COMMENT: The Detroit Water Shut-Offs: An Alternative Approach to Analyzing the Constitutionality of the Detroit Water and Sewerage Department’s Shut-Off Policy

By Jackie Pilcowitz
Associate Editor, Vol. 21

The City of Detroit is denying water to thousands of its residents. In the spring of 2014, the Detroit Water and Sewerage Department (DWSD) announced its plan to disconnect water service to Detroit residents with delinquent accounts — those who owed $150 or more.[1] The median income in the City of Detroit is $26,325.[2] The reality is that many Detroiters simply cannot afford to pay their water bills, given that they are forced to spend roughly 20% of their income per year on DWSD’s services.[3]

Over the past ten years, DWSD’s water prices have increased over 100% and customers must bear the burden of DWSD’s nearly $6 billion debt.[4] DWSD has raised costs for consumers because much of its budget goes towards repaying its debt that is the result of “interest-rate transactions that have gone horribly wrong.”[5] The aggressive shut-off policy was implemented in response to the City’s bankruptcy filing in July 2013.[6] In June 2014, DWSD reported over 79,000 delinquent residential accounts owing approximately $42 million.[7] By the end of the year, over 31,000 homes suffered from the shut-off policy,[8] with DWSD’s crew disconnecting roughly 3,000 delinquent accounts per week at one point.[9] Approximately 40% of Detroit’s population lives in poverty; nevertheless, DWSD enlisted private contractors to execute these water shut-offs without providing a plan to assist individuals who cannot afford to pay the exorbitant sums that have accrued on their accounts.[10]

The international community has criticized DWSD’s water shut-offs. UN Special Rapporteur Catarina de Albuquerque declared, “[i]t is contrary to human rights to disconnect water from people who simply do not have the means to pay their bills.”[11] The UN also found that these conditions disproportionately impact Detroit’s poor, Black populations.[12] Last year, the City attempted to resolve its delinquency problem by implementing payment plans, but these plans have proven unsuccessful, as residents burdened by poverty still cannot afford to pay outstanding debts.[13]

I begin this Comment by discussing the constitutional claims Detroit residents affected by the water shut-offs have made and the courts’ responses to these claims. Next, I argue that the residents could have taken a different approach to their argument by relying on certain U.S. Supreme Court cases. Finally, I discuss how this alternative argument may yield a different result for future litigants. This Comment does not contend that the Detroit plaintiffs’ constitutional claims would have necessarily survived appellate review had they argued for the application of this hybrid analysis. Instead, it argues that plaintiffs should use this approach in the future in order to place their claims on stronger footing.

I.           Case Background

In September 2014, Detroit residents affected by the shut-offs filed a motion for a temporary restraining order in Bankruptcy Court against the City of Detroit.[14] The plaintiffs sought an injunction “imposing a six-month moratorium on residential water shut-offs; requiring that water service be restored to all residents whose water service has been terminated; and directing the City to implement a water affordability plan with income-based payments for residential customers.”[15] Plaintiffs also sought a declaratory judgment that DWSD’s policies and procedures “violate[d] the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.”[16] The plaintiffs claimed a constitutional right to water service at an affordable price.[17] In dismissing the due process claim, the Bankruptcy Court rejected the plaintiffs’ argument that there is a constitutional right to affordable water service and refused to conclude that due process is violated where water service is terminated due to failure to pay, even if failure was attributed to inability to pay.[18] The Court similarly dismissed the equal protection claim, noting that the plaintiffs were unable to demonstrate how DWSD’s policies failed the rational basis test.[19]

The Bankruptcy Court acknowledged that something should be done to solve the water problem plaguing Detroit’s low-income residents.[20] Furthermore, the Court conceded that those who have their water service shut off suffer irreparable harm.[21] Nevertheless, “the fact that an individual suffers irreparable harm doesn’t mean he has a fundamental constitutional right to free or affordable water.”[22] On appeal, the plaintiffs re-asserted their constitutional claims by alleging that DWSD lacked a rational basis for its policy, which treated residential and commercial customers differently.[23] On September 16, 2015, the District Court for the Eastern District of Michigan affirmed the Bankruptcy Court’s decision to dismiss the claims, applying rational basis review to DWSD’s shut-off policy.[24]

