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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.

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TWO MORE SMART METER APPEALS
MAY ANSWER THE QUESTION

by David Sheldon
May 31st, 2015

Early in 2015 the Michigan Court of Appeals (MCOA) handed smart meter resisters what can only be regarded as two major setbacks, denying nearly all claims against the DTE “opt-out” plan and the Consumers Energy Justice icons“opt-out” plan. We have analyzed these decisions in earlier articles on this site. Suffice it to say we think that, in the DTE case at least, it is very clear that the three judge panel hearing that case did not follow existing case law and chose instead to make new law to suit the needs of the smart grid political agenda.

Image above courtesy of digitalart.

Early in June we have oral arguments for two more smart meter appeal cases. Since different panels of judges will hear these cases we remain hopeful that we will finally see a just outcome. We are hopeful that this time the Court will finally rule according to the statutes and the existing body of case law. We encourage all of you who can to attend. We would like to pack the courtroom for both of these events. Location details and maps for both events, including parking information, can be found at this link: http://courts.mi.gov/Courts/COA/clerksoffice/Pages/Locations.aspx

 Stenman Appeal
Oral argument Tuesday June 9th at 10 am
Detroit branch of MCOA
3020 West Grand Boulevard
Suite 14-300

Sheldon Appeal
(Two errors corrected below)
Oral argument Wednesday June 10th at 11 am
Lansing branch of MCOA
Hall of Justice
925 West Ottawa Street
2nd Floor

 (1) Stenman Appeal: This case is unique among our cases in that it is the first appeal to be heard of a case that originated in a circuit court. All our other appeals have been cases that originated in the Public Service Commission. The Court of Appeals has much more latitude when reviewing a circuit court case than it does when reviewing the actions of an administrative agency.

For those of you who have changed your own meter, or have a plan to do so or have suffered a disconnection of service, this case is particularly relevant. If this appeal goes well we may finally have a way to stop DTE from forced installations all over their service territory!

Early in 2012 Ralph and Donna Stenman, of Farmington Hills, pleaded with DTE to remove a smart meter that had caused health problems for Donna, who is a cancer survivor, and was concerned, not only for her immediate symptoms, but also because the World Health Organization had rated in 2012 the type of microwave radiation that cellphones and smart meters produce “a possible carcinogen”. Their pleas to DTE were also based on a smart meter being a hazard for Ralph because the atrial fibrillation in his heart, put him at risk for blood clots and a stroke. The cause of Afib, per WebMD.com, is “rapid, disorganized electrical signals”. Smart meters put out very brief but high energy pulses about every 15 seconds that cause many people to experience irregular heartbeats.

Pleas were first made by letters to DTE – to no avail. In March of 2012, following a method that had been encouraged by Jerry Day and using a modified version of his suggested form, the couple sent DTE a document titled “Affidavit Notice and Demand for Removal of all “Smart Meters”, radiation emitting and surveillance devices.” The document stated that if DTE would not remove the smart meter within 21 days, the couple would do so, replacing it with a “safe and legally compliant meter, rated and calibrated to common metering standards”.

Upon refusal of DTE to remove the offending meter the couple found it necessary to take that action themselves. A licensed electrician was engaged for the job, readings of the smart and analog replacement meter were duly recorded and the smart meter safely shipped back to DTE. The utility responded first with threats and intimidation. Then a letter indicating that power would be disconnected, but ultimately sued the Stenmans instead in the Oakland Circuit Court. Attempts were made to find an attorney for their defense, but every attorney contacted stated that if he took on the case DTE would bankrupt him.

Ultimately the Stenmans found it necessary to represent themselves in court. Michigan Stop Smart Meters was pleased to arrange some assistance for them in the drafting of needed documents. In the fall of 2012 the case was heard by Circuit Judge Rudy Nichols.

