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TWO MORE SMART METER APPEALS
MAY ANSWER THE QUESTION

by David Sheldon
May 31st, 2015

Early in 2015 the Michigan Court of Appeals (MCOA) handed smart meter resisters what can only be regarded as two major setbacks, denying nearly all claims against the DTE “opt-out” plan and the Consumers Energy Justice icons“opt-out” plan. We have analyzed these decisions in earlier articles on this site. Suffice it to say we think that, in the DTE case at least, it is very clear that the three judge panel hearing that case did not follow existing case law and chose instead to make new law to suit the needs of the smart grid political agenda.

Image above courtesy of digitalart.

Early in June we have oral arguments for two more smart meter appeal cases. Since different panels of judges will hear these cases we remain hopeful that we will finally see a just outcome. We are hopeful that this time the Court will finally rule according to the statutes and the existing body of case law. We encourage all of you who can to attend. We would like to pack the courtroom for both of these events. Location details and maps for both events, including parking information, can be found at this link: http://courts.mi.gov/Courts/COA/clerksoffice/Pages/Locations.aspx

 Stenman Appeal
Oral argument Tuesday June 9th at 10 am
Detroit branch of MCOA
3020 West Grand Boulevard
Suite 14-300

Sheldon Appeal
(Two errors corrected below)
Oral argument Wednesday June 10th at 11 am
Lansing branch of MCOA
Hall of Justice
925 West Ottawa Street
2nd Floor

 (1) Stenman Appeal: This case is unique among our cases in that it is the first appeal to be heard of a case that originated in a circuit court. All our other appeals have been cases that originated in the Public Service Commission. The Court of Appeals has much more latitude when reviewing a circuit court case than it does when reviewing the actions of an administrative agency.

For those of you who have changed your own meter, or have a plan to do so or have suffered a disconnection of service, this case is particularly relevant. If this appeal goes well we may finally have a way to stop DTE from forced installations all over their service territory!

Early in 2012 Ralph and Donna Stenman, of Farmington Hills, pleaded with DTE to remove a smart meter that had caused health problems for Donna, who is a cancer survivor, and was concerned, not only for her immediate symptoms, but also because the World Health Organization had rated in 2012 the type of microwave radiation that cellphones and smart meters produce “a possible carcinogen”. Their pleas to DTE were also based on a smart meter being a hazard for Ralph because the atrial fibrillation in his heart, put him at risk for blood clots and a stroke. The cause of Afib, per WebMD.com, is “rapid, disorganized electrical signals”. Smart meters put out very brief but high energy pulses about every 15 seconds that cause many people to experience irregular heartbeats.

Pleas were first made by letters to DTE – to no avail. In March of 2012, following a method that had been encouraged by Jerry Day and using a modified version of his suggested form, the couple sent DTE a document titled “Affidavit Notice and Demand for Removal of all “Smart Meters”, radiation emitting and surveillance devices.” The document stated that if DTE would not remove the smart meter within 21 days, the couple would do so, replacing it with a “safe and legally compliant meter, rated and calibrated to common metering standards”.

Upon refusal of DTE to remove the offending meter the couple found it necessary to take that action themselves. A licensed electrician was engaged for the job, readings of the smart and analog replacement meter were duly recorded and the smart meter safely shipped back to DTE. The utility responded first with threats and intimidation. Then a letter indicating that power would be disconnected, but ultimately sued the Stenmans instead in the Oakland Circuit Court. Attempts were made to find an attorney for their defense, but every attorney contacted stated that if he took on the case DTE would bankrupt him.

Ultimately the Stenmans found it necessary to represent themselves in court. Michigan Stop Smart Meters was pleased to arrange some assistance for them in the drafting of needed documents. In the fall of 2012 the case was heard by Circuit Judge Rudy Nichols.

