Link

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.

———————————————————————————————

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

Link

from the Ad Hoc Smart Meter Bill Drafting Committee

Dear Smart Meter Activist,

Michigan_state_capitolAttached is the culmination of untold hours of intense effort, careful thought, research, collaboration,  and numerous revisions  over an almost two month period.  The primary writers of the bill were passionate activists, highly motivated to draft legislation that would guarantee our health, safety and privacy would be secured by giving everyone the right to choose to have, or not to have, a dangerous, life threatening surveillance device installed upon their living or working quarters.

The bill’s title simply, directly and clearly states its singular purpose:

“Utility Meter Freedom of Choice Amendment” (to Michigan Public Act 3 of 1939).

Attached are two versions:  one for the State House of Representatives and one for the State Senate. It’s the same bill with different captions.  Be sure to send the correct bill to your lawmakers.

This bill was drafted for all smart meter activists and their organizations, as well as all legislators: local, county, state and federal. Not only did we activists have a common goal before the bill was drafted, but we now have a document unlike any other that puts our legislative demand into words.

Please share freely with all parties of interest.

We need to bombard our state legislators with requests to bring this bill up for passage.

 Points to consider for presentation:

  1.  Call their office.  Ask to speak to the legislator.  If unavailable, explain to the staff member that you will be Emailing him/her a bill that you want introduced or co-sponsored if it’s already been introduced. Ask the legislator or staff if they are familiar with the issue.
  2. If yes, ask if they will champion the bill and help move it through committee and bring it up for passage.
  3. If no, give them a general statement as to its purpose and that in addition to sending the bill you will be sending information that will explain the necessity for its passage. (see some ideas below)
  4. Ask for them to get back with you after they have read the bill and looked at the information to let you know where they stand on the issue.
  5. If you don’t hear from them in a week call back and let them know that you would like to know what their position is.
  1.  You might ask if you could set up a meeting to make a presentation.  Have documents, websites, videos and other activist friends available.
  2. The more of us who contact the legislators, even if it’s the same legislator, the greater our impact will be.

Not everyone is expected to use the same method for persuading their legislators.   In fact it’s far better that we each use our own individual ingenuity for turning this bill into law, with the above points as a guide.

We could not have a more highly qualified group of well-informed, passionate activists, all very capable of presenting the need to pass this legislation.  The bill is intended to be rallying point around which we can all now focus our attention as it will unite us as one mass movement to secure our rights.

Please distribute the bill widely and spread the word that we will persist until we once again secure the blessings of life, privacy, liberty, safety, health, property rights  and freedom.

In tribute to all our thousands of smart meter activists,

David Lonier, Chairman,
Ad Hoc Smart Meter Bill Drafting Committee

David Sheldon, Dan Childs, Linda Kurtz, Richard Meltzer

Here are the bills (House and Senate versions. Download these .pdf files to your own hard drive, then attach to email you send your legislative rep, after first contacting him or her by phone)

Utility Meter Freedom of Choice Bill, House
Utility Meter Freedom of Choice Bill, Senate

Ideas for information to share with your legislators:

Websites (if links don’t work in your browser, copy and paste the actual web address into your browser, deleting the quotation marks)

Michigan Stop Smart Meters   (or)
“michiganstopsmartmeters.com”

Smart Meter Education Network (or)
“smartmetereducationnetwork.com”

Warriors for the American Revolution (or)
“www.w4ar.com/smart-meter-home-page.html”

One if By Land (or)
“oneifbyland.org/Smart-Meters.html”

 

4 ½ Minute Introduction to Smart Meters by Jerry Day

And whatever else you may wish to include, based on the tons of health, safety and privacy info. related to smart meters.

 

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?

 

 

Link

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

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

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

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

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

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

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

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

 

Link

Michigan Smart Meter Appeal Hearing

Court of Appeals RotundaMark Your Calendar! The long awaited appeals of the DTE smart meter opt-out plan will be heard by the Court of Appeals in Lansing on January 13th, 2015 at 10 AM! It is important that we have as many as possible attend!

