Correspondence among

Gentlemen: I'm forwarding the attached motion for temporary restraining order that was filed in federal court. Darnell Earley is a named defendant. I and writing to seek guidance on whether the Attorney General will be representing him. I do not have Darnell's new email address. I left a message on his cell phone this morning. I'm not sure if he's been served. xxxEND_PAGE:treasury01_b41_7622_7971_063 Peter M Bade Chef Legal Officer Cuty of Flint p 810 766 7146 f 810232 2114 xxxEND_PAGE:treasury01_b41_7622_7971_064 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ANDERSON LEE FERNANDERS Plaintiff, Vv JEFF WRIGHT GENESEE COUNTY DRAIN COMMISSIONER, DARNELL EARLE FLINT'S STATE-APPOINTED EMERGENCY MANAGER. DAYNE WALLING MAYOR OF THE CITY OF FLINT, AND MR, AND MS/MRS JANE AND JOHN DOE/UNKNOWN (1 TO 1000) Defendents Jeff Wright Genesce County Drain Commissioner 4610 Beecher Road Flint MI 48532 810-732-7870 Darnell Earle Fiint’s State- Appointed Emergency Manager 1101 S. Saginaw St Flint, MI 48502 (810) 766-7418 Dayne Walling Mayor of the City of Flint 1101 South Saginaw Street # 101 Flint, Mi 48502 (810) 766-7346 Defendants / Case No 2 15-cv-10083 Hon Avern Cohn Mag. Steven R Whalen CITY ATTORA EY’ OFFICE $ cd L. ES ip p FAN TS 205 Hl) FLINT, Micrisan cat Anderson Lee Fernanders 3801 Marlowe Drive Flint. MJ 48504 (216) 272-3539 Plaintsff EGEIWE JAN 20 2015 EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER WITH ASSET FREEZE AND OTHER EQUITABLE RELIEF xxxEND_PAGE:treasury01_b41_7622_7971_065 NOW COMES the Plaintiff, in pro per, sui juris, being an indigent brings this matter before this honorable Court in the public interest to respectfully moves this Court to Grant his Ex Parte Motion for a Temporary Restraining Order with Asset Freeze and Other Equitable Relief pursuant to Rule 65 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 65 and moves the court to issue a temporary restraining order without written or oral notice to the adverse party or its attorney pursuant to Fed. R. Civ. P 65 (b) under Racketeer Influenced and Corrupt Organizations Act (RICO), Uniform Commercial Code (UCC), Federal Safe Water Act, Michigan Safe Water Act, State of Michigan Constitution and these United States Federal Constitution for Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) ongoing violations of the causes for action set forth in Plaintiff's ex parte Complaint for the Teasons contained in his accompanying Memorandum. WHEREFORE, Anderson Lee Fernanders prays that this Honorable Court make him whole by granting recovery of and all other relief sought in his Ex Parte Motion for a Temporary Restraining Order with Asset Freeze and Other Equitable and other relief that this Court finds as may be just and proper in the premises. Re —-|S-]'S ‘Andefson Lee Fernanders xxxEND_PAGE:treasury01_b41_7622_7971_066 Memorandum in Support I. STATEMENT OF FACTS Plaintiff’ s Statement of Facts as written in his ex parte Complaint are hereby incorporated as if fully set forth herein as facts in this Memorandum in Support. Of. STANDARD OF REVIEW Plaintiff's motion is governed by Fed R. Civ. P. 65. The decision whether or not to grant a request for interim injunctive relief falls within the sound discretion of the district court. Friendship Materials, Inc. v, Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). I. ARGUMENT INTRODUCTION Plaintiff moves the Court for a preliminary injunction and temporary restraining order pursuant to Fed. R. Civ. P. 65. Plaintiff makes this motion on the grounds that: 41. Plaintiff is likely to prevail on the merits of his claim; 2. Plaintiff will suffer irreparable harm if preliminary relief is not granted; 3. Third parties will not be harmed by the relief sought; and 4. The public interest will be served by granting the relief sought. Plaintiff requests that the Court issue a temporary restraining order and Preliminary Injunction relief sought specifically written in his ex parte Complaint; and Plaintiff moves the court to issue a temporary restraining order without written or oral notice to the adverse party or its attommey pursuant to Fed. R. Civ. P. 65 (b). Plaintiff makes this motion on the grounds that: xxxEND_PAGE:treasury01_b41_7622_7971_067 1. Plaintiff’s attached affidavit clearly shows that immediate and irreparable injury will result to the movant before the Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) can be heard in opposition. 2. Plaintiff's certifies in writing his efforts made to give notice Defendants and Mr. and Ms/Mrs Jane and John Doe/Unknown (1 to 1000). 