The essence of the case was a demand for a “Partial Summary Judgment” which would include an injunction forcing the Stenmans to allow DTE employees back on their property to reinstall a smart meter. The injunction was to be permanent but the judgment would be considered partial only in the sense that a DTE claim against Stenmans for money damages would remain open to possibly be determined by a trial later.

A “Summary Judgment” is a judgment made without allowing for any trial or evidentiary hearing. There are long established legal principles that allow for this type of judgment when there are no material factual issues in controversy and the judgment can be rendered purely as a matter of law, based on facts agreed to by both sides.

We agree with the Stenmans that there were facts that had been explicitly placed in controversy that should render Judge Nichols decision contrary to law. They are:

  • Whether a “smart meter” is actually a lawful device that conforms to the definition of meter in the statute and in the regulations.
  • Whether the “digital meter” then being offered as an alternative would be any more lawful than the smart meter.
  • Whether either a smart or digital meter would threaten the Stenmans privacy. Preliminary evidence was offered in the form of a document authored by the National Institute for Science and Technology (NIST) to establish that smart meters are a threat to customer privacy and that they should only be installed on request of the customer.
  • Whether either a smart or digital meter would threaten the Stenman health. Preliminary evidence was offered in the form of an affidavit from Dr. Donald Hillman, retired MSU professor, relating the story of a little girl whose health had been severely compromised by the installation of a DTE smart meter.

Judge Nichols, in his Order of November 11th 2012, stated that the Hillman affidavit was irrelevant because it described what happened to another family, not what happened to the Stenmans. He ignored the other three arguments entirely, granted DTE’s motion for partial summary judgment and ordered the Stenmans to permit DTE employees to enter their property for the purpose of reinstalling a smart meter.

We agree with the Stenmans that Judge Nichols order was outrageous.

An appeal was filed. Again this had to be done with the Stenmans representing themselves as no attorney could be found willing to take on DTE. Again Michigan Stop Smart Meters was able to arrange some needed assistance in the preparation of an appeal brief and the drafting of other documents.

By agreement of both sides Judge Nichols put a stay on his order pending a decision by the Michigan Public Service Commission (MPSC) regarding an “opt-out tariff” proposed by DTE where the only “opt-out meter” to be provided was a smart meter with one of its two transmitters turned off. In May of 2013 the MPSC approved DTE’s proposal that opt-out customers must pay an initial fee and monthly fees and receive only a “non-transmitting meter”.

Following this DTE moved to have the stay lifted. This might have made the installation of a smart meter follow in short order. Stenmans argued that there was an appeal of the opt-out plan before the Michigan Court of Appeals and other appeals also pending. They brought in letters from their doctors to establish the harm a smart meter would cause them. Mr. Stenmans cardiologist provided a signed letter stating that installation of a smart meter “could lead to a bad outcome” for Mr. Stenman. They brought in evidence that DTE had accommodated other families in their neighborhood with analog meters. Yet Judge Nichols lifted the stay.

As it happened DTE did not enforce the court order. We suspect the company was more interested in the legal precedent this case established than in actually getting a smart meter installed.

As the time for oral argument began to draw near the Stenmans were finally able to find an attorney to file a reply brief and take on the job of oral argument.

Those interested in more details on this case will find the most important documents and briefs here: https://michiganstopsmartmeters.com/the-stenman-case/

It has taken nearly two years, including an initial period where both sides filed briefs, for this appeal to reach the stage where oral argument will be heard.

Please come and show, not only your support for the Stenmans, but your support for the principle that nobody should be forced to have a health damaging surveillance device on their home. Pack the courtroom in downtown Detroit on Tuesday, June 9th.

(2) Sheldon Appeal: This case, while originating in the MPSC, is also unique in that it is the first case in which the Court of Appeals (MCOA) is being asked to hold the MPSC in contempt of court for failing to carry out a previous order of MCOA. It is also the only case to reach MCOA where the overall funding of smart meters in DTE’s service territory is called into question.

