Attorneys challenge judge’s takeover of Flint suit

Jim Lynch
The Detroit News
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The Michigan Court of Claims’ chief judge is inserting himself into a class-action lawsuit against the state involving Flint’s contaminated water, triggering a challenge by attorneys representing Flint residents.

On Jan. 21, a group of residents sued Gov. Rick Snyder, Michigan’s Department of Environmental Quality, the state Department of Health and Human Services and two former Flint emergency managers over damages incurred from drinking the city’s lead-tainted water.

The case was filed with the Court of Claims, which handles citizen lawsuits against the state with potential values over $1,000, and assigned to Judge Mark Boonstra through the blind draw process. But Court of Claims Chief Judge Michael J. Talbot stepped in and assigned the case to himself, an uncommon move the Flint families’ attorneys have challenged as having at least “the appearance of impropriety.”

Plaintiffs attorney Michael Pitt said the blind draw should have been followed because it ensures the appearance of judicial fairness in reviewing court cases.

“Allowing judges to bypass the blind draw, especially in high-profile cases like the Flint water crisis, erodes the public’s confidence in the court’s impartiality,” Pitt said in an email. “The spotlight is on the court in cases like this. There is no better time for the court to scrupulously follow its own judge selection rules so that the public can be ensured that everyone involved in this case will get a fair shake.”

Talbot could not be reached for comment. But Jerome Zimmer Jr., chief clerk for Michigan’s Court of Appeals, said there was nothing controversial about Talbot taking on the case of the Flint residents.

“To me, that was not a reassignment,” Zimmer said. “We used Local Order 2015-2 for management purposes with regard to that case. Beyond that, I don’t have any comment.”

Local Administrative Order 2015-2 was enacted less than two months ago and allows the Court of Claims to bypass the blind-draw process in four scenarios. One of them lets the chief judge “address assignment of cases involving special issues or circumstances to promote efficiency in case management. This includes, but is not limited to, directing the clerk to assign multiple cases involving the same or similar parties, or the same or similar claims, to one or more judges.”

The other three scenarios that allow bypassing the blind draw are:

■If multiple actions are based on the same issue, the same judge will hear all of the cases.

■If a previously dismissed action comes back before the court, the original judge will hear it.

■If there are issues with “the frequency of random-draw assignments to the Chief Judge.”

None of those situations applies to the Flint case, lawyers for the Flint plaintiffs argued in the motion filed this month.

“This action — the only case filed in this forum arising from the transactions or occurrences set forth in the complaint — is not affected by any of the exceptions listed...,” wrote the plaintiffs’ attorneys. “Plaintiffs assert that this reassignment violated both the spirit and letter of the law and creates an improper appearance of bias that should be immediately corrected.”

In a new filing, the plaintiffs’ attorneys requested the court resubmit the assignment of the case through blind draw because Talbot’s move “violated both the spirit and letter of the law (and) creates an improper appearance of bias that should be immediately corrected ...”

Michigan’s Court of Claims has a controversial history. In late 2013, the Republican-controlled Legislature moved it out from under Ingham County’s liberal circuit court and placed it under the Michigan Court of Appeals, which is overseen by the GOP-dominated Michigan Supreme Court.

When Snyder signed the legislation in November 2013, he argued that the reforms would allow statewide representation of judges in hearing cases against local and state government compared with the 3 percent of Michigan’s population represented by Ingham County judges.

The Supreme Court named Talbot chief of the state Court of Appeals in November 2013. He previously served as a Wayne County Circuit judge and was appointed to the state Court of Appeals in 1988 by Republican Gov. John Engler.

Two other appeals court judges assigned to the Court of Claims were appointed by Democratic Gov. Jennifer Granholm and the other appeals court judge was selected by Engler.

In December 2014, Talbot delivered an unexpected victory to Snyder’s administration when he ruled Michigan did not have to refund more than $1 billion in tax breaks to out-of-state companies. A Michigan Chamber of Commerce official described the decision as “utterly disappointing and stunning.”

In the Flint case, should Talbot reject the motion or opt to toss the lawsuit, residents could take their objection to Michigan’s Court of Appeals, where Talbot is also the chief judge.

“The fact that the Chief of the Court of Claims ... is also the Chief of the Court of Appeals ... exacerbates the appearance of lack of neutrality in the judicial handling of this matter involving serious allegations against the highest state officials,” the residents’ attorneys argue in court filings.

But Michigan’s code of judicial conduct allows judges to disqualify themselves or have other parties raise the issue in an appeal to the broader state Court of Appeals.

“There is no specific court rule governing this situation, but invariably Court of Appeals judges disqualify themselves from any cases they were involved with at the trial level,” said John Nevin, a spokesman for the Michigan Supreme Court.

“The Court of Claims is no different. ... Among the specific grounds upon which disqualification can be based is when the judge has personal knowledge of disputed facts.”

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