Lyon’s Attorneys Seek To Dismiss Criminal Case
As expected, attorneys for Michigan Department of Health and Human Services Director Nick Lyon are asking the Genesee County Circuit Court to quash the bind over from district court and dismiss all criminal charges.
In court filings Sept. 10, defense attorneys John J. Bursch, Larry Willey and Charles “Chip” Chamberlain Jr. say Genesee County District Judge David Goggins’ made his “decision by closing (his) eyes to numerous principles well-settled in Michigan law” and that his decision to send Lyon to trial on two counts of involuntary manslaughter and misconduct in office is the first in the state’s history to hold a director criminally liable for subordinates.

“The families of Mr. (Robert) Skidmore and Mr. (John) Snyder desire justice, as do the people of Flint,” Bursch wrote. “But that desire cannot be satisfied subjecting Director Lyon to a trial for criminal charges that fail as a matter of law. That would be the exact opposite of justice.”

A 9 a.m. Sept. 26 hearing was set, but it’s unclear if Circuit Judge Joseph J. Farah will hear the defense’s motions that day.

The state had not filed a response as of Sept. 10.

The state argued at a preliminary examination that Lyon’s failure to notify the public about Legionnaires’ disease in the Flint area in 2014 and 2015 led to the deaths of Skidmore, 85, of Genesee Township, and Snyder, 83, of Flint-area.

Lyon also faces one count of misconduct in office for allegedly misleading and withholding information about Flint’s Legionnaires’ disease outbreaks and directing a health official to discontinue analysis to find the source.

In a separate motion, the defense also seeks to dismiss a misdemeanor count of willful neglect of duty, which automatically moved to Circuit Court with the felonies when Goggins didn’t make a ruling on the defense’s motion to dismiss the charge.

The defense says Lyon had no ministerial duty and any alleged duty to “protect the public health” is too vague to be enforceable. To support their argument, the defense points to preliminary examination testimony in which witnesses testified whether, when and how to give notice of an outbreak is professional judgment and discretion.

“As far as the MDHHS director is concerned personally, the statute requires only that he ‘be qualified in the general field of health administration.’ . . . Indeed, the MDHHS director’s oversight of his epidemiologist and health officers in the event of a Legionnaires’ outbreak is the epitome of discretion,” Bursch wrote.

“Based on this legal defect in the charge, the lack of any evidence of willful neglect, and the additional reasons described below, the defense moves to dismiss (the charge),” he added.

Health Policy Considers Creation Of Statewide Mental Health Hotline
A state-wide mental health hotline—which would connect callers experiencing a mental health crisis to facilities that have psychiatric beds available and other service providers — would be created under legislation taken up Sept. 5 in the House Health Policy Committee.
Rep. Mary Whiteford (R-Casco Twp.) told the committee her HB 6202 was inspired by an experience she had with a friend who had become depressed after the death of her grandmother. Whiteford said she contacted local mental health services, one of which said if her friend was not suicidal there was nothing they could do. Another behavioral help group said it usually takes three to five months for new patients to see a provider.

Eventually, Whiteford took her friend to an emergency room where the friend was admitted. After a one-week stay, the bill was $10,000, Whiteford said, of which the friend owed $5,000.

How many would persevere after getting turned away twice, she asked.

“The answer is most people don’t know where to go. They don’t know who to ask for help. They do nothing. What happens to the struggling person? They hurt themselves. They commit suicide. They hurt others. What would have helped? What can help others in the same situation?” she said.

Such a hotline was called for in the House CARES (Community, Access, Resources, Education, and Safety) task force report members worked on last year and was unveiled in January. The task force reviewed the status of mental health services across the state, and found that availability of services is inconsistent from county to county.

Rep. Daniela Garcia (R-Holland) had several questions. For one, Community Mental Health services in counties are required now to have hotlines. Why is that not sufficient? she asked.

“Did you know that it is easier for somebody on Medicaid to access services than it is for someone who is uninsured, or someone who is insured. This allows access to everybody,” Whiteford answered.

Garcia also asked who would be assigned to answer that hotline, how they would be trained and evaluated.

“At this point, I don’t want to be so prescriptive that we lose innovation that we lose the ability for a company to make those judgment calls. So, the way I see it, is that the department will put out a request for proposals,” Whiteford responded.

Under the bill, the Department of Health and Human Services would contract for the design, operation, and maintenance of the hotline. DHHS would work with the contractor as well as the Department of Licensing and Regulatory Affairs to tap into existing databases and lists of service providers. Any operator company would be expected to run the hotline using various methods of communication including phone calls, texts, e-mails and internet chats.

