SEDONA, ARIZONA – “Smart” Meter Court Case Update

Smart” Meter Court Case Update

Information & Perspective by Warren Woodward

Sedona, Arizona ~ August 15, 2015

Introduction

Last May I appealed “smart” meter Decision # 75047 made by the Arizona Corporation Commission (ACC). The Decision was illegal in many ways. Plus the commissioners lied repeatedly throughout the Decision.

I detailed all the lies and lawlessness in my appeal to the ACC, but the commissioners denied my appeal by not responding to it within the 20 days specified in law. (My appeal is here: http://images.edocket.azcc.gov/docketpdf/0000163221.pdf . Don’t be put off by its 108 pages. The appeal is really only 17 pages long; the rest is supporting material).

I then brought the ACC’s serial lawbreaking to the attention of the Arizona Attorney General’s Office but, typically, it was not interested in enforcing the law, so my only recourse was to file an appeal in Maricopa Superior Court which I did last June 25th. (The case # is LC2015-000274.)

On July 14, Judge Crane McClennen issued an Order in the case for me to explain to him why his court had jurisdiction. This was startling for several reasons but first some background on Judge McClennen.

Judge McClennen’s Background

Doing a brief internet search on Judge McClennen, I found that he started his legal career in 1972 and has been a judge in Maricopa Superior Court since 1997. In 2008 he had the distinction of being the only judge in Arizona to not meet the Judicial Performance Standards of the Arizona Commission on Judicial Performance Review.

According to their website, http://www.azcourts.gov/jpr , “Established in 1992 by a constitutional amendment passed by voters, the Commission’s membership includes eighteen members of the public, six attorneys and six judges.” This nonpartisan outfit rates judges and, in the publicity pamphlet that voters receive before an election, provides the results of their ratings to help voters make informed votes on whether to retain judges. It is very seldom that a judge does not meet the Judicial Performance Standards.

In 2013, Judge McClennen was publicly reprimanded by the State of Arizona Commission on Judicial Conduct due to a complaint brought by Mark Faull, the Chief Deputy Maricopa County Attorney.

According to their website, http://www.azcourts.gov/azcjc/ , “The Commission on Judicial Conduct acts on complaints alleging one or more judges have engaged in judicial misconduct in a particular case or circumstance.”

Comprised of six judges, 2 lawyers and three members of the public, the Commission wrote this in its public reprimand of Judge McClennen:

           “The complainant alleged a superior court judge exhibited unprofessional demeanor, ridiculed trial prosecutors, and made political comments from the bench.

The Arizona Constitution forbids judicial conduct that is prejudicial to the administration of justice and brings the judicial office into disrepute. See Article 6.1, Section 4. Rule 1.2 of the Code of Judicial Conduct requires judges to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.” Rule 2.2 requires judges to “perform all duties of judicial office fairly and impartially.” Rule 2.8(B) requires judges to be “patient, dignified, and courteous” to lawyers.

After reviewing the complaint, the judge’s response, and the relevant recordings and transcripts, the commission found that, on two separate occasions, Judge McClennen made inappropriate sarcastic statements from the bench that violated the Arizona Constitution and the rules set forth above.”

( http://www.azcourts.gov/portals/137/reports/2013/13-074.pdf )

According to a CBS 5 AZ news report on the above 2013 public reprimand, Judge McClennen was also reprimanded twice previously:

“He was accusing me of not answering his questions. He impugned my integrity,” said defense attorney Eleanor Miller. She filed a complaint against McClennen last year, and the commission publicly reprimanded him after looking into it.

In 2002, McClennen was also privately reprimanded for similar conduct.

( http://www.kpho.com/story/24150480/appeals-judge-publicly-reprimanded-by-commission#ixzz3ip2lJKmD )

Back To My Case

           Getting back to my case, as I said, it was startling that Judge McClennen wanted me to explain why his court had jurisdiction. The law that Judge McClennen wanted me to explain is so clear and straightforward that his request made no sense to me – unless maybe he was trying to get rid of me.

           I had appealed the ACC’s decision to Superior Court under A.R.S. 40-254 which states in part that:

“… any party in interest, or the attorney general on behalf of the state, being dissatisfied with an order or decision of the commission, may within thirty days after a rehearing is denied or granted, and not afterwards, commence an action in the superior court in the county in which the commission has its office, against the commission as defendant, to vacate, set aside, affirm in part, reverse in part or remand with instructions to the commission such order or decision ….”

           I had appealed within the thirty day period but Judge McClennen, after quoting the part of the law I just did above, wrote that:

It appears Woodward is challenging an order of the Arizona Corporation Commission issued on April 30, 2015. As noted above, a party has the right to bring an action “within thirty days after a rehearing is denied or granted, and not afterwards.” Thirty days from the date of the Corporation Commission’s order would have been May 30, 2015. It thus appears Woodward’s pleading filed June 25, 2015 is untimely, which would mean this Court would not have jurisdiction.

