Mays v. Snyder

323 Mich.App. 1

916 N.W.2d 227

Melissa MAYS, Michael Adam Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, Rhonda Kelso, and all Others Similarly Situated, Plaintiffs–Appellees/Cross–Appellees/Cross–Appellants,

v.Governor Rick SNYDER, State of Michigan, Michigan Department of Environmental Quality, and Michigan Department of Health and Human Services, Defendants–Appellants/Cross–Appellees,andDarnell Earley and Jerry Ambrose, Defendants/Cross–Appellants/Cross–Appellees,

and

City of Flint, Not Participating.

Melissa Mays, Michael Adam Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, Rhonda Kelso, and all Others Similarly Situated, Plaintiffs–Appellees,

v.Governor Rick Snyder, State of Michigan, Michigan Department of Environmental Quality, and Michigan Department of Health and Human Services, Defendants,andDarnell Earley, and Jerry Ambrose, Defendants–Appellants,

and

City of Flint, Not Participating.

Melissa Mays, Michael Adam Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, Rhonda Kelso, and all Others Similarly Situated, Plaintiffs–Appellees,

v.Governor Rick Snyder, State of Michigan, Michigan Department of Environmental Quality, and Michigan Department of Health and Human Services, Defendants–Appellants,andDarnell Earley and Jerry Ambrose, Defendants,

and

City of Flint, Not Participating.

No. 335555

No. 335725

No. 335726

Court of Appeals of Michigan.

Submitted January 9, 2018, at Detroit.

Decided January 25, 2018, 9:00 a.m.

Pitt McGehee Palmer & Rivers, PC (by Michael L. Pitt, Cary S. McGehee, Beth M. Rivers, and Peggy Pitt ), Goodman & Hurwitz, PC (by William Goodman, Julie H. Hurwitz, and Kathryn Bruner James ), Trachelle C. Young & Associates PLLC (by Trachelle C. Young ), Law Offices of Deborah A. La Belle (by Deborah A. La Belle ), Weitz & Luxenberg (by Gregory Stamatopoulos, Paul F. Novak, and Robin Greenwald ), and McKeen & Associates, PC (by Brian McKeen ) for plaintiffs.

Aaron D. Lindstrom, Solicitor General, Laura Moody, Chief Legal Counsel, and Richard S. Kuhl, Margaret A. Bettenhausen, Nathan A. Gambill, and Zachary C. Larsen, Assistant Attorneys General, for Governor Rick Snyder, the State of Michigan, the Michigan Department of Environmental Quality, and the Michigan Department of Health and Human Services.

Barris, Sott, Denn & Driker, PLLC (by Eugene Driker, Morley Witus, and Todd R. Mendel ), Special Assistant Attorneys General, for Governor Rick Snyder.

William Y. Kim and Reed E. Eriksson, Assistant City Attorneys, for Darnell Earley and Jerry Ambrose.

Before: Jansen, P.J., and Fort Hood and Riordan, JJ.

Jansen, P.J.

This case involves consolidated appeals from an October 26, 2016 opinion and order of the Court of Claims granting partial summary disposition in favor of defendants Governor Rick Snyder, the state of Michigan, the Michigan Department of Environmental Quality (DEQ), and the Michigan Department of Health and Human Services (DHHS) (collectively, the state defendants), and defendants Darnell Earley and Jerry Ambrose (the city defendants), who are former emergency managers for the city of Flint, in this putative class action brought by plaintiff water users and property owners in the city of Flint, Michigan. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURE

This case arises from the situation commonly referred to as the "Flint water crisis." The lower court record is only modestly developed, and the facts of the case are highly disputed. Because this is an appeal from an opinion of the Court of Claims partially granting and partially denying defendants' motion for summary disposition, we must construe the factual allegations in a light most favorable to plaintiffs.¹ The Court of Claims summarized the factual allegations in plaintiffs' complaint as follows:

From 1964 through late April 2014, the Detroit Water and Sewage Department ("DWSD") supplied Flint water users with their water, which was drawn from Lake Huron. Flint joined Genesee, Sanilac and Lapeer Counties and the City of Lapeer, in 2009, to form the Karegondi Water Authority ("KWA") to explore the development of a water delivery system that would draw water from Lake Huron and serve as an alternative to the Detroit water delivery system. On March 28, 2013, the State Treasurer recommended to the Governor that he authorize the KWA to proceed with its plans to construct the alternative water supply system. The State Treasurer made this decision even though an independent engineering firm commissioned by the State Treasurer had concluded that it would be more cost efficient if Flint continued to receive its water from the DWSD. Thereafter, on April 16, 2013, the Governor authorized then-Flint Emergency Manager Edward Kurtz to contract with the KWA for the purpose of switching the source of Flint's water from the DWSD to the KWA beginning in mid-year 2016.

