A former state health director is getting an emergency hearing before the Michigan Supreme Court to decide whether a one-judge grand jury violated the Constitution and due process in approving criminal charges related to the Flint water crisis.
Former Department of Health and Human Services Director Nick Lyon faces nine counts of involuntary manslaughter tied to 2014-15 deaths from a Legionnaires’ disease outbreak in the Flint area that some experts have tied to the city’s lead-contaminated water. He also faces a misdemeanor charge of willful neglect of duty.
Each of Lyon’s manslaughter charges carries a maximum penalty of 15 years and/or $7,500 fine. Lyon was originally charged with two counts of involuntary manslaughter under the special prosecutor appointed by Republican then-Attorney General Bill Schuette, but Democratic Attorney General Dana Nessel’s office dropped the charges in June 2019 as it rebooted the Flint probe.
Charges were reissued against Lyon in January 2021 after Genesee County Circuit Judge David Newblatt was appointed to be the so-called one-person grand jury who under state law acted as a judicial investigator.
Lyon is arguing that Michigan’s laws governing one-person grand juries violated “Michigan’s constitutional requirement of separation of powers,” didn’t give a judge the power to authorize criminal charges and violated due process, according to a Supreme Court order released Thursday.
Lyon’s attorney also is set to make arguments before the high court on May 4 on whether a one-judge grand jury’s approval of criminal charges forbids a preliminary exam under state law. The court granted Lyon’s petition to join arguments being made the same day by the lawyer for Nancy Peeler, a former employee of the Michigan Department of Health and Human Services.
Peeler, the former director of Maternal, Infant and Early Childhood Home Visiting in the state health department, was charged with two felony counts of misconduct in office and one misdemeanor count of willful neglect of duty. The penalties range from one year in jail to up to five years in prison.
Peeler’s charges are related to “concealing and later misrepresenting data related to elevated blood lead levels in children in the city of Flint” and the failure to act on those blood lead levels, according to Michigan Attorney General Dana Nessel’s office.
Genesee County Circuit Court Judge Elizabeth Kelly denied the motion for a preliminary exam. A three-judge panel on the Michigan Court of Appeals also denied the request in August for “lack of merit.” But the high court has agreed to hear arguments and take briefs on the issue.
When Lyon was charged by Schuette’s special prosecutor, he had a preliminary exam where his lawyers questioned witnesses and argued there wasn’t enough evidence to bind him over for trial. A judge disagreed, but Lyon’s trial was scuttled when Nessel’s office dropped charges and rebooted the Flint water investigation, indicating it might recharge Lyon and others.
In a preliminary exam, the prosecution has to meet a relatively low bar of evidence, only showing there was probable cause the offense was committed. At trial, juries are instructed to determine guilt “beyond a reasonable doubt.”
Solicitor General Fadwa Hammoud has said previously that the state believes a preliminary exam is unwarranted.
There were at least three other applications before the court to allow preliminary exams for former Gov. Rick Snyder’s top aide Richard Baird and former Flint emergency managers Gerald Ambrose and Darnell Earley.
Justice Beth Clement won’t be participating in the case because she was then-Gov. Rick Snyder’s legal counsel.