May 4 2016 12:12 AM

Dunnings’ replacement process may be conducted in secret

Just how open the process will be for picking an interim Ingham County prosecutor is up in the air.

On Monday, Chief Circuit Judge Janene Lawless said the names will not be released of the six individuals who have applied to replace Stuart Dunnings III when his resignation becomes effective July 2. A new prosecutor will be elected in November to take office Jan. 1. (see related story)

But by Tuesday, Lawless had a change of mind and said she would announce the six candidates this morning.

That does not mean, however, that the public will be able to observe the process.

Under Michigan law, Lawless and her six Circuit Court colleagues are charged with picking Dunnings’ temporary successor.

Lawless contended in an interview Tuesday the process need not be open because the judiciary branch in Michigan is exempt from both the Open Meetings and Freedom of Information acts.

However, Robin Luce-Hermann, an expert on First Amendment law in Michigan and attorney for the Michigan Press Association, said the courts’ exemptions do not apply in this case.

Luce-Hermann cited a 1984 Court of Appeals ruling as evidence the transparency laws apply. That ruling — Menominee County Taxpayers Alliance v. Menominee County Clerk — found that when a committee was convened in secret to appoint a new treasurer, it violated the Open Meetings Act.

“We agree that defendants in their collective capacity are not a ‘legislative body,’” a unanimous three-member Appeals Court panel wrote. “However, we disagree that they are not ‘a governing body.’ Under the statute creating them they are empowered, and in fact required, to perform a governmental function. What could be more obviously governmental than the appointment of a treasurer?”

Substitute “prosecutor” for “treasurer” and you see the issue.

Because this court ruling makes the body a public body, subject to the Open Meetings Act, Luce-Hermann said, she believes it is also subject to the Michigan Freedom of Information Act.

But Lawless was adamant that the decision could be made behind closed doors, citing a “prior” Supreme Court ruling.

“I have contacted the Supreme Court on that question,” she added.

Will the process be secret?

“I don’t know if I’d call it secret,” she said. “We are going to meet next week,” when the openness issue will be on the agenda, albeit in private.

As for public access to future meetings, she said:

“It might just depend on the views of the applicants.”