Cellphones are everywhere. Except Michigan courts. Is that an injustice?

Michigan Hall of Justice

Judges and county clerks say a proposal before the Michigan Supreme Court to allow cellphones inside courts would create chaos and compromise security. (Bridge photo by Riley Beggin)

LANSING –  As ubiquitous as smartphones have become, there’s still one frontier they haven’t conquered: courtrooms. 

The Michigan Supreme Court is considering whether to create a statewide rule to allow phones, laptops and other “portable electronic devices” in courthouses. The state’s 242 courts now set their own policies, and many ban the devices. Critics say those bans are not only an inconvenience, but add to costs to copy documents and create a barrier to justice for those who need phones to set up transportation or offer evidence in their own cases.

It’s a system Supreme Court Justice Richard Bernstein called “callous” and “incredibly insensitive.”

The proposal would allow phones and other devices inside the courts but would require them to be silenced and would prohibit photos, audio or video recordings without judges’ permission. 

“What we’re talking about today in allowing people to have their cellphones in the court are not matters of mere convenience. They’re matters of extreme importance,” said Angela Tripp, director of the Michigan Legal Help Program, which provides resources for those who represent themselves in civil actions.

“Increasing access to justice means change, uncomfortable change, and it always has. But it’s always been the right answer.”

She was among nine lawyers and activists testifying Wednesday before the state Supreme Court about the proposed rule, while 50 others submitted written testimony. Most supported the change, but many judges and county clerks argued the proposal, while well-intentioned, may create security problems. 

“Historically, courts have observed that cellphones have been used for inappropriate purposes” such as witness intimidation and “surreptitiously recorded testimony,” said Darlene O’Brien, a Washtenaw County probate judge and the president of the Michigan Probate Judges Association. 

“It would open the door to manipulation of legal documents for inappropriate purposes, compromising the integrity of the case and the security of those involved,” O’Brien said.

Other states have recently considered similar changes to cellphone bans, following a 2018 resolution by the Conference of Chief Justices and the Conference of State Court Administrators encouraging members to review policies. Massachusetts rolled back bans on cellphones in courts in May and Virginia’s Supreme Court directed its local courthouses to allow cellphones late last year.

On Wednesday, several speakers told the Michigan court that phone bans create hardships for those with low incomes or disabilities. 

One speaker recalled a woman who used a ridesharing app to get to court who had to stash her phone in the bushes. It was stolen and she relied on strangers’ help to get home. 

Attorneys said the phone ban also makes it difficult to keep in touch with clients facing hearings.

“Prohibiting entrance to the court with a cellphone in many ways comes from a position of privilege. Just leave it in the car, just leave it at home,” said Erin Keith, an attorney with the Detroit Justice Center, a nonprofit law group. “That infringes on litigants’ rights to participate in their own case. To put it plainly, my homeless clients simply don’t have a home to leave their device.”

Keith and others added that cellphones often contain evidence that’s important to those representing themselves in court. While it’s possible in some courts to upload evidence online before a hearing, about 40 percent of Detroit residents don’t have internet access. That’s a problem statewide — in some rural areas, internet isn’t even an option

O’Brien, the probate judge, said many courts don’t have the resources to enforce the proposed rules. According to a September report from the state Trial Court Funding Commission, many courts around the state are inadequately funded and rely on the courts themselves to raise more than a quarter of the revenue — a system the commission’s chair said is “broken.” 

The proposed rule would also allow people to use their phones to copy public court documents, many of which include information including Social Security numbers. That could allow sensitive information to be “broadcast all over the place,” said Lisa Brown, Oakland County’s clerk, who noted such information is usually redacted in public records requests.

While clerks said security is their main concern, many also said budgets would take a hit if they lost money made from reproducing public documents. 

In Ingham County, where copies cost $1.50 per page, reproducing court records brought in about $85,000 in both 2017 and 2018 and about $100,000 in 2016, according to County Clerk Barb Byrum’s office. The revenue goes to the county’s overall budget, which is around $233 million

Money concerns didn’t get a lot of sympathy from speakers Wednesday.

“Clerks are worried about lost revenues from public documents. These belong to the people, we the people. We shouldn’t be profiting off of copies,” said Gina Fisher, who works for a domestic violence advocacy group.

The Michigan Supreme Court could decide on the proposed rule at any time, said spokesman John Nevin.

