SMUD lawsuit

December 12, 2019

Yesterday the complaint and summons in our new lawsuit challenging the SMUD electricity rates and charges for 2020 and 2021 were served at SMUD headquarters.

Here is our press release:

For immediate release

Contact:  Mark Graham,

Wednesday, December 11, 2019


Title:  SMUD customers file lawsuit over 2020 & 2021 electric rates:  New electric rates are taxes prohibited by Proposition 26

Sacramento area electricity rates may be coming down if a lawsuit by two SMUD customers succeeds.  According to the suit the new SMUD electricity rates and charges for 2020 and 2021 violate the California Constitution, Article XIII C, on local government taxes.

The suit, filed in Sacramento County Superior Court by Mark Graham and Jan Summers, asks the court to declare that SMUD’s 2020 and 2021 electric rates and charges are partly taxes and that SMUD may not extend or increase those taxes without approval of the voters, and to order SMUD to refund the taxes. 

In June the SMUD Board approved new electric rates for 2020 and 2021, including four rate increases:  January 1 and October 1 for each of the next 2 years.  The rate increases are 3.75%, 3%, 2.5% and 2% respectively.

Those rates include Time of Day rates (TOD) and a Fixed Rate that SMUD created in 2017 and the older System Infrastructure Fixed Charge (SIFC).  The Time of Day rates are higher in the Summer, especially from 5 – 8 p.m.  Currently SMUD customers pay about $0.28 per kWh (kilowatt hour) during Summer peak hours, compared to $0.16 in Summer mid peak and $0.12 during Summer non peak hours.  Non Summer rates are about $0.13 weekdays between 5-8 p.m. and $0.10 at all other times.

Proposition 26, which amended Article XIII C of the California Constitution, prohibits a local government from imposing, extending, or increasing taxes without the approval of the voters. 

Article XIII C defines “tax” as “any levy, charge, or exaction of any kind imposed by a local government” but there are 7 exceptions.  (Art. XIII C, § 1, subd. (e).)  The definition excludes a charge imposed for a specific government service or product if: (1) the service or product is provided directly and exclusively to those who pay the charge; and (2) the charge does not exceed the reasonable costs to the local government of providing the service or product.  (Art. XIII C, § 1, subd. (e)(2).)

Graham and Summers say that, according to SMUD’s rate design study for the current rates, the rates are 9.2% too high.  For the 2017 rate action SMUD produced a “rate design study” which quantified each component of SMUD’s marginal cost of providing electricity and added them up to obtain SMUD’s marginal cost.  But SMUD took the liberty of adding a “scalar” of 9.2%, which it said was for the purpose of setting the proposed rate revenues equal to rate revenues for the budget year.  In other words they added 9.2% to their marginal cost to reach the amount of money the Board had decided it wanted to bring in and had budgeted. 

At the rate hearing in June Graham presented this issue, the problem with the 9.2% scalar, to the Board.  He recommended that SMUD reduce its rates by backing out the 9.2% scalar and then apply the desired increases.  SMUD’s Jennifer Davidson responded that SMUD’s reasonable costs were actually its “embedded costs”, not its marginal costs.  She provided no supporting evidence.  When Graham made a Public Records Act request for documents analyzing SMUD’s “embedded cost” he found that there are no such documents. 

“SMUD can’t just decide how much money it wants to take in and set their electricity rates accordingly,” says Graham.  “At least not without the approval of the voters.  They are limited by the California Constitution, Article XIII C, to charging rates based on their reasonable cost of providing electric service.”

The only vote on the 2020 and 2021 electric rates was on June 24, 2019 by the SMUD Board.

“SMUD has been overcharging its customers for years,” say Graham and Summers.  “For many years every time SMUD has increased rates they have just added a few percentage points to current rates.  They rarely evaluate their reasonable cost of service.  The 2017 rate design study did that and it shows their current rates are 9.2% too high.”

The complaint and summons were served on SMUD on December 11, 2019.

The case number is 34-2019-00267423.

_ ___________________________________________________________________________

Mark Graham has been raising awareness and advocating for better electricity policy from SMUD since early 2014, in particular with SMUD’s hazardous smart electric meters.  Graham and Summers say that according to thousands of scientific studies the electromagnetic radiation (EMR) from SMUD’s smart meters are hazardous to human health.  A group of SMUD customers succeeded in persuading SMUD to allow customers to “opt out” of their smart meter in 2012 and to receive an analog electric meter in 2013.

