DETROIT — Former Michigan Gov. Rick Snyder, one of his former top key aides and others won a legal victory this week when a federal appeals court panel ruled they won't have to testify in a trial related to the Flint water crisis.
The 2-1 decision Tuesday by the U.S. 6th Circuit Court of Appeals centered on depositions given by Snyder, ex-aide Rich Baird, former Flint emergency managers Darnell Earley and Gerald Ambrose as well as former Flint public works supervisor Howard Croft in 2020, ahead of a federal civil lawsuit trial in which four young plaintiffs are suing engineering firms that contracted with the city.
They didn't invoke their Fifth Amendment right against self-incrimination in the depositions, which were taken before unsealed indictments against them were revealed by Michigan Attorney General Dana Nessel's office in January 2021.
In June, when appearing before U.S. District Judge Judith Levy in an Ann Arbor courthouse, Snyder invoked the Fifth Amendment while facing two misdemeanor charges of neglect of duty related to the Flint water crisis. Levy allowed the former governor to make the invocation in violation of her order so it could be appealed to a higher court.
Baird's attorney, Sarissa Montague, of the Kalamazoo-based Levine & Levine law firm, later argued that Levy's forcing the defendants to testify in the civil trial against Veolia North America violated their Fifth Amendment rights. Montague argued that although her client had given testimony during a deposition in 2020, requiring Baird to be a witness during the same civil trial could be used against him during future criminal proceedings.
In an opinion by Judge Richard Allen Griffin, the panel found that waiving the right to self-incrimination only applies to the specific court proceeding — in this case, the depositions.
"We conclude that the district court erroneously held that testifying at a pretrial deposition waives invocation of the privilege at a later trial in the same civil case," wrote Griffin, who was appointed by former President George W. Bush. "In doing so, we hold that a Fifth Amendment waiver does not extend to trial under these circumstances."
"This single testimonial event, so long as cross-examination is allowed and performed, comprises the extent of the Fifth Amendment waiver," wrote Griffin, a former Michigan Court of Appeals judge.
"While our conclusion that the two testimonial events here are separate proceedings does not necessarily mean a waiver occurred at trial, it does not conclusively resolve the issue," he continued later in the opinion. "Our circuit has not determined whether a waiver at one proceeding carries over to the next. ... However, a large majority of jurisdictions have concluded that a waiver 'in one proceeding does not constitute a waiver ... in a second proceeding.'"
Another Bush appointee, Judge Amul Thapar, agreed with parts of Griffin's decision but wrote that he considered the issue moot. Judge Karen Nelson Moore, an appointee of former President Bill Clinton, also concurred in part but dissented to say Levy correctly decided the five defendants had waived their rights in the depositions.
In a statement Wednesday, Brian Lennon on Snyder's legal team said: "We are pleased with the 6th Circuit Court's decision, which should finally end debate regarding the propriety of Governor Snyder invoking his Fifth Amendment right at future trials."
Randall Levine, Levine & Levine's managing partner, who argued the original case in front of Levy, welcomed the decision.
"We have argued all along that requiring our client to testify during the Flint Water Crisis civil trial against Veolia North America was in direct violation of the Fifth Amendment," he said in a statement. "We are gratified that the 6th Circuit has agreed with us on this fundamental constitutional right. Now Mr. Baird need not suffer the indignity of having to answer questions posed to him by Veolia lawyers that are designed to shift blame unjustifiably to him for a crisis which was created by others."
A judge declared a mistrial in early August after jurors deadlocked on whether Veolia and engineering firm Lockwood, Andrews & Newnam were to blame for Flint's water becoming tainted with lead in 2014-15 when the Genesee County city started using the corrosive Flint River for its drinking water. Both companies have argued that state and local officials were the ones at fault, saying the Flint water crisis resulted from governmental failures.The case serves as a precedent for similar lawsuits filed by Flint residents against the same defendants.
The Appeals Court ruling Tuesday noted a retrial has been scheduled to begin Feb. 22.
Meanwhile, Nessel's office said last month it plans to appeal the dismissal of criminal charges against seven state officials related to the Flint water probe, arguing a Michigan Supreme Court ruling on the cases was limited and did not require a complete elimination of charges.