3. Plaintiff's gives reasons why notice Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) should not be required. PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER In the present case, Plaintiff satisfy the standard for obtaining a temporary restraining order and a preliminary injunction because (1) Plaintiff has a strong likelihood of success on the merits; (2) the Plaintiff will be irreparably harmed if a temporary restraining order and preliminary injunction is not issued; (3) an injunction in favor of Plaintiff will not cause substantial harm to others; and (4) an injunction in favor of Plaintiff serves the public interest. Leary v. Daeschner, 228 F.3d 729, 736 (6 Cir. 2000); McPherson v. Michigan High Sch. Athletic Ass'n, 119 F.3d 453, 459 (6n Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, 64 F.3d 1026, 1030 (6u Cir. 1993)); Frisch’s Restaurant Inc. v. Shoney’s Inc., 759 F.2d 1261, 1263 (6m Cir. 1985). “These factors are to be balanced against one another and should not be considered prerequisites to the grant of a preliminary injunction.” Leary, 228 F.3d at 737, (citing United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Req'l Transit Auth., 163 F.3d 341, 347 (6n Cir. 1998)) The equities weigh solidly in favor of granting preliminary relief to ensure that Plaintiff and all City of Flint residents and business along with their employees of ceasing buy, drink and otherwise using water contaminated with Trihalomethanes (THMs) above 80 parts per billion, xxxEND_PAGE:treasury01_b41_7622_7971_068 the city causes the Plaintiffs and all City of Flint residents and business along with their employees to suffer a spontaneous and acute gastrointestinal reaction and other physical injuries as contained in Plaintiffs Affidavit, as well as but not limited to suffering emotional pain, suffering, inconvenience, menta} anguish, loss of enjoyment of life, the clear and present treat of law suits on the City of Flint business and medical professionals, and other nonpecuniary losses suck results of Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) actions and lack of action illuminated in the statements of fact caused the type of harm that the Uniform Commercial Code (UCC), Federal Safe Water Act, and Michigan Safe Water Act were intended to prevent and furthermore, denies us our right to enjoyment as conferred in Michigan Constitution ARTICLE 18 Section 13 and right to domestic Tranquility as conferred in the Federal Constitution’s Preamble. The equities also weigh in favor of granting preliminary relief to Plaintiffs and all City of Flint residents and business along with their employees to ensure they do not continue to buy, drink and otherwise using water contaminated with Trihalomethanes (THMs) above 80 parts per billion for any longer, especially given the fact too much time has passed since Plaintiffs and all City of Flint residents and business along with their employees first unknowingly and unwittingly to drink, shower in, bathe in, and otherwise use domestic water supplied by the City of Flint which “exceeded the trihalomethanes (TTHM) MCL” and recently reported “that the location reporting the highest TTHM level was 99 ug/L.”! The public interest of Plaintiffs and all City of Flint residents and business along with their employees along with City of Flint business and medical professionals will not suffer harm if an tnjunction is issued: Plaintiffs and all City of Flint residents and business along with their employees along with City of Flint business and medical professionals suffer from having to buy, drink * Exhibit 4 xxxEND_PAGE:treasury01_b41_7622_7971_069 and otherwise using water contaminated with Trihalomethanes (THMs) above 80 parts per billion. As reported throughout the news media for a time now a like and similarly to Ron Fonger’s January 11, 2015 article entitled “City to enlist water experts” in The Flint Journal, he writes quoting City Council President Josh Freeman “Perception is reality, and the perception of a large number of people in that the water is unsafe.” (p A7). The article speaks of indicated that City Councilmen Eric Mays and Kerry Nelson invited all of the City of Flint residents to a town hall meeting. (p A7). The harm to Plaintiff and all City of Flint residents and business along with their employees along with City of Flint business and medical professionals in the absence of injunctive relief outweighs the harm to the Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) if Plaintiffs Motion is granted: At the outset, when the Court balances the hardships of public interest against a private interest under a statutory injunction, the public interest receives the greater weight.” In such cases involving violation of law, harm to the public interest is presumed.