A Tale of Two Judges: Confronting Water Issues in Michigan

by Martha Davis

Yesterday, in a decision that has not yet been widely reported, the federal district court in Detroit affirmed the bankruptcy court’s dismissal of a citizen challenge to the city’s water shutoffs.   With the charged atmosphere around water in Detroit, it is perhaps no wonder that the judge deciding the case did not hold oral argument.  However, the absence of an oral argument on the issue compounded feelings that the result was inevitable and that the court had its mind made up before the papers were even filed.

In general, the court repeated and reaffirmed the lower court’s conclusions.  However, the district court spent considerable time discussing whether a delinquent commercial customer is “similarly situated” to a human being for purposes of an equal protection claim.  The plaintiffs had alleged that the dissimilar treatment between corporations and individuals constituted an equal protection violation.  According to the court, however, the comparison must be made between an individual and another individual, not between a commercial entity and an individual — this despite the extensive and growing case law concerning corporate “personhood” for purposes of the Bill of Rights.  Though amici to the plaintiffs had submitted an extensive brief on the relevant international law and its persuasive significance, the decision did not even mention that issue.

The plaintiffs must now decide whether to seek further review before the 6th Circuit Court of Appeals. In the meantime, local activists continue to push for adoption of an affordability plan — an effort that becomes even more important in the wake of this federal district court decision. 

Interestingly, a decision from a local Michigan judge in early August took a completely different approach.  Considering the water rate crisis in Flint, Michigan, the court there ruled that rate hikes must be rolled back and enjoined further water terminations.  At the end of August, the judge allowed the case to go forward as a class action, a move which reportedly brought Flint officials to the settlement table for the first time.  On September 17, the state appellate court denied the city’s request for a stay of the initial order, essentially establishing a moratorium on water terminations.

A foundational principle of federal courts is that they can transcend local politics and render unbiased rulings.  But in Michigan, it appears to be the state court judge rather than the federal one, applying the law fairly but also responsive to the people and savvy to the politics, who is able to move toward justice.