Update: The Flint water crisis is bound to spend the next few years tied up in court. On Wednesday, the fallout from Flint took a much different turn. Michigan's attorney general announced criminal charges against two state environmental regulators and a Flint water treatment plant supervisor. Prosecutors allege they tampered with evidence and willfully neglected their duty as public servants.
The criminal investigation could also lend credence to the myriad of class-action lawsuits filed on behalf of Flint families. There are at least four civil lawsuits filed so far against Michigan's government, including Michigan Gov. Rick Snyder (R), and several corporations, alleging families suffered acute health and economic loss when their water was poisoned with lead. But despite the failures that Snyder and many others have publicly acknowledged and the criminal charges, it will be difficult to sue the state for any money. Below, in a post from earlier this year, we explain why.
The suits vary in who they name, but all four broadly seek health and/or economic damages from lead-tainted water that the city piped into Flint residents' homes over a period of 18 months. Many state officials' emails and messages related to Flint, including Michigan Gov. Rick Snyder's (R), have been subpoenaed, and the suits could eventually wrap up thousands of Flint residents.
But as Reuters' Brendan Pierson reported recently, some of the nation's top environmental lawyers are staying on the sidelines because they don't think this is a fight Flint residents can't win.
Those lawyers have good reason to handicap these lawsuits like that, says University of Michigan law professor Gil Seinfeld. That's because in America, it is very difficult to sue the government and officials for money. In fact, the Supreme Court has (controversially) decided that the Constitution prohibits suits of this sort against the states.
The reason why goes back to a theory present in the founding of our government, an idea that was passed onto our nation's founders from England's monarchy: that the king is immune from legal liability.
Over the centuries, that idea has evolved here in the U.S. into two immunity doctrines that largely protect 1) the state government and 2) state and local officials from having to pay money for wrongdoing.
These two immunity doctrines are called "sovereign immunity" (for the state) and "officer immunity" (for officials). (Sovereign immunity exists for the federal government as well, but for our purposes, we're going to focus on the intricacies of immunity at the state and local level.)
The Fix took a crash course on constitutional law with Seinfeld to try to understand these two immunity rules and how they are going to make it very hard, if not impossible, for Flint residents to sue the state of Michigan for money. Here's what we learned:
First, the caveats:
Seinfeld is not affiliated in any way with the current lawsuits. Their success will depend on a lot of things the courts have yet to decide, like whether Michigan law has exceptions for sovereign immunity -- Reuters reports that it doesn't for the governor and other top officials -- and the argument the plaintiffs make.
(Interestingly, a lawyer involved in one of the lawsuits told Reuters the group is pursuing a creative argument to get around sovereign immunity: that the state denied citizens their basic constitutional rights by piping them water poisoned with lead for 18 months. But it's a gamble, because it appears there's no case law precedent for what they say they'll argue.(
Now, onto the fun part. Our conversation was edited for length and clarity.
THE FIX: Okay, let me get this straight. Our sovereign immunity doctrine is rooted in the English monarchy. But isn't the idea of a monarchy antithetical to America's system of government?
SEINFELD: Many people are deeply troubled by it. When I teach my students about this, many of them are outraged and mystified that we have this doctrine that feels like a kind of hangover for a monarchical system of government that's rooted in really different premises.
But make no mistake: This is a fairly deeply entrenched part of the law. It does work all the time. It shields government from suits under lots of different circumstances. And although it strikes many people as odd and ill-suited or a poor fit for our system of government, it is what it is, and sovereign immunity is definitely a vibrant part of the law.
THE FIX: So the Supreme Court has endorsed this rule?
SEINFELD: The Supreme Court really first decided in a case in the 1890s that sovereign immunity is rooted in the 11th Amendment [which deals with state immunity]. The court then more and more aggressively has since read the doctrine of sovereign immunity quite broadly — and more broadly, in fact, than the text of the Constitution imagines it.
But the question of what the 11th Amendment says and how it relates to sovereign immunity is hotly, hotly contested in constitutional law circles.
THE FIX: With the caveats that you can't predict the outcome for the current lawsuits pending, what does sovereign immunity mean for people in Flint who want to sue the state of Michigan to help pay for long-term health damage?
SEINFELD: 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.
THE FIX: And what about the idea for official immunity — that government officials themselves are protected by their own immunity doctrine. Where does that come from?
SEINFELD: So, this isn't derived from our Constitution, but this law comes from the concern that if government officials have to worry anytime they make a mistake that they could be subject to damages for violating someone's constitutional right, no one would take the job or do the job right.
This, too, is not some modern invention. But there's lots of bickering among lawyers about what official immunity should look like in modern times.
THE FIX: Official immunity has also been upheld by the Supreme Court?
SEINFELD: Yes. 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.
THE FIX: Are there any government agencies not protected under sovereign immunity?
SEINFELD: Municipal governments aren't protected by sovereign immunity. It doesn't fit with lots of other themes of immunity doctrine, but you can actually sue municipal and county governments even though you can't sue the state itself.
It means that at least in theory, you can get some damages from the city of Flint. But the plaintiffs would probably want to sue the state, because they're going to have a lot more money.