By Harvey M. Sheldon
In a move that surprised some observers of the Flint Michigan drinking water crisis and saga, the former Governor of Michigan, Rick Snyder, was indicted earlier this month on two criminal charges of willful neglect of duty.
Factual Background
The facts surrounding the Snyder indictments involve his being informed in advance that there were definite as well as additional possible health risks involved in making the water supply switch, a move dictated primarily by a search for less expensive water. Because of the age and condition of the Flint system, the condition of the river water, and basic water delivery chemistry, the change resulted in there being pollutants, including lead leached from pipes, in the water delivered at peoples’ taps. Snyder allowed the change to proceed and only declared a crisis after serious harm was obviously occurring.
The Charges
Both are misdemeanor allegations that relate to the Governor’s participation in the replacement of the drinking water supply for Flint Michigan. At least a dozen deaths are attributed to drinking the replacement water drawn from the Flint River, which was known to be polluted, rather than purchasing water supplies drawn from Lake Huron. The charges were sought and are being advanced by the Attorney General of Michigan, Dana Nessel. Prosecution is in the hands of the Michigan Solicitor General and the Wayne County prosecutor. Eight other officials were indicted at the same time as Snyder, with the charges individualized for each. In two cases, the indictments include involuntary manslaughter felony allegations. In another, perjury is alleged.
Procedural Summary of Case
In mid-year 2020 the Sixth Circuit U.S. Court of Appeals had remanded to federal District Courts the pending class actions for tort recovery against Snyder and several other Michigan state and local government officials, finding that Snyder’s alleged conduct was egregious enough to believe he may be found by a jury to have violated the substantive due process rights of Flint citizens by his lack of actions to protect against dangers of illness explained to him. He is the first governor in Michigan history to face indictment for conduct in office.
Issue of Immunity
Throughout the saga there have been reports of officials at different levels of federal, state and local government not taking seriously enough or acting fast enough to prevent the foreseeable and foreseen problems of health issues for those Flint residents and others drinking the replacement water. Usually in the past, where tragedies have occurred, governmental officials have enjoyed the protection of immunities that are afforded by law. If the Flint saga teaches nothing else to lawyers and officials, those days of expected and rather regularly accorded immunity are apparently gone.
The Parties Weigh In
The criminal charges were denounced by several Flint activists as being a mere slap in the face. Some advocated for manslaughter charges that would result in hard time for the former governor.
Governor Snyder’s counsel denounced the indictment as a political stunt. Attorney General Nessel had ordered her predecessor’s investigation into the same situation curtailed, claiming that the investigation was not proceeding in a professional enough manner. She had then appointed the Solicitor General and Wayne County prosecutor to conduct a new investigation, from which the current indictments have resulted. A special grand jury consisting of a circuit judge reviewed the evidence and returned the indictments.
Conclusion and Implications
As these charges pend, a federal district judge in Ann Arbor has taken under advisement a proposed settlement on behalf of affected people in Flint. The settlement is valued at about $640 million, with not all potential defendant parties involved participating. The federal EPA itself, along with engineering firms, remain targets of additional litigation for tort recovery. Proceeds are to be distributed to citizens who drank the Flint water. The opposition to the settlement contends the money received per Flint resident, reportedly around $500, is too little to be serious compensation for the harms caused.
The case and defense of the governor may well explore the limits of power, both legal and practical, in the 21st century. Although governors of states are singularly powerful officials, their actions are constrained not only by state, but federal laws. Local decisions and authority also must often be consulted.
