Michigan Redistricting Commission could sue legislature over legal defense funds

Members of Independent Citizens Redistricting Commission moved to compel Michigan’s legislature to paying its legal bills as court cases against the group will continue well into 2023 – a move which could see commissioners suing both the House and Senate in the process.

During the ICRC’s most recent meeting on Thursday, Oct. 27, members of the body unanimously voted to grant its executive director and the group’s legal team the ability to compel the legislature to appropriate the necessary funds to help fight ongoing lawsuits the ICRC faces.

This comes as the commission faces receiving no funding from the legislature for the 2022-23 fiscal year, as detailed by ICRC Executive Director Edward Woods III, who at one point during the meeting said it was crucial the body has “the ability to defend our maps.”

Throughout the course of the late-October meeting, commissioners spoke at length of their ongoing budgetary woes as litigation to defend the currently adopted maps continues. Given there could be no funding for the 2022-23 budgetary year, the commission does run the risk of running out of money altogether without compelling the legislature to step in.

Nate Fink, local counsel to the commission and partner at the law firm Fink Bressack, noted that the ICRC does have some outstanding legal cases in the form of Banerian v. Benson (which is currently before the U.S. Supreme Court) and Agee v. Benson.

Woods, in a breakdown of the commission’s ongoing budget process, said that because the ICRC is part of the legislative branch – and not the executive branch – it does not have a schedule for reporting to subcommittees or proposing a budget.

It’s because of this that the ICRC relies on the legislature to “appropriate funds sufficient to compensate the commissioners and to enable the commission to carry out its functions, operations and activities,” as detailed in the Michigan Constitution.

Within six months after the conclusion of each fiscal year, any money not spent during that time must be returned to the state treasury.

RELATED: Michigan Supreme Court denies challenge to Michigan redistricting commission’s House map

Should any of this not happen, Woods said the state was responsible for indemnifying commissioners for costs incurred should the legislature not appropriate sufficient funds to cover any of those costs.

He also added that the Constitution gave the ICRC the legal standing “to prosecute an action regarding the adequacy of resources provided for the operation of the commission” and that the legislature was equally compelled by law to fund the commission in defending “any action regarding an adopted plan.”

Woods said the ICRC has sent three letters – the first being on Aug. 18, followed by ones on Oct. 4 and Oct. 13 – to the House and Senate appropriations committees regarding this topic, though has only received a single response on Oct. 12.

That legislative response took issue with the fact the ICRC still had roughly $1.7 million in outstanding funds which were appropriated for the 2022 fiscal year. Yet given the constitutional requirement that unexpended funds must be returned to the state treasury six months after the conclusion of the fiscal year, Woods said those funds would not suffice for use in these court cases.

“Here, one of the concerns is, we had a proposal that passed by more than 60%. The voter intent was clear, but yet we did not have our boilerplate language – which is in the constitution – followed by the legislature as it relates to giving us funds for fiscal year ‘23,” Woods said. “We are in operations because we do have two pending lawsuits … Our concern is the constitutional requirements are being ignored.”

Following the vote Commissioner Steve Lett, a retired attorney who also serves as the group’s liaison to the ICRC’s legal team, emphasized that while Woods was right to continue calling the group’s budget as being required under boilerplate language, “it’s also true that it’s a constitutional mandate.”

“It’s not just pure boilerplate language that a lawyer would just throw in somewhere,” he said. “The language regarding the budget and the amount of funds that are to be received obviously was put in by the drafters of the constitutional amendment because they could see, looking down the road, that if the legislature didn’t like what we were doing – or what we did – they could try and choke us … by cutting off the funding.”

“If nothing occurs, then the discussion is to file an appropriate action to request the court to order the legislature to follow the constitution.”

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