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Dems challenge state ban on city of Flint lawsuits

Melissa Nann Burke
Detroit News Washington Bureau

Democrats in Michigan’s congressional delegation want the U.S. Department of Justice to review the move by a state oversight board that would allow it to block any lawsuit by Flint against state officials over the city’s lead-contaminated water crisis.

The five Democrats, including U.S. Rep. Dan Kildee of Flint Township, argue the move was illegal and raises constitutional due process, equal protection and environmental justice issues, noting that Flint has a majority black population.

“Unfortunately, it now appears that the state is attempting to further abuse its authority under the (Emergency Manager Law) by preventing the City of Flint from pursuing legal claims should the State fail to make the City and its residents whole,” the lawmakers wrote Tuesday in a letter to U.S. Attorney General Loretta Lynch.

“It is a fundamental precept of due process that state officials are required to follow fair procedures before taking away life, liberty, or property — in this case, the right to seek legal redress from the state — and that government, regardless of the procedure afforded, may not exercise power arbitrarily or oppressively.”

The letter was signed by U.S. Reps. Kildee, John Conyers Jr. of Detroit, Sander Levin of Royal Oak, Debbie Dingell of Dearborn and Brenda Lawrence of Southfield.

“The state of Michigan should focus on bringing clean drinking water to the people of Flint, not maneuvering to prevent them from accessing the judicial system,” Kildee said in a statement.

The letter concerns the March 31 vote by the Flint Receivership Transition Advisory Board requiring that city-initiated litigation be approved by the board, which is stacked with gubernatorial appointees. The recommendation was approved by the state treasurer on April 5.

The Receivership Transition Advisory Board, or RTAB, was put in place by the state last year and empowered with the ability to veto budgets after the city’s last emergency manager departed in April 2015. The panel’s members were appointed by Gov. Rick Snyder.

The board approved the resolution a week after the city of Flint filed a notice in the state Court of Claims to preserve its right to sue the state over the city’s water becoming contaminated with toxic lead.

At the time, RTAB Chairman Frederick Headen, a Michigan Treasury Department official, indicated the resolution was needed to give the City Council more oversight of lawsuit settlements.

Snyder’s office has denied that the board’s resolution was designed to shield the administration from a lawsuit over the water crisis, saying the resolution was in line with the board’s role in overseeing large expenditures by the City Council.

“The RTAB already has language for consideration at tomorrow’s meeting that will help clarify things as to the RTAB’s original intent in this matter,” Snyder spokesman Ari Adler said Tuesday.

If approved Wednesday, that language would alter the March 31 resolution, so only the proposed settlement of litigation — not its initiation –– would require approval by the Receivership Transition Advisory Board.

In their letter Tuesday, the Democratic lawmakers said the state board had been reacting in “apparent retaliation” to Flint’s “routine notice” of intention to file suit against the state, which is necessary under Michigan law to preserve the ability to seek legal redress.

“As a matter of state law, prior constraint on Flint’s ability to seek judicial redress appears to exceed the governor’s authority” under the Emergency Manager Law, the lawmakers wrote, noting that the statute specifically limits the purpose of the board to monitoring local government affairs.

Also, while a governor may assign the board “any other duties,” he or she must do so “at the time the (board) is appointed,” the lawmakers wrote. In this case, the board wasn’t given the additional responsibility of approving litigation by the city until a year after the board’s appointment.

Flint Mayor Karen Weaver’s March 24 filing with the state Court of Claims cited “grossly negligent oversight” by the Department of Environmental Quality, whose decisions not to require corrosion control chemicals led to the leaching of lead into the drinking water and “irreversible” damage to municipal infrastructure.

The lawmakers said they’re concerned that the state might have violated Flint residents’ right to equal protection under the law, in part because Flint is a majority African-American city that is being denied the right to judicial redress.

Conyers said Tuesday that “much remains to be done in the pursuit of justice for Flint residents.”

“I urge DOJ to thoroughly investigate actions by Gov. Snyder and the Michigan Receivership Transition Advisory Board against the people of Flint,” Conyers said in a statement. “I will continue to monitor the situation in Flint in the months and years ahead.”

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