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AG Nessel: ICRC's October Closed Session Likely Should Have Been Open Meeting
November 22, 2021
LANSING - Michigan Attorney General Dana Nessel issued an opinion today finding that, "[p]resuming that the Independent Citizens Redistricting Commission's October 27, 2021, closed session was held to discuss memoranda that provided Commission members with certain legal parameters and historical context that should be considered in developing, drafting, and adopting the redistricting plans... the discussion should have been held at an open meeting."
Last month, Senators Ed McBroom and Jeff Irwin asked the AG to "provide your legal opinion on the following question: Did the Commission, by entering a closed session on October 27, 2021, violate Article 4, § 6 of the Michigan Constitution?"
The formal opinion notes in part that, "the Commission went into closed session to discuss memoranda titled, 'Voting Rights Act' and 'The History of Discrimination in the State of Michigan and its Influence on Voting.' Based on the titles of these memoranda, presumably, the matters discussed provided Commission members with certain legal parameters and historical context that should be considered in developing, drafting, and adopting the redistricting plans. If this presumption is correct, then the Commission was conducting 'business' that should have been done in an open meeting... Here, again presumably, the October 27th closed-session discussion provided Commission members with certain legal parameters and historical context that should be considered in developing, drafting, and adopting the redistricting plans. For the reasons previously discussed, it would be 'repugnant' to the constitutional openness requirements of article 4 § 6 to have such a discussion in closed session, even though the discussion is with the Commission's counsel."
"The Commission is tasked with developing and adopting new districts that will no doubt change the makeup of our elected legislators," Nessel said. "It remains imperative that such a monumental responsibility be conducted in a public forum. The citizens of this state are owed a transparent process and the Commission must do its best to meet that expectation."
The opinion goes on to recognize that, "[t]his is not to say that the Commission could never meet in closed session. It is beyond the scope of this opinion to determine what discussions might fall outside the 'business' of the Commission and therefore outside the public's gaze. But one could imagine, for example, a discussion between the Commission and its counsel concerning litigation, or some other matter, that has nothing to do with the actual development, drafting, or adoption of the redistricting plans and could therefore be held in a closed session. Based on the titles of the memoranda and the presumptive content of the discussion at the Commission's October 27th closed session, however, that is not what happened here."