This is the case for those of you who have been appalled that the MPSC, without ever holding an evidentiary hearing on the privacy or health implications, would give DTE permission to charge back the costs of 2.4 million smart meters to its customers!

Some of you may recall that in April of 2012 the Court of Appeals issued a decision remanding the case that allowed this funding back to the MPSC for a redo. That appeal had been brought by ABATE (an association of large business users of electricity) and by then Attorney General Cox. In the remand order to the MPSC the court directed as follows:

“… we remand this matter for the PSC to conduct a full hearing on the AMI program, during which it shall consider, among other relevant matters, evidence related to the benefits, usefulness, and potential burdens of the AMI, specific information gleaned from pilot phases of the program regarding costs, operations, and customer response and impact, an assessment of similar programs initiated here or in other states, risks associated with AMI, and projected effects on rates. In other words, a real record, with solid evidence, should support whatever decision the PSC makes upon remand. “ (Emphasis added)

This order went beyond what the appellants had asked of the court. Does it sound like the Court of Appeals was instructing the MPSC to just consider the rates that utility customers would have to pay to fund smart meters? Incredibly that is all the MPSC did, in complete defiance of the court’s order. Not only that but four smart meter resisters who wanted to participate as interveners in the reopened case were denied that right – mainly on the basis that we wanted to raise issues having to do with the risks of AMI technology which the administrative judge said were “beyond the scope” of the remand proceeding. I was one of those who tried to participate and was shut out. The others were Linda Kurtz and Dominic and Lillian Cusumano. Three of us then protested the decision of the administrative judge to the Commission and were denied again.

On October 17th 2013 the Commission issued its final decision in the reopened case. To nobody’s surprise they only re-justified the decision they had made the first time around. With no new kinds of evidence being allowed, how could the outcome be any different the second time? Michigan’s current Attorney General Bill Schuette did not appeal this decision nor did ABATE.

On November 16th 2013 David Sheldon did appeal that MPSC decision. He asked the appeals court to find that MPSC should be held in contempt of court for failing to carry out the court’s previous order, and that the case should again be sent back to MPSC for another redo – but this time allowing for the scope of the case to include the health, privacy and safety issues, and allowing new interveners to join the case and introduce evidence concerning the issues that had previously been neglected.

The issues that will be argued in this case are:

  • That it was wrong of MPSC to limit the scope of the case to just determining the amount of cost recovery for DTE on this investment and thereby denying the opportunity for anyone to introduce evidence regarding health, privacy and safety issues.
  • That it was wrong for MPSC to exclude the very interveners in the remanded case who would raise the issues the Court of Appeals required MPSC to address.
  • That even if the MPSC’s authority be limited to setting rates (as some have argued) the Commission could still have used that rate setting authority to deny rate recovery of smart meter costs after a finding that the technology harms the customers and the public. Denial of rate recovery would almost certainly have meant no smart meter program in Michigan.
  • Moreover the MPSC had jurisdiction from the legislature to directly order DTE to correct health and privacy abuses when acting in response to written complaints. And there were written complaints from 35 city and county governments and from over 400 utility customers.

As with the Stenman case, it has taken nearly two years, including the time for filing briefs, for this case to reach the stage of oral argument.

Please come and show your support for a case that seeks to have MPSC “held in contempt” for its dereliction of duty in approving the entire smart meter program without hearing the evidence. Pack the courtroom in Lansing on Wednesday June 10th.

 

 

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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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Michigan_state_capitol
DON’T MISS THIS!!!

Tuesday,
December 2nd, 2014.

Smart Meter Hearing before the House Oversight Committee. Other events planned for earlier in the day.

If you can attend only the hearing come at 3 pm to Room 519 in the Anderson House Office Buildingat 124 North Capitol Avenue (across the street from the Capitol Building). Come to speak or come just to show your support! This will be an opportunity for all of us who have concerns about smart electric meters to come and have our say before a legislative committee.

