorneys and were unable to find one willing to take on DTE. Accordingly they represented themselves in the original proceeding. They requested a jury trial. Circuit Judge Rudy Nichols granted the summary judgment, so that the Stenmans were denied any kind of trial or opportunity to develop their defense. An appeal was taken to the Michigan Court of Appeals, File No 321203, over the fact they had been denied a trial. The Stenmans again filed their own appellate brief. A reply brief and oral argument were presented for them by attorney Robert Igrasin. The appeals court, judges Patrick M. Meter, Mark J. Cavanagh and Kurtis T. Wilder, issued an opinion and order in favor of DTE on July 14th, 2015 and awarded DTE its costs and decided to publish their decision, which is now in all the law libraries as a precedent for similar cases in the future.

(1) STENMAN ARGUMENT ON METER DEFINITION – DISMISSED:

The Opinion of the Court: “In the trial court and on appeal, defendants assert that a “meter” installed by a regulated public utility may only perform the functions that it is authorized by law to perform, arguing that the smart meter installed by plaintiff violated the “lawful definition of meter’ ” because it was capable of performing functions other than measuring electricity use. However, based on the plain language of the definition of “meter” in R 460.3102(g), there is no indication that electricity-measuring devices that have radio transmitters or other additional capabilities do not constitute “meters.” … The mere fact that the definition does not expressly state that a meter with a radio transmitter still constitutes a meter does not indicate that a meter with such a feature is not included under the definition. … Accordingly, we conclude that reasonable minds could not differ in finding that the smart meter installed by plaintiff qualified as a “meter.”7

Comment: The Court is saying, in effect, that the definition of ‘meter’ that is in the statute does not preclude the forced installation of any device by a monopoly utility so long as that device is called a ‘meter’ and actually does, among other things, measure electricity consumed. There is, therefore, potentially no limit on what could be forcibly installed on a private home.

(2) STENMAN ARGUMENT THAT SMART METERS WERE NEVER AUTHORIZED AS A CONDITION FOR RECEIVING ELECTRICAL SERVICE – DISMISSED:

The Opinion of the Court: “First, there was no genuine issue of material fact regarding whether the smart meter installed by plaintiff was lawful under the definition of “meter” applicable to the relevant administrative rules and tariff. Plaintiff is a public utility that is regulated by the MPSC. With regard to the regulation of public utilities, MCL 460.6(1) provides:

“The [MPSC] is vested with complete power and jurisdiction to regulate all public utilities in the state except a municipally owned utility, the owner of a renewable resource power production facility as provided in [MCL460.6d], and except as otherwise restricted by law. The [MPSC] is vested with the power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of public utilities. The [MPSC] is further granted the power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of public utilities, including electric light and power companies, whether private, corporate, or cooperative . . . . [Emphasis added.]”

Comment: The court is arguing, in effect, that smart meters are legal as a mandatory condition for receiving electrical service because the MPSC made them so. But the panel in this case is conveniently ignoring a ruling of a different panel of the same appeals court, on February 19th, 2015, only five months earlier. In the earlier (unpublished) case, File No. 316728, consolidated appellants Kurtz, Edwards and Cusumano had argued that MPSC had erred in authorizing a type of smart meter “opt-out meter” that did not address public concerns about privacy and health. Appellants in that case had argued the MPSC had erred in authorizing this opt-out meter without allowing any evidence to be admitted concerning privacy and health issues. This was the court’s answer to that:

PSC has only the authority granted to it by statute. The PSC has broad authority to regulate rates for public utilities, but that authority does not include the power to make management decisions for utilities. … Apellants correctly point out that the PSC has no statutory authority to enable DTE to require all customers to accept an AMI meter, even if some customers choose to opt-out of the AMI program. However, no such statute exists because the decision regarding what type of equipment to deploy can only be described as a management prerogative.”

