Many people hate public utilities. They may not be able to say why; they just don't like the electric company or the gas company or the water company. What accounts for this unusual show of passion may be the fact that utilities control our essential services. No one likes to be at the mercy of a large corporate enterprise. After all, if you don't like the electric service you're receiving, what can you do about it?
Most of the problems which arise with utilities do not involve the quality of the service but rather the cost. Utilities have a unique leverage to force payment; Pay up or live in the dark (or without heat or water). So what can you do when you receive a utility bill which you don't believe is correct? How can you contest the bill without having the utility company discontinue service? How can you force the utility to listen to you?
The answer lies in an 1871 federal law, called the 1871 Civil Rights Acts. What has civil rights got to do with utilities? For an answer, we need to go back to the civil rights movement and see how this law was used. Civil rights lawyers
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lawyers of the 1950's and 1960's frequently battled with municipal and state governments in an effort to secure rights for clients who were poor or members of
minority groups or both. These lawyers saw little hope of finding municipal or state laws to help their cause, so they turned to the federal government. Some lawyers lobbied for new laws. Others looked to the past to uncover old federal laws which could be used as the basis of a court action. Once in court, they hoped, a liberal judge would interpret the laws to establish hitherto unknown rights for their clients.
The lawyers looking to the past came across with an 1871 statute which, though only one sentence long, seemed to be suited to their needs. The law was aptly called a Civil Rights Act. It turned out to be extremely useful. Indeed the numerous victories achieved by civil rights lawyers using the 1871 Civil Rights Act have resulted in a body of law which everyone today can look to for assistance. As we shall see, this law is uniquely suited to be the basis for a super thereat to limit the arbitrary power of utilities to shut off services in the even that a disputed bill is not paid.
Today, the 1871 Civil Rights Act is tucked away in Title 42, Section 1983 of the United States Code. It is marvelously short and ,as laws go, simple: "Every person who, under color of any statute, ordinance regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Even a simple law has a way of sounding confusing, so let's translate it into everyday language. The law says that any person, acting on behalf of state or local government, who takes away your constitutional rights is liable to you in damages. For example, if a police officer beats you up while
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giving you a parking ticket, that officer has violated this law.
You have a constitutional right not to be wantonly beaten up, so the police officer is liable to you. most likely, this liability will be in the form of money damages, which the court will assess against him.
So far this law appears interesting. What makes it really intriguing is that the in the example we just gave you, the police officer would have to pay for any judgement against him out of his own pocket. Remember, this law protects you from persons acting for the state or local government. These people are civil servants---bureaucrats. they don't want trouble. However, under this law, civil servants and public officials cannot hide behind the state or local treasury. If they violate this law they are personally liable. As one court interpreting the law put it: "This statute authorizes the recovery of compensatory and punitive damages against an individual defendant for the unjustifiable violation of the constitutional rights of an individual plaintiff 'under color' of state law. Thus, the liability is entirely personal in nature, intended to be satisfied out of the individual defendants pocket." This law, therefore, provides a strong deterrent to state and local government officials and employees who might violate your constitutional rights.
There are innumerable situations in which
quoting from Section 1983 may be useful. In general, whenever a state or local government employee acts to take away what you believe are your rights, a cry of "1983" is in order. Certainly, there isn't a police officer in the country who doesn't cringe at the mention of the numbers "1983". But the law does not apply only to police. Every employee is covered, from the dog catcher to the mayor.
Why does this law apply to utilities? the
courts have concluded that a utility is more like a branch of government than a private corporation. Indeed, most state governments control utilities in and a number of ways. Thus, most
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courts have taken the view that the activities of a utility are essentially "under color" of a state law. therefore, the practices of a utility fall under the scrutiny of Section 1983.
Now that we know that Section 1983 applies, what constitutional right is violated if a utility terminates your service? The answer is that a utility may terminate service only after having investigated your reason for not paying. Indeed, some courts require a hearing before service may be terminated when a customer believes it is
erroneous. This requirement of a hearing derives from the basic rule in the Constitution that no person may be deprived of property without due process of law. Courts have held that utility services are "property". Therefore, you cannot have your utility service terminated without due process. And most courts have held that due process requires a hearing prior to termination.
If you've received
a turnoff threat form a utility, you have two choices: You can pay up and dispute the bill thereafter, or you can refuse to pay and use your non-payment as leverage to settle the disputed bill. We are not recommending one course of action over the other. We don't want you cursing us in the dark or cold. We know that some utilities have disregarded contempt orders from a court. For us to suggest that a super threat is guaranteed to keep the heat or electricity coming would be irresponsible. however, if you've decided to fight a utility's threatening "pay up or else," you're going to need a super threat.
There have been books written of dealing with utilities. They suggest everything from petitioning your local Public Service Commission to writing certified letters that you are in an electrically operated iron lung. In some cases these approaches
work. However, most utilities are so sued to receiving these kind s of letters that they will not be every impressed.
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impressed. They already know how to handle these claims. We don't think many utilities know what to do with our super threat.
Launching a super threat
Soft spot. The personal liability of the officers of the utility under Section 1983 is the soft spot. In addition, if the utility ahs not already been ordered by a court to institute due process into its service-termination procedures, your complaint will threaten to do so.
"In the matter of". Insert your name and account
Heading. Insert the name of the president or chief operating officer of the utility. You should have no problem getting this information from the utility. However, if it balks, contact our State Public Service Commission. also include the address of the main office of the
"Notice of Violation of United States Code, Title 42, Section 1983." This language will remain the same for all such super threats.
NOTICE OF VIOLATION OF UNITED STATES CODE
Title 42, Section 1983,
PLEASE TAKE NOTICE: Personal liability under Title 42, Section 1983
of the Untied States Code may result. You are hereby on NOTICE of the allegations and facts contained herein.
"Statement of Complaint." Here your should explain exactly why you dispute the bill that you have received. If your bill is unusually high, provide whatever information you have showing that previous bills were lower. If an opening
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opening volley has resulted in some explanation for the utiulty, state why you
are still not satisfied. Also, if any unusual damage might occur because of termination of service, spell this out. For example, if you have a heated greenhouse and termination of electrical service will kill the plants put this fact in your statement.
"Demand for action." There is no basis under law to demand that your bill be reduced. What you can and should demand is a proper
hearing on your claim. You should also demand assurance that your service will not be terminated until there has been a proper opportunity for you to present your case.
"Ultimatum." This language will remain constant for all such super threats.
In the even you fail to provide the due process requirements demanded above you shall be in violation of Title 42, Section 1983, the 1871 Civil Rights Acts. Liability under this act is personal
(see Collins v.Schoonfield, 363 F. Supp. 1152 (D.C. Md. 1973)).
Further, any damage which may result from suspension of service on the above-captioned account may be assessed against you under the Act or under a tort theory, Gilbert v. Duke Power Company, 179 SE2d (Sup. Ct. S.C. 1971), 112 ALR 232.
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