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Michigan

Open Courts Compendium

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Author

Brian Wassom
Benjamin Nimphie
Warner Norcross & Judd LLP
45000 River Ridge Dr., Suite 300
Clinton Township, MI 48038
248.784.5199

Herschel Fink
Jaffe Raitt Heuer & Weiss, P.C.
Grand Park Centre Building
28 W. Adams Ave., Suite 1500
Detroit, MI 48226
313.800.6500

Last updated Nov. 21, 2019

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

Michigan common law has long recognized a right of access to both judicial records and proceedings in criminal and civil trials. In re Midland Pub. Co., Inc., 362 N.W.2d 580, 586 (Mich. 1984); People v. Atkins, 444 Mich. 737 (1994); People v. Micalizzi, 194 N.W. 540 (Mich. 1923). Since the right of access in Michigan is derived from common law and statute and is not a constitutional right in the civil context, the legislature may restrict the public’s right of access in civil cases. In re Midland, 362 N.W.2d at 586. Much of the common law regarding access to public records has been replaced by the Michigan Freedom of Information Act, but notably, the judiciary is exempt from compliance. M.C.L. 15.232 (excluding the judiciary from the definition of “public body”).

Courts in Michigan protect the right to a public trial vigorously whenever a violation has been shown. People v. Williams, 3 Mich. App. 272, 274 (1966) (citing People v. Murray, 89 Mich. 276 (1891)). Closure of court documents to the public requires, at a minimum, a hearing to “explore the constitutional and statutory validity of any proffered justifications for noninspection and to determine whether any alternative and less restrictive mechanisms than complete suppression exist.” Capital Cities Broad. Corp. v. Tenth Dist. Judge, 91 Mich. App. 655, 657 (1979) (citing Detroit Free Press v. Macomb Circuit Judge, 405 Mich. 544, 275 N.W.2d 482 (1979)).

The Michigan Constitution specifically recognizes a right to a public trial in a criminal context. People v. Vaughn, 821 N.W.2d 288 (Mich. 2012); Mich. Const. art 1 §20. However, the Michigan Supreme Court has stated that the constitutional guarantee of a public trial for criminal defendants does not necessarily confer a right of access to the trial to the public. In re Midland Publ’g Co., Inc., 362 N.W.2d 580 n 22 (Mich. 1984). Although public access to civil trials is not mentioned in the Michigan Constitution, the state recognizes a broad statutory right for the public to attend both criminal and civil proceedings, subject to very limited restrictions. M.C.L. 600.1420. Michigan Court Rules also presume that all proceedings are open to the public, subject to certain carve-outs. M.C.R. 8.116(D).

The presumption of access is broad in Michigan, and both court rules and statutes presume that all proceedings and records are public unless otherwise closed by a separate statute or rule. M.C.L. 600.1420; M.C.R. 8.116(D). All records are presumed public unless specifically closed by other court rule or statute. M.C.R. 6.007. In the rare cases where proceedings are closed, and such closure is challenged, Michigan courts use the Supreme Court’s Press Enterprise II test to determine if a First Amendment violation has occurred. See Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993) (quoting Press-Enterprise co. v. Superior Court, 478 U.S. 1, 13 (1986)). The Press Enterprise II test considers first, whether the place and process in question has historically been open to the press and general public, and second, whether public access plays a significant positive role in the functioning of the particular process in question. Id.

Federal courts in Michigan have also recognized a First Amendment right of public access to the court system and have observed that the right protects physically attending court proceedings and provides that access to courts will be “adequate, effective and meaningful.” Flagg v. City of Detroit, 447 F.Supp. 2d 824, 829 (E.D. Mich. 2006) (citing Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997)).

Michigan courts provide a journalist’s handbook that is available for free as a PDF, which outlines many of Michigan’s courts’ procedures and policies relating to the press and public access. The most recent version was updated in 2014 and can be found here.

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B. Overcoming a presumption of openness

To overcome the presumption of openness to proceedings, Michigan courts apply the balancing test outlined in Detroit Free Press, Inc. v. Macomb Circuit Judge, weighing the constitutional implications of closure and whether less restrictive means exist. Detroit Free Press, Inc. v. Macomb Circuit Judge, 405 Mich. 544, 275 N.W.2d 482 (1979). In criminal contexts, Michigan courts have held that, pursuant to the Sixth Amendment, trial courts must make specific findings to determine whether a closure is proper. People v. Bell, No. 342753, 2019 WL 4732615 (Mich. App. Sept. 26, 2019) (citing Waller v. Georgia, 467 U.S. 39, 45 (1984)). Partial closures only require courts to give a substantial reason (rather than a compelling one) for the closure, but the closure must be narrowly tailored to the extent necessary to satisfy its purpose. People v. Kline, 197 Mich. App. 165 (1992).

