Judge to Schuette: No 'superficial posturing' on Flint
LANSING — A federal judge on Monday denied Michigan Attorney General Bill Schuette's request to file an amicus brief in a case involving the Flint drinking water crisis, suggesting "superficial posturing" by Schuette may have irreversibly complicated important issues.
Attorneys from Schuette's office are representing state defendants in the case and arguing against an order from U.S. District Judge David Lawson requiring the state to start making regular bottled-water deliveries to all Flint residents who can't be shown to have a properly installed and working water filter on their taps.
But on Jan. 17, Schuette asked Lawson for permission to file an amicus brief "on behalf of the people of the State of Michigan," that would take the opposite position — arguing the state should make the bottled-water deliveries to Flint homes.
Lawson refused the request and slapped Schuette's knuckles for "potentially complicating adjudication of the serious legal questions before the court, without adding anything of substance." Lawson also said Schuette, who is expected to seek the Republican nomination for governor in 2018, violated court rules by adding his proposed brief to the court's public docket without first getting permission from the court.
"'Proposed' orders should never be e-filed and docketed by a party," Lawson said in scolding Michigan's top law enforcement officer.
Schuette disagrees with the ruling but will not appeal it, said spokeswoman Andrea Bitely.
Safe water is Schuette's priority, Bitely said, and the attorney general sought and obtained agreement from the other parties in the case before filing the proposed motion, though that agreement was later withdrawn. Lawson failed to mention the "conflict wall" Schuette has erected between the Flint civil cases, in which he is representing state defendants, and Schuette's criminal investigation, in which he has charged 13 current or former state and city officials, she said.
A conflict wall is "a long-established protective measure also used by Attorneys General Frank Kelley, Jennifer Granholm, and Mike Cox," Bitely said.
“Attorney General Schuette will continue to fight aggressively for Flint families and remains thankful to the many Flint residents and elected officials who expressed their support of his actions," she said.
Lawson said it could create an "ethical conflict" to allow Schuette to take a position in the case "diametrically opposed to that advanced by his other deputies and assistants." To allow it "would raise the specter of disqualification of his entire office from participating on behalf of any party in the case," the judge said.
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Further, Lawson said the arguments Schuette wanted to advance in his own brief are no different from those raised by other parties in the case, and he questioned Schuette's motives for wanting to file the brief.
"He has, of course, no official stake in the matter (except, of course, arising from his duty to represent the state defendants), although perhaps he has a personal one," Lawson wrote.
"Either way, there is an obvious conflict, and if it's the latter, the conflict is more egregious, as he means to take a position adverse to his own clients in the same lawsuit while advancing his own, personal opinion."
Schuette may have already complicated the case, as "the state defendants may have reason to doubt the loyalty they are to expect from their own attorneys," Lawson said. It's not clear that Schuette's filing "is a bell that is easily unrung."
Removing Schuette's office from the case "would be disruptive and cause substantial delay," as well as added costs to hire outside lawyers, Lawson said.
"Of course, if the attorney general wants to weight in with a sensible resolution, he has the authority to do so," Lawson wrote.
"Superficial posturing does not contribute to the search for an equitable solution."
A hearing in the case is set for Tuesday.
The office of Gov. Rick Snyder, who has argued the bottled-water delivery order would be too costly and is unnecessary, since residents can arrange for bottled-water delivery by dialing 2-1-1, had no comment on Lawson's order.
Flint's drinking water became contaminated with lead in 2014, while the city was under the control of a state-appointed emergency manager.
Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.