> The injunctive relief request granted centers on the governance of water supplied by the City of Flint. The Defendants and Mr, and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) being removed from the governance of water supplied by the City of Flint does not render him or her unable to fulfill their other work duties unless any duty is connected to the governance of water supplied by the City of Flint whereby the Flint’s City Council will carry out in the manner detailed Plaintiff injunctive relief numbered 11 and 12. Given the task of the governance of water supplied by the City of Flint, the injunctive relief as written puts the Flint’s City Council in control of the monies and freezes on ? FIC v. Nat'l Testing Servs., LLC, No. 3:05-0613, 2005 WL 2000634, at *3 (M.D. Tenn. Aug. 18, 2005). 3 Nat'l Testing Servs., LLC, 2005 WL 2000634, at *3. xxxEND_PAGE:treasury01_b41_7622_7971_070 assets Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) connected with their governance of water supplied by the City of Flint to ensure and protect the Flint’s City Council ability to be successful at governance of the water supplied by the City of Flint. The foregoing antitrust cases establish that equitable relief to prevent and restrain future violations is not limited to relief prohibiting future conduct, but also broadly encompasses relief designed to cure the ill effects of violators’ past and/or ongoing misconduct and to deprive them of the fruits of their misconduct. For the reasons stated above, RICO’s equitable relief must be interpreted to be at least as broad as antitrust equitable relief. Moreover, it is important to bear in mind that the Supreme Court has admonished that “once the Government” has established a violation of law, “all doubts as to the remedy are to be resolved in its favor.” United States v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 334 (1961). Accord United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 726 (1944). Thus, federal courts have held that evidence of past violations may establish the requisite reasonable likelihood of future violations in view of the totality of the circumstances, particularly where the defendant’s past violations were: (1) “part of a pattern” and not isolated; (2) were “deliberate” and not “merely technical in nature”; and (3) “the defendant’s business will present opportunities to violate the law in the future.”* * SEC v. First City Financial Corp., Ltd., 890 F.2d 1215, 1228-29 (D.C. Cir. 1989). Accord SEC v. Bilzerian, 29 F.3d 689, 695 (D.C. Cir. 1994); SEC v. Gruenberg, 989 F.2d 977, 978 (8th Cir. 1993); CFTC v. Hunt, 591 F.2d 1211, 1220-21 (7th Cir. 1979); SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1168 (D.C. Cir, 1978); SEC v. Commonwealth Chemical Securities Inc., 574 F.2d 90, 98-160 (2d Cir. 1978); SEC v. Management Dyn. Inc., 515 F.2d 801, 807-08 (2d Cir. 1975); SEC v. Advance Growth Capital Corp., 470 F.2d 40, 53 (7th Cir. 1972); SEC v.Manor Nursing Ctrs., Inc., 458 F.2d 1082, 1100-01 (2d Cir. 1972); Pullum v. Greene, 396 F.2d 281, 256-57 (Sth Cir. 1968); United States v. Philip Morris USA, Inc., 449 F. Supp. 2d at 909-10; United States v. Philip Morris USA, 316 F. Supp. 2d 6, 10 n. 3 (D.C. Cir. 2004) (collecting cases}; United States v. Phillp Morris, Inc., 116 F. Supp. 2d 131, 148-49 (D.D.C. 2000). 7 xxxEND_PAGE:treasury01_b41_7622_7971_071 Plaintiff elects to raise information and belief be heard in this matter that Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) in a scheme for City of Flint residents and business along with their employees as well as the medical profession to buy, drink and otherwise using water contaminated with Trihalomethanes (THMs) above 80 parts per billion, supplied by the City of Flint past violations of RICO, Uniform Commercial Code (UCC), Federal Safe Water Act, Michigan Safe Water Act, State of Michigan Constitution and these United States Federal Constitution this Court establish the requisite reasonable likelihood of future violations in view of the totality of the circumstances, since these violation started at Trihalomethanes (THMs) above 80 parts per billion and have continued to Trihalomethanes (THMs) levels reaching 99 parts per billion. Second, Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) knowingly, recklessly, wantonly, and/or negligently poisoned the Plaintiff and all City of Flint residents and employees by causing City of Flint residents and business along with their employees as well as the medical profession who unknowingly and unwittingly to buy, drink and otherwise using water contaminated with Trihalomethanes (THMs) above 80 parts per billion, failed to rectify this problem, which it could and should have resolved, attempted to cover up the problem by issuing inadequate and misleading information, did not warn Plaintiff and all City of