Detroit News, Inc V Independent Citizens Redistric ( 2021 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
THE DETROIT NEWS, INC v INDEPENDENT CITIZENS REDISTRICTING COMMISSION
Docket No. 163823. Argued December 15, 2021. Decided December 20, 2021.
The Detroit News, Inc., Detroit Free Press, Inc., and others brought an original action in
the Michigan Supreme Court against the Independent Citizens Redistricting Commission, alleging
that the commission violated Const 1963, art 4, § 6 by withholding certain data and supporting
materials used to develop its proposed redistricting plans and by conducting business during a
closed meeting. Plaintiffs sought (1) a declaratory judgment that Article 4, § 6 requires the
commission to disclose all supporting materials that it uses to develop its plans, (2) a writ of
mandamus compelling the release of supporting materials withheld in violation of Article 4, § 6,
(3) a declaratory judgment that Article 4, § 6 requires the commission to conduct all of its business
in open meetings, and (4) a writ of mandamus requiring the release of the recording of a closed-
session meeting and requiring that all future business meetings be open to the public. The Court
ordered and heard oral argument on the complaint. ___ Mich ___ (2021).
In an opinion by Justice VIVIANO, joined by Justices ZAHRA, BERNSTEIN, and CLEMENT,
the Supreme Court held:
The commission’s October 27, 2021 closed-session meeting violated the requirement in
Const 1963, art 4, § 6(10) that the commission conduct all of its business at open meetings. The
discussion that occurred at that meeting involved the content and development of the maps and
thus constituted the business of the commission. Further, the commission was required by Const
1963, art 4, § 6(9) to publish seven of the memoranda sought by plaintiffs. Those seven
memoranda constituted supporting materials used to develop the proposed redistricting plans
because they concerned the content of the maps and the direct process by which the maps were
developed. The remaining three memoranda that plaintiff sought were not supporting materials
for purposes of Const 1963, art 4, § 6(9) because they did not directly involve either the substance
of the maps or the mechanics for drawing the maps. The commission was ordered to produce the
recording of the October 27 meeting and the seven memoranda that constituted supporting
materials. All documents and other materials were required immediately to be turned over to
plaintiffs and made public. The Clerk of the Court was directed to issue a judgment to this effect
pursuant to MCR 7.315(C)(3).
1. In Michigan, privilege is governed by the common law, except as modified by statute
or court rule. In general, the attorney-client privilege attaches to communications made to the
attorney by the party or client, as legal adviser, and for the purpose of obtaining the attorney’s
legal advice and opinion relative to some legal right or obligation. Likewise, the roots of
Michigan’s work-product doctrine come from the common law. This doctrine protects materials
prepared by an attorney in anticipation of litigation. It is generally sufficient if the prospect of
litigation is identifiable, either because of the facts of the situation or the existence of pending
claims. The commission grounded its assertions of privilege in the common law, but also noted
various constitutional provisions that give it the power to retain counsel, suggesting that the
common understanding of these provisions is that the commission retains the attorney-client
privilege and any other general protections, such as those afforded by the work-product doctrine.
However, nothing in Const 1963, art 4, § 6 refers to any attorney-client privilege or protections;
rather, these are governed by the common law. Accordingly, they must give way to the
Constitution to the extent they are “repugnant” to it, meaning “incompatible” or “inconsistent.”
To the extent that the common law would shield something the Constitution requires to be
disclosed, there is a repugnance and the Constitution must prevail.
2. Under Const 1963, art 4, § 6(10), the commission is required to conduct all of its
business at open meetings, and it must do so in a manner that invites wide public participation
throughout the state, using technology to provide contemporaneous public observation and
meaningful public participation in the redistricting process during all meetings and hearings.
Because the actions of a public body are at issue, “business” is a term of art with a specialized
meaning, specifically: “the matters that come before a deliberative assembly for its consideration
and action, or for its information with a view to possible action in the future.” The commission’s
core business is the development and adoption of redistricting plans, and the resulting maps must
comply with certain legal requirements. The two memoranda discussed at the October 27 meeting
were to ensure that the proposed maps complied with the Voting Rights Act, 52 USC 10101 et
seq., which entails considerations such as the proportionality of minority-majority group districts
to the group’s share of the population and the history of voting-related discrimination in the state
or subdivision. Legal advice on how to draw a map is akin to statistical advice on demographics
or other expert counsel. Under Const 1963, art 4, § 6(5), the Legislature was required to
appropriate funds sufficient to enable the commission to carry out its functions, operations, and
activities, which included retaining independent, nonpartisan subject-matter experts and legal
counsel, as well as any other activity necessary for the commission to conduct its business.
Accordingly, the retention of experts and counsel was an “activity necessary for the commission
to conduct its business” because adopting maps that comply with the law is a necessary part of the
commission’s business, and obtaining counsel’s advice was necessary to that end. While such
advice might otherwise be privileged as a communication from an attorney, any such privilege
must yield to the requirement in Const 1963, art 4, § 6(10) that the commission “conduct all of its
business at open meetings.” Mere anticipation of likely litigation was not enough to overcome the
constitutional mandate that business be conducted in the open, and allowing the simple prospect
of litigation to shield the commission’s discussions on how to make a map would threaten to
swallow the open-meeting requirement altogether. Because the October 27 meeting at issue
concerned the adoption of the plans and not any pending litigation, the subject of the meeting
constituted the commission’s business and therefore had to be conducted in an open session under
Const 1963, art 4, § 6(10). Accordingly, disclosure of the recording of the meeting was required.
3. Under Const 1963, art 4, § 6(9), once the commission has developed at least one
proposed redistricting plan for each type of district, the commission is required to publish the
proposed redistricting plans and any data and supporting materials used to develop the plans.
Plaintiffs contended that the 10 memoranda whose publication they sought constituted supporting
materials used to develop the plans that were proposed on October 11, 2021, and later revised and
published in November. In response, the commission contended that the memoranda all involved
privileged communications seeking legal advice from its attorneys and thus did not constitute
supporting materials, which the commission argued must be understood in the context of the
associated term “data” and limited to purely factual information. However, the common quality
of the terms “data” and “supporting materials” is that they are things used in the development of
the maps, not that they limit the materials that must be disclosed to factual information as opposed
to advice or opinion. The fact that some of the memoranda postdate the publication of the first
proposed plans on October 11, 2021, does not mean they cannot qualify as supporting materials,
because the plans are subject to revision. Nonetheless, to fall within the publication requirement,
the materials must “support” the development of a plan. To “support” the plan’s development
means “to hold up or serve as a foundation or prop for” the plans. Thus, there must be some
connection between the material and the plan’s development. Because the business of the
commission is to develop and adopt redistricting plans, any materials related to the plans’
substance would be supporting, as would a memorandum containing legal advice about how a
district needs to be constructed in order to comply with the law. But the connection between the
materials and the plan’s development must not be too attenuated to justify the conclusion that the
materials provided a foundation for, i.e., supported, the plan’s development. In general, the further
the materials stray from the content of the plan or the process by which that content was developed,
the less likely it is that they can be said to support the plan’s development. The first memorandum
plaintiffs sought, from January 21, 2021, dealt with the individual interests and behavior of the
commissioners themselves and had no direct bearing on the plans or how they were formed. The
next two memoranda related to the action brought by the commission this past summer seeking to
obtain approval to delay various deadlines imposed by the Constitution, which did not directly
involve either the substance of the maps or the mechanics for drawing the maps. Consequently,
these three memoranda did not constitute “supporting materials” and were not required to be
published. However, the remaining seven memoranda—those from June 24, October 7,
October 14, October 26, November 3, November 4, and November 7, 2021—all related to the core
content of the maps or the immediate process by which that content was developed and were
therefore “supporting materials.” Accordingly, the commission was required to publish them
under Const 1963, art 4, § 6(9).
Justice CLEMENT, concurring in part and dissenting in part, joined the majority opinion and
its interpretation of what qualifies as the “business” of the commission and what qualifies as
“supporting material” to proposed maps. As a result, she concurred with the majority that three of
the memoranda did not qualify as supporting material and that the remaining seven memoranda
did qualify as supporting material, for the reasons stated. Notwithstanding her agreement that
three of the memoranda were not supporting material, she would have ordered their disclosure
because concealing them was incompatible with the commission’s obligation to conduct business
at open meetings pursuant to Const 1963, art 4, § 6(10), which also provided an independent basis
for ordering the disclosure of the other seven memoranda. She also agreed that the commission
must disclose the recording of the October 27, 2021 meeting.
Justice WELCH, joined by Chief Justice MCCORMACK and Justice CAVANAGH, dissenting,
stated that the commission was guaranteed legal representation by Const 1963, art 4, § 6(4), and
that this representation necessarily includes the common-law attorney-client and work-product
privileges. She stated that if the voters had meant to deprive the commission of this fundamental
part of legal representation, they would have said so explicitly in Const 1963, art 4, § 6. She also
observed that, until now, no court in a state that has an independent redistricting commission had
decided that its commission’s right to legal representation encompasses something less than what
would be enjoyed by any other public body. She noted that it would have been possible to review
the materials at issue in camera to ensure that the commission was properly asserting the attorney-
client privilege, and she would have taken that step in this case. She also disagreed with the
majority’s conclusion that Const 1963, art 4, § 6(9)—which requires the commission to publish
the proposed redistricting plans and any data and supporting materials used to develop the plans—
requires the disclosure of privileged documents, because § 6(9) explicitly defines what materials
the commission must provide when publishing its proposed plans: namely, such census data as is
necessary to accurately describe the plan and verify the population of each district and a map and
legal description that include the political subdivisions, man-made features, and natural features
that form the boundaries of the districts. Likewise, she noted that § 6(14)(b), which sets forth what
is required when the commission is prepared to enter the 45-day comment period before voting to
adopt a plan, also specifies what materials must be publicly available, and it does not include
privileged material. She concluded that the Constitution unambiguously affords the commission
legal representation and, by depriving the commission of the common-law right to attorney-client
and work-product privileges that are generally understood as defining an attorney-client
relationship, the majority put its own views above those of the voters, who wanted the commission
to draw fair and legal maps and knew that legal representation was important to do so successfully.
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED December 20, 2021
STATE OF MICHIGAN
SUPREME COURT
THE DETROIT NEWS, INC., DETROIT
FREE PRESS, INC., THE CENTER FOR
MICHIGAN, INC., also known as BRIDGE
MICHIGAN, MICHIGAN PRESS
ASSOCIATION, and LISA McGRAW,
Plaintiffs,
v No. 163823
INDEPENDENT CITIZENS
REDISTRICTING COMMISSION,
Defendant.
BEFORE THE ENTIRE BENCH
VIVIANO, J.
In 2018, the voters of Michigan chose to vest responsibility for redistricting in an
independent body. That body they created, the Independent Citizens Redistricting
Commission (the Commission), consists of 13 commissioners generally selected on a
random basis from a pool of applicants. Const 1963, art 4, § 6(2). This marked a departure
from the prevailing mode of redistricting, which had been done for decades by the
Legislature. See Citizens Protecting Michigan’s Constitution v Secretary of State, 503
Mich 42, 87-88; 921 NW2d 247 (2018) (CPMC). In placing the redistricting power with
an independent body of unelected officials, the voters chose to ring the body with
transparency requirements, forcing much, if not all, of the Commission’s work into the
daylight.
The present case concerns the scope of these provisions and how they relate to any
privileges and protections that the Commission might have with respect to its
communications with its attorneys. Plaintiffs are a group of news organizations and press
seeking to enforce the transparency requirements. 1 In particular, they seek production of
a recording from the Commission’s closed-session meeting on October 27 of this year,
contending that holding the meeting in secret violated the constitutional mandate that the
Commission “conduct all of its business at open meetings.” Const 1963, art 4, § 6(10).
We agree. From the titles of the memoranda discussed at that meeting, it is beyond dispute
that the meeting involved the development of the redistricting maps. Such work is
unquestionably within the Commission’s core “business,” and it therefore needed to be
conducted in the open. Plaintiffs also request disclosure of 10 memoranda that the
Commission claims are privileged attorney-client communications. We conclude that, in
light of the constitutional text requiring disclosure of materials that support development
of redistricting plans, seven of the memoranda must be published as “supporting materials”
1
In addition to the individual news outlets, plaintiffs include the Michigan Press
Association, the official trade association for various newspapers in Michigan, and its
executive director.