 Two appeals were filed June 14th, 2013 of the DTE opt-out plan approved by the Michigan Public Service Commission. Dissatisfaction with this opt-out plan focused on two primary issues:

a) the plan did not allow anyone to keep (or get back) their analog electric meter, and

b) the plan requires payment of extortionate “opt-out fees” which will prevent many from opting out and are only likely to be increased in future years.

Analog electric meters are the only kind that is accepted by most smart meter protesters. The reasons are that they cannot invade privacy by tracking household behavior minute by minute, because they do not emit microwave radiation and because they do not put low frequency “dirty electricity” on home wiring. DTE would have us believe that they are addressing our concerns by offering a “non-transmitting” smart meter as the opt-out meter. They are NOT. Two appeals were filed on June 14th, 2013 to try to overturn the May 15th, 2013 decision of the Michigan Public Service Commission (MPSC) that approved DTE’s “opt-out” program. These appeals have taken 19 months to reach the point where they can be heard and decided. They are:

The Edwards/Kurtz/Panzica appeal – issues as follows:

  • The MPSC effectively did mandate smart meters by its opt-out decision and lacked statutory authority to make such a mandate.
  • The opt-out decision cannot stand because there was no consideration of what benefits, if any, the so called opt-out meters provide the opt-out customers in exchange for the fees being imposed.

For a more detailed discussion of the issues raised by this appeal see the discussion at: http://smartmetereducationnetwork.com/optout-status-appeal-mpsc-decision.php.

The Dominic and Lillian Cusumano appeal – issues are as follows:

  • The scope of the MPSC hearings of DTE’s opt-out proposal was improperly limited by the administrative judge. No consideration was given to the type of meter to be offered opt-out customers, no attention to privacy concerns and no attention to the fact that many opt-out customers would be paying fees just to maintain the health they had before smart meters were deployed.
  • The administrative judge incorrectly applied a doctrine of “managerial prerogatives” to limit the jurisdiction of the MPSC regarding issues profoundly affecting the welfare, health and privacy of utility customers and the public.
  • Issues ruled “beyond the scope” in this case based on the notion they had been addressed in earlier MPSC cases had not, in fact, ever been addressed at all.
  • Appellants were denied the opportunity to establish an evidentiary foundation for their complaint that both the ‘smart meter’ and the ‘non-transmitting’ opt-out meter violate the Fourth Amendment to the U.S. Constitution.

The two above appeals were consolidated into one for hearing purposes.

What will happen at this appeal hearing: A three judge panel will hear oral arguments for and against these appeals. Typically the judges take turns throwing questions out to be answered by the parties. In this case there will be attorneys representing DTE, attorneys representing the MPSC and attorneyKurt Koehler will be representing appellants in the first case (above). The second appeal was brought by the Cusumanos without benefit of an attorney and they will not be eligible to participate in oral argument. They must stand on their written briefs. It is likely however that some argument will be heard about their briefs since judges may wish to question the attorneys for DTE and MPSC with regard to the Cusumano appeal. Sometimes the type of questions judges pose give a clue, which way the judge is leaning. Sometimes not. A good way to get a sense of how this might go is to watch the video of the Maine Supreme Court hearing on smart meters on this website: https://michiganstopsmartmeters.com/2013/03/29/maine-supreme-court-hears-smart-meter-case/

What Are the Possible Outcomes:

1) The court may uphold the decision of the MPSC and deny both appeals.

2) The court may find that the decision was illegal because the MPSC exceeded the authority granted it by the legislature.

3) The court may find that the decision must be reversed because the scope was improperly limited by the MPSC so as to prevent building a record of competent evidence to support the decision. In this case the court would likely remand the case back to the MPSC for a do-over, with specific instructions about issues they must consider and types of evidence they must hear the second time around.

4) The court may find that the decision must be reversed and remanded to MPSC with instruction to consider what benefits, if any, the opt-out plan provides the opt-out customers.

 PLEASE COME AND SUPPORT US! THIS COULD BE A DAY OF VICTORY FOR ALL OF US WHO HAVE RESISTED THESE METERS! YOU WILL BE GLAD YOU WERE THERE TO SEE IT FIRST HAND!!!