It is also an opportunity to submit evidence or documents for consideration by the Committee.  Be sure to bring 30 copies of anything you plan to submit. Your presence at the hearing will help to show the legislators that there is strong support for our positions.  If possible wear something red (or wear a red ribbon that will be available at the door).  This hearing will be videotaped and may be up on the Committee website later.

This Committee is chaired by Rep Tom McMillin. It can only begin its hearing after the House session (across the street) ends. So actual starting time could be anywhere from 3 pm to 5 pm.  Upon arrival, check in with guard.  If the hearing room is not yet open when you arrive, congregate with others in the lobby on the main floor until the room opens. It is most important that we have as many as possible – particularly during the first hour of the hearing when news media will be present.

Tom has assured us that this hearing will run as long as necessary to give every person a chance to speak for the record!  Hearing may run late into the evening.

We particularly want your testimony on the record if you have been made ill by a smart meter, can no longer sleep in your own bed, had your power shutoff or been threatened with shutoff of your power for refusing to take a smart meter. Your input also needed if you have sought redress for any of these grievances from the Public Service Commission and been denied their help! The Chairman of the Public Service Commission has been invited as have representatives from DTE and Consumers Energy. We are hopeful that large numbers of you will come and make your voices heard!  If you have doctor’s letters or other written evidence you want submitted to the record, please be sure to bring 15 copies 30 copies for submission to the Committee.

The Purpose of this Hearing: Everyone should understand that the McMillin smart meter bill is still stuck in the House Energy Committee and will almost certainly die at the end of the year. This hearing, on the other hand, will be about establishing a record of evidence concerning the smart meter issues and the failure of the Public Service Commission in addressing those issues.  It has at least the possibility of leading to bills to be introduced in the next session of the legislature beginning in January. It is also a good opportunity for us to get our concerns reported by the press.

Official Things To Bring (30 copies of each for Committee):
Doctor’s letters
DTE shut off notices or threatening notices
Records of calls or threatening phone calls
Records of encounters with DTE
Anything you have to tell your story or substantiate your claims
Letters or literature for house representative and senators

Other Activities Planned for That Day: If you are planning on coming for the hearing you may also want to come earlier in the day and join us for other protest activity planned by Pam Wallace and Dee Hilbert.  If you come at noon that day you can join us for a demonstration in front of the Capitol building.  The Capitol building is at 110 South Capitol Avenue (at the corner of Capitol Ave and Michigan Ave) Please bring a sign and wear warm clothing. In the morning some of us will be in the Senate lobby having our Senator called out of session by the Sergeant at Arms to talk with us about smart meter legislation.  In the early afternoon some of us will be in the House lobby having our Representative called out of session by the Sergeant at Arms to talk about smart meters.

RSVP: Please help Pam and Dee by sending an RSVP to them to let them know you will be attending the event/hearing, if you plan to testify and how many people you plan to have with you.- thank you. pamandandy22@yahoo.com or kipdee@wowway.com

If you plan to join us for the full day of activities please be sure to bring water, food and a snack. Tom has arranged for us to have Room 426 in the Capitol building to gather during the day. The room will allow us to rest, warm up and visit during our time at the Capitol. Here is the schedule for those who will be with us all day:

9:30:  meet in Lansing at the state capital. Check in with guard who will direct you to Room 426 reserved for us by Rep Tom McMillin.
10:00: smart meter rally at the state capital with themed signs and information to pass out to senators as they enter the capital for session.
10:00-12:15: pull out your senator from session to share your concerns about smart meters and request help and protective legislation.
12:15 meet at Room 426 in Capitol building.
12:30: smart meter rally at the state capital with themed signs and information to pass out to our state representatives as they enter the capital for session.
12:30-3:00: pull out your state representative from session to share your concerns about smart meters and request help and protective legislation.
3:00/4:45 and on: smart meter hearing will be held at the Anderson House office building (directly across from the capital) in Room 519. The hearing will begin right after the house session and the start time will range anytime from 3:00-4:45.
If you plan to take part in these activities all day it will be important to bring water, food and a snack.  Also bring a sign to carry for our outdoor demonstrations.
Themes And Messages
Our themes for our rally signs and for our talks with legislators are:
I Am Sick Because Of My Smart Meter
Smart Meters Are Making People Sick
Smart Meters Cause Fires
Oregon, Washington, Maine and Vermont Have Analog Opt- Outs- Michigan Wants An Analog Opt-Out Too!
I Am Living Without Power-DTE Shut My Power Off
DTE Is Threatening To Shut Off My Power
I Had To Leave My Home Due To A Smart Meter
What Are You Going To Do To Help Us?
When Are You Going To Help Us?
Smart Meters Are An Invasion Of Privacy
The World Heath Organization Has Classified Smart Meter Radiation As a Type 2 Carcinogen. They Are Not Safe.

Capitol overview

 

Directions to Capitol from Detroit area:  Take I 96 to I 496 West, then exit 7A service drive to right turn on Grand Ave (headed north 1-way) to left turn on Ottawa (headed west 1-way) to left turn on Walnut Street (headed south) to left turn on Allegan Street (headed east 1-way) to parking structure on Allegan street. You will be right next to Capitol and 1 block from the Anderson House Office Building.

Capitol detail

 

 

 

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Michigan_state_capitol

Revised 11/16 to add critical location information.

November 15th, 2014 – Finally, a committee of the Michigan legislature will hear our smart meter protests!  On Tuesday December 2nd the General Oversight Committee of the Michigan House of Representatives will listen to our grievances concerning DTE and Consumers smart meters and how we have been treated when we sought help for these concerns from the Michigan Public Service Commission. Come and plan to speak for 3-5 minutes before the Committee, chaired by Tom McMillin.  The hearing will take place in the Anderson House Office Building at 124 North Capitol Avenue (directly across the street from the Capitol building).  Ask the guard in the lobby to direct you to the appropriate floor and room number for the House Oversight Committee meeting. The hearing will begin sometime between 3 pm and 4:45 pm, depending on when the legislative session ends.  Tom has assured us that this hearing will run as long as necessary to give every person a chance to speak for the record!  Hearing may run late into the evening.

We particularly want your testimony on the record if you have been made ill by a smart meter, can no longer sleep in your own bed, had your power shutoff or been threatened with shutoff of your power for refusing to take a smart meter. Your input also needed if you have sought redress for any of these grievances from the Public Service Commission and been denied their help! The Chairman of the Public Service Commission has been invited as have representatives from DTE and Consumers Energy. We are hopeful that large numbers of you will come and make your voices heard!  If you have doctor’s letters or other written evidence you want submitted to the record, please be sure to bring 15 copies 30 copies for submission to the Committee.

The Purpose of this Hearing: Everyone should understand that the McMillin smart meter bill is still stuck in the House Energy Committee and will almost certainly die at the end of the year. This hearing, on the other hand, will be about establishing a record of evidence concerning the smart meter issues and the failure of the Public Service Commission in addressing those issues.  It has at least the possibility of leading to bills to be introduced in the next session of the legislature beginning in January. It is also a good opportunity for us to get our concerns reported by the press.

Other Activities Planned for That Day: If you are planning on coming for the hearing you may also want to come earlier in the day and join us for other protest activity planned by Pam Wallace and Dee Hilbert.  If you come at noon that day you can join us for a demonstration in front of the Capitol building.  The Capitol building is at 110 South Capitol Avenue (at the corner of Capitol Ave and Michigan Ave) Please bring a sign and wear warm clothing. In the morning some of us will be in the Senate lobby having our Senator called out of session by the Sergeant at Arms to talk with us about smart meter legislation.  In the early afternoon some of us will be in the House lobby having our Representative called out of session by the Sergeant at Arms to talk about smart meters. If you plan to join us for the full day of activities please be sure to bring water, food and a snack. Tom is arranging for us to have a room in the Capitol building to gather during the day. The room will allow us to rest, warm up and visit during our time at the Capitol.