2
under Const 1963, art 4, § 6(9). The other three are not “supporting materials” and
therefore need not be disclosed.
I. FACTS AND PROCEDURAL HISTORY
On October 15, 2020, the Secretary of State convened the Commission. The
Commission is charged with drawing redistricting plans for our state and federal legislative
offices: “The commission shall adopt a redistricting plan for each of the following types of
districts: state senate districts, state house of representative districts, and congressional
districts.” Const 1963, art 4, § 6(1). Pursuant to that duty, the Commission must consult
with and provide information to the public.
Before any drafting begins, the Commission must hold at least 10 public hearings
and receive materials from the public. Const 1963, art 4, § 6(8). Then, “[a]fter developing
at least one proposed redistricting plan for each type of district, the commission shall
publish the proposed redistricting plans and any data and supporting materials used to
develop the plans.” Const 1963, art 4, § 6(9). The first proposed plans were published on
October 11, 2021. In compliance with Const 1963, art 4, § 6(9), the Commission held five
public hearings to consider proposed plans. The next relevant step in the process was to
publish proposed plans that the Commission will ultimately vote on. Const 1963, art 4,
§ 6(14)(b). That occurred on November 12, 2021. 2
2
It is worth noting that these dates do not conform to the constitutionally imposed deadlines
for the proposal and adoption of plans. Const 1963, art 4, § 6(7). The Commission filed a
previous suit requesting authority to disregard these deadlines because of the delay in
obtaining federal census data, but this Court denied the request because we were not
persuaded the requested relief should be granted. In re Independent Citizens Redistricting
Comm, ___ Mich ___; 961 NW2d 211 (2021).
3
In the meantime, however, the Commission voted to enter a closed-session
discussion on October 27, 2021, to consider two memoranda. The first was dated October
14, 2021, and entitled “Voting Rights Act.” The Commission, in this Court, has described
the memorandum as follows: “Attorney-client communication and attorney work product
providing case law interpretation and legal advice with associated litigation risks related to
certain redistricting criteria.” The second memorandum, dated October 26, 2021, bore the
title “The History of Discrimination in the State of Michigan and its Influence on Voting,”
and it has been described by the Commission as follows:
Attorney-client communication and attorney work product providing
case law interpretation and legal advice with associated litigation risk related
to certain redistricting criteria. Sets forth research, interpretation and legal
advice regarding threshold issues required to be met by Plaintiffs in Voting
Rights Act challenges.
Plaintiffs subsequently requested these memoranda from the Commission, along
with a recording of the closed-session meeting. In the process of communicating with the
Commission, plaintiffs learned that at least eight other memoranda had been considered by
the Commission but were never disclosed to the public. The Commission asserted that
these memoranda and the October 27 meeting were privileged and confidential
communications from the Commission’s attorneys.
As these efforts were ongoing, a bipartisan pair of legislators asked the Attorney
General to produce an opinion on whether the Commission violated the Constitution by
conducting a closed session. The Attorney General concluded that the meeting needed to
be open under Const 1963, art 4, § 6(10), and that the memoranda considered at the meeting
4
needed to be published under Const 1963, art 4, § 6(9). OAG, 2021, No. 7,317 (Nov 22,
2021).
Unfazed by the Attorney General’s analysis, the Commission continued to deny
plaintiffs’ requests. Plaintiffs then filed this emergency action in our Court, invoking our
original jurisdiction under Const 1963, art 4, § 6(19). In it, they request the 10 memoranda
and a recording of the closed meeting. The Commission claims these materials are shielded
from the public as privileged. We have heard arguments, and the case is now ready for
resolution.
II. ANALYSIS
Answering the question presented by this case—whether the requested materials are
privileged—requires a close analysis of the constitutional text to determine whether the
Constitution requires a public meeting or disclosure. If it does, then, as discussed more
below, any privilege or protection must give way.
A. ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT DOCTRINE
In determining how the Constitution limits the attorney-client privilege or protection
afforded by the work-product doctrine, it is necessary to begin by briefly considering the
source and scope of those privileges and protections. In Michigan, “[p]rivilege is governed
by the common law, except as modified by statute or court rule.” MRE 501. In general,
the attorney-client privilege attaches to communications “made to the attorney by the party,
or client, as his legal adviser, and for the purpose of obtaining his legal advice and opinion,
relative to some legal right or obligation.” Alderman v People, 4 Mich 414, 423 (1857).
Likewise, the roots of our work-product doctrine come from the common law. See
5
D’Alessandro Contracting Group, LLC v Wright, 308 Mich App 71, 84 n 5; 862 NW2d
466 (2014). The doctrine protects materials prepared by an attorney “in anticipation of
litigation . . . .” Id. at 77. “It is generally sufficient if the prospect of litigation is
identifiable, either because of the facts of the situation or the existence of pending claims.”
People v Gilmore, 222 Mich App 442, 455; 564 NW2d 158 (1997).
The Commission appears to recognize these rules and ground its assertions of
privilege in the common law. But the Commission also points to various constitutional
provisions that give it the power to retain counsel, suggesting that the common
understanding of these provisions is that the Commission retains the attorney-client
privilege and any other general protections, such as those afforded by the work-product
doctrine. 3
It is true that we interpret the Constitution by the ordinary meaning of its terms, i.e.,
the meaning that would be commonly understood by the ratifiers at the time of ratification.
CPMC, 503 Mich at 61. But that interpretive principle does not lead to the conclusion the
Commission urges. For one thing, nothing in the text itself makes reference to any
attorney-client privilege or protections. A reader at the time of ratification would need to
infer from the fact that the Constitution allows the Commission to obtain legal
representation that the Constitution also incorporates a particular vision of the privileges
3
See Const 1963, art 4, § 6(4) (“The commission shall have procurement and contracting
authority and may hire staff and consultants for the purposes of this section, including legal
representation.”); Const 1963, art 4, § 6(5) (noting that the Legislature must appropriate
funds for “legal counsel” for the Commission); Const 1963, art 4, § 6(6) (noting that the
Commission has “legal standing to prosecute an action regarding the adequacy of resources
provided for the operation of the commission, and to defend any action regarding an
adopted plan”).
6
and protections attendant to that relationship. There is no textual support, however, for the
proposition that the Constitution itself protects communications or other materials
exchanged with a lawyer. Rather, the privilege and protection are governed by the common
law, which remains in effect unless “repugnant” to the Constitution. Const 1963, art 3, § 7.
Consequently, any privilege and protection accorded to the Commission comes
from the common law. Plaintiffs do not dispute the existence of some privilege and
protection for public bodies such as the Commission. And our Court of Appeals has
accorded government officials and bodies this privilege and protection. See McCartney v
Attorney General, 231 Mich App 722, 725; 587 NW2d 824 (1998) (holding that
memoranda from the Attorney General to the Governor were exempt from statutory
disclosure requirements pursuant to the attorney-client privilege); Booth Newspapers, Inc
v Wyoming City Council, 168 Mich App 459; 425 NW2d 695 (1988) (analyzing the
attorney-client privilege of a city council); Gilmore, 222 Mich App at 453 (concluding
“that the work-product privilege applies in the context of criminal proceedings to the work
product of the prosecutor”).
The attorney-client privilege “is the oldest of the privileges for confidential
communications” and “ ‘is founded upon the necessity, in the interest and administration
of justice, of the aid of persons having knowledge of the law and skilled in its practice,
which assistance can only be safely and readily availed of when free from the consequences
or the apprehension of disclosure.’ ” Upjohn Co v United States, 449 US 383, 389; 101 S
Ct 677; 66 L Ed 2d 584 (1981), quoting Hunt v Blackburn, 128 US 464, 470; 9 S Ct 125;
32 L Ed 488 (1888). The work-product doctrine similarly reflects the necessity recognized
historically that attorneys must “work with a certain degree of privacy, free from
7
unnecessary intrusion by opposing parties and their counsel.” Hickman v Taylor, 329 US
495, 510-511; 67 S Ct 385; 91 L Ed 451 (1947). 4
4
It is noteworthy, however, that neither the parties in this case, the dissent, nor our own
independent research has discovered any opinion from this Court applying the privilege or
protection to governmental bodies. Moreover, while the privilege and the protection are
commonly accorded to public bodies, there is scant caselaw analyzing the issue in depth,
and some courts and commentators have suggested that the scope of the privilege and the
protection are narrower when applied to public bodies. See Falcone v Internal Revenue
Serv, 479 F Supp 985, 989-990 (ED Mich, 1979) (noting that the privilege extended in this
context “is not in every case consistent with the privilege as applied between private
parties,” that “a broad attorney-client privilege would permit legal opinions, recognized as
authoritative interpretations within the agency, to be hidden from the public,” and that “the
purpose of the privilege is not to protect communications which are statements of policy
and interpretations adopted by the agency”); Nelson v City of Billings, 390 Mont 290, 305;
2018 MT 36; 412 P3d 1058 (2018) (“It is plain, then, that in a court’s review of a claimed
privilege when a citizen seeks government information, it should not treat the privileges as
sacrosanct. Particularly in light of the presumption of openness the Constitution endows,
a reviewing court must examine whether the claimed privilege in a given document is
sufficient to keep that document from public disclosure. The attorney-client privilege
raises special concerns when the client is a government entity. Though the attorney-client
and work-product privileges apply equally to government entities as well as private entities,
we must recognize the peculiar nature of government entities vis-à-vis the privileges and
the public’s right to know. As a threshold matter, the attorney-client and work-product
privileges belong to, and benefit, their public sector clients, not the lawyers. Unlike their
private adversaries, state and local government entities exist for the sole purpose of serving
the public.”) (citations omitted); Salkin, Beware: What You Say to Your [Government]
Lawyer May Be Held Against You—The Erosion of Government Attorney-Client
Confidentiality, 35 Urb Law 283, 287-289 (2003) (“Although most courts agree that there
is a government attorney-client privilege there is no clear precedent for courts to use in
determining its scope. Unlike the private-attorney-client privilege, there is no legal
tradition of a government privilege. . . . The most persuasive argument against extending
the privilege to government lawyers-clients is that in the public practice of law, the ultimate
client might be the general public and not the public official.”) (citations omitted); Leslie,
Government Officials As Attorneys and Clients: Why Privilege the Privileged?, 77 Ind L J
469 (2002) (noting that the application of the privilege to government clients and
government attorneys has little historical grounding and arguing that the justification for
any privilege is to create an even playing field during litigation).
8
The present question requires consideration of whether Const 1963, art 4, § 6 has
limited the attorney-client privilege and the work-product doctrine. Because the privilege
and the protection are creatures of the common law, they must give way to the Constitution
to the extent they are “repugnant” to it. Const 1963, art 3, § 7. At the time this
constitutional provision was ratified, “repugnant” meant “incompatible” or “inconsistent.”
Webster’s New Collegiate Dictionary (1973). Thus, to the extent that the common law
would shield something the Constitution requires to be disclosed, there is a repugnance and
the Constitution must prevail. 5
This is because public bodies work on behalf of the public rather than private
interests, and a broad application of the privilege would impede the flow of information to
the public, on whose behalf the work is being undertaken. This concern would be
especially acute with regard to the Commission, which is unelected and unaccountable to
the public through the democratic process. As one author has noted:
In theory, by taking line-drawing power away from legislators,
independent redistricting commissions, almost by definition, prevent the
smoke-filled-room approach to redistricting. That said, a common critique
of independent commissions is that they take power from accountable
members of state legislatures only to put it in the hands of unelected and
unaccountable commission members. To combat this concern, independent
commissions employ a variety of mechanisms to enable public oversight and
participation. [Green, Redistricting Transparency, 59 Wm & Mary L Rev
1787, 1806 (2018) (citations omitted).]
Although there appears to be no direct caselaw addressing the scope of the common-law
privilege in this context—and the dissent has not pointed us to any—similar concerns have
led the Florida Supreme Court to deny that state’s legislature the full scope of the legislative
privilege (against disclosure of documents) with regard to materials related to the
legislature’s compliance with constitutional redistricting criteria. See League of Women
Voters of Florida v Florida House of Representatives, 132 So 3d 135, 148-154 (Fla, 2013).