Courts in Michigan have statutory discretion to close court proceedings to minors if a case involves “scandal or immorality.” M.C.L. 600.1420.

Michigan Court Rules and statutes govern the closure of records. Court records are generally presumed open in Michigan, but certain records may be sealed by statute or court order. M.C.R. 6.007.  Unless otherwise provided by statute, in order to seal a record in Michigan, a party must (1) file a written motion that identifies the specific interest to be protected, (2) the court must make a finding of good cause, in writing or on the record, which specifies the grounds for the order, and (3) there must be no less restrictive means to adequately and effectively protect the specific interest asserted. M.C.R. 8.119(I); see also Thomas M. Cooley Law School v. Doe 1, 833 N.W.2d 331, 341 (Mich. App. 2013). In determining whether good cause has been shown, the courts consider both the interests of the parties and the interest of the public. M.C.R. 8.119(I)(2). Before closing public documents, a court is required to hold a hearing, open to interested parties, in order to determine the constitutionality of such closure. See Capital Cities Broad. Corp. v. Tenth Dist. Judge, 91 Mich. Ap. 655, 657 (1979).

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C. Procedural prerequisites to closure

Proceedings:

In criminal cases, Michigan courts follow the Supreme Court test outlined in Waller v. Georgia to determine whether a proceeding can be fully or partially closed. See People v. Bell, No. 342753, 2019 WL 4732615 (Mich. App. Sept. 26, 2019). In order to close a proceeding, the party seeking to close the hearing must (1) advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure. Id. (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). If a partial closure is sought, “only a substantial, rather than a compelling, reason for closure is necessary.” People v. Gibbs, 299 Mich. App. 473, 481 (2013); People v. Kline, 197 Mich. App. 165, 170 (1992).

Courts are permitted to partially close courtroom proceedings pursuant to M.C.L. 600.2163a upon motion of a party if the court determines that special arrangements are necessary to protect the welfare of a juvenile or developmentally disabled witness. People v. Shorter, 324 Mich. App. 529, 538 (2018). All non-necessary persons may be excluded during that witness’s testimony. However, a transcript of the witness’s testimony must be made available. M.C.L. 600.2163a(17)(a).

Records:

Michigan Court Rules and statutes govern the closure of records. Unless otherwise provided by statute, in order to seal a record in Michigan, a party must (1) file a written motion that identifies the specific interest to be protected, (2) the court must make a finding of good cause, in writing or on the record, which specifies the grounds for the order, and (3) there must be no less restrictive means to adequately and effectively protect the specific interest asserted. M.C.R. 8.119(I); see also Thomas M. Cooley Law School v. Doe 1, 833 N.W.2d 331, 341 (Mich. Ct. App. 2013). In determining whether good cause has been shown, the courts consider both the interests of the parties and the interest of the public. M.C.R. 8.119(I)(2).

The Michigan court system provides a chart which shows the particular records that are completely sealed by statute and those records that are partially sealed. The chart can be found here.

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

The media has standing to challenge gag orders and other court closures. People v. Sledge, 312 Mich. App. 516, 527-28 (2015) (citing CBS, Inc. v. Young, 522 F.2d 234, 237-238 (6th Cir. 1975)). The Michigan Supreme Court has made clear that “the press has no greater right of access to public records than does the public generally.” In re Midland Publ’g Co., Inc. v. Dist. Court Judge, 362 N.W.2d 580 n.7 (Mich. 1984).

Additionally, Michigan Court Rule 8.116(D)(2) allows any person to file a motion to set aside an order limiting access to a court proceeding and further provides that the moving party may appeal a denial of such a motion “in the same manner as a party to the action.”

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B. Procedure for requesting access in criminal cases

Access to Courts:

All Michigan court proceedings, with the exception of cases involving national security, are made open to the public by statute. M.C.L. 600.1420. However, a court may exclude from the courtroom other witnesses in the case when they are not testifying if there is good cause. People v. Belcher, No. 266281, 2007 WL 1345868 (Mich. Ct. App. 2007); Id. It is within the trial court’s discretion to exclude witnesses for good cause shown. People v. Jehnsen, 183 Mich. App. 305 (1990).

If a criminal case is closed, M.C.R. 8.116(D)(2) and M.C.R. 8.119(I)(6) permit any person to file a motion to re-open a proceeding. If the motion to re-open the proceeding is denied, it may be appealed in the same manner as any party to the action would appeal. M.C.R. 8.116(D)(2).

Access to Records:

While case records are public records, unless otherwise designated by statute, court rule, case law, or court order, court records are not subject to FOIA requests in Michigan. M.C.R. 8.119(D); M.C.L. 15.232(h)(iv). Most criminal records are made available by the Michigan State Police via the Internet Criminal History Access Tool (ICHAT), which is accessible by the public. M.C.L. 28.243. Any member of the public can do a criminal records search on the ICHAT website, available here.