Flint residents and employees by causing City of Flint residents and business along with their employees as well as the medical profession the true nature and extent of the danger to those exposed to the water supplied by the City of Flint. Finally, Defendants and Mr, and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) continued governance and or connection has continued the Scheme were Plaintiff and all City of Flint residents and employees by causing City of Flint residents and business along with their xxxEND_PAGE:treasury01_b41_7622_7971_072 employees as well as the medical profession who unknowingly and unwittingly to buy, drink and otherwise using water contaminated with Trihalomethanes (THMs) above 80 parts per billion 1962(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section. A RICO conspiracy is composed of two agreements: (1) An agreement to commit at least two predicate acts which form the pattern of racketeering activity; and (2) An agreement to the conduct which violates subsection (a), (b) or (c} of ‘1962, @g. an agreement to conduct or participate in the affairs of an enterprise (sub- section(c)}.” * A RICO conspiracy generally involves two groups of people- the conspirators and the enterprise. ¢ Under agency law, a corporation cannot conspire with its officers or employees. e An overt act in furtherance of the conspiracy is required in civil cases, This requirement is distinct from the predicate act requirement, although the predicate act may satisfy the overt act requirement. Plaintiff elects to raise information and belief be heard in this matter that Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) in a scheme for City of Flint residents and business along with their employees as well as the medical profession to ceasing buy, drink and otherwise using water contaminated with Trihalomethanes (THMs) above 80 parts per billion, supplied by the City of Flint. Defendants and Mr, and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) this scheme to earn money derived from water continued being supplied by the City of Flint. See other predicate acts which were enacted during the conspiracy in the Plaintiff’ s ex parte Complaint. 5 US. v. Campione, 942 F.2d 429, 438 (7th Cir. 1991) xxxEND_PAGE:treasury01_b41_7622_7971_073 Plaintiff is likely to prevail the merit even if the some facts remain unclear or some merits cannot be determined without a full hearing: As alleged in Plaintiff's ex parte Complaint, Plaintiff contends that concerning all of the material elements to sustain a recovery as a Breach of duty to Statutory Standard of Care (Negligence per se}, Negligence, Breach Of Express Or Implied Contracts Or Even. Speculation Of Bad Faith And Unfair Dealing, Civil Conspiracy, Breach of Express and Implied Good Faith and Fiduciary, and Constitutional Tort action under Uniform Commercial Code (UCC), Federal Safe Water Act, Michigan Safe Water Act, State of Michigan Constitution and these United States Federal Constitution which put the Defendants on notice of her claims and the grounds on which they rest. Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) will not suffer irreparable injury from the preliminary injunction: Properly stated, the definition of irreparable harm is whether there is or will be a “wrong which cannot be adequately redressed by relief on the merits." N.Y. Pathological and X- Ray Laboratories, Inc., v. Immigration and Naturalization Service, 523 F. 2d 79, 81 (2d Cir. 1975), Plaintiff’ s Injunctive relief in on forcible manner restrains Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) from any other method other than through their governance of the water supplied by the City of Flint for obtaining adequate compensation for their inability to their governance of the water supplied by the City of Flint, Plaintiffs and all City of Flint residents and business along with their employees along with City of Flint business and medical professionals acute and long term exposure to Trihalomethanes (THMs) develop but not limited to certain cancers, such as bladder and colon 10 xxxEND_PAGE:treasury01_b41_7622_7971_074 cancer, reproductive issues such as miscarriages, birth defects and low birth rates, damage to the heart, lungs, kidney, liver and central nervous system in the absence of an injunction will cause a noncompensable injury for which there is no legal measurement of damages or for which damages cannot be determined with a sufficient degree of certainty: “"Trihalomethane (THM) contamination was found in the municipal water supply during the 1990s. City officials have been accused of not telling the truth about the levels of THM in the Chesapeake area. Hiding test information on THM levels, failure to provide adequate