5
The dissent merely assumes the truth of its preferred conclusion with its self-serving and
legally unsupported assertion that the term “legal representation” incorporates the ratifiers’
understanding of all the legal principles attendant to that representation. However, contrary
9
B. OPEN MEETINGS
As noted, plaintiffs request two basic categories of materials: (1) the recording from
the secret meeting that occurred on October 27, 2021, and (2) the 10 memoranda, including
the two discussed at the October 27 meeting. With regard to the first category, the
plaintiffs’ basis for the request is Const 1963, art 4, § 6(10):
Each commissioner shall perform his or her duties in a manner that is
impartial and reinforces public confidence in the integrity of the redistricting
process. The commission shall conduct all of its business at open meetings.
Nine commissioners, including at least one commissioner from each
selection pool shall constitute a quorum, and all meetings shall require a
quorum. The commission shall provide advance public notice of its meetings
and hearings. The commission shall conduct its hearings in a manner that
invites wide public participation throughout the state. The commission shall
use technology to provide contemporaneous public observation and
meaningful public participation in the redistricting process during all
meetings and hearings. [Emphasis added.]
Because this involves the actions of a public body, “business” was used as a term of art
with a specialized meaning. MCL 8.3a. In the parliamentary setting applicable to public
bodies, Black’s Law Dictionary (11th ed) defines “business” as “[t]he matters that come
before a deliberative assembly for its consideration and action, or for its information with
a view to possible action in the future.” 6
to the dissent, it is not up to this Court “to harmonize the Commission’s constitutional
obligation to conduct its business in public with its constitutional right to legal
representation.” The Constitution sets the balance. The Commission is entitled to retain
lawyers and seek legal advice. But when it comes to legal advice relating to the
development and eventual adoption of redistricting plans, the legal advice provided to the
Commission must be open to the public.
6
The relevant lay meaning of “business” is not much different: “work that is part of a job.”
Merriam-Webster.com Dictionary, Business (accessed December 17, 2021) [https://perma.cc/U32K-
3NWV]. The Commission has proposed a definition that means “decisional actions.” But
10
The Commission’s core “business” is the development and adoption of redistricting
plans. Const 1963, art 4, §§ 6(1), 6(9). The question we are presented with here is whether
obtaining legal advice with respect to the validity of the plans is part of the Commission’s
“business,” i.e., the development and adoption of the plans. As a general matter, it seems
obvious that such advice is part of the Commission’s “business.” After all, the Commission
is not charged with drawing illegal maps, but it necessarily must draw legal ones. See
Const 1963, art 4, § 6(13)(a) (requiring the districts drawn to “be of equal population as
mandated by the United States constitution” and “comply with the voting rights act and
other federal laws”). And this is important, because the maps are essentially legal
products—their content and construction is determined by law. The Commission’s own
argument in this Court shows this to be true. It notes that the two memoranda discussed at
the October 27 meeting were to ensure that the maps complied with the Voting Rights Act,
52 USC 10101 et seq., which imposes various requirements that must be considered when
constructing the maps. See, e.g., League of United Latin American Citizens v Perry, 548
US 399, 436; 126 S Ct 2594; 165 L Ed 2d 609 (2006) (noting that the Voting Rights Act
it has failed to offer any supporting authority, such as cases or dictionaries, to support its
interpretation of the constitutional text. The Commission merely suggests that its
interpretation is consistent with the Open Meetings Act (OMA), MCL 15.261 et seq., but
the OMA expressly provides that “[a]ll decisions of a public body must be made at a
meeting open to the public.” MCL 15.263(2). Thus, any focus on decisions in that context
stems from the particular text of the statute. In the present context, by contrast,
incorporating such a limitation without the rest of the OMA’s framework would threaten
to eviscerate the higher level of protection afforded by the Constitution’s open-meetings
requirement. If the only meetings that needed to be conducted in the open were those at
which decisions are made, then the Commission could operate mostly in secret, popping
out into the open only to cast a “decisional” vote on matters discussed and deliberated upon
in private.
11
requires considerations such as the proportionality of minority-majority group districts to
the group’s share of the population and the history of voting-related discrimination in the
state or subdivision). As noted above, our Constitution specifically requires the
Commission to consider the Voting Rights Act when “proposing and adopting each plan,”
and it places this consideration as the Commission’s top priority. Const 1963, art 4,
§ 13(a). And in any event, because knowledge of the Voting Rights Act is important to
comply with the law and avoid subsequent litigation, by definition the act must be
considered when drawing the districts. That is no doubt why the Commission wanted this
information before it adopted any maps.
Legal advice on how to draw a map is therefore akin to statistical advice on
demographics or other expert counsel. The Constitution suggests such a view. Section
6(5) is useful:
Beginning no later than December 1 of the year preceding the federal
decennial census, and continuing each year in which the commission
operates, the legislature shall appropriate funds sufficient to compensate the
commissioners and to enable the commission to carry out its functions,
operations and activities, which activities include retaining independent,
nonpartisan subject-matter experts and legal counsel, conducting hearings,
publishing notices and maintaining a record of the commission’s
proceedings, and any other activity necessary for the commission to conduct
its business . . . . [Emphasis added.]
This provision demonstrates that retention of experts and counsel is an “activity necessary
for the commission to conduct its business” because adopting maps that comply with the
law is a necessary part of the Commission’s business, and obtaining counsel’s advice is
necessary to that end.
12
From this perspective, the October 27 meeting addressed the “business” of the
Commission. As the Commission itself acknowledges, the memoranda considered at the
meeting involved how to bring the maps in compliance with federal law. Indeed, according
to the Commission, the meeting was “replete with questions a client would ask his or her
attorney about how to comply with the law and candid answers and guidance by the
Commission’s attorneys.” This demonstrates that the meeting involved the core business
of the Commission. While such advice might otherwise be privileged as a communication
from an attorney, any such privilege must yield to the constitutional requirement that the
Commission “conduct all of its business at open meetings.” Const 1963, art 4, § 6(10)
(emphasis added).
The Commission suggests that the meeting was conducted in relation to litigation
that would almost certainly ensue. To be sure, “you don’t need a weatherman to know
which way the wind blows” with redistricting—litigation is likely inevitable. Bob Dylan,
Subterranean Homesick Blues, on Bringing it All Back Home (Columbia Records 1965).
But as noted, the plans themselves are a legal product, comprising numerous legal
determinations about what the law requires when drawing the maps. No doubt, these
decisions are made so that the Commission can produce maps that successfully withstand
legal challenges. But that is a function of the Commission’s duty to develop and adopt
redistricting maps. Thus, mere anticipation of litigation is not enough at this stage of the
process to overcome the constitutional mandate that business be conducted in the open.
Indeed, allowing the simple prospect of litigation to shield the Commission’s discussions
on how to make a map would threaten to swallow the open-meeting requirement
13
altogether. 7 On the other hand, concluding that “business” encompasses all ongoing
litigation would result in a radically uneven playing field in court. The litigants on the
other side of the case would enjoy the ability to have confidential communications with
their attorneys concerning the litigation, while the Commission would be forced to conduct
its planning and strategizing in public. 8
7
Cf. People v Whitney, 228 Mich App 230, 246-247; 578 NW2d 329 (1998) (“It would be
illogical to construe the attorney-client-privilege exemption [to the OMA] as authorizing a
public body to evade the open meeting requirements of the OMA merely by involving a
written opinion from an attorney in the substantive discussion of a matter of public policy
for which no other exemption in the OMA would allow a closed meeting.”); 35 ALR5th
113, 124, § 2(a) (discussing open-meeting statutes and noting that “some of these courts
have observed that since much of the business of public boards involves decisions which
someone will take offense at and might start a lawsuit, conceivably almost all public
business could be considered to be related to litigation in some way, and thus the exception
would swallow the rule, and thus they have construed the exception much more narrowly”).
A different calculus may occur after litigation has commenced. If the subject matter
of the litigation involves the business of the Commission—because it concerns the
Commission’s ongoing efforts to develop and adopt the maps—then the text of the
Constitution must prevail and the “business” must be conducted in open meetings. But by
definition, if the litigation involves matters other than those falling within the
Commission’s “business,” then that litigation would not come within the constitutional
requirement in Const 1963, art 4, § 6(10).
8
As noted above, courts and commentators who have questioned whether public bodies
such as the Commission deserve the full scope of the privileges and protections given to
private litigants nonetheless recognize the need for fair rules applicable to both sides once
a case commences. See State ex rel Leslie v Ohio House Fin Agency, 105 Ohio St 3d 261,
267; 2005-Ohio-1508; 824 NE2d 990 (2005) (“ ‘[C]ourts generally have construed open-
meeting, open-files, whistle-blower, and similar statutes as subject to the attorney-client
privilege, recognizing that otherwise governments would be at unfair disadvantage in
litigation, in handling claims and in negotiations.’ ”) (citation omitted); Government
Officials, 77 Ind L J at 528 (“[A] government attorney should have the same ability to
develop her case as her private adversary.”).
14
Because the October 27 meeting in this case concerned the development and
adoption of the plans and not any pending litigation, the subject of the meeting constituted
the Commission’s “business” and therefore had to be conducted in an open session under
Const 1963, art 4, § 6(10). We therefore conclude that the recording of the meeting held
in violation of the Constitution must be disclosed.
C. SUPPORTING MATERIALS
Plaintiffs’ second request is for 10 memoranda, including the two discussed at the
October 27 closed session and eight others. The basis for the request is Const 1963, art 4,
§ 6(9):
After developing at least one proposed redistricting plan for each type
of district, the commission shall publish the proposed redistricting plans and
any data and supporting materials used to develop the plans. Each
commissioner may only propose one redistricting plan for each type of
district. The commission shall hold at least five public hearings throughout
the state for the purpose of soliciting comment from the public about the
proposed plans. Each of the proposed plans shall include such census data
as is necessary to accurately describe the plan and verify the population of
each district, and a map and legal description that include the political
subdivisions, such as counties, cities, and townships; man-made features,
such as streets, roads, highways, and railroads; and natural features, such as
waterways, which form the boundaries of the districts. [Emphasis added.]
Plaintiffs contend that the memoranda constitute “supporting materials used to develop the
plans” that were proposed on October 11, 2021, and later revised and published in
November. In response, the Commission contends that the memoranda all involve
privileged communications with its attorneys in which the Commission sought legal
advice. Because they involve legal advice, they cannot constitute “supporting materials,”
according to the Commission. This is so because the term “supporting materials” must be
15
understood in the context of the associated term “data.” Since “[a]ssociated words bear on
one another’s meaning,” Scalia & Garner, Reading Law: The Interpretation of Legal Texts
(St. Paul: Thomson/West, 2012), p 195, the Commission argues that “supporting
materials” must be limited to purely factual information and not legal opinions from its
attorneys.
We find no such limitation on the meaning of the term. The associated-words canon
holds that when words are “associated in a context suggesting that the words have
something in common, they should be assigned a permissible meaning that makes them
similar. The canon especially holds that ‘words grouped in a list should be given related
meanings.’ ” Id. (citation omitted). The “terms must be conjoined in such a way as to
indicate that they have some quality in common.” Id. at 196. But here, the common quality
of the terms “data” and “supporting materials” is that they are things used in the
development of the maps—not that they were limited to factual information as opposed to
advice or opinion. Indeed, it would be odd if opinions were excluded since the
commissioners are each invited by Const 1963, art 4, § 6(9) to propose their own maps. It
is not clear why the commissioners’ differences of opinion must be based on factual
materials rather than advice or opinions. Thus, we agree with the Attorney General that
the publication requirement in § 6(9) “is broad” and “does not appear to contain any
limitation on publication of the materials used to develop the plan . . . .” OAG, 2021, No.
7,317, p ___.
