Redistricting panel lawyers warn commissioners not to release confidential memos

Beth LeBlanc
The Detroit News

Lawyers representing Michigan's Independent Citizens Redistricting Commission told their clients Tuesday that the public release of confidential memos discussed during a closed door session Oct. 27 would constitute a "direct threat" to the lawyers' ability to provide candid legal advice. 

In a three-page letter posted on the commission's website, the lawyers told the commission that it's likely public pressure to release more confidential memos would only increase upon release of the two memos at issue. In addition, the release of those memos potentially would be considered a far-reaching waiver of attorney-client privilege, they argued.

The memos discussed during the 90-minute closed door meeting were titled "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting," and were issued as the commission faced increasing pressure over the lack of majority-minority districts in their proposed maps.

Redistricting commissioner Rebecca Szetela gets a thumbs up from commissioner M.C. Rothhorn, while commissioner Steven Lett watches his computer during an Oct. 20, 2021 public hearing in Detroit. A week later, the commission held a 90-minute closed session to discuss two confidential memos it hasn't released.

Any decisions on the release of the documents should come from a court of law, not external pressures, the letter said. Attorney General Dana Nessel, Democratic and Republican state lawmakers and Michigan media outlets have been calling for the release of the memos. The commission is expected to discuss the possible release of the documents at its Thursday meeting.

"Numerous individuals, advocacy groups and media have expressed their intent to file litigation on a variety of issues since the MICRC was formed," the letter said.

"...Your lawyers' ability to outline litigation risk, litigation strategy and planning to address these threats will be significantly if not irreparably impaired if our privileged communications are released or your legal team is forced to operate under the severe constraint that any ostensibly privileged communication could be released."

The letter — signed by Julianne Pastula, general counsel; Katherine McKnight, litigation counsel; David Fink, local counsel; and Bruce Adelson, Voting Rights Act counsel — noted the commission had used privilege sparingly. As of Nov. 8, the commission had received 10 documents considered confidential under attorney-client privilege.

"Waiving privilege on two of ten privileged documents will not reduce the pressure being placed on the MICRC," the letter said. "Indeed, to the contrary, the pressure will grow and will likely result in additional efforts to invade the confidential relationship between you and your attorney, a relationship designed to give you the best confidential, privileged legal advice in furtherance of our obligations as your attorneys, obligations that the entire legal team takes very seriously."

The letter also noted the commission has prioritized public input and public discussion over the past several months, adding the commission has held more than 100 public meetings and considered thousands of public comments. 

The lawyers assured commissioners that nothing they have done "is unreasonable or indefensible" and argued Nessel's opinion advocating for the memos' release is not legally binding on the commission. 

Pastula 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. 

At the request of state Sens. Jeff Irwin, D-Ann Arbor, and Ed McBroom, R-Vulcan, Nessel issued an opinion this month that said, given the titles of the documents discussed, it was likely they would guide commission work. As such, she wrote, the commission should not have held closed session nor should it have kept two memos discussed in that meeting confidential. 

Nessel's opinion is binding on state agencies, but the commission is independent from the executive branch and other state agencies under the 2018 constitutional amendment that created the commission.

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