Democracy Watch: Appeals Court to Hear Lawsuits Over Detroit Water, State EM Law

POST BY Curt Guyette Investigative Reporter

Two important cases involving the ACLU of Michigan--one involving  water shutoffs in Detroit and the other a challenge to Michigan’s emergency manager law--will be heard by the U.S. Sixth Circuit Court of Appeals in Cincinnati next week.

The water shutoff case, Maurikia Lyda, et. al. vs. the City of Detroit, is fairly straightforward.

Brought on behalf of a group of Detroit residents and organizations that include the Michigan Welfare Rights Organization, People’s Water Board, the National Action Network Michigan Chapter and Moratorium Now!, the case reaches back to July 2014.

The city, then under the control of Emergency Manager Kevyn Orr, had begun ramping up shutoffs earlier that year. The result was more than 30,000 residential customers losing water service over an 11-month period.

With the city in bankruptcy, a lawsuit demanding a halt to the shutoffs was filed in the U.S. Bankruptcy Court. The Bankruptcy Court, and later the U.S. District Court, ruled that the case should be dismissed. The Sixth Circuit Court of Appeals is now being asked to weigh the argument being made by attorney Alice Jennings and other plaintiff attorneys (including the ACLU of Michigan and the Sugar Law Center for Economic & Social Justice) that Bankruptcy Court Judge Steven Rhodes improperly dismissed the claim and that the district court erred when it upheld that dismissal.

The city contends that both courts acted properly.

Since the shutoffs came to international attention in 2014, media coverage of the issue has largely evaporated. But the problem has not.  Following a winter hiatus, the city resumed shutting off water to thousands of customers in May.  

According to the most recent information available on the Detroit Water & Sewerage Department website, more than 11,000 residential customers were in danger of losing water service, and another 18,631 were “on the bubble,” meaning that they were at least 60 days past due and owed $150 or more. The situation remains dire despite a series of measures adopted by Mayor Mike Duggan’s administration to address the problem.

Instead of calling for the payment plans and financial assistance the city has offered, advocates continue to press the city to base charges on a customer’s ability to pay, with rates tied to income. In order to make sure water is affordable for everyone, poor people would pay less than others.  Expert Roger Colton contends that such an approach actually results in a revenue increase because people tend to make their payments when their bills are within financial reach, resulting in few shutoffs and higher overall collection rates.  

Oral arguments in this case will be held Tuesday. The ACLU of Michigan’s Mark Fancher will be arguing for the plaintiffs.

Emergency Management and Equal Protection

Of wider importance is the case involving Michigan’s emergency manager law, P.A. 436, oral arguments for which will be held in Cincinnati on Thursday.

The law grants unprecedented power to appointed emergency managers, who assume all the authority – and more – usually granted to local elected officials.

A lawsuit claiming the measure violates U.S. constitutional protections in a variety of ways was launched immediately after the law took effect in March 2013. That case, Catherine Phillips, et al. vs. Richard Snyder, et al., made it in front of U.S. District Court Judge George C. Steeh.

In November 2014, Steeh threw out eight of the nine counts listed in the original lawsuit. However, he ruled that the case could move forward based on the one remaining count, which rests on the position that the law adversely and unfairly affected African Americans. As noted in the lawsuit, 52 percent of African Americans in Michigan lost access to local democracy at some point because their cities were being run by emergency managers.

“This court is satisfied that at this juncture plaintiffs have pleaded a plausible equal protection claim based on the racial impact of P.A. 436’s implementation,” Steeh wrote in an opinion.

Attorneys for the plaintiffs are seeking to have the eight dismissed counts reinstated.

There is some irony to be found in the fact that, because of the slow roll of the judicial process, there is currently no Michigan city where an emergency manager in place. But that does not mean democracy has been restored. When emergency managers leave office, so-called “transition advisory boards” are appointed. These boards have the authority to reject budgets passed by elected officials and can also stop major contracts from going through.

In addition, school districts in Detroit, Highland Park and Muskegon Heights still are being run by emergency managers.

Regardless of the current status, lawyers for the plaintiffs argue that it is crucial that underlying constitutional issues involving the law be sorted out by the courts. “The facts arising as a result of P.A. 436’s enactment and implementations are novel and have not been imposed elsewhere in the history of the nation,” reads one brief submitted to the Court of Appeals.

At another point, the same brief notes: “The lead-poisoning of the Flint water supply and the ongoing failure of the Detroit Public Schools exemplifies the gross failures of P.A. 4 [which preceded the current law] and P.A. 436 to actually solve the problems they are purportedly designed to address and further exemplify the lack of public accountability and responsiveness upon which Michigan’s traditional forms of governance are based.”

The state is represented by the office of Michigan Attorney General Bill Schuette and state Solicitor General Aaron D. Lindstrom. They argue that P.A. 436 is constitutional because the state “has the power to structure – and thus, to temporarily restructure – its local governments when locally elected officials have been unable to achieve fiscal stability and significant local and state interests are at stake.”

The brief goes on to contend that the courts aren’t even the appropriate venue to challenge the law: “Plaintiffs’ battle against P.A. 436 must be fought through the political process.”

In other words, the state expects those who say they’ve been disenfranchised at the ballot box to win back their right to vote by using the very same process—voting—that emergency management was meant to nullify in the first place.

The same process that saw voters soundly reject the Snyder administration’s  first anti-democratic emergency manager law—only to see a very similar version quickly put in its place, but in a way to make it “referendum proof.”

 

Curt Guyette is an investigative reporter for the ACLU of Michigan. He can be reached at 313-578-6834 or cguyette@aclumich.org.

In other words, the state expects those who say they’ve been disenfranchised at the ballot box to win back their right to vote by using the very same process—voting—that emergency management was meant to nullify in the first place.

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