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Michigan Supreme Court hears redistricting lawsuit over secret memos

hearing on zoom
Can Michigan’s public redistricting commission withhold documents from the public? The state’s top court will decide.

Dec. 20: Michigan Supreme Court orders release of redistricting panel’s secret work

LANSING— The decision of whether the state’s redistricting panel should release secret documents and materials used to draw new political boundaries is officially now up to the Michigan Supreme Court.

On Wednesday, justices held oral arguments for the lawsuit brought by The Detroit News, Detroit Free Press, Bridge Michigan and the Michigan Press Association earlier this month against the Michigan Independent Citizens Redistricting Commission.

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The news outlets asked the court to force the panel release two memos, titled  “Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting” discussed in private after attorneys for the commission said they are protected under attorney-client privilege.

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David Fink, an attorney representing the commission, told the court the Constitution explicitly allows the commission to have legal representation, and follow the principle of attorney-client privilege.

"Defending the commission's work requires some strong legal representation, and that legal representation can only be effective with unfettered attorney client communications,” Fink said.

But Justice Brian Zahra, a Republican, signaled the documents might not be protected because they were used to develop maps. 

“I think the people expected an open process and that any material, including material that comes from lawyers, would be made available so that we understand what the law is and how the commission reached this result,” Zahra said. 

The commission is in the middle of a 45-day public comment period meant to gather feedback on 15 proposed maps, which plaintiffs claim it created with the information on the memos.

The proposed maps have received pushback from Black voters in Detroit, since they significantly reduce the number of minority-majority districts in the state.

The constitutional amendment that passed in 2018 explicitly says that all of the commission’s business shall be conducted in open meetings. It also says the commission “shall publish the proposed redistricting plans and any data and supporting materials used to develop the plans.”

Kurtis Wilder, a former Michigan Supreme Court justice and an attorney representing Bridge and the other news outlets, told the justices the commission could be in violation of the constitution for hiding the documents.

“Clearly, they relied upon these two memos. They may have relied upon other supporting materials,” Wilder said. “But all of those materials inform the actual adoption, drafting, development of all the proposed maps, and those materials ought to be published.”

But Fink, in representing the commission, told the court the documents were not used to develop the maps. 

He explained the commission published draft proposed maps on Oct. 11, and that the memos were not provided to the commission until Oct. 27. 

“So, they couldn't possibly have been used to develop the plans,” Fink said. 

In reality, the commission changed district lines again after the Oct. 27 closed-door meeting.

Earlier this month, a commissioner said the information on the memos, which he said were historical in nature, helped commissioners draw new districts.

Wilder said "it simply belies credibility to think that those memos did not inform that additional feedback and redrafting of the maps before republished."

OMA, privilege, and intent

During the hearing, which lasted nearly two hours, the justices and the attorneys representing the parties discussed whether the intent of the 2018 constitutional amendment trumps the commission’s policies.

For instance, the commission adopted the Open Meetings Act as part of its practices. This law allows them to meet in private under certain circumstances, including when discussing pending litigation, legal strategy and personnel matters. 

But the constitutional amendment establishes that the commission needs to meet in public every time it conducts its businesses. 

This issue is important because the memos were discussed behind closed doors, per advice of the commission’s attorneys. 

Justice Richard Bernstein, a Democrat, in a question to Fink suggested the public intent was to have full transparency.

“Wouldn't you feel that the voter intent was to have a highly transparent structure in that they're changing the entire way that we kind of enact our system of government, so thus they want to know exactly what's happening and how it's happening?” Bernstein asked.

Fink said supporters of the 2018 amendment knew the commission's work would be challenged in court, and that panel would need lawyers to provide legal advice to defend its work.

He added the commission has met 136 times in public, and that it has only met once in closed session.

Meanwhile, some justices expressed the complexity of the lawsuit: besides the question of the violation of the constitution, the justices said there’s also a question of when attorney-client privilege can’t be invoked. 

Wilder, the attorney for the news outlets, said the commission can only protect documents when providing legal strategy or when there's pending litigation.

But, at the time the commission met in private, there were no lawsuits pending against the body.

Justice Elizabeth Welch, a Democrat, said she typically sees attorney-client privilege as covering “threatened litigation.”

She said it was very well known even before the proposal was drafted that it was going to end in litigation, asking  “Are they allowed to prepare for that eventual litigation with their attorney?”

Wilder responded that the Constitution says all business shall be conducted in public. 

“That was the policy decision that the voters made,” Wilder said. “It could have said, ‘except for specific discussions about pending or potential litigation with counsel.’ That was not made.”

Justice David Viviano, a Republican, acknowledged some people question whether the commission has the ability to use attorney-client privilege.

“There are commentators who argue that the privilege should not be extended really at all to government lawyers, because the ultimate client might be the public and not the public body,” Viviano said. 

Fink, with the commission, said he would like the court to make a determination to clarify the authority of the panel.

“We don't know how to advise the client,” Fink said. “We don't know how to tell them about litigation risk — how to tell them how to defend the case once it's filed.”

Could the court review the documents?

Fink insisted the commission hasn’t done anything improper or illegal by keeping the memos private. 

But Justice Megan Cavanagh, a Democrat, said there are concerns with the commission asking the public to trust the panel, without making the documents public.

She asked whether the commission could release the memos with the legal advice redacted. 

Fink said the news outlets need to show “why it's essential to them, why it's essential to the plaintiffs to have this information, and that they can't obtain it in another way.”

Bridge Michigan and other news outlets have asked for the documents, but the panel has rejected the Freedom of Information requests.

Some justices asked whether the court can review the memos before making a determination of whether they fall under the attorney-client privilege protection.

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Fink said “there's got to be some kind of special factor other than we had a closed session, because that would literally mean every closed session should be recorded and sent directly to the Supreme Court.”

Reaction to the hearing

After the hearing, Voters Not Politicians, the group behind the push for the creation of the commission, said it supports the efforts to pursue the documents.

“Voters established the Commission to bring redistricting out into the open,” Nancy Wang, the executive director of the group, said. “Anything that informs the Commission’s mapping decisions should be made public.”

Meanwhile, Tori Sachs, the executive director of the conservative group Michigan Freedom Fund, said the hearing “was a critical step towards transparency, but the next step must be towards accountability.

“By hiding public documents and holding secret meetings, the so-called Independent redistricting commission has destroyed the integrity of the entire map-drawing process,” Sachs said.

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