By Steve Thorpe
Legal News
Attorneys from several firms have banded together to create the Flint Water Class Action Legal Team, which opened a local office and resource center for clients and Flint residents seeking information about their legal options. Bill Goodman practices civil rights law with Goodman & Hurwitz in Detroit. The firm represents families and individuals who have been victims of police and other governmental misconduct. Goodman has handled dozens of cases against governments, including the United States and various states, cities and counties. He served as special counsel to Detroit City Council in its historic struggle to remove Mayor Kwame Kilpatrick. Goodman has also served as legal director for the Center for Constitutional Rights (New York) and as president of the National Lawyers Guild.
Thorpe: Can you provide a brief history of the Flint Water Crisis?
Goodman: Since 2011, the City of Flint has been governed by one “Emergency Manager” (“EM”) after another. These appointed officials are creatures of the governor of Michigan, who serve at his pleasure and whim; they are not accountable to the people of Flint; and their only task was to balance the municipal books, as best they could, with little concern – in this case, virtually none – for public health or the well-being of the people.
In this regard, in 2013 the then current Flint EM decided that they should discontinue Flint’s contract with the City of Detroit for water and join another group, the KWA, which was creating a new pipeline from Lake Huron. Despite the fact that the new pipeline was not (and yet is not) completed, the EM unilaterally decided to terminate the Detroit water supply and temporarily replace it with water from the Flint River — a water source both highly toxic and highly corrosive.
In making this decision, the EM got a bright green light from the Michigan Department of Environmental Quality (MDEQ), notwithstanding Flint’s representation that it was “unprepared” to make the switch. This decision was undertaken on April 25, 2014, and was disastrous for a variety of reasons:
a. The MDEQ allowed untreated Flint River water to be used despite the fact that federal regulation requires it be so treated;
b. For months the MDEQ, the EMs and the Governor’s Office all ignored and attempted to discredit complaints from residents about water color, taste and odor —
that were loud and clear. Indeed, residents who complained were ridiculed by these very same public officials;
c. These very same public officials ignored, discredited and concealed reports of deadly legionella bacteria in the water within 3-4 months of the switch and
continued to do so for another 15 months;
d. When General Motors demanded that Flint River water be discontinued in GM facilities because it was causing unacceptable corrosion in GM machinery, these public officials paid no attention to the effect the very same chemicals would have on the human body;
e. They ignored, discredited and concealed reports of dangerous lead levels in the water within 6-8 months (late 2014) of the switch, and continued to do so for almost a year;
f. They falsely asserted that anti-corrosives were being used to treat the water;
g. They ignored, discredited and concealed reports of a spike in blood lead levels for Flint children in July 2015, and continued to do so for several months;
h. Almost worst of all, throughout this time, they persisted in reassuring the people, the parents and the grandparents of Flint, that it was safe to drink, bathe in, wash and cook with this poisonous brew, i.e. to relax;
i. And, unforgivably, they continued to render and to feed these toxins to the people of Flint, for which they were charged extremely high rates long after the grave dangers were known and acknowledged.
Finally, none of this would have happened had this been an upper-class, white community. The people would never have been stripped of their power to hold the decision-making officials accountable for their actions. Rather, it happened in Flint because its demographics – working class and predominantly African American – was subjected to the imposition of emergency managers who could not have been more indifferent to the welfare of the its people.
Thorpe: Tell us about the Flint Water Class Action Legal Team.
Goodman: We are six law firms that have come together to blend special expertise and experience in this unique and incredibly challenging case. We have lawyers from three Michigan firms. Goodman & Hurwitz (Detroit) and Pitt, McGehee, Palmer & Rivers (Royal Oak), which are nationally recognized for their excellence in civil rights litigation. We are also working with Trachelle Young and Associates of Flint.
Ms. Young is intimately connected to the Flint community and in close communication with its leadership.
In addition, we have partnered with two large national law firms that are recognized for their expertise in class action litigation. Weitz & Luxenberg (New York) and Milberg, LLP (New York/Detroit.) Weitz & Luxenberg specializes in toxic chemical disaster cases and lead exposures.
Everyone on this team has dedicated many decades of collective experience as peoples’ lawyers to demand answers from these so-called public servants and then to demand full justice, no matter the expense, either in dollars or in effort. To that end, we have opened and staffed an office in Flint where people can receive assistance and legal advice and representation on a full time basis
Thorpe: This may be one of the biggest cases of its kind ever. Can you provide a sense of the scale?
Goodman: Never have we seen a case like this, in which virtually every resident of a city this large is a potential victim of poisoning. Further, this disaster was in no way natural. It was caused by the discreet, deliberate action of a dozen (or so) rogue, cowardly and uncaring public officials. While thousands of victims have been involved in other disasters, none have been as universal and multifaceted as this – ranging from bodily damage including brain damage, from the very youngest (e.g. unborn infants) to the oldest victims (e.g. some of those killed by legionnaires disease). From emotional damage resulting from this disaster to huge property damage, rendering the homes and businesses of Flint valueless. This borders on the virtual death of a city.
Thorpe: How does the principal of “sovereign immunity” affect the lawsuits?
Goodman: The key case, amongst the cases brought by this legal team, is the case against these public officials brought under the Federal Civil Rights Act. These public officials enjoy absolutely no so-called “sovereign immunity” under the Civil Rights Act, for their individual, deliberately indifferent actions. This includes Governor Snyder. State law that provides immunity does not apply to actions based on violations of the United States Constitution. There is one form of sovereign under the Civil Rights Act, 11th Amendment immunity.
Although State officials may be brought to justice, the State of Michigan itself cannot be sued as an entity for violating the federal constitutional rights of the people of Flint. However, that can be, and is being overcome through a class action brought in the Michigan Court of Claims against the State for a violation of the Michigan Constitution Due Process Clause. There is no sovereign immunity in the Michigan Court of Claims for such cases.
Thorpe: These cases tend to progress slowly. Give us a possible timeline.
Goodman: Of course a case this vast and complex could take years for any final resolution. However, here these defendants know they have done many terrible things. To quote from the Flint Water Advisory Task Force, appointed by the governor himself:
“The Flint water crisis is a story of government failure, intransigence, unpreparedness, delay, inaction, and environmental injustice.”
Given this clear recognition of fault, as well as a series of frivolous defenses, asserted so far, it would seem both advisable and commendable for the State to energetically seek resolution. If so, it may be possible to resolve these matter within a few years.
Thorpe: The cases aren’t just about money and property values. There may be a staggering human toll. Tell us about that.
Goodman: If one considers those things in which we invest the essence of our soul and spirit – these are our families (especially our children), our own health, our friends, our homes, our neighbors and our communities. Thus, the injury to any one of these things is not only directly gut-wrenching and painful, it carries with it a huge emotional burden.
Now consider that it is not only one of these things that has been injured, damaged or destroyed, but rather all of them; and, it is not just the present time that bears this burden of fear and anxiety, but rather decades to come as we watch our kids grow and fear that the lead that may have damaged their brains, will manifest itself in some new, ominous and ugly manner. This is surely unbearable and it is not just one person or family who must endure it, it is an entire city.
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