Appeals court reverses federal judge; says Flint water lawsuits can proceed

Flint water suits

The U.S. 6th Circuit Court of Appeals on Friday reversed a federal judge’s decision to dismiss two lawsuits filed by Flint residents over the contamination of their drinking water, saying parts of the lawsuits can proceed to trial.

It’s a partial victory for Flint activist Melissa Mays and other plaintiffs.

A three-judge panel unanimously reversed parts of orders issued by U.S. District Judge John Corbett O'Meara of Ann Arbor, who had dismissed the lawsuits.

"It's really a very important decision," said Royal Oak attorney Michael Pitts, who represents Mays and other plaintiffs in one of the two lawsuits.

"It's a good day for the people of Flint."

In one lawsuit, Flint residents Beatrice Boler, Pastor Edwin Anderson and Alline Anderson, as well as EPC Sales LLC, a Flint business, sued former Flint emergency managers Darnell Earley and Gerald Ambrose, former mayor Dayne Walling, Gov. Rick Snyder, the State of Michigan, the Department of Environmental Quality and the Department of Health and Human Services.

Among their allegations was violation of their constitutional rights to due process and equal protection, breach of contract, unjust enrichment, and gross negligence.

O'Meara dismissed the lawsuit for lack of jurisdiction. He said the residents' claims related to violation of their civil rights were precluded by the Safe Drinking Water Act. Once those removed, only claims under state law remained, meaning the suit could not proceed in federal court, the judge said.

In the other lawsuit, a proposed class-action, Mays sued on behalf of herself and her three children, along with Flint residents Keith John Pemberton, Elnora Carthan and Rhonda Kelso. They named as defendants Snyder, the State of Michigan, Earley,  Ambrose, and former emergency manager Ed Kurtz; Walling, the City of Flint; and several current and former state, city and county officials.

The Mays suit alleged violation of constitutional rights to due process, equal protection, and bodily integrity, as well as intentional racial discrimination, among other counts.

O'Meara also dismissed the Mays suit, citing essentially the same reasons he gave when he dismissed the Boler suit.

Part of O'Meara's reasoning was that under federal law, citizens suing over the right to "safe and potable water" are generally supposed to sue under the Safe Drinking Water Act.

But the appeals panel said the Safe Drinking Water Act does not preclude certain constitutional claims, particularly when the claims relate to rights beyond those set out in the statute.

And the panel noted the Safe Drinking Water Act does not provide for recovery of damages or other monetary relief.

The plaintiffs argue the constitutional rights they allege were violated "diverge significantly" from the rights and protections provided by the Safe Drinking Water Act, and "we agree," wrote Judge Jane Stranch, joined by Chief Judge Guy Cole, Jr. and Judge Bernice Donald.

For example, if drinking water was polluted by a contaminant not regulated by the Safe Drinking Water Act, such a situation may not violate the act, but "could create an equal protection issue, particularly if such distinction were based on intentional discrimination or lacked a rational basis," the court said.

The panel did dismiss all claims against the State of Michigan, the DEQ and DHHS, saying those entities enjoy sovereign immunity against such lawsuits. They also dismissed the claims against Snyder in the Boler suit. But they said claims against Snyder in the Mays lawsuit and and against all other individuals named as defendants in both lawsuits can proceed.

Flint's drinking water became contaminated with lead in April 2014 while the city was under the control of a state-appointed emergency manager. As a cost-cutting move, the city began temporarily drawing its drinking water from the Flint River and treating it at the city water treatment plant while it waited for a new water pipeline to Lake Huron to be completed.

Previously, the city used Lake Huron water treated by the Detroit Water and Sewerage Department. The state Department of Environmental Quality has conceded it failed to require needed chemicals to be added to the corrosive Flint River water. As a result, lead leached from pipes and fixtures into the drinking water.

Immediate complaints about the taste, appearance and smell of the water were largely ignored by the state, which also dismissed early concerns about tests showing a spike in lead levels in the blood of Flint children. It wasn't until early October -- months after outgoing Snyder chief of staff Dennis Muchmore raised concerns in a July 2015 e-mail that the legitimate concerns of Flint residents were being "blown off" -- that Snyder and other state officials acknowledged a major problem.

The water switch is also suspected as a possible source of outbreaks of Legionnaires' disease linked to a dozen deaths.

Attorney General Bill Schutte has brought criminal charges against 15 current or former state and city officials. Those charges are pending.

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© 2017 Detroit Free Press


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