Melissa Mays v. Governor Rick Snyder

Citation: Not availableDocket: 335726

Court: Michigan Court of Appeals; January 24, 2018; Michigan; State Appellate Court

Original Court Document: View Document

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In a consolidated appeal involving a putative class action by Flint water users and property owners, the Court of Appeals is reviewing the Court of Claims’ decision that partially granted and denied defendants’ motions for summary disposition. The defendants, including Governor Rick Snyder and various state departments, are appealing, while the plaintiffs are cross-appealing. A dissenting opinion argues for reversal of the trial court's order, stating that the plaintiffs did not comply with the notice requirement under MCL 600.6431(3) of the Court of Claims Act, warranting dismissal of their claims. The court reviews motions for summary disposition and statutory interpretation de novo, aiming to discern legislative intent from clear statutory text. It emphasizes that governmental agencies in Michigan generally have tort immunity and that the Legislature alone determines the terms under which the state may be sued, including procedural requirements such as notice provisions. The judiciary cannot modify these legislative terms and must enforce clear statutory language as written.

The notice provision of the Court of Claims Act (MCL 600.6431) establishes strict conditions for suing the state, requiring claimants to file either a written claim or notice of intention within one year of the claim's accrual, detailing the claim's nature and the damages sought, and verified by an authorized officer. For property damage or personal injury claims, this notice must be filed within six months of the event. The Michigan Supreme Court has emphasized that compliance with these statutory requirements is mandatory, and failure to do so results in dismissal of the claim, regardless of any prejudice. Courts have consistently upheld that reasonable procedural requirements can be imposed by the Legislature, including limitations periods, even regarding constitutional violations.

However, an exception was noted in the case of Rusha, where the court suggested that if the notice provision is found to be excessively harsh and unreasonable, it could effectively deny plaintiffs access to the courts. Plaintiffs argued for an exception based on this reasoning, but the court expressed skepticism regarding the harshness of applying the notice requirement in this instance. The court highlighted that the plaintiffs had sufficient indications of harm within six months of the incident that could have prompted timely filing. The court concluded that the circumstances did not warrant viewing the notice provision as unreasonable or harsh, especially since prior events had already alerted the plaintiffs to their potential claims.

The Court addressed whether it could create an exception to the notice requirements of MCL 600.6431(3) based on "harsh and unreasonable" consequences, referencing the Michigan Supreme Court's ruling in McCahan, which prohibits judicially created exceptions to clear statutory mandates. The Court emphasized that if the Legislature intended for such an exception, it would have explicitly included it in the statute. The majority's decision in the current appeal, as well as in Rusha, was deemed erroneous for attempting to create this exception.

Additionally, the plaintiffs claimed that defendants’ fraudulent concealment warranted tolling of the notice provision. However, the Court disagreed, stating that the language of MCL 600.6431 does not allow for tolling in this manner, as the fraudulent concealment exception is specific to statutes of limitation under the Revised Judicature Act (RJA) and does not apply to notice provisions. MCL 600.6452(2) incorporates the fraudulent concealment exception into the limitations section but does not extend it to the notice requirement of MCL 600.6431. The Court concluded that statutes of limitation and notice requirements are distinct, and the legislative intent was clear in not allowing tolling of the notice period. Consequently, the Court determined that it must now evaluate whether the plaintiffs’ claims adhered to the notice requirements outlined in MCL 600.6431(3).

The plaintiffs failed to file a separate notice of intent before initiating litigation on January 21, 2016, which is critical for compliance with the notice provisions of the Court of Claims Act (CCA), specifically MCL 600.6431(3). To meet this provision, the event giving rise to the cause of action must have occurred within six months preceding this date. This raises the question of how to interpret “the happening of the event” in relation to the CCA’s notice requirements. MCL 600.6431(1) mandates that any claim against the state must be filed within one year after it has accrued, while MCL 600.6431(3) allows a shorter timeframe of six months for claims involving property damage or personal injury. The Michigan Supreme Court's ruling in McCahan clarified that the provisions in the statute should be read cohesively; subsection (1) sets the general notice requirement, and subsection (3) modifies the timing for specific cases without altering the substantive requirements of subsection (1). Therefore, the phrase “the happening of the event giving rise to the cause of action” in subsection (3) is interpreted as equivalent to “accrued” in subsection (1). This interpretation aligns with the Court's conclusion that the only significant change in subsection (3) is the reduced timing requirement for certain claims. Consequently, to assess whether the plaintiffs’ claim filed on January 21, 2016, satisfies MCL 600.6431(3), it is crucial to establish when their claims accrued, noting that the CCA does not provide a definition for claim accrual.

The fraudulent concealment provision of the RJA is deemed inapplicable to the CCA's notice requirement, leading to the conclusion that the definition of "accrued" from related statutes should not be adopted. Instead, a more suitable definition from Cooke Contracting Co v State is preferred, which states that a claim accrues when a lawsuit can be maintained, contingent on the plaintiff's awareness of potential claims. Plaintiffs are not allowed to delay discovery of all harms before their claims accrue. The Michigan Supreme Court has established that new damages from the same harm do not reset the accrual date. Claims are timely if plaintiffs became aware of potential claims on or after July 21, 2015; otherwise, they must be dismissed.