The essence of the case was a demand for a “Partial Summary Judgment” which would include an injunction forcing the Stenmans to allow DTE employees back on their property to reinstall a smart meter. The injunction was to be permanent but the judgment would be considered partial only in the sense that a DTE claim against Stenmans for money damages would remain open to possibly be determined by a trial later.

A “Summary Judgment” is a judgment made without allowing for any trial or evidentiary hearing. There are long established legal principles that allow for this type of judgment when there are no material factual issues in controversy and the judgment can be rendered purely as a matter of law, based on facts agreed to by both sides.

We agree with the Stenmans that there were facts that had been explicitly placed in controversy that should render Judge Nichols decision contrary to law. They are:

  • Whether a “smart meter” is actually a lawful device that conforms to the definition of meter in the statute and in the regulations.
  • Whether the “digital meter” then being offered as an alternative would be any more lawful than the smart meter.
  • Whether either a smart or digital meter would threaten the Stenmans privacy. Preliminary evidence was offered in the form of a document authored by the National Institute for Science and Technology (NIST) to establish that smart meters are a threat to customer privacy and that they should only be installed on request of the customer.
  • Whether either a smart or digital meter would threaten the Stenman health. Preliminary evidence was offered in the form of an affidavit from Dr. Donald Hillman, retired MSU professor, relating the story of a little girl whose health had been severely compromised by the installation of a DTE smart meter.

Judge Nichols, in his Order of November 11th 2012, stated that the Hillman affidavit was irrelevant because it described what happened to another family, not what happened to the Stenmans. He ignored the other three arguments entirely, granted DTE’s motion for partial summary judgment and ordered the Stenmans to permit DTE employees to enter their property for the purpose of reinstalling a smart meter.

We agree with the Stenmans that Judge Nichols order was outrageous.

An appeal was filed. Again this had to be done with the Stenmans representing themselves as no attorney could be found willing to take on DTE. Again Michigan Stop Smart Meters was able to arrange some needed assistance in the preparation of an appeal brief and the drafting of other documents.

By agreement of both sides Judge Nichols put a stay on his order pending a decision by the Michigan Public Service Commission (MPSC) regarding an “opt-out tariff” proposed by DTE where the only “opt-out meter” to be provided was a smart meter with one of its two transmitters turned off. In May of 2013 the MPSC approved DTE’s proposal that opt-out customers must pay an initial fee and monthly fees and receive only a “non-transmitting meter”.

Following this DTE moved to have the stay lifted. This might have made the installation of a smart meter follow in short order. Stenmans argued that there was an appeal of the opt-out plan before the Michigan Court of Appeals and other appeals also pending. They brought in letters from their doctors to establish the harm a smart meter would cause them. Mr. Stenmans cardiologist provided a signed letter stating that installation of a smart meter “could lead to a bad outcome” for Mr. Stenman. They brought in evidence that DTE had accommodated other families in their neighborhood with analog meters. Yet Judge Nichols lifted the stay.

As it happened DTE did not enforce the court order. We suspect the company was more interested in the legal precedent this case established than in actually getting a smart meter installed.

As the time for oral argument began to draw near the Stenmans were finally able to find an attorney to file a reply brief and take on the job of oral argument.

Those interested in more details on this case will find the most important documents and briefs here: https://michiganstopsmartmeters.com/the-stenman-case/

It has taken nearly two years, including an initial period where both sides filed briefs, for this appeal to reach the stage where oral argument will be heard.

Please come and show, not only your support for the Stenmans, but your support for the principle that nobody should be forced to have a health damaging surveillance device on their home. Pack the courtroom in downtown Detroit on Tuesday, June 9th.

(2) Sheldon Appeal: This case, while originating in the MPSC, is also unique in that it is the first case in which the Court of Appeals (MCOA) is being asked to hold the MPSC in contempt of court for failing to carry out a previous order of MCOA. It is also the only case to reach MCOA where the overall funding of smart meters in DTE’s service territory is called into question.

