Snyder’s Supreme Court pick faces conflict claim

Jonathan Oosting

Lansing — Teachers unions are seeking to disqualify new Michigan Supreme Court Justice Beth Clement from a high-profile retiree health care case because of her last job as Republican Gov. Rick Snyder’s chief legal counsel.

Snyder appointed Clement last month, nine days after Michigan’s highest court heard oral arguments in a case alleging the state improperly took a collective $550 million from active teachers’ paychecks to fund health care costs for retirees.

Clement’s background as chief legal counsel for Snyder, along with a previous role as legal counsel for a Senate Republican leader, “reflect a bias or prejudice in favor of the State of Michigan on this particular matter in dispute before the Court,” attorneys said this week in a filing.

The motion, filed on behalf of AFT Michigan and other union groups that sued the state, seeks to prohibit Clement from participating in the pending decision on the case, which could happen at any point between now and the summer of 2018.

The case stems from a 2010 law requiring school districts to withhold 3 percent of teachers’ pay and give it to the state to fund retiree health care and pay down a multibillion-dollar unfunded liability. The state placed money collected between 2010 and 2012 in escrow pending outcome of the legal challenge.

The Michigan Court of Appeals ruled in June 2016 that the money was collected unconstitutionally and said the state should reimburse teachers. Snyder appealed the ruling last year. The state Supreme Court ruling could affect more than 200,000 public school employees, according to plaintiff attorneys.

“These individuals are entitled to know and believe that the Justices of this Court are, as they have been, impartial and that they approach each case without any impediment to their judgment,” they wrote. “This Motion does not suggest that Justice Clement has or would act improperly. But the appearance of neutrality is critical on matters such as this which impact so many citizens of the State.”

The mandatory payroll reductions were approved in 2010 by former Gov. Jennifer Granholm, a Democratic-controlled House and Republican-dominated Senate.

Snyder appealed the case to the Michigan Supreme Court last year without the help of Attorney General Bill Schuette, who declined to represent the governor in the wake of the Court of Appeals ruling. Instead, Snyder hired outside attorneys to represent him as special assistant attorneys general.

The motion to disqualify Clement suggests the governor likely consulted her about his decision to appeal the case and posits she also likely helped select, manage or communicate with attorneys representing him before the Michigan Supreme Court.

Snyder’s office did not respond to questions over whether Clement played any role in those decisions but reiterated his support for her.

“The governor appointed Justice Clement with full faith and confidence she will be a phenomenal addition to the court,” spokeswoman Anna Heaton said. “Any appointee to the court would have conflicts of interest, whether they were a practicing attorney in the public or private sector, or a judge in lower court.”

Michigan Supreme Court spokesman John Nevin said he was not aware of any immediate plans for Clement to respond to the request for disqualification. In an introductory press conference last month with the governor, Clement acknowledged she may have to recuse herself from some cases.

“There will be conflicts,” she said on Nov. 17, “and I will look at each and every case as they come in. I’m aware of those potentials.”

Clement had worked in various capacities for Snyder since 2011. In 2010, she worked as legal counsel for then-Senate Majority Leader Mike Bishop, who now serves in Congress. The Senate approved the teacher retirement health care legislation that same year and Bishop voted for the law.

“Due process requires an impartial decision maker, and these facts suggest otherwise,” plaintiff attorneys said in the motion for disqualification, which includes a request for immediate consideration and oral arguments in court.

“Only Justice Clement in consultation with her conscience could answer the question of bias and such questions are left to her conscience.”

Clement is one of four active justice first appointed by Snyder to the seven-member court. Republican nominees hold a 5-2 majority.