Attorney General Dana Nessel's office plans to appeal the dismissal of criminal charges against seven state officials in relation to the Flint water investigation, arguing a Michigan Supreme Court ruling related to the cases was limited and did not require a complete elimination of charges.
The Flint prosecution team, which is being led by Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy, said the high court's June opinion allowed for the cases to be sent back for a preliminary examination and didn't upend the charges in their entirety.
"The public deserves to hear the evidence against these defendants," the team said in a statement Tuesday. "Remanding these cases for preliminary exam is the next logical step in the legal process based on the ruling from the Michigan Supreme Court."
The planned appeal would mark the third time Nessel's office has sought relief from the high court related to the criminal cases. The Supreme Court ruled in June on the prosecution's use of the one-judge grand jury and in September declined to hear an appeal from the prosecution team over an order requiring the state to use a taint team to review seized evidence for privileged information.
"On behalf of Director Lyon and the entire team who has represented him, we regard this appeal to be meritless," said Chip Chamberlain, a lawyer for former state health director Nick Lyon. "We have every expectation of prevailing once again affirming the dismissal. The case should never have been brought in the first instance and certainly never by this method.”
The Michigan Supreme Court ruled in June that Michigan's one-judge grand jury law allows a judge the ability to investigate, subpoena and issue an arrest warrant in a case, but it does not allow the same judge to issue the resulting indictment.
The decision was issued in Lyon's case, who was charged with manslaughter in relation to a deadly Legionella outbreak believed to be linked to the Flint water crisis of 2013-2014.
Lyon's legal team said his charges should be dismissed based on the argument that Michigan's one-judge grand jury process was not designed to allow a judge to both investigate and indict in the same case and, if it does, then the law allowing for a one-judge grand jury is an unconstitutional breach of the separation of powers. The Supreme Court in its June opinion sided with the first of Lyon's arguments and found the lower court erred in denying Lyon's motion to dismiss.
For six other defendants who argued only that they should have been granted preliminary examinations instead of being bound directly over to circuit court, the Supreme Court found they should have been granted preliminary examinations.
But the effect of the decision was believed by most experts to be a dismissal of the charges against all of the defendants because they were all indicted in a manner similar to Lyon.
Citing the Supreme Court's opinion, Genesee County Circuit Judge Elizabeth Kelly dismissed charges against all seven defendants. The dismissal puts in jeopardy the ability of prosecutors to reissue some charges in the Flint water case because of statute of limitations laws that require charges to be issued within six years of the alleged crime.
The appeal Nessel's team is planning would ask the Supreme Court to upend Kelly's decision.
"The prosecution followed the law in using the one-person grand jury process from the beginning and is prepared to move forward on the valid warrants issued in these cases in compliance with the new process defined in the opinion from the Court," Nessel's Flint prosecutors said in a statement.