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Analysis of the Michigan Court of Appeals Decision
May 24th, 2017

by David Sheldon*

(This case illustrates the difficulties of fighting a utility in court over smart meters, particularly when there is
perceived to be judicial bias in our courts in favor of
large corporations. It is presented at this time in view
of the recent decision of the U.S. Supreme Court not to hear this case and to underscore the necessity for our present efforts to secure legislation to protect utility customers.)

NATURE OF THE APPEAL: The defendant’s in this case, Ralph and Donna Stenman, having experienced some health symptoms from installation of a DTE smart meter, and concerned about further damage to their health and loss of privacy, strenuously objected to the installation of the smart meter, asking for return of their analog meter. When DTE ignored their pleas, the couple went ahead and replaced the smart meter with an analog meter they had purchased. DTE brought suit against them, asking the Oakland County Circuit Court for a “summary judgment” against the couple. A court can legally make a summary judgment when there are ‘no material issues of fact’ that might require a trial to resolve.

The Stenmans interviewed several attorneys and were unable to find one willing to take on DTE. Accordingly they represented themselves in the original proceeding. They requested a jury trial. Circuit Judge Rudy Nichols granted the summary judgment, so that the Stenmans were denied any kind of trial or opportunity to develop their defense. An appeal was taken to the Michigan Court of Appeals, File No 321203, over the fact they had been denied a trial. The Stenmans again filed their own appellate brief. A reply brief and oral argument were presented for them by attorney Robert Igrasin. The appeals court, judges Patrick M. Meter, Mark J. Cavanagh and Kurtis T. Wilder, issued an opinion and order in favor of DTE on July 14th, 2015 and awarded DTE its costs and decided to publish their decision, which is now in all the law libraries as a precedent for similar cases in the future.

(1) STENMAN ARGUMENT ON METER DEFINITION – DISMISSED:

The Opinion of the Court: “In the trial court and on appeal, defendants assert that a “meter” installed by a regulated public utility may only perform the functions that it is authorized by law to perform, arguing that the smart meter installed by plaintiff violated the “lawful definition of meter’ ” because it was capable of performing functions other than measuring electricity use. However, based on the plain language of the definition of “meter” in R 460.3102(g), there is no indication that electricity-measuring devices that have radio transmitters or other additional capabilities do not constitute “meters.” … The mere fact that the definition does not expressly state that a meter with a radio transmitter still constitutes a meter does not indicate that a meter with such a feature is not included under the definition. … Accordingly, we conclude that reasonable minds could not differ in finding that the smart meter installed by plaintiff qualified as a “meter.”7

Comment: The Court is saying, in effect, that the definition of ‘meter’ that is in the statute does not preclude the forced installation of any device by a monopoly utility so long as that device is called a ‘meter’ and actually does, among other things, measure electricity consumed. There is, therefore, potentially no limit on what could be forcibly installed on a private home.

(2) STENMAN ARGUMENT THAT SMART METERS WERE NEVER AUTHORIZED AS A CONDITION FOR RECEIVING ELECTRICAL SERVICE – DISMISSED:

The Opinion of the Court: “First, there was no genuine issue of material fact regarding whether the smart meter installed by plaintiff was lawful under the definition of “meter” applicable to the relevant administrative rules and tariff. Plaintiff is a public utility that is regulated by the MPSC. With regard to the regulation of public utilities, MCL 460.6(1) provides:

“The [MPSC] is vested with complete power and jurisdiction to regulate all public utilities in the state except a municipally owned utility, the owner of a renewable resource power production facility as provided in [MCL460.6d], and except as otherwise restricted by law. The [MPSC] is vested with the power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of public utilities. The [MPSC] is further granted the power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of public utilities, including electric light and power companies, whether private, corporate, or cooperative . . . . [Emphasis added.]”