           Incredibly, Judge McClennen made the mistake of starting the thirty day countdown from the date of the ACC’s decision, not from when my appeal to the ACC was denied.

Or was it a mistake?

           It is not customary for a judge to attempt to dismiss a case in this way. Usually the other side in the case would do that. So it seemed to me that Judge McClennen was doing the work of my adversaries. Adding that to his history of reprimands, I wanted a different judge.

The particular court I am in, Lower Court Appeals, runs by the Rules of Civil Procedure. There’s a rule that gives a person the right to a one time change of judge just for the asking. In other words, you don’t need a reason. So I filed a Notice of Change of Judge on July 27th. But I was denied because Maricopa Superior Court also operates under “Local Rules,” and there was a Local Rule that overrode the right to a change of judge that I thought I had.

However, that Local Rule (plus a state statute) did give me the right to a change of judge if I showed cause. Grounds for cause had to be “That the party filing the affidavit has cause to believe and does believe that on account of the bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial.”

           That was exactly what I ‘had cause to believe and did believe.’ So I filed an affidavit to that affect on July 30th.

           In the affidavit, I stated that in attempting to dismiss my case as “untimely,” Judge McClennen was doing the work of the defendants and therefore showing his bias. I also mentioned that his misconstruing the thirty day time period appeared intentional since he is an experienced judge who should know better.

           The next day Judge Randall Warner, the Civil Court Presiding Judge to whom I presented my affidavit, ruled against me. According to him, “Bias and prejudice under A.R.S. § 12-409(B)(5) means a “hostile feeling or spirit of ill-will” or an “undue friendship or favoritism” towards a litigant.” He claimed I didn’t show that. I was pretty sure I had shown a “hostile feeling or spirit of ill-will,” even though I hadn’t used those exact words in my affidavit.

Judge Warner also stated, “Judicial bias or prejudice ordinarily has to come from an extrajudicial source and not what the judge has done in the case.” Of course the key word there is “ordinarily,” and its inclusion means there must also be cases like mine that are not ordinary, but are in fact based on “what the judge has done in the case.”

At this point the Rules of Civil Procedure became unclear to me, and I was unsure exactly what my options were. I also wasn’t sure I wanted to spend more time pursuing this particular injustice even if I could figure out the rules, so I accepted Judge Warner’s ruling. Sometimes even I give up.

Meanwhile, Judge McClennen had given me until August 7th to tutor him on A.R.S. 40-254, the thirty day time limit law. So on August 5th I supplied him (free of charge) with a detailed explanation of how that law works.

Evidently realizing that his court did in fact have jurisdiction in my case, on August 10th Judge McClennen issued an order giving the ACC until August 31st to respond to my Notice of Appeal. He also gave me until September 11th to respond to whatever the ACC filed if I so desired.

Conclusion

So that’s where the case stands at this time.

By the way, none of what I’ve written above has transpired inside a courtroom. It’s all done by filing papers. Because I want to be sure the documents I file get filed on the day I want them filed, I drive them down to Phoenix. I also need copies stamped by the Clerk of Court to deliver to the defendants whose offices are just a few blocks away from the Superior Court, so I drop those off while I am there.

Every time I go to Superior Court I get a real laugh out of the sculpture that’s in front of the building and right next to the main entrance. Have a look at the photo at this link: http://www.waymarking.com/gallery/image.aspx?f=1&guid=7da9a4c4-d689-4a4a-b016-6683d265d391

The sculpture depicts a family who’ve been stripped of everything – even their clothes – by the legal system, and they are fleeing the courthouse. Too perfect!

UK – Stop the £11 billion ‘smart meter’ ripoff!

Stop the £11 billion ‘smart meter’ ripoff!

Mel Kelly

14th August 2015

At an £11 billion cost to energy users, and against all expert advice, the government is forcing the rollout of ‘smart meters’ repeatedly exposed as expensive, poorly tested and potential threats to our health and privacy. This madness must stop.

Unwanted by consumers, over-engineered and mind-blowingly expensive, the scheme should be halted, altered or scrapped to avoid a potentially catastrophic government IT disaster.

An EU energy directive proclaimed 80% of homes across the EU should have smart meters fitted by 2020 if fitting them is cost effective in the long run.

In 2013, the German Economy Ministry described the EU’s recommendation as “inadvisable” because the installation of smart meters “would be too costly for customers”, citing an Ernst & Young report which concluded the cost of fitting them outweighs the installation costs. Nine other EU countries agreed with Germany.

The Coalition government, on the other hand, decided Britain’s taxpayers, already struggling to meet deficit reduction, should be forced to pay £11 billion to roll out ‘smart’ meters to replace the existing electricity meters on behalf of the poor energy industry.

One article which slammed the decision as a colossal waste of cash revealed an independent report written by Mott McDonald for the government stated smart meters would not be cost effective as they would bring a £4 billion net present value cost – the civil service, in contrast, inflated this figure by £8 billion, claiming there would be a £4 billion net present value benefit instead.

