Supreme Court orders redistricting panel to release 7 memos, meeting recording

Beth LeBlanc
The Detroit News

The Michigan Supreme Court ruled Monday that Michigan's Independent Citizens Redistricting Commission violated the state Constitution by meeting in closed session and keeping some legal memos from the public. 

In a 4-3 decision, the high court ruled the commission is required to conduct all of its business at open meetings and should have published seven of 10 legal memos that constituted "supporting materials" for map drawing under the Michigan Constitution. The four justice majority ordered recordings of the meeting be released along with the seven legal memos.

The majority opinion, written by Republican-nominated justice David Viviano, was joined by Republican-nominated justices Brian Zahra and Elizabeth Clement and Democratic-nominated justice Richard Bernstein. 

The suit was filed by The Detroit News, Bridge Michigan, the Detroit Free Press and the Michigan Press Association earlier this month following an Oct. 27 closed session where commission members discussed two memos titled "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting."

Michigan's redistricting commission meets behind closed doors on Wednesday, Oct. 27, 2021. The session took place inside Michigan State University's student union building in East Lansing.

In other circumstances, the communication from the commission's experts and lawyers might be considered protected by attorney-client privilege were it not for the clear command of the constitution requiring the panel to "conduct all of its business at open meetings," according to the high court's ruling. 

"Mere anticipation of likely litigation is not enough at this stage of the process to overcome the constitutional mandate that business be conducted in the open," Viviano wrote. "Indeed, allowing the simple prospect of litigation to shield the commission’s discussions on how to make a map would threaten to swallow the open-meeting requirement altogether."

News outlets hailed the decision as a win for transparency for all those involved in or observing the process.

"Although we filed the lawsuit, this is a victory for Michigan residents, not the press," said Gary Miles, editor and publisher of The Detroit News. "We were compelled to stand up for the rights of all citizens to observe this process as the constitution clearly intended."

The panel "is aware of the Michigan Supreme Court decision and is in the process of complying with the order," commission spokesman Edward Woods said Monday.

The news organizations requested the documents and recordings after an Oct. 27 closed session where the commission discussed 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 Detroit area leaders raised concerns about efforts to "unpack" Metro Detroit 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 or win a general election.

The commission is nearing the end of its map-making process and is currently more than halfway through a 45-day public comment period ahead of a final vote on Dec. 28. 

The media outlets filed suit over the release of the memos and recording of the meeting earlier this month, 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. 

Viviano's majority opinion argued, based on the titles of the memos, it is "beyond dispute" that the meeting and memos discussed Oct. 27 comprised "business." The maps themselves and any contributing advice that shapes them are considered "legal products," whose "content and construction is determined by law," the justice wrote.

But Viviano noted there were limits to which memos comprised "business" and ultimately concluded three related to litigation did not constitute business. 

"...concluding that 'business' encompasses all ongoing litigation would result in a radically uneven playing field in court," Viviano wrote. "The litigants on the other side of the case would enjoy the ability to have confidential communications with their attorneys concerning the litigation, while the Commission would be forced to conduct its planning and strategizing in public."

Clement dissented in part Monday, agreeing that the remaining three memos were not supporting material but arguing that they should have been released anyway because of "the commission's obligation to conduct business at open meetings."

Justices Elizabeth Welch, Bridget McCormack and Megan Cavanagh, all Democratic-nominated justices, dissented from the majority on the argument that the commission was guaranteed representation under the Constitution and attorney-client privilege was part of that guarantee. By deciding otherwise, "the majority put its own views above those of the voters," who in 2018 approved a constitutional amendment creating the commission, said Welch, who wrote the dissent.

Welch called Monday's decision a "Trojan horse" that would have unanticipated effects on a commission that has largely conducted its business in public. With Monday's decision, the majority deprived the commission of attorney-client privilege enjoyed by "every other government entity, every legal entity, every person and indeed every other similar independent redistricting commission," she wrote. 

Welch also argued the decision left the commission with no guidance on how to handle confidential communication once it is sued. 

"The Constitution guarantees the commission 'legal representation,' not legal representation without confidentiality or legal representation-lite," Welch said.