Supreme Court takes Schuette private email case

The state’s highest court announced Wednesday it will hear a case to determine whether private emails from former Attorney General Bill Schuette should be disclosed under Michigan’s Freedom of Information Act.

The Michigan Supreme Court issued an order in which it agreed to hear the case, Progress Michigan v Schuette. And the court said it will review the lower court’s decisions and arguments about whether Schuette should have disclosed his private emails under Michigan’s open records law.

In 2017, the liberal advocacy group Progress Michigan filed suit against the former attorney general after his office denied a 2016 FOIA request. That request sought emails regarding official state business by Schuette and his staff that were sent or received by private email accounts over a six-year period.

Schuette’s office said it did not possess the emails sent privately, although Progress Michigan claims that it’s aware of more than a dozen instances of private email accounts being used in state business under Schuette’s tenure.

Gov. Gretchen Whitmer banned the use of private email accounts for state business — which previously had not been forbidden outright — with an executive directive in January.

Lawyers from the office of Attorney General Dana Nessel, a Democrat and fierce Schuette critic during her 2018 campaign, will now defend the former attorney general — a Republican who lost his gubernatorial bid that same year to Whitmer.

After taking office, Nessel reversed or pulled out of many of the lawsuits started by Schuette. She also instituted major changes in who oversees ongoing criminal lawsuits stemming from the Flint water crisis, as the Michigan Advance previously reported.

Nessel’s office must defend Schuette because he was sued in his official state capacity as attorney general, according to Nessel spokeswoman Kelly Rossman-McKinney.

“Because Bill Schuette was sued in his official capacity it means the office was sued, so yes, we have to defend it,” Rossman-McKinney said in an email. “So we’re defending the office, not the man. The attorneys in our State Operations Division are representing the department.”

Schuette was Michigan’s attorney general from 2011 to 2019. State attorneys from his office defended him while the case was in lower rungs of the court system.

Now lawyers in Nessel’s office are expected to submit a brief in Schuette’s defense to the Supreme Court.

“Attorney General Nessel inherited Progress MI v Schuette when she took office,” said Rossman-McKinney in another email. “The Attorney General is aware of the Supreme Court’s decision and is currently in the process of evaluating the case in light of the Court’s order granting the application.”

Schuette did not immediately return a phone call from the Advance seeking comment.

His former chief of staff, Rusty Hills, said he did not know whether Schuette will retain independent legal counsel in addition to state representation.

Former Solicitor General Aaron Lindstrom had been Schuette’s legal counsel in the case, but said he longer represents the former attorney general because both are no longer state employees.

Lindstrom also said he is not representing Schuette as a private attorney.

Progress Michigan has used FOIA to uncover scandals with other Republican politicians, including Department of Corrections issues under former Gov. Rick Snyder.

The group most recently has been pushing to strengthen FOIA reforms that have been introduced in the Legislature.

On Tuesday, the Michigan House voted unanimously to open the governor’s office and state legislators’ offices to open records requests. But the 10-bill package creates a new legal mechanism for the legislative branch, separate from the existing FOIA law, to ask for such documents.

Progress Michigan Executive Director Lonnie Scott criticized the plan for having major loopholes that he said would allow the Legislature to shield lawmakers from public disclosure.

According to Scott, the lawsuit against Schuette also exemplifies the need for judicial review in disputes over such requests.

“As we’ve seen over the past few weeks, transparency in government is something the people of Michigan are passionate about and want to see more of from their elected officials,” said Scott in a statement. “Even though Bill Schuette is out of office, accountability doesn’t have an expiration date, and we need to know how Schuette and his staff were using private email accounts to conduct public business.”