Court intervention bill pops, undermining new Dem AG’s power

Lame Duck protest at the Michigan Capitol, Dec. 12, 2018 | Ken Coleman
Updated, 5:30 a.m. Dec. 21

In a matter of minutes, Michigan Senate Republicans Thursday afternoon approved a bill that cinches the power of Democratic Attorney General-elect Dana Nessel.

This has been, perhaps, the most hotly contested bill of a long and fiery Lame Duck session and has been the subject of considerable national media attention, drawing comparisons to GOP actions in Wisconsin.

Dana Nessel

House Bill 6553, sponsored by Rep. Rob VerHeulen (R-Walker), passed the House on Dec. 5. The lower chamber agreed to the Senate’s changes early Friday morning.

GOP Gov. Rick Snyder has not indicated if he will sign the bill.

In a 26-12 mostly party-line vote, the GOP-controlled Senate Thursday backed a substantial alteration to the court process. State Sen. Tory Rocca (R-Sterling Heights), an attorney, joined Democrats in voting “no.”

The measure permits the Legislature to side-step the attorney general and intervene in any case involving legislative matters, without the presiding judge’s approval. This power previously has just been entrusted to the AG and governor.

Steve Bieda

“This bill allows the Legislature to fight in places they don’t belong,” said Sen. Steve Bieda (D-Warren), an attorney, on the Senate floor Thursday. “… We have something that you might remember from your civics class called the separation of powers, and we have it for a reason. Our founding fathers are rolling over in their graves right now.”

Opponents like Bieda say this is another attempt at a “power grab” by the Republican Legislature before the 2017-18 session ends.

In an interview with the Advance this week, Whitmer said that “the voters expect me to be a governor with all the authority that the first 48 governors of our state’s great history had. And I’m gonna fight to make sure that those powers are in the executive office.”

On Jan. 1, Nessel will become the state’s first Democratic attorney general in 16 years. The legislation, if signed into law by the term-limited Republican governor, could spark a furious court challenge based on constitutional grounds.

At stake could be the state’s process for handling future court fights involving health care, LGBT rights, environmental protection, the minimum wage and paid sick leave for workers. All of these matters previously were handled by the AG, who serves as state government’s lawyer.

Sam Bagenstos

“There’s a very strong argument to be made that this is a violation of the state Constitution,” said University of Michigan law professor Sam Bagenstos, an unsuccessful 2018 Michigan Supreme Court candidate who was nominated by Democrats. “It’s very troubling. This is a very significant attack on the Michigan attorney general’s powers.”

The bill would allow either the state House or Senate to step into any case that challenges state statutes or other legislative actions, giving them the same legal standing in court as a party to the lawsuit.

Republicans say Nessel brought the shakeup upon herself when she said during the 2018 campaign that she probably wouldn’t defend a state law that allows adoption agencies, based on their religious beliefs, to reject same-sex couples. As an AG candidate, Nessel also repeatedly vowed to wage court battles against federal legislation and executive orders put forward by the President Trump administration.

Despite the intense national attention focused on the Lame Duck session in Lansing, the Senate passed the bill just minutes after Democratic amendments were rejected. Another bill labeled as a GOP power play, stripping incoming Democratic Secretary of State Jocelyn Benson of her authority over campaign finance enforcement, fizzled in a House committee on Tuesday due to lack of support.

Experts say HB 6553 would weaken Nessel’s role and create confusion as to who speaks for state government when a statue is subjected to a lawsuit.

Under current procedures regarding court challenges to a state law, the presiding judge decides whether to allow any outside parties to submit a legal brief in a case where the attorney general serves as the state’s defense attorney.

Robert Sedler

Robert Sedler, a longtime constitutional law professor at Wayne State University, said the bill would mark a sharp departure from the Michigan Constitution rigid separation between the executive, legislative and judicial branches of government.

“This raises a serious constitutional question and creates serious separation of powers problems,” Sedler said. The attorney general serves as the state’s chief law enforcement officer and, “Basically, it’s not the function of the Legislature to intervene in court cases.”

An amendment approved by a Senate committee on Tuesday supposedly limited these interventions to rare circumstances, but the bill still applies to cases contesting any actions taken by the Legislature.

In his eight years in office, term-limited Republican Attorney General Bill Schuette had aggressively used the AG’s widespread powers to file numerous lawsuits against actions by the federal government during the President Barack Obama era, including the Affordable Care Act, Environmental Protection Agency pollution standards, and a federal district court ruling that retroactively banned mandatory life sentences for juveniles.

Bagenstos, a former U.S. Justice Department official, said if HB 6553 becomes law, it might muddle the entire litigation process.

The Republican Legislature could become eager to engage in courtroom battles with the Democratic AG, he said. In the future, if the Democrats gained control of the state House, for example, Senate Republicans could vote to intervene in a case, even if House Democrats objected to such a move.

Michigan Capitol | Susan J. Demas

A judge could be faced with a confounding two-track approach when dealing with the state’s defense attorneys. The Legislature’s attorneys may want to appeal a court ruling, while the AG’s office opposes their tactics, Bagenstos said.

And the AG may want to settle a case, while the Legislature’s legal counsel could proceed, leaving the AG essentially on the sidelines.

“What would happen is,” Bagenstos said, “you transfer the state courts into just another political arena.”

Reporter Andrew Roth contributed to this story.

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