Mays v. Governor of Mich.

Decision Date29 July 2020
Docket NumberDocket Nos. 157335-7,Calendar No. 2,Docket Nos. 157340-2
Citation506 Mich. 157,954 N.W.2d 139
Parties Melissa MAYS, Michael Adam Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, Rhonda Kelso, and All Others Similarly Situated, Plaintiffs-Appellees, v. GOVERNOR OF MICHIGAN, State of Michigan, Department of Environmental Quality, and Department of Health and Human Services, Defendants-Appellants, and Darnell Earley and Jerry Ambrose, Defendants-Appellees. Melissa Mays, Michael Adam Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, Rhonda Kelso, and All Others Similarly Situated, Plaintiffs-Appellees, v. Governor of Michigan, State of Michigan, Department of Environmental Quality, and Department of Health and Human Services, Defendants-Appellees, and Darnell Earley and Jerry Ambrose, Defendants-Appellants.
CourtMichigan Supreme Court

Bernstein, J.

This putative class action involves a series of events commonly referred to as the "Flint water crisis." Plaintiffs, who are water users and property owners in the city of Flint, sued former Governor Rick Snyder, the state of Michigan, the Michigan Department of Environmental Quality (MDEQ), and the Michigan Department of Health and Human Services (DHHS) (collectively, the state defendants).1 Plaintiffs also sued former city of Flint emergency managers Darnell Earley and Jerry Ambrose (collectively, the city defendants).2 The state defendants and the city defendants brought separate motions for summary disposition under MCR 2.116(C)(4), (7), and (8). Defendants argued that plaintiffs’ lawsuit should be dismissed because plaintiffs failed to provide timely notice and did not sufficiently plead their claims. The Court of Claims granted partial summary disposition to defendants on claims not relevant to the issues presented in this Court. The Court of Claims denied defendantsmotions for summary disposition with respect to plaintiffs’ claim for violation of their right to bodily integrity under the Due Process Clause of the 1963 Michigan Constitution, art. 1, § 17, and plaintiffs’ claim of inverse condemnation. The state defendants appealed, and cross-appeals followed. The Court of Appeals affirmed the Court of Claims. Both sets of defendants filed applications for leave to appeal in this Court. We granted leave to appeal, and after hearing oral argument on defendants’ applications, a majority of this Court expressly affirms the Court of Appeals’ conclusion regarding plaintiffs’ inverse-condemnation claim. The Court of Appeals opinion is otherwise affirmed by equal division. See MCR 7.315(A).


The trial court record is limited because defendants brought their motions for summary disposition before discovery could be conducted. The facts of the case are disputed. However, because this is an appeal from an opinion that mainly concerns motions for summary disposition under MCR 2.116(C)(7) and (8), we accept the contents of the complaint as true unless contradicted by documentation submitted by the movant3 and we construe the factual allegations in a light most favorable to plaintiffs.4 See Maiden v. Rozwood , 461 Mich. 109, 119-120, 597 N.W.2d 817 (1999). The Court of Claims summarized plaintiffs’ pleadings as follows:

From 1964 through late April 2014, the Detroit Water and [Sewerage] Department ("DWSD") supplied Flint water users with their water, which was drawn from Lake Huron. Flint joined Genesee, Sanilac, and Lapeer Counties and the City of Lapeer, in 2009, to form the Karegondi Water Authority ("KWA") to explore the development of a water delivery system that would draw water from Lake Huron and serve as an alternative to the Detroit water delivery system. On March 28, 2013, the State Treasurer recommended to [former Governor Snyder] that he authorize the KWA to proceed with its plans to construct the alternative water supply system. The State Treasurer made this decision even though an independent engineering firm commissioned by the State Treasurer had concluded that it would be more cost efficient if Flint continued to receive its water from the DWSD. Thereafter, on April 16, 2013, the Governor authorized then-Flint Emergency Manager Edward Kurtz to contract with the KWA for the purpose of switching the source of Flint's water from the DWSD to the KWA beginning in mid-year 2016.
At the time Emergency Manager Kurtz contractually bound Flint to the KWA project, the Governor and various state officials knew that the Flint River would serve as an interim source of drinking water for the residents of Flint. Indeed, the State Treasurer, the emergency manager and others developed an interim plan to use Flint River water before the KWA project became operational. They did so despite knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water and despite the absence of any independent state scientific assessment of the suitability of using water drawn from the Flint River as drinking water.
On April 25, 2014, under the direction of then Flint Emergency Manager Earley and the [MDEQ,] Flint switched its water source from the DWSD to the Flint River and Flint water users began receiving Flint River water from their taps. This switch was made even though Michael Glasgow, the City of Flint's water treatment plant's laboratory and water quality supervisor, warned that Flint's water treatment plant was not fit to begin operations. The 2011 study commissioned by city officials had noted that Flint's long dormant water treatment plant would require facility upgrades costing millions of dollars.
Less than a month later, state officials began to receive complaints from Flint water users about the quality of the water coming out of their taps. Flint residents began complaining in June of 2014 that they were becoming ill after drinking the tap water. On October 13, 2014, General Motors announced that it was discontinuing the use of Flint water in its Flint plant due to concerns about the corrosive nature of the water. That same month, Flint officials expressed concern about a Legionellosis outbreak and possible links between the outbreak and Flint's switch to the river water. On February 26, 2015, the United States Environmental Protection Agency ("EPA") advised the MDEQ that the Flint water supply was contaminated with iron at levels so high that the testing instruments could not measure the exact level. That same month, the MDEQ was also advised of the opinion of Miguel Del Toral of the EPA that black sediment found in some of the tap water was lead.
During this time, state officials failed to take any significant remedial measures to address the growing public health threat posed by the contaminated water. Instead, state officials continued to downplay the health risk and advise Flint water users that it was safe to drink the tap water while at the same time arranging for state employees in Flint to drink water from water coolers installed in state buildings. Additionally, the MDEQ advised the EPA that Flint was using a corrosion control additive with knowledge that the statement was false.
By early March 2015, state officials knew they faced a public health emergency involving lead poisoning

and the presence of the deadly Legionella bacteria, but actively concealed the health threats posed by the tap water, took no measures to effectively address the dangers, and publicly advised Flint water users that the water was safe and that there was no widespread problem with lead leaching into the water supply despite knowledge that these latter two statements were false.

Through the summer and into the fall of 2015, state officials continued to cover up the health emergency, discredit reports from Del Toral of the EPA and Professor Marc Edwards of Virginia Tech confirming serious lead contamination in the Flint water system, conceal critical information confirming the presence of lead in the water system, and advise the public that the drinking water was safe despite knowledge to the contrary. In the fall of 2015, various state officials attempted to discredit the findings of Dr. Mona [Hanna]-Attisha of Hurley Hospital, which reflected a "spike in the percentage of Flint children with elevated blood lead levels from blood drawn in the second and third quarter of 2014."

In early October of 2015, however, the Governor acknowledged that the Flint water supply was contaminated with dangerous levels of lead. He ordered Flint to reconnect to the Detroit water system on October 8, 2015, with the reconnection taking place on October 16, 2015. This suit followed. [Mays v. Governor , unpublished opinion of the Court of Claims, issued October 26, 2016 (Docket No. 16-000017-MM), pp. 3-6 (citation omitted).]

Plaintiffs brought suit against defendants in the Court of Claims, alleging, in part, a claim for inverse condemnation and seeking economic damages both for the physical harm done to their property as well as the diminution of their property's value. Plaintiffs alleged that despite both sets of defendants knowing that the Flint River water was toxic and corrosive, the state defendants authorized the city defendants to service their property with the Flint River water. As a result, plaintiffs alleged that their pipes, service lines, and water heaters were damaged. Plaintiffs also alleged that after the water crisis had become public knowledge, their property's value substantially declined.

Plaintiffs additionally brought a claim for violation of their right to bodily integrity under the Michigan Constitution's Due Process Clause, Const. 1963, art. 1, § 17. Plaintiffs alleged that despite knowing the dangers associated with switching the city of Flint's water source to the Flint River, defendants made the switch with indifference to the known serious medical risks and then misled and deceived the public while concealing information about the toxicity and corrosiveness...

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    ...of a constitutional right."The Legislature has never created an exception to immunity for a constitutional tort." Mays v. Governor , 506 Mich. 157, 187, 954 N.W.2d 139 (2020) (opinion by BERNSTEIN , J.). Nonetheless, in Smith v. Dep't of Pub. Health , 428 Mich. 540, 544, 410 N.W.2d 749 (198......
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2 books & journal articles
  • Constitutional Environmental Rights as Tools of Environmental Justice: Applications in the United States Based on Examples from Brazil and France
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