Court of Appeals breathes life into lawsuits against Flint emergency managers

Former emergency managers in Flint acted as officers or employees of the state before and during the city’s water crisis and lawsuits against them must be considered by the Michigan Court of Claims, the state Court of Appeals said in a decision Thursday, Jan. 24.

In the 17-page unpublished decision, the Appeals Court agreed with attorneys for Flint residents and property owners who sued officials including former emergency managers Mike Brown, Gerald Ambrose, Ed Kurtz and Darnell Earley in 2016.

In a consolidated appeal, the residents and property owners contended -- and the Appeals Court agreed -- that the Court of Claims had mistakenly dismissed the emergency managers from the lawsuits when they granted motions for summary disposition due to a lack of jurisdiction.

The Court of Claims is limited to hearing all civil actions filed against the state and its agencies, and the lawsuits named the emergency managers as defendants along with Gov. Rick Snyder, the Michigan Department of Health and Human Services and the state Department of Environmental Quality.

In the same opinion, the Appeals Court also ruled that the Court of Claims must also consider the personal injury claims of residents and property owners based on constitutional violations of their right to due process and allowed one type of inverse condemnation claim to go forward.

The inverse condemnation claims are based on damage done to home water service lines and resulting loss in property values due to the water crisis.

Valdemar L. Washington, one of the attorneys in the cases, said the Appeals Court decision means the issues will rightly be decided in the Court of Claims.

There is no immediate timetable for those issues to be considered, Washington said Friday, Jan. 25.

The issue of responsibility for the actions of emergency managers here has been debated since before they made a series of decisions that lead to Flint’s water source being changed to the Flint River in April 2014.

The state has maintained, for example, that attorney fees for the emergency managers who worked in Flint are the responsibility of the city -- something that Gov. Gretchen Whitmer’s office said this month in now under review.

The Appeals Court opinion says it is “beyond dispute that an emergency manager operates as an administrative officer of the state.”

“Whether or not the emergency managers had contracts labeling them as independent contractors is irrelevant,” the decision says. "It is undisputed that an emergency manager is appointed by the governor and serves at the pleasure of governor ...

“The state controls the emergency manager’s actions.”