The Commission further contends that since some of the memoranda are dated after
the first proposed plans were published on October 11, 2021, they could not support the
development of those earlier plans. In other words, it is chronologically impossible to say
16
that these memoranda were “used to develop” plans that came into existence before the
memoranda. The problem with this argument, however, is that nothing in the text of the
Constitution suggests that the Commission is prohibited from revising the plans after they
are first published. The Constitution itself certainly suggests that the Commission is not
limited to the proposed maps. For example, it requires that the Commission comply with
the federal laws not only when proposing the maps but when adopting them too; if the
proposals fail to comply with the law, no doubt the Commission not only could revise them,
but must. The Commission certainly does not argue that its authority is so limited and, as
a practical matter, the Commission appears to have made revisions after the October 27,
2021 meeting. See, e.g., Independent Citizens Redistricting Commission, November 3,
2021 Meeting at 2:00:00 and
2:24:50 (accessed December 17, 2021). It would make little sense for the Commission to
be prevented from making such changes—what would be the point of having five public
hearings after publishing the proposed maps? Because the maps are subject to revision,
materials produced after the maps are initially published under Const 1963, art 4, § 6(9)
might nonetheless be used in developing the maps.
This conclusion is borne out by a close examination of the text of Const 1963, art 4,
§ 6(9). The first clause of the first sentence starts out by setting up an obligation that is
triggered after an event occurs. That event is the development of “at least one proposed
redistricting plan for each type of district . . . .” The use of “at least one” indicates there
can be more than one. And indeed, each commissioner can develop his or her own maps.
But as soon as one set is developed, the Commission must “publish the proposed
redistricting plans and any data and supporting materials used to develop the plans.” The
17
fact that there can be more than one set of plans, but that the obligation is triggered after
the development of the first set, necessarily means that the obligation is an ongoing one.
That is, when the next proposed plans are developed, they too must be published along
with their supporting materials. It would make no sense to say that only the first set of
maps needs to be published. This follows, too, from the definition of “develop”: “to cause
to evolve or unfold gradually : to lead or conduct (something) through a succession of states
or changes each of which is preparatory for the next” or “to create or produce especially
by deliberate effort over time[.]” Merriam-Webster.com Dictionary, Develop
(accessed December 17, 2021)
[https://perma.cc/75AR-CJB5].
Because the obligation is ongoing, and because there are no restrictions on revising
the plans, it follows that new materials could be considered by the Commission as it decides
whether and how to revise the plans. Whether the plans are ultimately revised is irrelevant
to whether the subsequent materials were used to develop the plans. Materials that advise
against change, or that are simply considered when determining whether to make a change,
can be part of a development process, if change is possible. And, as noted, the whole public
hearing process seems geared to enable change. 9 Therefore, materials are not excluded
9
The Commission argues that this interpretation of “supporting materials” is overly broad,
in that it could reach any commercial, magazine, or video that a commissioner sees that
helps inform his or her view of the plan. That is not simply not the case. There is a
difference between being influenced by something and using it. To “use” materials is to
“do something with [them] in order to accomplish a task” or to “put [them] into action or
service[.]” Merriam-Webster.com Dictionary, Use (accessed December 17, 2021) [https://perma.cc/XBB4-
DZGN]. Thus, when the Commission sits down to develop plans, the materials it “uses”
18
from the publication requirement in Const 1963, art 4, § 6(10) simply because they were
created and considered during the revision process.
Nonetheless, to fall within the publication requirement, the materials must
“support[]” the development of a plan. To “support” the plan’s development means “to
hold up or serve as a foundation or prop for” the plans. Merriam-Webster’s Collegiate
Dictionary (11th ed). Thus, there must be some connection between the materials and the
plan’s development. In making the determination of whether there is a sufficient
connection, we are guided by the context offered in the analysis of the open-meetings
requirement above. Under that analysis, the “business” of the Commission is to develop
and adopt redistricting plans. Clearly, any materials related to the plans’ substance would
be supporting. For example, a memorandum describing the demographics of a region in
Michigan, to be used in shaping the contours of a district, would “support” the development
of the map. And for the reasons given above, a memorandum containing legal advice about
how a district needs to be constructed in order to comply with the law would also be a
“supporting material.” But the connection between the materials and the plan’s
development might be too attenuated to justify the conclusion that the materials somehow
provided a foundation for, i.e., supported, the plan’s development. This will of course
depend upon the nature of the materials at issue, but in general, the further the materials
are those it actually employs in drafting the plans, not those that have helped shape the life
experience or general worldview of the commissioners.
19
stray from the content of the plan or the process by which that content was developed, the
less likely it is that they can be said to support the plan’s development. 10
Turning to the requested items, plaintiffs first seek a memorandum from January 21,
2021 entitled “Guidance on Subsection 11 of Art. IV § 6 of the Michigan Constitution—
ICRC [i.e., Commission] Communications with the Public.” The Commission describes
the memorandum as follows: “Attorney-client communication and attorney work product
providing interpretation and legal advice with associated risks and penalties outlined
regarding constitutional restrictions on individual Commissioner behavior.” The question
is whether this item provides a foundation for the development of plans. Based on the title
and description, it is apparent that the memorandum bears an insufficient relationship to
the plans to justify deeming it a supporting material in their development. The
memorandum has no direct bearing on the plans or how they were formed. Rather, the
memorandum deals with the individual interests and behavior of the commissioners
themselves.
10
The dissent suggests that the last sentence of Const 1963, art 4, § 6(9) expressly specifies
everything that must be published: “Each of the proposed plans shall include such census
data as is necessary to accurately describe the plan and verify the population of each
district, and a map and legal description that include the political subdivisions, such as
counties, cities, and townships; man-made features, such as streets, roads, highways, and
railroads; and natural features, such as waterways, which form the boundaries of the
districts.” It does nothing of the sort. Instead, the last sentence requires certain information
be included with “[e]ach of the proposed plans,” including census data pertaining to the
population of each district and a “map and legal description” demarcating features like the
boundaries of governmental units, streets, and waterways. Const 1963, art 4, § 6(9)
(emphasis added). This is a clear description of what must be published pertaining to the
“plan.” But the constitutional provision separately requires that the “supporting materials”
be published, and it is that language we interpret and enforce today.
20
The next two memoranda relate to the action brought by the Commission this past
summer seeking to obtain our approval to delay various deadlines imposed by the
Constitution. See In re Independent Citizens Redistricting Comm, ___Mich___; 958
NW2d 855 (2021). The titles and accompanying Commission descriptions are as follows:
• March 2, 2021: “MICRC Litigation Options to Address Delay of Census Data”:
“Attorney-client communication and attorney work product regarding the
potential filing of litigation on behalf of client. Commission adopted Resolution
2021.02.10 to Authorize Legal Action to Address the Impact of the Delay in the
Release of 2020 Census Data on March 5, 2021.”
• May 25, 2021: “Update on Michigan Supreme Court Petition and Next Steps”:
“Attorney-client communication and attorney work product regarding pending
litigation.”
That the two memoranda relate to specific litigation would not prevent their
disclosure if they were materials that supported the development of a map. But the action
itself did not directly involve either the substance of the maps or the actual mechanics for
drawing the maps. 11 Rather, it related to the Commission’s response to being deprived of
11
In a similar vein, it appears to us that a strong argument could be made that materials
produced to defend a map in court would not be “supporting materials.” By the time a map
is challenged in court, it will likely be the case that the Commission will have already voted
to adopt the map and thus its formal opportunity to revise the map will have passed. In
those cases, the litigation materials will almost certainly not be used to determine the
content of the map or the process by which it was drawn.
21
data that it alleged was necessary for drawing the maps. Consequently, the memoranda do
not constitute “supporting materials” and therefore were not required to be published. 12
We reach a contrary conclusion with regard to the remaining seven memoranda, the
dates, titles, and descriptions of which are as follows:
• June 24, 2021: “One Person, One Vote and Acceptable Population Deviations”:
“Attorney-client communication and attorney work product providing case law
interpretation and legal advice analyzing issues of compliance in Michigan and
potential future litigation.”
• October 7, 2021: “Legal Considerations and Discussion of Justifications re:
Criteria”: “Attorney-client communication and attorney work product providing
case law interpretation and legal advice analyzing issues of compliance in
Michigan and potential future litigation.”
• October 14, 2021: “Voting Rights Act”: “Attorney-client communication and
attorney work product providing case law interpretation and legal advice with
associated litigation risks related to certain redistricting criteria.”
• October 26, 2021: “The History of Discrimination in the State of Michigan and
its Influence on Voting”: “Attorney-client communication and attorney work
product providing case law interpretation and legal advice with associated
litigation risk related to certain redistricting criteria. Sets forth research,
12
Ironically, the three memoranda that we find need not be disclosed—including two that
plaintiffs would seem to concede do not need to be disclosed because they related to
pending litigation—would, under the dissent’s view, still potentially be subject to
disclosure after an in camera review.
22
interpretation and legal advice regarding threshold issues required to be met by
Plaintiffs in Voting Rights Act challenges.”
• November 3, 2021: “Memorandum Regarding Renumbering of Electoral
Districts”: “Attorney-client communication and attorney work product
providing interpretation, legal advice and guidance with associated litigation
risks.”
• November 4, 2021: “Redistricting Criteria”: “Attorney-client communication
and attorney work product demonstrating attorney mental impressions and legal
approach. Sets forth interpretation of relevant case law and provides legal advice
analyzing issues of compliance in Michigan and potential future litigation.”
• November 7, 2021: “Memorandum Concerning Subsections 9 and 14 of Art. IV,
§ 6”: “Attorney-client communication and attorney work product demonstrating
attorney mental impressions and legal approach. Sets forth interpretation of
relevant case law and provides legal advice analyzing issues of compliance in
Michigan and potential future litigation.”
While the descriptions variously refer to “potential future litigation,” it is clear that
each memorandum concerns the core content of the maps or the immediate process by
which that content is developed. We have already demonstrated this with regard to the
October 14 and October 26 memoranda, which the Commission discussed at the closed
meeting on October 27.
The June 24 memorandum involves the principle of “one person, one vote.” This is
a central requirement in district mapmaking, referring to the rule that “ ‘the Equal
Protection Clause requires that the seats in both houses of a bicameral state legislature must
23
be apportioned on a population basis.’ ” CPMC, 503 Mich at 85, quoting Reynolds v Sims,
377 US 533, 568; 84 S Ct 1362; 12 L Ed 2d 506 (1964). This rule directly affects how
maps are drawn. See Const 1963, art 4, § 6(13)(a). Indeed, we instructed the
Commission’s predecessor (under the original version of the 1963 Constitution) to redraw
maps after this rule was announced by the United States Supreme Court in 1964. CPMC,
503 Mich at 86.
The October 7 and November 4 memoranda likewise relate directly to the
development of the maps. The “criteria” are a list of factors that the “commission shall
abide by . . . in proposing and adopting each plan, in order of priority.” Const 1963, art 4,
§ 6(13). These include, for example, the rule noted above that apportionment must be
based on population. See Const 1963, art 4, § 6(13)(a). In addition, another factor the
Commission must consider when constructing the map is that the “[d]istricts shall be
geographically contiguous.” Const 1963, art 4, § 6(13)(b). Such criteria go to the core
mapmaking process, and therefore the memoranda discussing the criteria constitute
supporting materials the Commission relied on to develop its proposed maps.
The final two memoranda also bear a direct connection to the development of the
plans. The November 3 memorandum concerns renumbering the electoral districts. The
numbering of the districts is constitutive of the maps themselves and thus any
memorandum on how to renumber the districts would support the development of the
redistricting plans. Finally, the November 7 memorandum concerns the direct process by
which the Commission proposes the maps and receives comments on them, which is an
important part of the development of the maps. The first constitutional section mentioned
in the memorandum title is Const 1963, art 4, § 6(9), which we have discussed in this
24
opinion and which lays out the process for the initial publication of the proposed maps and
supporting materials. Const 1963, art 4, § 6(14) establishes the procedure the Commission
must follow to adopt a plan. This includes, relevantly, the requirement that the
Commission allow for “at least 45 days for public comment on the proposed plan or plans”
before voting to adopt them. Const 1963, art 4, § 6(14)(b). These two constitutional
provisions describe the final steps in the development of the map. Memoranda discussing
these provisions thus relate to the development of the maps and are consequently
“supporting materials.”
