Michigan Supreme Court | Susan J. Demas
The state Supreme Court heard oral arguments on Wednesday in a government transparency case that both parties argue goes far beyond the state’s public records law.
Liberal advocacy group Progress Michigan alleges it has evidence that Republican former Attorney General Bill Schuette and his staff used private email to conduct state business. Progress Michigan is asking the state’s top judges to grant relief in the form of discovery and allowing the group to gather more facts about Schuette’s alleged use of private email.
Schuette, who did not attend the proceedings, is being defended in the case by the office of Attorney General Dana Nessel, a Democrat who took office in January 2018 after he was term-limited.
Nessel may be more in line with the policy and political views of Progress Michigan. However, the group’s attorney, Mark Brewer, a former chair of the Michigan Democratic Party, said he continues to see the same roadblocks under the new administration that he did under Schuette.
“All I know is what I read and the defenses haven’t changed,” Brewer told reporters of the legal justifications used by both administrations to block release of the alleged documents.
“That’s not to be critical of the current occupant … but nothing has changed since the new attorney general took office in terms of this case,” Brewer said. “As I told the court this morning, if they brought the emails to court this morning, this case would be over, but they didn’t.”
For their part, attorneys representing Schuette argue the case has little to do with the Freedom of Information Act (FOIA) and instead deals with technical issues. Specifically, Assistant Attorney General Kyla Barranco said the case deals with issues of under what circumstances the state can be sued.
“At issue today is not whether personal email accounts used for official business are subject to FOIA. They are. Or whether the state has an obligation to be transparent and provide information in response to FOIA requests. It does,” Barranco told the justices. “Rather, at issue is how and when the state may be sued under the FOIA in the Court of Claims.”
Barranco argues that Progress Michigan erred in its original complaint, thus immunizing the state in the suit.
Nessel spokeswoman Kelly Rossman-McKinney echoed that argument in an email, writing: “The FOIA issue is separate from this threshold question.”
In one of her first moves upon taking office last January, Gov. Gretchen Whitmer signed an executive directive banning state employees from using private email for state business.
Because of the procedural issues argued by the defense, Brewer told justices that ruling against Progress Michigan would set a precedent that defense attorneys could exploit at any time by claiming that minor technical issues nullify otherwise valid complaints.
“The effect would be … that thousands of defense lawyers in this state would now start to search for every conceivable defect under statute or court rule when a complaint is filed and say that ‘this complaint is a nullity and I have no obligation to answer,’” Brewer argued.
“It’s chaos, and that [would] affect the clients of those people,” Brewer continued. “They’d lose rights to file all kinds of lawsuits in this state if creative defense lawyers … can say that a lawsuit is a nullity.”
Additionally, Barranco told justices that the attorney general’s office has no knowledge of the existence of the documents sought by Progress Michigan, which both Brewer and Lonnie Scott, the group’s executive director, dispute.
“For us, this case has always been about transparency,” Scott said. “And we have fought all the way to this point because we don’t believe that the roadblocks that were erected by … Schuette should stand in the way of that transparency. We believe this is an important case for that, not just because of the records that the attorney general’s office say don’t exist — which we have examples of — but also for future implications around FOIA and how those cases are handled.”
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