Redistricting panel, in response to lawsuit, argues limits on transparency are necessary

Beth LeBlanc
The Detroit News

Lawyers for Michigan's Independent Citizens Redistricting Commission argued Monday that news outlets suing over its use of private legal memos and a closed session had overinflated the commission's responsibilities to transparency under the constitution. 

The panel argued in a late night legal response that the Michigan Constitution anticipated the commission's need for legal representation in all its forms and took a narrower interpretation of the panel's mandate to conduct business in public and publish supporting mapping materials was appropriate to protect the commission's ability to defend itself. 

The constitution, the commission said, gave the panel powers to make its own procedural rules, engage staff and hire "legal representation" in order to defend its maps against litigation. The constitutional amendment, the filing said, does not "abrogate" the commission's right to confidential legal memos or "confidential consultation."

"All of these provisions are intended to secure the will of the people — to establish a commission that can act independently, free of partisan influence," the filing said. "And all of these provisions require full and frank communication between the commission and its counsel — communication that cannot occur without the promise of confidentiality secured by the attorney-client privilege."

The filing came a day prior to the Michigan House giving final approvals to a bill that would clarify the Open Meetings Act and prevent the redistricting commission from citing the meetings law to go into closed session. 

The Michigan Supreme Court will hear arguments Wednesday in the case brought by three media outlets — The Detroit News, Detroit Free Press and Bridge Michigan — and the Michigan Press Association that stemmed from an Oct. 27 closed session meeting the commission held to discuss legal memos. 

The lawsuit seeks the release of the commission's legal memos and recordings of the Oct. 27 meeting under the argument that the constitution requires the panel to conduct all business in public and publish data and supporting materials used to develop the maps that will govern Michigan's elections for the next 10 years. 

The commission is more than halfway through a final 45-day public comment period on proposed maps for the state House, state Senate and Congress before a final vote Dec. 28 to adopt the voting district lines.

The commission argued Monday it had complied with the constitution's requirement to hold business in public by holding 136 public meetings over the past 15 months.

"... the commission fulfilled its obligation to act with transparency, balanced with its need — in certain limited, specific circumstances — to receive confidential legal advice in order to effectuate its mission," the filing said. 

It also argued that the newspapers' definition of "business" that would be required to be held in public under the constitution was "overly broad." 

"A more natural interpretation of the term 'business' is the decisional actions by which the commission develops, drafts and adopts a redistricting plan," the filing said. 

The filing argued the confidential memos were not "data and supporting materials" used to develop the redistricting plans and thus subject to disclosure under the constitution.  

"In the context of redistricting, such material would include census data, geographic information, demographic records, or any other materials that were directly used by the commission in creating a proposed map," the filing said.

To expand that definition, the filing said, would lead to the "illogical result of the commission's being required to publish — alongside any proposed plan — any document, recording or statement that had any potential impact on the commission's overall process."

The filing cites analysis that noted the need for legal resources for the commission — analysis that stemmed from the House and Senate fiscal agencies, the Citizens Research Council of Michigan, the Department of State and policy centers at Michigan State University and the University of Michigan.

The filing also noted redistricting panels in Colorado, California, Hawaii, Alaska, Washington, Arizona and Idaho recognize attorney-client privilege.

"...the ability of the commission's legal team to provide full, frank and candid legal advice, consistent with their ethical obligations, is under direct threat, as is the commission's right to receive that advice," the filing said. 

But the commission agreed that a controversy exists and it would be beneficial "for the court to provide guidance concerning the commission's ability to have confidential, privileged communication with its counsel," according to the filing. 

The filing was followed Tuesday by a 100-2 vote in the Michigan House for a bill that would amend the Open Meetings Act so it would not apply to Michigan's Independent Citizens Redistricting Commission.

The bill would prevent the commission from citing the Open Meetings Act as the legal basis for entering closed session.