In one of the first court decisions on the Flint water crisis, Mays v. Snyder, the Michigan Court of Claims has ruled that a major class action based on the state’s alleged violation of individual rights to bodily integrity under substantive due process can proceed. The court’s opinion begins with a detailed factual background based on allegations which would give rise to valid claims against the state for causing the Flint water crisis and state conduct that “shocks the conscience.” Further, the court held that the state’s actions could violate substantive due process “by knowingly and intentionally delivering drinking water contaminated with Legionella bacteria and dangerous levels of lead to a discrete population and thereby creat[ing] a public health emergency.” Under these facts, the decision thus recognizes a Constitutional right to safe drinking water.
Notably, the opinion is by Court of Appeals Judge Mark Boonstra, who was appointed by Governor Snyder. The Michigan Court of Claims is located within the Michigan Court of Appeals, and is the venue for claims against state, somewhat like the U.S. Court of Federal Claims. The decision is a major victory for the Flint plaintiffs, civil rights advocates, and the Flint Water Class Action team lead by Goodman & Hurwitz and Pitt McGehee Palmer & Rivers, P.C.
The following is a key excerpt of the Mays v. Snyder Court of Claims decision:
The state defendants assert that Count II of plaintiffs’ first amended complaint must be summarily dismissed … because plaintiffs have failed to satisfy the threshold criteria for the recognition of a viable cause of action for a violation of their respective individual rights to bodily integrity under the substantive due process component of Const 1963, art 1, § 17. Defendants further assert that Count II must be summarily dismissed … because plaintiffs have not stated, and cannot state, a cause of action for damages. The Court finds defendants’ arguments unpersuasive.
The Court begins its analysis of the merits of defendants’ arguments by examining the allegations of a substantive due process violation. Estate of Braman, unpub op at 7. Substantive due process has long been recognized, at least in the context of the federal constitution, as encompassing a “right to bodily integrity.” See, e.g., Albright v Oliver, 510 US 266, 272; 114 S Ct 807; 127 L Ed 2d 114 (1994); Sierb, 456 Mich at 523, 529 (interpreting the Michigan due process provision as “coextensive with the federal provision”). As observed above, an actionable constitutional tort does not exist unless a state “custom or policy” mandated the actions of the governmental official or employee and, thus, was the “moving force behind the constitutional violation.” Carlton, 215 Mich App at 505. A government’s policy or custom may be “made by its lawmakers or by those whose acts or edicts may fairly be said to represent official policy.” Monell v New York City Dep’t of Social Services, 436 US 658, 694; 98 S Ct 2018; 56 L Ed 2d 611 (1978). A single decision by such a body “unquestionably constitutes an act of official government policy” regardless whether that body had taken similar action in the past or intended to do so in the future. Pembaur v City of Cincinnati, 475 US 469, 480; 106 S Ct 1292; 89 L Ed 2d 452 (1986). “To be sure, ‘official policy’ often refers to formal rules or understandings – often but not always committed to writing – that intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time.” Id., 475 US at 480-481. In other words, “[i]f a decision to adopt that particular course of action is properly made by that government’s authorized decisionmakers, it surely represents an act of government ‘policy’ as that term is commonly understood.” Id., 475 US at 481.
In the present suit, plaintiffs allege that the Governor and the State Treasurer approved Flint’s participation in the KWA’s water delivery system, and that the State Treasurer, the emergency managers and other state officials, including state officials employed by the MDEQ, developed an interim plan to use Flint River water before the KWA project became operational and, through the implementation of that plan, delivered Flint River water to the taps of the Flint water users. These allegations, taken as true, establish a series of decisions to adopt a particular course of action made by the state’s authorized decision-makers and, thus, establish the existence of state policies. These policies played a role in the alleged violation of plaintiffs’ constitutional rights and the infliction of injury. Likewise, the alleged decisions of various state officials to defend the original decision to switch to using the Flint River as a water source, to resist a return to the Detroit water distribution system, to downplay and discredit accurate information gathered by outside experts regarding lead in the water supply and elevated lead levels in the bloodstreams of Flint’s children, and to continue to reassure the Flint water users that the water was safe and not contaminated with lead or Legionella bacteria, played a role in the alleged violation of plaintiffs’ constitutional rights and the infliction of injury. With regard to allegations of covering up the health crisis created by the switch to Flint River water, plaintiffs allege a coordinated effort involving, among others, MDEQ’s Chief of Office of Drinking Water and Municipal Assistance Liane Shekter-Smith, MDEQ’s Water Treatment Specialist Patrick Cook, MDEQ District Supervisor Stephen Busch, MDEQ Engineer assigned to Genesee County Michael Prysby, MDEQ spokesperson Brad Wurfel, and Michigan Department of Health and Human Services Director Nick Lyon. These latter allegations are sufficient, when taken as true, to establish a decision to adopt a particular course of action made by the state’s authorized decision-makers and, thus, establish that the state officers and employees’ alleged tortious conduct occurred while implementing a state policy.
The Court also concludes that plaintiffs have pleaded sufficient facts, if proven, that the actions taken by the state actors were so arbitrary, in a constitutional sense, as to shock the conscience. Plaintiffs allege that it was state actors who made the decision to switch to the Flint River as the source of drinking water, after a period of deliberation, despite knowledge of the danger posed by the water, without a state-conducted scientific assessment of the suitability of using water from the Flint River as drinking water and with knowledge of the inadequacies of Flint’s water treatment plant. They also allege that various state actors intentionally concealed data and made false statements in an attempt to downplay the health dangers posed by using Flint’s tap water, despite possessing scientific data and actual knowledge that the water supply reaching the taps of Flint water users was contaminated with Legionella bacteria and dangerously high levels of toxic lead, both of which were poisoning those drinking the tap water. Such conduct on the part of the state actors, and especially the allegedly intentional poisoning of the water users of Flint, if true, may be fairly characterized as being so outrageous as to be “truly conscience shocking.”
Defendants correctly observe that the California Court of Appeals has opined that an individual’s right to bodily integrity is not implicated in the context of public drinking water and that the neither state nor federal substantive due process protections guarantee a right to a healthful or contaminant-free environment. Coshow v City of Escondido, 132 Cal App 4th 687, 709-710; 34 Cal Rptr 3d 19 (2005). Indeed, the California court also noted that “the right to bodily integrity is not coextensive with the right to be free from the introduction of an alleged contaminated substance in the public drinking water.” Id. at 709. The court’s rulings were informed, however, by the fact that the alleged contaminating substance at issue was fluoride, and by the court’s acknowledgement that “courts throughout the United States have uniformly upheld the constitutionality of adding fluoride to the public water supply as a reasonable and proper exercise of the police power in the interest of public health” and that “[n]o court has recognized a substantive due process claim entitling citizens to drinking water in a form more pure than that required by federal and state drinking water standards.” Id. Coshow did not address whether substantive due process protections are implicated where state actors allegedly abuse state police powers by knowingly and intentionally delivering drinking water contaminated with Legionella bacteria and dangerous levels of lead to a discrete population and thereby create a public health emergency. Moreover, none of the cases relied on by the court in Coshow address circumstances even remotely similar to those present in this case. Thus, the Court finds that Coshow provides no persuasive rationale to support defendants’ request for summary disposition.
For the foregoing reasons, the Court concludes that plaintiffs have alleged sufficient facts, when taken as true, to establish a violation of each plaintiff’s respective individual right to bodily integrity under the substantive due process component of art 1, § 17. Summary disposition on that basis, pursuant to MCR 2.116(C)(8), is therefore inappropriate.