This is the case for those of you who have been appalled that the MPSC, without ever holding an evidentiary hearing on the privacy or health implications, would give DTE permission to charge back the costs of 2.4 million smart meters to its customers!

Some of you may recall that in April of 2012 the Court of Appeals issued a decision remanding the case that allowed this funding back to the MPSC for a redo. That appeal had been brought by ABATE (an association of large business users of electricity) and by then Attorney General Cox. In the remand order to the MPSC the court directed as follows:

“… we remand this matter for the PSC to conduct a full hearing on the AMI program, during which it shall consider, among other relevant matters, evidence related to the benefits, usefulness, and potential burdens of the AMI, specific information gleaned from pilot phases of the program regarding costs, operations, and customer response and impact, an assessment of similar programs initiated here or in other states, risks associated with AMI, and projected effects on rates. In other words, a real record, with solid evidence, should support whatever decision the PSC makes upon remand. “ (Emphasis added)

This order went beyond what the appellants had asked of the court. Does it sound like the Court of Appeals was instructing the MPSC to just consider the rates that utility customers would have to pay to fund smart meters? Incredibly that is all the MPSC did, in complete defiance of the court’s order. Not only that but four smart meter resisters who wanted to participate as interveners in the reopened case were denied that right – mainly on the basis that we wanted to raise issues having to do with the risks of AMI technology which the administrative judge said were “beyond the scope” of the remand proceeding. I was one of those who tried to participate and was shut out. The others were Linda Kurtz and Dominic and Lillian Cusumano. Three of us then protested the decision of the administrative judge to the Commission and were denied again.

On October 17th 2013 the Commission issued its final decision in the reopened case. To nobody’s surprise they only re-justified the decision they had made the first time around. With no new kinds of evidence being allowed, how could the outcome be any different the second time? Michigan’s current Attorney General Bill Schuette did not appeal this decision nor did ABATE.

On November 16th 2013 David Sheldon did appeal that MPSC decision. He asked the appeals court to find that MPSC should be held in contempt of court for failing to carry out the court’s previous order, and that the case should again be sent back to MPSC for another redo – but this time allowing for the scope of the case to include the health, privacy and safety issues, and allowing new interveners to join the case and introduce evidence concerning the issues that had previously been neglected.

The issues that will be argued in this case are:

  • That it was wrong of MPSC to limit the scope of the case to just determining the amount of cost recovery for DTE on this investment and thereby denying the opportunity for anyone to introduce evidence regarding health, privacy and safety issues.
  • That it was wrong for MPSC to exclude the very interveners in the remanded case who would raise the issues the Court of Appeals required MPSC to address.
  • That even if the MPSC’s authority be limited to setting rates (as some have argued) the Commission could still have used that rate setting authority to deny rate recovery of smart meter costs after a finding that the technology harms the customers and the public. Denial of rate recovery would almost certainly have meant no smart meter program in Michigan.
  • Moreover the MPSC had jurisdiction from the legislature to directly order DTE to correct health and privacy abuses when acting in response to written complaints. And there were written complaints from 35 city and county governments and from over 400 utility customers.

As with the Stenman case, it has taken nearly two years, including the time for filing briefs, for this case to reach the stage of oral argument.

Please come and show your support for a case that seeks to have MPSC “held in contempt” for its dereliction of duty in approving the entire smart meter program without hearing the evidence. Pack the courtroom in Lansing on Wednesday June 10th.

 

 

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three judges panelSome of the Consumers customers who appealed may take some comfort in the Court’s decision to remand one small part of their case to the Michigan Public Service Commission (MPSC) for reconsideration. It is with some reluctance, therefore, that I write this story. On April 30th, 2015, the Michigan Court of Appeals (MCOA) issued a decision concerning the twin appeals that had been filed against the decision of the MPSC that, in turn, had both approved overall funding for the smart meter system and also approved a schedule of fees for persons wishing to opt-out of a transmitting smart meter. This decision may be found under the “Legal” menu tab on this website.

