Smart Meter Court Case Update, Part II –
An Open Conspiracy at the ACC?
Information & Perspective by Warren Woodward
Sedona, Arizona ~ September 9, 2015
The ACC is tasked with the responsibility to protect AZ ratepayers by weighing the costs and benefits of all state utility requests.
In my last Court Case Update of August 15th, I described how, in my opinion, the judge in my case had acted improperly by attempting to dismiss my case for lack of jurisdiction, and that I had tried but was unable to change judges. I had to tutor him on the law under which I was appealing the Arizona Corporation Commission’s decision. The judge then gave the ACC until the end of last month to respond.
I mistakenly assumed he meant respond to my appeal. Actually he meant respond to my explanation as to why the court had jurisdiction. The law under which I appealed is so clear, so straightforward, it never occurred to me that it would be a bone of contention.
And so it was that on August 28th, the ACC responded that my case should be dismissed for lack of jurisdiction. The ACC put forth the bizarre argument that my appeal was really a second appeal to their December decision, and they dug up some case from 1963 which they thought supported their position. The case was cited in a footnote to their bogus assertion.
I looked the case up and it actually supports my position! You can read all about it in my reply to the Defendants which is below. For brevity, the Exhibits mentioned in the reply are not included.
It is my opinion that in my reply I also uncover proof of an open conspiracy at the ACC to violate the law and my rights under law.
The reply has been filed at the court. It will be interesting to see how the judge rules on what to me is just more typically lame (and lawless) ACC jive:
REPLY TO DEFENDANTS’ AUGUST 28, 2015 RESPONSE TO PLAINTIFF’S AUGUST 5, 2015 MEMORANDUM
In their Response to Plaintiff’s August 5, 2015 Memorandum, Defendants have presented a bizarre argument that has no basis in statutory law or in case law. In actual fact, Defendants have broken the law repeatedly. It seems Defendants are now trying to justify and escape their lawlessness.
Defendants stated:
“In this case, however, Plaintiff elected to file an additional application for rehearing. He was not required to do so, 15 and this additional filing at the administrative level did not stay his time for appeal.
15 State ex rel. Church v. Arizona Corp. Comm’n, 94 Ariz. 107, 111, 382 P.2d 222, 225 (1963).”
Response, page 3, lines 15 through 17
Defendants have attempted to frame Plaintiff’s Application for Rehearing of Arizona Corporation Commission (ACC) Decision # 75047 as an “additional application for rehearing” to ACC Decision # 74871. It is not.
In State ex rel. Church v. Arizona Corp. Comm’n,
“The first question presented is this: When, upon a motion for rehearing, the corporation commission hears new evidence, and thereafter affirms its original order, except in minor detail, must an aggrieved party apply for a second rehearing before bringing an action to set aside the order of the commission?”
State ex rel. Church v. Arizona Corp. Comm’n, 94 Ariz. 107, 109, 382 P.2d 222, 223 (1963).
By Defendants’ own admission, in ACC Decision # 75047 the ACC did not ‘affirm its original order [# 74871].’ So Church is irrelevant to the Defendants’ desire to dismiss.
Besides, Church holds that, under the specific facts of that case, a second application for rehearing was not required. Bizarrely, Defendants seem to be arguing that since a second application was not required in that instance, then somehow Plaintiff’s application is not permitted in this case.
A true and faithful reading of Church actually supports Plaintiff’s filing a Notice of Appeal in Superior Court after being denied a rehearing at the ACC. Church states:
“We find the only rule consistent with the legislative intent expressed in the above statutes [A.R.S. 40-253, 254 & 255] is this: When a party is aggrieved by a decision or order of the corporation commission, he must apply for a rehearing before the commission, setting forth the grounds upon which he relies. If rehearing is denied, or if he remains unsatisfied after the decision on rehearing, he may then seek review of the order or decision of the commission in the superior court under A.R.S. 40-254.”
State ex rel. Church v. Arizona Corp. Comm’n, 94 Ariz. 107, 111, 382 P.2d 222, 225 (1963).
That is exactly what Plaintiff did. Plaintiff was “aggrieved” by ACC Decision # 75047. Plaintiff applied for a rehearing before the commission. The rehearing was denied so Plaintiff, in a timely manner, sought review in Superior Court under A.R.S. 40-254.
Referring to the “doctrine of the exhaustion of administrative remedies,” Church also states:
“Under this doctrine, the commission must be given the opportunity to correct its errors before resort is had to provisions for judicial review ….”
State ex rel. Church v. Arizona Corp. Comm’n, 94 Ariz. 107, 110, 382 P.2d 222, 224 (1963).