Typically, rational basis analysis applies to economic legislation and regulation; the law under review need only bear “a rational relationship to a legitimate state purpose” to be upheld.[25] But, the Supreme Court has made clear that courts must apply heightened scrutiny when reviewing state laws “which operate to [the] disadvantage of suspect classes or interfere with [the] exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution.”[26] Where a state law or policy disadvantages a suspect class or infringes on a fundamental right, it will be found unconstitutional unless the government can show the law is necessary to promote a compelling interest.[27]

Examining the “fundamental right” and “suspect class” paths to heightened scrutiny as separate inquiries landed the Detroit plaintiffs only rational basis review of their claims against the City. This is because courts have not yet recognized a fundamental right to municipal water service and instead have generally applied the rational basis test in assessing plaintiffs’ claims against cities and their water policies.[28] Citing Romer v. Evans, the Bankruptcy Court held that since the plaintiffs did not claim a fundamental right to municipal water service, the application of a strict scrutiny analysis to DWSD’s policies was unnecessary.[29]

Moreover, the Supreme Court has repeatedly asserted that the poor are not considered a suspect class.[30] The Detroit plaintiffs did not “allege that residential customers are a suspect class for equal protection purposes,” and instead argued that there is no rational basis for DWSD’s policies.[31] The Bankruptcy Court found for the City because the plaintiffs failed to demonstrate that DWSD’s shut-off policy was “‘not rationally related to a legitimate state interest.’”[32] On appeal, the Eastern District of Michigan affirmed the Bankruptcy Court’s dismissal of the plaintiffs’ claims.[33]

In sum, since there is no fundamental right to water, and Detroit’s poor are not considered a suspect class, under existing doctrine, plaintiffs cannot succeed on either their claim that DWSD’s shut-off policy violates the due process clause or their claim that a classification that discriminates on the basis of wealth violates the equal protection clause.

II.           Proposed Approach

There is precedent to support the plaintiffs’ Fourteenth Amendment arguments through a hybrid of the equal protection and due process analyses.[34] In cases such as Harper, Plyler, and M.L.B., the Supreme Court has made clear that when a law burdens a fundamental interest on an unequal basis, the government’s action is justified only if it furthers a substantial state interest.[35]

The Supreme Court initially developed this hybrid analysis in cases like Griffin and Harper. In Griffin, the Court held that denying the poor adequate appellate review because of their inability to pay for trial transcripts violated the Fourteenth Amendment.[36] The Court’s concern for discrimination against the indigent, as seen in Griffin, has persisted throughout its fundamental interest jurisprudence.[37] In Harper, the Court held that the right to vote is too fundamental to be conditioned upon ability to pay a fee.[38] There, it reaffirmed its longstanding principle that “. . . where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.”[39] The Court also asserted that “lines drawn on the basis of wealth or property . . . are traditionally disfavored.”[40] In these cases, the Court has noted that “[d]ue process and equal protection principles converge,”[41] but hasn’t fashioned a “precise rationale” for cases such as these that rest on an equal protection framework and implicate a fundamental right.[42] In absence of a “precise rationale,” courts are instructed to scrutinize both the nature and intensity of the interest in question and the State’s justification for its actions.[43]

In Plyler, the Court expanded its reasoning in Harper and Griffin and explained that certain policies that neither implicate a fundamental right, nor discriminate against a suspect class, might still require heightened scrutiny.[44] Finding the State’s interest inadequate, the Court struck down a Texas law that denied undocumented children the right to free public education.[45] The Court noted that “undocumented aliens cannot be treated as a suspect class . . . . [n]or is education a fundamental right.”[46] Nevertheless, given “unique circumstances,” such as the undeniable importance of the right at stake, and the vulnerability of the particular class, the Court required that the State’s interests be substantial.[47] The Court’s analysis in Plyler should similarly apply here.