It seems to this writer that the Michigan Court of Appeals cannot have it both ways. If the earlier panel was correct that the MPSC had no jurisdiction over meter type and hence no obligation to allow evidence on privacy or health issues before approving DTE’s “opt-out” program, then the Stenman court cannot also be correct in ruling that DTE’s meter had been established as a lawful condition for receiving electrical service. Yet the Stenman court made no reference to the earlier decision, even though one of its judges had also been on the earlier panel. When one panel of the Michigan Court of Appeals overrules an earlier panel on an issue, there is a procedure for resolving the disagreement – a procedure not followed in this case.

(3) STENMAN OBJECTIONS BASED ON PRIVACY & HEALTH – DISMISSED:

Opinion of the Court: “Second, the trial court properly concluded that defendants failed to demonstrate a genuine issue of material fact as to whether their privacy and health-related concerns constituted valid affirmative defenses that excused or justified their actions related to the smart meter … In the trial court, defendants failed to provide any authority (emphasis added) in support of their claim that their privacy and health-related concerns constituted valid affirmative defenses to their violations of the relevant statutes, regulations, and tariff. … “

Comment: The Court is saying, in effect, that it is not enough for a home owner to present evidence that a utility’s actions are in fact endangering privacy or health, but that these defendants, who were without an attorney in the original court, must also cite prior court precedents where it had previously been established that privacy or health concerns could be a valid reason for opposing a utility installation. This despite the fact that the utility (plaintiff) had not cited any court precedent that privacy and health concerns were NOT a valid basis for objecting to an installation. Nor did this court cite any precedent to establish that privacy or health concerns were irrelevant to a utility installation. Where there is no precedent for a legal principle a case is generally termed a “case of first impression” and does call for analysis, but none was done by this court.

“Furthermore, even if we assume, arguendo, that defendants’ privacy or health-related concerns constitute valid defenses to their failure to comply with the relevant rules and tariff provisions, defendants failed to establish the factual bases of those defenses. “ The party asserting an affirmative defense has the burden of presenting evidence to support it.” …

“In support of their privacy defense, defendants proffered a report prepared by the National Institute of Standards and Technology entitled Guidelines for Smart Grid Cyber Security: Vol. 2, Privacy and the Smart Grid (NISTIR 7628) (August 2010). Even assuming that this report constituted admissible evidence, see MCR 2.116(G)(6), this document does not demonstrate that the smart meter installed on defendants’ property posed an actual risk to defendants’ privacy; the report generally discussed the possibility of privacy risks related to smart meters and provided recommendations for entities participating in a smart grid. …

“In support of their health-related defense, defendants provided the affidavit of Dr. Hillman, discussing the health of a three–year -old child not involved in the instant case. The affidavit does not establish that the smart meter installed at defendants’ home operated in a similar fashion, emitted the same level of “electricity [that] permeat[ed] the house,” or caused similar health effects , and thus fails to be competent evidence that the smart meter installed on defendants’ property posed a risk to defendants’ health. Again, considering the evidence that was before the trial court, we conclude that reasonable minds could not differ in holding that defendants failed to provide a factual basis for their privacy and health -related defenses and, as a result, failed to demonstrate that a genuine issue of material fact exists with regard to the viability of those defenses.

Comment: The court is saying that it is never enough to show proof that a thing has harmed others or is generally acknowledged by experts to cause a risk of harm wherever installed. The court is saying that the Stenmans must wait until their health has actually been damaged or their private information has actually been sold to third parties before they can legally object to an installation (of a device never authorized by any statute and never mandated as a condition of service by our own MPSC)

(4) STENMAN OBJECTIONS BASED ON FOURTH AMENDMENT – DISMISSED:

Opinion of the Court: “Finally, defendants argue that plaintiff’s installation of a smart meter on their home constituted a warrantless search in violation of the Fourth Amendment. We disagree. … The United States and Michigan Constitutions guarantee every person’s right to be free from unreasonable searches. US Const, Am IV; Const 1963, art 1, § 11. However, in order for Fourth Amendment protections to apply, the government must perform a search. “[T]he Fourth Amendment proscribes only government action and is not applicable to a search or seizure, even an unreasonable one, conducted by a private person not acting as an agent of the government or with the participation or knowledge of any government official.” … defendants have failed to establish that plaintiff’s installation of smart meters constitutes governmental action for Fourth Amendment purposes. Even if the state and federal governments have advocated or incentivized, as a matter of public policy, the use of smart meters, there is no indication that the government controls the operations of plaintiff, an investor-owned electric utility, or that plaintiff acts as an agent of the state or federal governments. Accordingly, we reject defendants’ claim that plaintiff’s installation of a smart meter violated their Fourth Amendment rights.”

