You have asked, “Did the [Independent Citizens Redistricting] Commission, by entering a closed session on October 27, 2021, violate article 4, § 6 of the Michigan Constitution?”  You note that the Commission entered the closed session with legal counsel, “for the purposes of discussing the privileged and confidential memoranda titled Voting Rights Act of October 14, 2021, and The History of Discrimination in the State of Michigan and its Influence on Voting of October 26, 2021.” 

The Commission was created and is governed by article 4, § 6 of the Constitution, and within article 4, § 6’s many subsections, two are especially important in examining the Commission’s October 27th actions.  First, § 6(10) provides, in part, that “[t]he commission shall conduct all of its business at open meetings.”  (Emphasis added).  Second, § 6(4) provides, in part, that “[t]he commission has the sole power to make its own rules of procedure.”  (Emphasis added).  Each provision will be examined in turn.

Whenever it is necessary to interpret the meaning of a particular constitutional provision, Michigan courts emphasize the “common understanding rule,” which requires courts “to interpret the constitution as the great mass of the people would interpret it.”  Frey v Dep’t of Mgt & Budget, 429 Mich 315, 334 (1987). Where legal terms of art are used in the constitution, the “common understanding” of a phrase is its technical meaning.  Mich Dep’t of Transp v Tomkins, 481 Mich 184, 209–210 (2008). And where it is necessary to interpret the meaning of undefined terms in the constitution, “consideration of dictionary definitions used at the time of passage for undefined terms can be appropriate.”  In re Burnett Estate, 300 Mich App 489, 497–498 (2013), citing Nat’l Pride At Work, Inc v Governor of Mich, 481 Mich 56, 67, 69 (2008).  Courts also consider “the purpose sought to be accomplished” when necessary to clarify meaning.  In re Proposal C, 384 Mich 390, 405 (1971). 

Article 4, Section 6(10)

Applying those principles here, the phrase “open meetings,” is undefined within the body of article 4, § 6.  But as used in § 6(10), i.e., as referring to a gathering of a governmental or public body, “open meetings” is a technical, legal, term of art.  For example, article 4, § 20, while not applicable to the Commission, is titled “open meetings” and requires that “[t]he doors of each house [of the Legislature] . . . be open[.]” This language was intended to be more than just literally true; it expresses a desire for the public to have access to the work being done by the Legislature on the floor of each house.  Further, this technical, legal meaning of the phrase is supported by Black’s Law Dictionary, which defines “open-meeting law” to mean “[a] statute requiring a governmental department or agency to open its meetings or its records to public access.”  Open-Meeting Law, Black’s Law Dictionary (11th ed. 2019).  Accordingly, the plain language of § 6(10) requires that the Commission’s business be conducted in a manner that is open and accessible to the public. 

Such an interpretation is consistent with § 6’s purpose as well.  For example, § 6 requires that the Commission “hold at least at least ten public hearings throughout the state” before any redistricting plans are drafted “for the purpose of informing the public about the redistricting process,” Const 1963, art 4, § 6(8) (emphases added), and “at least five public hearings throughout the state for the purpose of soliciting comment from the public about [its] proposed plans,” Const 1963, art 4, § 6(9) (emphasis added).  Similarly, § 6(10) requires that “[e]ach commissioner . . . perform his or her duties in a manner that . . . reinforces public confidence in the integrity of the redistricting process.”  It also requires that the Commission conduct its hearings “in a manner that invites wide public participation[.]” Given the words used in § 6, by requiring that the Commission’s business be conducted in “open meetings,” the People intended that the Commission’s work be done in a manner that is readily accessible and visible to the public and that allows the public to be a well-informed participant in the redistricting process.

Article 4, Section 6(4)

While § 6(10) requires that the Commission conduct its business in “open meetings,” § 6(4) provides the Commission with “the sole power to make its own rules of procedure.”  (Emphasis added).  Black’s Law Dictionary defines “procedure” as “[a] specific method or course of action.” Procedure, Black’s Law Dictionary (11th ed. 2019).  And, though not directly applicable to the Commission, the Michigan Constitution contains similar language in article 6, § 5, in which the People provided the Supreme Court with the authority to “establish . . . the practice and procedure in all courts of this state.”  When interpreting this provision, the Supreme Court has explained that its “constitutional rulemaking authority extends only to matters of practice and procedure” and that it “is not authorized to enact court rules that establish, abrogate, or modify the substantive law.”  People v Glass, 464 Mich 266, 281 (2001), citing McDougall v Schanz, 461 Mich 15, 26 (1999).

