Lawsuit targets state, Detroit over 'unconstitutional' water shutoffs

Christine Ferretti
The Detroit News

Detroit — A water rights group has joined a handful of residents in a lawsuit against Detroit and the state alleging constitutional violations and racial discrimination tied to water shutoffs and affordability practices. 

The federal lawsuit, filed Thursday by the American Civil Liberties Union of Michigan on behalf of six residents and the People's Water Board Coalition, targets Gov. Gretchen Whitmer, the City of Detroit and Detroit's Water and Sewerage Department as well as Mayor Mike Duggan and water department head Gary Brown.

(From left) Gary Brown, Director of the Detroit Water and Sewerage Department, Denise Fair, Chief Public Health Officer of the Detroit Health Department, and Detroit Mayor Mike Duggan hold a press conference at the Detroit Water and Sewerage department, March 9, 2020.

The 101-page lawsuit contends that the defendants have violated the Constitution by "exhibiting deliberate indifference to the known risks of living without water service that could, did, and will cause harm" to the plaintiffs.

The also allege that the city and its water department violated their equal protection rights by cutting off service without first determining whether the residents had the ability to pay. The policy, they say, violates the federal Fair Housing Act and the state's Elliott-Larsen Civil Rights Act "because it has a disproportionate and unjust impact on Black residents."

Brown, in a Thursday statement, said “it’s hard to understand how this lawsuit has any relevance today,” noting shutoffs were halted after the mayor and governor announced the restoration program four months ago.

The water department, he added, has gone door-to-door to 9,000 addresses to ensure water was flowing to occupied homes. Brown said the plaintiffs in the suit have “benefited from current programs.”

The city and its partners have distributed $20.3 million to Detroiters for water assistance since 2014. Duggan, he added, recently announced the formation of the Community Health Corps to create a team of outreach workers who will visit the homes of lower-income Detroit residents to make sure they have housing, water security and access to employment.

The governor also signed Public Act 101, which allocates $25 million for assistance for water bill payment.

The lawsuit argues that water is a human right and that access to safe, affordable water is critical — especially to stem the spread of COVID-19 during the ongoing pandemic. The city has been hard-hit by the virus, logging 11,870 confirmed cases and 1,452 total deaths as of Thursday.  

"In Detroit, however, thousands of residents — who are predominantly and disproportionately Black — have suffered from the lack of water service in their homes for years," the lawsuit reads. "These residents, many of whom have had their water service temporarily restored during the pandemic, will risk losing their water service again when Detroit resumes its water shutoff policy. The lack of water places these residents and members of their communities, including schools, workplaces, and other shared spaces, at risk of contracting bodily illnesses, including COVID-19."

The Thursday filing comes one day after Whitmer she was extending protections through the end of the year for vulnerable residents in Michigan who have had water service turned off. 

"While the governor's temporary moratorium on water shutoffs during the pandemic is a step forward, the moratorium will expire and Detroiters will once again be left without solutions and with huge bills they cannot possibly afford, forcing residents back into the cycle of water shutoffs," Mark Fancher, staff attorney for the Racial Justice Project of the ACLU of Michigan, said Thursday. "It is time to throw shutoffs on the dust heap of deeply disturbing practices that contribute to the structural racism our nation is finally attempting to dismantle.”

The governor's latest order extends a March mandate requiring public water suppliers to restore service to occupied homes that had been disconnected. It now will run through Dec. 31.

Duggan, during an unrelated Thursday news conference, said there haven't been shutoffs in Detroit in four months and assistance programs have been expanded. 

The mayor said the ACLU "couldn't find a single plaintiff who (currently) had their water shutoff to join the suit."

"Apparently, they sued in case the governor rescinds the moratorium in 2021," he said. 

Tiffany Brown, a spokeswoman for Whitmer, said the governor has been committed to ensuring clean water for all Michigan residents, noting her executive order to bar shutoffs and efforts that secured $25 million for bill forgiveness. 

"We do not comment on pending litigation, but going forward, the governor remains committed to working with the legislature and the federal government to develop long-term policy solutions to make water affordable for every family in Michigan," she said. 

