Divided Michigan Supreme Court allows Flint water crisis suit to proceed

Craig Mauger
The Detroit News

Lansing — A divided Michigan Supreme Court ruled Wednesday that a class action lawsuit by Flint residents against former Gov. Rick Snyder and state departments could continue despite the government defendants' bid to block it.

The state's high court ruled 4-2 that Flint residents' attempt to recover the value of property that had been allegedly improperly taken could continue through an inverse condemnation claim. And the court ruled 3-3 that their claim of a violation of bodily integrity could continue, allowing a Court of Appeals decision to stand.

Flint resident and community activist Melissa Mays, center, the Rev. Jesse Jackson and Phaedra Parks during the march.

Justice Beth Clement, a GOP nominee who worked for Snyder, did not participate in the case.

The lead plaintiff, Melissa Mays, and other Flint residents alleged that state officials and two state-appointed emergency managers knew that the Flint River water was toxic before authorizing its use for residents, setting off a lead contamination water crisis.

However, the state has maintained that the January 2016 lawsuit didn't comply with a six-month deadline after the event giving rise to the suit. The water switch occurred in April 2014.

It is too soon to tell whether the plaintiffs failed to meet the deadline, wrote Justice Richard Bernstein, a Democratic nominee, in the lead opinion. Bernstein said it would be simply "illogical" to block the suit if a "plaintiff had been exposed to the Flint water in the womb and thus suffered harm but had not yet been born as of April 2014."

"At this stage of litigation, it is not yet clear when plaintiffs suffered actionable personal injury as a result of their use and consumption of the contaminated water; in other words, it remains uncertain whether the personal injuries alleged would have occurred after just one sip of Flint River water."

The plaintiffs' claims about state officials' actions amounted to "more than a negligent decision," he wrote.

"Plaintiffs’ allegations, if true, are so egregious and outrageous that they shock the contemporary conscience and support a finding of defendants’ deliberate indifference to plaintiffs’ health and safety," Bernstein wrote.

Bernstein was joined by the other two Democratic nominees, Chief Justice Bridget McCormack and Megan Cavanagh.

Justice David Viviano, a Republican nominee, agreed with the three justices' finding on the inverse-condemnation claim. But he disagreed with the finding on the bodily integrity claim.

Viviano wrote that due process doesn't encompass a right "to be protected from exposure to contaminated water." He also wrote that he doesn't believe the plaintiffs' allegations met the bar of "conscience shocking."

"While hindsight shows that defendants’ decision to switch Flint’s water source has had tragic consequences, I do not believe that plaintiffs have shown that defendants were deliberately indifferent in their decision to supply Flint residents with an alternative water source," Viviano wrote.

Justices Brian Zahra and Stephen Markman — two other Republican nominees — dissented, saying the plaintiffs failed to meet state law's deadline for filing the suit.

The plaintiffs filed their suit on Jan. 21, 2016. Markman, who wrote the dissenting opinion, said they should have filed within six months of the event giving rise to the suit. The water supply switch occurred on April 25, 2014, he said, making the action "untimely."