LANSING – The 6th U.S. Circuit Court of Appeals reversed Friday a district court’s denial of motions to dismiss against five Flint water crisis defendants including the former director of the Department of Health and Human Services and the state’s former chief medical executive, though it sided with the lower court in denying motions to dismiss filed by several other defendants.
U.S. Circuit Court Judge Richard Griffin in an opinion released Friday in Guertin et al. v. State of Mich., et al. (USCOA Docket No. 17-1698) reversed the earlier denial by U.S. District Court Judge Judith Levy on the motions to dismiss against former DHHS Director Nick Lyon, former chief state medical executive Dr. Eden Wells, former Department of Environmental Quality Director Dan Wyant and former DHHS employees Nancy Peeler and Robert Scott.
However, the court upheld the district court’s order denying the motions to dismiss against former Flint Department of Public Works Director Howard Croft, former Flint Emergency Manager Darnell Early, former Flint Emergency Manager Gerald Ambrose, DEQ drinking water official Liane Shekter-Smith, DEQ District Supervisor Stephen Busch, DEQ engineer Michael Prysby and former DEQ spokesperson Brad Wurfel.
In reversing the district court ruling and dismissing Lyon, Wells, Wyant, Peeler and Scott, the judge wrote that in viewing each defendant individually, “plaintiffs’ complaint alleges mere negligence, and not a constitutional violation against them.”
“The complaint sets forth no facts connected Lyon and Wells to the switch to the Flint River or the decision not to treat the water, and there is no allegation that they took any action causing plaintiffs to consume the lead-contaminated water,” Griffin wrote of Lyon and Wells. “Instead, plaintiffs claim generally that Lyon and Wells failed to ‘protect and notify the public’ of the problems with Flint’s water shortly before Flint switched back to DWSD. However, the Due Process Clause is a limitation only on government action.”
Griffin wrote that the reason for overruling the district court’s denial of motion to dismiss against Peeler and Scott was similar.
“As with Lyon and Wells, the allegations against Peeler and Scott relate not to the switch of water sources, but to how they processed – or rather did not process – data related to lead exposure more than a year later,” Griffin wrote.
Griffin said that plaintiffs did not plausibly allege that Wyant personally made any decisions in the water switch and could only hold him accountable for his own conduct and not that of his subordinates.
The decision to continue the action against Earley, Croft and Ambrose stems from each of them being the main individuals who prompted the city’s decision to make the switch in water source despite the water treatment plant not being ready to properly treat the water.
As it related to denying the motions to dismiss Busch, Shekter-Smith, Prysby and Wurfel, several instances of officials authorizing use of the Flint water treatment plant and making false statements regarding the safety of the water were the key parts of the decision.
The appeals court reviewed two issues. The first was whether the district court was mistaken in denying motions to dismiss based upon qualified immunity by looking at each defendant individually. The second was whether the city of Flint was entitled to immunity due to the state takeover of the city due to the state’s emergency manager law.
In the ruling, Griffin wrote that in proving a constitutionally protected liberty interest has been deprived, a plaintiff must show how the government’s discretionary conduct depriving that interest was “constitutionally repugnant” to establish a due process violation. Courts use a “shocks the conscience” rubric to determine intrusions into a person’s right to bodily injury.
The ruling cites instances of split-second decision making versus having time to deliberate, the nature of the relationship between the government and plaintiff and whether a legitimate government purpose motivated an official’s actions as examples of the measures of whether a decision violates due process.
Griffin wrote that there was extensive time to deliberate in the case of the Flint water crisis.
“All of the alleged decisions by defendants leading up to and during the crisis took place over a series of days, weeks, months, and years, and did not arise out of time-is-of-the-essence necessity,” Griffin wrote. “Their ‘unhurried judgments’ were replete with opportunities for ‘repeated reflection, largely uncomplicated by the pulls of competing obligations,’ and thus militate in plaintiffs favor.”
Regarding an involuntary relationship, Griffin wrote that transmission of drinking water to residents is in the city of Flint’s charter and code of ordinances. Further, he wrote, some defendants’ assurances of the safety of the water despite complaints from residents hid the risks in consuming the water, “turning residents’ voluntary consumption of a substance vital to subsistence into an involuntary and unknowing act of self-contamination.”
In citing a legitimate government purpose, Griffin noted that the change in the source of the city’s drinking water was an economic decision and when a government is acting for the benefit of the public a deliberate choice is typically not one that shocks the conscious.
However, he wrote there is a caveat to that general rule: “Acting merely upon a government interest does not remove an actor’s decision from the realm of unconstitutional arbitrariness.”
“Here, jealously guarding the public’s purse cannot, under any circumstances, justify the yearlong contamination of an entire community,” Griffin wrote.
Michael Pitt, one of the plaintiff attorneys in the Flint water lawsuits, said Friday the Guertin case was rolled into the consolidated class-action lawsuit against the various defendants named in the case.
Pitt said he was “very pleased and encouraged” that courts had consistently retained several defendants as part of the class-action case as it has proceeded.
The timing of Friday’s ruling also is a positive, he said. He argued that, with Governor Gretchen Whitmer having taken office, “we’re in a much stronger position” to reach a settlement in the cases.
This story was published by Gongwer News Service.