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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 5TH, 2017 – The Michigan House Energy Committee will hold its second hearing Tuesday March 7th at 9 am, on House Bill 4220,energymtg2-02212017 proposed legislation that would assure utility customers (electric, gas and water) of a choice to have or keep their analog meters at a minimal fee or no fee if they self read.

please-attend-hearingPlease attend the second Analog Meter Choice hearing this coming Tuesday. If you want to present testimony, please come prepared to speak and fill out a card before start of meeting. Those who come to speak should dress professionally. However, since the hearing is only 90 minutes long, know that there may not be time for your testimony to be heard this Tuesday. More hearings may be scheduled in the future. You can always email your testimony to the members of the Energy Policy Committee before House Bill 4220 Analog Meter Choice legislation is voted on in Committee.  We don’t know when this vote will take place, but we will keep you posted.

INFORMATION FOR THOSE ATTENDING

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by Jeanine Deal

March 1st, 2017 – Before next Tuesday, please call one or more of the Energy Policy Committee members, and ask them to support HB 4220, Utility Meter Choice.

Then, please plan on attending the next public hearing for HB 4220 in Lansing on Tuesday, March 7th, at 9 am, in the Anderson House Office Building (across from the Lansing Capitol Building).

Please pass this message on to all you know in favor of this legislation.  Thank You!

Energy Committee members and contact information (sponsor and co-sponsors noted, no need to call them):

Gary Glenn (R) Committee Chair 98th District (Sponsor of HB 4220 – no need to call unless to say “Thank you!”)
Web page: http://gophouse.org/representatives/central/glenn/
Phone: 517-373-1791
Email: GaryGlenn@house.mi.gov

District Map: http://gophouse.org/wp-content/uploads/2013/02/098.pdf
Bay County (part):  Auburn city, Beaver Township,  Fraser Township,  Garfield Township,  Gibson Township.  Midland city (part):  Mount Forest Township,  Pinconning city,  Pinconning Township,  Williams Township.  Midland County (part):  Homer Township,  Jerome Township,  Larkin Township,  Lee Township,  Lincoln Township,  Midland city (part),  Midland Township

Roger Hauck (R) Majority Vice-Chair, 99th District
Web page: http://gophouse.org/representatives/central/hauck/ Phone: (517) 373-1789
Email: RogerHauck@house.mi.gov

District Map: http://gophouse.org/representatives/central/hauck/district-map/
Isabella County, Midland County (part),  Coleman city,  Edenville Township,  Geneva Township,  Greendale Township,  Hope Township,  Ingersoll Township,  Jasper Township,  Mills Township,  Mount Haley Township,  Porter Township,  Warren Township

Tom Barrett (R) 71st District (Co-sponsor of HB 4220 – no need to call unless to say “Thank you!”)
Web page: http://gophouse.org/representatives/central/barrett/
Phone: 517-373-0853
Email: 
TomBarrett@house.mi.gov
District Map: http://gophouse.org/wp-content/uploads/2015/02/071.pdf
Eaton County (part),  Bellevue Township,  Benton Township,  Carmel Township,  Charlotte city,  Chester Township,  Delta Charter Township,  Eaton Township (part),  Eaton Rapids Township,  Grand Ledge city (part),  Kalamo Township,  Lansing city (part),  Olivet city,  Oneida Charter Township,  Potterville city,  Roxand Township,  Sunfield Township,  Vermontville Township,  Walton Township,  Windsor Charter Township

Tristin Cole (R) 105th District
Web page: http://gophouse.org/representatives/northernmi/cole/
Phone: 517-373-0829
Email: 
TristonCole@house.mi.gov
District Map: http://gophouse.org/wp-content/uploads/2013/02/105.pdf
Antrim County, Charlevoix County, Montmorency County, Oscoda County, Otsego County

Jim Tedder (R) 43rd District
Web page: http://gophouse.org/representatives/southeast/tedder/
Phone: 517-373-0615
Email: 
JimTedder@house.mi.gov
District Map: http://gophouse.org/wp-content/uploads/2013/02/043.pdf
Oakland County (part),  Independence Township,  Lake Angelus city,  Village of Clarkston city,  Waterford Township (part)

