Judge: Schuette ‘superficial posturing’ in Flint case

Jennifer Chambers
The Detroit News

A federal judge called an attempt by Michigan Attorney General Bill Schuette to side with Flint residents in a lawsuit against the state “superficial posturing,” and said Schuette has created a “troubling ethical issue” that could delay the case that seeks to provide the city with bottled water delivery.

On Monday, U.S. District Judge David Lawson issued a 10-page opinion and order denying Schuette’s request to file an amicus brief in the case on behalf of “the people of the state of Michigan,” saying the motion is problematic for several reasons, including that assistant attorneys general have already appeared in the case on behalf of state defendants, including Gov. Rick Snyder.

“The proposed amicus brief has not introduced any new arguments or offered a perspective that has not been presented by the parties already. Instead, the attorney general has taken a position aligned with the plaintiffs and at odds with other attorneys in his own office,” Lawson wrote.

“In doing so, he has managed to inject a troubling ethical issue into this lawsuit, potentially complicating adjudication of the serious legal questions before the court, without adding anything of substance.”

Andrea Bitely, Schuette’s spokeswoman, said Schuette will not appeal this ruling.

“The attorney general respectfully disagrees with the ruling because safe water is his priority,” she said.

“We originally obtained concurrence from all parties prior to filing, and because it failed to include mention of the conflict wall in this case ... Attorney General Schuette will continue to fight aggressively for Flint families and remains thankful to the many Flint residents and elected officials who expressed their support of his actions,” Bitley said.

The denial came the day before Lawson is to take up an emergency motion in the case.

On Tuesday, Lawson must decide whether — and how — to force Michigan and Flint officials to comply with a largely ignored court order requiring door-to-door delivery of bottled water to Flint homes lacking a working water filter.

The emergency motion before Lawson in Detroit could result in a finding of contempt, an amended preliminary injunction or a new hearing to shed light on why state and city officials have failed to verify filter installation in many homes and have not expanded their limited water delivery program to go beyond requested deliveries.

Lawson issued his order on Nov. 10 that directed the state and city to pay for and provide four cases of bottled water per resident each week if officials can’t prove faucet filters are working to remove harmful lead.

Snyder’s administration has fought the order for the last two months, arguing it’s “overbroad” and the city lacks the financial resources to comply with it. State officials filed an emergency motion with the U.S. Sixth Circuit Court of Appeals to block the order and asked Lawson to stay his own order.

Lawson issued his order again on Dec. 2 while the state appealed his ruling. On Dec. 16, the federal appeals court refused to halt Lawson’s order.

According to state officials, the order would be a five-fold increase over current efforts and require another 137 trucks, hiring at least 150 additional people and “a warehouse so large it is not clear if one even exists in the Flint area” at a cost of more than $11 million per month.

Attorneys for state officials said in court filings in late December that it wasn’t “reluctant “to comply with the order, but faced “financial, logistical and practical difficulties” in doing so.

Anna Heaton, a spokeswoman for Snyder, said on Monday that attorneys for the state will provide the court on Tuesday with an update on the increased progress of the door-to-door teams checking on residents’ filters, as well as the improved water quality in the city of Flint.

“A blanket order to provide bottled water delivery would reduce the use of filtered water, setting the full water system’s recovery back significantly,” Heaton said.

Peter Henning, professor of law at Wayne State University and a former federal prosecutor, said Lawson cannot force the state to spend money it does not have, but he will want direct answers on why the order is not being followed, perhaps by high level state officials.

“He’s much more likely to demand more information and try to get to the bottom on this. To see if this is foot dragging or really an issue of a lack of resources,” Henning said. “The judge can demand senior level people come in, such as a state budget director, and come and explain why something that is there for three months has not been complied with.”

While the state appealed, Lawson wrote in his Dec. 2 order that the state has “the mistaken notion” the door-to-door delivery of bottled water will go to all Flint residents.

“The main thrust of the ordered relief is the proper installation and maintenance of tap water filters. For those homes that have properly installed and maintained water filters in place — which is the vast majority of residences, if the state defendants’ witnesses are to be believed — bottled water delivery is not necessary and was not ordered,” Lawson wrote.

Henning said the issue shows that the courts are not the best vehicle for solving the Flint water crisis. “It’s the government commuting resources to this. Judges can only do so much,” he said.

Snyder spokesman Ari Adler has told The News the state is delivering bottled water to Flint residents “when requested.”

In their filing, state attorneys note the state “continues to deliver water to residents who need it,” visiting between 1,440 and 1,550 homes each week in response to calls from its 211 water response service.

While testing shows lead levels in Flint water are on the decline, residents have been instructed to use only filtered or bottled water for consumption, and researchers have encouraged those practices until further notice from state or federal officials. No amount of lead is considered safe.

Pastor Allen Overton of the Concerned Pastors for Social Action, one of the plaintiff’s in the case, said on Monday his group remains committed to securing justice and safe drinking water for the people of Flint.

“As even the attorney general has acknowledged, the court order requiring filters and bottled water for those who need it is essential to protecting public health and preventing additional harms to Flint residents,” Overton said.

On Monday, Lonnie Scott, executive director of Progress Michigan, said Lawson was right to criticize Schuette’s shameless attempt to play on both sides of this case.

“Anyone who has been following Bill Schuette’s career carousel could tell what this was from the start: a shameless attempt to gain cheap political points off the backs of Flint families as the 2018 race for governor begins to heat up,” Scott said.