One appeal was by Michigan’s Attorney General and concerned his claim that when the MPSC made a decision allowing Consumers to recover the overall costs of its smart meter program from customers, that decision had not been properly supported by evidence on the record. The second appeal was by a group of 16 Consumers customers from the Muskegon area in which this same overall cost recovery was challenged as unsupported by the evidence. Also challenged was the inadequacy of the so called Consumers ‘opt-out’ tariff which, the appeal claimed, allows Consumers to force all their customers to have a smart meter, either with radio on or radio off. The two appeals were consolidated by the court and heard during one oral argument and decided by one court order.

The Attorney General’s appeal was denied altogether on grounds that he had apparently already signed off on funding the smart meter program as part of a settlement deal. In that settlement agreement, the AG had specifically exempted questions concerning the smart meter program to be decided at a later date. But the amount of revenue approved in the settlement included the amounts needed for the smart meter program. The Court took the position that MPSC’s only authority with respect to smart meters was to approve or not approve rates and, since the rates had already been approved, the AG’s appeal was held to have no merit.

The appeal of the Consumers customers, like that of the Attorney General, raised the issue that there was wholly inadequate evidence on the record to support the MPSC’s decision to approve overall cost recovery for the smart meter program. But, unlike the AG’s appeal, the Consumers customers had not signed off on these overall program costs. They had not participated in the original hearing of the case before the MPSC. The Court did not even comment on the argument of the Consumers customers that costs for the overall smart meter program had not been supported by appropriate evidence on the record. The Consumers appeal brief may be found under the “Legal” menu tab on this website.

The Consumers appeal also challenged the very idea of opt-out fees, arguing that the MPSC should have considered an alternative opt-in approach. Regrettably, the issue that any true opt-out must allow customers to keep or get back their mechanical analog meters was not even raised in the appeal. Raising this issue would have supported another argument that Consumers customers are getting little or no benefit by joining the ‘opt-out’ program. The appeal of the Muskegon Consumers customers was denied for the most part, except for a question as to the amount of the opt-out fees. Not whether there should be opt-out fees, but just the question of the amount of those fees. For that one narrow issue the Court remanded the case back to MPSC to develop a competent body of evidence to support whatever opt-out fees it might ultimately set after such a review.

The Consumers appeal also raised a Fourth Amendment argument but left out a key point necessary to win such a point. Ordinarily the Fourth Amendment is applied to actions of law enforcement or to the actions of other government agencies. In order to have it apply to a private entity, such as an investor owned public utility, it is necessary to demonstrate that the private entity is what is called a “state actor” in the case law. Such a demonstration was not made in the appeal brief at all and not made in a convincing manner in the reply brief or the oral argument. This panel chose to ignore the Fourth Amendment argument, unlike the panel that heard the DTE opt-out case two months earlier.

Sadly the appeals court stated that the decision whether to allow the Consumers customers to participate in the remanded case would be up to the MPSC. The MPSC is already on record that these customers should not participate since they were not participants in the original hearings. The MPSC also has a track record of excluding people from a remanded DTE case on similar grounds.

So what will come of all this? The case will be sent back to MPSC for a rehearing of the opt-out fee question, but, in all likelihood, no participation by these appellants. The same folks who didn’t think the issue was all that important the first time around will be the only ones allowed to introduce evidence the second time around. The MPSC will go through the motions of fulfilling the Court’s Order and will almost certainly, in the end, again approve the same opt-out fees approved the first time. Nothing will have been gained, except perhaps to make the MPSC work harder to achieve the same outcome.

