976 N.W.2d 612
Mich.2021Background
- Michigan voters created the Independent Citizens Redistricting Commission (ICRC) under Mich. Const. art. IV, § 6 to draw legislative and congressional maps with enhanced transparency.
- On Oct. 27, 2021 the Commission held a closed session to discuss two attorney memoranda addressing Voting Rights Act issues; plaintiffs (news organizations and others) sought the meeting recording and ten withheld memoranda.
- The Commission invoked common-law attorney-client privilege and the work-product doctrine to withhold the materials; the Michigan Attorney General opined the meeting and memoranda should be public.
- Plaintiffs filed an original action in the Michigan Supreme Court under art. IV, § 6(19) seeking declaratory relief and writs compelling disclosure.
- The Supreme Court held the Oct. 27 closed session violated art. IV, § 6(10) and ordered production of the meeting recording and seven of the ten memoranda as “supporting materials” under art. IV, § 6(9); three memoranda were not required to be published.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Oct. 27, 2021 meeting could be closed or must be public under art. IV, § 6(10) | The meeting discussed development and content of proposed maps (the Commission’s “business”) and therefore must be open; recording must be disclosed | The discussion was privileged legal advice about litigation risk and therefore could be confidential | Court: The meeting concerned the Commission’s core business (map development) and art. IV, § 6(10) requires all business be conducted at open meetings; recording must be disclosed |
| Whether memoranda withheld by the Commission are “data and supporting materials” that must be published under art. IV, § 6(9) | The memoranda were used in developing the proposed plans and thus are supporting materials subject to publication | The memoranda are privileged attorney-client/work-product communications and “supporting materials” should be limited to factual data, not legal advice | Court: The publication requirement is broad; seven memoranda that directly concerned map substance or the process of development must be published; three (relating to commissioner behavior and litigation procedural options) are not supporting materials |
| Whether common-law privileges (attorney-client, work-product) shield materials from constitutional disclosure | Plaintiffs: Constitutional transparency provisions control; common-law privileges are subordinate where they conflict with the Constitution | Commission: The Constitution’s grant of "legal representation" implies ordinary attorney-client and work-product protections; those privileges should apply | Court: Privileges derive from common law and must yield where they are "repugnant" (incompatible) with the Constitution; privileges cannot defeat express constitutional disclosure/open-meeting requirements, though they remain where not inconsistent |
Key Cases Cited
- Citizens Protecting Mich’s Const. v. Secretary of State, 503 Mich 42 (2018) (background on creation and purpose of the ICRC)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (principal statement on attorney-client privilege policy)
- Hickman v. Taylor, 329 U.S. 495 (1947) (foundational work-product doctrine rationale)
- Reynolds v. Sims, 377 U.S. 533 (1964) (one-person, one-vote principle relevant to map-drawing legal requirements)
- League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) (describing Voting Rights Act considerations in redistricting)
- People v. Gilmore, 222 Mich App 442 (1997) (Michigan standard for applying work-product protection when litigation is foreseeable)
- Booth Newspapers, Inc. v. Wyoming City Council, 168 Mich App 459 (1988) (Michigan appellate treatment of attorney-client privilege for public bodies)
- McCartney v. Attorney General, 231 Mich App 722 (1998) (recognition that government communications may be privileged)