The Court of Claims, prior to discovery, must consider the well-pleaded facts in the plaintiffs’ pleadings. These pleadings indicate that plaintiffs were aware of harm from defendants’ actions before July 21, 2015. Evidence includes a 2011 study warning against the use of Flint River water, which was used despite the warnings starting April 25, 2014. Complaints about contaminated water began in June 2014, and General Motors ceased using Flint River water in October 2014, citing safety concerns. Additionally, a homeowner reported health issues to the EPA in January 2015, leading to public demonstrations and a Flint City Council vote to reconnect with Detroit's water system in March 2015. The original complaint also noted that Flint water failed EPA tests for carcinogens shortly after the switch.

In August 2014, water in Flint tested positive for E. coli, leading to “boil water” advisories issued in September. Plaintiffs reported concerns about water quality through various channels, including communications with officials, media involvement, and public demonstrations over the following eight months. In January 2015, a notice informed residents that the water violated the federal Safe Drinking Water Act due to high levels of TTHMs. Protests escalated, supported by environmental activists Erin Brokovich and Bob Bowcock, who provided advice on health risks associated with the contaminated water.

Subsequent events included Dr. Mona Hanna-Attisha's August 2015 study, which revealed a significant increase in elevated blood lead levels among Flint children, based on data from mid-2014. A report by Professor Marc Edwards in September 2015 highlighted that Flint River water was 19 times more corrosive than Detroit's water. Governor Snyder acknowledged the toxicity of Flint's water on October 8, 2015, and by October 16, Flint residents began receiving water from Detroit.

The plaintiffs' claims accrued before July 21, 2015, as it was publicly known that Flint residents had switched to Flint River water on April 25, 2014. Complaints about the water's quality and health effects were evident before the end of 2014, including the issuance of a boil water advisory and GM's decision to stop using Flint River water due to safety concerns. The plaintiffs asserted that the community's awareness of their suffering and the public demonstrations indicated they should have recognized potential claims by the end of 2014. Although the plaintiffs may have gained more information about specific damages afterward, this did not affect the initial accrual date for their claims.

Plaintiffs had knowledge of their claims well before July 21, 2015, as evidenced by several public events and notifications in early 2015. In January, Flint residents demonstrated with prominent figures voicing concerns about toxic water, and they received a notice indicating their drinking water's non-compliance with federal standards due to TTHMs. Additionally, a resident reported health issues related to the water to the EPA that same month. In March 2015, the Flint City Council voted to reconnect to the Detroit water system in response to these concerns.

Judicial notice is taken of prior complaints against Flint filed in Genesee County Circuit Court and the U.S. District Court for the Eastern District of Michigan, which both referenced similar facts and were filed before July 2, 2015. Lead plaintiff Melissa Mays signed these complaints, affirming her awareness of the issues. By July 6, 2015, plaintiffs were thus aware of the harm caused by the Flint River water, acknowledging potential claims by filing lawsuits.

Consequently, the complaint filed on January 21, 2016, did not meet the notice requirements of the CCA, which mandates a notice within six months of the claim's accrual. The court determined that all claims were barred, and summary disposition in favor of the defendants was warranted. Although the statutory notice provision may seem harsh, it stems partly from the plaintiffs' awareness of the water issues shortly after the switch to Flint River water, as highlighted by the public's reaction and GM's return to Detroit's water due to safety concerns.

Flint residents were aware of Michigan officials' involvement in sourcing water from the Flint River and suspected it caused harm. The plaintiffs failed to file a notice of intent to claim, and their reasoning for this lack of action is unconvincing. The notice requirement under the CCA does not demand a full complaint within six months; it only requires a statement of the claim's nature and damage incurred. Filing a notice of intent would not have faced the rigorous standards of a full complaint or been subject to motions for dismissal or sanctions due to insufficient information. Had the plaintiffs timely filed this notice, they would have benefitted from the three-year statute of limitations, delaying the need to file a complaint until April 25, 2017, by which point they would have been aware of the circumstances and alleged deceit. The plaintiffs could have argued that the limitations period was tolled due to fraudulent concealment. The court emphasized that it cannot amend legislation to address perceived inequities, reinforcing that judges must uphold legislative policy choices even if they find the outcomes unjust or inequitable. The judiciary's role is to apply the law strictly according to statutory language, irrespective of personal sentiments regarding the results.

In a system with a separation of powers, judges are elected to uphold the law as defined by the political branches, emphasizing that judges must adhere to the law rather than their personal beliefs. Despite the potentially severe consequences of applying the notice provision in the current case, residents of Flint still have legal remedies available. Specific claims regarding "substantive due process bodily integrity" against Flint and its emergency managers have survived summary judgment in federal court, with an appeal pending in the Sixth Circuit. Plaintiffs have sought to amend their complaint to initiate a class-action lawsuit against multiple defendants. Additionally, a separate class action, led by Mays against state officials, has been consolidated with other related cases in federal court. There is also a proposed state-law professional negligence class action against civil engineering firms involved in upgrading Flint’s water system, which has been remanded to state court. This overview highlights that, despite strict legal requirements, Flint residents are not without recourse. The author advocates for reversing and remanding the case for summary disposition in favor of the defendants regarding all claims.