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Court: Flint lawsuits can proceed but not against state

Michael Gerstein
The Detroit News

Lansing — A federal appeals court is allowing two class-action lawsuits seeking financial damages over the Flint water crisis to continue but not against state agencies.

In a ruling released Friday, the 6th U.S. Circuit Court of Appeals overturned a lower federal court ruling that dismissed a major class-action lawsuit filed in 2015 on behalf of tens of thousands of Flint residents against Gov. Rick Snyder, the city of Flint and city officials who were involved in deciding to switch to the Flint River as its water source.

A three-judge panel reversed that decision while dismissing the possibility of seeking penalties for Snyder in one case, the state of Michigan, the state Department of Environmental Quality and the Michigan Department of Health and Human Services.

It allows plaintiffs to try to seek relief from Snyder in another case in the form of compensation for education, medical monitoring and evaluation services for ongoing harm from Flint’s contaminated water crisis.

Judge Jane Stranch — who wrote the opinion — and Judges R. Guy Cole and Judge Bernice Donald argued that the 11th Amendment gives the state and Snyder immunity against damages sought by private citizens. All three judges were appointed by Democratic presidents — Stranch and Donald by Barack Obama and Cole by Bill Clinton.

The court instead allowed cases seeking financial damages against individual state employees, the city of Flint, city employees and state-appointed emergency managers to proceed.

Attorney General Bill Schuette and his legal team have pursued criminal and misdemeanor charges against or accepted plea deals with 15 people including former Flint employees and former and current state officials, as well as two former Flint emergency managers appointed by Snyder, a Republican.

The class-action lawsuits involve Flint residents who experienced personal injury and property damage from the Flint River decision after they were exposed to toxic lead that leached from the city’s pipes into the water supply.

Emergency managers made the decision to switch to the Flint River, and state officials and local officials apply corrosion control chemicals that would have prevented the lead leaching.

Plaintiffs alleged that their constitutional rights were violated and that they were deprived of “the equal protection of the laws, or of equal privileges under the laws,” according to the court’s opinion.

The lower court ruled that the Safe Drinking Water Act stopped the plaintiffs from seeking damages, but the appeals panel ruling allows U.S. District Judge Judith Levy to continue weighing the issue.

One plaintiff attorney, Cary McGehee, previously characterized the lower court’s ruling as a “temporary setback” and expressed optimism that they could succeed on appeal.

Plaintiffs had asked for compensation, punitive damages and support for education, jobs and nutrition for those who had consumed Flint water.