Health care groups back former health director's bid to dismiss Flint charges

Beth LeBlanc
The Detroit News

Four health care associations have asked a Genesee County judge to dismiss a criminal case against former Michigan Department of Health and Human Services director Nick Lyon related to his handling of the Flint water crisis. 

In a series of filings, the groups told Judge Elizabeth Kelly they were "deeply concerned" about what the case may mean for public health officials who may be "prosecuted for the alleged errors or omissions of their agencies in carrying out infectious disease investigations."

Lyon was charged in January with nine counts of involuntary manslaughter and one count of willful neglect of duty in relation to a Legionnaire's disease outbreak believed to be linked to the Flint water crisis. Solicitor General Fadwa Hammoud said at the time that Lyon's charges were related to his "failures and grossly negligent performance of his legal duties while director of MDHHS."

Former Michigan Department of Health and Human Services director Nick Lyon leaves the Genesee County Sheriff's Office following an arraignment on criminal charges connected to the Flint water crisis in January 2020.

Among the filings were briefs from the Association of State and Territorial Health Officials, the Council of State and Territorial Epidemiologists, the Michigan Association of Health Plans and the Michigan Association for Local Public Health. 

Michigan Attorney General Dana Nessel's office declined to comment on the pending litigation.

The briefs were filed ahead of a January hearing on Lyon's motion to dismiss the case against him based on Solicitor General Fadwa Hammoud's use of a one-person grand jury to indict the former health director and several others. Kelly still has to decide whether to allow the groups to weigh in through amicus briefs.

"... Criminalizing the decision-making process during a public health emergency would set dangerous precedent and detrimentally affect the government's ability to attract and retain qualified individuals to serve as public health officials," the Michigan Association for Local Public Health said in its brief. The association is made up of county, city and district health departments throughout the state. 

"Public health officials are often forced to make difficult, discretionary decisions in emergency situations — and the policy of the state should not be to second-guess those decisions criminally," said the Michigan Association for Local Public Health. 

Lyon's lawyer, Chip Chamberlain, is arguing the charges should be dismissed because the use of a one-person grand jury violates the constitutional separation of powers. And, even if that weren't the case, the grand juror didn't comply with statute. 

"As part of the latter point, we maintain that the indictment was returned outside the prescribed period of time that the grand juror had to consider the matter," Chamberlain wrote.

The four briefs submitted Dec. 3 argue that the decisions health officials make, especially during a state of emergency, are sometimes made under pressure and with incomplete information. Were a health official to be disciplined for a mistake made under those elements, it would likely have a chilling effect on the profession, the industry groups argued. 

"... This case could threaten public health nationwide and create a serious obstacle to the life-and-death decision-making that public health officials inevitably face when a serious public health crisis arises," the Association of State and Territorial Health Officials said.

In addition to the possibility that the charges overturn governmental immunity principles, the health groups expressed concern over the confusion the charges have caused over the duty of public health officials — whether it is to each individual resident or the "public health" at large and whether notification of the public is a duty. 

"Given the lack of any legal requirements regarding the issuance of public notice and the unique circumstances associated with any particular outbreak or public health crisis, any criminal charges related to the decision of when to issue notice are wholly inappropriate and detrimental to public health," the Council of State and Territorial Epidemiologists said in its brief. 

Each of Lyon's manslaughter charges carries a maximum penalty of 15 years in prison and $7,500 fine. Lyon originally was charged with two counts of involuntary manslaughter under a special prosecutor appointed by then-Attorney General Bill Schuette, a Republican, but the office of Nessel, a Democrat, dropped the charges in June 2019 as it rebooted the Flint probe.

Under the new charges, Lyon also faces a 10th count of willful neglect of duty, a misdemeanor punishable by up to a year in jail and a $1,000 fine. Lyon pleaded not guilty on all counts.

eleblanc@detroitnews.com