Comment: There were ample citations in the Stenman case to situations where the government aided and abetted a private actor to commit an action later held to be a Fourth Amendment violation. In this case the federal government provided 50% of the initial funding for DTE smart meters and the MPSC mandated Michigan utilities to participate in a “Smart Meter Collaborative” to plan for the implementation of smart meters in Michigan. This court simply did not want to go there.

SUBSEQUENT ACTIONS: Application was made for the Stenmans by attorney Don Keskey to the Michigan Supreme Court to hear an appeal, and that application denied on March 8, 2016. Application was made, also by Don Keskey, to the U.S. Supreme Court for a Writ of Certiorari and denied by that court on May 4, 2017.

The legal brief filed by the Stenmans can be found HERE.

 The decision of the Michigan Court of Appeals on this case can be found HERE.

 The conflicting decision of the Michigan Court of Appeals on the earlier, Kurtz, Edwards and Cusumano consolidated appeals can be found HERE.

 CONCLUSION: In view of this case, other utility customers wishing to fight their utility in court over a smart meter installation will have a hard road to travel. That doesn’t mean it is impossible, but any future case will need to distinguish itself from this case by rigorous presentation of evidence with the first filing or first response or by the time of a first motion hearing. A case in which actual harm, and not only hypothetical harm, can be shown conclusively, would have a distinct advantage. All that happened in this case also illustrates the importance of securing a legislative solution, as many of us are attempting to do now with Michigan House Bill 4220, sponsored by Representative Gary Glenn with 17 cosponsors.

 Text of the Glenn bill as originally introduced can be found HERE. A subsequent admendment was approved in committee that excluded water utilities from the bill.

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* David Sheldon is not an attorney but has represented himself successfully in both federal and state courts.

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MARCH 14TH, 2017 – A THIRD HEARING ON THE METER CHOICE BILL AND A GREAT PRESENTATION ON ELECTRIC CHOICE BY THE MACKINAC CENTER FOR PUBLIC POLICY.   Because there had been concerns expressed by committee members about possible shifting of costs from opt-out customers to smart meter customers, today’s hearing in the Michigan House Energy Committee began with a special presentation by Richard Meltzer, a retired PhD statistical researcher and consultant to the U.S. Department of Energy. Dr. Meltzer had also participated as an intervener in the MPSC case U-17053, the case in which the present opt-out fees for DTE were determined. Key testimony included Meltzer’s assertion that the opt-out fees determined in that case were punitive, designed not to recover costs but to discourage opt-outs, and that DTE has been very selective in attaching certain costs to classes of customers while not doing so in other cases, in order to suit its own purposes. He provided specifics in the form of exhibits from the U-17053 case to back up his assertion that the net cost shift between smart meter customers and opt-out customers had been overwhelmingly in the direction of burdening the opt-out customers.

A decision was made to defer voting on the merits of the meter choice bill to allow more time to address concerns of some committee members. Rep Glenn offered an amendment to modify the text of HB 4220,  primarily to remove water meters from this bill thereby limiting this bill to energy utilities (electric and gas) that are regulated by the Michigan Public Services Commission. The definition of “traditional meter” was also improved to remove any ambiguity that “traditional meter” could mean anything other than an analog meter. The amendment of the bill’s text was approved unanimously, with understanding that a separate bill will be introduced for the smart water meters.