In determining whether a particular record in connection with a judicial proceeding is accessible, Michigan courts use the Press-Enterprise II test, and look to whether closure of a record or document is essential to preserve higher values and whether closure is narrowly tailored to serve that interest. Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986)).

If a person is denied access to a court record, he or she may file a motion objecting to the judge’s decision to seal a record. M.C.R. 8.119(F).

Michigan courts have created a chart that describes what records are non-public and who may access non-public records. The chart also provides the statutory authority for denying access to particular records. The chart can be accessed here by clicking on the “Michigan Access Security Matrix and Chart of Nonpublic and Limited-Access Records” link.

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C. Procedure for requesting access in civil matters

Access to Courts:

The procedure for accessing civil courts is the same as criminal courts, and all court proceedings are made open to the public by statute. M.C.L. 600.1420. Pursuant to Michigan Court Rule 8.116(D), if a court session is closed, any person may challenge the order limiting access to the proceeding. If the court denies the motion or objection to the closure, the moving party may appeal the decision in the same manner as a party to the action would. M.C.R. 8.116(D)(2).

Access to Records:

Most civil court records are accessible in Michigan, but there are exceptions. Generally, civil court records can be accessed in person at the courthouse where a proceeding took place. Courts often provide access to public records through the court website. M.C.R. 8.119(H). Courts may provide access to any case record not available digitally, but if a court does not have the means to readily access materials, those records “may be made available for public inspection using court equipment only.” M.C.R. 8.119(H).

The same chart available for criminal records also displays civil and other court records that are not publicly accessible. The chart can be found here by clicking on the “Michigan Access Security Matrix and Chart of Nonpublic and Limited-Access Records” link.

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D. Obtaining review of initial court decisions

If a proceeding is closed, M.C.R. 8.116(D)(2) and M.C.R. 8.119(I)(6) permit any person to file a motion to re-open a proceeding. If the motion to re-open the proceeding is denied, it may be appealed in the same manner as any party to the action would appeal. M.C.R. 8.116(D)(2).

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III. Access to criminal proceedings

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A. In general

Michigan courts recognize a common law right of access to criminal proceedings. Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993). However, the right is not absolute, and Michigan courts follow the two-step analysis outlined by the Supreme Court in Press-Enterprise Co. v. Superior Court to determine whether to close proceedings. The test looks first at whether the “place and process at issue have historically been open to the press and general public,” and second to “whether public access plays a significant positive role in the functioning of the particular process in question.” Detroit News, 509 N.W.2d at 896 (quoting Press Enterprise Co. v. Superior Court, 478 U.S. 1, 13, 106 S.Ct. 2735, 2742 (1986)).  If both questions are answered “yes,” then the right of access applies to the proceeding in question, and that proceeding may not be closed unless “closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise, 478 U.S. at 13-14.

Michigan courts have also analyzed closure of criminal trials using the Supreme Court’s similar test outlined in Waller v. Georgia, where the Court required a showing of the following four factors to determine if a total closure of a proceeding was justified: (1) the party seeking closure must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure. See People v. Kline, 197 Mich. App. 165, 169 (2012); see also People v. Bell, No. 342753, 2019 WL 4732615 (Mich. Ct. App. Sept. 26, 2019).

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B. Pretrial proceedings

Michigan courts may close preliminary examinations pursuant to M.C.L. Section 766.9 to protect a victim or witness, or to protect a defendant’s right to fair trial, without violating the First Amendment. See Michigan v. Jones, 505 N.W.2d 24 (Mich. Ct. App. 1993). Judges have discretion to close a preliminary examination to the public, and this decision is subject to reversal only upon a showing of an abuse of discretion. People v. Garth, No. 341304, 2019 WL 4389032 (Mich. Ct. App. Sept. 12, 2019) (quoting In re Closure of Preliminary Examination, 200 Mich. App. 566, 569 (1993)).

Notably, the Michigan Court of Appeals has recently stated that the First Amendment right of access may extend to preliminary examinations. See People v. Edwards, Nos. 318000, 318025, 2015 WL 1069275 (Mich. Ct. App. Mar. 10, 2015).

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C. Criminal trials

Criminal trials in Michigan are presumed open to the public and press under statutory and First Amendment principles, including any integral part of the trial, such as jury views of crime scenes. See, e.g., People v. Unger, 35 Media L. Rep. 1084 (Mich. Cir. Ct. 2006); Michigan v. King, 20 Media L. Rep. 2208 (Mich. Cir. Ct. 1993). Closure requires a hearing that weighs constitutional rights, privacy, and alternative means of protection. See Detroit Free Press, Inc. v. McComb Circuit Judge, 405 Mich. 544, 275 N.W.2d 482 (1979). Courts have statutory discretion to close court proceedings to minors if a case involves “scandal or immorality.” M.C.L. 600.1420.

