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Dr. David O. Carpenter to Testify Against “Smart Meters”
in Utility Rate Case
before
Michigan Public Service Commission.

David_O_Carpenter_from_the_University_at_AlbanyDr. Carpenter’s position is that the current smart meter technology
poses health risks both because of the microwave radiation and
because of the low frequency “dirty electricity” these meters put
on the wiring of homes and businesses.

Cross Examination of Dr. Carpenter
Michigan Public Service Commission
7109 West Saginaw Highway
Lansing, MI

Monday July 6th, 9 AM

Dr. Carpenter is currently Director of the Institute for Health and the Environment, State University of New York at Albany. He has published some 350 papers in peer reviewed journals.

We would like to see as many as possible attend the above
hearing before the administrative judge to show support for
Dr. Carpenter and for the testimony he is providing that will
be so helpful to our cause.

Directions from Detroit area: Follow I-96 from Detroit to Lansing and continue up the west side of Lansing, then exit to Saginaw Highway
and proceed
about 3 blocks east.

If you care about putting the brakes on this harmful technology, consider making a donation of $100, $50, $25 or whatever you
can afford to cover Dr. Carpenter’s travel expenses.

The doctor is, apart from reimbursement of out of pocket expenses, receiving no payment for his testimony. It is costing about $1,000
for air fare and rental car to bring him to this hearing.
This money
has been advanced by
Michigan Stop Smart Meters. Any money
raised
in excess of these travel expenses will go toward our ongoing
legal efforts and toward cost of
travel to put on smart meter
lectures
all over the state.

Please send contributions by check or money order to:

Michigan Stop Smart Meters
215 West Troy #4004
Ferndale, MI 48220

 

 

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Could this Smart ‘Meter’ Case Have Been Won?
by David Sheldon

Many of us have been planning for some time how to bring a really good smart electric “meter” lawsuit against DTE. This would be a case seeking injunctive relief against DTE’s illegal installations, and based on sound legal principles.

LawDuring the week of January 26th, we saw an example of what can happen when a poorly conceived and/or poorly executed lawsuit against a utility gets in court. This article is based on an actual review of the public court documents in the case of Andrea McNinch and Phillip R. Sullivan vs. DTE. It is with some reluctance we tell this story as we remain grateful for all McNinch did in arranging a free showing of the movie “Take Back Your Power” at the Royal Oak Main Theater on December 10th.

Nevertheless, not to report this story would leave an impression on many who are fighting smart “meters” that our cause was dealt a major setback. As reported by the Oakland Press  and Channel 7 News, DTE shut off electric power to Royal Oak resident Andrea McNinch in December over a smart meter issue. She and her husband filed, representing themselves, a lawsuit against the utility in January in Oakland Circuit Court. Her husband was DTE’s customer of record. The suit sought an injunction to require DTE to restore her power. On January 28th the court, following a motion hearing, declined to grant an injunction to plaintiff but did not close the case. A counter claim by DTE is apparently still pending.

Why did this happen? Of course this electric power shut off was, in fact, an injustice to McNinch. The device DTE calls a “smart meter” or “advanced meter” is in fact an electronic device that in no way conforms to the definition of “meter” that is in the statute and in the MPSC regulations. While it has the ability to measure electric consumption for billing purposes it is so much more than that so that we will refer to it as the “smart device”. No law or MPSC regulation has established that a condition for receiving electrical service from DTE is that the customer must accept either a smart device with radio on or a smart device with radio turned off.

There is authority in the law and in the regulations for the installation of a “meter” only. When DTE installed the “smart device” on the McNinch home without customer consent they committed an illegal act. They are getting away with such illegal acts on a massive scale because public officials who know better are “looking the other way”. The refusal of the utility to remove what they had illegally installed led to the necessity for self help.

Confronted with this situation, the utility’s proper and legal response should have been to acknowledge their error and either accept the analog meter McNinch had installed or substitute one of their own. Instead they chose to bully the customer into submitting to the illegal smart device with threats and then an actual shutoff. McNinch requested an informal utility hearing, but neither she nor anyone representing her interests showed up for the hearing. She lost that round by default. Her power was shut off the same day she failed to appear for her hearing.

An informal appeal was next made to the Michigan Public Service Commission (MPSC). McNinch and her husband filed a lawsuit in Oakland Circuit Court seeking an injunction to require DTE to turn the power back on. A staff analyst with MPSC eventually sided with the utility, though there is no date on his decision. It is unclear therefore if his decision came before or after the lawsuit was filed. The only arguments put forward in the suit were that McNinch got headaches from the smart device and from the ‘opt-out’ device and that the utility was wrong to turn off power the same day the no show hearing took place. She argued that, since the written hearing decision did not come out until 4 days later, and there was a 7 day right to appeal, the power should have stayed on at least until the MPSC issued its staff report on the informal appeal.

What is amazing about this lawsuit is that no argument was made that the smart device installation had been illegal or that the device was never actually authorized by any law or MPSC regulation. Nor did McNinch present any explanation as to why DTE’s alternative meter was not an acceptable solution to any health complaints. Nor did she present any evidence from worldwide health experts who have condemned smart ‘meter’ technology. Nor were privacy or Fourth Amendment issues raised in the court filings. She presented no argument as to why she was justified in changing her own meter.

On top of all that DTE’s main argument for immediately disconnecting power without waiting for the hearing officer’s report was that McNinch had created an unsafe situation by changing her own meter. Incredibly no effort was made to rebut this argument.

To win in court you have to present legally admissible evidence AND a legal theory (argument) under which you are entitled to relief under those facts. It is not up to the judge to come up with a legal theory if you fail to state one. The burden is on the plaintiff to make a prima facie case before any real burden is on the defendant. McNinch and her husband did not make a prima facie case. There are risks, of course, in representing yourself without an attorney. There are also risks in being represented by an attorney (if you choose the wrong one).

Why do we analyze this case? When McNinch arranged the showing of the film “Take Back Your Power” she also bore the expense of bringing this film producer to Michigan to meet with us after the film showing. This led to a workshop wherein she and Mr. Del Sol convinced many people they had a winning legal strategy that could be implemented by sending DTE a series of letters. We expressed great skepticism about this approach in an article on this website in December. Our criticism of the legal tactics had to do with the concept of the “self-executing contract”, unsupported assertions and the use of biblical references rather than citations to prior court decisions. When it came time to sue the utility McNinch did not use any part of the “failsafe” legal strategy that she and the film producer had earlier promoted.

When Judge Nanci Grant issued her decision she denied McNinch’s motion for an injunction to restore her power. What the judge did NOT do, so far at any rate, is issue a declaration that changing one’s own meter is, per se, an illegal act as claimed in the Channel 7 news story. Instead she ruled that, in this case, McNinch had not presented facts or arguments sufficient to show that DTE should be compelled to restore her power after she substituted her own meter for theirs. The case is still open and a further ruling is possible.

If we labor all this now it is because we do not want others who might be thinking of a lawsuit against DTE to be in any way discouraged by the outcome in this case. We think that a well prosecuted case based on sound legal theory and verifiable facts has an excellent chance to win. We are just waiting now for just the right plaintiff to appear and we stand ready to provide whatever assistance we can!

 

 

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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

 

Link

(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.

 

Link

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