The Mackinac Center presentation, by Jason Hayes, was a plea for free market principles in the electricity markets. Examples were given that in states where electric provider choice was not capped at 10% (including Michigan between 2000 and 2008) electric rates were much lower than in states where there was no choice or choice capped. In the questions following this presentation Rep Kivella asked if Mr. Hayes believed it was appropriate for smart meter opt-out rates to be set at an arbitrary figure by this legislative committee of “largely non experts” or by the Public Service Commission. The response was that “just at a gut level I don’t like the idea of trusting a Public Service Commission except where you have to, and in this case, setting electricity rates you have to.” He indicated that he would prefer a market based setting of all rates but that the PSC is the system we have.

After the Mackinac Center presentation there were more public comments on the meter choice bill. Complete video of this hearing here.

 

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AN EXCELLENT BILL THAT NEEDS A TWEAK
(Revised 2/27/17)

by David Sheldon

February 25th, 2017 Last Tuesday we filled the hearing room and much of the overflow room of the House Energy Committee. This was the first of two hearings for testimony on House Bill 4220, the proposed law that would guarantee meter choice to utility customers. energymtg2-02212017The second meeting on the bill will take place March 7th at 9 am, again in the House Office Building, Room 517, 124 North Capitol Avenue, Lansing, at 9 am. We urge as many as possible to attend this hearing as well.

WATCH 90 MINUTE VIDEO OF THE MEETING HERE!

The meeting began with a very strong presentation by Chairman Glenn, the bill sponsor, as to why his proposed legislation is needed. Glenn stressed “this is not a technical bill” and “does not require Committee members to have technical knowledge” of the utility business. It is, he stated, a “philosophical bill” that only requires a simple recognition that people should have control of what is done on their property. He said it is “none of our business” why people don’t want the advanced meters, whether it be privacy, health or something else.

This was followed by a number of spirited presentations by advocates for the bill that covered the health, privacy and fire issues. Included were presentations by electrical engineer William Bathgate, by retired fire chief Duane Roddy and by former Rep Tom McMillin who had chaired the smart meter hearing two years ago. Many who had signed up to speak were unable to do so in the limited time and may get their chance at the March 7th continuation of hearings on this bill. As it is possible there will again not be time for all to speak, we recommend taking your written comments or exhibits to the hearing with 25 copies to hand out. If you are not able to attend the hearing you may submit your comments by email to the Committee Clerk, kgawronski@house.mi.gov

We are optimistic about what this bill will do. The bill respects property rights and freedom of choice for utility customers. If passed in its present form it will allow utility customers to choose whether or not to give up privacy in order to gain other touted benefits of the new technology. The bill, as written, will also allow every customer who had a smart meter installed before the effective date of this legislation, to have that meter removed and replaced with a traditional meter – all at no charge. That would cover nearly all of the 3 million plus smart meters already installed. Going forward, the $150 smart meter removal fee could only be charged to customers who agreed to take a smart meter and then changed their mind after it was installed. The bill also will eliminate ongoing monthly opt-out fees for all customers who are willing to report their own meter readings.

We must acknowledge the contribution of another smart meter leader who has pointed out, correctly, that a certain ambiguity in the present language of the bill could allow some utilities to claim that digital electronic meters they were installing long before smart meters are, in some sense, “traditional”, and thereby satisfy the requirements of the legislation. While this is a concern to many of us, our legislative process provides opportunities to remove these ambiguities. Some of us who will testify on March 7th will raise this issue but we hope none will forget to emphasize what is right with the bill and our appreciation for the efforts and risks legislators have taken to bring it to this point.

At this critical time, we need to focus on building momentum for a bill that resolves many of our issues. We have lived too long without a bill that will protect us. Let’s work hard together right now to get the bill passed.

Hearings on this bill will continue on March 7th at 9 am. Consumers Energy was expecting to testify at this hearing but time ran out so that they are now scheduled to be first up at the next hearing.

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The Chairman of the Michigan Public Service Commission will be making an extended presentation to the Energy Committee on February 28th. There are several proposed laws before the Energy Committee now in which MPSC has an interest. Keep in mind that the reason for our present predicament is the deceptive conduct and miserable failure of her agency to protect the utility customers. She will try to defend her agency’s performance. She might include in her testimony the view of her agency on our proposed smart meter bill. It may be worthwhile for any of our movement who can do so to attend that hearing also and to sign up to make a short public comment expressing our frustration with how her agency has dealt with us.

