Lawfulness of the installation of a “smart meter”; Regulation of public utilities; MCL 460.6(1); MI Admin. Code R 460.3101(4); “Meter” defined (R 460.3102(g)); Whether the defendants-homeowners’ health & privacy concerns justified or excused their conduct in removing the meter & installing an analog meter; R 460.3409(1); R 460.137(e) & (g); MCL 750.383a (providing that cutting, obstructing, or tampering with an electric utility’s property is a felony); An “affirmative defense”; Stanke v. State Farm Mut. Auto. Ins. Co.; Attorney Gen. ex rel Dep’t of Envtl. Quality v. Bulk Petroleum Corp.; Whether applying for & receiving electricity service is a voluntary act; R 460.106, .127, & .137-.144; Whether installation of a smart meter on defendants’ home constituted a warrantless search in violation of the Fourth Amendment; Lavigne v. Forshee; People v. McKendrick; The trial court’s decision to lift the partial stay; Michigan Public Service Commission (MPSC)

The court held that there was no genuine issue of material fact as to whether the plaintiff-utility’s installation of a smart meter on the defendants’ home was lawful under the definition of “meter” in the applicable administrative rules and tariff. Further, defendants did not show a genuine issue of material fact as to whether their health and privacy-related concerns constituted valid affirmative defenses excusing or justifying their conduct in removing the smart meter. Plaintiff’s installation of a smart meter on their home did not violate defendants’ Fourth Amendment rights. Thus, the court affirmed the trial court’s order granting plaintiff partial summary disposition and its grant of plaintiff’s motion to lift the partial stay it had previously imposed. After unsuccessfully demanding that plaintiff remove the smart meter from their home, defendants removed it, mailed it back to plaintiff, and installed an analog meter. The court concluded that “the definition of ‘meter’ provided in R 460.3102(g)” applied, and that there was no genuine issue of material fact as to whether a smart meter qualified as a “meter” or whether plaintiff’s installation of a smart meter was lawful. Further, defendants failed to provide any authority in the trial court to support “their claim that their privacy and health-related concerns constituted valid affirmative defenses to their violations of the relevant statutes, regulations, and tariff.” The court also found “no basis for concluding that defendants’ concerns should deny relief to plaintiff,” and allow them “to continue receiving electricity service from plaintiff, while defendants continue to violate the applicable rules.” It concluded that “defendants must comply with the rules promulgated by the MPSC and the tariff provisions approved by the MPSC in order to continue receiving electricity service from plaintiff.” Further, “applying for and receiving electricity service from plaintiff is a voluntary act.” The court added that defendants did not establish the factual bases for their asserted defenses. As to their Fourth Amendment claim, they “failed to establish that plaintiff’s installation of smart meters constitutes governmental action for Fourth Amendment purposes.”