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The Biggest Cases Facing Nessel (And Whitmer)

By Zachary Gorchow
Executive Editor and Publisher
Posted: January 30, 2019 1:35 PM

There are more significant decisions facing the attorney general than at any time I can recall in my time covering state government and politics.

The list of major, significant cases facing Attorney General Dana Nessel, who took office January, 1 is long.

Unfortunately, Ms. Nessel has declined a standing request we at Gongwer News Service have made, and made, and made and made again (you get the idea) since winning election November 6 for an interview. Initially, the word from her office was no interviews until after she was inaugurated January 1. Now it turns out no interviews indefinitely. That is regrettable and completely at odds with how the last four attorneys general have interacted with the news media.

Since it's not possible to ask Ms. Nessel her thoughts on the many big cases facing her, I thought it at least instructive to review the big cases we know of that are pending. It's important to remember too that in many instances, the Department of Attorney General is largely representing the wishes of department directors appointed by Governor Gretchen Whitmer.

FLINT WATER CIVIL CASES: Hundreds and hundreds of lawsuits against the state are pending in state and federal courts from Flint residents as a result of the decisions that led to the city's water crisis with elevated lead levels in the water supply as well as possibly leading to the Legionnaires' disease outbreak. The administration of Governor Rick Snyder fought these cases every step of the way despite losing several key early court rulings.

UNEMPLOYMENT FALSE FRAUD SCANDAL: Multiple class-action lawsuits have been brought in response to the Unemployment Insurance Agency wrongly determining between 2013-15 that 37,000 people committed fraud to get benefits. A state class action case is awaiting a major decision from the Michigan Supreme Court on whether the case will be dismissed for being filed too late. A federal case is moving into discovery. The attorney for the plaintiffs in both the Flint and unemployment cases has said Ms. Whitmer and Ms. Nessel have signaled an interest in a settlement. Nothing has happened yet, however.

LINE 5: One lawsuit already has been filed in the Court of Claims contesting the law creating an authority to oversee the construction of a tunnel under the Straits of Mackinac to house Enbridge Line 5, and Ms. Whitmer has asked Ms. Nessel for a formal opinion on whether the law violates the Constitution.

LEAD AND COPPER RULE: Local governments have sued the state in the Court of Claims over the new Lead and Copper Rule promulgated by the Snyder administration setting an action level of 12 parts per billion. How Ms. Whitmer and Ms. Nessel handle this suit will be a big early test between their allies in local government and the environment.

STATE POLICE CHASE POLICY: A lawsuit was filed in the Genesee Circuit Court arguing the State Police was violating the state civil rights act in how it conducts high-speed pursuits in predominately African-American areas. The state lost on its motion to dismiss the case but appealed and that is now pending before the Court of Appeals. This will be a test of how Ms. Whitmer and Ms. Nessel balance concerns about police treatment of African-Americans with supporting law enforcement. The two officials will have to decide whether to continuing appealing or move toward a settlement.

NO-FAULT INSURANCE: Detroit Mayor Mike Duggan sued the state in the U.S. District Court in Detroit about the no-fault insurance law, demanding the state rewrite the law or be ordered to do so by the court. This case is still in its infancy and given the speed with which the federal courts move, it probably won't become a legitimate concern for at least a year. Nonetheless, it will put Ms. Whitmer and Ms. Nessel in an awkward spot to fight the case.

CHILD MENTAL HEALTH: A sweeping class-action case accusing the state of failure to provide adequate mental health services for children is pending in the U.S. District Court in Detroit. Under the Snyder administration, the state was fighting the case. Ms. Whitmer and Ms. Nessel have a big decision to make on this one.

WRONGFUL IMPRISONMENT COMPENSATION: Former Attorney General Bill Schuette stunned and infuriated those who put together the relatively new Wrongful Imprisonment Compensation Act, to assure those wrongfully convicted and imprisoned receive compensation from the state, in fighting claims filed by those who did not do so within six months of the law taking effect. While that is the notice requirement for filing in the Court of Claims, the compensation law specifically gives claimants 18 months to file. Legislation to correct the problem died in the House without explanation last term. The claimants have appealed the Court of Claims siding with Mr. Schuette. Ms. Nessel must decide whether to continue the position of the Schuette administration.

ADOPTION SERVICES FOR LGBT FAMILIES: Ms. Nessel already has signaled her intent to settle the lawsuit challenging a state law allowing adoption agencies with whom the state contracts to deny services based on a sincere religious belief, a law that allows religious organizations to refuse adoption services to prospective LGBT parents.

TESLA: Will Ms. Whitmer, Ms. Nessel and Secretary of State Jocelyn Benson continue defending state law requiring automakers to sell their vehicles through a franchised dealership? The case is pending in the U.S. District Court in Grand Rapids.

JUVENILE PRISON ABUSE: Here's a thorny one. The Snyder and Schuette administrations have zealously fought lawsuits brought against the Department of Corrections accusing its staff of failing to prevent sexual abuse of juvenile prisoners. Corrections has repeatedly denied the allegations, and most court rulings so far have favored the state.

'RIGHT TO READ': Ms. Whitmer regularly beat up on Mr. Schuette for his office's defense of the state in a lawsuit brought by the American Civil Liberties Union of Michigan asserting children have the right to read and that the state had failed to fulfill that right. The state has prevailed in court so far, but the plaintiffs have appealed to the 6th U.S. Circuit Court of Appeals. This is another one where there will be pressure for a settlement.

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