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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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March 3rd, 2015 – Sterling Heights City Council to Request Legal Opinion from Michigan’s Attorney General.
By unanimous consent of Council, at their February 28th meeting, the city administration has drafted a new smart meter resolution. This one calls for a legal opinion from Michigan’s Attorney General as to whether Sterling Heights, or any home rule city, has the legal power to enact a smart meter ordinance. Councilman Romano made the proposal and gave a full update to Council on the city’s smart meter efforts, beginning with the unenforceable 2012 moratorium. His talk can be viewed in the below video:

Councilman Romano w counter(Click here to bring up the video of entire Council meeting, then fast forward to 2:02:23 to reach beginning of Romano’s statement)

The opinion being requested from the Attorney General asks three questions:

“Whether a Michigan home rule city has the authority to prohibit the installation of Advanced Metering Infrastructure (a/k/a Smart Meters) on residences?”

“Whether a Michigan home rule city has the authority to regulate the installation of Smart Meters to protect residents who prefer to retain their electromechanical meter as an alternative to the non-transmitting Smart Meter available under the utility’s opt-out program?”

“Whether a Michigan home rule city has the authority to prohibit the imposition of a fee for those customers who elect to participate in the Smart Meter op-out program?”

To read the full text of the agenda item and proposed resolution, Sterling Heights – Atty Gen Opinion Requested

This resolution is to be voted on tonight, March 3rd. There is little doubt it will pass since Council was unanimous in requesting that it be drafted and it appears to have full support of the city administration and city attorney.

Apparently a request for such a legal opinion must come from a state legislator, so Rep Henry Yanez, who recently chaired a meeting on smart meters, will be requested to make the formal request to Attorney General Bill Schuette.

If the Attorney General indicates that the city has certain powers to act in this matter, even if those powers are somewhat circumscribed, the city seems ready to pass an ordinance that would afford some protection to residential customers. The opinion will, in all liklihood, determine whether we can get other cities to do the same.

Jackie Ryan, a Sterling Heights resident, has been spearheading the citizen protests in Sterling Heights.

 

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by Vigilant Dave

DTE Electric Company, a wholly owned subsidiary of DTE Energy, on December 19th 2014, filed an application to the Michigan Public Service Commission for what is known as a “general rate case”. In their application they ask for approval to slightly lower electricity rates for some classes of high volume commercial users while substantially raising rates across the board for all classes of residential customers. A typical residential customer would see an increase of $13.70/month if DTE’s application is approved.

DTE argues that commercial users have been subsidizing residential customers and that this imbalance needs to be corrected. They will be submitting some evidence to support this claim. They also indicate that they will introduce evidence concerning progress with smart meter deployments and the experience to date with the smart meter opt-out program. The official notice of hearing on this case may be found here: http://efile.mpsc.state.mi.us/efile/docs/17767/0036.pdf

DTE states that they are not asking for an increase in opt-out fees at this time as they believe such action would be ‘premature’ until there is more data on costs and participation levels. Nevertheless, we cannot rule out the possibility that the Commission will increase opt-out rates based on a possible recommendation from staff.

DTE is asking the Commission to again approve the AMI program as providing benefits to the utility customers substantially in excess of the costs that are being passed on to the customers. They are also asking the Commission to approve expansion of what is known as the “demand side management program”. Stripped of the jargon, what this means is that the company will be more aggressively seeking to control how and when residential customers may use electricity for certain appliances. This is an inevitable outgrowth of smart meters and smart appliances. The company will doubtless argue that the new programs will be ‘voluntary’.

If you would like to have a voice in this case there are two ways to do this:

  • You may simply put in “an appearance” in the case in order to get your comment on the record. This means coming to the “pre-hearing conference” on Thursday, January 29th at 9 am, before Administrative Law Judge (ALJ) Sharon L. Feldman at the Commission’s new address: 7109 West Saginaw Highway, Lansing, Michigan. Upon arrival be sure to put your name on the sign-in sheet to speak so that they will call on you. The ALJ will likely set a time limit, such as 3 minutes or 5 minutes for each person wishing to comment. We hope a very large number of citizens who are upset with this smart meter program will take advantage of this option. There is no cost to do this other than about ½ day of your time.
  • You may choose to become what is called an “intervenor” in the case. This will allow you to take an active part over the weeks and months of hearings, including the submission of written evidence and witnesses, participation in cross-examination of DTE witnesses, and the writing of a brief in which you make arguments based on the evidence and the law as to what decision the Commission should make on DTE’s application.

To become an intervenor you must file a “Petition to Intervene” with the Commission at least 7 days prior to the pre-hearing conference, or by Thursday, January 22nd. This is a course that will require a considerably greater commitment of your time and a willingness to acquire at least some familiarity with the rules of procedure and the rules of evidence.