Michigan Rules of Evidence permit courts to implement procedures to protect witnesses from harassment or embarrassment, and may partially close a proceeding pursuant to MRE 611(a)(3) for this purpose. The Michigan Court of Appeals has upheld a partial closure where a witness testified about intimate matters before a defendant’s family and friends. People v. Veach, No. 343394, 2019 WL 5198931 (Mich. Ct. App. Oct. 15, 2019). Pursuant to Michigan Court Rules, judges may not close a courtroom to the public without specifically stating the reasons for the closure or entering a written order. In re Morrow, 496 Mich. 291, 295 (2014).

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D. Post-trial proceedings

Neither the Michigan Supreme Court nor the Michigan Court of Appeals has directly addressed whether the First Amendment right of access attaches to post-trial proceedings. However, Michigan has applied the two-part test developed in Press-Enterprise Co. v. Superior Court (looking at whether there is an overriding interest to preserve higher values and whether the closure is narrowly tailored to serve that interest) to determine whether the right of access applies to a specific proceeding. See Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993).

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E. Appellate proceedings

Michigan case law does not address media or public access to appellate proceedings directly. However, the statutory presumption under M.C.L. 600.1420 is that all courts within the state shall be public, subject to very limited exceptions. Michigan Supreme Court oral arguments are available via live and archived webcast, and can be found here.

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IV. Access to criminal court records

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A. In general

Court records are generally public under Michigan Court Rules. M.C.R. 8.119(D); M.C.R. 8.119(H). Public records include log notes, court recordings, jury seating charts, tapes and other media used to record proceedings. M.C.R. 8.119(F).

Despite the presumption of openness, not all criminal records are accessible to the public. Both court rules and Michigan law exempt certain categories of records from public access such as protective orders, orders to set aside convictions, names and details of victims of criminal sexual assault, and several other categories. M.C.R. 6.201(E); M.C.L. 780.621; M.C.L. 780.623; M.C.R. 8.119(D); M.C.L. 750.520k.

A judge may order that court records be sealed under certain circumstances. In order to seal a record, in whole or in part, (1) a party must file a written motion that identifies the specific interest to be protected, (2) the court must make a finding of good cause, in writing or on the record, which specifies the grounds for the order, and (3) there must be no less restrictive means to adequately protect the specific interest asserted. M.C.R. 8.119(I).

In determining whether a particular record in connection with a judicial proceeding is accessible, Michigan courts use the Press-Enterprise II test, and look to whether closure is essential to preserve higher values and whether closure is narrowly tailored to serve that interest. Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986)).

For juveniles, once a record is sealed and made confidential, only persons who are found by the court to have a legitimate interest may be allowed to access the confidential files. M.C.R. 3.925(D)(2). In determining whether a person has a legitimate interest, courts consider the nature of the proceedings, the welfare and safety of the public, the interest of the minor, and any restriction imposed by state or federal law. See People v. Litteral, No. 261330, WL 3332920 at n 27 (Mich. Ct. App. Nov. 16, 2006).

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B. Arrest records

Arrest records resulting in a conviction are generally accessible by the public in Michigan. Arrests not resulting in a conviction are generally required to be destroyed and are not accessible to the public, and Michigan courts recognize defendants’ ability to file a motion for the return or destruction of his or her arrest record. People v. Guthrie, 317 Mich. App. 381, 388 (2016); M.C.L. 28.243(8). However, an exception exists for persons arraigned for certain sex crimes, indecency, or persons with prior serious convictions. M.C.L. 28.243(14). Law enforcement agencies may refuse to release the arrest record of a person arrested without a warrant and not charged with a crime. Petersen v. Charter Twp. of Shelby, No. 336301, 2018 WL 2024578 (Mich. Ct. App. May 1, 2018) (citing OAG, 1979-1980 No. 5500, p. 282 (July 23, 1979)).

Defendants who enter pleas of “no contest” are not entitled to have their arrest records and fingerprints destroyed, and those records are public. People v. Benjamin, 283 Mich. App. 526, 528 (2009) (citing McElroy v. Mich. State Policy Criminal Justice Info. Ctr., 274 Mich. App. 32 (2007)).

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C. Dockets

Courts may seal a docket during the course of proceedings, but only if there is “good cause.” M.C.R. 8.119(I)(2). Courts balance the interests of the public with the interests of the parties when determining what constitutes good cause. Id. Once a case is complete, a register of actions replaces a docket. M.C.R. 8.119(D)(3)(b). Registers of actions are considered “case records,” which are publicly accessible. Doe v. Boyle, 312 Mich. App. 333, 351 (2015); M.C.R. 8.119(D)(1).

Pending cases may be searched by docket number or by party name on the Michigan Courts website, available by clicking the link here.

