(Source: MIRS.news, Published 08/02/2024) (DETROIT) - The large number of election-related Freedom of Information Act (FOIA) requests and “frivolous” lawsuits can be a strain on the state’s funding sources, Attorney General Dana Nessel told the National Press Foundation (NPF) fellows earlier last week. 

Previous MIRS reporting found an 800 percent increase in FOIA requests to the Department of State, which resulted in increased funding to address compliance. Many of those requests were concentrated in the Bureau of Elections (BOE) and focused on the 2020 election. 

Nessel said the same has been seen with cases of “frivolous” lawsuits after the 2020 election, which she said differ from legitimate election lawsuits where “you have facts and evidence to support the claims and allegations that you’re making." 

“Anyone reading these complaints would know that there was not a legitimate basis for it,” she said. “I mean, do you remember when Sidney Powell said that there (were) massive irregularities that occurred in Edison County, Michigan? Does anyone know if there is an Edison County, Michigan? Because I can tell you right now, I've been to all 83 counties, and there is not. 

“Should there not just be a basic level of investigation that an attorney has to do before making a claim in court? I would argue yes,” Nessel added.  

She said while many of these lawsuits were “ridiculous on their face and . . . summarily disposed of by the courts, there was very little in the way of punitive action taken for those lawsuits,” and the cost of handling them can be expensive for the state.  

“It takes a lot of resources from our department, she said, “and we have multiple attorneys and clerks and legal secretaries that have to be involved in fighting back . . . case after case after case.”  

Nessel said that for more than just the state, cities like Detroit have also been saddled with these high costs.  

In the cases of election lawsuits, judges are often very hesitant to award sanctions, she said, and there’s no disciplinary action taken against attorney licenses. 

“I would argue, in fact, that it’s money making for these lawyers,” she said. “These lawyers are making a lot of money by just even filing these cases. They're getting paid so much money that the sanctions really don't even matter, because why not . . . take the chance that you'll get sanctioned when you know that whatever you're getting paid . . . far outweighs whatever the sanction amount is.”  

Nessel said she believes the courts need to get really serious about what happens when an election case is filed without merit, and “it should be made clear that those are not going to be tolerated.”  

“We have to start treating attorneys the same way we treat all other professional licensees, and say that if you are intentionally utilizing your license to do something so nefarious as to undermine the integrity of an election or our democracy, then there have to be repercussions, and you shouldn't be able to continue to exploit your professional license to do that,” she said.  

Nessel said that while there’s a standard of “guilty beyond a reasonable doubt” to be convicted of a crime, that is not the standard for a professional license.  

The piecemeal nature of how states handle attorney grievances makes it difficult, she said, and while there are some instances where states like California and New York have revoked law licenses due to misinformation, “not here in Michigan.”  

Nessel said the most that can be done now is that one state could bar an out-of-state attorney from practicing in their state, because attorneys are required to obtain permission for out-of-state practice.  

“But I think it's a huge problem, and I think that the American Bar Association should be encouraging every single state to take more aggressive action in terms of how they're going to handle . . . lawyers that commit crimes,” she said.  

On the increased number of FOIA requests, Nessel said she’s also seen some instances of attempting to disrupt the workings of state government, by extending a FOIA request. 

“I can tell you from the perspective of my department, I've talked to Sen. (Jeremy) Moss about this many times, because, as you know, he has been leading the charge and has . . . .  for many years tried to expand FOIA to the legislature,” Nessel said. “And I always say to him, ‘be careful for what you wish for.’ 

“It's not because I don't support our FOIA laws. I do,” she added. “It's because sometimes I see that they're exploited by bad actors who, again, are more interested in sort of disrupting the work of the office than they are just getting to the bottom of something and really finding out the truth.”