Accordingly, the Commission is required to publish the following memoranda under
Const 1963, art 4, § 6(9): those from June 24, October 7, October 14, October 26,
November 3, November 4, and November 7. 13
III. CONCLUSION
The voters in 2018 changed the process for redistricting in Michigan. In doing so,
they established numerous safeguards to ensure that the new process would be transparent.
Today, we enforce two of those provisions against the Commission’s attempt to operate
13
The dissent faults us for not conducting an in camera review of certain memoranda and
the recording of the October 27 closed-session meeting. But an in camera review is not
necessary in this case. Unlike the dissent—which questions the Commission’s assertion
that the materials involve attorney-client privilege—we take the Commission at its word
regarding its description of the memoranda and meeting, and we find it adequate to resolve
the constitutional issues presented today. Any further delay in this emergency case, which
we have heard and decided on an expedited basis, would only serve to hinder the public’s
ability to consider these materials before the impending close of the public comment period
on December 27, 2021. We have not “[a]ct[ed] in haste”; instead we have worked
assiduously to ensure that the public’s constitutional right to this information is vindicated
in a timely and meaningful manner.
25
outside of public view. 14 We hold that the Commission’s October 27 closed-session
meeting violated the requirement in Const 1963, art 4, § 6(10) that the Commission
14
The dissent bemoans that the “prior process was shrouded in secrecy.” We believe, by
contrast, that the policy views behind the ratification of the amendment are not our concern
and have no analytical weight in determining the meaning of the Constitution. In a similar
manner, while the dissent emphasizes the number of meetings and hearings the
Commission has held, this is beside the point. No number of open meetings and hearings
can make up for the Commission’s concealing that which must be disclosed. Ultimately,
we are not a cheerleader or critic of our prior redistricting process or the current one; we
simply endeavor to interpret and apply the common meaning of the constitutional text.
In any event, we are unmoved by the dissent’s overheated rhetoric and unfounded
prediction that our opinion will cause the heavens to fall. In this regard, it is worth noting
that the drafters of this constitutional provision, Voters Not Politicians, apparently do not
agree that the Commission will be kneecapped by disclosure of all the requested materials.
Voters Not Politicians, Statement on Michigan Supreme Court Oral Arguments, available at
(accessed December 20, 2021) [https://perma.cc/P33L-2PAZ]
(“Voters established the Commission to bring redistricting out into the open. Anything
that informs the Commission’s mapping decisions should be made public.”). More
importantly, we are not the first court to note limitations on the scope of the attorney-client
privilege and the work-product doctrine. Indeed, at least one court has limited the scope
of the privilege in an analogous context even for subjects in litigation. See Tausz v Clarion-
Goldfield Community Sch Dist, 569 NW2d 125, 128 (Iowa, 1997) (noting multiple cases
in which the courts discussed the limits of the privilege in this context given that the
government “client” represents the public, and that the highest court of one state has
suggested that the privilege “ordinarily should not be extended to communications
requesting legal advice concerning the agency’s statutory duties even when that issue has
been made the subject of litigation”); 1 Attorney-Client Privilege in the United States
(December 2021 update), § 4:28, p ___ (noting one federal court that limited the
government’s privilege to materials that “were undertaken by the government while acting
in a capacity similar to a ‘private party seeking advice to protect personal interests’ ”)
(citation omitted). Regardless, our holding today rests squarely upon the constitutional
text.
For that reason, too, the dissent’s invocation of out-of-state caselaw falls flat. The
dissent’s survey of how other states have addressed privilege when it comes to redistricting
commissions fails to reflect that our Constitution is unique and our obligation is to protect
and defend the Michigan Constitution, not to render opinions that conform to the law of
26
“conduct all of its business at open meetings.” The discussion that occurred at that meeting
involved the content and development of the maps and thus constituted the “business” of
the Commission. We further hold that the Commission was required by Const 1963, art 4,
§ 6(9) to publish the seven most recent memoranda sought by plaintiffs. Those seven
memoranda constitute “supporting materials used to develop the plans” because they
concern the content of the maps and the direct process by which the maps were developed.
We agree with the Commission, however, that the remaining three memoranda are not
“supporting materials.” To remedy these violations of the Constitution, we order
production of the recording of the October 27 meeting and the seven memoranda noted
above. All documents and other materials must immediately be turned over to plaintiffs
and made public. Pursuant to MCR 7.315(C)(3), the Clerk of the Court is directed to issue
the judgment forthwith, and the filing of a motion for rehearing shall not stay execution or
enforcement of the judgment.
David F. Viviano
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
other states. The only similar text the dissent points to is from Arizona’s constitution, Ariz
Const, art 4, part 2, § 1(12). Arizona courts, however, have held that the state’s open-
meetings law applies to its independent redistricting commission. See State ex rel
Montgomery v Mathis, 231 Ariz 103, 107; 290 P3d 1226 (2012). That is not an argument
pressed here, presumably because our Constitution has severely restricted, if not eliminated
altogether, the Legislature’s power over the Commission. See, e.g., Const 1963, art 4,
§ 6(22) (“[T]he powers granted to the commission are legislative functions not subject to
the control or approval of the legislature, and are exclusively reserved to the
commission.”). And, lastly, it is also worth noting that our Legislature has recently voted,
with near unanimity, to prevent any application of the OMA to the Commission that would
allow closed-session meetings. See 2021 SB 728.
27
STATE OF MICHIGAN
SUPREME COURT
THE DETROIT NEWS, INC., DETROIT
FREE PRESS, INC., THE CENTER FOR
MICHIGAN, INC., also known as BRIDGE
MICHIGAN, MICHIGAN PRESS
ASSOCIATION, and LISA McGRAW,
Plaintiffs,
v No. 163823
INDEPENDENT CITIZENS
REDISTRICTING COMMISSION,
Defendant.
CLEMENT, J. (concurring in part and dissenting in part).
I join the Court’s opinion and, most relevantly, its interpretation of what qualifies
as the “business” of the Independent Citizens Redistricting Commission (the Commission)
and what qualifies as “supporting material” to proposed maps. As a result, I concur with
both the Court’s holding that the January 21, March 2, and May 25, 2021 memoranda do
not qualify as “supporting material” and its holding that the June 24, October 7, October 14,
October 26, November 3, November 4, and November 7, 2021 memoranda do qualify as
supporting material, for the reasons stated. That said, notwithstanding my agreement that
the January 21, March 2, and May 25 memoranda are not “supporting material,” I would
order their disclosure because concealing them is, in my judgment, incompatible with the
Commission’s obligation to conduct business at open meetings.
As the Court notes, the Commission was established in 2018 to take the power to
draw legislative districts out of the hands of the Legislature and put it in the hands of an
independent body. It is composed of commissioners who are randomly selected for the
task, Const 1963, art 4, § 6(2)(d)(ii) and (f), meaning that commissioners are neither elected
to their role nor answerable to an elected official, nor even selected by an elected official.
Indeed, commissioners are apparently even more insulated from oversight than federal
judges, who enjoy life tenure but are subject to impeachment by Congress; by contrast,
“[t]he commission, and all of its responsibilities, operations, functions, contractors,
consultants and employees are not subject to change, transfer, reorganization, or
reassignment, and shall not be altered or abrogated in any manner whatsoever, by the
legislature.” Const 1963, art 4, § 6(22). With this radical insulation from accountability
comes requirements for radical transparency. One of those is the obligation that “[t]he
commission shall conduct all of its business at open meetings.” Const 1963, art 4, § 6(10).
The question then becomes what the Constitution means by “open meetings.” On its face,
this at least requires that the Commission cannot deny physical access to its meetings when
it is conducting “business.” However, I believe there are clues in the constitutional text
that indicate this is an obligation for more than mere access. I believe it obliges the
Commission to produce all 10 of the memoranda at issue, and it is thus both an independent
rationale for ordering the Commission to produce the seven memoranda the Court obliges
it to produce today as well as a reason to compel it to produce the remaining three.
First of all, I believe that Subsections (10) and (11) should be read together. The
requirement in Subsection (10) that “[t]he commission shall conduct all of its business at
open meetings” should be understood in the context of the requirement in Subsection (11)
2
that “[t]he commission, its members, staff, attorneys, and consultants shall not discuss
redistricting matters with members of the public outside of an open meeting of the
commission . . . .” I construe these as constituting a dyad of sorts that is intended to extend
to all redistricting communication—Subsection (10) contemplates that communication
internal to the Commission only occur at open meetings, and Subsection (11) prohibits
communication with the public except at an open meeting, producing an outcome that all
communication about redistricting must occur at open meetings. While Subsection (11)
contains an exception that “a commissioner may communicate about redistricting matters
with members of the public to gain information relevant to the performance of his or her
duties if such communication occurs (a) in writing or (b) at a previously publicly noticed
forum or town hall open to the general public,” the opportunity to gain such information if
it is “in writing” clearly suggests that the “writing” must be publicly available. It would
be nonsensical to say that a nonpublic communication that would otherwise be prohibited
is allowed if it is reduced to writing—clearly it is intended that the written document be
available to the public. I am unwilling to infer, in the midst of all of this explicit
commitment to doing business in the open, that the attorney-client privilege implicitly
derogates from that openness.
Second, the “open meetings” requirement in the constitutional language is in notable
contrast with, and broader than, other constitutional open-government requirements. As to
the Legislature, the Constitution requires that “[t]he doors of each house shall be open
unless the public security otherwise requires.” Const 1963, art 4, § 20. This language
clearly extends no further than physical access to the chamber. Regarding public
universities, the Constitution requires that “[f]ormal sessions of governing boards of such
3
institutions shall be open to the public.” Const 1963, art 8, § 4. “That the provision is
limited to ‘formal sessions,’ rather than all sessions, signifies that the governing boards
retain their power to decide whether to hold ‘informal’ sessions in public.” Federated
Publications, Inc v Mich State Univ Bd of Trustees, 460 Mich 75, 91; 594 NW2d 491
(1999). Here, by contrast, the constitutional language flatly requires that the Commission
“conduct all of its business at open meetings,” which both communicates a broader
requirement than merely the physical access required of the Legislature and denies the
possibility for “informal” sessions given to university boards. The exclusion of these
maneuvers from the constitutional language communicates to me an intent that all of the
Commission’s business must be conducted in the open—to the exclusion of similar
maneuvers that would conceal aspects of the Commission’s business.
In light of these observations about the constitutional text, I would construe the
requirement of open meetings as defeating any claim of attorney-client privilege the
Commission asserts as to documents that relate to the Commission’s business. As the
Court of Appeals has held with respect to the Open Meetings Act (OMA), MCL 15.261 et
seq., “[i]t would be illogical to construe the attorney-client-privilege exemption [to the
OMA] as authorizing a public body to evade the open meeting requirements of the OMA
merely by involving a written opinion from an attorney in the substantive discussion of a
matter of public policy for which no other exemption in the OMA would allow a closed
meeting.” People v Whitney, 228 Mich App 230, 247; 578 NW2d 329 (1998).1 Whitney’s
1
I do not mean to suggest that the OMA itself applies here. “[T]he powers granted to the
commission are legislative functions not subject to the control or approval of the
legislature, and are exclusively reserved to the commission.” Const 1963, art 4, § 6(22).
4
reasoning applies with as much or greater force here. While Whitney construed a statute,
we deal here with constitutional language. “ ‘A Constitution is made for the people and by
the people. The interpretation that should be given it is that which reasonable minds, the
great mass of the people themselves, would give it.’ ” Mich Farm Bureau v Secretary of
State, 379 Mich 387, 391; 151 NW2d 797 (1967), quoting May v Topping, 65 W Va 656,
660; 64 SE 848 (1909) (emphasis omitted). Seeing as the commissioners are obliged to act
“in a manner that is impartial and reinforces public confidence in the integrity of the
redistricting process,” Const 1963, art 4, § 6(10), I believe “the great mass of the people
themselves” would reject the possibility that the Commission could “evade the open
meeting requirements of [Subsection (10)] merely by involving a written opinion from an
attorney in the substantive discussion of a matter of” the Commission’s business.2 Whitney,
228 Mich App at 247.
As a result, while I concur with the Court’s conclusion that the seven memos we
order disclosed qualify as “supporting materials” under Subsection (9), I also believe there
is an independent obligation to disclose them as part of the open-meetings requirement in
This is in notable contrast to the original constitutional language, which required the former
eight-member commission to “hold public hearings as may be provided by law.” Const
1963, art 4, § 6 (as ratified) (emphasis added).
