Winning Smart Meter Legal Arguments

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.

7 thoughts on “Winning Smart Meter Legal Arguments

  1. Hello,
    I am in Canada and the hydro company has taken my analogue meter and replaced it with a “radio off’ meter without my knowledge or consent. They have a record that I refuse any smart meter. I want to take the hydro company to small claims court and am looking to prepare arguments based on my rights. My right to privacy from there surveillance and collecting data about how and what time my energy is turned on/off within my home. The right to protect myself from oppressive government stress that is inflicted on me to be forced to have a device that: causes fires, emits RF radiation, causes dirty electricity in my home, and stress that a third party can hack the system to remotely turn off my power or send more electricity to my house that my meter can safely accommodate without becoming a possible weapon. The radio off can be remotely turned on so the safe radio off arguments do not really apply. I want to figure out how to use the small claims court avenue….so possibly request damages to pay for solar panels to get off the grid I am forced to be on that cause me and my family harm and stress and or to request damages for mitigation products such as a sine tamer etc. Any argument suggestions for small claims court would be greatly appreciated!

    • Small claims courts are typically able to render small money judgments up to a certain dollar amoun. If you would like a court order that the utility must let you keep an analog meter, you won’t be able to get that from a small claims court. For that you would need to go to the utility regulating authority or to a regular court. If, however, you could make a claim for actual damages sustained by you, you might have a chance in small claims court. For example, if you were forced to incur certain expenses (such as a power line conditioner) to protect your home from the smart meter, you could submit bills for that. The utility would probably try to get your case moved to the regulatory authority, where you would have very little chance of prevailing. But you might get a judgment for a small amount of money spent to protect yourself, if you drew the right judge.

  2. Small wonder Schuette is OK with anything DTE does. The people he’s supposed to represent aren’t paying him this kind of money, save for involuntarily (his salary stolen from taxpayers), for which he shows no accountability:

    Top donors to Bill Schuette for Michigan for 2017-2018:
    10. DTE Energy Corp. PAC, $7,500

    Top donors to On Duty for Michigan for 2017-2018:
    1. DTE Energy, $25,000

  3. I am holding for a City Public Service representative regarding an “opt out” for my duplex and garage apt. combo. I am holding to go to a higher level supervisor as the have mandated that there is absolutely no opt out for commercial properties…and they consider this building “commercial” though the tenants pay their bills as “residents”.

    I would appreciate your input.

    • Kay, There are too many unknowns in your message. For example, what city/state you live in, is your electric utility public or private, do you own or rent, are meters individually mounted on each unit or are they all in a bank in one place? When we have a clearer picture of your situation we may be able to make a few suggestions.

  4. Can you site evidence in writing that these meters are collecting information for the government? I’m in Minnesota and the outer suburbs are having these meters installed. In the house I’m renting, a Cell net meter was installed shortly after I moved in. Excel Electric tells me the only Smart meters are installed in Colorado.

    • Rosemary, We live in an era where it has been documented many times that the NSA is listening to all our phone calls, reading our emails, etc. Now we introduce a new technology, funded by the government, that puts information about our daily routines into a database managed by the utilities. It is well established in law that you have no Fourth Amendment protections to your personal information once it has been placed in the hands of a third party. No warrant is ever needed for the government to obtain data about you from a third party. Do you really think the NSA isn’t going to tap that too? Or that local police aren’t going to access that data when they want to discover if you were home at the time of the murder?

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