Did this appeals court make smart meters mandatory? Absolutely not! The appeals court in this case, as in the earlier reported DTE case, was constrained, when reviewing the actions of an administrative agency, to only consider whether the agency did anything wrong. They could not get into the broader issues of whether customers have a valid complaint about what they are being subjected to. The Court based its opt-out decision on the MPSC not having the authority to tell a utility what kind of meters to use. The appeals court stated, in these two cases, that MPSC only has the authority to set the rates for whatever Consumers or DTE wants to do. This is good because it deprives both utilities of the argument that their smart meter programs are mandatory because the MPSC ordered it. It leaves both utilities in the position of making their programs mandatory solely on their own say-so.

The silver lining: The door is now open for individual utility customers, acting singly or as a group, to go into one or more of the state’s circuit courts and argue that Consumers (or DTE) has no legal authority to force smart meters on non-consenting customers! If such a legal action were successful at the circuit court level it would doubtless land in front of this appeals court in due course. But the appeals court, when reviewing the decision of a circuit court has much broader discretion to look at all the issues, including constitutional issues.

Link

Analysis by David Sheldon
(March 4th, 2015)

On February 19th, 2015 a decision was handed down by the Court of Appeals that may have some far reaching effects on the thousands of angry utility customers and on the 34 city, township and county governments that had sought relief for their citizens from DTE’s bullying meter conversion tactics. three judges panel

Discontent with this plan centered on the fact that the Michigan Public Service Commission (MPSC) had approved a plan that did not address the issues that caused the MPSC to begin its investigation in the first place.

We will address first, what was decided in this case, and then, on a more hopeful note, what was not decided by this case and remains open for further legal proceedings.

There had been two appeals, one by Cynthia Edwards, Linda Kurtz and Leslie Panzica-Glapa, represented by attorney Kurt Koehler, and a second by Dominic and Lillian Cusumano representing themselves. Both appeals had argued that the MPSC had not done its job correctly in approving the DTE plan. The Cusumano appeal further raised the issue that DTE’s plan was an unconstitutional violation of the Fourth Amendment privacy rights of its customers. The two appeals were consolidated, i.e. treated as one case for purposes of the Court’s analysis and decision.

This appeal concerned directly the so called “opt-out case”, identified by the PSC as its U-17053 case, which the Court refers to as the “instant case”. This appeal turned indirectly on the earlier U-17000 comments case, wherein utilities, the public and staff were asked to submit their comments regarding smart meters. The earlier case was deemed to set the scope of this case.

What the Court Decided: That the Public Service Commission had done its job according to law, and that there were no adequate grounds presented in these appeals as to why its decision should be reversed by the Court. In reaching this conclusion:

  1. That, although the PSC made a ruling in Case U-17000 that all Michigan utilities with smart meter programs must offer an opt-out to their customers, the Court held that the PSC was under no obligation in the opt-out case (U-17053), to consider whether DTE’s plan actually addressed any of the complaints that had caused it to issue such an order.
  2. That, although DTE had not appealed the ruling in U-17000, the Court held that any decision concerning the type of meters to be provided utility customers was a “management prerogative” of DTE and that the MPSC had no authority to interfere with DTE’s decisions in that regard.
  3. That, although the PSC’s Order in U-17000 mandated an opt-out for all customers, The Court held that DTE’s decision to limit the ‘opt-out’ program to residential customers was a “management decision with which the PSC cannot interfere.”
  4. That, although there were numerous written complaints from professional people, including doctors, dentists and chiropractors posted to the docket in the U-17000 case, there was, according to the Court, “no evidence that any of DTE’s commercial or industrial customers had sought an opt-out option.”
  5. That, although the PSC had taken no evidence in the U-17000 case, issued no ruling on privacy issues and no ruling on health issues (that was compliant with the requirements of the Administrative Procedures Ac), when appellants raised the issue that the ‘opt-out’ meter being offered to opt-out customers still raised health and privacy issues, the Court held that appellants “cannot collaterally attack the ruling in Case U-17000 in the context of the instant case.”
  6. That, although appellants provided evidence that a federal agency had labeled smart meters a “surveillance device”, and that both federal and state governments were driving the whole smart grid program through regulations and financial incentives, the Court ruled that “Appellants have not established that the installation of either a transmitting or a non-transmitting AMI meter constitutes a search, or that even if it did, that DTE acts as an agent of the government.”
  7. That, although the PSC has much broader powers than just rate regulation under certain conditions:

 “MCL 460.58 provides in pertinent part:
 Upon complaint in writing that any rate, classification, regulation or 
 practice charged, made or observed by any public utility is
 unjust, inaccurate, or improper, to the prejudice of the complainant,
 the Commission shall proceed to investigate the matter.”

