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

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

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

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

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

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

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

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

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

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

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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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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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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/

 

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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