Joseph Bellino (R) 17th District
Web page: http://gophouse.org/representatives/southeast/bellino/
Phone: (517) 373-1530
Email: JosephBellino@house.mi.gov
District Map: http://gophouse.org/wp-content/uploads/2016/11/017.pdf
Monroe County (part):  Ash Township,  Berlin Township,  Exeter Township,  Frenchtown Township,  London Township,  Monroe city,  Monroe Township (part).  Wayne County (part):  Flat Rock city,  Rockwood city,  Sumpter Township

Diana Farrington (R) 30th District
Web page: http://gophouse.org/representatives/southeast/diana-farrington/
Phone: 517-373-7768
Email: DianaFarrington@house.mi.gov

District Map: http://gophouse.org/wp-content/uploads/2013/02/030.pdf
Macomb County (part):  Shelby Charter Township (part),  Sterling Heights city (part),  Utica city

Beth Griffin (R) 66th District
Web page: http://gophouse.org/representatives/central/griffin/ Phone: (517) 373-0839
Email: BethGriffin@house.mi.gov

District Map: http://gophouse.org/wp-content/uploads/2013/02/066.pdf
Kalamazoo County (part):  Alamo Township,  Cooper Township,  Parchment city, Van Buren County

Steven Johnson (R) 72nd District
Web page: http://gophouse.org/representatives/westmi/johnson/
Phone: (517) 373-0840
Email: StevenJohnson@house.mi.gov

District Map: http://gophouse.org/wp-content/uploads/2013/02/072.pdf
Allegan County (part):  Dorr Township,  Leighton Township,  Wayland city,  Wayland Township.  Kent County (part):  Gaines Township,  Kentwood city

Beau LaFave (R) 108th District
Web page: http://gophouse.org/representatives/up/lafave/
Phone: (517) 373-0156
Email: BeauLaFave@house.mi.gov

District Map: http://gophouse.org/wp-content/uploads/2013/02/108.pdf
Delta County, Dickinson County, Menominee County

James Lower (R) 70th District
Web page: http://gophouse.org/representatives/central/lower/
Phone: (517) 373-0834
Email: JamesLower@house.mi.gov

District Map: http://gophouse.org/wp-content/uploads/2013/02/070.pdf
Gratiot County (part):  Alma city,  Arcada Township (part),  Bethany Township,  Emerson Township (part),  Pine River Township,  St Louis city,  Seville Township, Montcalm County

John Reilly (R) 46th District
Web page: http://gophouse.org/representatives/southeast/reilly/
Phone: 517-373-1798
Email: JohnReilly@house.mi.gov

District Map: http://gophouse.org/wp-content/uploads/2013/02/046.pdf
Oakland County (part):  Addison Township,  Brandon Township,  Oakland Charter Township (part),  Orion Township,  Oxford Township

Donna Lasinski (D) Minority Vice-Chair, 52nd District
Web page: http://housedems.com/state-rep-donna-lasinski
Phone: (517) 373-0828
Email: DonnaLasinski@house.mi.gov

District Map: http://housedems.com/district-52-map
Washtenaw County (part): Ann Arbor city (part), Bridgewater Township, Chelsea city, Dexter Township, Freedom Township, Lima Township, Lodi Township, Lyndon Township, Manchester Township, Northfield Township, Salem Township, Saline city, Saline Township, Scio Township, Sharon Township, Sylvan Township, Webster Township

Scott Dianda (D) 110th District (Co-sponsor of HB 4220 – no need to call unless to say “Thank you!”)
Web page: http://housedems.com/state-rep-scott-dianda
Phone: (517) 373-0850
Email: scottdianda@house.mi.gov

District Map: http://housedems.com/district-110-map
Baraga County, Gogebic County, Houghton County, Iron County, Keweenaw County, Marquette County (part): Ishpeming Township, Powell Township, Ontonagon County

John Kivela (D) 109th District
Web page: http://housedems.com/state-rep-john-kivela
Phone: (517) 373-0498
Email: johnkivela@house.mi.gov

