There’s a lot going on in the Michigan Supreme Court’s opinion in Mays v. Governor, No. 157335 (July 29, 2020). After all, the case involves claims for personal and property damages resulting from the Flint (Michigan) water crisis. That’s an issue we’ve been following that has also grabbed national headlines.

But if you takings mavens don’t want to take a deep dive into the non-takings parts of the opinions (that resulted in an “affirmed by an equally divided court” situation on the plaintiffs’ bodily injury claims and Bivens-type damage remedy), here are the takings highlights. We thought the most interesting part of the opinion is at pages 11 through 15, where the three-Justice plurality/majority concluded that the plaintiffs alleged property damage and injuries different from the public, and alleged enough to avoid the government’s motion for summary judgment.

The class action complaint in Mays alleged:

Plaintiffs brought suit against defendants in the Court of Claims, alleging, in part, a claim for inverse condemnation and seeking economic damages both for the physical harm done to their property as well as the diminution of their property’s value. Plaintiffs alleged that despite both sets of defendants knowing that the Flint River water was toxic and corrosive, the state defendants authorized the city defendants to service their property with the Flint River water. As a result, plaintiffs alleged that their pipes, service lines, and water heaters were damaged. Plaintiffs also alleged that after the water crisis had become public knowledge, their property’s value substantially declined.

Slip op. at 7.

The defendants sought summary judgment, but the Michigan Court of Claims concluded that the plaintiffs stated a claim for a taking, and the court of appeals affirmed.

The Supreme Court first restated the elements of an inverse condemnation claim:

A plaintiff “must establish (1) that the government’s actions were a substantial cause of the decline of the property’s value and (2) that the government abused its powers in affirmative actions directly aimed at the property.”

Slip op. at 10. Seems simple enough. The analysis of the first element was straightforward:

With respect to the first element of an inverse-condemnation claim, plaintiffs allege that switching the water source from the DWSD to the Flint River resulted in physical damage to pipes, service lines, and water heaters. Plaintiffs also allege that the contaminated water limited the use of their property and substantially impaired its value and marketability because after the water crisis became public knowledge, lenders were hesitant to authorize loans for the purchase of realty within Flint and property values plummeted.

Slip op. at 10-11. That’s enough.

Same with second element (affirmative conduct): the plaintiffs alleged that the government ok’d using the Flint River as a water source even though they (allegedly) knew it was contaminated.

Where the opinion gets much more in-depth is on page 11, where the plurality analyzes whether the plaintiffs alleged “a unique or special injury different in kind from the harm suffered by those similarly situated.” Slip op. at 11. The government characterized the “others” as “other Flint water users,” and argued that the plaintiffs suffered the same injury. The plurality rejected the argument, concluding that the “similarly situated” others should be “other municipal water users.” Slip op. at 14-15. 

You’re a water service customer, so you should expect to experience “service disruptions and externalities associated with construction.” But you don’t expect to get contaminated water flowing though and damaging pipes, service lines, and wtaer heaters. Slip op. at 15. 

Justice Viviano wrote separately and provided the fourth vote on the inverse claim, noting that he believed the issue needed more factual development.Three Justices dissented, arguing that the takings claim was not timely filed. They argued that “the event giving rise to the cause of action at issue here was the exposure to the toxic water, which initially occurred on April 25, 2014.” Dissent at 14. The plaintiffs did not file their claim until after the six-month statute of limitations, even though they alleged they suffered additional damages after that date. Dissent at 15.

More here from the Detroit News (“Divided Michigan Supreme Court allows Flint water crisis suit to proceed“).

Mays v. Governor, No. 157335 (Mich. July 29, 2020)