The TOD rates are the culmination of SMUD’s $300 million smart electric meter program.  Many customers have complained to SMUD of experiencing, headaches, tinnitus, insomnia or heart palpitations that started as soon as SMUD installed their smart meter.  SMUD remains in denial of the scientific research on health effects from smart meter electromagnetic radiation (EMR).  Smart meters have caused these health effects in every state.  The CPUC received thousands of complaints about PG&E’s smart meters.  


January 4, 2019

The oral argument in this case happened on December 12, 2018 at the Third District Court of Appeal.  Nine of my friends and allies showed up to watch, listen and learn.  I felt very supported by each of them.  It was great to have so many friends and allies in the audience.  The court room is a large round room with a high ceiling, columns near the back, and dark wood panels.  It feels imposing, as if the purpose of the architecture were to remind everybody how important the court is.  However I did not feel intimidated by it.  There were three justices who were seated at the front.  There were tables for the appellant (me) and respondent (SMUD) to sit at and a lectern in between them.  Each side was given a total of 15 minutes and could reserve some time at the end to respond to what the other side had said.  The justices asked a lot of questions and the clock continued to run while they were asking and I was answering them.  Some people could not hear clearly what was being said.  I have the audio recording of the event, which is a good but not great audio.  There was a microphone at the lectern and one for each justice.  You can hear the justices more clearly on the audio.  In any case feel free to listen to it.  If you have any comments please feel free to send them to me at Mark at (skip this @$*&%^@#$*&^) freewayblogging (skip this @$*&%^@#$*&^) dot com.  I look forward to hearing from you.


On December 28, 2018 the Third District Court of Appeal issued its decision in Graham v SMUD.  It ruled in favor of SMUD or “affirmed in full” the decision of the Sacramento Superior Court.  You can download a copy of the court’s decision (“opinion”) here:


For more information on this case, go to:

Or download it from this website here:

MS Word file (.doc)


PDF file (.pdf)


As of today, January 4, I have not read the opinion yet.  I have no urgent need to read it.  I suppose there is the possibility of trying to get the Supreme Court to review this but I doubt they will.  I will read it one day soon.


November 20, 2018

It is time for an update.  After the Sacramento County Superior Court dismissed my lawsuit in October, 2016 I filed an appeal.  As of today my appeal is still alive in the Third District Court of Appeal for the State of California.

The next step is that there will be oral argument on December 12, 2018, scheduled for 9:30 a.m.

If you are interested please attend.  The Clerk told me that there may be other cases scheduled for oral argument that day and the sequence of those will not be known until December 5.  I will call the Clerk on that date.  My guess is that each day’s schedule is also posted on the court’s website but I do not know where.

Oral argument is an opportunity for me (since I requested it) to clarify and highlight certain arguments and legal basis or authority for them.  It is not intended to be a repeat of the briefs.  We assume that the justices have read the briefs and are familiar with them.  At the time I requested oral argument I also sent in additional cases to support arguments I had made in my briefs.  I will spend some time on those.  I will have a total of 15 minutes and I will reserve some time to reply to what the Empire’s attorneys say and answer questions from the justices.  That is all.  I will be very well prepared.

You can view the docket for this case here:

You can click on this link at any time and get the latest update from the Court.


October 6, 2016

Substituting his own words for those of the SMUD Board of Directors, Sacramento County Superior Court judge David I Brown dismissed Mark Graham’s lawsuit on Thursday.

You can download copies of key documents from the lawsuit from this page.  The are the judge’s orders dismissing the case, the Plaintiff’s and the Defendants’ Memorandum of Points and Authorities, the Defendants’ Reply to the Plaintiff’s memorandum, Resolution 07-08-10 and Attachment E to Resolution 07-08-10:









Customer sues SMUD over smart meter opt out charges:
wanted to avoid microwave and RF radiation from SMUD smart electric meters

Sacramento – January 12, 2016

SMUD customer owner Mark Graham filed suit in Sacramento County Superior Court Friday to recoup charges he paid for switching from a smart electric meter to an analog electric meter.  The suit alleges that the smart meter program was never approved by the Board of Directors and therefore customers who never “opted in” to having a smart meter should not be charged extra to “opt out”.

