Lawyers argue limits of redistricting panel's transparency before high court

Beth LeBlanc
The Detroit News

The Michigan Supreme Court will decide the fate of the state redistricting commission's shielding of confidential memos and a meeting recording after lawyers for the panel and suing media outlets sparred Wednesday about the constitutionality of the practice.  

Lawyers for Michigan's Independent Citizens Redistricting Commission and The Detroit News, Detroit Free Press, Bridge Michigan and the Michigan Press Association argued their cases for more than an hour and a half, answering questions from the seven justices.

Kurtis Wilder, a lawyer for the media outlets, argued the 2018 constitutional amendment creating the commission was a "radical transformation" from the old, secretive redistricting process. That transformation included a mandate to conduct all business in public and publish supporting data and materials used to draw the maps. 

The commission cannot hide behind attorney-client privilege or a general threat of litigation to avoid that new constitutional mandate for transparency, said Wilder, a former Michigan Supreme Court justice.  

"The fact that there could be a lawsuit at some point in time over some of the maps — if that was enough to attach privilege, that would swallow transparency whole," Wilder said.

The Michigan Supreme Court holds oral arguments between the Michigan Independent Citizens Redistricting Commission and Michigan media outlets Wednesday, Dec. 15, 2021, over the release of memos and meeting recordings.

David Fink, a lawyer for the commission, argued the Michigan Constitution explicitly provided for "legal representation" and empowered the panel to defend against "any action regarding an adopted plan."

He argued the commission has so far conducted a largely transparent mapping process, with more than 100 public public meetings. But the panel also has a right to attorney-client privilege like any other public body, he said. 

"There has to be some threshold before the seven justices of the highest court of our state spend time reading my memos. ...There has to be some standard other than a lot of curiosity,” Fink said.

The request for documents and recordings stems from an Oct. 27 closed session by the commission to discuss confidential legal memos with the titles "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting."

The more than hour-long meeting was held as several Detroit area leaders raised concerns about efforts to "unpack" Detroit-area majority-minority districts — an effort that resulted in smaller concentrations of minority voters and decreased chances that a minority candidate could make it through a primary election.

The commission is at the tail end of its mapmaking process, currently more than halfway through a 45-day public comment period ahead of a final vote on Dec. 28. It's unclear when the Michigan Supreme Court will rule in the case but both parties have asked for speedy consideration given the pending final vote.

The media outlets filed suit over the release of the memos and recording of the meeting last week, seeking expedited review of the case. The commission also asked for an expedited review since it felt "hamstrung" by the possibility that future legal memos and closed sessions could be made public down the road. 

The justices questioned Wilder closely about where the line should be drawn regarding when the commission is able to communicate confidentially with its counsel and when it has to disclose those communications. 

The attorney for the news outlets argued that the "business" required to be done publicly under the state constitution included everything short of information used to defend the maps against actual or imminent litigation. 

Given the titles of the memos, Wilder said, the idea that they didn't guide map drafting and thus constitute "business" under the constitution "belies credibility."

"This is a radical transformation," Wilder said. "What used to be done in secret the public wanted to be done in the open.”

Noting the constitution's mandate for conducting business in public, the justices questioned Fink closely regarding the commission's stance against releasing the memos and the meeting recording. 

At one point, Justice Richard Bernstein speculated that "a lack of transparency will ultimately go to the credibility of the commission’s work because when things are done without shining a light, it always leads to questions.”

Justice Brian Zahra said he saw a turning point of sorts in which attorney communication prior to the adoption of maps would be public and communication afterward pertaining to litigation defense could be considered covered by attorney-client privilege.

"As it relates to documents used to develop this plan, I think the people expected an open process and that any material, including material that comes from the lawyers, would be made available so we understand what the law is and how the commission reached its result," Zahra asked. "What's wrong with that interpretation?"

Fink argued the requirement to publish material supporting the maps related to actual data, voting information, census information or map-drawing data. 

"It’s the commission’s judgment to decide what was used to develop the plans,” Fink said. 

After the commission's lawyer argued other public bodies used attorney-client privilege and entered closed session, Justice David Viviano noted those other public bodies operated under the Open Meetings Act and the Freedom of Information Act. He also suggested there isn't firm case law in Michigan pertaining to a government body's use of attorney-client privilege.

“There are commentators that argue that the privilege shouldn't be extended really at all to government lawyers because the ultimate client might be the public and not the government body," Viviano said. 

Fink said the public had the framework of Michigan's standing open meetings laws, public records laws and attorney-client privilege in mind when it voted in favor of the commission in 2018. 

"I’m not saying that it couldn’t have been done," Fink said. "I’m saying it didn’t happen. ...There could be a constitutional amendment to eliminate attorney-client privilege and to hamstring every public entity in the state or just a select number of them, but it would have to be explicit."

Attorney General Dana Nessel last month said the commission had a constitutional mandate to conduct its business in public and to publish "all data" and "all supporting materials" used in the mapping process. It also is required to discuss all commission business in public. 

Given the titles of the memos, Nessel opined that the materials and the accompanying discussion would guide mapmaking and be considered business that should be disclosed to the public.