Again, that is exactly what Plaintiff did. Before filing a Notice of Appeal in Superior Court, Plaintiff, by filing an Application for Rehearing on May 12, 2015, gave Defendants another chance to comply with A.R.S. 40-253 (as well as another chance to cease perjuring themselves via their blatant lying in the Findings of Fact section of Decision # 75047). Plaintiff’s application for rehearing was ignored by Defendants and so deemed denied on June 1st, 2015. That is the date from which Plaintiff then had thirty days under A.R.S. 40-254 to take this matter to Superior Court via his Notice of Appeal. Since Plaintiff filed his Notice of Appeal in Superior Court on June 25th, Plaintiff’s Notice of Appeal was timely.
Defendants stated:
“The Commission subsequently granted Plaintiff’s Application for the limited purpose of further consideration, and then considered this matter at three separate open meetings. Ultimately, on April 30, 2015, the Commission issued Decision No. 75047, which expressly grants Plaintiff’s Application for Rehearing, thereby rescinding Decision No. 74871 pursuant to A.R.S. §40-253(E).”
Response, page 2, lines 13 through 17
But A.R.S. 40-253 does not permit granting an Application “for the limited purpose of further consideration.” Defendants made that up; they have attempted to write law. Under A.R.S 40-253, either the ACC grants an Application or it doesn’t. There is no granting for “limited purpose” provided for in A.R.S. 40-253. Additionally, the meetings were not “open meetings,” and there were not three of them after the “limited purpose” grant; there were three altogether. The meetings were staff meetings, and the majority of the time spent considering Plaintiff’s Application for Rehearing was in executive session. A.R.S. 40-253 calls for a rehearing (and within twenty days) after an Application for Rehearing is granted. Staff meetings are not rehearings. Executive sessions are not rehearings. Note that Defendants went vague concerning the dates of those staff meetings. Plaintiff therefore believes Defendants have attempted once again to dance around A.R.S 40-253’s requirement of a rehearing within twenty days. Because there was no rehearing, ever, Plaintiff was denied his rights under law. As well, Defendants cannot seem to make up their minds as to when the rehearing was granted, January 22nd at their first staff meeting or April 30th when they finally got around to filing an actual Decision. According to A.R.S. 40-253, Defendants do not get to grant an Application twice. There are no such qualifiers in A.R.S. 40-253. Under A.R.S. 40-253, a rehearing is granted or it is not. It is not granted for a “limited purpose” then finally “expressly” granted later on.
Defendants stated:
“The Commission’s action specifically granted Plaintiff interlocutory relief and stayed APS’s Application until the filing of APS’s next full rate case.”
Response, page 2, lines 18 &19
Plaintiff did not request “interlocutory relief.” Plaintiff requested relief which was never publicly discussed nor addressed in any way by Defendants. Plaintiff did not request a “staying” of APS’s Application. Additionally, and most importantly, staying APS’s Application “until the filing of APS’s next full rate case” does not constitute a rehearing within twenty days as called for in A.R.S. 40-253. However, from the audio minutes of the April 13, 2015 ACC staff meeting at which ACC Decision #75047 was made, it is clear Defendants’ somehow expected they could substitute a rate case in the indeterminate future for a rehearing within twenty days – and get away with it. Defendants invented their own relief options for Plaintiff, three of them, then chose among them. Complying with A.R.S. 40-253’s twenty day time frame for a rehearing was not among those relief options and, incredibly, complying with A.R.S. 40-253 was never even mentioned by Defendants. At the April 13, 2015 ACC staff meeting, ACC Legal’s Janice Alward described the option the commissioners unanimously voted for thus:
“It’s an Interlocutory Order, um, um, an intermediate decision, that would abrogate and rescind the decision that the Commission made in December and simply indicate that this, from the Commission’s point of view, would be most helpful for them to consider these matters in the rate case, where they could consider them, um, more fully.”
ACC Staff Meetings Archives, April 13, 2015, at 1:6:36
Note that the commissioners consciously and willfully picked the option that “from the Commission’s point of view, would be most helpful for them.” The commissioners did not pick the option required by law. A transcript of the April 13, 2015 ACC staff meeting discussion of this issue is included in this Reply as Exhibit A. The transcript is remarkable in that at no time are the ACC’s obligations under A.R.S. 40-253 mentioned or discussed. As such, the transcript appears to reflect what is essentially an open conspiracy to pervert and break the law, and to deny Plaintiff his rights under law.