Comment: The court is arguing, in effect, that smart meters are legal as a mandatory condition for receiving electrical service because the MPSC made them so. But the panel in this case is conveniently ignoring a ruling of a different panel of the same appeals court, on February 19th, 2015, only five months earlier. In the earlier (unpublished) case, File No. 316728, consolidated appellants Kurtz, Edwards and Cusumano had argued that MPSC had erred in authorizing a type of smart meter “opt-out meter” that did not address public concerns about privacy and health. Appellants in that case had argued the MPSC had erred in authorizing this opt-out meter without allowing any evidence to be admitted concerning privacy and health issues. This was the court’s answer to that:

PSC has only the authority granted to it by statute. The PSC has broad authority to regulate rates for public utilities, but that authority does not include the power to make management decisions for utilities. … Apellants correctly point out that the PSC has no statutory authority to enable DTE to require all customers to accept an AMI meter, even if some customers choose to opt-out of the AMI program. However, no such statute exists because the decision regarding what type of equipment to deploy can only be described as a management prerogative.”

It seems to this writer that the Michigan Court of Appeals cannot have it both ways. If the earlier panel was correct that the MPSC had no jurisdiction over meter type and hence no obligation to allow evidence on privacy or health issues before approving DTE’s “opt-out” program, then the Stenman court cannot also be correct in ruling that DTE’s meter had been established as a lawful condition for receiving electrical service. Yet the Stenman court made no reference to the earlier decision, even though one of its judges had also been on the earlier panel. When one panel of the Michigan Court of Appeals overrules an earlier panel on an issue, there is a procedure for resolving the disagreement – a procedure not followed in this case.

(3) STENMAN OBJECTIONS BASED ON PRIVACY & HEALTH – DISMISSED:

Opinion of the Court: “Second, the trial court properly concluded that defendants failed to demonstrate a genuine issue of material fact as to whether their privacy and health-related concerns constituted valid affirmative defenses that excused or justified their actions related to the smart meter … In the trial court, defendants failed to provide any authority (emphasis added) in support of their claim that their privacy and health-related concerns constituted valid affirmative defenses to their violations of the relevant statutes, regulations, and tariff. … “

Comment: The Court is saying, in effect, that it is not enough for a home owner to present evidence that a utility’s actions are in fact endangering privacy or health, but that these defendants, who were without an attorney in the original court, must also cite prior court precedents where it had previously been established that privacy or health concerns could be a valid reason for opposing a utility installation. This despite the fact that the utility (plaintiff) had not cited any court precedent that privacy and health concerns were NOT a valid basis for objecting to an installation. Nor did this court cite any precedent to establish that privacy or health concerns were irrelevant to a utility installation. Where there is no precedent for a legal principle a case is generally termed a “case of first impression” and does call for analysis, but none was done by this court.

“Furthermore, even if we assume, arguendo, that defendants’ privacy or health-related concerns constitute valid defenses to their failure to comply with the relevant rules and tariff provisions, defendants failed to establish the factual bases of those defenses. “ The party asserting an affirmative defense has the burden of presenting evidence to support it.” …

“In support of their privacy defense, defendants proffered a report prepared by the National Institute of Standards and Technology entitled Guidelines for Smart Grid Cyber Security: Vol. 2, Privacy and the Smart Grid (NISTIR 7628) (August 2010). Even assuming that this report constituted admissible evidence, see MCR 2.116(G)(6), this document does not demonstrate that the smart meter installed on defendants’ property posed an actual risk to defendants’ privacy; the report generally discussed the possibility of privacy risks related to smart meters and provided recommendations for entities participating in a smart grid. …

“In support of their health-related defense, defendants provided the affidavit of Dr. Hillman, discussing the health of a three–year -old child not involved in the instant case. The affidavit does not establish that the smart meter installed at defendants’ home operated in a similar fashion, emitted the same level of “electricity [that] permeat[ed] the house,” or caused similar health effects , and thus fails to be competent evidence that the smart meter installed on defendants’ property posed a risk to defendants’ health. Again, considering the evidence that was before the trial court, we conclude that reasonable minds could not differ in holding that defendants failed to provide a factual basis for their privacy and health -related defenses and, as a result, failed to demonstrate that a genuine issue of material fact exists with regard to the viability of those defenses.

