TOR Interviews Attorney Jensen Silvis on SMART Meters

BY NICK ROGERS

TOR: Jensen Silvis, an Akron-based attorney specializing in property law, estate planning, contracts, civil litigation, landlord-tenant, business formation, and criminal defense joins The Ohio Register for a second time. In our first interview, we discussed two Smart meter mandate cases he has taken on in collaboration with Mendenhall Law Group. Streetsboro and Cuyahoga Falls are the two localities previously discussed where residents have enlisted his help to combat these mandates. Thank you, Jensen, for speaking to TOR again.

Jensen:  My pleasure. Thank you for having me back.  

TOR:  Last time we talked, there was some initial success in the Streetsboro case as a judge granted a temporary restraining order (TRO) “for the pendency of the case”; agreeing to keep your clients’ water on until things are settled. I have heard and read nothing about a decision, so I assume the case is ongoing?

Jensen:  Unfortunately, the Court ruled in favor of Streetsboro on their motion for summary judgment. Streetsboro argued that Plaintiffs could not bring claims for certain constitutional violations because those sections are not “self-executing.” However, we believe that under the Declaratory Judgment statute, the claims are viable. Therefore, the case is on appeal pending oral argument in June. 

TOR: Do you feel confident, like you’re moving the ledger in the right direction?

Jensen: I do. These cases really explore some novel legal approaches to protecting our constitutional rights and involve legal vacuums that have never been explored. So, I think we are certainly making positive impacts. 

TOR: Is the Cuyahoga Falls case ongoing? 

Jensen:  We overcame the City’s motion for judgment on the pleadings last year, meaning the Court agreed that we can in fact bring the constitutional clams in the matter we are asserting. 

TOR: Am I correct that the Streetsboro case was filed first of the two, by a family of seven concerned about the privacy invasiveness of Smart meters? Do you feel that, despite the setback, the Streetsboro case has a chance to gain back momentum and swing in your favor via your appeal? 

Jensen:  We have talked to numerous concerned citizens around the State and the country.  In Ohio, there have actually been three cases: Streetsboro first, then Sheffield Village, then Cuyahoga Falls. In Streetsboro, there are two households of Plaintiffs that are concerned both about privacy issues and also negative health effects from RF-EMF radiation.  As far as momentum, I think we have a unique opportunity in each case to form some significant legal precedent. 

TOR: In Cuyahoga Falls, the city is mandating the installation of both water and electric Smart meters. In our previous interview, you told me that because they are a “municipal utility” they are “exempt from the electric opt-out provision” which most utilities in the state offer (with a punitive one-time fee, followed by punitive monthly fees). My understanding – please correct me if I’m wrong – is that utilities in Ohio are not legally required to offer an electric Smart meter opt out, even though most of them do…which would mean that Cuyahoga Falls isn’t technically breaking the law, right?

Jensen: A “public utility” like First Energy and AEP must offer an opt out for electric meters.  There is no opt out provision for gas or water.  A “municipal utility" such as a city is exempt from any opt out for all utilities.  So, in that sense, the cities in our cases are not breaking that law.  However, we do believe they are violating the Constitution. 

TOR: Gotcha. You previously stated, “Our state and federal constitutions protect us” from these kinds of privacy and health invasions, and that your focus has been on due process. Are there any particularly resonant state and/or federal constitution sections you’ve relied on so far in these cases?

Jensen:  We are using Article I, Sections 1, 14, and 16 of the Ohio Constitution. Section 1 protects our liberty and health, 14 protects us from unreasonable searches, and 16 provides us with due process.

TOR: Perhaps this is a dumb question – and, yet, maybe it’s the whole crux of the matter – but is the state constitutionally obligated to provide its citizens with water and electricity (assuming citizens pay for it, of course)? Is it an instance of Hobson’s choice?

Jensen:  The state is not obligated to provide citizens with any service, really.  Most people have privately owned utilities, except for water. But there are several cases that state there is no constitutional or human right that the government must provide us these services. 

TOR: Smart water meter opt-outs are not offered in Ohio, period, you told me. Are you attacking these cases from a broad Smart meter perspective or is there individual focus on water and electric meters, i.e. could there be some kind of “partial victory” scenario where the residents in Cuyahoga Falls are offered an electric Smart meter opt-out but are still forced to install a Smart water meter on their homes?

Jensen:  I suppose there is a world where that could happen, but I do not predict it will happen based upon the State’s opt out law.  Unless of course a new law is passed. 

TOR: Have any imminent shutoff threats been made by the city of Cuyahoga falls as was done in Streetsboro?

Jensen:  None to my knowledge.  The parties have mutually agreed that no service would be interrupted during the pendency of the case. 

TOR: You told me, previously, that you have reviewed many local ordinances which you felt did not grant municipalities the right to terminate water service, specifically. Are you confident that this is the case with these two cities? Does the same apply to electricity?

Jensen:  Cities are getting smart and changing their ordinances to include provisions for termination for failure to install smart meters.  In fact, that exact scenario happened during the pendency of one of our cases.  However, I believe many cities lack such provisions.  

TOR: You mentioned, previously, that you have received many calls from concerned Ohio citizens about this issue, “but have only pursued three court actions thus far.” You mentioned Sheffield Village as the other case. What happened with that one?

Jensen:  We were able to settle that matter very early in the process. 

TOR: I see. Now, in our first interview, I discussed Mendenhall Law Group’s past collaborations with the non-profit activist fundraising group Ohio Stands Up! (OSU); primarily in Covid-related cases. OSU donations have helped fund the Streetsboro and Cuyahoga Falls attorney fees, correct? I imagine more Ohio citizens would gladly enlist legal help in the fight against Smart meter mandates if the financial ask wasn’t such a burden.

Jensen:  Yes, we have had a combination of Plaintiff funding and organizational funding.  It is a fact that litigation is time-consuming and thus expensive.  However, when the burden is spread through grassroots efforts, individual households are less severely affected. 

TOR: You told me that no bill drafting, to your knowledge, had begun on Smart meter choice legislation in Ohio, but that you’d had “some fruitful conversations.” As I stated previously, other groups – like SW Ohio for Responsible Technology (SWORT) – have pushed tirelessly for legislation such as this, and they received encouraging feedback at one point from former representative Sedrick Denson (D-Cincinnati) who said he would back legislation if more support could be garnered (Denson, unfortunately, resigned last year). You told me other states have introduced bills, and that those could potentially be used as templates. Has there been any movement on this sort of thing that you’re aware of?

Jensen:  I know other states continue to enact such legislation. However, I have no knowledge of anything further here in Ohio. 

TOR: If the parties in the Streetsboro and/or Cuyahoga Falls cases were to settle, do you think it would still feel like a full victory, or is there a lessening of a hypothetical legal precedent-setting?

Jensen:  Any settlement at this stage is speculative, but I imagine if we settled, then my clients would be getting some positive outcome.  But yes, no true precedent would be set.

TOR: Jensen, thank you for again sharing your experience and expertise regarding these cases. I wish you the best of luck. The results will have major implications for Ohioans’ ability to freely make informed choices to protect themselves and their families.

Jensen: Absolutely. I continue to urge citizens to be active in local government and stand up for their rights.