Judge keeps Nessel on Flint water lawsuits despite conflict complaints
A Genesee County Circuit judge ruled last week that Michigan Attorney General Dana Nessel’s office could continue representing both the state government and Flint residents in court despite allegations that the arrangement created a conflict of interest.
Genesee County Circuit Judge Joseph Farah said, despite some “causes for concern,” disqualification was a “drastic remedy.” Besides, he wrote Wednesday, several conflicts have been resolved since the issue was first raised in March 2019 by plaintiffs’ attorney Corey Stern.
“…to disqualify entirely the AG’s office from both cases would seem a heavy-handed incongruent remedy if based on speculated confidentiality breaches,” Farah said in his order. “If a harm is presented, a tailored, less draconian remedy should suffice.”
Stern said Monday he believed the court “got it wrong,” but Nessel’s office was pleased with the judge’s decision.
“We will continue to press forward with the litigation to ensure that the engineering defendants that caused or contributed to the Flint Water Crisis are held accountable for their actions,” said Ryan Jarvi, a spokesman for Nessel’s office.
Stern had asked the judge to disqualify the entire attorney general’s office from all Flint water lawsuits in Genesee County because of “irreconcilable conflicts of interest” created when the office assigned the same four assistant attorneys general to both defend state officials against lawsuits from Flint residents and claim civil damages on behalf of the state against engineering firms that performed work in the city prior to the crisis.
The alleged conflict occurred when Solicitor General Fadwa Hammoud replaced Special Assistant Attorney General Noah Hall with assistant attorney generals working to defend the state from civil lawsuits. Hall’s case was initiated on behalf of the people of Michigan against engineering firms LAN and Veolia, which contracted for work leading up to the Flint water switch in 2014.
The assistant attorneys general were placed in a situation in which they had to argue simultaneously that the people of Michigan were not harmed by the state and that they were harmed because of the actions of negligence of the engineering firms, Stern said.
Stern represents 2,500 Flint children suing the state, but Nessel’s office argued he lacked standing to file the motion.
Nessel’s ethics officer ruled that the appointments created no conflict because the office's interest in the “health, safety and welfare” of Michigan residents doesn't conflict with its sovereign interest in “protecting the state treasury."
Farah was hesitant about those claims, noting “attorneys who can argue one side of an issue on one case and then later the other side on another case are to be admired. But that admiration does not typically extend to presenting opposing arguments on basically the same case.”
Farah ultimately ruled a full disqualification on those grounds was drastic. But he also asked Nessel to detail the division of labor among the assistant attorneys general in to maintain confidentiality.
“Pragmatism reigns here over principle,” Farah said.