2
Such a conclusion is compatible with the Commission’s prerogative to retain legal
counsel under Subsection (5). By giving the Commission this authority, the constitutional
language ensures the Commission’s independence. In its absence, there could be at least
some debate about whether the Commission was obliged to be represented by someone not
of its choosing (such as the Attorney General) who, not having been chosen by the
Commission, could conceivably be hostile to its work. But the Commission need not
sacrifice its openness to remain independent—indeed, that is the essence of its design.
5
Subsection (10).3 And while I agree with the Court that the January 21 memorandum does
not qualify as “supporting material” under Subsection (9), I do believe it relates to the
Commission’s “business” under Subsection (10), and I would therefore direct it to be
disclosed as part of the Commission’s obligation to act in the open. Finally, while I agree
with the Court that the March 2 and May 25 memoranda—relating to the Commission’s
response to delays in the release of federal census data—do not qualify as “supporting
material” under Subsection (9), I believe they ultimately relate to the Commission’s
“business” and should be disclosed under its obligation to do its business at open meetings
under Subsection (10).4 I agree with the Court that a “[c]onclu[sion] that ‘business’
encompasses all ongoing litigation would result in a radically uneven playing field in
court,” but I do not believe these memoranda were produced in response to “litigation.”
The only court proceeding was a petition the Commission filed on its own initiative,
effectively against itself (if it could even be construed as against anyone), seeking
instruction from this Court on whether it could deviate from the deadlines contained in
Subsections (7) and (14)(b). If this could justify the nondisclosure of materials, it could
3
Although the distinction is moot here, since we are well past the point when plans were
published, I would note that this would also eliminate the curious outcome that
observations from the Commission’s legal counsel about map construction in general could
wait until the Commission has, as the majority states, “ ‘develop[ed] at least one proposed
redistricting plan for each type of district’ ” to be published under Subsection (9), and
would instead necessitate their availability as soon as such remarks are offered as part of
the openness obligation.
4
To be clear, because the majority does not join my interpretation of what the Commission
must do to comply with its obligation to do “business” at “open meetings,” it does not reach
the question of whether these memoranda qualify as related to the Commission’s
“business,” but instead confines its holding to a ruling that they are not “supporting
material” under Subsection (9). And I agree that they are not “supporting material.”
6
incentivize the Commission to file petitions in this Court for instruction as to other duties
it faces and then argue that any resulting memoranda are privileged. It would be rather
curious, in my view, if the same memoranda we order disclosed today could have been
shielded if the Commission had filed a similar petition seeking instruction on how to
satisfy, for example, Subsection (13)(a).
For these reasons, I concur with the Court’s order to the Commission directing it to
disclose the recording of the October 27 meeting, as well as its directive to disclose the
seven memoranda it orders disclosed. However, I would also order the disclosure of the
remaining three memoranda identified by plaintiffs in their complaint.
Elizabeth T. Clement
7
STATE OF MICHIGAN
SUPREME COURT
THE DETROIT NEWS, INC., DETROIT
FREE PRESS, INC., THE CENTER FOR
MICHIGAN, INC., also known as BRIDGE
MICHIGAN, MICHIGAN PRESS
ASSOCIATION, and LISA McGRAW,
Plaintiffs,
v No. 163823
INDEPENDENT CITIZENS
REDISTRICTING COMMISSION,
Defendant.
WELCH, J. (dissenting).
In 2018, Michigan’s voters demanded transparency in our redistricting process
when they voted to create the Independent Citizens Redistricting Commission (the
Commission). On that, the majority and I agree. The prior process was shrouded in
secrecy. But today a majority of this Court strips the Commission of a fundamental
commitment of our legal system—the attorney-client privilege. They do this despite the
voters’ having adopted a constitutional amendment that specifically provided “legal
representation” to the Commission. The majority also strips the Commission of more than
plaintiffs have asked for or think appropriate; plaintiffs believe the Commission retains the
right to a confidential relationship with its lawyers whenever the Commission is involved
in litigation or when litigation is imminent. 1
Acting in haste and without reviewing the disputed communications, the majority
has denied the Commission the right to counsel that the voters wanted it to have in order
to succeed. Its rule conflicts with both our Constitution and our common law. It is one of
a kind: there is no precedent for a court wholesale denying confidentiality in an attorney-
client relationship. Every other government entity, every legal entity, every person, and
indeed every other similar independent redistricting commission in the nation has attorney-
client privilege. But as a result of the majority’s newly created rule, Michigan’s
Commission will not.
The majority’s rule places into question the Commission’s independence and its
ability to succeed in its mission of drawing fair, nonpartisan, and legally compliant maps.
It deprives the Commission of the ability to best prepare to defend its maps and creates an
uneven playing field by giving a litigation advantage to opponents of the Commission’s
work. As the majority says, the Commission will face multiple lawsuits challenging its
maps within weeks of this decision; but it will be unable to confidentially communicate
with its lawyers to prepare for that litigation. Nor is it clear from the majority’s decision
1
At oral argument, plaintiffs’ counsel conceded that its position was not “that the
Commission can never have privileged communications with its lawyers.” Rather,
according to plaintiffs’ counsel, “invocation of the attorney-client privilege or work-
product doctrine would be consistent with the openness required by the redistricting
amendment” in the context of existing or imminent litigation.
2
whether the Commission can communicate confidentially with its lawyers even when
defending a lawsuit.
Because I do not believe that the people of Michigan intended this result, because it
is not the result the plaintiffs have asked for, and because the text of Const 1963, art 4, § 6
does not support the majority’s conclusion, I dissent.
I. FACTUAL BACKGROUND
In this original action brought under Const 1963, art 4, § 6(19), plaintiffs, who are
various Michigan news organizations and a member of the press, seek a declaratory
judgment that the Commission violated Const 1963, art 4, § 6(9) by not disclosing 10
documents containing legal advice created by the Commission’s legal counsel and shared
with the Commission. Plaintiffs ask us to compel the Commission to publicly disclose
those withheld materials. Plaintiffs also seek a declaratory judgment that the Commission
violated Const 1963, art 4, § 6(10) by entering into one closed session in order to discuss
specific legal advice received from its counsel. They ask us to compel the Commission to
release an audio recording of that single closed session and to prospectively order that the
Commission may not hold such closed sessions in the future.
The parties agree on the facts. In 2017, Voters Not Politicians, a ballot proposal
committee, filed an initiative petition to amend the Michigan Constitution. Identified as
Proposal 18-2 on the November 6, 2018 general election ballot, the proposal passed
overwhelmingly. The amendment established a commission—the Independent Citizens
Redistricting Commission—charged with redrawing Michigan’s state senate, state house,
and congressional districts according to specific criteria. The amendment requires the
3
Secretary of State to convene the Commission by October 15, 2020, which she did. The
first meeting took place on September 17, 2020.
On October 27, 2021, the Commission began a meeting in open session. After
adopting an agenda and hearing public comments, the Commission voted to go into closed
session (the first in its existence) to discuss two legal memoranda prepared by its retained
counsel. The Commission understood that this meeting and the memoranda’s content
would be confidential under the attorney-client-communication and work-product
privileges. According to the Commission, the memoranda focused on issues that were
specific to the Commission’s work relating to compliance with the Voting Rights Act, 52
USC 10101 et seq., with an eye toward inevitable litigation. The Commission admits that
“the related privileged closed meeting is replete with questions a client would ask their
attorney about how to comply with the law and candid answers and guidance by the
Commission’s attorneys.” 2
Following that closed session, the individual plaintiffs asked the Commission’s
communications director for copies of the two memoranda. The Commission denied that
request, citing the attorney-client privilege and the work-product doctrine. This lawsuit
followed.
2
We know little more than this because we have not ordered the Commission to turn over
any of the contested legal memoranda or the recording of the closed-session meeting to the
Court for any kind of in camera inspection or review.
4
II. DISCUSSION
The majority’s decision is a Trojan horse. The interest in transparency is one I share,
but the majority ignores both the text and intent of the voter-initiated constitutional
amendment that created the Commission. I fear it will greatly hamper the Commission’s
work as it finalizes the current proposed maps for adoption this year and in the years to
come.
This is unfortunate. The antidote to partisan gerrymandering historically contrived
in backroom deals and without a hint of transparency, the Commission has been the picture
of transparency. The Commission has held hundreds of hours of public meetings across
the state, during which it has carefully worked to fulfill its constitutional mandate to
publicly develop and eventually adopt redistricting plans for Michigan’s state senate, state
house, and congressional districts. 3 Since mid-August 2021, the Commission—fully in
public and in live and virtual meetings across the entire state—has developed many
proposed plans for each type of district. The Commission has done so despite “the difficult
and unenviable position of undertaking its inaugural redistricting cycle without the full
benefit of tabulated decennial census data” that was delayed by more than six months as a
3
According to the Commission, it has held 105 public meetings, 10 public committee
meetings, 21 public hearings, and more than 220 informal presentations, town-hall forums,
and interviews, besides its other public education and outreach efforts and the maintenance
of a comprehensive website of materials and information about the Commission’s
activities. The Commission’s online public comment portal has received 7,265
submissions. More than 10,000 public comments on proposed maps were submitted on
the Commission’s “My Districting” website. And the Commission has also received
thousands of written public comments. The Commission continues to receive public
comments, and each comment is available to the public.
5
result of the COVID-19 pandemic. In re Independent Citizens Redistricting Comm, ___
Mich ___, ___; 961 NW2d 211, 212 (2021) (WELCH, J., concurring).
A. CONSTITUTIONAL INTERPRETATION
Our understanding of any voter-initiated constitutional amendment should be the
same as the common understanding of those who supported its approval. Durant v State,
456 Mich 175, 192; 566 NW2d 272 (1997). Our duty “ ‘is to enforce the law which the
people have made, and not some other law which the words of the constitution may
possibly be made to express.’ ” Id., quoting People v Harding, 53 Mich 481, 485; 19 NW
155 (1884).
When we determine the common understanding, we don’t do so in the abstract or
by reference to some technical rule. White v Ann Arbor, 406 Mich 554, 562; 281 NW2d
283 (1979). Instead, “[t]he words are to be applied to the subject matter and to the general
scope of the provision, and they are to be considered in light of the general purpose sought
to be accomplished or the evil sought to be remedied by the constitution . . . .” Id. “This
Court cannot properly protect the mandate of the people without examining both the origin
and purpose of a constitutional provision, because provisions stripped of their context may
be manipulated and distorted into unintended meanings.” Peterman v Dep’t of Natural
Resources, 446 Mich 177, 185; 521 NW2d 499 (1994). Finally, “[i]t is also settled beyond
dispute that the Constitution is not self-destructive.” In re Apportionment of State
Legislature—1964, 372 Mich 418, 436; 126 NW2d 731 (1964) (quotation marks and
citation omitted). “In other words, . . . the powers which it confers on the one hand it does
not immediately take away on the other[.]” Id. (quotation marks and citation omitted).
6
B. “LEGAL REPRESENTATION” INCLUDES ATTORNEY-CLIENT AND WORK-
PRODUCT PRIVILEGES
The Constitution gives the Commission the right to “legal representation”—to have
lawyers act on its behalf. Lawyers defend their clients when they get into legal trouble.
And they also counsel their clients to avoid legal trouble. To do both effectively requires
the guarantee of confidential communications. Indeed, the attorney-client and work-
product privileges are part of the common understanding of what it means to be legally
represented. 4
1. OUR CONSTITUTION GUARANTEES THE COMMISSION “LEGAL
REPRESENTATION”
The Commission availed itself of a tool that our Constitution unambiguously affords
it. The voters expected that the Commission would encounter circumstances that would
require legal help and therefore provided that the Commission could engage “legal
representation.” Const 1963, art 4, § 6(4). Nothing in the text limited that representation.
