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Stand Your Ground Bravely, But Know the Cost
by David Sheldon

We are receiving many calls from folks who have received a warning letter from DTE Energy, advising that their electricity will be turned off on or after a date certain – unless they agree to take a smart meter and remove any locks or impediments. Such letters are going out to people who have notified the utility of health issues that would be greatly aggravated by a smart meter, with radio on or off. Such letters are going out to people who have made known their objections on grounds of Fourth Amendment violations. The utility’s shutoff notices are outrageous and unconscionable. The latest twist is that many are receiving an offer of $50 if they will call and agree to take a new meter before a certain date. Whether you choose to hold out to the end or take a meter under duress, we would hope, at least, that nobody will take the $50 “gift”. Such an acceptance would amount to tacit consent to install a smart meter. Such offers are only made to folks who have braved many prior notices and warning letters. Those folks should not trivialize their resistance by equating It to $50.

Smart Meter Education Network has been urging all of us who receive these shutoff  notices to stand our ground. In their recent newsletter it is very well explained how helpful it is to our movement when people continue to say “NO” right up to DTE’s deadline and beyond. People who passively acquiesce to a smart meter installation, even after years of resistance, do not get the attention of legislators or the media. People who actually have their electricity turned off, especially in winter, do get the attention of legislators and the media.

In most cases, where people called the next day requesting a turn-on and accepting a smart meter installation under duress, they had to wait about a week before power was restored. That is the cost of continued resistance. If you can bear that cost, we applaud you for your unflinching loyalty to the cause. That choice will help us, no doubt about that. Just be sure that you do have a plan, however, including somewhere you can go to stay warm, a way to keep the pipes from freezing, a way or a place to cook, a way to preserve food and medicines, and so forth. Your plan should include meeting the needs of all family members, including the elderly and children. And if you take this ultimate course, please send a letter or email to Senator Colbeck and to Rep Gary Glenn, as they can use your situation to persuade other legislators to pass HB 4220, our meter choice legislation.

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September 20th, 2017 – In a newsletter to his constituents in Michigan’s 7th Senate District, Senator Colbeck reports that he is receiving huge numbers of complaints about unreasonable shutoffs of electric service because of smart meter disputes. Many of these shutoffs are happening even when there has been no locking of meters or attempts to block installers.

Colbeck beautifully sums up the whole issue with this “The MPSC says citizens have a choice. But choosing between having electricity or not having electricity, as hundreds of people in the 7th District and across the state are finding out, is no real choice at all. It is coercion.”

Read his whole opinion in his newsletter HERE.

Please also check out our home page here.

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Based on the YouTube presentation by
Josh del Sol
and Cal Washington
by Warren Woodward
October 14th, 2017

Please be aware that what I have to say is nothing personal against Josh del Sol or anyone else featured in the youtube. I have no personal grudges or axes to grind. But I do have a working BS detector.

Josh is a good filmmaker. Take Back Your Power was a great, fact-based tool for awakening people. But this one — and I will back this up with specifics — is propaganda. I would love for the theory it espouses to work, but I don’t think it will or has.

I am going to go through the YouTube InPower presentation now in the order that various things were presented.

The video gets off to a bad start when Cal Washington makes the point that one of the basic InPower premises is that, by switching to smart meters (SMs), the utility has changed the contract they have with you. That’s both right and wrong. Technically he is right because what they have installed is not a meter. It’s a transceiver and computer. I have made that point repeatedly here in AZ for years. I have proved it with an exploded conceptual rendering of a SM from Lawrence Berkeley National Laboratory that shows metering to be 1/5 of what a SM is. I have proved it by providing documentation that the IRS classifies smart meters as computers. I have proved it by providing the Congressional testimony of utility exec. Bennett Gaines saying SMs are computers. But guess what? In the “real” world, to the utility and PUC type people, it’s a meter. They won’t budge off that. If you accept service from the utility, you accept their equipment. Period.

Cal says that Kevin Lynch resigned on the day he got a Notice of Liability. This is supposed to be huge because Kevin holds the most senior non-political office in the gov. of Canada, Clerk of the Privy Council. Now this is something we will see throughout the YouTube: A news article is put on screen (11:17) and most of it is greyed out, with what Josh wants to emphasize lightened up and highlighted. But if you read the grey it says that “there has been much speculation in the civil service that he wanted out.” From my perspective, that’s a lot different than Cal’s exclamation at the end of the sequence that “He ran!” And again, this is something we will see a lot of in the YouTube: Drawing a false cause and effect relationship between Notices sent and people resigning or not seeking re-election. What we should be looking at is if policy changes, not if someone resigns or does not seek re-election.