Further evidence of Defendants’ open conspiracy to violate A.R.S 40-253 is seen in Exhibit B. Via a Public Records Request, Plaintiff acquired January 20th, 2015 emails between Defendant Susan Smith and her Policy Advisor, Laurie Woodall, an attorney. Note that ACC Legal Division attorney Janet Wagner was also included in the email thread. So there were at least two participants in the conspiracy who should have known better. Redacted on one thread but not on the other, Defendant Susan Smith had wanted to know “What can I do with this?” – “this” being issues brought by another intervenor appealing the same ACC Decision # 74871 as Plaintiff had. Note that Woodall’s answer unabashedly proclaims the ACC’s intent to consider violating A.R.S. 40-253 by “extending the time limits for us to make a decision.” Of course, there is no provision in A.R.S. 40-253 to extend time limits.
Much of this issue involving A.R.S. 40-253, as well as the true time-line of events, has already been addressed in detail by Plaintiff in his Appeal of Arizona Corporation Commission Decision # 75047 – the document that Defendants misleadingly and mistakenly referred to as Plaintiff’s “additional application for rehearing.” Appeal of Arizona Corporation Commission Decision # 75047 was previously submitted as Exhibit #1 in Plaintiff’s Notice of Appeal. Specifically, the section on pages 2 through 4 entitled “ACC Lawlessness Started Before Their Decision Was Made” exposes Defendants’ multiple violations and perversion of A.R.S. 40-253, a perversion Defendants are now unabashedly attempting to perpetuate in this case. “ACC Lawlessness Started Before Their Decision Was Made” is included in this Reply as Exhibit C.
In conclusion, Defendants’ violations of A.R.S 40-253 as described herein (including in Exhibit C) comprise one of the reasons for Plaintiff’s Notice of Appeal. Those violations are part of the pattern of illegality that pervades ACC Decision # 75047. As mentioned previously, in accordance with the Church opinion, Defendants were all ‘given the opportunity to correct their errors.’ They should not be permitted to pervert A.R.S. 40-253 or A.R.S. 40-254 in this case. In addition to denying Plaintiff his rights under law, such permission would set a very bad precedent.
As explained herein and in Plaintiff’s August 5th Memorandum, Plaintiff’s Notice of Appeal is timely. Superior Court does in fact have jurisdiction in this case.
Warren Woodward
Sedona AZ
Read www.SedonaEye.com for daily news and interactive views!
Hi SedonaEye.com,
I haven’t been great about updates lately. It’s a huge creative time for the team here on the new solutions-based project, which we’re really enthused about.
My new post is below. I also invite you to check out tomorrow’s “EMF: Risks and Solutions” Thrive Together webconference with Jeromy Johnson — and to scroll down below the article for other key developments.
I believe that as we navigate the stormy waters together, what’s most important is insight (knowledge), context (wisdom) and inspiration (solutions). And I hope these resources will be helpful for you.
Please share freely. -JDS
Why This Is All Happening
https://takebackyourpower.net/why-this-is-all-happening/
by Josh del Sol
11 September 2015
It’s official. The bits of data that could reveal virtually everything we do offline — in our own homes — are worth TRILLIONS to a wayward global corporate cabal.
Earlier this year, the Director of Grants and Research at the National Association of Regulatory Utility Commissioners (NARUC) said of so-named “smart” meters:
“I think the [surveillance] data is going to be worth a lot more than the commodity that’s being consumed to generate the data.”
In case you’re wondering, the commodity of electricity is a $2.2 Trillion market.
The data. It’s all about the data. What you do or say in your home, even in your bedroom. Whether you do or eat something that violates your healthcare plan, or your life insurance. All of your online passwords. And everything you do offline.
The point is that everything on which they have data can be controlled.
And corporations and their puppet governments want it all. All through the convenience of wireless technology.
This is the real reason why president Obama was pushing “smart” meters last month, under the guise of, of course, “climate action”. This is the real reason why utilities have declared war on the people.
They took Glenna’s electricity, but they could not take her smile. link
Case in point: on Wednesday, a hired henchman from the utility DTE climbed a pole and cut power to the home of a 85-year-old woman in Detroit, Michigan.
Because she did not want to be irradiated and surveilled in her own home.
Dozens – if not hundreds, now – of families have similarly been terrorized by utilities in Michigan, British Columbia, and elsewhere.
It really has very little to do with saving money on meter readers. Or charging you more based on time-of-use.
Radiating surveillance meters (aka “smart” meters) make this all possible. They are the point of access, the gateway.
Follow the money. It’s just business.
continue reading full article »
* * *
EMF Webconference: Sept 12 @ 12noon PST
For members of THRIVE, tune in tomorrow to “Reducing Your EMF Pollution and Exposure: Exploring the Risks and Practical Solutions” with expert Jeromy Johnson:
http://www.thrivemovement.com/thrive-together
And be sure to see Jeromy’s latest featured post, “Why is Xfinity WiFi Harming People”
http://www.emfanalysis.com/why-is-xfinity-wifi-harming-people/
Illegal forced meter installation in UK (video)
In 2011, UK Energy Minister Charles Hendry said:
“We believe that people will benefit from having smart meters, but we will not make them obligatory. [T]hey will not be required to have one. We have been willing to give assurances to Hon Members on that account.”