Here are some themes that should be stressed in conversations with legislators or on signs:

I Am Sick Because Of My Smart Meter
Smart Meters Are Making People Sick
My House Started On Fire Due To A Smart Meter
Smart Meters Cause Fires
Oregon, Washington, Maine and Vermont Have Analog Opt- Outs- 
      Michigan Wants An Analog Opt-Out Too!
I Am Living Without Power-DTE Shut My Power Off
DTE Is Threatening To Shut Off My Power
I Had To Leave My Home Due To A Smart Meter
What Are You Going To Do To Help Us?
When Are You Going To Help Us?
Smart Meters Are An Invasion Of Privacy
The World Heath Organization Has Classified
Smart Meter Radiation As a Type 2 Carcinogen. They Are Not Safe
.


RSVP: Please help Pam and Dee by sending an RSVP to them to let them know you will be attending the event/hearing, if you plan to testify and how many people you plan to have with you.- thank you. pamandandy22@yahoo.com or kipdee@wowway.com

Car Pooling: Since there is but a short time to organize this event, it would be most helpful if you could provide your own transportation and/or make arrangements to carpool with others who are attending. We know for some this can be difficult and we do not want transportation to hold you back from attending this event. If transportation is a problem for you, please contact Pam or Dee and they will do their best to arrange transportation for you. pamandandy22@yahoo.com or kipdee@wowway.com

 

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November 7th, 2012 Update – At the hearing today the judge came very close to dismissing the entire case Detroit Edison had brought against the Addison Township couple for changing their own meter.  She suggested the possibility of a dismissal of the DTE case “without prejudice” that would leave the door open for Detroit Edison to refile its complaint in 6 months if they still felt that other developments (in the MPSC opt-out case) had not resolved the issue.  The DTE attorney would not agree to this plan and the couple did not want a 6 month stay because they have no expectation that the MPSC case is going to resolve this dispute.  In the end the judge decided to give Detroit Edison another month, until December 5th, to come up with a meter that would be acceptable to the couple and to resume normal meter reading practices.  We now think there is a fair chance Detroit Edison will offer to put an analog meter back on the house as an interim solution, in order to avoid the jury trial the couple asked for, until the MPSC completes its opt-out case and enacts an opt-out plan.  The earliest that could happen would be next May, though it could be much later if there is an appeal of the MPSC decision.  If Detroit Edison shows no inclination to compromise then the Court, on December 5th, will likely order the case to proceed to trial.

November 7th, 2012, 10 am – Detroit Edison Smart Meter Case Coming to a Head – On this day there will be what is called a “Motion Hearing” in the case of Detroit Edison versus the couple from Addison Township, in the courtroom of Oakland Circuit Judge Shalina Kumar.   

This hearing will likely determine whether or not the case will proceed to trial next March.   The case was brought by the utility because the couple replaced what DTE is pleased to call a ‘smart meter’  with an analog meter.  This they did because, they maintain, the device was both harmful and illegal, and they had exhausted all other remedies.  At this hearing there will be four motions, three brought by the couple against Detroit Edison, and one by Detroit Edison seeking what amounts to a ‘time-out’ of the entire case.  Here are the motions the judge is expected to hear and rule on:

(1)  Motion for Summary Dismissal – In this one the couple are seeking to have Detroit Edison’s entire case thrown out because, they say, the utility never had any legal authority to install ‘smart meters’ on non consenting customers in the first place.  There was, apparently, nothing in the MPSC approved tariff that ever authorized smart meter installation, nor was there any rule lawfully issued under the Commission’s rule-making authority.