Carol Taylor — Another person who resigned, supposedly because she received a Notice. But if you read the greyed out part the reason given is “So she can focus on her new job of chairing a federal economic advisory panel.” She has not been knocked out of the game. People like her make those kind of career moves all the time.

Cal talked about a judge he had running out of the courtroom. The bailiff (or sheriff or whoever was running the court) then says “All rise. I guess we’re having a break.” The problem is, Cal just leaves it at that. What happened after the break is not divulged. Outcome of the case not divulged. Maybe the Judge had a bathroom emergency. Who knows? One upshot was that Cal got arrested a year later, that he made sound as though it was some kind of revenge (and may well have been) for driving without insurance, and he spent 60 days in jail. Cal then talked about what happened after he got out and went to court again. Long story short, we are titillated with a $300M demand he put on the judge but the outcome of that is not divulged. It is left open ended. We don’t know what happened. And I don’t know about you, but I have better things to do than spend 60 days in jail. I’ve been there a couple times overnight. That was enough.

Kevin Falcon, is given as another example of someone who stepped down. What really happened in the greyed out bit is that he announced he was not going to seek re-election. As part of that announcement he did “step down” from some posts he held. But he did not quit altogether. The last line you can see on the screen is that his reason for not seeking re-election is “he and his wife are expecting.” Since the next line is not seen, I can only assume they are expecting a baby. What else would they be expecting together? A new car? Cancer? A Notice of Demand? I don’t think so. People resign all the time for family changes.

Next, examples of results of specific “seed groups” utilizing the Notice theory are presented.

Kelowna, BC action — The SM installer company CEO resigned on the day he got a Notice of Default, and Chair of the BC Utilities Commission who also got the same notices resigned. That sounds impressive but did SM policy change? No. Did the installation company fold up shop and stop installing SMs? No.

Seattle — same thing. People did not seek reelection and a couple of people resigned but did policy change? No. And BTW, people resign and don’t seek reelection all the time. Since I have been on the ACC’s case here in AZ (6 years), the ACC Executive Director resigned. 2 Utilities Division Directors have resigned. The so-called “Ethics Officer” resigned. Other various people there have resigned. Was that because they got Notice letters? No. Was that because I was such a relentless PITA? No. They resigned for a number of different reasons. A couple of them went to work for APS. Oh, and the Exec. Director of the AZ Dept. of Health Services, the guy who was in charge when the fraudulent SM health study they did came out, also resigned. Was that because I savaged his stupid SM study? No. Was it because he got a Notice? No. He moved on to a university teaching gig in Tucson. People do get sick of Phoenix. People do make career changes.

MI — AG Bill Shuette calls for free right of SM refusal after being sent the Notices. Total nonsense. Schuette has been hip to the SM scam since at least 2012! At the bottom of this email I reproduced the statement he issued in 2012.

About 4 people at the MI PUC are no longer listed at the website. Big deal! See my point above about the ACC resignations here. Happens all the time.

If you read the greyed out part, you can see that the Warren city attorney statement was taken out of context. Josh made it sound like he resigned and in so doing blew the whistle on DTE’s campaign donations. Campaign donations are a matter of public record. I look up APS’s all the time. It’s not major whistleblower stuff. The point the Warren city attorney was making (again, in grey) is that, for people who want to change SM policy there are steps that must be taken, and that some venues are appropriate and others aren’t. In his opinion for example, the Council can’t do it. Also, DTE is the beneficiary of a certain law which he cited and then, saying that the law could be changed, he mentions that would be hard because of DTE’s campaign donations. That’s not whistle blowing. It’s a statement of political reality. In short, the city attorney was being frank.

13 people have saved their analogs. That’s great, but for how long will that last? Were they given any guarantees? If they wrote Notices, where are the responses? Also, there’s a lot of people in MI who held on to their analog meters — until they didn’t. In other words, they were defiant and that worked for quite a while but eventually DTE came around to either cut them off or install a SM. If the 13 Josh mentioned still have their analogs a year or 2 from now, then I might be convinced.

NY — The speaker says he sent a $300M liability letter to not have a “smart” water meter and got a letter back saying “We’re sorry; you don’t have to have one.” But would he have gotten that letter anyway had he written something less shrill? The details of how to refuse a SM in his location are not provided. Were the meters mandatory? We don’t know.

Maui — This is another false cause and effect. The electric company switched from wanting to blanket the islands with “smart” meters to an “opt in” proposal. That was actually the result of the PUC rejecting the company’s huge proposed budget. The company had to make cuts. Blanket “smart” meter installation was one of them, but it remains a long term company goal. Also, that decision was made well before any Notice letters were sent out.