warning of the high levels of THM in the water, and failure to let the public know about the THM and possible miscarriages, still births and birth defects. Some studies link THMs (Bromodichloromethane [BDCM)]), to possible stillbirths, miscarriages and birth defects, and bladder and rectal cancers,” (Exhibit 3, p 3). In 2007, Taiwanese researchers found people who drank water with trihalomethane concentrations of more than 21 parts per billion had twice the odds of dying from bladder cancer than those who did not. (Exhibit 2, 2). Exhibit one, explain “[t] ypically, the following four THMs are found as a result of chlorination: trichloromethane (chloroform), bromodichloromethane (BDCM), dibromochloromethane (DBCM), tribromomethane (bromoform).” Further that, “[cJhloroform may be absorbed into the body through ingestion, inhalation, and through the skin. The largest source of human exposure to THMs in the U.S. is from the consumption of chlorinated drinking water. Besides consuming water, other water uses in the home may contribute significantly to total chloroform exposure both from breathing in chloroform vaporized into the air and from it passing through the skin during bathing. Swimming in chlorinated pools will also contribute to the total exposure from the same exposure paths. One study observed that a 11 xxxEND_PAGE:treasury01_b41_7622_7971_075 greater percentage of chloroform passed through the skin when bathing water temperatures were increased.” (p 1). TEMPORARY RESTRAINING ORDER WITHOUT WRITTEN OR ORAL NOTICE In the present case, Plaintiff's attached affidavit clearly shows that immediate and irreparable injury will result to the movant before the Defendants and Mr, and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) can be heard in opposition, such as in Exhibit one on page 2: Short-Term (Acute) Effects Evidence of chloroform's acute effects on humans has been obtained primarily during its past use as an inhalation anesthetic. In addition to central nervous system effects, chloroform anesthesia was associated with cardiac arrhythmias and abnormalities of the liver and kidneys. Inhalation exposure experiments with animals revealed that high levels are toxic to the liver and secondarily to the kidneys. Skin contact with undiluted chloroform may cause a burning sensation, redness, and blistering. Acute effects of exposure to the other THMs are not documented in the literature, but are expected to be similar to chloroform. Long-Term (Chronic) Effects Chronic oral exposure of humans to chloroform at high doses results in adverse effects on the central nervous system, liver, kidneys and heart. Animal studies have shown decreased body weights in rats and mice given chloroform at high oral doses and an increased incidence of respiratory disease at higher doses. At still higher doses given orally, liver abnormalities and decreased size of the reproductive organs were observed in rats. In animal studies investigating effects of chronic exposure to each of the other THMS, liver toxicity was observed. BDCM also caused kidney toxicity. xxxEND_PAGE:treasury01_b41_7622_7971_076 Carcinogenic (cancer-causing) Effects Chloroform has been demonstrated by several studies to produce kidney and liver tumors in rats and mice when given orally. In studies of human populations using chlorinated drinking water in which chloroform is the predominant THM, small increases in the incidence of rectal, colon and bladder cancer have been consistently observed, with evidence strongest for bladder cancer. However, because other possible carcinogens were found in this water, it is impossible to identify chloroform as the sole carcinogenic agent. Therefore, chloroform has been classified by the U.S. Environmental Protection Agency (EPA) as a Group B2 or "probable human carcinogen," based on sufficient animal evidence and inadequate human evidence of carcinogenicity. Evidence from animal studies now strongly indicates that chloroform exposure causes cancer only after first producing sustained cell toxicity. Because a certain threshold level of exposure is necessary to cause cell toxicity, cancer from chloroform exposure can only occur if that threshold is exceeded. Based on the results of animal studies in which BDCM exposure increased tumors of the large intestine, kidney, and liver, and bromoform increased tumors of the large intestine, they are also classified in Group B2. DBCM is classified in Group C, "possible human carcinogen," based on limited animal evidence of an increase in liver tumors. Effects Reports in the scientific literature in which chloroform was administered to animals indicate that chloroform has the potential to cause birth defects, miscarriages, and delays in fetal