Comment: The court is saying that it is never enough to show proof that a thing has harmed others or is generally acknowledged by experts to cause a risk of harm wherever installed. The court is saying that the Stenmans must wait until their health has actually been damaged or their private information has actually been sold to third parties before they can legally object to an installation (of a device never authorized by any statute and never mandated as a condition of service by our own MPSC)

(4) STENMAN OBJECTIONS BASED ON FOURTH AMENDMENT – DISMISSED:

Opinion of the Court: “Finally, defendants argue that plaintiff’s installation of a smart meter on their home constituted a warrantless search in violation of the Fourth Amendment. We disagree. … The United States and Michigan Constitutions guarantee every person’s right to be free from unreasonable searches. US Const, Am IV; Const 1963, art 1, § 11. However, in order for Fourth Amendment protections to apply, the government must perform a search. “[T]he Fourth Amendment proscribes only government action and is not applicable to a search or seizure, even an unreasonable one, conducted by a private person not acting as an agent of the government or with the participation or knowledge of any government official.” … defendants have failed to establish that plaintiff’s installation of smart meters constitutes governmental action for Fourth Amendment purposes. Even if the state and federal governments have advocated or incentivized, as a matter of public policy, the use of smart meters, there is no indication that the government controls the operations of plaintiff, an investor-owned electric utility, or that plaintiff acts as an agent of the state or federal governments. Accordingly, we reject defendants’ claim that plaintiff’s installation of a smart meter violated their Fourth Amendment rights.”

Comment: There were ample citations in the Stenman case to situations where the government aided and abetted a private actor to commit an action later held to be a Fourth Amendment violation. In this case the federal government provided 50% of the initial funding for DTE smart meters and the MPSC mandated Michigan utilities to participate in a “Smart Meter Collaborative” to plan for the implementation of smart meters in Michigan. This court simply did not want to go there.

SUBSEQUENT ACTIONS: Application was made for the Stenmans by attorney Don Keskey to the Michigan Supreme Court to hear an appeal, and that application denied on March 8, 2016. Application was made, also by Don Keskey, to the U.S. Supreme Court for a Writ of Certiorari and denied by that court on May 4, 2017.

The legal brief filed by the Stenmans can be found HERE.

 The decision of the Michigan Court of Appeals on this case can be found HERE.

 The conflicting decision of the Michigan Court of Appeals on the earlier, Kurtz, Edwards and Cusumano consolidated appeals can be found HERE.

 CONCLUSION: In view of this case, other utility customers wishing to fight their utility in court over a smart meter installation will have a hard road to travel. That doesn’t mean it is impossible, but any future case will need to distinguish itself from this case by rigorous presentation of evidence with the first filing or first response or by the time of a first motion hearing. A case in which actual harm, and not only hypothetical harm, can be shown conclusively, would have a distinct advantage. All that happened in this case also illustrates the importance of securing a legislative solution, as many of us are attempting to do now with Michigan House Bill 4220, sponsored by Representative Gary Glenn with 17 cosponsors.

 Text of the Glenn bill as originally introduced can be found HERE. A subsequent admendment was approved in committee that excluded water utilities from the bill.

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* David Sheldon is not an attorney but has represented himself successfully in both federal and state courts.

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May 19th, 2017 – Smart Circuit Breakers: The Next Frontier of the Grid Edge?

(Editor’s Note: In the linked article, from GreenTech Media, we may be seeing the next phase of the ever increasing intrusiveness of new technology)

Most of the circuit breakers out there are fairly simple, electro-mechanical devices that sit idle the vast majority of the time. But the latest versions are coming with features like wireless connectivity and computing power that are meant to turn them into something more like a smart meter or a smartphone. 

Eaton and EPRI test smart circuit breakers
as virtual meters, load controllers

That’s the idea behind the field trial of Eaton’s energy management circuit breaker (EMCB). Last year, the electrical equipment giant started deploying its smart circuit breakers at about 500 homes with 12 U.S. utilities, including Duke Energy, Southern Company, CenterPoint, ComEd and Pepco. Over the next year, it will be working with the Electric Power Research Institute (EPRI) to see if they’re capable of collecting and sharing data accurately, receiving and sending controls to other smart equipment like thermostats or water heaters, and even shifting homes on and off of grid power during emergencies.  More

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by David Sheldon

February 27th, 2017 – All of us who care about the meter choice issue owe a debt of gratitude to Mark Lerner and the organization he represents, Constitutional Alliance. Mark has given generously of his time and experience in legislative matters to assist us in achieving meter choice legislation. Constitutional Alliance has, as its main issue, a campaign against forced biometrics. One of the central principles of his group is A free society and a surveillance society cannot be reconciled. Biometrics is the linchpin to a surveillance society.”

