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Michigan redistricting panel should not have met in closed session, AG says

Beth LeBlanc
The Detroit News

Michigan's Independent Citizens Redistricting Commission should not have held a  closed session last month nor should it have kept two memos discussed in that meeting confidential, Attorney General Dana Nessel said in an opinion released Monday.

The decision to do so on matters that could guide the commission in the process of mapping political boundaries for the state House, state Senate and U.S. House was "repugnant" to or in conflict with the transparency required under the state Constitution, she wrote.

Constitutional language requiring all business of the commission to be conducted in public supersedes the commission's rule-making powers, including their adoption of the Open Meetings Act, Nessel wrote in a 14-page opinion. 

"The people intended that the commission’s work be done in a manner that is readily accessible and visible to the public and that allows the public to be a well-informed participant in the redistricting process," the attorney general wrote. 

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.

The matters discussed in the Oct. 27 closed session — based on the titles of memos at issue — provided commissioners "with certain legal parameters and historical context that should be considered in developing, drafting, and adopting the redistricting plans," Nessel wrote. 

"If this presumption is correct, then the commission was conducting 'business' that should have been done in an open meeting," she said. 

The commission said Monday it "respects the AG’s opinion," but spokesman Edward Woods said he wouldn't release the memos or closed session minutes from the 90-minute meeting until or unless the commission authorized as much.

"At our next meeting scheduled for Thursday, Dec. 2, we will discuss it openly and transparently," Woods said.

The commission's legal counsel argued in late October that the documents were exempt from disclosure under the Freedom of Information Act and the state's separate Open Meetings Act allows private sessions if the material is "exempt from disclosure by state or federal statute." The counsel also argued no business was conducted during the closed-door session. 

While there is room for attorney-client privilege regarding some communication, Nessel wrote in Monday's opinion, a legal memo that's considered "in developing, drafting, and adopting the redistricting plans" would require "broad publication." 

"Accordingly, it would be 'repugnant' to the Constitution to go into a closed session to discuss a memorandum that is not confidential and must ultimately be published," the attorney general said. 

Nessel did not suggest a remedy for revisiting or releasing what occurred during the closed session. She also did not rule out the possibility of closed-door sessions that could be justified in other situations. Discussions on litigation, for example, could be cause for closed session if they had nothing to do with developing or drafting redistricting plans, Nessel opined.

"The MICRC is tasked with developing and adopting new districts that will no doubt change the makeup of our elected legislators," Nessel said Monday on Twitter. "It remains imperative that such a monumental responsibility be conducted in a public forum. Citizens are owed a transparent process."

What does it mean?

The effect of the attorney general's opinion on the release of the documents and future commission meetings remains to be seen. 

The attorney general's opinion can be requested by state lawmakers and some local prosecutors to clarify parts of the law. In this case, Nessel's opinion on the closed-door session was requested last month by state Sens. Jeff Irwin, D-Ann Arbor, and Ed McBroom, R-Vulcan. 

They asked for an opinion after the commission entered a more than one-hour closed session to discuss confidential legal memos titled "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting."

The session came after the redistricting commission came under heated criticism from minority groups, especially African Americans, that they were spreading minority representation too thinly over more districts and putting the probability of Black representation in some districts at risk. At an Oct. 20 public meeting in Detroit, Michigan Civil Rights Department Executive Director John Johnson Jr. contended the panel's draft maps violated the Voting Rights Act.

An attorney general opinion on a legal question is binding on state agencies, but is not binding on courts or their interpretation of the law or Constitution. 

Since the commission isn't technically a state agency, it's likely the opinion is not binding on the panel, Nessel's office said Monday. The commission said the question of Nessel's authority over the commission will be discussed at its scheduled Dec. 2 meeting. 

"The AG thought it important to issue the opinion regardless to provide guidance and to advocate for transparency," Nessel's office said. 

Though the commission falls under the legislative branch, it possesses a level of autonomy that isn't seen in many government bodies, said Steven Liedel, a Dykema attorney who served as legal counsel to Democratic former Gov. Jennifer Granholm.

While Nessel's opinion may not be binding on the commssion, it expresses in no uncertain terms the position of the state, Leidel said. The opinion provides a legal basis to several state officers who are in a position to pursue judicial relief should the commission continue to hold closed session. Nessel herself also could intervene on behalf of the people of Michigan. 

"You ignore it sort of at your own peril," Liedel said.

Nessel's opinion came days after commissioners Dustin Witjes, a Democrat, and Rebecca Szetela, an independent, last week said they would look into releasing the two memos discussed at the Oct. 27 meeting and wanted to review minutes from the closed-door session to determine what could be released.

The Michigan Press Association called on the commission Monday to "immediately release these memos" so Michigan residents can see the information that went into the maps. 

"We feel that complete transparency in this process is vital because the end result of this commission will impact the citizens of our state for years to come," the association said in a statement.

But as of Monday, the commission refused to release the memos or any accompanying recordings of the closed session absent a vote from the commission at its next scheduled meeting the Thursday after Thanksgiving.

Not even a public records request could budge that timeline. 

On Tuesday, the commission's 10-day extension of a request for the documents from the conservative group Michigan Rising Action is set to conclude and the records come due. The group on social media Monday called for the commission to release the documents in compliance with both the deadline and Nessel's opinion. 

"Those two memos and what was discussed in that meeting were clearly in response to comments they heard in Detroit about majority-minority districts," said Eric Ventimiglia, executive director for Michigan Rising Action. "It’s very important for the public to know what those memos are urging or recommending them to do.”

The commission will respond to the group's public records request but will not release the documents requested, said Woods, the commission's spokesman. 

Ventimiglia said he is not surprised by the continued delay in the records' release given the commission's history. 

"I certainly think this is one of the issues that crosses political boundaries,"  Ventimiglia said. "The Constitution is quite clear and for them to blatantly thumb their nose at transparency should shock every observer regardless of political party.”

What led to Nessel's opinion

Irwin and McBroom sent a letter in late October asking the Plymouth Democrat to weigh in on whether the commission's decision to enter closed session violated the 2018 constitutional language. 

The voter-approved constitutional language creating the group in a bid to bring transparency to Michigan's once-in-a-decade voting map drawing said the commission "shall conduct all of its business at open meetings."

The 13-member commission on Oct. 27 entered an hour-and-a-half secret session to discuss confidential memos. The commission's legal counsel argued that the documents were exempt from disclosure under the Freedom of Information Act and that the state's separate Open Meetings Act allows private sessions if the material is "exempt from disclosure by state or federal statute."

The constitutional language would usually supersede state laws but the commission argued the constitutional language didn't apply because there was no "business" conducted at the meeting.

The state Republican and Democratic parties both opposed the closed session and criticized the commission for its lack of transparency on the issue. 

Earlier this month, the commission disclosed it had received 10 confidential memos from its attorneys since it began meeting. 

Those memos included topics such as rules governing the commission's communications with the public, litigation surrounding the census delay, population deviation measures, discussions of justifications for maps and other criteria considered during the mapping process. 

The commission's general counsel, Julianne Pastula, noted at the time that confidential communications were a cornerstone of the attorney-client relationship. 

"We are committed to transparency and providing the information to the public but there is advice that I give to my clients as their attorney that is, for my clients, relative to our relationship," she said.