March 22nd, 2013 – What the Naperville Setback Means for Our Michigan Strategy.  Federal judge issues decision, after 14 months of litigation, dismissing all four counts of the Complaint of the Naperville Smart Meter Awareness group and individual plaintiffs against the City of Naperville, Illinois.

The plaintiffs had argued that their rights to due process were being denied by the city, that their Fourth Amendment rights to privacy in the home were being violated, and that their Fifth Amendment rights against arbitrary taking of private property without just compensation were violated, and also had argued for a Federal Civil Rights complaint under Section 1983.  They had, over a year ago, argued for a temporary injunction to prevent the City of Naperville from forcing the installation of smart meters on unwilling homeowners.  The injunction, had it been granted, would have prevented the recent ugly incident where two Naperville women were carted off to jail for resisting smart meter installations on their own homes.  This injunction request was held to be moot in view that the entire lawsuit was being dismissed. 

If the Complaint was without merit, as the judge finally ruled, one wonders why it would take him 14 months to reach this conclusion.  It is true the judge dismissed most of the counts “without prejudice”, meaning that the plaintiffs were granted leave to re file their complaint after correcting what the judge held to be deficiencies.  However the judge gave plaintiff’s only 14 days in which to correct the alleged faults in their complaint.  Since the main deficiency alleged was failure to exhaust remedies in state courts, it is very hard to see how such a fault could be corrected in 14 days. 

Readers are invited to read the judge’s 24 page decision.


What is apparent on reading this decision is the Alice in Wonderland world of federal law that has been created by Congress in passing statutes that grant vast powers to administrative agencies and simultaneously deny jurisdiction to federal courts to hear the most fundamental complaints of injustice, except in narrow areas that Congress carves out where it wants the courts to take an active role.

We earlier indicated that our strategy would be the initiation of a lawsuit against Detroit Edison and the Michigan Public Service Commission in a state trial court.  We believe that this still offers the best hope in light of what happened in Naperville, and also in light of what happened in Maine.

The plaintiffs in Maine had more success than those in Naperville in that they did get the Maine Supreme Court to order their PUC to reopen the smart meter case for a full consideration of privacy, health and safety issues.  However their supreme court also noted that they could not reach the Constitutional issues on an appeal from a PUC decision.  Plaintiffs there were instructed that, to raise such issues, they must initiate a lawsuit in a trial court in that state. Their victory may prove to be only temporary in that the Maine PUC is very likely to reach the same conclusion supporting smart meter deployment and requiring opt-out fees.  Only this time they will be sure to cross their t’s and do everything by the book.

What happened in the Maine Supreme Court may give us some indication of what we can expect when we appeal the decision of the MPSC granting opt-out fees to Detroit Edison and denying the right to keep an analog meter.  We encourage all our readers to watch the video of the Maine Supreme Court oral arguments here.