The lawsuit contends that more that more than 141,000 households in Detroit had water service turned off between 2014 and 2018 over nonpayment. Some lived for years without water service and others have been trapped in a cycle of water insecurity, with repeat disconnections.

Besides the nonprofit water coalition, plaintiffs include Jacqueline Taylor, Lisa Brooks, Michele Cowan, Tuana Henry, Mattie McCorkle and Renee Wilson; all are Black Detroit residents and DWSD customers. 

•Taylor, 66, has a home health aide and an average monthly income of $860. She racked up an exponential bill shortly after getting a new toilet installed and being out of her home temporarily to recover from a hip surgery. When she returned, she had a bill close to $2,000 that ultimately climbed to $6,000. She lived without water from mid-2018 to March 2020.

•Brooks, 55, resides in the 48221 ZIP code, one of Detroit's hardest hit by the virus, in a rental home with her two teenage children. Her service was shut off in 2018 due to challenges with paying bills and she'd fallen off in past payment programs. She gets about $1,200 a month in income and suffers from pulmonary disease, diabetes, arthritis and breathing issues. Her arrearage is $2,000.

•Cowan, a home health aide, lives with her children and grandchildren and has a combined monthly income of about $1,300. She was disconnected in August 2019 for a $700 arrearage. 

•Henry, 45, has asthma and bronchitis and supports eight children. She earns $1,200 to $1,500 per month and previously enrolled in the city's Water Residential Assistance Program but was unable to pay. Her water service was disconnected several times between 2016 and 2020. Most recently, she lived without running water from May 2019 until March. 

•McCorkle, a married restaurant server and mother of three, had a household income of $22,000 in 2019. The family endured multiple shutoffs since 2016, did not qualify for help and needs plumbing repairs. 

•Wilson lives in Detroit’s Brightmoor neighborhood with her son and grandchild. Her monthly income is $659 and she's been turned off multiple times. Most recently, she lived without water from May 2019 to May 2020.

The ACLU said Thursday that none of the plaintiffs were available due to work schedules and other obligations. 

Whitmer teamed with Duggan in March to unveil the Water Restart Program aimed at restoring cutoff service in Detroit for a discounted rate. 

The suit alleges that Brown and Duggan failed to reconnect all residents without water. But Brown has countered that the city, by restoring 1,200 households, has reconnected all that are known to the department to be without service. He's also urged the public, water rights groups and residents who are living without water to contact the department and that service would then be quickly restored. 

The suit seeks a court judgment declaring the actions unconstitutional, a permanent injunction and damages. 

The city imposed an aggressive water shutoff policy while under emergency management during its bankruptcy to crack down on nonpayment. 

Under an agreement tied to its Chapter 9 filing, Detroit agreed to a 40-year lease of its water assets to a regional authority.

The deal also called for the creation of the Water Residential Assistance Program, a fund to aid low-income residents in Detroit and the suburbs. The city offers a separate program called the 10-30-50 plan, which has customers put a down payment of either 10%, 30% or 50% toward their past-due balance based on the number of payment plans they've entered into over the 18-month period prior to enrollment.

Advocates have long argued that the programs aren't sustainable for many of the low-income customers they are designed to help. The pandemic, the filing argues, has made it even more challenging for residents to seek help.

In July 2019, the ACLU asked the state Department of Health and Human Services to declare a health emergency and ban Detroit's service interruptions. 

The petition argued shutoffs could lead to water-borne epidemics and harm sick and young children. But the state found that while challenges faced by those shut off are significant, "they don't rise to the level of an imminent danger" under the public health code. 

The ACLU in the fall made its case to Whitmer directly, asking her to impose a moratorium on further shutoffs and lend her voice to the call for a water affordability plan. In February, an attorney for the governor said there was "insufficient data" to support a state-level moratorium.

“If state and city officials are serious about ending structural racism, as they claim to be, they can start by putting an end to Detroit’s water shutoff policy today and instituting an effective water affordability plan," said Coty Montag, senior counsel for the NAACP Legal Defense and Educational Fund Inc., a partner in the suit along with Detroit-based firm Edwards & Jennings, PC. 

Households in Detroit still without water should call the Wayne Metropolitan Community Action Agency at (313) 386-9727.