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A federal appellate panel Tuesday upheld its June ruling that former Gov. Rick Snyder and former state treasurer Andy Dillon could not be shielded from certain depositions in civil litigation related to the Flint water crisis.

A three-judge panel on the Sixth Circuit U.S. Court of Appeals denied Snyder and Dillon's motion for an en banc review, or reconsideration of the appeal by the full Sixth Circuit rather than the three member panel. 

The panel concluded Tuesday that the issues raised in Snyder's and Dillion's request "were fully considered upon the original submission and decision of the case."

"The petition then was circulated to the full court," the panel said. "No judge has requested a vote on the suggestion for rehearing en banc."

The three circuit judges were Gilbert Merritt, an appointee of former President Jimmy Carter; Karen Moore, an appointee of former President Bill Clinton; and Eric Murphy, an appointee of President Donald Trump. Moore wrote the opinion.

Snyder and Dillon had requested that they be shielded from depositions in which they would be used as "non-party fact witnesses" in civil litigation connected to the water crisis.

Their request was filed by Attorney General Dana Nessel's office, which has set up a fire wall among attorneys defending the state from Flint-related civil litigation and those prosecuting state officials over the same actions associated with the Flint water crisis. 

The crisis triggered by a switch to Flint River water while the city was under emergency management eventually resulted in lead-contaminated drinking water as well as two Legionnaires' disease outbreaks that experts believe were connected with the water change. 

After the source change, city officials didn't add the proper corrosion controls based on the advice of state environmental officials, which resulted in lead leaching from lead service lines and into the tap water of Flint homes.

Former special prosecutor Todd Flood and his team — appointed by former Michigan Attorney General Bill Schuette — had charged 15 state and local officials with crimes and reached plea deals with some when Nessel took office in 2019.

But Solicitor General Fadwa Hammoud last year ordered a new review of the Flint investigation and dismissed all criminal charges in the investigation into the lead-tainted water. No new charges have been authorized.

The state argued in the June 5 motion for an en banc hearing that Snyder and DIllon should be shielded from the depositions in the same way that former Department of Environmental Quality Director Dan Wyant, Michigan Department of Health and Human Services Director Nick Lyon and Chief Medical Executive Eden Wells were dismissed from the civil lawsuits. 

"Plaintiffs allege here that Gov. Snyder approved the water source switch," the motion read. "But Plaintiffs also allege that his approval was based on Dillon's approval, which in turn rested on the approval of Director Wyant.

"Like Director Wyant, Snyder and Dillon can only be held 'accountable for [their] own conduct.'"

Additionally, Snyder and Dillion argued, the ruling threatens qualified immunity and the rights afforded the governor to do his or her job without fear of litigation. 

"The governor of a state perennially makes decisions to address pressing problems with scarce resources and oftentimes, as here, with conflicting information," the motion said. "The panel’s decision subjects those difficult decisions to second-guessing." 

eleblanc@detroitnews.com

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