A Genesee County Circuit Court judge has ordered the dismissal of charges against former Gov. Rick Snyder related to the Flint water crisis, but Michigan Attorney General Dana Nessel’s Flint legal team vowed to appeal.
Judge F. Kay Behm on Wednesday ruled that a June Michigan Supreme Court ruling was controlling on Snyder’s case when the high court declared unconstitutional the use of a one-judge grand jury to charge the Flint defendants.
Snyder was charged with two misdemeanor counts of willful neglect of duty in January 2021 by a one-judge grand jury, along with eight other city and state officials, in relation to the Flint water crisis investigation by Nessel’s office.
Snyder’s lawyer, Brian Lennon, hailed Behm’s decision in a Friday statement and criticized the attorney general’s “political persecution veiled in amateurish and unethical prosecutorial efforts.”
“The state has already wasted millions of taxpayer dollars pursuing meritless misdemeanor charges and this case should now be considered closed,” Lennon said. “The prosecution team’s statement saying it will appeal this ruling is further proof that they intend to continue their efforts to weaponize the court system against their political enemies.”
Through July, the state had spent nearly $53 million since 2016 for both the prosecution and defense of Michigan’s top officials in the Flint water criminal and civil litigation, according to records obtained and reviewed by The Detroit News. The legal tab spanned four departments and at least 25 state employees.
The Flint water prosecution team said in a Friday statement that Behm’s decision is not surprising and the team “looks forward to addressing these issues in court.”
“We are confident that the evidence clearly supports the criminal charges against Rick Snyder, and we will not stop until we have exhausted all possible legal options to secure justice for the people of Flint,” the prosecution team said.
The Flint prosecution team is led by Chief Deputy Fadwa Hammoud, formerly Nessel’s solicitor general, and Wayne County Prosecutor Kym Worthy.
Many of the dismissed charges in the Flint water prosecutions led by Hammoud and Worthy could be difficult to reauthorize if the team is unsuccessful on appeal. The team is running up against the statute of limitations, which, in many cases, limits charges to a six-year window after an alleged crime is committed.
Many of the charges authorized by Hammoud and Worthy relate either to the April 2014 water source change — in which the city switched from the Detroit area water system’s Lake Huron water to Flint River water, spurring the lead-tainted water crisis — or subsequent action or inaction among public officials in the few years after the water change.
Behm, who is about to move to the federal bench, wrote in her Wednesday opinion that the Supreme Court’s decision on the one-judge grand jury “requires dismissal of appellant’s charges” and remanded the case to district court for dismissal.
Snyder’s lawyers had argued that the former governor’s charges should be dismissed because Michigan law requires an indictment to be issued in the county where an alleged crime is committed.
The allegations underlying the charges against Snyder — that he failed to declare a timely state of emergency or disaster in Flint and that he failed to “inquire into the performance, condition and administration” of officers he appointed — would have stemmed from the seat of government in Lansing, making Ingham County the only proper venue for the charges, his lawyers argued. Snyder declared a state emergency in January 2016.
Behm declined to rule on the venue questions since the Supreme Court’s rejection of the one-judge grand jury overrode any question of venue.
The dismissal of Snyder’s charges came after Genesee County Circuit Judge Elizabeth Kelly in October dismissed felony charges against seven other state officials based on the Supreme Court opinion.
Snyder’s charges were on a different timeline because his were misdemeanor charges were filed in district court and the other defendants faced felonies in circuit court.
The Michigan Supreme Court ruled 6-0 in June that charges against former Michigan Department of Health and Human Services Director Nick Lyon should be dismissed because Nessel’s office used a one-judge grand jury to indict him. The court said the one-judge grand jury law allows judges to issue investigative subpoenas or arrest warrants but it does not permit judges to issue indictments.
In the Supreme Court’s opinion, then Chief Justice Bridget McCormack referred to the attorney general office’s use of a one-judge grand jury as a “Star Chamber comeback,” a reference to a centuries-old, secretive court abused by high-ranking officials in the Middle Ages.
“The one-man grand jury then issued charges,” McCormack wrote. “To this day, the defendants do not know what evidence the prosecution presented to convince the grand jury (i.e., juror) to charge them.”
The Supreme Court said Genesee County Circuit Court erred in refusing to dismiss Lyon’s case and remanded the case back to the circuit court for proceedings “consistent with this opinion.”
While the decision was specific to Lyon, the reasoning was extended to the six other circuit court defendants and now Snyder, who were also charged under the one-judge grand jury system.
The U.S. Senate on Tuesday voted 49-47 to confirm Behm to serve on the federal bench in Michigan’s Eastern District.