This specific authority is distinct from the Commission’s separate authority to “hire
staff and consultants” and to “retain[] independent, nonpartisan subject-matter
4
The majority misses the point of “common understanding.” The majority is correct that
“nothing in the text itself makes reference to any attorney-client privilege or protections”
and that “[a] reader at the time of ratification would need to infer from the fact that the
Constitution allows the Commission to obtain legal representation that the Constitution
also incorporates a particular vision of the privileges and protections attendant to that
relationship.” Ante at 6-7. That inference is the only logical one, given that every attorney-
client relationship includes confidential communications. That is, the common
understanding of legal representation is that the Commissions’ lawyers are, well, lawyers.
Until today, there was no model of legal representation in which lawyers could not
communicate with their clients confidentially.
7
experts . . . .” Const 1963, art 4, § 6(4) and (5). The voters also provided that the
Commission’s “functions, operations and activities” include retaining legal counsel and
that the Commission has “legal standing to prosecute an action regarding the adequacy of
resources provided for the operation of the commission, and to defend any action regarding
an adopted plan.” Const 1963, art 4, § 6(5) and (6).
“Legal representation” is unambiguous and necessarily includes the attorney-client
and work-product privileges. 5 “A fundamental principle in the client-lawyer relationship
is that the lawyer maintain confidentiality of information relating to the representation.”
MRPC 1.6, ___ Mich ___, ___ (official comment) (emphasis added). Every Michigan
lawyer who takes the oath of office to be licensed pledges that they will “maintain the
confidence and preserve inviolate the secrets of [their] client . . . .” State Bar of Michigan,
The Lawyer’s Oath
(accessed December 19, 2021) [https://perma.cc/283W-USET]. The promise of
confidentiality is perhaps the most common fact lay people know about lawyers. The right
to legal representation includes all its protections because that is necessary to ensure that
the legal advice can be honest and the communication not chilled. Put differently, there is
no common understanding that legal representation can mean what it has always meant at
some moments, and something else at other moments during the attorney-client
5
The majority’s below-the-line questioning of government bodies’ right to attorney-client
privilege is a radical departure from existing law. That governmental entities, including
cities, counties, and school districts, are entitled to legal representation that necessarily
includes confidentiality is well established in not just Michigan, but the entire nation.
8
relationship. The Constitution guarantees the Commission “legal representation,” not legal
representation without confidentiality or legal representation-lite.
2. THE ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES ARE
COMMON-LAW RIGHTS
Both the attorney-client and the work-product privileges are based in our common
law. The attorney-client privilege and the confidentiality it guarantees is one of the oldest
and most well-recognized privileges. Upjohn Co v United States, 449 US 383, 389; 101 S
Ct 677; 66 L Ed 2d 584 (1981). The privilege “recognizes that sound legal advice or
advocacy serves public ends” and “exists to protect not only the giving of professional
advice to those who can act on it but also the giving of information to the lawyer to enable
him [or her] to give sound and informed advice.” Id. at 389-390. Until today, “[t]his Court
has in prior decisions been inclined for obvious reasons” to give a “liberal interpretation”
to the common-law right of attorney-client privilege because “[d]oubtless such
interpretation is essential to a proper protection of the rights of the client.” Lindsay v
Lipson, 367 Mich 1, 5; 116 NW2d 60 (1962).
The work-product privilege (sometimes called the work-product doctrine) is also
rooted in the common law. See People v Gilmore, 222 Mich App 442, 451; 564 NW2d
158 (1997). As the majority concedes, the work-product privilege protects materials
prepared by an attorney “in anticipation of litigation.” D’Alessandro Contracting Group,
LLC v Wright, 308 Mich App 71, 84 n 4; 862 NW2d 466 (2014). The United States
Supreme Court has explained why:
Historically, a lawyer is an officer of the court and is bound to work
for the advancement of justice while faithfully protecting the rightful
interests of his clients. In performing his various duties, however, it is
9
essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel. Proper
preparation of a client’s case demands that he assemble information, sift what
he considers to be the relevant from the irrelevant facts, prepare his legal
theories and plan his strategy without undue and needless interference. That
is the historical and the necessary way in which lawyers act within the
framework of our system of jurisprudence to promote justice and to protect
their clients’ interests. This work is reflected, of course, in interviews,
statements, memoranda, correspondence, briefs, mental impressions,
personal beliefs, and countless other tangible and intangible ways—aptly
though roughly termed . . . as the “work product of the lawyer.” Were such
materials open to opposing counsel on mere demand, much of what is now
put down in writing would remain unwritten. An attorney’s thoughts,
heretofore inviolate, would not be his own. Inefficiency, unfairness and
sharp practices would inevitably develop in the giving of legal advice and in
the preparation of cases for trial. The effect on the legal profession would be
demoralizing. And the interests of the clients and the cause of justice would
be poorly served. [Hickman v Taylor, 329 US 495, 510-511; 67 S Ct 385; 91
L Ed 451 (1947).]
As the majority acknowledges, Article 3, § 7 of our Constitution provides that “[t]he
common law and the statute laws now in force, not repugnant to this constitution, shall
remain in force until they expire by their own limitations, or are changed, amended or
repealed.” But the majority believes these common-law principles fundamental to the
attorney-client relationship are repugnant to the amendment’s strong preference for
transparency. I disagree; the Commission can both do its work in public and also have the
benefit of the “legal representation” the voters wanted it to have.
3. THE MAJORITY’S ERRORS
The majority’s view that the Commission has a right to legal representation but that
legal representation does not mean the same thing for the Commission as it would for any
other governmental entity is unsupported by the constitutional language. If the voters
10
meant to deprive the Commission of this fundamental part of legal representation, the
constitutional amendment would have said so explicitly.
There is no example in any jurisdiction where the right to legal representation does
not include the right to seek and receive legal advice in confidence. 6 That is because
confidentiality and sound legal advice are symbiotic. The majority’s conclusion that “legal
representation” means something less for the Commission undermines a core and
commonly understood foundation of the legal profession. We have always recognized that
the very purpose of the attorney-client privilege, and legal representation generally, is “to
promote freedom of consultation for those needing legal advice[.]” People v Salisbury,
218 Mich 529, 537; 188 NW 340 (1922) (quotation marks and citation omitted), abrogated
on other grounds by People v Fisher, 442 Mich 560 (1993).
No constitutional text restricts or repeals the attorney-client and work-product
privileges that accompany legal representation under our common law. Instead, the
majority holds that the fundamental nature of the attorney-client relationship is “repugnant”
to the Commission’s separate obligation to conduct its business in public. Without
attempting to give meaning to both constitutional requirements, the majority picked one
and called the other one abrogated.
This turns our interpretive duty on its head. “In Michigan, the common law prevails
except as abrogated by the Constitution, the Legislature, or this Court.” People v
6
The Commission may be unique but it is not a unicorn. At oral argument, plaintiffs’
counsel conceded that other states with independent redistricting commissions—states that
served as models for Michigan’s Commission—all afford their respective commissions the
attorney-client and other common-law privileges.
11
Stevenson, 416 Mich 383, 389; 331 NW2d 143 (1982). Any abrogation cannot be implied,
and when there is doubt, the correct meaning is the one “which makes the least rather than
the most change in the common law.” Nation v W D E Electric Co, 454 Mich 489, 494;
563 NW2d 233 (1997) (quotation marks and citation omitted). “Where, as here, there is a
claim that two different provisions of the constitution collide, we must seek a construction
that harmonizes them both. This is so because, both having been adopted simultaneously,
neither can logically trump the other.” Straus v Governor, 459 Mich 526, 533; 592 NW2d
53 (1999). But the majority makes no attempt to harmonize the Commission’s
constitutional obligation to conduct its business in public with its constitutional right to
legal representation.7 And these provisions are easily reconcilable.
7
In going into closed session, the Commission followed to the letter a practice accepted by
courts and commonly followed by government bodies across this state for more than 40
years that carefully balances the need for transparent public governmental meetings with
the common-law right to attorney-client privilege and the recognition that effective legal
representation depends on that privilege. See Booth Newspapers, Inc v Regents of Univ of
Mich, 93 Mich App 100, 106-107; 286 NW2d 55 (1979) (“A public body is privileged to
retire to closed session to discuss materials exempt from disclosure” because they are
“subject to the attorney-client privilege.”) (quotation marks and citation omitted); Booth
Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 467; 425 NW2d 695 (1988)
(“[A] meeting of a public body may be closed for consideration of a written legal opinion
within the attorney-client privilege.”); People v Whitney, 228 Mich App 230, 247; 578
NW2d 329 (1998) (“[P]roper discussion of a written legal opinion at a closed meeting is,
with regard to the attorney-client privilege, limited to the meaning of any strictly legal
advice presented in the written opinion.”); Fisher & Robinson, Michigan Municipal Law
(ICLE, ___), § 5.10, p ___ (recognizing that a closed session is available for public bodies
to discuss privileged material with “discussions focus[ed] solely on legal matters associated
with the attorney-client privileged communications and not tangential issues”). And when
there is concern about imbalance, the courts are here to ensure that the privilege is not
abused. See, e.g., Nash Estate v Grand Haven, 321 Mich App 587, 604; 909 NW2d 862
(2017) (concluding that documents were properly subject to attorney-client privilege
12
Similar language appears in Arizona’s constitution, requiring that its “independent
redistricting commission shall conduct business in meetings open to the public” and
likewise providing no explicit right of attorney-client or work-product privilege. Ariz
Const, art 4, part 2, § 1(12). Yet the courts in that state have recognized that Arizona’s
commission enjoys common-law privileges. See Arizona Indep Redistricting Comm v
Fields, 206 Ariz 130; 75 P3d 1088 (2003). Until now, no court in a state that has an
independent redistricting commission had decided that its commission’s right to legal
representation encompasses something less than what would be enjoyed by any other
public body.
The majority also conflates the need for subject-matter experts with the need for
legal representation and ignores the Commission’s explanation that the legal memoranda
mainly at issue pertained to the threat of legal action against the Commission’s maps. 8
Although a lawyer can also provide subject-matter expertise, only a lawyer can provide
legal representation. Put differently, any lawyer can advise the Commission about any
number of relevant issues. But only the Commission’s lawyer owes the Commission a
duty of loyalty and confidentiality. These are different functions, and both are guaranteed
by the constitutional text. We must give meaning to each.
following in camera review). The Commission retains a record of its closed session,
including an audio recording, for this very purpose.
8
The majority states that “[l]egal advice on how to draw a map is . . . akin to statistical
advice on demographics or other expert counsel.” Ante at 12. This is incorrect. The
Commission is afforded both subject-matter experts and legal counsel. The two are
necessarily different. And subject-matter experts do not carry the ethical obligations of
legal counsel.
13
4. THREAT TO THE COMMISSION’S INDEPENDENCE
The loss of attorney-client and work-product privileges undermines the
Commission’s independence. The Commission’s need for sound legal advice is no
different than that of every other governmental board and body in Michigan. The
Commission consists of 13 registered voters who, by design, are chosen through a lottery
process from the public and are independent of the entrenched political forces that have
traditionally held sway with the redistricting process at our state capitol. Const 1963, art
4, § 6(1). The Constitution prohibits declared candidates, elected officials, political-party
officers, lobbyists, or family members of such persons from serving as a commissioner.
Id. Although a commissioner might be a lawyer, and there are lawyers now serving on the
Commission, it is not a requirement (and most are not lawyers). The voters chose a process
that entrusts redistricting to those outside the existing political system. They anticipated
that the Commission would need both subject-matter expertise from experts and legal
representation.
Without the ability to seek legal advice in confidence, there is a significant danger
that external influences on the Commission will predominate. Lawyers commonly have
different views and understandings of what the law requires. One lawyer may say stop
while another says go. Only the Commission’s lawyers have an ethical obligation to their
client—other lawyers who might appear before the Commission in public comment or
through written submission do not. If the Commission’s ability to seek or receive legal
advice is diminished, the Commission has not received the full benefit of the legal
representation guaranteed it by our Constitution.
