Detroit Mass Water Shut-Offs

National Conference of Black Lawyers (NCBL)

Michigan Chapter

Statement originally released on December 7, 2015

A Statement on Mass Water Shut-Offs in the City of Detroit

Billions of dollars are pouring into Detroit for the construction of an urban rail line, a hockey arena and accompanying entertainment complexes, restaurants, upscale housing and much more. Meanwhile, the water services for thousands of Detroit families have been terminated, and thousands more will suffer the same fate. These water shut-offs drive home the fact that nowhere in the grand vision for the so-called revitalization of Detroit is there a place for the long-time residents, most especially those with low income. A genuine interest in bringing the city back for the families that built it initially would have long ago prompted a high level of investment in infrastructure and human needs that we now see dedicated instead to commercial development. Instead, there has been what appears to be a protracted campaign to facilitate gentrification of the city by making it unlivable for those of modest means.

There are families that have been in Detroit for generations who want to remain. The commitment of Detroit’s residents to their city is rooted in their ancestors’ flight from southern racial oppression during the 20th Century. They found in Detroit opportunities in the auto industry that made possible the emergence of a first generation black middle class. The city became the cradle for development of popular culture and a sophisticated brand of black politics that made an indelible mark on the entire country.

The penalty for not leaving Detroit and standing in the way of so-called “progress” has included, among many other things: redlining and consequent unaffordable auto insurance; elimination of local control of schools and police; elimination of the locally-controlled “Recorders Court”; the total usurpation of local government by emergency managers; and most recently, the unjustifiable, illegal and immoral termination of water services for thousands of families.

The solution to the water crisis

There are answers to the manufactured problems related to water services. If, for the sake of discussion, it is assumed that the very high water bills sent to residential water consumers are accurate records of consumption and the cost of services, the termination of services for low-income families can be avoided with a water affordability plan. An affordability plan was developed for Detroit by a consultant more than a decade ago at the request of the Detroit City Council, the Michigan Welfare Rights Organization, the Michigan Poverty Law Program, Michigan Legal Services and others. Implementation was derailed by political developments, but affordability again became an issue as the water problem reached new levels of crisis.

Government’s response

Detroit’s municipal officials have responded to pleas for implementation of an affordability plan by citing inapposite laws. They publicly express concern for residential water consumers, but then claim their hands are tied by article IX, section 31 of the Michigan Constitution, which is part of what is popularly known as “the Headlee Amendment.” This constitutional provision requires that any assessment that is properly regarded as a tax must be approved by a majority of voters before it can be implemented. A widely supported proposed water affordability plan calls for a “user fee” for water consumers that finances an arrangement that permits low income consumers to pay an amount for their water that may be less than the standard rate, but which is at the same time an amount they can afford to pay consistently, and which ensures the utility will receive at least some payments when they would otherwise receive nothing. Opponents of the affordability plan nevertheless contend the user fee is a “tax” that has not been properly approved by the voters.

The city supports its position with a 1998 Michigan Supreme Court ruling in the case of Bolt v City of Lansing.[1] At issue in that case was a mandatory sewer improvement fee that was charged to all property. The fee was challenged as a tax that violated the Headlee Amendment. In ruling that the fee was in fact a tax, the court considered, along with other criteria, the fee’s compulsory, indiscriminate character, and that it was assessed to all property in the city.

Why government is wrong about the user fee

There are clear distinctions between the sewer fee in the Bolt case, and the user fee proposed for low-income water service consumers. As noted, the sewer fee in Lansing was assessed to all property. In Detroit, the proposed user fee would be charged only to properties that receive water services.

To illustrate the point, a property tax is charged to all properties within a municipality. This means that even if a lot is vacant, the owner must pay the property tax. Such is the nature of taxes. They are indiscriminate. That same owner however would not have to pay a water user fee because there are no water services provided for that lot. The fee is paid in exchange for a specific service, which is in no way comparable to a tax.

The distinction between taxes and user fees has long historical roots. In the 1876 case of Jones v Board of Water Commissioners of Detroit,[2] the court ruled that a defining characteristic of taxes versus user fees is that taxes are compelled, and user fees are paid voluntarily. The court said: “…water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity.”