If you wish to become an intervenor, we can help. Some of us who have been down this road before will lead a workshop to help others if there is sufficient interest. The first step, however, is to read Part II of “Practice and Procedure Before the Commission” at: http://www7.dleg.state.mi.us/orr/Files/AdminCode/934_2009-046LR_AdminCode.pdf. Then read DTE’s application at: http://efile.mpsc.state.mi.us/efile/docs/17767/0001.pdf. Based on these 2 documents, draft your petition to intervene. Your petition can be created as a Word document or pdf document and attached to an email to the Executive Secretary of the Commission. Call me at (248) 604-7545 if you need assistance with creating your petition.

Scope of an Intervention: You can choose to limit your participation to only the smart meter issues OR you could choose to also challenge the across the board rate increase for residential customers. Either way you are going to need to present admissible evidence. But if you choose to challenge the rate increase you are probably going to need to present a witness who can be qualified as an expert on the economics and accounting procedures of the utility industry.

What is the Real Value in Becoming an Intervenor?

The real value is the opportunity to get evidence in the record that will effectively counter DTE’s claims and will, therefore, make it harder for the Commission to simply rubber stamp DTE’s application. If the Commission simply ignores the evidence that intervenors supply, it may become necessary for one or more of us to bring an appeal of the Commission’s final decision to the Michigan Court of Appeals. But first we must get evidence on record, or get on record the fact that our evidence was excluded from the record.

In the wake of the very successful hearing December 2nd public hearing before Tom McMillin’s House Oversight Committee we think the Commission and the ALJ will be more cautious about dismissing intervenors or ignoring their evidence as they have so often done in the past.

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January 14th, 2014: Yesterday about 15 of us attended oral arguments on the DTE ‘opt-out’ program before a 3-judge panel of the Michigan Court of Appeals. We have two appeals before the Court. Cynthia Edwards, LindaHall of Justice - large front view Kurtz and Leslie -Panzica-Gloppa, who are represented by attorney Kurt Koehler, filed the first. The second was filed by Dominic and Lillian Cusumano, representing themselves.

The judges listened passively to prepared statements first by Mr. Koehler, followed by the MPSC attorney and then the DTE attorney. The MPSC attorney spouted all the usual stuff we have seen from them in the past, including quite a number of blatantly false statements. A typical falsehood was that the issues of health and privacy, which they had refused to consider in the opt-out case, had somehow been decided by an earlier case. Another falsehood was that interveners in this case, who sought to raise these issues only as they related to the adequacy of the opt-out meter, were trying to introduce evidence on these points as related to the wisdom of the entire smart grid in Michigan.

The DTE attorney was new to the case and did not seem entirely up to speed on the facts. He stumbled more than once over pronunciation of the name of DTE’s star witness. Finally Mr. Koehler was given a few minutes to rebut, but apparently there wasn’t time enough to rebut all the falsehoods the Court had heard. Almost no questions were asked by the judges, or none, at any rate, that would provide any clue as to which way the judges were leaning. There was no presentation by the Cusumanos who had not requested oral argument.

The passivity of the judges we don’t feel should be taken as any reflection on their opinion of our appeals as we sat through hearings on 4 other cases before ours and they were the same way on all the cases.

At the end the presiding judge indicated that our cases were “submitted” for decision by the Court. Our understanding is that the Court’s decision will likely be mailed to us within 2-3 weeks, though there is nothing definite about that.

If the Court overturns the DTE’ opt-out’ plan, they will most likely remand it back to the Public Service Commission for a do-over with some specific instructions as to what they found lacking in the original hearing that must now be remedied.

For more detail on the issues in these twin appeals please see our earlier article: https://michiganstopsmartmeters.com/2015/01/04/appeals-of-dte-smart-meter-plan-will-be-heard/

 

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LET’S MOBILIZE OUR FORCES

Hall of Justice - large front viewWho Should Come? All of us who are angry about ‘smart’ meters and DTE’s unconscionable threats to turn off power to those of you who have been defending your homes!

What We Will See Tuesday: A hearing in front of a three-judge panel of the Michigan Court of Appeals. The issues are whether DTE’s ‘opt-out’ plan is legal and whether the Public Service Commission (MPSC) did its job properly in evaluating that plan. There will be oral arguments presented by an attorney on our side and by attorneys representing DTE and MPSC. Most interesting will be questions that some of these judges will pose to the attorneys. This may give us an early indication, which way the wind is blowing. For a more detailed discussion of what these appeals are all about see our earlier post: Appeals of DTE Smart Meter ‘Opt-Out’ Will Be Heard!

Just Added: Full brief of the Cusumano Appeal!

