Whitmer signs bill barring redistricting panel from entering closed session under OMA

Beth LeBlanc
The Detroit News

Gov. Gretchen Whitmer has signed legislation that amends the Open Meetings Act to clarify that the Michigan Independent Citizens Redistricting Commission is not subject to the act's exemptions for closed-door sessions. 

The bill, which passed by large margins in the House and Senate earlier this month, was introduced by Sen. Ed McBroom, R-Vulcan, after the redistricting panel entered closed session on Oct. 27 to discuss legal memos pertaining to compliance with the Voting Rights Act. 

The 13-member commission voted 11-2 to enter closed session to discuss confidential memos titled "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting." The closed session upset observers who felt the commission was constitutionally obligated to conduct "all of its business at open meetings."

Gov. Gretchen Whitmer signed legislation Monday that amends the Open Meetings Act to clarify that the Michigan Independent Citizens Redistricting Commission is not subject to the act's exemptions for closed-door sessions.

At the time, the commission's legal counsel argued that the materials were exempt from disclosure under the Freedom of Information Act and that the state's Open Meetings Act allows private proceedings if the material is "exempt from disclosure by state or federal statute." 

In the weeks after the closed session, Attorney General Dana Nessel opined that the commission likely should have met in an open meeting. And last week several news outlets succeeded in a lawsuit asking the Michigan Supreme Court to force the release of the memos and minutes from the closed session. 

When he introduced the bill in November, McBroom said the legislation would provide "perfect clarity" on the question of whether Michigan's Open Meetings Act applies to closed sessions of the redistricting commission. 

"It's clearly not constitutional, from my reading, and shouldn't have been done," McBroom said. "If they're willing to flaunt that provision there and take what I think is very questionable legal advice, one has to wonder what other potential violations may be happening to transparency."

Even without the shelter of the Open Meetings Act, the commission could argue an exemption from its constitutional duty to conduct business in the open on the basis of attorney-client privilege. 

But the Michigan Supreme Court last week limited the circumstances under which the commission could enter closed session under privilege, suggesting that it might be appropriate only if the commission was facing litigation. 

"...if the litigation involves matters other than those falling within the commission's 'business,' then that litigation would not come within the constitutional requirement," the high court's opinion said.

Whitmer last week signaled support for the suit filed by The Detroit News, the Detroit Free Press, Bridge Michigan and the Michigan Press Association in a call with reporters. 

"That was a very frustrating, ironic twist to everything that’s happened," Whitmer said. "Voters Not Politicians was motivated by bringing more transparency into the process, and certainly this commission ran afoul of that. And they’ve been held accountable.”

eleblanc@detroitnews.com