At the time Emergency Manager Kurtz contractually bound Flint to the KWA project, the Governor and various state officials knew that the Flint River would serve as an interim source of drinking water for the residents of Flint. Indeed, the State Treasurer, the emergency manager and others developed an interim plan to use Flint River water before the KWA project became operational. They did so despite knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water and despite the absence of any independent state scientific assessment of the suitability of using water drawn from the Flint River as drinking water.

On April 25, 2014, under the direction of then Flint Emergency Manager Earley and the Michigan Department of Environmental Quality ("MDEQ"), Flint switched its water source from the DWSD to the Flint River and Flint water users began receiving Flint River water from their taps. This switch was made even though Michael Glasgow, the City of Flint's water treatment plant's laboratory and water quality supervisor, warned that Flint's water treatment plant was not fit to begin operations. The 2011 study commissioned by city officials had noted that Flint's long dormant water treatment plant would require facility upgrades costing millions of dollars.

Less than a month later, state officials began to receive complaints from Flint water users about the quality of the water coming out of their taps. Flint residents began complaining in June of 2014 that they were becoming ill after drinking the tap water. On October 13, 2014, General Motors announced that it was discontinuing the use of Flint water in its Flint plant due to concerns about the corrosive nature of the water. That same month, Flint officials expressed concern about a Legionellosis outbreak and possible links between the outbreak and Flint's switch to the river water. On February 26, 2015, the United States Environmental Protection Agency ("EPA") advised the MDEQ that the Flint water supply was contaminated with iron at levels so high that the testing instruments could not measure the exact level. That same month, the MDEQ was also advised of the opinion of Miguel Del Toral of the EPA that black sediment found in some of the tap water was lead.

During this time, state officials failed to take any significant remedial measures to address the growing public health threat posed by the contaminated water. Instead, state officials continued to downplay the health risk and advise Flint water users that it was safe to drink the tap water while at the same time arranging for state employees in Flint to drink water from water coolers installed in state buildings. Additionally, the MDEQ advised the EPA that Flint was using a corrosion control additive with knowledge that the statement was false.

By early March 2015, state officials knew they faced a public health emergency involving lead poisoning and the presence of the deadly Legionella bacteria, but actively concealed the health threats posed by the tap water, took no measures to effectively address the dangers, and publicly advised Flint water users that the water was safe and that there was no widespread problem with lead leaching into the water supply despite knowledge that these latter two statements were false.

Through the summer and into the fall of 2015, state officials continued to cover up the health emergency, discredit reports from Del Toral of the EPA and Professor Marc Edwards of Virginia Tech confirming serious lead contamination in the Flint water system, conceal critical information confirming the presence of lead in the water system, and advise the public that the drinking water was safe despite knowledge to the contrary. In the fall of 2015, various state officials attempted to discredit the findings of Dr. Mona [Hanna]–Attisha of Hurley Hospital, which reflected a "spike in the percentage of Flint children with elevated blood lead levels from blood drawn in the second and third quarter of 2014."

In early October of 2015, however, the Governor acknowledged that the Flint water supply was contaminated with dangerous levels of lead. He ordered Flint to reconnect to the Detroit water system on October 8, 2015, with the reconnection taking place on October 16, 2015. This suit followed. [Mays v. Governor , unpublished opinion of the Court of Claims, issued October 26, 2016 (Docket No. 16-000017-MM), pp. 3–6 (citation omitted).]

On January 21, 2016, plaintiffs brought a four-count verified class action complaint against all defendants in the Court of Claims "on behalf of Flint water users, which include but are not limited to, tens of thousands of residents ... of the City of Flint ...." Plaintiffs brought their complaint pursuant to the Michigan’s Constitution’s Due Process/Fair and Just Treatment Clause, Const. 1963, art. 1, § 17, and Unjust Takings Clause, Const. 1963, art. 10, § 2, alleging that since "April 25, 2014 to the present, [plaintiffs] have experienced and will continue to experience serious personal injury and property damage caused...