development. Results have generally been inconclusive regarding exposure to THMs and adverse developmental or reproductive effects in humans. However, the results of a recent study suggest an increased risk of early-term miscarriage from high xxxEND_PAGE:treasury01_b41_7622_7971_077 levels of THMs in tap water, particularly BDCM. Additional studies are underway to determine the significance of the association found in this study. Plaintiff's Proof of Service evidences his efforts to give notice Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000). Plaintiff's Affidavit along with the above arguments combined with Statement of Facts gives reasons why this Court should issue a temporary restraining order without written ar oral notice to Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000). BOND Plaintiff, in pro per, sui juris, being an indigent brought this matter before this honorable Court in the public interest to respectfully move this Court to Grant his Ex Parte Motion for a Temporary Restraining Order with Asset Freeze and Other Equitable Relief pursuant to Rule 65 of the Fed. R. Civ. P. 65 under Uniform Commercial Code (UCC), Federal Safe Water Act, and Michigan Safe Water Act. The bond requirement's of Fed. R. Civ. P. 65 (c) serves two functions - deterrence of frivolous claims and compensation of the Defendants and Mr. and Ms/Mrs. Jane and John Doe/Unknown (1 to 1000) - are often cited by commentators as compelling reasons for courts ordinarily to require security from injunction applicants. The requirement assumes that applicants will not be willing to lose money over cases in which they have no valid interest, or in which the factual or legal arguments are less than compelling. This assumption, however, is based on a further assumption: that the applicant can afford to post a bond. Only where the applicant can afford to post a bond does its failure to provide security reflect its lack of good faith or the lack of meritoriousness of its petition. The typical public interest plaintiff's failure to post a bond says nothing about its good faith or confidence of success, or the strength of its claim 14 xxxEND_PAGE:treasury01_b41_7622_7971_078 for relief. For in the public interest context, the bond operates not as a screening device, eliminating some claims, but as a financial bar, blocking all claims. This argument was made by the Supreme Court with respect to double appeal bonds required by Oregon's wrongful detainer statute. Although the federal courts interpreted Rule 65(c) as a mandatory provision for the first forty years of its history, about half of the circuits now consider it a discretionary provision, reasoning that the phrase "such sum as the court deems proper" literally allows the trial judge to dispense with the bond.’ Recognizing that bond requirements can bar public interest litigants! access to court, the federal courts have fairly consistently decided not to require bonds in cases brought by indigents* and those brought in public interest. Denny v. Health and Social Services Board, ? Bass v. Richardson,’° Bartels v. Biernat"”, and Crowley v. Local No. 82 Furniture and Piano Movers"? establish the general principle that the federal courts have been unwilling to condition preliminary relief upon the applicant's financial resources, at least when the applicant is a poor individual. In Denny, two inferences can be drawn from the court's waiver of the security requirements. First, since the court did not rely on constitutional authority to waive the security requirement, it must have relied on its equity powers. Second, while it did not expressly state its § Lindsey v. Normet, 405 U.S. 56, 78 (1972). See also Henson & Gray, supra note 33, at 565-69. 7 This rationale was first articulated by the Sixth Circuit in Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810 (6th Cir. 1954), cert. denied, 349 U.S. 930 (1955), ® see, e.g., Denny v. Health and Social Servs. Bd., 285 F. Supp. 526, 527 {E.D. Wis, 1968}; Bass v, Richardson, 338 F. Supp. 478 (S.D.N. ¥. 1971); Bartels v. Blernat, 405 F. Supp. 1012 (E.D. Wis. 1975}; Wayne Chern., inc. v. Columbus Agency Service Corp., 567 F.2d 692 (1977); Marsh v. Moore, 325 F. Supp. 392 (D. Mass. 1971). For an early article O11 the indigent exception, see generally Blood, Injunction Bonds: Equal Protection for the Indigent, 11S. TEX. LJ. 16 (1969). ° 285 F. Supp. 526 (E.D. Wis. 1968). 