Watch this illegal installation video footage:
http://stopsmartmeters.org.uk/uk-energy-firm-caught-forcibly-installing-smart-meter-against-persons-consent/
Patent granted by USPTO for “E-CAT” cold fusion tech
This is an indication that either: (a) people within the USPTO are starting wake up and realize our collective situation; or (b) this could be another false solution being propped up. We intend it is the former!
http://ecat.com/news/e-cat-patent-granted-by-uspto
Take Back Your Power (TBYP) screening report & community forums:
Michigan: http://www.candgnews.com/news/forum-smart-meters-draws-large-crowd-86056
Oklahoma: http://m.fox23.com/news/news/local/residents-claremore-upset-over-high-energy-bills/nnX7D/
Get the screening guide & host a TBYP film screening:
https://takebackyourpower.net/screenings/host/
Unsmart vulnerability
PV Magazine: Smart meters can jeopardize grid reliability
http://www.pv-magazine.com/news/details/beitrag/smart-meters-can-jeopardize-grid-reliability_100020345
Samsung smart fridge leaves Gmail logins open to attack
http://www.theregister.co.uk/2015/08/24/smart_fridge_security_fubar/
Fiat-Chrysler recalls 1.4 MILLION vehicles after hackers expose them as deadly remote-controlled weapons
http://www.naturalnews.com/050931_Chrysler_recall_hackers.html
Dr. Erica Mallery-Blythe at the Commonwealth Club, June 2015 (video)
Dr. Erica Mallery-Blythe presents on risks to children at a program organized by ElectromagneticHealth.org and Environmental Health Trust held at the Commonwealth Club on June 22, 2015. She is Founder of Physicians’ Health Initiative for Radiation and Environment (PHIRE) in the U.K. where she is also Trustee of the Radiation Research Trust, Medical Advisor to Electrosensitivity UK and Member of the British Society of Ecological Medicine.
https://vimeo.com/131798243
Dr. Timothy Shoechle
WISE Grid Series, Part 2
http://www.motherearthnews.com/renewable-energy/hudson-valley-energy-highway-transmission-project-zbcz1508.aspx
K.T. Weaver
Federal Judge: Customers are ‘deemed to have consented’ to smart meter privacy invasions due to continued usage of electricity
http://smartgridawareness.org/2015/09/01/deemed-consent-to-smart-meters-privacy-invasions/
President Obama Touts ‘Smart Meters’ at Clean Energy Summit
http://smartgridawareness.org/2015/08/25/president-obama-touts-smart-meters/
BC Hydro’s AMI Program Security Team Lead: “The consequences of deploying bad stuff [smart meters] are dire.”
http://smartgridawareness.org/2015/08/07/consequences-of-deploying-bad-stuff-are-dire/
Smart meter “issues are of great concern, not just locally, but also nationally and internationally,” cautions Judge
http://smartgridawareness.org/2015/07/26/smart-meter-issues-are-of-great-concern-cautions-judge/
Consumers and Environment Unlikely to Benefit from Smart Meters, Confirms Latest Research
http://smartgridawareness.org/2015/09/11/consumers-and-environment-unlikely-to-benefit-from-smart-meters/
A Message to Public Schools and Public Libraries about Wireless Devices
http://smartgridawareness.org/2015/08/21/message-to-schools-and-libraries-about-wireless-devices/
‘Dragnet’ Data Collections by Smart Meters and an ‘Infrastructure of Surveillance
http://smartgridawareness.org/2015/08/17/dragnet-data-collections-by-smart-meters/
Governments Planning to Use Smart Meters for the Collection of “Population Statistics”
http://smartgridawareness.org/2015/08/14/governments-planning-to-use-smart-meters-for-collection-of-population-statistics/
Utilities Remove Burned Smart Meter Evidence from Fire Scenes
http://smartgridawareness.org/2015/07/28/utilities-remove-burned-smart-meter-evidence-from-fire-scenes/
Insanity: Turning Smart Meters into a Supercomputer Platform
http://smartgridawareness.org/2015/07/20/insanity-turning-smart-meters-into-a-supercomputer-platform/
Smart City/Grid Technocrat Philosophy on Life: “If you are going to travel, travel now.”
http://smartgridawareness.org/2015/07/29/smart-citygrid-philosophy-if-you-are-going-to-travel-travel-now/
Utility Industry Aware of Safety and Accuracy Issues with Digital Meters for Years
http://smartgridawareness.org/2015/06/29/utility-industry-aware-of-issues-with-digital-meters-for-years/
ww, thanks for your effort to keep us informed