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The public right of access extends to court records such as search warrants. See Capital Cities Broad. Corp. v. Tenth Dist. Judge, 91 Mich. App. 655, 283 N.W.2d 779 (Mich. Ct. App. 1979).

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E. Discovery materials

Public access to records of pending litigation can be denied until a final determination of an action is reached. Booth Newspapers, Inc. v. Midland Circuit Judge, 145 Mich. App. 396, 12 Media L. Rep. 1519 (1985). The media does not have the absolute right of access to a court file while litigation is pending. Id. The public has no right to access records until after a trial has commenced in open court. Id.; Schmedding v. Wayne Cty. Clerk, 85 Mich. 1, 48 (1891).

The District Court for the Eastern District of Michigan has noted that Michigan courts have more restrictive rules regarding public access to pretrial discovery materials than do federal courts. In re Consumers Power Co. Sec. Litig., 109 F.R.D. 45, 49-50 (E.D. Mich. 1985).

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F. Pretrial motions and records

Neither the Michigan Supreme Court nor the Michigan Court of Appeals has directly addressed whether the First Amendment right of access attaches to pretrial motions and records. However, Michigan has applied the two-part test developed in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986) (looking at whether there is an overriding interest to preserve higher values and whether the closure is narrowly tailored to serve that interest) to determine whether the right of access applies to a specific proceeding. See Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993). Pursuant to M.C.L. 600.1420, the “sittings of every court” in Michigan are public, it seems likely that most pretrial motions would be open, subject to the Press-Enterprise test.

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G. Trial records

In Michigan, the public has access to trial records, including court recordings, log notes, jury seating charts, and other media. M.C.R. 8.119(F). Court clerks are required to maintain a case history (known in Michigan as a “register of actions”) which is accessible to the public. Doe v. Boyle, 312 Mich. App. 333, 351 (2015); M.C.R. 8.119(D)(1). Administrative and fiscal records, or materials not on the record are not subject to public access. M.C.R. 8.119(G).

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H. Post-trial records

At the conclusion of proceedings, courthouse records become public records, and they are not withheld from the public unless good cause is shown. Booth Newspapers, Inc. v. Midland Circuit Judge, 145 Mich. App. 396, 403 (1985). Michigan Court Rules have codified this court’s ruling in M.C.R. 8.119(I)(2). Courts balance the interests of the public with the interests of the parties when determining what constitutes good cause. Id.

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I. Appellate records

Research revealed no specific case law relating to appellate records.

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J. Other criminal court records issues

Generally, criminal case files relating to juvenile criminal records are public unless the file is considered a confidential file. M.C.R. 3.925(D)(2). Confidential files include diversion records of a minor, testimony taken during a closed proceeding, biometric data, reports of sexually motivated crimes, among other things. M.C.R. 3.903(3). However, confidential records can be obtained if a party shows a legitimate interest. People v. Wells, No. 254766, 2005 WL 2675177 (Mich. Ct. App. Oct. 20, 2005). A legitimate interest may be shown if a party wants to review his or her own file to determine if rights were violated during waiver proceedings if the party cannot remember the details of the proceedings due to illness. In re F.G., 264 Mich. App. 413, 420 (2004).

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V. Access to civil proceedings

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A. In general

Civil court proceedings are generally governed by the same access rules as criminal proceedings in Michigan; all courts are presumed open to the public. See M.C.L. 600.1420. Civil proceedings are presumed to be open to the public. M.C.R. 8.116(D). Michigan courts have held that in civil cases, “the policy of the law requires that all proceedings of the court should be open and notorious,” and have held that conducting a “considerable portion” of a trial in chambers should be limited to unusual circumstances. Bauman v. Grand Trunk Western R.R., 363 Mich. 604, 610-11 (1961) (quoting 53 Am. Jur. Trial § 36, p. 51). While Michigan courts have not expressly ruled on whether and to what extent civil trials are open to the same degree as criminal trials, the Michigan Supreme Court has noted that “the public’s right of access at common law extended to both civil and criminal trials.” In re Midland Publ’g Co., Inc., 362 N.W.2d 580 n 22 (Mich. 1984).

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B. Pre-trial proceedings

Michigan courts have not directly addressed whether the public’s right of access extends to pre-trial civil proceedings.

However, the public has no recognized right to pre-trial discovery materials, and public access to records of pending litigation can be denied until a final determination of an action is reached. Booth Newspapers, Inc. v. Midland Circuit Judge, 145 Mich. App. 396, 12 Media L. Rep. 1519 (1985). The media does not have the absolute right of access to a court file while litigation is pending. Id. The public has no right to access records until after a trial has commenced in open court. Id.; Schmedding v. Wayne Cty. Clerk, 85 Mich. 1, 48 (1891).