Notwithstanding the above, the Court found that “Case
U-17000 was not initiated by a ‘complaint in writing’ …” and that the
“resolutions expressing concern about AMI meters passed by
various municipalities were not filed …” with the PSC. Therefore,
the resolutions passed by nine city and county governments that
had caused the PSC to open the U-17000 case did not count and
the PSC’s authority was limited to rate regulation.

What can one say about a three judge appellate panel that renders a decision characterized by the above seven points? Perhaps it is better to say nothing and let each reader reach his or her own conclusions. But, in any case, what this panel did may not be indicative of what other three judge panels will do on other smart meter cases that come before the Court.

Will This Decision Be Published?
At present this decision has been designated as “Unpublished”. What that means is that (1) it won’t become part of any bound volume in a law library, and, more importantly (2) it will not constitute a firm precedent for courts judging future cases. It can be cited by attorneys only to suggest a course of action for other courts. It is not binding precedent for any future case.

There are, however, requests to the Court from both DTE and from MPSC that this case should be published because it should become a firm precedent for all the other smart meter cases that are already pending. We understand that an attempt will be made by one or both of the parties who lost this case to discourage the Court from publishing, so as to limit the damage from this case.

Can This Judgment Be Appealed?
Appeal is possible, both to the Michigan Supreme Court and, where federal questions are involved, to the U.S. Supreme Court. Neither of these courts, however, is obliged to hear any appeal unless it chooses to do so. These courts are very selective in picking cases to review and tend to make these decisions, not on the basis of achieving a just outcome for the particular parties, but based on maintaining consistency in the law or setting firm guidelines for the lower courts to use in future cases.

What This Court Did NOT Decide:
This Court did not approve DTE’s opt-out plan as such. All that it did was address whether the MPSC did its job within the limits of its authority in reviewing and approving the DTE opt-out plan. It did not make the DTE plan the law of the land. Let us examine why that is so:

  • For a court to find that MPSC has no authority to interfere with DTE’s “management prerogatives” is really a statement about the powers and responsibilities of the MPSC. Such a finding does not preclude the possibility that a court of general jurisdiction, i.e. one of the state’s circuit courts, might have the authority found lacking in the MPSC.
  • There are forms of legal action, both in tort law and in contract law, that cannot be heard by the MPSC but could be heard in one of the state’s circuit courts.
  • With regard to the Fourth Amendment privacy argument, all that the Court found was that these particular appellants had not met their burden to prove that smart meters are a surveillance device nor met their burden to show that the utility was acting as an agent of the government. These findings, even if published, do not preclude other parties or appellants in future cases from proving both of these points.
  • There exists the possibility of getting from a circuit court a declaratory judgment that would define the rights of a utility customer, an injunction to enforce those rights, and an award of money damages for any harm that has been suffered by a party.

We can win some of the battles ahead!!!

What we desperately need is:

  • One or more plaintiffs willing to sue DTE in one of the state’s circuit courts. A multi-plaintiff suit would probably be best. Object would be to get a declaratory judgment outlining the rights of the utility customer, an injunction to protect those rights, and money damages for any harm suffered.
  • People willing to help us with the legal costs involved by donating money or time.

PLEASE DONATE! We need to raise some serious money to pay legal fees and witness fees – both for circuit court actions and for administrative actions before MPSC.

WHY DONATE TO MICHIGAN STOP SMART METERS?