A land owner can make a voluntary decision to receive water services or leave property vacant with no water services, and in that way decide whether to pay water user fees or not. The Headlee Amendment is no bar to a water affordability plan and assertions to the contrary are without merit.

A human right should not be a felony

There is global agreement that access to water is a human right. In Lyda v. City of Detroit, a case challenging the mass water shut-offs, the International Network for Economic, Social and Cultural Rights wrote the following in a brief to the court:

International and regional human rights law has widely recognized a human right to access to water as fundamental to the enjoyment of many human rights. UN Human Rights Council Resolutions, UN General Assembly Resolutions and jurisprudence from the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Commission on Human and Peoples Rights recognizes States’ obligation to ensure access to water … Globally, a large number of States recognize a fundamental human right to water, demonstrating that such a right forms part of the evolving standards of decency of modern life. More than 30 of the most recently adopted constitutions specifically recognize the right to water, while nearly double that have adopted legislation to guarantee access to water. Within the U.S., California, Pennsylvania and Massachusetts guarantee a right to water. Similarly, nearly 40 countries state that water must be economically accessible to vulnerable populations, a position that has been adopted by the European Union and California, among others. (documented footnotes omitted.) [3]

Notwithstanding a global consensus about the necessity of water and an inherent right to have access to it, water services have been terminated for thousands of Detroit families, and many in desperation, have engaged in self-help efforts to reconnect. Some have been prosecuted, or threatened with prosecution for violating MCL 750.282, a law that makes it a felony to tamper with water lines and other utilities.

NCBL does not in any way suggest or even imply that those who engage in unauthorized restoration of water services will not be prosecuted, and NCBL warns against such action. Those who reconnect their water services risk arrest and prosecution. However, NCBL does assert that those who make decisions to prosecute desperate families do so contrary to the spirit of the statute, and contrary to the overwhelming weight of international opinion.

It is reasonable to assume that legislators who approved MCL 750.282 contemplated those irresponsible and criminal individuals who seek “free” utility services. During the public discussions of the water shut-offs, some polemicists and apologists for the water department have irresponsibly tagged victims of the shut-offs as “deadbeats” who want “free” water. The charge has been repeatedly refuted with facts that substantial numbers of these families have been overcharged or provided with inadequate or non-existent billing notices. Others do not seek “free” water, but they do seek affordable water services. When responsible families resort to desperate measures in their attempts to gain access to the human right of water for small children, the sick and the elderly, they should not be classified along with those who the legislature wanted to punish for criminal acts.

In fact, self-help efforts by certain individuals within the context of the crisis they encounter might reasonably be excused as acts of “necessity.” Under certain circumstances, Michigan’s courts have recognized a common-law doctrine that allows conduct that runs afoul of the law if it will prevent a greater harm. One definition of the “necessity defense” is: “An act which would otherwise constitute a crime may also be excused on the ground that it was done under compulsion or duress. The compulsion which will excuse a criminal act, however, must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough.” [4]

It is not unreasonable to presume that the disease, dehydration, infection and other consequences of lack of water are sufficient to justify self-help reconnection of water services. However, the real crime is that the contemplation of such a defense is even necessary in a city where there are sufficient resources to build sports arenas and bistros, and at the same time resources are not made available to provide the poor with the human right of access to water.

Conclusion

The Michigan Chapter of the National Conference of Black Lawyers affirms, along with other informed legal analysts, that the Headlee Amendment is no bar to a reasonable water affordability plan that can mean the preservation of the lives and health of thousands of Detroit residents. NCBL further regards as unconscionable the criminal prosecution of those, who in a desperate fight for life, engage in self-help efforts to restore terminated water services. NCBL calls for an immediate end to residential water shut-offs and the implementation of a meaningful and effective affordability plan.

For more information contact: Mark P. Fancher   mfancher@comcast.net

 

[1] 459 Mich 152 (1998)

[2] 34 Mich 273 (1876)

[3] Amicus Curiae Brief of the International Network for Economic, Social and Cultural Rights in Support of Plaintiffs-Appellants, Lyda, et al. v. City of Detroit, No. 2:15 – cv – 10038 (E.D. Mich.) p. 8 (filed 2/3/15).

[4] People v Merhige, 212 Mich 601, 610 (1920); People v Hubbard, 115 Mich App 73, 78 (1982)