The District Court for the Eastern District of Michigan has noted that Michigan courts have more restrictive rules regarding public access to pretrial discovery materials than do federal courts. In re Consumers Power Co. Sec. Litig., 109 F.R.D. 45, 49-50 (E.D. Mich. 1985).

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C. Trials

Trials are presumed open to the public pursuant to M.C.L. 600.1420. Courts do, however, have some discretion in closing proceedings. Michigan Court Rules state that courts may not limit access by the public to a court proceeding unless a (1) a party files a written motion that identifies the specific interest to be protected, or the court identifies a specific interest to be protected and the interest outweighs the right of access, (2) denial of access is narrowly tailored to accommodate the interest to be protected, and there is no less restrictive means to adequately and effectively protect the interest, and (3) the court states on the record specific reasons for the limitation of access. M.C.R. 8.116(D).

Michigan courts have not expressly ruled on whether and to what extent civil trials are open to the public, but the Michigan Supreme Court has noted that “the public’s right of access at common law extended to both civil and criminal trials.” In re Midland Publ’g Co., Inc., 362 N.W.2d 580 n 22 (Mich. 1984). The Sixth Circuit has recognized the public’s right to attend civil trials, and has acknowledged that, both civil and criminal trials have been historically open. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983).

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D. Post-trial proceedings

Michigan courts have not directly addressed whether the public’s right of access extends to post-trial civil proceedings. However, it seems likely that Michigan courts would apply the Press-Enterprise II test to determine whether a specific civil proceeding is presumed constitutionally open to the public, as nothing in Michigan case law suggests post-trial civil proceedings would not be subject to the same standards as criminal proceedings. See, e.g., Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993).

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E. Appellate proceedings

Michigan courts have not addressed appellate proceedings specifically. However, the Michigan Court of Appeals and the Michigan Supreme Court are subject to M.C.L. 600.1420, which presumes all Michigan courts are open.

Michigan Supreme Court oral arguments are made available via live webcast and archived video, and can be found here.

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VI. Access to civil records

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A. In general

Michigan has long upheld the public’s common law right to access court records. In re Buchanan, 152 Mich. App. 706, 711 (1986). Michigan courts have also noted that, because access to court records is a common law right, the legislature may restrict the public’s access to records. In re Midland Publ’g Co., Inc., 362 N.W.2d 580, 586 (Mich. 1984).

The Michigan Freedom of Information Act does not apply to the judicial branch. However, civil court records are generally publicly available unless otherwise sealed by court order or statute. Court orders and opinions cannot be sealed at all, even opinions disposing of motions to seal a record. M.C.R. 8.119(I)(5).

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B. Dockets

Though not specifically covered in Michigan case law, filed complaints are matters of public record available for anyone to view. Sawabini v. Desenberg, 143 Mich. App. 373, 385, 372 N.W.2d 559 (1985). Courts may seal a docket during the course of proceedings, but only if there is “good cause.” M.C.R. 8.119(I)(2). Courts balance the interests of the public with the interests of the parties when determining what constitutes good cause. Id.

Pending cases may be searched by docket number or by party name on the Michigan Courts website, available by clicking the link here.

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C. Discovery materials

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D. Pre-trial motions and records

While there may be a right to filed discovery materials after a trial has commenced, there is no right of access to unfiled discovery materials or filed materials before the start of trial. See Booth Newspapers, Inc. v. Midland Circuit Judge, 145 Mich. App. 396, 377 N.W.2d 868 (Mich. Ct. App. 1985), appeal denied, 425 Mich. 854 (Mich. 1986), cert. denied, 479 U.S. 1031 (1987).

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E. Trial records

Because Michigan recognizes a public right of access to civil trials, most trial records are available to the public. A party to an action has the ability to seal court records on a showing that other less restrictive means of protecting the party’s interest are not available, but a court must consider the public’s interest when determining whether good cause has been shown. Jenson v. Puste, 290 Mich. App. 338 (2010); M.C.R. 8.119(F)(1); M.C.R. 8.119(F)(2). However, courts may not ever seal court orders or judicial opinions, including orders to dispose of a motion to seal a record. Jenson, 290 Mich. App. at 345; M.C.R. 8.119(F)(5).

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F. Settlement records

The common law right of access extends to settlement documents that are filed with the court. This may be overcome by a “substantial showing” that privacy interests outweigh the right of access. See Osenroth v. Deere & Co., 2012 U.S. Dist. LEXIS 127507 (S.D. Mich. Sept. 7, 2012).

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G. Post-trial records

Michigan courts have not specifically ruled on whether the public has access to all post-trial records. However, when determining whether the public has a right to a particular record connected to a judicial proceeding, Michigan courts have used the Press Enterprise test, which looks first at whether the “place and process at issue have historically been open to the press and general public,” and second to “whether public access plays a significant positive role in the functioning of the particular process in question.” Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993) (quoting Press Enterprise Co. v. Superior Court, 478 U.S. 1, 13, 106 S.Ct. 2735, 2742 (1986)).