(2) Motion to Allow Counter-Claim – In this one the couple is seeking an injunction against the utility to prevent the latter from terminating electrical service to the home for refusal to accept a ‘smart meter’.  An earlier attempt to bring the counter-claim had been denied for highly technical reasons.  The couple is hopeful that this second attempt will prevail.  So far the utility has refrained from carrying out an earlier threat to disconnect power.

(3) Motion for Protective Order on Discovery – In this one the couple has asked the judge to limit the scope of a deposition to proper subject matter and to impose some conditions on the manner in which the deposition can be taken.

(4) Detroit Edison’s Motion for Stay of Proceedings – In this one the utility is asking the court for a time-out until next May in order that any decision made by the MPSC in the opt-out fee case can be considered, at least in part, as a basis for deciding this case.  The couple will be opposing this stay in the belief that, whatever the outcome in the MPSC case, this case should be decided on its own merits and sooner rather than later.

Persons who would like to follow this case are encouraged to attend the hearing.  We would also welcome comments from our readers in the “Comments” window below.

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by Vigilant Dave

August 24th, 2012 – The Michigan Public Service Commission recently opened up a new docket No. U-17053 for the announced purpose of hearing evidence and public comment on Detroit Edison’s proposal to charge fees for opting out of smart meters.  I am seeing a flurry of activity by people who somehow feel they can make a difference by giving up their time to travel to Lansing to express their opinions in this matter.

The Detroit Edison proposal was that those opting out of smart meters would be charged $86 up front plus $15/month indefinitely – or until next year when fees might be still further increased.  Also Detroit Edison has proposed that people opting out and paying these extortionate fees only be allowed a smart meter with the radio turned off.  Nobody is to be allowed to keep or get back their analog meter.  Most of us who have studied these matters consider the Detroit Edison proposal unacceptable.  It is not acceptable to make people pay fees to avoid a known harm to their health or to make them pay fees to exercise their Fourth Amendment rights to privacy.  To add insult to injury the alternative meter still invades privacy and still endangers health by putting dirty electricity on home wiring.

I would remind our readers that we are talking about a state regulatory agency that has already ignored over 400 passionate and, in many cases, very well written pleas that smart meters violate our rights and are unacceptable.  We are talking also of an agency that has brazenly ignored the pleas of 24 city governments, most of whom called upon that agency to at least put a temporary halt on further smart meter installations until a proper investigation could be completed.

We are talking about an agency that refused to halt the installations and that on June 29th, without holding any hearings, issued a staff report saying that health effects are “negligible” despite mountains of evidence to the contrary.  We are talking about an agency that never addressed the privacy threat at all.  We are talking about an agency that concluded that it was appropriate to make people who have already paid to build the smart meter system pay again to get out of it – in direct contradiction to the conclusion reached by Michigan’s Attorney General and quite a number of our state legislators.

Now we are asked to believe that these hearings, beginning with one on September 10th, are being held so that the Commission can hear our views and hear and evaluate real evidence about the opt-out fee question.  I think it is time someone called this agency for what it is.  The agency has already decided that it is going to approve the Detroit Edison fee proposal – either exactly as written, or perhaps with some minor tweaking.  Perhaps they will knock the monthly fees from $15/month down to $12/month.  That way it will appear that they are working for the public.

What is the real purpose of these hearings under Docket U-17053?  The purpose is precisely in order to create an illusion of due process, so that when the Commission ultimately rubber stamps the DTE proposal their decision will not be highly vulnerable to reversal by the Michigan Court of Appeals, as was their decision to allow smart meter costs to be charged to customers.

All that said, it may still be worthwhile for some of us to travel to Lansing and take part in this charade.  The reason would not be based on any realistic hope that MPSC is going to do the right thing.  The reason would be rather that if we are going to appeal the inevitable bad decision they will make, we need to get some evidence into the record.

