Court: Judge shouldn’t have issued Flint orders

Jennifer Chambers
The Detroit News

The Michigan Court of Appeals has canceled three confidential protective orders issued by a Genesee County judge that limited state agencies’ access to Flint health data.

A three-judge panel issued its decision Tuesday, saying that 7th Circuit Judge Geoffrey Neithercut had no authority to issue them and the scope of his orders constituted an abuse of the judge’s discretion.

“We have no evidence that the Circuit Court exercised any discretion before issuing the protective orders. ... Furthermore, an order restricting the flow of information to a state agency, or curtailing a state agency’s ability to fulfill its statutory mandate, cannot rest on catchy phrases or naked assertions devoid of factual support. And nothing more than that has been presented to this court,” the opinion said.

Neithercut issued the orders earlier this year as part of Attorney General Bill Schuette’s criminal probe of Flint’s lead-tainted water crisis. Schuette’s investigation has brought charges against 13 government workers for their roles in the city’s water crisis, including two Flint emergency managers.

Neithercut’s orders restricted the ability of the state departments of health and environment to access patient information and directs the county health department to instead contact the federal Centers for Disease Control and Prevention for help investigating lead contamination or cases of deadly Legionnaires’ disease.

The legal spat over the protective orders between Gov. Rick Snyder’s administration and Schuette’s Flint team has come as the attorney general’s investigation has reportedly homed in on the Legionnaires’ outbreak in Genesee County.

The county had an outbreak of Legionnaires’ disease that killed 12 people and sickened 91 during the summers of 2014 and 2015. The county Health Department said Tuesday that is was investigating a new case of the disease, the 16th reported in the county this year.

“The No. 1 priority for the Department of Health and Human Services is to protect the public health,” Gov. Rick Snyder said Tuesday. “I applaud the Court of Appeals for overturning this inappropriate order that tied the hands of state employees and prevented them from doing their jobs.”

Timothy Winship, who has represented Neithercut in court, was not immediately available for a comment Tuesday.

Schuette has defended the court orders as an appropriate measure. His office is reviewing the latest decision, said Andrea Bitely, a spokeswoman for Schuette.

Conditions created by switching the city to Flint River water without adding proper corrosion controls in April 2014 stripped lead from water pipes and also created an environment for the deadly Legionella bacteria to thrive, according to Virginia Tech professor Marc Edwards.

In September, Neithercut amended his order, with his attorneys saying in a public filing that because Schuette and his team filed criminal charges against employees in both state departments as part of a probe, “it would be highly inappropriate to give plaintiff access to all the information involved in the investigation into plaintiff’s employees, under the guise of trying to protect public health. Doing so would compromise the integrity of the ongoing investigations.”

The Michigan Department of Health and Human Services, acting at Snyder’s behest, took its case to the Court of Appeals in May, asking it to intervene while arguing a protective order prohibits the state from fulfilling its duty to fully participate in Legionella investigations.

Neithercut first granted a protective order restricting state department access to Flint health data in June. The order was twice amended.

Attorneys for the U.S. Department of Health and Human Services also asked the appeals court to lift the orders, saying they threaten the federal government’s ability to respond to the city’s water contamination crisis and “puts the public’s health at risk.”