14
To their credit, plaintiffs do not claim that the Commission does not have a right to
a confidential relationship with its lawyers. They acknowledge that the Commission has a
privilege with its lawyers in litigation or when litigation is imminent. But the majority
goes further than plaintiffs think appropriate, and it does so without reviewing the disputed
materials. Courts regularly resolve disputes in which litigants believe that the attorney-
client privilege has been improperly asserted. They have tools for doing so and can conduct
an in camera review of any disputed material. Plaintiffs recognized this solution and
specifically requested an in camera review of the materials they sought. An in camera
review would have been a sensible step because this Court must ensure full compliance
with the law and that only attorney-client communications—the kind that our society
expects will be privileged—are protected from disclosure. 9 Had we conducted such a
review, I might have agreed that some of the materials should not be covered by privilege.
But the majority skips that step.
C. THE MAJORITY’S “STANDARD”
Besides failing to afford the common understanding of “legal representation”
guaranteed by Article 4, § 6, the majority invents an amorphous and atextual privilege-lite.
Everyone knows that the best legal strategy is the proactive mitigation of litigation
risk in consultation with one’s legal counsel. This is just as true for individuals as it is for
businesses and public bodies. But apparently not for the Commission.
9
An in camera review would not have required any additional time. It could have been
conducted in the same time frame as issuing this opinion.
15
The majority recognizes that the Commission must have some confidential
communications because to hold otherwise results “in a radically uneven playing field in
court.” Ante at 14. But the majority’s rule has already stacked the deck against the
Commission. Every other would-be litigant would have the benefit of attorney-client and
work-product privilege “in anticipation of litigation.” D’Alessandro Contracting Group,
LLC, 308 Mich App at 77.
Even more troubling, the majority does not say to what extent the Commission
enjoys these privileges after litigation begins. The majority leaves the Commission and its
lawyers with no guidance about how they might communicate once they are sued. This
contradicts longstanding precedent. “[I]f the purpose of the attorney-client privilege is to
be served, the attorney and client must be able to predict with some degree of certainty
whether particular discussions will be protected.” Upjohn, 449 US at 393. The majority’s
rule places the Commission in an untenable position as it faces certain litigation.
The majority knows that legal challenges are expected with redistricting. 10 The
voters anticipated this too: “The terms of the commissioners shall expire once the
commission has completed its obligations for a census cycle but not before any judicial
10
Redistricting litigation “occurs with clocklike regularity in every redistricting
cycle . . . .” Manheim, Redistricting Litigation and the Delegation of Democratic Design,
93 B U L Rev 563, 567 (2013). The Detroit News—a plaintiff in this case—published an
editorial urging a “no” vote on Proposal 18-2 because it recognized that the proposal was
vague and “opens the door to endless litigation.” Editorial: Vote No on All Ballot
Proposals, The Detroit News (October 9, 2018), available at
(accessed December 19, 2021) [https://perma.cc/4CJK-
K3YN].
16
review of the redistricting plan is complete.” Const 1963, art 4, § 6(18) (emphasis added).
It is hard to imagine that those voting for the Commission would mean to hamstring it from
the ability to seek counsel, obtain legal advice, and prepare for litigation and mitigate
litigation risk just as every other governmental entity can. And it is impossible to imagine
the voters intended to hamstring the Commission’s ability to defend against litigation. But
the majority has done that.
The majority’s rule that the Commission does not have the right to an attorney-client
relationship seems to be informed by its unique view that government bodies are not
entitled to the same privileges as other attorney-client relationships. This understanding is
not shared by our sister courts. The Supreme Court of Iowa “deem[s] it appropriate to
recognize an attorney-client privilege with respect to some communications between
public agencies or public officials and their lawyers.” Tausz v Clarion-Goldfield
Community School Dist, 569 NW2d 125, 128 (Iowa, 1997) (upholding attorney-client
privilege and recognizing “that such determinations must be made on a case-by-case basis”
following an in camera review as necessary). The Supreme Court of Minnesota has
likewise held that attorney-client privilege is necessary “to fully implement the
confidentiality of the relationship” and that “[a] basic understanding of the adversary
system indicates that certain phases of litigation strategy may be impaired if every
discussion is available for the benefit of opposing parties who may have as a purpose a
private gain in contravention to the public need as construed by the [governmental body].”
Minneapolis Star & Tribune Co v Minneapolis Housing & Redevelopment Auth, 246
NW2d 448, 454 (Minn, 1976). The Supreme Court of Ohio rejected a constrained
application of the attorney-client privilege for government employees. State ex rel Leslie
17
v Ohio Housing Fin Agency, 105 Ohio St 3d 261, 270; 2005-Ohio-1508; 824 NE2d 990(2005) (stating that “the communications by attorney-employees of the state departments
in question were subject to the attorney-client privilege and should have been sealed. This
furthers the laud[able] objectives of the privilege: complete and candid communication
between attorneys and clients.”). And the Supreme Court of Tennessee has also recognized
that a public body may “provide counsel with facts and information regarding the lawsuit
and counsel may advise them about the legal ramifications of those facts and the
information given to him” in a closed meeting before moving back to an open meeting for
deliberation and decision-making. Smith Co Ed Ass’n v Anderson, 676 SW2d 328, 334
(Tenn, 1984). Indeed, it is generally accepted that it is in the public’s interest to promote
“a culture in which consultation with government lawyers is accepted as a normal,
desirable, and even indispensable part of conducting public business.” Ross v Memphis,
423 F3d 596, 602 (CA 6, 2005) (quotation marks and citation omitted) (finding persuasive
“the vital role the attorney-client privilege would play in both fostering adherence to law
and preventing government entities from being disadvantaged in litigation”). This had
always been Michigan’s application of attorney-client privilege to governmental entities
too, until today. 11
11
We recognize that the majority’s decision might match the current popular mood of how
the Commission should approach redistricting. But the law is not a popularity contest. Our
job is to give meaning to the Constitution and to do so in a way that harmonizes the dual
requirements of transparency and a meaningful right to legal representation.
18
III. PLAINTIFFS’ COMPLAINT
A. THE VOTING RIGHTS ACT MEMOS
Plaintiffs have focused on the two memos discussed during the closed session: (1)
“Voting Rights Act,” dated October 14, 2021, and (2) “The History of Discrimination in
the State of Michigan and its Influence on Voting,” dated October 26, 2021. We have no
information about what is in those memos, but the context that surrounded their
development matters. On October 11, 2021, as required by § 6(9), the Commission
published its proposed plans and held a series of required public hearings to solicit
comment from the public about the proposed plans. Following the publication of the
proposed plans, some people criticized choices the Commission made to comply with the
Voting Rights Act. Some specifically threatened a lawsuit.
At the October 20, 2021 public hearing in Detroit, multiple public commenters
identified the prospect of litigation against the Commission, variously stating how the maps
“may not pass the Voting Rights Act” and warning how “lawsuits are coming.” Michigan
Independent Citizens Redistricting Commission (MICRC), 10/20/2021 1:00 pm Public
Hearing, pp 11, 34, available at (accessed December 19, 2021)
[https://perma.cc/E44J-8ZTT]. A lawyer and law professor implored the Commission “to
take the time to get it right” or “look forward to a robust and vigorous constitutional fight.”
Id. at 105. The executive director of the Michigan Department of Civil Rights also
appeared and told the Commission that “the department believes that the maps presented
by this Commission violate Federal civil rights law.” Id. at 65. The Department of Civil
Rights later issued a statement repeating its executive director’s assertion that there was a
19
need to “rectify the Voting Rights Act violations inherent in the maps under consideration”
and submitted its own legal analysis of what the Voting Rights Act required. Michigan
Department of Civil Rights, News Release, MDCR Director John E. Johnson to MICRC:
Proposed Electoral Maps “Fail the Test” of Preserving the Voice of Michigan Minorities,
available at
(accessed December 19, 2021) [https://perma.cc/5KCU-DE5X].
It was this public outcry—and the specific threat of litigation—that led to the
Commission’s decision to confer with its attorneys and review its attorneys’ memos in that
closed session on October 27, 2021. The Commission wanted its attorneys’ advice about
whether its proposed plans could withstand legal scrutiny. MICRC, 10/27/2021 1:00 p.m.
Meeting, p 10, available at (accessed December 19,
2021) [https://perma.cc/H7VJ-43AF]. 12
This is precisely the type of communication that lawyers give clients in confidence.
The majority’s rule will mean that the Commission will not have legal representation to
mitigate risk and that its foes can prepare legal challenges privately with their counsel while
observing all the legal strategy provided to the Commission. The voters wanted the
Commission to succeed; they didn’t want a different rigged system.
12
At least one commissioner was persuaded that it was appropriate for the Commission to
enter into closed session to discuss privileged legal advice because he recognized it is “a
common tool used in redistricting” and “was used significantly in Arizona.” MICRC,
10/27/2021 1:00 p.m. Meeting, p 10. Other commissioners reasonably reflected that there
was a fear of the unknown and a need to trust counsel’s legal advice. Id.
20
I also disagree with the majority’s conclusion that Const 1963, art 4, § 6(9), which
states that “the commission shall publish the proposed redistricting plans and any data and
supporting materials used to develop the plans,” requires disclosure of privileged
documents.
The interpretative work to understand what “supporting materials” means is simple
because the constitutional text is clear. By focusing only on two words, the majority
ignores the rest of § 6(9), which explicitly defines what materials the Commission must
provide when publishing its proposed plans:
Each of the proposed plans shall include such census data as is necessary to
accurately describe the plan and verify the population of each district, and a
map and legal description that include the political subdivisions, such as
counties, cities, and townships; man-made features, such as streets, roads,
highways, and railroads; and natural features, such as waterways, which form
the boundaries of the districts.
The Constitution does not say that the “supporting materials” include privileged materials,
and the common-law rule is that they would not. Section 6(14)(b), which sets forth what
is required when the Commission is prepared to enter the 45-day comment period before
voting to adopt a plan, also specifies what materials the Commission must make public.
That provision likewise includes no requirement that the Commission make privileged
materials publicly available:
(14) The commission shall follow the following procedure in adopting
a plan:
* * *
(b) Before voting to adopt a plan, the commission shall provide public
notice of each plan that will be voted on and provide at least 45 days for
public comment on the proposed plan or plans. Each plan that will be voted
on shall include such census data as is necessary to accurately describe the
21
plan and verify the population of each district, and shall include the map and
legal description required in part (9) of this section. [Emphasis added.]
The majority’s lack of engagement with the constitutional text is perplexing, and its
strained explanation for requiring publication of privileged material reflects its oversight.
B. THE REMAINING WITHHELD DOCUMENTS AND AUDIO RECORDING
The majority’s decision to order disclosure of documents on the basis of their titles
and without reviewing them is striking. Like the majority, I have no idea what is in the
documents or what was said during the closed session. The Commission has produced a
privilege log that explains its rationale for claiming that the privilege applies. While courts
are typically not in the business of second-guessing a lawyer’s assertion that a document
is privileged, courts can conduct in camera reviews if there is a concern as to the
appropriateness of the asserted privilege. I would take that step here: plaintiffs and the
public deserve as much. After that review, I might have agreed that some of the materials
were not covered by privilege. The majority does not need this intermediate step because
of the surprising categorical nature of its rule.
IV. CONCLUSION
The constitutional amendment passed by the voters in 2018 balanced a requirement
of openness and transparency with the ability of the Commission to obtain a degree of
confidential legal representation necessary to accomplish its aims. The Commission has
exercised that right with caution: only a single 75-minute closed session occurred out of
hundreds of hours of public meetings (when the maps were drawn in full public-facing
view), and only 10 memos have been withheld under the attorney-client and work-product
privileges out of the thousands of pages of documents made available that reflect the
22
Commission’s development of the proposed plans. See generally Michigan Independent
Citizens Redistricting Commission (accessed
December 19, 2021) [https://perma.cc/PBM6-KKU2] (linking to meeting notices, minutes,
recordings, transcripts, comment portals, and other materials documenting the
Commission’s progress).
Our Constitution unambiguously affords the Commission “legal representation.”
By depriving the Commission of the common-law right to attorney-client and work-
product privileges that are generally understood as defining an attorney-client relationship,
the majority has put its own views above those of the voters. The voters wanted the
Commission to draw fair and legal maps. They knew legal representation was important
to do so successfully. I therefore dissent.
Elizabeth M. Welch
Bridget M. McCormack
Megan K. Cavanagh
23