Forced biometrics involves the Real ID Act, any requirement that people submit to high resolution facial photographs or retina scans for id purposes. These technologies pose an unprecedented threat to human freedom, in a society where there are high resolution cameras on every street corner. Individuals can be tracked with precision and all their movements stored in a central database. The ability of individuals to participate freely in political discourse or protest demonstrations becomes chilled in direct proportion to this breakdown of anonymity.

Mark saw in our smart meter movement issues and positions, particularly those dealing with privacy, freedom from surveillance and property rights, very much in harmony with what those for which his organization stands. Mark regularly works with legislators in many states to resolve issues involving privacy and biometrics. He has worked with us in recent years to help persuade Michigan legislators of the need for meter choice legislation. His efforts, along with our own, have brought us to the point where we have House Bill 4220 being heard by the House Energy Committee and a real shot at getting this legislation passed – at least by the House.

Michigan Stop Smart Meters is and has been from the beginning a non-partisan organization. We are not right or left. We have not so far endorsed any candidate for political office. If we do so in future, we will pick candidates who have helped us in our smart meter fight, regardless of party. Mark has written an excellent commentary on similar principles his organization follows titled My own appreciation for the organizations that work together to protect our freedom” here.

Again, thank you Mark for all you have done!

 

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By James F. Tracy
(Link to original article on Memory Hole website)

Over the past several years a conspiracy of silence has surrounded the implementation of the Smart Grid across the United States, perhaps with Smart grid cartoon imagegood reason. If the public was aware of what lay behind this agenda there would likely be considerable outcry and resistance.

“Smart meters”–the principal nodes of the Smart Grid network–are being installed on homes and businesses by power utilities across the United States under the legal and fiscal direction of the United States government. In December 2007 both houses of the US Congress passed and President George W. Bush signed into law the Energy Independence and Security Act (EISA).

This 310-page piece of legislation employs the dubious science of anthropogenic CO2-based climate change science to mandate an array of policies, such as fuel efficiency standards for vehicles and “green” energy initiatives. Tucked away in the final pages of this law is the description and de facto mandate for national implementation of the Smart Grid that the Bush administration promised …  More

Editor’s note: We have been battling smart meters in Michigan for 4 years now – in the courts, before the Public Service Commission and now in the legislature. To the best of our knowledge, Channel 4 in Detroit (WDIV), has never run a story about there being any problem or controversy surrounding smart meters.

Related Story: ‘Media Blackout on Smart Meter Dangers’ Wins Project Censored Award    More

 

 

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smart-lightsTHEY ARE HERE AND THEY ARE WATCHING!

April 17th, 2015 – (TruthstreamMedia.com) Despite appearances, the “smart” society was never based on saving energy, saving money or saving the environment.

The real aim has been to control the population and conduct absolute surveillance on the larger herd and even every individual.

Thanks to smart phones, smart meters, smart grids, smart TVs, smart cars and smart appliances, the places you go, the people you contact and all the things you interact with are logged, tracked and analyzed by advanced computer algorithms. Thanks to search engines, the technocrats even believe they known what you’re thinking and what you’ll do next.

Now, the “smart” street lights that record conversations and broadcast government propaganda are actually being rolled out on city streets across America. <More>

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FLORIDA ROLLS OUT HIGH TECH ‘SMART’ STREET LIGHTS!

smart-lightsApril 17th, 2015 – (TruthstreamMedia.com) Despite appearances, the “smart” society was never based on saving energy, saving money or saving the environment.

The real aim has been to control the population and conduct absolute surveillance on the larger herd and even every individual.

Thanks to smart phones, smart meters, smart grids, smart TVs, smart cars and smart appliances, the places you go, the people you contact and all the things you interact with are logged, tracked and analyzed by advanced computer algorithms. Thanks to search engines, the technocrats even believe they known what you’re thinking and what you’ll do next.

Now, the “smart” street lights that record conversations and broadcast government propaganda are actually being rolled out on city streets across America. <More>

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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!