Lastly we get the voice of a “utility insider” who says that his utility has a “war room” dedicated to keeping track of SM resistance. Big deal. Of course they do! Josh is flattering himself if he thinks that’s the result of Notice letters being sent out. I am sure just about all the utilities have war rooms or at least have someone whose job it is to keep track of resistance. I know for a fact for example that APS has pictures of my meter cage. Does anyone think these companies just sit on their thumbs in the face of a threat like SM resistance of any kind? PG&E had VP “Ralph” infiltrate some anti-SM chat group years ago. In response to her request not to have a transmitting gas meter, someone I know actually got an email from UNS gas here telling her she’d been “brainwashed by Warren Woodward.” So of course these companies are keeping track of us, Notices or no Notices.

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Comments are welcome as always. Please also visit our home page:
michiganstopsmartmeters.com

Footnote: Opt-Out Provisions From MI A.G. Bill Schuette in 2012:

Given the questionable benefit of smart meter program to customers, as well as the extensive public concern about the effect and potential intrusiveness of smart meter infrastructure acknowledged in the Commission’s January 12, 2012 Order in this matter, the Commission appropriately directed Michigan’s electrical utilities deploying or proposing to deploy smart meters to provide information about their plans for allowing customers to opt out of having a smart meter, and how they intend to recover the cost of such an opt-out program.

The Attorney General respectfully submits that utility customers should be given a meaningful choice of whether to have smart meters installed and operated on their property. An “opt-out” program that requires those customers who opt out to pay an unwarranted economic penalty for doing so does not afford customers such a meaningful choice.

The information provided by Detroit Edison, and Consumers [Consumers Energy Company] in response to the Commission’s Order does not sufficiently establish that they intend to offer customers a fair choice of whether to accept smart meters on their property. Detroit Edison’s response on this subject is based upon the assertion that “Edison’s AMI [Advanced Meter Infrastructure] program is beneficial for all customers.” (Document No. 0148, p. 7). Proceeding from the unsubstantiated assertion, Detroit Edison apparently proposes to impose what it broadly describes as “all incremental costs” solely upon customers who choose not to accept installation of smart meters. (Document 0148, pp. 8-9). Consumers’ submission similarly states that while it proposes to provide customers with the option to retain their existing meter equipment, it apparently intends to subject customers making such a choice to additional charges, including charges for “maintaining ready testing and billing traditional meters”. (Document No. 0146, pp.16-17). While neither Detroit Edison nor Consumers provide details regarding their opt-out proposals and associated charges, both of their comments suggest that they intend to effectively penalize customers who choose to opt-out of smart meters. Presumably, under the utilities proposals, customers who opt-out of smart meters would be required to pay rates covering both the costs of the smart meter program, and expansively defined incremental costs “of retaining traditional meters. These proposals raise substantial questions as to whether their respective customers would, in fact, be afforded a fair and meaningful choice to “opt-out”.

Another argument which may be important for the Commission to consider is whether a financial incentive to homeowners who allow smart meters to be installed in their home might be an alternative approach to a rate increase if a homeowner refuses to permit a smart meter to be installed.

Respectively submitted, Bill Schuette
Attorney General

[From: ATTORNEY GENERAL’S COMMENTS PURSUANT TO THE MPSC ORDER DATED JANUARY 12, 2012 – http://efile.mpsc.state.mi.us/efile/docs/17000/0408.pdf]

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October 5th, 2017 – Warren Woodward Wins Smart Meter Battle at Arizona Court of AppealsUnanimous decision by COA opens the way for public disclosure of corruption by the Arizona utility commission (ACC) and the Arizona Dept of Public Health. The two state agencies had conspired together to publish a false report alleging no health problems with smart meters. Mr. Woodward used the Freedom of Information Act to obtain documents showing such conspiracy. Heavily redacted documents were provided to him by the two agencies. He took both agencies to court to force disclosure of the redacted material. A trial court judge gave him the unredacted documents but placed a gag order on his public disclosure of same. The Court of Appeals unanimously ruled that the gag order was improper and that Woodward is now free to publicly disclose the unredacted documents. The case was remanded back to the trial court for further proceedings consistent with the appeals court decision.

This case shows what can be accomplished by a determined and disciplined individual who persists and persists. The value to our smart meter resistance movement is that the Arizona public will now learn that no honest health study was ever done and that an attempt to fake such a study was made instead. This will undermine public confidence in the whole smart meter program.

Click here for account in the Arizona Capitol Times.

Click here for the Appeals Court opinion and decision.

 

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by David Sheldon

September 17th, 2017 – WE NEED HELP!  Michigan Stop Smart Meters has been working for more than 6 years to fight the forced installation of ‘smart’ utility meters by Michigan’s two largest utilities.

In 2015, when we brought in world renowned expert, Dr. David Carpenter, to testify before the Michigan Public Service Commission, we appealed for your financial support and many of you gave generously to make that event happen!  We are now at a juncture where there is much more to be done and we cannot do it without your support!