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H. Appellate records

Michigan courts have not specifically addressed whether appellate records are accessible to the public. However, pursuant to M.C.R. 8.119(F)(5), court orders and opinions from any court may never be sealed, and court records of all Michigan courts are open unless specifically closed by statute or court order. See M.C.R. 8.119(H).

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I. Other civil court records issues

Adoption proceedings and records are generally closed to the public, subject to very limited exceptions. M.C.L. 710.67. A court may open adoption records only upon good cause shown expressly permitting inspection. M.C.L. 710.67(1). Names of biological or adoptive parents of an adopted person are sealed unless ordered to be opened by a court. M.C.L. 710.67(2).

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VII. Jury and grand jury access

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A. Access to voir dire

Though voir dire in criminal prosecutions is presumed open, the defendant’s right to fair trial under the Fifth and Sixth Amendment may outweigh such First Amendment right of access; for example, in the prosecution of the terrorists connected with the 9-11 attacks. See United States v. Koubriti, 31 Media L. Rep. 1940 (E.D. Mich. 2003). Generally, though, any order closing voir dire proceedings to the public and press cannot be based simply upon the limitations and size of the courtroom; the court must accommodate the press and the closure must be based upon an overriding interest, the preservation of which makes closure essential. Mary M. Philo, Trial Handbook for Michigan Lawyers, Criminal Trials §7.11 (4th ed. 2019) (citing In re Closure of Jury Voir Dire, 204 Mich. App. 592 (1994)).

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B. Juror identities, questionnaires and other records

Michigan has recognized a qualified right to the names and addresses of jurors after the verdict. See People v. Mitchell, 27 Media L. Rep. 1481 (Mich. App. 1999).

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C. Grand jury proceedings and records

Grand jury proceedings are not considered to be part of the criminal trial process in Michigan and are thus closed to the public. M.C.L. 767.19f. It is a misdemeanor in Michigan to make any grand jury information public, including testimony, exhibits, or any proceeding. See Jarvis v. Cooper, No. 12-CB-11804, 2013 WL 1289272 (E.D. Mich. March 28, 2013).

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D. Interviewing jurors

The Michigan Court of Appeals has recognized that an order prohibiting contact with jurors immediately after trial was a reasonable time, place, and manner restriction that did not violate the First Amendment. See People v. Ackerman, 2001 WL 732062 (Mich. Ct. App. 2001).

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VIII. Proceedings involving minors

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A. Delinquency

Juvenile proceedings and preliminary hearings are presumed open to the public pursuant to M.C.R. 3.925, however, there are limited exceptions. A court may close a juvenile proceeding during the testimony of a child or during the testimony of the victim. M.C.R. 3.925(A)(2). Either the victim or a party may motion to close the proceeding. The court considers the nature of the proceedings and the witness’s or witness’s guardian’s preference when determining whether to close a proceeding. Id. Courts in Michigan may not close proceedings to the public if jurisdiction is requested by the prosecuting attorney in a juvenile criminal matter pursuant to M.C.L. 712A.2(a)(1).

Generally, case files maintained in accordance with Michigan’s Probate Code are required to be made public. M.C.L. 712A.1. However, some juvenile case files are confidential, and only persons found by the court to have legitimate interests may access confidential files. M.C.R. 3.903(A)(3); M.C.R. 3.925(D)(2). Confidential files include, but are not limited to, juvenile diversion records pursuant to M.C.L. 722.821, dispositional reports, and biometric data required to be maintained pursuant to M.C.L. 28.243. Courts consider state and federal law, safety of the minor, safety of the public, and the nature of the proceedings when determining whether to grant access to confidential files. M.C.R. 3.925(D)(2).

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B. Dependency

Juvenile dependency proceedings are presumed open to the public pursuant to M.C.R. 3.925(A), as that court rule does not distinguish between dependency and delinquency proceedings. Michigan Court Rules allow a party to a juvenile proceeding to file a motion to close the proceeding to the public, and the court considers the nature of the proceedings; the age, maturity, and preferences of the witness; and, if the witness is a child, his or her guardian’s preference. M.C.R. 3.925(A)(2).

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C. Other proceedings involving minors

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D. Prohibitions on photographing or identifying juveniles

Upon a petition being filed against a juvenile, biometric data and photographs of minors collected by the court are required to be placed in confidential files and are not open to the public. M.C.R. 3.923.

Other than the above restriction, juvenile proceedings are presumed open to the public; thus, unless closed by a court pursuant to M.C.R. 3.925(A)(2), photographs and identification by the media are permitted. However, judges have discretion to limit or exclude cameras from courtrooms to ensure fair administration of justice.  See Administrative Order of Michigan Supreme Court No. 1989-1.

