Court bars discovery

Sacramento, July 29, 2020

Judge David I. Brown, of the Sacramento Superior Court, issued a final ruling today in the landmark case Graham v Sacramento Municipal Utility District (SMUD) that  Plaintiffs are precluded from propounding additional discovery.  SMUD had applied for a “protective order”, quite a misnomer.

Plaintiffs had explained in opposition that there is no administrative record of the SMUD Board of Directors Resolution 19-06-13, the resolution setting electricity rates and charges for 2020 and 2021, which Plaintiffs challenge.  Plaintiffs challenge it on the grounds that those rates extended and increased special taxes, namely the “time of day” rates, the “Fixed Rate”, and the System Infrastructure Fixed Charge (SIFC) without the approval of the voters which Article XIII C of the California Constitution requires.

Therefore barring discovery requests, which Plaintiffs had sent to Defendant and with which Defendant had refused to comply, effectively barred all evidence.  Defendant has said since mid February that it is preparing the administrative record; however Defendant has refused to commit to placing a single document or piece of information in that record despite multiple written requests by Plaintiffs.  Plaintiffs also pointed out that the cases Defendant cited in its motion, and in particular Western States Petroleum Association v Superior Court (1995) were about administrative decisions, were about legal issues where the burden of proof on the government was “substantial evidence” (a much lower burden of proof than “preponderance of the evidence,” which Article XIII C requires) and were superseded by Proposition 26, passed by California voters on November 2, 2010, which amended Article XIII C.  The Court did not agree but did not really address those arguments in sufficient detail to explain why.

Time of day rates are rates where electricity costs more during the Summer (June 1 through September 30) and more at all times of year from 5:00 to 8:00 in the evening.  These are when demand for electricity is the highest.  Time of day rates are made possible by smart electric meters, which according to SMUD transmit 13,381 times per day on average and up to 240,000 times per day electromagnetic radiation (EMR) in all directions, for a distance up to 1/2 or 1 mile.  According to thousands of scientific studies long term exposure to EMR, even several orders of magnitude less than what smart electric meters transmit, causes observable biological or health effects.  These effects include headaches, dizziness, tinnitus, insomnia, heart palpitations and longer term effects on the endocrine, nervous, and immune systems including clear evidence of cancer and structural and functional changes of the reproductive system.  SMUD remains in denial of all of this, continuing to maintain the lie that these health effects do not exist.  They are parroting the line of the Federal Communications Commission (FCC), which has failed to adequately regulate EMR. Children’s Health Defense and Environmental Health Trust recently filed a joint brief in their lawsuit against the FCC which disputes FCC’s determination last December that there is insufficient evidence to justify revising and tightening FCC’s EMR emissions, which have not been revised since FCC issued them in 1996 (based on 1980s data from industry and false assumptions) despite the publication of thousands of studies showing EMR health effects since then.

The effect of this court ruling is only that Plaintiffs cannot propound (ask) any more discovery requests.  Plaintiffs had propounded form and special interrogatories, requests for admission and requests for production of documents on March 24.  Defendant objected with literally the same text to every one.  Plaintiffs also propounded additional requests for admission and for production of documents before the Court issued its tentative ruling on July 22.  This ruling does not mean that Plaintiffs have lost.  Plaintiffs are still in a position to win the entire lawsuit, which asks the Court to declare that the 2020 and 2021 electricity rates and charges are taxes and to prohibit SMUD from charging those rates to the extent they are taxes.

Meanwhile Plaintiffs have filed a motion for an order to compel Defendant to place certain documents and information in the administrative record.  By definition any document or information that is placed in the administrative record is not “extra record evidence”.  Defendant’s counsel agreed with that during the hearing on Defendant’s motion on July 23.  The hearing on Plaintiffs’ motion is scheduled for August 20, 2020.

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