Michigan redistricting commission refuses to release legal memos

Craig Mauger Beth LeBlanc
The Detroit News

Lansing — Michigan's Independent Citizens Redistricting Commission voted Thursday to continue to conceal two legal memos that were the subject of a controversial closed-door meeting in October.

After weeks of public debate and an hour of intense discussion, the commission voted 7-5 not to release the memos. The group's decision came after its lawyers said publishing the documents would be a "self-inflicted" wound and would go against attorney-client privilege, potentially creating legal problems for the redistricting effort down the road.

"It’s like inviting the other team into your huddle," argued David Fink, local counsel for the commission.

Commissioner Dustin Witjes listens to citizens during the public comments portion of the land redistricting meeting this morning.

Thursday's vote came as the redistricting commission was at a pivotal moment in its push to redraw Michigan's legislative lines. The group, created through a 2018 constitutional amendment, is expected to vote on maps in the coming weeks, and its own attorneys contend legal challenges are on the horizon.

Some experts and representatives of Michigan media outlets have argued the panel violated the Constitution by going into closed session on Oct. 27. The Constitution requires the commission to do its business in public.

The memos discussed during the 90-minute, private October meeting were titled "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting."

Commissioners Steve Lett and Rebecca Szetela, two attorneys who also serve on the panel, said the information in the memos should not be subject to attorney-client privilege.

Lett described the memos as more "historical" in nature. In what appeared to be a reference to one of the documents, Lett said the information wasn't about litigation strategy. He said it focused on "things that we should be taking into account ... when drawing districts."

"There was nothing in there that I believe was privileged. There was quite a bit of historical comment in the paper that showed how Michigan had dealt with historically discriminatory voting in the past from the Civil War forward," Lett said.

After the meeting, Szetela declined to provide further information about what was in the memos.

"I am not going to expand upon that," she said on her contention that information didn't fall under attorney-client privilege.

The Michigan Constitution specifically says the commission "shall conduct all of its business at open meetings." Receiving advice on how to draw districts would likely fall under the requirement.

But after Thursday's meeting, Commissioner Dustin Witjes argued the commission was abiding by the separate Open Meetings Act, which allows government bodies to meet in secret under certain circumstances.

“As our attorneys have stated, they believe that it would potentially cause issues in the future. And I would have to agree with what our attorneys have stated," Witjes said about why he supported keeping the legal memos secret.

The commission's legal team passionately prodded the members not to release the documents, suggesting the move would come back to haunt them and provide an opportunity for other attorney-client communications to be published.

"It would be an extraordinary thing to do," Fink said at one point. "It would be effectively taking away your ability get good counsel."

The panel is about to pivot from map drawing to litigation, which it must take seriously, said Katherine McKnight, litigation counsel for the commission.

“It creates a problem for us that we don’t need to have," McKnight said. "And it violates a right that we have that is protected. … You have this right and you have it until you waive it."

Attorney General Dana Nessel, Secretary of State Jocelyn Benson and Democratic and Republican state lawmakers have called for the release of the memos.

Detroit News Editor and Publisher Gary Miles told commissioners Thursday the work of the panel would fail “unless the public knows it was done within the law and without secret or hidden agendas.”

"Your mandate as individuals, public servants, is to reinforce the confidence of the public in the integrity of this process,” Miles said. “I urge you to do so by releasing the documents, secret documents that were discussed Oct. 27.”

As the commission was meeting a block away, the Michigan Senate voted unanimously to amend the state’s Open Meetings Act to clarify that the provisions allowing for a closed-door session do not apply to Michigan’s Independent Citizens Redistricting Commission.

The bill was sponsored by Sen. Ed McBroom, R-Vulcan. It still has to go to the state House.

Senate Minority Leader Jim Ananich, D-Flint, said the legislation seeks to clarify the law and the commission’s use of it to enter closed session Oct. 27. But he also noted his support for the commission.

“The Independent Citizens Redistricting Commission on its worst day is still a million times better for the people of Michigan than the best day of the old system, where Republicans drew the map in secret,” Ananich said. “Zero public hearings. Zero public input."

The commission also voted Thursday not to release a recording of the Oct. 27 closed-door session. That vote was 8-4.