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E. Minor testimony in non-juvenile courts

Michigan courts follow Supreme Court precedent in determining whether to close a proceeding when a juvenile is testifying. The courts look to whether there is an overriding interest to preserve higher values and whether the closure is narrowly tailored to serve that interest. People v. Kline, 197 Mich. App. 165, 169 (1992) (quoting Press Enterprise Co. v. Superior Court of Cal., Riverside Co., 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984)). However, in cases of a partial closure of a proceeding, a court need only provide a substantial, rather than compelling, reason to partially close a proceeding when a juvenile is testifying. See People v. Kline, 197 Mich. App. at 170. In order to ensure a partial closure is upheld, courts must note the reasons for the partial closure in the record. Id.

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

Judgments, actions, and all other judicial acts of tribal courts have the same effect and are subject to the same procedures as Michigan courts, provided the tribe has a reciprocal provision recognizing the same orders from Michigan courts. M.C.R. 2.615.

Regarding access, Michigan case law has not specifically addressed whether tribal courts are subject to the same access rules as Michigan courts, but it appears that the reciprocal rule stated above would apply.

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B. Probate

Probate courts in Michigan fall under the general presumption of openness of all Michigan courts pursuant to M.C.L. 600.1420. Research revealed no case law on point regarding probate proceedings specifically.

Probate records are presumed public unless otherwise indicated by court rules or statutes. M.C.R. 5.101.

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C. Competency and commitment proceedings

Research revealed no special rules for competency or commitment proceedings.

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D. Attorney and judicial discipline

Grievances filed against attorneys which resulted in discipline or public charges are publicly searchable and available at this link: http://www.adbmich.org/CHECKER.HTM. Records regarding investigations by the Attorney Grievance Commission that did not result in the Commission filing formal charges with the Attorney Discipline Board are not open to the public.

Regarding judicial discipline, investigations into judges are not accessible by the public unless a formal complaint is filed following the investigation. After a formal complaint is filed, subsequent pleadings and documents are public, and formal hearings are conducted in public forums pursuant to M.C.R. 9.261.

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

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B. Gag orders on the press

Gag orders suppressing the publication of the names of those in sexual conduct cases have been upheld. See, e.g., Midland Publ’g Co. v. Dist. Court Judge, 420 Mich. 148, 362 N.W. 2d 580 (Mich. 1984). In a criminal case, where the right to a public trial is at issue, a gag order may be justified if there is a “reasonable likelihood” that pretrial publicity will prejudice a fair trial. People v. Sledge, 312 Mich. App. 516, 536 (2015). A gag order is a prior restraint on speech and “cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment Freedoms.” Id. at 528-29 (quoting CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir. 1975)).

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C. Gag orders on participants

Gag orders are considered prior restraints and are presumptively unconstitutional in Michigan. The Michigan Court of Appeals has held that a gag order prohibiting all potential trial participants from making extrajudicial statements to the media was unconstitutionally overbroad. People v. Sledge, 879 N.W.2d 884 (Mich. App. 2015). Michigan courts follow the U.S. Supreme Court’s test in order to determine whether the right to a fair trial justifies a prior restraint, and the court must examine (1) the nature and extent of pretrial news coverage; (2) whether other measures would likely mitigate the effects of unrestrained pretrial publicity; and (3) how effectively a restraining order would operate to prevent the threatened danger. Id. (citing Nebraska Press Ass’n v. Stuart, 427 U.S. at 551, 96 S.Ct. 2791 (1976)).

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D. Interviewing judges

Research does not reveal any Michigan authority discussing parameters for interviews with judges. However, Michigan judges are bound by the Michigan Code of Judicial Conduct, and pursuant to Canon 3(A)(6), judges “shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

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B. Cameras and other technology in the courtroom

Michigan does not recognize a First Amendment right to record courtroom proceedings. However, Michigan courts permit cameras and recorders in all Michigan courtrooms for the purposes of media coverage. See Administrative Order of Michigan Supreme Court No. 1989-1. Judges are permitted to terminate or limit electronic media usage upon a finding that administration of justice requires such limitations. Id. Pursuant to M.C.R. 8.109, courts have no authority to ban a party’s use of a tape recorder, unless a court finds the recorder is being used to publicize the trial or the recording will disrupt the proceedings.

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C. Tips for covering courts in the jurisdiction

Michigan courts have a general website which can be found here. The website provides information about each level of the Michigan court system, and also has a live video feed where the public can view oral arguments.

A trial court directory and map of the state with contact information for local courts can be found here.

Michigan courts also provide a journalist’s handbook that is available for free as a PDF, which outlines many of Michigan courts’ procedures and policies relating to the press and public access. The most recent version was updated in 2014 and can be found here.

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