The reason being that “matters of substantive law are left to the Legislature.”  People v Cornell, 466 Mich 335, 353 (2002).

Here, too, the Commission’s rulemaking power is similarly limited.  The Commission’s rulemaking power “extends only to matters of practice and procedure,” and it “is not authorized to enact . . . rules that establish, abrogate, or modify” the law, see Glass, 464 Mich at 281, especially the provisions enacted by the People in article 4, § 6.  Such limitations are consistent with the Supreme Court’s instruction in Citizens Protecting Michigan’s Constitution v Secretary of State, that “there is no more constitutionally significant event than when the wielders of ‘[a]ll political power’ under that document . . . choose to exercise their extraordinary authority to directly approve or disapprove of an amendment thereto.”  503 Mich 42, 59 (2018).  They are also consistent with the Supreme Court’s analogous dictate that, “[i]f a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration . . . the [court] rule should yield.”  McDougall, 461 Mich at 30–31. 

Thus, if a rule of procedure adopted by the Commission contravenes the substance of § 6, that rule of procedure likewise must yield to the “extraordinary authority” of the People to command that “[t]he commission shall conduct all of its business at open meetings.”  Const 1963, art 4, § 6(10).  In short, the Commission has the exclusive authority to promulgate rules of procedure so long as those rules do not contravene the substance of the constitutional provision through which it is governed.[1]

The Commission’s Rules of Procedure and the Open Meetings Act

Recognizing that the People provided it with rulemaking authority in § 6(4), the Commission adopted, and subsequently amended, its own rules of procedure.  Relevant here, the Commission adopted Rule 5.1, which mandates that it “conduct meetings under these rules in accordance with the Open Meetings Act [OMA][,]” MCL 15.261 et seq.  To be clear, because the Constitution vests the Commission with the sole power to make its own rules of procedure, and specifically precludes the Legislature from altering the Commission’s responsibilities in any manner whatsoever, the OMA, which is a creation of the Legislature, does not independently apply to the Commission.  Cf. Federated Publications, Inc v Bd of Trustees of Mich State Univ, 460 Mich 75 (1999); Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211 (1993) (discussing the application of the OMA to state universities.) 

Nonetheless, at first blush, requiring through its rules of procedure that the Commission’s meetings be conducted in accordance with the OMA makes sense.  For example, the OMA requires, among other things, that “[a]ll meetings of a public body . . . be open to the public and . . . held in a place available to the general public[,]” MCL 15.263(1), that “[a]ll decisions of a public body must be made at a meeting open to the public[,]” MCL 15.263(2), that no meetings be conducted “unless public notice is given” in the manner required under the act, MCL 15.265(1), and that public bodies “shall keep minutes of each meeting showing the date, time, place, members present, members absent, [and] any decisions made at a meeting open to the public,” MCL 15.269(1).  Each of these requirements is consistent with § 6(10), which, in addition to requiring that the Commission conduct its business in “open meetings,” also mandates that the Commission “provide advance public notice of its meetings and hearings[,]” “conduct its hearings in a manner that invites wide public participation throughout the state[,]” and “use technology to provide contemporaneous public observation and meaningful public participation in the redistricting process[.]” 

While the above-referenced portions of the OMA are consistent with § 6(10), the OMA also allows public bodies to convene “closed sessions” in certain enumerated circumstances.  See MCL 15.268(a)–(l).  Similarly, the Commission, in Section 6.2.5 of its rules of procedure, gave itself the authority to “go into closed session only for certain specified exceptions as set forth in . . . MCL 15.268 (a) through (h)[.]”[2]  And as noted above, on October 27th, the Commission did in fact vote to go into a closed session, citing MCL 15.268(h), which permits public bodies to meet in closed session “[t]o consider material [specifically, legal memoranda prepared by its counsel] exempt from discussion or disclosure by state or federal statute.”  See October 27, 2021, Proposed Minutes, p 3.[3] 

The Commission’s “Business”

As previously discussed, however, this rule of procedure cannot violate the openness requirement in the plain language of article 4, § 6(10).  And article 4, § 6(10) requires that the Commission “conduct all of its business at open meetings.” (Emphasis added).  Although, the term “business” is not defined, § 6(10) plainly obligates the Commission to conduct all its business at open meetings as opposed to some of its business.  Accordingly, it is important to understand the meaning of the term “business” as used in § 6(10).