Plaintiff filed a claim against SMUD last year using the Government Claims Act and said that SMUD should not have charged him $127 for a new analog meter plus $14 per month to read the meter because the Board of Directors never authorized SMUD to install a smart meter on his house.

“The Board approved an ‘opt in’ smart meter policy in August, 2007.  I never opted in and never requested a time-based rate.  How can they charge me ‘opt out’ charges when I never opted in?” Graham asked.

The only resolution the Board approved authorizing electric meter replacement, Resolution 07-08-10 and Attachment E, said that “each customer requesting a time-based rate” was to be provided with a time-based meter, a smart meter.  The Board quoted from the Time-Based Metering and Communication Standard found in the Energy Policy Act of 2005, section 1252.

“The Board approved one policy and management implemented another, disregarding the Board and eliminating the customer’s choice” says Graham.  “That is a violation of the Municipal Utility District Act and Board policies regarding the Board’s relationship to management.”

The Board of Directors has the sole authority in Sections 11883-11885 to make policy decisions for SMUD.  Apparently SMUD management led by CEO and GM John DiStasio made their own decision to remove and replace all 620,000 customers’ analog meters with smart meters.

Smart meters are biologically experimental and transmit hazardous microwave and radio frequency (RF) radiation 13,381 times per day on average and up to 240,000 times per day according to SMUD.  Hundreds of published peer reviewed scientific studies have found that wireless radiation causes a wide range of adverse health impacts even at radiation levels thousands of times lower than smart meters, cell phones and other wireless devices transmit.

In May, 2015 190 scientists from 39 countries signed the EMF Scientist International Appeal, calling on the World Health Organization, the United Nations and its member states to make wireless radiation exposure limits much stronger so as to protect public health.

In 2012 29 authors from ten countries published the BioInitiative 2012 Report, an update covering about 1,800 new studies reporting bioeffects and adverse health effects of electromagnetic fields (powerlines, electrical wiring, appliances and hand-held devices) – and wireless technologies (cell and cordless phones, cell towers, WI-FI, wireless laptops, wireless routers, baby monitors, surveillance systems, wireless utility meters (‘smart meters’), etc.


On December 7, 2014 the California Medical Association, representing 40,000 California doctors, approved a resolution stating that scientific research clearly shows that wireless radiation is harmful to human health and calling for a re-evaluation of current policies and practices regarding wireless radiation exposure.

SMUD removed and replaced all customers’ analog meters between late 2009 and early 2011, part of a $360 million program.  Many SMUD customers began to experience headaches, tinnitus (ringing in the ears), insomnia, brain fog and other health effects after SMUD installed smart meters on their homes.  About two dozen SMUD customers have delivered sworn declarations of their health impacts from smart meters to the SMUD Board.

In March 2012 the Board created an “opt out” policy which allowed SMUD customers living in single family homes to exchange their smart meter for a non-transmitting digital meter.  The charges were $127 for the meter plus $39 per month, which deterred many customers.  In March 2013 the Board amended the opt out policy to allow customers to receive an analog meter and lowered the monthly fee to $14.

By comparison PG&E customers are allowed to opt out and pay $75 for the new analog meter plus $10 per month, but only have to pay the $10 for 36 months.  PG&E puts a notice on page 1 of the bill to inform its customers that they can opt out.  PG&E also has a drawing

To this date SMUD has not notified its customers that they can have their smart meter removed and have an analog meter installed.  Graham has repeatedly asked SMUD to notify customers.

The case number is 2016-00188891.

For more information about SMUD’s smart meters and policies:

Graham is a member of Sacramento Smart Meter Awareness.  He has spoken at dozens of SMUD Board meetings, presented scientific research on wireless radiation, and delivered proposals on the hazards of and ways to reduce the customer’s exposure to microwave radiation.

Sacramento Smart Meter Awareness, founded and led by its Director Eric Windheim, has been working since June 6, 2012 to raise awareness about the risks of smart meter and other wireless radiation, how people can reduce their exposure, and make SMUD policies on analog meters and smart meters less hazardous and more responsive to customer needs.