In this case, access to affordable water should be considered a sufficiently fundamental interest as to invoke heightened scrutiny for purposes of the equal protection analysis. Water is an “absolute necessity to life.”[48] Homes without water are not suitable for human habitation and the consequences of depriving an individual of this “absolute necessity” are both obvious and incomparable.[49] Congress has demonstrated its strong interest in ensuring that individuals have access to a safe and clean water supply through legislation such as the Safe Drinking Water Act.[50] Moreover, the international community’s recognition of a human right to water further supports the acknowledgement of a fundamental right to affordable water in the instant case. The UN General Assembly “[r]ecognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights [and] [c]alls upon States . . . to scale up efforts to provide safe, clean, accessible and affordable drinking water.”[51] South Africa has recognized the right to water access explicitly in its constitution,[52] while India has established a fundamental right to water through deriving it from the right to life.[53]

The plaintiffs’ fundamental interest in affordable drinking water should not be infringed upon because of their inability to afford the service. Where a fundamental right or interest is at stake, the Supreme Court has repeatedly found that denying that right to the indigent violates due process and equal protection.[54] The Court most recently relied on this analysis in M.L.B. where it held that Mississippi statutes requiring indigent parents to pay costs in order to appeal judgments that terminated their parental rights violated the equal protection and due process clauses.[55] The Court reaffirmed that maintaining a relationship with a child was “sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment;” therefore, “Mississippi could not deny M.L.B. [appellate review] because of her poverty.”[56] Similarly here, the Court should find that access to water is “sufficiently fundamental to come within the liberty interests protected by the Fourteenth Amendment;” thus, denying Detroiters access to water because of their poverty violates the Fourteenth Amendment.

Furthermore, this case differs from San Antonio v. Rodriguez, where the Court upheld a Texas school-financing system based on property taxation, in part, because it did “not operate to the peculiar disadvantage of any suspect class.”[57] Absent evidence that the system discriminated against a “definable category of ‘poor’ people or that it result[ed] in the absolute deprivation of education,” the Court refused to apply strict scrutiny to the school-financing system.[58] Here, Detroiters who live below the poverty line and are affected by DWSD’s shut-off policy clearly constitute a definable category of poor people. Additionally, the shut-off policy results in an absolute deprivation of water within the homes of individuals who are unable to pay. Thus, given that the shut-off policy discriminates against a group of definable poor people by completely depriving them of access to affordable water, San Antonio v. Rodriguez should not serve as a barrier to the application of heightened scrutiny to DWSD’s policy.

III.           How This Approach Would Create a Different Outcome

Given that DWSD’s policy discriminates against Detroit’s indigent population by infringing on their sufficiently fundamental interest in access to affordable drinking water, courts should carefully scrutinize the constitutionality of the policy. Since there is no “precise rationale” to guide this analysis, courts should “inspect the character and intensity of the individual interest at stake on the one hand, and the State’s justification for its exaction, on the other.”[59]

The interest in access to affordable water is of undeniable importance and the City lacks a strong enough reason for depriving its poor of that interest. The primary reason behind the shut-off policy is financial[60] and the City obviously has a legitimate interest in solving its debt crisis. Nevertheless, in M.L.B., the government interest at issue was also financial.[61] There, the Court found that although “[t]he State’s need for revenue to offset costs . . . satisfied the rationality requirement,” that [financial] interest may prove insufficient where a fundamental interest is implicated.[62]

Moreover, the Court has expressed that where a state action impinges on the exercise of a fundamental right, it must do so using the least restrictive means.[63] DWSD’s current policy is to “shut off water service if the account is 45 days past due.”[64] Although some residents are eligible for DWSD’s payment plans, these plans do little to prevent delinquency and offer inadequate assistance to keep people from defaulting.[65] Given that many Detroiters’ inability to pay is due to their fixed low income, it is unclear whether DWSD’s policy of charging indigents standard rates even furthers the City’s financial interest in practice.[66] DWSD could take less invasive approaches to help cure its financial difficulties, while avoiding discrimination against the City’s poor. Advocates of an income-based affordability plan argue that this system would not only protect poor residents from losing water service, but may also increase revenue for DWSD, as residents who are currently paying nothing would be able to contribute something.[67] In light of alternatives such as an affordability plan, the City’s financial interest is an insufficient basis for denying its poor residents access to affordable water.