But by March this year the Energy and Climate Change Committee themselves agreed with the Mott McDonald conclusion, stating the planned roll-out “runs the risk of falling far short of expectations. At worst, it could prove to be a costly failure”, costing most consumers more than it could save them.

This was backed by a report by the Institute of Directors in the same month, which warned that the government’s rollout of smart meters “should be halted, altered or scrapped to avoid a potentially catastrophic government IT disaster.”

Their report went on to describe the £11bn scheme as “unwanted by consumers, over-engineered and mind-blowingly expensive”.

Broken promise: ‘no legal obligation’

Despite the weight of evidence now coming against the government rolling out smart meters and the government commitment there will not be a legal obligation on individuals to have one the government has decided to not only force smart meters on the nation but to start criminalising those who don’t fit them.

In March this year the coalition government amended the Heat Network (Metering and Billing Regulations) 2014 to make it a criminal offence if public and private landlords do not fit smart meters in their properties if they have more than one tenant and the heat is supplied from ‘communal or district’ heat networks.

The legislation covers both the landlord and all their tenants (and sub-tenants)placing a legal obligation on all to supply “accurate billing information” with landlords having to report to the National Measurement and Regulations Office (weights and measures).

This means people renting in high rise tower blocks, sheltered Housing complexes, eco communities where the power comes from communal and community heating systems must have smart meters fitted by their landlords – by law – despite the government’s claim there would be “no legal obligation” to have one fitted.

Homeowners and sole tenancies are exempt, for now, with the government choosing to target pensioners and the poor in high rise tower blocks first, like benefit changes, targeting the weakest in society first who are paying higher bills than the rest of the nation.

The government has also chosen to target the least powerful in the business community too for smart meters to be fitted first, with most small businesses still unaware ‘half hourly charging’ by energy companies, which just happen to require smart meters, will come into effect, only for “small business premises”, from April 2017.

‘Massive collection of personal data’ with RF pollution

As well as huge economic cost to landlords, tenants, small business and the tax payer, the government’s roll out of smart meters reports warn of this also bringing major privacy and health concerns along with massively inflated energy bills due to errors that appear to be inherent in smart meter systems.

The EU Data Protection Supervisor (EDPS) warned in 2012 smart meters could be a threat to privacy as they are capable of massive collection of personal data over and above energy consumption as smart meters could “track what households do within the privacy of their homes”

And then there’s the additional electromagnetic pollution they emit in our homes and workplaces. Dr David Carpenter MD, a Harvard Medical School graduate, who has worked in the area of electromagnetic fields (EMFs) and public health for over 18 years warns:

While no one has actually done human health studies in relation to people living in homes with smart meters we have evidence from a whole variety of other sources of radio frequency exposure that demonstrates convincingly and consistently that exposure to radio-frequency radiation (RFR) at elevated levels for long periods of time increases the risk of cancer, damages the nervous system and adversely affects the reproductive organs.”

Inexplicably huge increases in bills

Worldwide, consumers are also complaining of their electricity bills increasing hugely after smart meters are fitted, with one man in Florida complaining his bed-ridden mother’s electricity bill claimed her consumption had increased nearly 59% since the smart meter was installed, despite his mother’s habits not changing.

Reports in Canada reveal energy bill shocks for Canadians too after smart meters were rolled out, with one man’s energy bill increasing five-fold after the smart meter was fitted with the report going on to say “Since smart meters were installed, the Ontario Ombudsman was investigating nearly 11,000 complaints about the energy company Hydro One’s bills.”

Just weeks ago the Ontario Ombudsman produced a damning report where he said “Hydro One issued faulty bills to more than 100,000 customers, lied to the government and regulators in a bid to cover up the problem” with a senior citizen in Timmins who had $10,000 pulled from his bank account and “A ski resort unexpectedly received a bill for $37 million.” Good reason for cancelling your direct debit if a smart meter is installed.

Just last week the UK energy industry criticised the government proposals for testing smart meters, for not meeting industry standards, which does not bode well for Britain.

Government acting against all its advisors

It is no wonder we have a deficit when the government acts against the advice of its own energy committee, the CBI and ten other EU countries who all state this is against the national interest as it adds huge unnecessary costs – £11 billion and counting – in these times of deficit and austerity while setting UK business at a disadvantage within the EU.

Add to this the likelihood of business and households up and down the country starting to receive hugely inflated energy bills with huge sums being unexpectedly taken from their bank accounts by direct debit because the government is rolling out smart meters that have not been tested to industry standards.

How will the shoddy testing impact on our health and our privacy as well as our wallets? Who will be liable – landlords, energy companies or taxpayers when it all goes wrong?

Should it be a crime for tenants and landlords to provide wrongful billing data when the smart meters approved by the government are not tested to industry standards?

Should the government’s smart meter programme be cancelled now? The answer must be yes.

http://www.theecologist.org/blogs_and_comments/commentators/2983240/stop_the_11_billion_smart_meter_ripoff.html