6th Circle Michigan may limit access to court records

By Katie Buhler | August 18, 2022, 5:55 p.m. EDT

A Sixth Circuit panel on Thursday allowed a Michigan state court administrative rule to stand that allows individual courts to decide whether to provide public access to audio and video recordings of proceedings after finding that the rule does not violate the First Amendment.

The three-judge panel ruled in a unpublished review that three Michigan residents who challenged the rule as unconstitutional failed to provide a historical record showing that access to those recordings was the norm, a requirement under the Supreme Court’s “experience and logic” test of the United States to determine whether the First Amendment right of access doctrine applies.

The rule at issue requires Michigan state courts to provide access to case records, which include records, schedules and transcripts of proceedings, but leaves local courts to decide whether they will allow the public to access audio and video recordings of court proceedings. , according to Thursday’s notice.

“The upshot of all of this is that while local courts must provide access to transcripts, they can individually decide to let litigants access audio and video recordings of proceedings,” U.S. Circuit Judge Karen Nelson Moore wrote for the panel. .

Three residents — Kolu Stevens and Patrick and Claudette Greenhoe — challenged the rule in 2018 in Michigan federal court after losing appeals of unfavorable family and probate court rulings, respectively, according to Thursday’s notice. The Greenhoes initially challenged the rule in state court, but had their case dismissed for lack of subject matter jurisdiction.

All three claimed the transcripts provided by Michigan on appeal contained “substantial errors and inaccuracies” and requested audio recordings of the proceedings. State court officials in Bay and Antrim counties, however, denied the requests, citing local administrative orders prohibiting public access to audio and video recordings of court events.

A review of the Greenhoes’ transcript revealed three typographical errors, according to the opinion.

U.S. District Judge Paul Lewis Maloney sided with state court officials in November 2021 and dismissed the constitutional challenge. Although he found the residents had made a plausible First Amendment claim, Judge Maloney found there was no compelling reason to grant the courts access to the audio and video recording. of state, as there was no tradition of such access.

The Sixth Circuit panel upheld the ruling on Thursday, finding that Stevens and the Greenhoes had only argued that Michigan state courts were required to make audio and video recordings accessible because US courts were traditionally open to the public. .

General arguments like those presented in this case do not support the residents’ arguments, the panel said. Arguments also fall flat in cases where the court is otherwise open to the public.

“We found no cases establishing the historical availability of audio recordings of court proceedings when a party can attend a trial, receive a transcript, and request the right to record the proceedings themselves,” Judge Moore said. , alluding to what the Michigan State Court decides. allow the public to do.

Philip Ellison of Outside Legal Counsel PLC, representing the three residents, told Law360 on Thursday that he was disappointed with the panel’s decision and was considering possible next steps.

“The notice is being carefully considered and evaluated to guide our next steps on an important constitutional challenge aimed specifically at instilling needed transparency in state courts in Michigan and beyond,” he said.

Representatives for Michigan court officials did not immediately respond to requests for comment.

Senior U.S. Circuit Judge Danny J. Boggs and U.S. Circuit Judges Karen Nelson Moore and Richard Allen Griffith served on the Sixth Circuit panel for that case.

Stevens and the Greenhoes are represented by Philip Lee Ellison of Outside Legal Counsel PLC.

State court officials are collectively represented by Bryan William Beach of the Michigan Attorney General’s Office and Douglas J. Curlew and Gregory R. Grant of Cummings McClorey Davis & Acho PLC.

The case is Stevens et al. v. Michigan State Court Administrative Office et al., Case Number 21-1727, before the United States Court of Appeals for the Sixth Circuit.

–Edited by Peter Rozovsky.

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