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PARKING INFORMATION:

Townsend parking ramp – at corner of Capitol and Allegan streets.
This one is the closest – 2 block walk to House Office Bldg, but sometimes this ramp is open to permit holders only.
http://mi-lansing.civicplus.com/Facilities/Facility/Details/Townsend-Ramp-120

North Capitol parking ramp, 316 North Capitol Ave
This one is 2 blocks north of House Office Bldg.
http://mi-lansing.civicplus.com/Facilities/Facility/Details/North-Capitol-Ramp-119

South Capitol parking ramp, 320 South Capitol Ave
This one is 4 blocks south of House Office Bldg.
http://mi-lansing.civicplus.com/Facilities/Facility/Details/South-Capitol-Ramp-118

On street (metered parking) – is available on a number of streets near House Office Bldg. But there is a 2 hour time limit and rate is $1.25/hour.

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Written by a northern Michigan resident to the
National Institute on Disability, Independent
Living, and Rehabilitation Research (NIDILRR)

December 6th, 2016 – It’s been one year and now going into a second Northern Michigan winter that my disabled friend and her husband’s power has been cut off, not for late or non payment, but simply for refusing a digital utility meter installed on their home.  Four doctors have stated that her serious medical decline was the result of the digital electronic meter on their home.  She has documented tests before and after the digital meter was installed to prove it!  She was an EMT for 16 years and helped countless numbers of people.  Now, SHE needs help.

I travel 25 miles twice a week to bring her frozen containers of ice for her cooler so she can keep medication and food cold.  This is not the America I grew up in.  At times, she is in so much distress over her situation, she has even considered ending her life!  Even the United Nations states that no citizen should have to endure needless suffering.  We have contacted our state Representatives, Americans with Disabilities, Health and Human services and other agencies.  No one can seem to help her get her power restored with a doctor prescribed analog mechanical utility meter.  She pays her bills on time and has never had a dispute with the utility over non payment.  I feel she is being discriminated against.  People who have their power shut off and pay their overdue bill get their power turned back on.  Just because she refused a digital meter, her power remains off.  The power company refuses to even look at the letters from her doctors.

This is creating a financial burden on her and her husband.  They have had to take out a loan to purchase a generator, a wall furnace, and marine batteries which her husband charges to provide some light and power to run her medical devices within the house.  We are asking Health and Human Services to advocate in her behalf to get the Michigan Regulatory Commission to issue a waiver for medical shut offs, order power restored via an analog mechanical meter for ALL those currently without power, and to discontinue any further shut offs till this is sorted out.  One of our Senators added an amendment to a current energy bill to address this situation, but it was stripped out.  Dr. David Carpenter, a Harvard trained expert in environmental science gave sworn testimony to the Michigan Public Service Commission, stating that the highly spiked electromagnetic radiation from digital meters is a proven cause of serious illnesses.  Please help the citizens of this country who are suffering because of digital electronic utility meters.  Thank you.

John Kurczewski
5323 S Straits Hwy.  Apt 20
Indian River, Michigan, 49749

 

Please check out our homepage for other new smart meter stories.

 

 

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Poisoning of Drinking Water, Schools and Homes
By David Sheldon

There is much in the news about the Flint Water Crisis and rightly so. But the countless individuals and families who have been forced to accept a cancer causing surveillance device in their homes are not being so reported by our major news media. Nor are those who, refusing such a glass of polluted drinking waterhome invasion, have had their electric service cutoff! Even senior citizens dependent on medical machinery! What do a water crisis, a school health crisis and utility crisis have in common? A Michigan Governor we fault, not on partisan grounds, but because of his repeated tendency to make dangerous decisions through surrogates while assuming no responsibility for consequences!

News media following the water crisis are constantly asking the question about our Governor “What did he know and when did he know it?” It seems clear now that he knew for many months that the people of Flint were being poisoned with bad water and did nothing to remedy the situation. At the same time the news media is much reporting the situation with Detroit Public Schools where children are routinely exposed to mold and rats. Both of these crisis scenarios are apparently the result of decisions made by Emergency Managers our Governor appointed to make decisions that arguably should have been made by others closer to the scene, or by others democratically elected.