In conclusion, a policy that completely denies individuals access to water because of their inability to pay should be found to violate the equal protection and due process clauses of the Constitution. In advocating for the application of the hybrid analysis described above, plaintiffs may succeed on their claims by demonstrating the sufficiently fundamental interest in affordable water and arguing that denying them access to this “absolute necessity to life,” because of their poverty, furthers no substantial state interest.

[1] Letter from Kary L. Moss, Exec. Dir. & Sherrilyn Ifill, Dir.-Counsel to Mayor Mike Duggan, City of Detroit, Kevin Orr, Emergency Manager, James Fousone, Esq. Chair, & Sue F. McCormick, Chief Exec. Officer (July 18, 2014) (on file with NAACP Legal Defense and Educational Fund).

[2] Joe Guillen & Matt Helms, Despite Detroit Efforts to Help, Water Shut-offs Loom, Detroit Free Press (Apr. 18, 2015, 11:22 PM), http://www.freep.com/story/news/local/2015/04/18/detroit-water-shutoffs-duggan/25991563/.

[3] Moss & Ifill, supra note 1 at fn. 7.

[4] Turning off the Tap: Detroit Threatens Water Shut-offs Again, RT USA (May 13, 2015), http://www.rt.com/usa/258037-detroit-water-cutoffs-debt/.

[5] Moss & Ifill, supra note 1.

[6] See Michelle Miller, Detroit Water Shut-offs Bring U.N. Scrutiny, CBS News (Oct. 20, 2014), http://www.cbsnews.com/news/detroit-water-shut-offs-brings-u-n-scrutiny/.

[7] Joe Guillen, Detroit Water Shutoffs to Begin Tuesday, Detroit Free Press (May 24, 2015, 6:59 AM), http://www.freep.com/story/news/local/michigan/detroit/2015/05/24/detroit-water-shutoffs-poverty-unpaid-bills/27852135/.

[8] Press Release, Unitarian Universalist Service Committee, Human Rights Experts Convene for Water Affordability and Housing Summit (May 29, 2015) (on file with UUSC.org).

[9] Joe Guillen, Water Shutoffs Warnings on Way for Delinquent Detroiters, Detroit Free Press (Mar. 20, 2015), http://www.freep.com/story/news/local/michigan/detroit/2015/03/20/residential-water-shutoffs/25048153/.

[10] See Moss & Ifill, supra note 1.

[11] UN Officials Criticise Detroit Water Shutoffs, BBC News (Oct. 20, 2014), http://www.bbc.com/news/world-us-canada-29697767.

[12] Id.

[13] Guillen & Helms, supra note 2.

[14] In re City of Detroit, Mich., 13-53846, 2014 WL 6474081, at *1 (Bankr. E.D. Mich. Nov. 19, 2014) aff’d sub nom. In re City of Detroit, 15-CV-10038, 2015 WL 5461463 (E.D. Mich. Sept. 16, 2015).

[15] Id. at *2.

[16] Id.

[17] Id. at *8.

[18] Id. at *8-9 (maintaining that “nothing in the case law suggests that it is unconstitutional for state law to require a municipality to fix the price of service according to the cost of providing it rather than ability to pay.”).

[19] Id. at *10.

[20] Id. at *11.

[21] Id. at *12.

[22] Id.

[23] In re City of Detroit, 15-CV-10038, 2015 WL 5461463, at *5 (E.D. Mich. Sept. 16, 2015).

[24] Id. at *3-4.

[25] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 2 (1973).

[26] Id. at 1.

[27] See id. at 31.

[28] See, e.g., Golden v. City of Columbus, 404 F.3d 950, 960 (6th Cir.2005) (noting that “because there is no fundamental right to water service . . . we apply rational basis scrutiny to the City’s water policy.”); Davis v. Weir, 497 F.2d 139, 144 (5th Cir.1974) (refusing to decide “whether the Constitution accords citizens a fundamental right to municipal water service.”); Chase v. McMasters, 405 F.Supp. 1297, 1301 (D.N.D.1975).

