6th Circ. Says Michigan Can Limit Court Recordings Access

By Katie Buehler | August 18, 2022, 5:55 PM EDT ·

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

The three-judge panel ruled in an unpublished opinion that three Michigan residents who challenged the rule as unconstitutional failed to provide a historical record showing that access to such recordings was the norm, a requirement under the U.S. Supreme Court's "experience and logic" test to determine whether the First Amendment's right-to-access doctrine applies.

The rule at issue requires Michigan state courts to provide access to case records, which include case filings, calendars and transcripts of proceedings, but leaves it up to local courts to decide whether they will allow the public to access audio and video recordings of court procedures, according to Thursday's opinion.

"The upshot of all this is that although local courts must provide access to transcripts, they may individually decide whether 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 they lost appeals of unfavorable family and probate state court decisions, respectively, according to Thursday's opinion. The Greenhoes had originally challenged the rule in state court but saw their case dismissed for lack of subject-matter jurisdiction.

All three claimed the transcripts provided by Michigan on appeal had "substantial errors and misstatements" and requested audio recordings of the proceedings. State court officials in Bay and Antrim counties denied the requests, though, citing local administrative orders that prohibited public access to audio and video recordings of court events.

A review of the Greenhoes' transcript found three typographical errors, according to the opinion.

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

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

General arguments like the ones presented in this case do not support the residents' arguments, the panel said. The arguments also fall flat in cases where the court is open in other aspects to the public.

"We have found no case 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 Michigan state court rules allow the public to do.

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

"The opinion is being carefully studied and evaluated to guide our next steps on an important constitutional challenge specifically seeking to infuse needed transparency into the state courts throughout Michigan and beyond," he said.

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

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

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

The state court officials are represented collectively 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, in the U.S. Court of Appeal for the Sixth Circuit.

--Editing by Peter Rozovsky.

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