But there is a third crisis-in-the-making not much reported by our mass media. That is the sickness, breach of privacy and utility shutoffs caused by the so called “smart” electric meter programs. Countless individualsLogo of Liz Barris website and paper and families have had their lives turned upside down. Some by questionable devices forcibly installed on their homes without their informed consent. Other families, who refused these devices, are enduring a severe Michigan winter without electric service. Both DTE and Consumers Energy are doing this with the complicity of the Michigan Public Service Commission, the regulatory body that is supposed to protect utility customers.

The Governor’s hand can be seen in this too as the MPSC consists of commissioners appointed by the Governor who quite apparently are taking their marching orders from the Governor and his hand picked Energy Czar, Valerie Brader. The MPSC will allow no hearing on any of the health or privacy violations of the new utility meters. The Governor’s energy policies are also being advanced by the Chairman of the House Energy Committee, Aric Nesbitt, who refuses to allow any hearing concerning the new utility meters or of any energy legislation not favored by the Governor.

Where is this third crisis-in-the-making taking us? Not only to unjust utility shutoffs but to a future of ruined lives – of people who can no longer live in their own homes and those who have or will contract cancer or neurological illnesses such as Parkinsons disease or dementia. There are 12 members of the Michigan House that have cosponsored legislation to stop this violation of human rights. We think this too will lead once more to the question about our Governor “What did he know and when did he know it?”

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Analysis by David Sheldon
(July 19th, 2015)

On July 15th, 2015, a decision was handed down by the Michigan Court of Appeals that, if not appealed, will severely constrain the rights of all Michigan utility customers. This article is written, in part, as a response to an inaccurate and misleading article published a few days ago on another smart meter website. Sadly that article unfairly characterized the efforts of a couple to defend themselves against utility bullying and implied that, if only they had hired a good lawyer, the outcome would have been different.

We know there are thousands of you, in southeastern Michigan alone, who have resisted the forced installation of a “smart” electric meter. Many of you have locked your meter enclosures or otherwise limited access by utility installers bent on replacing your traditional meters.

Thousands of others who have the new smart meters are now suffering serious health effects that limit them in the use and enjoyment of their homes. The universal experience has been that, once a smart meter is installed, the utility will not remove it for any reason. At least 20 families that we know of have found it necessary to resort to self help in order to rid themselves of an intrusive and life limiting device.

Such was the case for Ralph and Donna Stenman of Farmington Hills. In early 2012, after pleading with DTE to remove a smart meter that was making Donna ill, the couple finally resorted to removing the offending device themselves and replacing it with an industry standard calibrated analog meter. The smart meter itself was in no way tampered with. It was simply removed from the meter housing (owned by the homeowner) and safely returned to DTE.

The utility objected that the meter the couple installed was not an approved device. The couple responded that DTE was welcome to replace it at any time with an analog meter of their own specifications. The utility responded with threats and repeated attempts to re-install the smart meter. The Stenmans believed they had no choice but to notify the utility that any access to their meter would have to be by appointment only and under supervised conditions. The result was that DTE sued the Stenmans seeking, among other things, an injunction that would command the couple to allow DTE installers to enter upon their property for the purpose of re-installing the smart meter.

The lawsuit was heard by Oakland Circuit Judge Rudy Nichols in the fall of 2012. The couple wound up representing themselves after approaching a number of attorneys who refused to take the case, stating either that it was hopeless to go up against a utility or that DTE would bankrupt them if they took the case. A preliminary hearing was scheduled with DTE asking for a summary judgment.

In preparation for that hearing much research was done on the law to determine what sort of evidence the couple would need. Michigan Stop Smart Meters provided assistance. The couple filed a formal response to the suit, explaining why the smart meter had to be removed, and providing an affidavit from a doctor that an identical smart meter installed on another home had caused severe illness. Also presented was a government document explaining how these meters would invade privacy and that they should be installed only with consent of the homeowner. The couple fully expected that this preliminary evidence would be enough that the judge would schedule a trial. Instead, in December of 2012, the judge granted DTE a summary judgment with no opportunity for the couple to present any further evidence.