Court Address:
2nd Floor, Hall of Justice
925 West Ottawa St.
Lansing, MI

 

Link

By David Sheldon*

July 15th, 2015 Update: The outrageous decision of the Michigan Court of Appeals in the Stenman case (discussed elsewhere on this site in detail) means that, at least until that decision is successfully appealed, or the legislature passes a new law, the law regards the “smart meter” as a lawful meter and the utility customer can have his or her electrical power shut off for refusal to permit its installation, or for resorting to self help in removing a smart meter already installed. It is still possible to challenge the applicability of this law to your self under some conditions. Bear in mind this will not be an easy course. You will be regarded initially as having at least violated the terms on which customers can have electrical service. If you removed a smart meter you may also be accused of “meter tampering.” Either way your power will likely be shut off. You will then have the choice of either giving in to a smart meter installation or the burden of suing the utility to get your power restored. You will then likely be required by a trial court  to either prove that you suffered actual (not hypothetical) damage from either a privacy invasion or from the health effects of a smart meter. These are not things that many customers will be in any position to prove or that any customer should have to prove If you cannot make these proofs your only chance will be to appeal your case all the way up to the Michigan Supreme Court and try to get the doctrine laid down in the Stenman case reversed. In the meanwhile we continue to work for legislation that would reform all this.

—————————————————

 First we must acknowledge that DTE or Consumers ‘smart’ electrical meters, and the question of whether they may be refused or removed by the customer, present a novel situation for which there is no clear or simple answer that may be found in a statute or in the workings of the courts to date. So far there have been 2 test cases of this very issue in the Oakland County Circuit Court. One judge ruled against DTE. The other judge ruled for DTE. Both cases are now on hold pending appeals to the Michigan Court of Appeals. However there are some controlling legal principles that can give us a pretty good idea how the courts will eventually rule.

1) The common law right of any private property owner (residence or business) to control access to his property and to bring a civil tort action for trespass against anyone entering property or taking actions while on the property without permission. This right applies except to the extent the property owner has given an easement or right of access to a utility. But utilities such as DTE or Consumers must be acting within the terms of their easement in order to be exempt from a trespass action.

2) The right of access all Michigan utility customers give utilities, as a condition of receiving electrical service, the right to install a “meter”, to read that “meter” and to inspect it, repair it or replace it as the utility deems necessary. The utility installs a “meter”, which remains the property of the utility, that plugs into the customer’s meter socket. There is a regulation of the Michigan Public Utilities Commission (MPSC) that a customer must give this right of access as a condition for receiving electrical service. There is also an MPSC regulation that permits a utility to shutoff power if denied this access.

3) The word “meter” has a precise legal meaning – both in state law and in the regulations of the MPSC. Both the law and the regulations mentioned above define an electric meter as “a device that measures the integral of the electric power consumed over a time interval (kilowatt hours)”. A utility, therefore, cannot honestly claim that it is merely exercising the rights of access that are a condition for receiving service when it is installing a device which goes way outside the definition established by law. The lawful definition of meter does not include a radio-transmitting device or a surveillance device or a device by which a utility may remotely turn off power to a home or business. A utility is likewise not exercising the rights provided to it by MPSC regulations when it installs in your meter socket a device which actually is a relay station by which the utility can monitor individual appliances within a home or send commands to turn off those individual appliances.

4) The “smart meter” device DTEand Consumers Energy are installing on millions of homes and businesses does not meet the definition of meter. Accordingly we believe that DTE and Consumers Energy do not have a right of access to install such a device on a private home or business. For it to do so without explicit approval from property owners constitutes trespass and we believe could be subject to a civil lawsuit seeking money damages and/or an injunction to prohibit the illegal conduct.

5) The statute that created the Michigan Public Service Commission (MPSC) charged that commission with the responsibility to assure safe delivery of electric power to the public. In the face of enormous evidence from scientists all over the world that smart meters damage the health of the public, the MPSC has so far refused to exercise its responsibility to conduct hearings and take evidence concerning these health complaints.