Our efforts to date have been in the political, educational, legal and regulatory arenas, and has resulted in much media coverage. Our efforts have also had much to do with the introduction of several bills in our legislature designed to protect utility customers – including the Opsommer bill, the McMillin bill and, most recently, the introduction of House Bill 4220 by current Michigan House Energy Chairman Gary Glenn.  But now we need to make a full court press to see that this bill is passed on by the Energy Committee to the full House. This will involve radio ads, print ads and extensive flyering. There are also some legal battles in the works. With your support we can do a lot. Without such support we cannot.

OUR ACCOMPLISHMENTS SO FAR!
We at Michigan Stop Smart Meters have, in concert with others, been struggling for more than six years now to raise health, safety and privacy issues with respect to so called “smart meters” now being deployed by DTE on the east side of state, and by Consumers Energy on the west side.

OUR POLITICAL WORK: In concert with others we petitioned city and county governments to endorse our cause, put on special PowerPoint presentations before city councils and got the backing of 34 local governments.  This resulted in a sham MPSC investigation, but also led to the introduction of three proposed new meter choice laws – the Opsommer bill, the McMillin bill and now under consideration House Bill 4220, also know as the Glenn bill.  It also led to the spectacularly successful hearing before the House Oversight Committee on December 2nd, 2014 and a series of hearings before the House Energy Committee in 2017.

OUR EDUCATIONAL WORK: We sponsored this website and public educational meetings in Allen Park, Cheboygan, Clinton Township, East Detroit, Detroit, Ferndale, Fraser, Grand Blanc, Grand Rapids, Holland, Midland, Muskegon, Parchment, Plymouth, Rochester, Romeo, Romulus and Taylor   We have been interviewed by Macomb Daily, Oakland Press, Detroit News, Hometown Newspapers, by Holland radio’s “Talk of the Town” program, by Fox17 News in Grand Rapids, by Channel 13 in Grand Rapids and most recently this year by Guy Gordon on WJR Radio and by WXYZ TV.

OUR LEGAL WORK: We closely followed and supported two cases in Oakland Circuit Court where Detroit Edison had sued local couples who changed their own meters when they became ill and could get no relief from the utility.  In one of the cases the couple had suffered an unjust decision early on from a circuit judge and was in need of our help to mount an appeal. We provided that help. That was the Stenman case and is reported elsewhere on this website. In the other case the couple needed some initial assistance at the circuit court level, but the case ultimately settled without an appeal. We also assisted the Cusumanos in appealing the DTE ‘Opt-Out’ Plan. We assisted some residents of the Muskegon area in mounting a 16 person appeal of the Consumers Energy ‘Opt-Out’ Plan. This was the case known as Rison et al. Our support won for them a preliminary ruling from the Court of Appeals that allowed the case to survive a Motion for Summary Dismissal. That in turn led to the group receiving a financial donation that enabled them to hire attorneys to finish the case. The case was ultimately joined to one brought by the Attorney General and the two joined cases resulted in a remand of the opt-out plan back to MPSC for a redo.

OUR REGULATORY WORK: In 2015 we intervened in DTE’s general rate case before the Michigan Public Service Commission. This case included a review of the details of the smart meter opt-out program as well as cost justification for the overall smart meter program in Michigan. As part of that case we brought in world renowned Dr. David Carpenter of the State University of New York to testify before the commission. That case is reported elsewhere on this website. Many of you contributed generously to cover the expenses of bringing Dr. Carpenter in.

OUR PLANS GOING FORWARD: Our focus right now is primarily on educating more citizens to demand of their elected representatives that they pass meter choice legislation, such as the current House Bill 4220, introduced by Energy Chairman Gary Glenn, with 16 co-sponsors, and supported on the Senate floor by Senator Patrick Colbeck who has launched a campaign to be Michigan’s next Governor. This educational campaign will require funds for intensive flyering in many districts, and for newspaper and radio ads. How successful we will be with this will depend very much on the generosity of our activists with this fund raising effort.

Other legal efforts are also under consideration, including:

(1) an appeal of a particularly egregious harassment by a Michigan utility of a woman whose very life was threatened by a forced installation of a digital meter. This is a case that could set a crucial precedent to help all those whose health is endangered by smart or digital meters.

(2) a possible Fourth Amendment, multi-plaintiff lawsuit in federal court to defend the rights of all Michigan utility customers who have been forced to take a smart meter or have their power turned off.

Again, how much we can do will depend on your generosity in donating to us at this time.

If you are angry at what DTE, Consumers Energy and their cronies in state offices are doing to Michigan utility customers, and you appreciate all that we are doing to fight these injustices, then PLEASE HELP US by donation or by volunteering your time!

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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.