Saturday, July 25, 2015

Michigan Smart Water Meter Case—Another Lesson in the Importance of a Well-Brought Case

Court of Appeals States That a Well-Brought Case Could Prove That City Does Not Have the Authority to Install Smart Meters Against the Will of the Residents

The Michigan Court of Appeals had made a decision in a smart water meter case that some of you have been following. Plaintiff refused to let the City of Warren install a smart water meter on his home, and the city shut off his water. Plaintiff filed suit against the city. Like with another smart meter case, the plaintiff’s motives and reasons were good, but his legal arguments were lacking. This case should in no way be taken as a verdict on the legality or rightness of smart water meter installation. The court itself said that if the plaintiff had properly presented the argument that the city does not have the authority to install smart meters against the will of the residents, “it would be a question of law subject to de novo review” [p 2 of decision]. In other words, if you put your case together properly, you could win.

There are several reasons the court ruled against the plaintiff. (1) He didn't raise the issues correctly and he didn't properly preserve them for appeal.   (2) He made assertions, but didn’t back them up with the necessary legal arguments or factual evidence. (3) Many of the arguments were nearly indecipherable (after reading the case, I would have to agree).

The court made a very important point. Quoting two previous cases (brought on different issues), the court said: “It is not enough for an appellant in his brief simply to . . . assert an error and then leave it up to this Court to . . . unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” [p 2 of decision.] In other words, just like with a paper in high school or college, you’ve got to make the arguments yourself, not expect the teacher/court to make them for you. And you’ve got to back your assertions up with evidence and appropriate legal citations. Or, for another analogy: Unless you’re trained, you probably wouldn’t try to repair your car yourself. All this stuff looks so easy and obviousespecially because we know we are rightbut once you get into the mix, you find out it’s really complicated.

What About Norton v Shelby County? As David Sheldon and myself have contended for years, the U.S. Supreme Court case Norton v Shelby County is not applicable to the smart meter situation. While full of resonant language that can stir the heart of any American, Norton is just not applicable. The court of appeals agreed, saying:  The plaintiff “cites to Norton v Shelby Co, 118 US 425 (1886), but he does not explain how Norton, a case determining whether a law purporting to create a board of commissioners violated the Tennessee Constitution . . . applies or supports his argument.” [Emphases added; citations omitted.] You have to back your arguments up, and you have to do so with good evidence and legal reasoning. See David’s article on Norton v Shelby County.

All of the individuals who have had the fortitude and courage to go to court over the smart meter issue are to be commended. How do you support them? Reading this email is not enough! You have to get the word outto the residents of your city and other cities, to your legislators and city councils, to your friends. If you haven’t locked your meter, lock it up! If you have a smart meter on your home, let us know you want to remove it as part of a large group.

Additional Story

Bill Metallo was being harmed by the smart meter on his home. The utility replaced it with an analog, under the rules in Florida, but is charging him for the meter installation and monthly meter reading. Bill has taken action and filed a federal lawsuit under the Americans with Disabilities Act (ADA), because under the ADA, you can’t be charged for accommodation for a disability. The problem is, this man is representing himself. NO ONE can negotiate the Americans with Disabilities Act without a lawyer. Most lawyers won't take an ADA case unless it is their specialty. If the court rules against him, as it likely will, he will have set a precedent that will be binding in that district and can be cited as supportive in other jurisdictions like Michigan.

Learn more at the SmartMeterEducationNetwork

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