Where? The Michigan Hall of Justice, 2nd Floor. This building, shown above, is at 925 West Ottawa Street, in Lansing between Ottawa Street on the north, Allegan Street on the south and Martin Luther King, Jr., Boulevard on the west. It is on the opposite end of the mall from the Capitol Building.

When? Tuesday, January 13th at 10 am. This session of court runs from 10 am until noon. It is likely that other appeals will be heard before ours is called.

Why Should We All Come? This will not be a forum for us all to express our discontents. It is a legal proceeding in a courtroom in which only the named parties may take an active role. But it is important the judges see that there is strong public support for the parties who have brought this case. People watching in courtJudges are supposed to rule strictly according to law, but judges are human. And judges are often feeling pressure from the political establishment and from powerful special interests to uphold policies and programs we find unacceptable. If they look out upon a mostly empty courtroom their courage to buck the establishment may falter. But if they look out upon a courtroom that is jammed with people who CARE about the issue before them, and SUPPORT those who have brought the complaint before the Court, it may make a difference!

Who Has Brought This Issue Before the Court? There are actually two appeals. One was brought by Cynthia Edwards, Linda Kurtz and Leslie Panzica-Gloppa. The other by Dominic and Lillian Cusumano. Both appeals are by people who took part, two years ago before the MPSC, in the so-called DTE ‘opt-out’ case. Both appeals argue that DTE’s ‘opt-out’ plan, as approved by that Commission, is illegal and needs to be retooled so that people have a real CHOICE.

Map, Directions and Parking: The travel time from Detroit is about 1- 1/2 hours. Longer during rush hour or if there are adverse road conditions. Parking can be a challenge for first timers. Much helpful information at this link: http://www.michigan.gov/documents/gtfcj/Directions_to_the_MI_Hall_of_Justice_184038_7.pdf

Appropriate Attire: We have been advised that we will make a better impression if we are conservatively dressed. For the men a suit and tie is recommended. Blue jeans are out!

What Can We Hope For? A decision overturning the DTE ‘Opt-Out’ plan that was approved by the Public Service Commission. The case would then likely be remanded to the MPSC for a do-over, but with specific instructions as to issues that must be considered and evidence that must be heard. The forced installations and threats we are seeing now would stop until a new plan is approved. Alternatively, the Court might uphold the DTE ‘opt-out’ plan, in which case forced installations would continue and we would have to seek a remedy by starting a new action in a trial court.

There is a tentative plan for us all to go out to lunch at a restaurant within walking distance of the Hall of Justice. Meet after hearing in rotunda, outside courtroom.

 SEE YOU THERE!

 

 

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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

 

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(Revised 03/12/15)

NEW: At the end of the legislative session (December 2014) all testimony submitted in 2014 was moved to an archive page. We now have the link to that page: <More>

About 200 people showed up for the December 2nd, 2014 smart meter hearing before the Michigan House Oversight Committee chaired by Tom McMillin.  72 of these filled out cards to speak.  Everyone who spoke, except for the corporate people and MPSC people, was against the new

Laurie Eboff-Milford meters. At least 45 submitted written evidence for the record that may be viewed by the public (see below).

Rep McMillin asked very astute and probing questions when the representatives of DTE, Consumers and MPSC were making their statements. The hearing did not get under way until 5:30 but continued to nearly 10 pm.

Earlier in the day there had been large demonstrations on the Capitol steps and many had participated in having the Sergeant-At-Arms call out their elected representative from the Senate and

Demonstration at state capitolHouse sessions to discuss with them the smart meter issues. Many who participated earlier were not able to attend the hearing due to the late starting time. The total number participating in the day’s events may well have reached 300.

A preliminary transcript of the hearing should be posted on the Committee’s web page soon. Those of us who participated believe this hearing will serve as a catalyst to get a smart meter bill passed in the next legislative session.

Bloomfield Twp Supervisor and Kathy

A  video (youtube) of the entire hearing can be seen now by following the two links below.

Click here for Part 1 (2 hours)

Click here for Part 2 (2 hours)

For your convenience, near the end of Part 1 a link appears on screen that will load Part 2.

NEW: Click here to access the written evidence submitted

The above link will take you to the Oversight Committee page, where you scroll down to where there is a box that says “Testimony” and “Select One”. Clicking on the down arrow next to “Select One” will display a drop down list of all the people that submitted evidence (with the exception of a few folks who submitted evidence that was too massive to scan).  Clicking on a name from this list will display that person’s submitted evidence.

Note also there is a box with a drop down list where you can select and view the minutes for any meeting of this Committee.  At this time, however, only the proposed  minutes of a very short meeting that happened earlier in the day on December 2nd are up for viewing.  We are hopeful that the proposed minutes of the much longer smart meter hearing will be up within the next few days.