District Map: http://housedems.com/district-109-map
Alger County, Luce County, Marquette County (part): Champion Township, Chocolay Township, Ely Township, Ewing Township, Forsyth Township, Humboldt Township, Ishpeming city, Marquette city, Marquette Township, Michigamme Township, Negaunee city, Negaunee Township, Republic Township, Richmond Township, Sands Township, Skandia Township, Tilden Township, Turin Township, Wells Township, West Branch Township, Schoolcraft County

LaTonya Garrett (D) 7th District (Co-sponsor to HB 4220 – no need to call unless to say “Thank you!”)
Web page: http://housedems.com/state-rep-latanya-garrett
Phone: (517) 373-2276
Email: LaTanyaGarrett@house.mi.gov

District Map: http://housedems.com/district-7-map
Wayne county (part), Detroit city (part), Highland Park city

Darrin Camilleri (D) 23rd District
Web page: http://housedems.com/state-rep-darrin-camilleri
Phone: (517) 373-0855
Email: DarrinCamilleri@house.mi.gov

District Map: http://housedems.com/district-23-map
Monroe

Brian Elder (D) 96th District
Web page: http://housedems.com/state-rep-brian-elder
Phone: (517) 373-0158
Email: BrianElder@house.mi.gov

District Map: http://housedems.com/district-96-map
Bay County (part): Bangor Township, Bay City city, Essexville city, Frankenlust Township, Hampton Township, Kawkawlin Township, Merritt Township, Monitor Township, Portsmouth Township

Patrick Green (D) 28th District
Web page: http://housedems.com/state-rep-patrick-green
Phone: (517) 373-1772
Email: PatrickGreen@house.mi.gov

District Map: http://housedems.com/district-28-map
Macomb County (part): Center Line city, Warren city (part)

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February 20th, 2017
by Lola Killey

We are nearing a moment in history that we have all been waiting for – hearings at the Michigan House of Representatives Energy Committee on an analog meter choice bill that could move the bill out of committee and onto the House Floor for a vote. The bill is HB 4220. The hearing is this coming Tuesday, February 21, at 9:00 AM in Lansing in the Anderson Building, 5th Floor. The positive momentum is due to the efforts of several of our legislators, legislative staff, and the legislative service bureau. In particular, we are very grateful to Representatives Glenn, Lucido, Howrylak, McCready, Barrett, Liberati, Zemke, Runestad, Hernandez, Allor, Kelly, Canfield, Noble, Hornberger, Hoitenga, Wentworth, Garrett and Robinson for supporting and sponsoring the bill. We are also grateful to Nancy Bareham, aide to Representative Kelly, for her hard work, and to Senator Colbeck for his support on the prior bill, HB 4916.

HB 4220 is the replacement of HB 4916. The text of HB 4220 is exactly the same as HB 4916. A new number was assigned to the bill because of the new committee being formed this year. Analog meter choice advocates have pushed hard to get an analog meter choice bill out of committee for years. The beginning of the bill states:

A UTILITY CUSTOMER MAY CHOOSE BETWEEN THE

PLACEMENT OR USE OF A TRADITIONAL METER OR AN ADVANCED METER REGARDLESS OF THE UTILITY THAT PROVIDES SERVICE TO THAT CUSTOMER.

Near the end, the bill states:

“TRADITIONAL METER” MEANS AN ANALOG OR SIMILAR METER THAT IS UNABLE TO TRANSMIT USAGE INFORMATION AND IS ONLY INTENDED TO BE READ BY AN INDIVIDUAL THROUGH A VISUAL DISPLAY. A TRADITIONAL METER IS NOT DESIGNED TO BE AND IS NOT CAPABLE OF TRANSMITTING USAGE DATA BY USING RADIO WAVES OR BROADBAND OVER POWER LINES, ALLOWING 2-WAY COMMUNICATION BETWEEN THE METER AND THE UTILITY OR ITS AGENTS, OR ALLOWING A UTILITY OR ITS AGENTS TO CONTROL A CUSTOMER’S THERMOSTAT, APPLIANCE, OR SERVICE. A TRADITIONAL METER DOES NOT INCLUDE AN ADVANCED METER THAT HAS CERTAIN FUNCTIONALITY TURNED OFF OR DEACTIVATED.

We interpret above sections together as giving utility customers the analog meter choice we want for the meters placed on our homes.

