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Controversial legal intervention plan advances in Michigan Senate

Jonathan Oosting
The Detroit News
Michigan Representative Rob VerHeulen (R-Walker) testifies before the Senate committee on Governmental Operations on Tuesday, Dec. 11, 2018 in the Capitol building in Lansing. VerHeulen's bill would make it easier for the legislature to pursue legal action on it's own, without the state Attorney General.

Lansing — A Republican-led Senate panel on Tuesday advanced fast-tracked legislation that would guarantee the Michigan Legislature can intervene in any state legal cases when a law it approved is challenged in court.

The proposal would give the GOP-led House and Senate a power typically reserved for the state attorney general. It comes as Plymouth lawyer Dana Nessel prepares to assume that office and become the first Democrat to hold the post in 16 years.

Senate Majority Leader Arlan Meekhof, R-West Olive, said the push was inspired by legal disputes with term-limited Republican Gov. Rick Snyder’s administration, but he acknowledged guaranteed intervention could take on new significance with Nessel taking office.

Michigan Sen. Majority leader Arlan Meekhof, (R-West Olive) listens as Representative Rob VerHeulen (R-Walker) testifies before the Senate committee on Governmental Operations Tuesday.

“Let’s be clear, the attorney general-elect has already said there are certain things she’s not going to defend and there’s other places she’s going to intervene,” Meeekhof said earlier Tuesday. “By all means, we should have the priority status to defend the stuff that we’ve done, and I think that is important.”

Nessel said during her campaign she may not defend state laws she views as unconstitutional, including a 2015 law that allows faith-based adoption agencies to decline working with gay residents. Same-sex couples have sued the state over the law, and the litigation remains in court. 

The proposal would not “diminish” Nessel’s authority, Meekhof argued, “but we should have standing there, because you cannot ignore laws.”

The legislation, approved last week by the House, was revised by the Senate committee and advanced in a 3-2 vote despite Democratic objections.   

“It’s not the Legislature’s job to tip the scales in court,” said Senate Minority Leader Jim Ananich, D-Flint. “We have a system of checks and balances that’s worked for 200 years, and I think encroaching on that is just wrong.”

Michigan Senator Jim Ananich (D-Flint) questions Representative Rob VerHeulen as he testifies before the Senate committee on Governmental Operations on Dec 11, 2018 in the Capitol.  Rob VerHeulen's bill would make it easier for the legislature to pursue legal action on it's own, without the state Attorney General.

The modified bill gives the Legislature the authority to intervene in any state legal battles when a party “challenges the constitutionality of a state statute, or the validity of legislation or any action of the Legislature.”

In those cases, the Legislature could prosecute an appeal, apply for a rehearing or take “any action or step” available to other parties to the litigation, including Nessel or Democratic Gov.-elect Gretchen Whitmer.

But the proposal specifies that it “does not limit any right or duty of the attorney general provided by law.”

Sponsoring Rep. Rob VerHeulen, R-Walker, said the changes better reflect his goal of making sure the House or Senate can intervene in legal cases involving Michigan laws, which currently requires court approval.

VerHeulen called it “regrettable” his bill has been “lumped in” with other power play bills in Michigan and other states where Republicans are working to weaken the authority of Democrats who won election in November and are set to take office Jan. 1.

“I ask the Senate to consider the bill on its merits, without regard to what might be happening in Wisconsin or South Dakota or anywhere else,” he said.

The Legislature already can instruct the attorney general to intervene in a legal case, VerHeulen noted, so “it’s not as if the House or Senate are muzzled.”

He pointed to an ongoing lawsuit from the Michigan auditor general, the independent oversight arm of the Legislature, which in January took the rare step to sue the Snyder administration after the state Department of Health and Human Services declined to hand over requested records. In cases like that, the attorney general would defend the state department but the Legislature would side with the auditor.

“There are times where the attorney general may not be the appropriate spokesperson for the House or Senate,” VerHeulen said. “They may have a sincerely held belief the position taken by the House or Senate is not constitutional.”

Snyder on Tuesday again declined to weigh in on the legislative intent bill and other controversial measures until they reach his desk. But the term-limited governor said he is "not a horse trader" and told reporters he'll review each bill to determine "is it good for the people of Michigan or not?"

The vast majority of bills sent to him over the past eight years have cleared the Legislature with bipartisan support, but the recent fury in lame duck appears to be “somewhat of an aberration,” he told reporters in an end-of-year round table discussion, his last before leaving office.

Snyder acknowledged public outcry over the GOP power play proposals, but with protesters flooding the Michigan Capitol in recent days, he said there have also been some “errors” by Democratic critics.

Michigan Sen. Mike Kowall, (R-White Lake) listens as Representative Rob VerHeulen (R-Walker) testifies before the Senate committee on Governmental Operations Tuesday.

“I think there’s a civility question across the board in some ways, because one of the ways people are trying to convince me why I should veto bills or be against it is to come yell at me,” the governor said.

The legislative intervention bill is among a handful of Republican measures that have sparked protests and garnered national attention, including a Senate-approved bill that would strip campaign finance oversight from Democratic Secretary of State-elect Jocelyn Benson and give it to a new bipartisan committee. 

A Senate Republican power play proposal to shift campaign oversight from Democratic Secretary of State-elect Jocelyn Benson to a new political commission is poised to die in the Michigan House.

In cases where the Legislature disagrees with the attorney general or administration, the House or Senate could file a legal brief asking the court to allow it to intervene in the dispute, Ananich said before giving a hypothetical to reporters after the committee meeting.

“Let’s say … you were the speaker of the House and were running for attorney general and you want to weigh in on a case. What would stop you from using your power and your seat to make a political point in a case, wasting taxpayer dollars intervening on behalf of the Legislature when maybe the Legislature doesn’t feel that way?”

Several citizens spoke out against the bill in committee, arguing it contradicts separation of powers spelled out in the Michigan Constitution, disrespects voters who elected Nessel and could essentially create a “shadow attorney general.”

Sen. Morris Hood, D-Detroit, echoed those concerns and said the attorney general’s office has the appropriate power and expertise to handle complicated cases on its own.

“As of November, we elected an attorney general to do a certain job under the rules that are there, and now after the election we want to change the rules, and I think that is unfair to the people,” Hood said.

Twitter: @jonathanoosting