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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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May 19th, 2017 – Smart Circuit Breakers: The Next Frontier of the Grid Edge?

(Editor’s Note: In the linked article, from GreenTech Media, we may be seeing the next phase of the ever increasing intrusiveness of new technology)

Most of the circuit breakers out there are fairly simple, electro-mechanical devices that sit idle the vast majority of the time. But the latest versions are coming with features like wireless connectivity and computing power that are meant to turn them into something more like a smart meter or a smartphone. 

Eaton and EPRI test smart circuit breakers
as virtual meters, load controllers

That’s the idea behind the field trial of Eaton’s energy management circuit breaker (EMCB). Last year, the electrical equipment giant started deploying its smart circuit breakers at about 500 homes with 12 U.S. utilities, including Duke Energy, Southern Company, CenterPoint, ComEd and Pepco. Over the next year, it will be working with the Electric Power Research Institute (EPRI) to see if they’re capable of collecting and sharing data accurately, receiving and sending controls to other smart equipment like thermostats or water heaters, and even shifting homes on and off of grid power during emergencies.  More

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Analysis by David Sheldon
(July 19th, 2015)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

 

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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?

 

 

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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