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Oct. 25 — Michigan’s congressional Democrats are questioning the constitutionality of a state resolution that essentially bars Flint from suing the state over its response to the city’s drinking water crisis.
And they want the U.S. Justice Department to look into it.
An Oct. 25 letter sent to U.S. Attorney General Loretta Lynch claimed the application of a resolution to Michigan’s Public Act 436 of 2012 “raises serious constitutional due process” issues and asked the attorney general to review its constitutionality.
“In terms of federal constitutional concerns, we would in particular ask that you review whether the State’s attempt to foreclose Flint’s legal authority to sue the State for the harms inflicted on the City’s residents implicates the Due Process Clause, Equal Protection Clause, and associated environmental justice concerns,” the letter from the state’s five Democratic members of Congress said.
Whether the letter will have any impact could hinge on the outcome of the Nov. 8 elections and which candidate will get to name the next attorney general. And Kristin Moore, spokeswoman to Flint Mayor Karen Weaver (D), told Bloomberg BNA the mayor has no immediate plans to sue the state. The city filed the paperwork to preserve the city’s right to file a lawsuit “if it is determined a lawsuit is necessary in the future,” Weaver said in March.
Flint is still grappling with problems caused by high lead levels in its drinking water. The city’s water source was switched from the Detroit water system to the Flint River to save money but chemicals were not added to protect residential tap water from lead leached from old service lines. Residents are still drinking bottled water.
The Public Act 436 of 2012 established the Flint Receivership Transition Advisory Board, which serves at the pleasure of the governor and is intended to help Flint transition out of its recent financial difficulties. A March 31 resolution amending the act gave the board authority to “review any potential litigation and labor disputes with the city’s chief legal officer” and that any initiation of litigation or the resolution of any litigation “shall not be effective unless approved by the board.”
Michigan Treasurer Nick Khouri April 5 approved the resolution.
The board was established when Flint was controlled by a state-appointed emergency manager, who attempted to assist the city deal with dire financial challenges. Five separate emergency managers served between 2011 and 2015.
Rep. Dan Kildee (D-Mich.), whose district includes Flint, questioned during an Oct. 25 news conference in Flint both the legality and tenor of the resolution.
“There’s nothing normal about the idea that the state government would use its power not just to take control of the city but then to deny the city the right to contest that control in the court of law. It is outrageous,” he said.
Kildee and Democrats Sander Levin, Debbie Dingell, John Conyers and Brenda Lawrence—five of the state’s 16 members of Congress—signed the letter.
The letter is available at http://src.bna.com/jC5
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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