Judge Nichols stated in his decision that the Stenmans had not met their burden to present evidence showing that, if a trial were held, they had a reasonable chance to prevail. Yet another Oakland Circuit Judge had heard an identical lawsuit by DTE against another couple a month earlier, been presented with the identical evidence, and found that evidence sufficient to warrant scheduling a trial. Judge Nichols also ignored the fact that DTE had not presented any evidence that their smart device had ever been authorized by either the legislature or the Michigan Public Service Commission. The law is clear that a summary judgment is only legal when there are no material facts in controversy. The law is also clear that any ambiguity in the factual situation must be resolved in favor of the non moving party – in this case the Stenmans. Judge Nichols decision was clearly contrary to law.

An appeal was filed. The Stenmans filed their appeal brief without benefit of an attorney. The wheels of justice turn slowly. It took from December of 2012 until June of 2015 for oral argument to be scheduled. The Stenmans finally found an attorney to represent them at the oral argument. Some of you had the opportunity to hear that.

On July 15th a decision was finally issued that upheld Judge Nichols’ decision in all respects and provided no relief to the Stenmans. In reaching this conclusion the Court of Appeals found that:

  1. That even though the burden of proving the necessary elements of a complaint always (by law) falls on the plaintiff, that burden can be cast, when convenient, upon the defendant.
  2. That, although DTE had never presented any evidence, or even an assertion, that their smart meters were lawful, these meters were nonetheless lawful.
  3. That, even though the Michigan Public Service Commission (MPSC) had no jurisdiction to tell a privately owned utility what kind of meters to use(*), the MPSC nevertheless had the authority to authorize the new smart meters, and the utility could rely on that authority to force installation of the new meters.
  4. That, even though a private utility is required to have its rules and conditions of service approved by the MPSC, and no such approval had actually been given for the utility to make smart meters a condition of service, that the utility could, nonetheless, mandate smart meters.
  5. That, even though the MPSC has consistently refused to hold any evidentiary hearings on the possible health dangers of smart meters, they were entitled to conclude, as a matter of law, that health effects of smart meters are negligible.
  6. That, even though the “opt-out” plan offered by DTE allows nobody to avoid having a smart meter and was not even an available plan when the Stenmans resorted to self help, this plan is cited as one of the reasons Judge Nichols was justified in his ruling.
  7. That even though there is no practical alternative to DTE service for most people in southeastern Michigan, nonetheless being a DTE customer is “voluntary”.
  8. That even though evidence was provided the court that an identical smart meter had made a child severely ill, this did not constitute evidence that it might endanger the lives of an elderly couple.
  9. That even though the issue of the “opt-out” plan being an opt-out in name only was fully discussed in the Stenmans’ original pleadings before Judge Nichols, the Court of Appeals finds that this issue was not raised in the trial court.
  10. That, although the Stenmans provided an official publication of the U.S. government in which the National Institute for Standards and Technology concluded that smart meters will violate the privacy of homeowners wherever they are installed, the Court of Appeals finds that such concerns with privacy are merely “conjectural and hypothetical”, and that there has been no showing of “actual or imminent harm”. Therefore the Stenmans “have no standing” to raise the Fourth Amendment issue.

Whether one reaches this point fully represented by an attorney or reaches it through one’s own efforts makes little difference in the end.

What we see in this Appeals Court decision is not respect for or observance of law. What we see is a politically motivated decision based on the idea that nothing should get in the way of the smart grid agenda. Or that nothing should get in the way of powerful interest groups.

This is not to say that our legal system is hopeless or that we shouldn’t try to defend our rights through lawful means. Not every panel of the Court of Appeals will be as unreasonable as this one, and not every trial judge will be as unreasonable as Judge Nichols.

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* Another panel of this same Court of Appeals so ruled in March, 2015 in the case of Cusumano v. MPSC.