Attorneys who are structuring multiple class action lawsuits in response to Flint, Michigan’s ongoing water crisis now say that they will seek to circumvent the doctrine of sovereign immunity, which protects state government officials from being sued for damages arising from the city’s untreated water in 2014 and 2015. They are alleging that residents’ due process rights were violated because “the state of Michigan and its agents created a dangerous condition, and that the state and its actors are liable for the damages caused by this constitutional violation” (1). Our firm is not involved in these class action suits.
According to The Guardian, a legal team met with hundreds of Flint residents at a town meeting on Tuesday, February 16th, to discuss their strategies in coordinating at least nine [9] class action lawsuits in federal and state court requesting damages in excess of $1 billion (1). These lawsuits, filed against state officials and the engineering firm hired to inspect Flint’s water treatment plant, could potentially represent thousands of city residents.
Many national law firms have declined to formulate class action suits for the victims of Flint’s contaminated water, primarily because of the legal doctrine of sovereign immunity. While there are some exceptions to the protections afforded by sovereign immunity, in the state of Michigan laws upholding the principle are particularly unyielding:
“Sovereign immunity does not apply if the government or an employee infringes on the U.S. constitution, as in, for example, cases where police have allegedly violated someone’s civil rights. It also may not apply if the plaintiff can show there was gross negligence. Michigan law, however, shields the state’s topmost officials – including the governor, agency heads and Flint’s emergency manager – even in cases of gross negligence” (2).
Nonetheless, the Michigan-based law firms who have filed these current class action lawsuits are hoping to prove that governmental immunity does not apply because a constitutional violation, they believe, occurred: state of Michigan officials committed a Due Process violation by creating a dangerous condition that threatened the constitutional rights of its citizens to lead safe, healthy lives.
In an interview conducted by the Washington Post with University of Michigan law professor Gil Seinfeld, Seinfeld (who has no association with the current lawsuits) outlines how very difficult it is going to be for the class action lawyers to bypass the state’s sovereign immunity clause. Speaking with the caveat that he cannot predict the outcome of the pending lawsuits, he explains that:
“You’re going to run headlong into the garden-variety, fairly straight application of this immunity doctrine. So unless the state has consented to let itself be sued, it’s almost certainly not going to go anywhere … In the early ’80s, the Supreme Court said that if you’re suing an official and want to get money damages from them, they’re going to be immune from liability unless you can show that they clearly violated an established law that a reasonable person would have known about. But here you run into a question of money. The next question is whether these officials are indemnified [or, have insurance from the government in case they’re personally sued while doing their job]. If we’re talking about massive liability the citizens of Flint might have suffered — and really really significant damages — the likelihood that an official who made that decision is going to be able to pay off these plaintiffs is really small” (3).
Sources:
- Felton, Ryan. “Thousands of Flint residents could join ‘billion-dollar’ water crisis lawsuits.” The Guardian. Web. 17 Feb. 2016.
- Pierson, Brendan. “Plaintiffs’ lawyers wary of taking on Flint water scandal.” Reuters. Web. 25 Jan. 2016.
- Phillips, Amber. “Why it will be very difficult for Flint residents to sue Michigan for money.” The Washington Post. Web. 26 Jan. 2016.
Our law firm is not taking these cases.