By David Sheldon*
Courts rule based on the U.S. and Michigan Constitutions, common law or case law, statutory law and administrative law. The term “civil law” in nations that have a common law system, including United States, Canada and Britain, means that body of law that deals with disputes among citizens as opposed to conflicts between individual citizens and the state, which would be heard under “criminal law” or “probate law”. In much of the rest of the world the term “civil law” has a very different meaning. There it means a codified system of laws that is used instead of common law or case law. This kind of legal system was derived originally from Roman law or Napoleonic law. In the United States this kind of “civil law” exists only in Louisiana.
The term “de jure” only means “according to law”. All cases in our regular court system are heard de jure. To go into an American court demanding that your case be heard “de jure”, as opposed to being “heard under civil law” makes no sense.
The term “administrative law” in Michigan only means that our state legislature has delegated some of its lawmaking powers to an administrative agency, such as the Michigan Public Service Commission (MPSC). But this delegation is not absolute. That agency can only make new rules pursuant to the constraints of the Administrative Procedure Act of 1969. It is important to understand that the MPSC never made any rule mandating smart meters, nor did it ever undertake to determine, by any lawful process, that smart meters were safe. All they ever did was say, in a ratemaking case, that if DTE deployed smart meters they would be entitled to recover those costs by increasing future electric rates. When a state agency attempts to promote an agenda without following proper administrative procedure, the courts will strike down such attempted or rogue rule making.
The key to any successful legal action against a utility is to understand the “tariff”. It is a contract of sorts, except we do not get to negotiate its terms. It is a contract of adherence, meaning the terms have been set by the Michigan Public Service Commission (MPSC) and we either accept those terms in exchange for electric power or we reject those terms and do not receive electric power. The tariff and regulations say that when we sign up for electric service we give them permission to install an electric meter upon our property and to have access to that meter at all reasonable times in order to read it, inspect it, repair it or replace it with another meter at their sole discretion. Their access to the meter on our property is not trespass because we are deemed to have consented to such access.
The situation we face is one in which Michigan utilities, DTE and Consumers Energy, are NOT complying with the terms of the tariff or the terms of duly promulgated regulations of the MPSC. For the tariff and the regulations all refer to a “meter” as that term is defined in the law and regulations. The definition of a meter is very simple and does NOT encompass the computer devices they are now forcing on unwilling homeowners. The law will hold that, when we signed up for electric service, we consented only to the installation and access to a “meter”, not to a computer or radio transmitting device. When challenged in court, the burden will be on the utility to demonstrate that their “smart meter” conforms to the definition of meter in the law. If it does not, they are violating administrative law and there will be no need for us to assume the burden of proving that it damages our health or violates our privacy. When the utility is not protected by administrative law it becomes vulnerable to the law of trespass, a tort under the common law.
The Fourth Amendment protects our right to be secure in our homes against government intrusion except where a search warrant has been obtained from a court. Some will say the Fourth Amendment cannot apply to smart meters because they are being installed by a private utility and not by the government. But the utilities are deploying these devices at the behest of the government, in order to gather data for the government. That makes utilities like DTE and Consumers “state actors” as defined in well-established case law. When a utility is a “state actor” AND is violating our privacy, there is a violation of the Fourth Amendment to the U.S. Constitution and a similar provision in the Michigan Constitution.
There is also the issue that the utilities are violating statutory law, specifically the penal surveillance law MCL 750.539d, which makes the attachment of a surveillance law to a private home without the owner’s knowledge and consent a felony punishable by 2 years in prison for a first offense, 5 years for a repeat offense. Attorney General Bill Schuette, when asked why he is not enforcing this law, argues both that the new meters are not surveillance devices or, alternatively, that if they are surveillance devices it matters not because the utility customer has consented to their installation by signing up for utility service. Both of his arguments are an insult to the intelligence of Michigan utility customers.
The best legal challenge to DTE or Consumers Energy would be to combine all of the above elements of administrative, statutory, common and constitutional law.
This may not be a “silver bullet” but it is very likely a winning strategy.
* The author is not an attorney, but has represented himself successfully in court on many occasions. The reader is encouraged to seek out the advice of his own attorney before choosing a course of action.