Garcia put the estimated cost of creating the hotline at around $6 million. The bill analysis states the annual cost of operation would likely be similar to other hotlines the state operates, which range between $1 million and $2.5 million.

The committee ran out of time for further testimony. No vote on the bill was taken.

Proposal 1 On November Ballot: Marijuana Legalization
Michigan Director of Elections Sally Williams released Aug. 31 draft ballot language for the Coalition to Regulate Marijuana Like Alcohol’s initiative to legalize marijuana.
The proposal, 18-1, would initiate a law to “authorize possession, use and cultivation of marijuana products by individuals who are at least 21 years of age and older, and commercial sales of marijuana through state-licensed retailers.”

The Board of State Canvassers was expected to consider the recommended language at its 10 a.m. Sept. 6 meeting at Delta Charter Township Hall, 7710 W. Saginaw Highway, Lansing.

In addition, the proposal would:

– Allow individuals age 21 and older to grow up to 12 marijuana plants for personal consumption;

– Impose a 10-ounce limit for marijuana kept at residences and require that amounts over 2.5 ounces be secured in locked containers;

– Create a state licensing system for marijuana businesses including growers, processors, transporters and retailers;

– Allow municipalities to ban or restrict marijuana businesses.

– Permit commercial sales of marijuana and marijuana-infused edibles through state-licensed retailers, subject to a new 10 percent tax earmarked for schools, roads and municipalities where marijuana businesses are located.

CRMLA was formed this year to support the ballot initiative to end marijuana prohibition in Michigan and establish a system in which it is regulated and taxed, similar to alcohol.

In April, the Board of State Canvassers approved the coalition’s petition.

In June, the Michigan Legislature didn’t have the votes to pass the legalization ballot initiative, which means the issue appears on the Nov. 6 ballot.

If approved, Michigan would become the 10th state to legalize, regulate and tax marijuana, according to CRMLA’s website.

Agencies, businesses and organizations opposing recreational marijuana legalization have mobilized in recent months.

Witness: Finding Cause of Flint Water Crisis ‘A Luxury’
A former state epidemiologist testified Aug. 30 that finding the cause of elevated blood-lead levels in Flint’s children during the water crisis would have been “a luxury.”
Cristin Larder returned to the stand for the fourth time in the preliminary examination for Nancy Peeler, director of Michigan Department of Health and Human Services Program for Maternal, Infant, and Early Childhood Home Visiting, and Robert Scott, data manager for the department’s Healthy Homes and Lead Prevention program. The hearing, which will determine if there is probable cause to send criminal charges to Circuit Court for trial, resumes Sept. 20.

The state alleges Peeler hid Larder’s report and joined Scott to create a second report that falsely indicated no statistically significant rise in blood-lead levels of children in July, August or September 2014.

Larder’s testimony remains consistent that Peeler asked her in February 2015 to analyze data to determine if there was an uptick in blood-lead levels in Flint children during the water crisis, which began in April 2014 when the city switched its drinking water source to the Flint River, and that she learned during a Freedom of Information Act file dump that her report wasn’t in the state files.

Larder also maintained that she didn’t have enough raw data to explore more thoroughly or to reach a conclusion about the cause.

“I cannot say and I couldn’t say at the time,” she said.

Larder was the only witness today and at times the proceedings felt slow as Special Prosecutor Todd Flood sparred with Scott’s attorney, Mary Chartier, who carefully questioned Larder about emails she wrote in 2015 about her analysis and whether Peeler and Scott were recipients of those emails.

Chartier argued that information Larder penned in a February 2016 email wasn’t sent to Peeler or Scott and therefore, isn’t relevant, but Flood countered that the email shows Larder’s report “was basically suppressed,” which is the basis for the charges against Peeler and Scott.

“Bob Scott is not misleading anyone,” Chartier told the court as she questioned Larder.

“Bob Scott is not in charge of anyone. He’s there to provide data and what I’m trying to get from Miss Larder is smart people are looking at a challenging issue and trying to come up with ideas,” the attorney added. “He’s not directing what they do or don’t do and that goes to the heart of what Mr. Flood is trying to put on the shoulders of my client, who is not even involved in these matters.”

Peeler and Scott are each charged with misconduct in office and conspiracy, both of which are felonies. They are also charged with misdemeanor count of willful neglect of duty in connection with the Flint water crisis.

Lansing Lines is presented in cooperation with MIRS, a Lansing-based news and information service.