In the parliamentary setting, Black’s Law Dictionary defines “business” to mean “[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.”  Black’s Law Dictionary (11^th ed).  Further, Merriam-Webster provides that an essential meaning of “business” is “work that is part of a job.”  Definition of Business by Merriam-Webster.[4]  The matters that come before the Commission and are part of its job are readily apparent from a review of § 6.  Specifically, the People have assigned the Commission the job of “adopt[ing] a redistricting plan under this section for . . . state senate districts, state house of representative districts, and congressional districts.”  Const 1963, art 4, § 6(7).  From these definitions, it follows that the term “business” as applied to the Commission in § 6(10) is properly understood as matters related to the development, drafting, and adoption of a redistricting plan. 

Section 6(10)’s reference to “all of its business” also suggests a broad application of the provision.  In fact, “there is no broader classification than the word ‘all.’  In its ordinary and natural meaning, the word ‘all’ leaves no room for exceptions.”  Skotak v Vic Tanny Int’l Inc, 203 Mich App 616, 619 (1994).  And just like an administrative agency’s interpretation of a statute “is not binding on the courts” and “cannot conflict with the Legislature’s intent as expressed in the language of the statute at issue[,]” see In re Complaint of Rovas Against SBC Michigan, 482 Mich 90, 103 (2008), the Commission’s interpretation of § 6 as expressed in its rules of procedure is not binding and cannot conflict with the People’s intent as expressed in the plain language of the constitutional provision under which it is governed.  See Citizens Protecting Michigan’s Constitution, 503 Mich at 59.

Utilizing this broad application of the phrase “all of its business,” if matters related to the development, drafting, and adoption of a redistricting plan are being considered by the Commission, then “business” is being conducted and the Commission’s meeting must be open.  On October 27th, 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.  This is particularly true where one express purpose for conducting open meetings is to “inform[ ] the public about the redistricting process.”  Const 1963, art 4, § 6(8). Informing the public of the legal parameters, and providing the historical context, that should be considered in developing, drafting, and adopting the redistricting plans, is consistent with this purpose.   

That said, the question becomes whether the fact that the information was provided to the Commission by counsel in the form of legal memoranda makes a difference.  In other words, was a closed session justified by the applicability of the attorney-client privilege? 

 

 

The Attorney-Client Privilege

The attorney-client privilege has been described as “the oldest of the privileges for confidential communications known to the common law.”  Upjohn Co v United States, 449 US 383, 389 (1981).  The privilege’s “purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”  Id.  In Michigan, “the attorney-client privilege attaches to direct communication between a client and [their] attorney,” and its scope is “narrow, attaching only to confidential communications by the client to [their] advisor that are made for the purpose of obtaining legal advice.”  Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 618–619 (1998). 

Because this privilege has its source in the common law, the Michigan Constitution sets forth the treatment it should receive for matters involving the Commission.  Specifically, article 3, § 7 provides that, “[t]he common law . . ., not repugnant to this constitution, shall remain in force until [it] expire[s] by [its] own limitations, or [is] changed, amended or repealed.”  In interpreting a similar predecessor provision in the 1835 Constitution, the Supreme Court explained that to the extent “the constitution and the government established by it . . . are inconsistent with, or repugnant to the common law, they supersede it.”  Stout v Keyes, 2 Doug 184, 189 (1845).  Thus, in light of article 3, § 7, the attorney-client privilege could apply to communications between the Commission and its counsel so long as application of the common law privilege would not be “repugnant” to the Constitution.

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. 

As to written communications, the plain language of article 4, § 6 suggests that the attorney-client privilege is much narrower in scope as applied to the Commission.  For example, § 6(9) provides that, “[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.”  (Emphasis added).  Notably, § 6(9)’s mandate to publish “any data and supporting materials used to develop the [redistricting] plans” does not appear to contain any limitation on publication of the materials used to develop the plan (whether by privilege or otherwise). 

To the contrary, § 6(9)’s publication requirement is broad and suggests that the Commission must publish “all data” and “all supporting materials” to the extent it relied on those data and materials in developing the plans.  See, e.g., Definition of Any by Merriam-Webster (noting that “any” can mean “all” and be “used to indicate a maximum or whole”).[5]  Thus, should a legal memorandum from counsel be considered in developing, drafting, and adopting the redistricting plans, § 6(9)’s broad publication requirement forecloses treating it as confidential.  Accordingly, it would be “repugnant” to the Constitution to go into a closed session to discuss a memorandum that is not confidential and must ultimately be published.[6]

This 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.

 

 

 

 

Conclusion

It is my opinion, therefore, that, presuming 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, then the memoranda must be disclosed under Const 1963, art 4, § 6(9) and the discussion should have been held at an open meeting.