[29] See In re City of Detroit, Mich., 13-53846, 2014 WL 6474081, at *10 (Bankr. E.D. Mich. Nov. 19, 2014) aff’d sub nom. In re City of Detroit, 15-CV-10038, 2015 WL 5461463 (E.D. Mich. Sept. 16, 2015).

[30] See, e.g., San Antonio v. Rodriguez, 411 U.S. 1; Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 451 (1988) (asserting that “[s]tatutes having different effects on the wealthy and the poor are not, on that account alone, subject to strict equal protection scrutiny.”).

[31] In re City of Detroit, Mich., 13-53846, 2014 WL 6474081, at *10 (Bankr. E.D. Mich. Nov. 19, 2014) aff’d sub nom. In re City of Detroit, 15-CV-10038, 2015 WL 5461463 (E.D. Mich. Sept. 16, 2015).

[32] Id.

[33] In re City of Detroit, 15-CV-10038, 2015 WL 5461463, at *3 (E.D. Mich. Sept. 16, 2015).

[34] See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 102 (1996); Plyler v. Doe, 457 U.S. 202, 230 (1982); Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966); Griffin v. Illinois, 351 U.S. 12, 19 (1956).

[35] See Plyler, 457 U.S. at 230.

[36] Griffin, 351 U.S. at 19 (holding that “[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.”).

[37] See, e.g., Harper, 383 U.S. at 663; McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807 (1969) (expressing that “a careful examination on our part is especially warranted where lines are drawn the basis of wealth.”).

[38] Harper, 383 U.S. at 663.

[39] Id. at 670.

[40] Id. at 668.

[41] Bearden v. Georgia, 461 U.S. 660, 665 (1983).

[42] See M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996).

[43] Id. at 121.

[44] See Plyler v. Doe, 457 U.S. 202, 238 (1982) (Powell, J., concurring).

[45] Id. at 230.

[46] Id. at 223.

[47] See id. at 230, 238-39 (Powell, J., concurring).

[48] Golden v. City of Columbus, 404 F.3d 950, 958 (6th Cir.2005); Koger v. Guarino, 412 F.Supp. 1375, 1386-88 (E.D. Pa.1976) aff’d, 549 F.2d 795 (3d Cir.1977).

[49] See Koger, 412 F.Supp. at 1386-88.

[50] See 42 U.S.C.A. § 300f (West).

[51] G.A. Res. 64/292, Human Right to Water and Sanitation (July 28, 2010).

[52] The Constitution of the Republic of South Africa Dec. 4, 1996, Ch. 2, 27(1) “Everyone has the right to have access to (2) sufficient food and water”

[53] Vrinda Narain, Water As A Fundamental Right: A Perspective from India, 34 Vt. L. Rev. 917 (2010).

[54] See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 102 (1996); Lubin v. Panish, 415 U.S. 709, 718 (1974) (holding that a California statute requiring indigent candidates to pay filing fees violated the Fourteenth Amendment); Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that “due process of law prohibits a state from denying, solely because of inability to pay court fees and costs, access to its courts to indigents who, in good faith, seek judicial dissolution of their marriages.”).

[55] M.L.B., 519 U.S. at 102.

[56] Id. at 102-03.

[57] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).

[58] Id. at 25.

[59] M.L.B., 519 U.S. at 120-21.

[60] See Moss & Ifill, supra note 1.

[61] M.L.B., 519 U.S. at 122.

[62] See id. at 123-24.

[63] See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 51 (1973).

[64] Detroit Water and Sewerage Department, http://www.dwsd.org/pages_n/customer_service.html (last visited Oct. 7, 2015).

[65] Guillen, supra note 8.

[66] Charles E. Ramirez, Detroit Urged to Tie Water Bills to Income, The Detroit News (Sept. 2, 2015), http://www.detroitnews.com/story/news/local/detroit-city/2015/09/01/water-affordability-detroit-bills/71554188/ (statement of DeMeeko Williams, political director of the Detroit Water Brigade) (“[m]ost people want to pay their bills, but they can’t pay them when they’re $3000 or more.”).

[67] Id. (explaining that “[a]n affordability plan would cap rates for lower-income customers below what’s charged to other system users.”).