Judge: Flint residents can sue state over water crisis

Jennifer Chambers
The Detroit News

A Michigan Court of Claims judge has ruled Flint residents can indeed sue state officials for their decisions that led to the city’s drinking water contamination problems.

Judge Mark T. Boonstra, a Michigan Court of Appeals judge who presides over the Court of Claims, said residents have provided sufficient facts in their lawsuit against the state over contaminated water that “if proven” would show actions by the state were “so arbitrary in a constitutional sense, as to shock the conscience.”

Boonstra added claims by state officials that Flint residents did not file their lawsuit within six months of the water crisis date, which means their case should be dismissed, were “unpersuasive.”

“Were the court to accept defendants’ position, it would have to find that the plaintiffs’ claims are barred because they should have filed suit (or notice) at a time when the state itself was stating that it lacked any reason to know that the water supply was contaminated. The court is disinclined to so find,” the opinion stated.

In the action filed Jan. 21, Flint residents sued Gov. Rick Snyder, Michigan’s departments of Environmental Quality and Health and Human Services, and two former Flint emergency managers for roles that allegedly contributed to the city’s water crisis. The state did not acknowledge a lead problem existed in the water until October 2015.

In a 50-page ruling released on Thursday, Boonstra provided a mixed ruling, dismissing some claims in favor of the state of Michigan and preserving others that support Flint residents.

Boonstra addressed the issue of injury to bodily integrity, which Flint residents allege they are entitled to unspecified monetary damages.

Residents further allege state officials intentionally concealed data and made false statements in an attempt to downplay the health dangers posed by using Flint’s water tap and had possession of data that the water supply was contaminated with Legionella bacteria and dangerously high levels of lead.

“Such conduct on the part of the state actors, and especially the allegedly poisoning of the water users of Flint, if true, may be fairly characterized as being so outrageous as to be ‘truly conscience shocking.’”

Attorney Michael Pitt, who represents Flint resident Melissa Mays and others in this case, said Boonstra “decimated the state on this one.”

“The victors here are the people of Flint. They are going to get their day in court,” Pitt said. “The opinion is well-crafted. It showed tremendous amount of thoughtful analysis of the issues, and the judge is evidently very engaged in the case...

“He took the factual allegations of all the things the state did wrong, if what they say is true they meet the definition of shocking the conscience.”

In the lawsuit, Flint residents allege their property values have dropped and damage to plumbing, water heaters and service lines caused by the introduction of corrosive water caused by the April 2014 switch to the Flint River as the city’s water source, a cost-cutting move that began in June 2013 done by state-appointed emergency managers.

State officials also claimed the Court of Claims lacked jurisdiction over the claims because neither former Flint emergency managers Darnell Earley or Jerry Ambrose acted in the capacity of a state officer while serving Flint. They acted as local officials, attorneys for the state alleged.

Boonstra disagreed and wrote both men operated as officers of the state, which means the court has jurisdiction over the case. The Court of Claims handles citizen lawsuits against the state with potential damage values of more than $1,000.

In their case against the state, Flint residents also have proposed three theories of recovery for tort damages. First, a claim based on the idea of a state-created danger theory; second, a claim based on violation of a due process clause; and third, a claim based on violation of a fair and just treatment clause.

Boonstra said the state was entitled to summary disposition to the first and third claims but he would let the second stand, saying the residents have provided information to form a “cognizable substantive due process claim for a violation of their respective individual rights to bodily integrity.”

In the ruling, Boonstra wrote the plaintiffs have pleaded sufficient facts to state a cause for “inverse condemnation.”

“The allegations are sufficient, if proven, to allow a conclusion that the state actors’ actions were a substantial cause of the decline of the property’s value and that the state abused its power through affirmative actions directly aimed at the property, i.e., continuing to supply each water user with corrosive and contaminated water with the knowledge of the adverse consequences associated with being supplied such water,” the opinion said.

The case plaintiffs are seeking monetary damages from alleged violations of the due process of the Michigan Constitution.

The Michigan Attorney General’s Office declined to comment, referring questions to the governor’s office. Snyder spokesman Ari Adler said the office has no comment on pending litigation.

Senate Minority Leader Jim Ananich, D-Flint, said he is pleased with the opinion.

“The judge decided that the people of Flint should be allowed to seek the justice that they deserve in the courts. This decision supports what I’ve been saying all along — the emergency managers appointed during the Flint water crisis were acting as agents of state government who put the bottom line ahead of the health of Flint’s citizens,” Ananich said.