1” 398 F, Supp. 478 (S.D.N. Y. 1971). ™ 405 F. Supp. 1012 (E.D. Wis. 1975). * 697 F.2d 978 (1st Cir. 2982). xxxEND_PAGE:treasury01_b41_7622_7971_079 rationale for granting the waiver, its decision would appear to be based on the theory that it would be unjust to an individual to block adjudication for want of money, or on the theory that the legal system itself has an interest in having justiciable issues adjudicated in the judicial forum (rather than the streets), or both. Faced with blocking the indigent plaintiffs’ access to court by requiring a bond they could not provide, the court waived the security requirement in a clear demonstration of its reluctance to condition judicial access upon the parties’ financial resources. Bass v. Richardson, decided in 1971, reiterated the Denny court's holding that bond should not be required of indigents. Like Denny, the Bass decision was based on the idea that it was unjust to require bonds of individuals when such a requirement blocked judicial access. The principle that bond requirements should be waived where necessary to affect a congressionally- intended private enforcement scheme adds the further equitable theory that the legal system has a positive interest in citizen enforcement, and that courts sitting in equity should waive bond requirements to encourage citizen suits. As then-Circuit Judge Burger stated in Church of Christ, in the context of listener intervention in agency proceedings: The theory that the Commission can always effectively represent the listener interests in a renewal proceeding without the aid and participation of legitimate listener representatives fulfilling the role of private attorneys general is one of those assumptions we collectively try to work with so long as they are reasonably adequate. When it becomes clear, as it does to us now, that it is no longer a valid assumption which stands up under the realities of actual experience, neither we nor the Commission can continue to rely on it. The Bass court's approach was extended in 1975, by the court in Bartels v. Biernat, it stated: "because the Court determined that the action concerns important social considerations, 16 xxxEND_PAGE:treasury01_b41_7622_7971_080 the Court would exercise [its] discretion to issue preliminary injunctive relief ... without security." 13 Bartels seems to contemplate, therefore, an equitable private attorney general exemption triggered by the court's equitable determination that the public interest impact of the litigation requires a waiver of Rule 65(c). The shift in judicial focus from Denny to Bartels from the applicant's identity as an indigent, to whether cases involve significant social considerations. In 1982, First Circuit decided in, Crowley v. Local No. 82 Furniture and Piano Movers" created the first and the only bond exemption test developed by a federal court. First, the court in Crowley viewed the plaintiff access problem posed by Rule 65(c) as a recurring one that required a general test. Unlike the NEPA courts, the Crowley court fashioned a bond exemption test applicable to all public interest cases. Second, as discussed in the following section, the test in Crowley was a fundamentally "equitable" test whose triggering event was the noncommercial, public interest status of the plaintiff. On appeal, the First Circuit It divided bond cases into two types. The first type involved commercial cases where an unsecured injunction exposed the defendant to a risk of monetary IOS." In these cases, the courts required bonds.'® The second type of case involved “important federal rights or ‘public interests brought, often by indigents, under remedial social legislation. ” in these cases, the courts waived or nominalized bond requirements.’* After dividing the federal case law into "commercial" and "public interest" types, the court constructed its exemptions test. In making bond exemptions available to public interest * 405 F, Supp. 1019 (E.D. Wis. 1975). “4 697 F.2d 978 (1st Cir. 1982). 5 697 F.2d 1000 (1st Cir. 1982). 6 697 F.2d 1000 (1st Cir. 1982), 697 F.2d 1000 (ist Cir. 1982), * 697 F.2d 1000 (1st Cir. 1982}, 7 xxxEND_PAGE:treasury01_b41_7622_7971_081 litigants, the Crowley decision ensures that federal public interest litigation will not be barred by the applicants' limited financial resources. IV. CONCLUSION The harm suffered by Plaintiffs and all City of Flint residents and business along with their employees may not be remedied by any but the most immediate and comprehensive action by this Court. Each day that Plaintiffs and all City of Flint residents and business along with their employees along with City of Flint business and medical professionals are forced to go without domestic water supplied by the City of Flint which does not exceeded the trihalomethanes (TTHM) MCL” neglectfully impacts our well-being and that of our families continues prolonged duress. Therefore, an order protecting Plaintiffs and all City of Flint residents and business along with their employees, as well as, along with City of Flint business and medical professionals