6) There is also a felony surveillance law passed by the legislature that prohibits the attaching of a “surveillance device” to any home without the homeowner’s knowledge and consent. The term “surveillance” is very broadly defined so that it would clearly encompass tracking detailed electrical activities within the home. There is no exception in this law that would exclude utilities from its scope. The National Institute of Science and Technology has issued a privacy report in which it has labeled smart meters as surveillance devices. The head of the CIA has publicly stated that the government will use smart meters to spy on people. Yet we see no example of any prosecutor bringing felony charges against DTE or its employees for doing precisely what the law forbids.

7) In order for DTE to be able to make the ‘smart’ meter device a condition of service, they would need the MPSC to revise existing regulations that specify what the conditions of service are. The MPSC would have to expand the definition of ‘meter’ so as to encompass the functions of a smart meter. Revising these regulations necessarily must follow the Administrative Procedure Act of 1969, which in turn gives a joint committee of the State House and Senate the power to veto any proposed regulation. The MPSC has not made any effort to get such revised regulations on the books. Instead it has taken the illegal course of declaring that it “will not interfere with a utility’s business practices”, in direct violation of its own charter.

8) In order for DTE to make the ‘smart’ meter device a condition of service, they would also need to persuade the legislature to modify the existing felony surveillance law so that it does not apply to utilities. And they would need to persuade the legislature that there is no need for the MPSC to conduct any hearings on the health issues of the new meters.

9) Even if the MPSC were to change both the surveillance law and the definition of ‘meter’ (with the acquiescence of the joint legislative committee) the new definition would be subject to challenge on Fourth Amendment grounds. Recent decisions of the U.S. Supreme Court make it clear that if a government agent were to attach a ‘smart’ meter to a private home without consent and without a valid search warrant, the high court would view that as a Fourth Amendment violation. In order to apply the Fourth Amendment to the actions of a privately owned utility we must show that the utility is a “state actor” because its actions, specifically with regard to smart meters, are being orchestrated by both the federal and state governments, both of whom will have access to the data these meters collect. Federal and state governments are effectively doing an end run around the warrant requirement of the Amendment by having a private monopoly utility do their dirty work.

10) A regulated public utility in Michigan may not arbitrarily deny service to a customer, except for cause recognized in duly promulgated regulations of the MPSC. Where the utility cuts off power to a customer solely for refusal to accept a “smart meter”, the utility has become an outlaw because the regulations do not empower it to make a smart meter a condition of service. In this situation the customer would have a civil lawsuit for “denial of service” and could seek as damages whatever costs have been sustained by the failure of the utility to provide service as required by law. The customer could also seek a court injunction commanding the utility to restore service.

11) When a utility seeks to force upon its customers installation of a device to be attached to their homes and businesses that is NOT a “meter” as that term is defined in law, and which IS a ‘surveillance device” as that term is defined in law, the utility has violated the terms of service which was laid down by state law and by the MPSC through its duly promulgated regulations. The utility has become an outlaw. The question then becomes this: If the utility will not obey the terms of service established by lawful process, and the agency charged with regulating them will not enforce those terms of service, and prosecutors will not prosecute under the state’s felony surveillance law, what options then remain to the utility customer?

(a) Seek redress by filing a civil suit seeking an injunction to prohibit the illegal conduct complained of.

(b) Defend his or her home in the meanwhile by revoking the utility’s free access to replace the existing analog meter.

(c) In the case where an illegal device has already been installed by the utility, remove the offending device and replace it with a lawful meter.

As noted in the beginning of this article, we are faced with a novel situation where the law is far from clear.  We already have 2 test cases in the circuit courts, one of those on appeal, and will no doubt need to bring other test cases before the law finally becomes settled.  We currently have 5 smart meter cases from the Public Service Commission pending before the Michigan Court of Appeals.

——————————————————————————

* The author is not an attorney but has represented himself successfully in a number of cases in federal and state courts. The reader is encouraged to seek the advice of his own attorney before choosing a course of action.

Link

By David Sheldon*

(Article modified on 12/15/14)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 —————————————————————————————

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