The way to get evidence into the record is to register as an “intervener”, then call witnesses to the witness stand under oath, examine those witnesses, and cross-examine any witness that is called to support Detroit Edison.  You do not have to be a lawyer to do this, but some courtroom experience is probably going to be necessary to be effective.  To merely “enter an appearance” so you can express your opinion is probably going to be fruitless – unless all you want is a chance to vent.  The MPSC is not interested in your opinion.

If you wish to be an intervener you need to register with MPSC by September 3rd.   The Notice of Hearing specifies that “Any person wishing to intervene and become a party to the case shall electronically file a petition to intervene with this Commission by September 3, 2012. (Interested persons may elect to file using the traditional paper format.) The proof of service shall indicate service upon Detroit Edison’s attorney, Michael J. Solo, Jr., One Energy Plaza, Detroit, Michigan 48226.”

The other point that needs to be made is that when an appeals court sits in review of an MPSC decision it can only consider those kinds of issues that the MPSC itself had jurisdiction to hear.  The MPSC has no jurisdiction to hear Constitutional issues; therefore an appeals court sitting in review of an MPSC decision would also have no jurisdiction to hear Constitutional issues.

Only a judicial branch court hearing the Constitutional issues as an original case, not an appeals case, would have the power to grant us meaningful relief from the violation of our rights.  That is why I am organizing a lawsuit to be heard in a Michigan Circuit Court where we will raise Fourth Amendment and Takings Clause arguments.  I need people to join with me in that effort.  If you are willing to be a plaintiff, please contact me at (248) 604-7545. 

 

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July 6, 2012 – Two legislators say Michigan Public Service Commission Report still inconclusive on need for ‘smart meters’

State Reps. Paul Opsommer and Tom McMillin today announced their disappointment with the results of the Michigan Public Service Commission’s recent report regarding the use of Advanced Metering Infrastructure, also known as “smart meters.”  Both legislators said ratepayers are being forced to pay for devices that have not been shown to save consumers any money, and are not being given an ability to opt out of the controversial program.

“People are being forced to pay for something they don’t want and can’t opt out of,” said Opsommer, R-DeWitt. “I submitted a number of questions to the commission, but none of those concerns were sufficiently addressed by this report. Despite the promises made by the utilities to offer a clear opt-out program, I have yet to hear of a single case of someone getting one removed from their home or being able to send a letter to the utility in advance of installation that is being honored. Something has to change, and change quickly.”

Both legislators said Michigan has a monopolistic-type utilities market and without an opt-out program, people are essentially being left with the choice of accepting the devices or forgoing electricity altogether.  That puts citizens into an unacceptable position of having to try to go completely off-grid or living in a self-imposed blackout.

“After the MPSC’s recent report it’s clear that legislation like mine or Rep. Opsommer’s needs to become law,” McMillin said.  “We must ensure Michigan citizens’ rights are protected and that we don’t allow monopoly utilities to impose on people untested technologies that are connected to security, health and privacy concerns.”

More than 400 public comments were submitted to the commission with questions related to the new meters, ranging from unproven consumer benefits, security concerns over hacking and remote shut-off, safety related issues, and consumer privacy.  Over 20 municipalities have passed resolutions asking for a moratorium on installation of the smart meters until more research is done.  Despite the public outcry in the affected areas there has been no discernible slowdown in the installation rollout.

“We’ve all been reminded recently of the negative impact that even small blackouts can have on our health and economy, yet here we are blindly rushing into statewide installation of devices that security experts agree may create more security issues than they solve,” said Opsommer. “I don’t want the next blackout we have to be the result of a terrorist hacking into the remote shut-off systems of our utilities. Why are we rushing into statewide installation and turning consumers’ homes into guinea pigs just so we can quickly spend federal stimulus dollars or impose higher rates?  It makes no sense.”

House Bill 5439 introduced by Opsommer and HB 5411 introduced by McMillin put basic consumer protections into place, require an opt-out, and give municipal moratoriums the force of law.  The bills are currently awaiting a hearing in the House Energy and Technology Committee.

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