Please join us in the effort to get this bill passed. We need every voice to support this bill in its entirety at this moment in time. We cannot afford at this moment in time to pick and choose different language, or interpret it negatively. We need positive support, positive momentum, and a positive outcome. For that to happen, we need every voice to support our legislators and those who are helping them. Please call your representative and tell them that you support HB 4220, and either thank them for their support, or ask them to support it as well – 100%! THANK YOU!

 

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(Editor’s note: Rep Gary Glenn, sponsor of
the new bill is also now Chairman of the
House Energy Committee and promises
a hearing this session)

by Clayton Cummins, WILX News 10, Lansing
(full article linked below)

February 8th, 2017 – “There’s a move in the state legislature to get rid of fees that utilities charge to customers who want to keep their “old meters”.

This bill hasn’t been formally introduced just yet and Representative Gary Glenn (R-Midland) is working to get support for it.

… In addition to waiving the opt-out fees, the legislation would allow home owners to self-read their meter by just taking a picture of it and sending it in.

The utility could check the meter quarterly to confirm they’re not being misled.

Rep. Glenn tells News 10 the choice should be up to the home owner.”

“As long as those utilities are a state privilege monopoly given the right exclusively to deliver electricity, then we are going to protect homeowners from that kind of monopoly policy,” said Rep. Glenn. “Trying to force certain technology on homeowners against their will or if they refuse to have it installed, charge them.”   More

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by David Sheldon
Revised November 14th, 2016

November 13th, 2016 – On November 10th the Michigan Senate debated Senate Energy Bills 437 and 438, a pair of bills that have been urged by Michigan’s major utilities and our Governor for nearly two years now. The Senate waited until this lame duck session to pass unpopular legislation that would impose new requirements for renewable energy, change approval procedures for new plants, generally raise utility rates, usher in time-of-use pricing, allow for “revenue decoupling” and limit the availability of alternative energy providers to serve the 10% of the electric market they now serve.

The bill is premised on Obama EPA regulations forcing closure of existing coal-fired generating plants and ordering states to re-organize their electric power grid systems (which President-elect Trump has promised to repeal). It would essentially replace a market-driven process for new power plant capacity and site decisions with a centralized state process. Revenue decoupling is a regulatory standard under which, as customers use less electricity in response to higher prices or other incentives, the utilities are guaranteed that their total revenues will not be hurt.*

Before this disastrous bill passed, Senator Patrick Colbeck, R-Canton, on November 10th introduced, on the floor of the Michigan Senate, his Amendment No. 4 to Senate Energy Bill 437. He sought to achieve by amendment something positive for Michigan energy customers. His floor speech outlined very effectively the case, based on homeowner property rights, that customers must be allowed a choice of meter type, in order to avoid having a device forced on them by the utilities. Property rights has always been implicit in the case we have been making these last 5 years for health rights and privacy rights, though we have not always stressed property rights as clearly as the Senator does here:

Unfortunately Colbeck’s amendment was defeated. This was done on a voice vote. The Senate that then went on to approve the two bills, 437 and 438, wanted by the utilities and our Governor. Senator Colbeck voted against passage of this energy legislation, as did quite a number of other Republican Senators. All but one Democratic Senator voted for the bills. An article discussing Sen Colbeck’s reasons for voting no on this bill can be found here. Check the voting of your Senator on SB 437 here, and on SB 438 here.

There will be an attempt made to introduce companion bills in the Michigan House – also in this lame duck session. Such legislation faces uncertain prospects. Please write your House rep and urge defeat of the energy package backed by the Governor.

We owe a vote of thanks also to Senator Colbeck for his letter to the Michigan Public Service Commission supporting meter choice and opposing some of the draconian shutoff rules being discussed there.

Although the Colbeck amendment failed this time, the fact that it was even raised on the Senate floor, and that we have House Bill 4916, are signs our issue is getting increased attention in Lansing. A new bill, to replace HB 4916, will have to be introduced in the House in the new legislative year. There are some indications the leadership of the House will likely be more favorable to us in the new year.

“First they ignore you, then they laugh at you,
then they fight you,then you win.”

Mahatma Gandhi

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*For an analysis of what the new energy bills will do see the Free Press article here:

 

 

 

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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.