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Thu, 11/21/2019 - 8:47am

The main argument seems to be the necessity of cell phones to copy documents. I doubt much copying is going on in the courtrooms themselves, and most is being handled at an office outside the courtroom. So the solution is simple. Prohibit cellphones from inside a cour

Thu, 11/21/2019 - 8:47am

Why not just provide a way to check them in at a counter? I remember hat and coat checks at restaurants worked pretty well. The excuse of having to "hide in the bushes" or I'm homeless would be solved.

Thu, 11/21/2019 - 8:56am

While there appears to be more pros than cons to allowing cell phones in courtrooms, one security issue I haven't seen addressed is juror safety. Twice I've been on a jury where we were advised to accept police escorts to our cars when the trial ended. One of those ended in a first-degree murder conviction. And once, pre-cell phone, the accused, who represented himself, left threatening messages on my home phone. Seems like a workable compromise to ensure the rights and safety of plaintiffs, defendants, witnesses and jurors wouldn't be too difficult.

Ben W. Washburn
Thu, 11/21/2019 - 3:45pm

Going way back to the first advent of cell phones with cameras, they were banned because the "friends" of some defendants were using them to photo and intimidate jurors.

Mrs. Betsy
Thu, 11/21/2019 - 9:10am

Allow them for copying of documents -- I understand the "loss of revenue" but surely the budget can be adjusted? I'd like to know more about what this revenue is used for. It sounds like a workflow issue on its face. My own past encounters with court clerks leads me to suspect they are loathe to change procedures. In the real world, we do this all of the time.
Judges should have the sole discretion on whether to allow cell phones in court. The reasons to not allow them in the court room are reasonable. Perhaps develop a system where you deposit your phone on entering the courthouse and retrieve it later? Again this is a workflow issue -- you need to take the time to develop a new system. I've seen this done in other public places with jackknives for example. The system actually works well. People need their phones for a variety of reasons, mostly totally legitimate -- example the lady who had to hide it in the bushes and then it was gone. WTF???

Doug L
Thu, 11/21/2019 - 9:34am

A buck fifty per page to get a copy of public documents?! No wonder the county does not want to have phones in court. They are stealing from the public!

Thu, 11/21/2019 - 10:02am

I am quite sure that charging $1.50 for a copy of a document is against foia rules and should be changed. The last time I received documents from Clinton County court house it cost me $1.00 a copy.
Dale Westrick

Ben W. Washburn
Thu, 11/21/2019 - 4:17pm

Dale: Take some time and think this all the way through. Yes, the public ought to have the right to see public documents and to obtain a copy at a reasonable cost. But to enable this, the clerk's office has to both equip and staff a counter at which this can be done. It can be done by raising taxes on everyone (or instead by cutting some other service to everyone in order to free up those costs). In any given year, less than 1% of the public actually appears to obtain such copies. So, overwhelmingly, the other 99% of the general public believes that the burden of this service should be paid by charging a fee to those few who actually want a copy. Your elected public servants make the decisions on how to enable this service, and they go with the sense of that 99% majority.
The cost of fulfilling a Freedom of Information Act request can reasonably vary widely from one office to another. The cost per copy is much lower in an office which gets a hundred thousand requests per year than in one which only gets a thousand. In theory, any taxpayer could challenge whether a specific office is charging a reasonable rate, based upon all of the costs incurred in staffing and equipping their office to fulfill the FOIA mandate. But, there is no single state-wide rate and there should not be, based upon the overwhelming weight of public opinion as to who should ultimately bear this cost. Give yourself some time to think this issue through, and see if you don't find yourself among that 99%. There is no such thing as either a free lunch or a free public service.

Thu, 11/21/2019 - 10:30am

I agree with Arjay and Terry - it seems there could be a simple fix to allow the devices in the building but not in the court room. There could be an assistant to upload evidence, secure the phones, and make copies.

Thu, 11/21/2019 - 12:07pm

Banning phones lets Clerks and other Staff get away with bad conduct if not crime. The whole system is so corrupt it is now essentially a shake down - pay US the citizens to the Courts (County) of face endless hearings and pretrials - then they retaliate IF one exercises your Constitutional rights under the US or Michigan Constitution. (For those who never had to deal with or enter a courthouse, happy for you, but it is no longer about public safety - its about funding a dysfunctional system for lawyers and judges (retirement) and County coffers. THEY are so backwards its like boss-HOG runs the place!

Bob P
Thu, 11/21/2019 - 1:45pm

Courts have records and video. We pay a lot of tax dollars to document this work. It should be routine practice to open the files to the public paying for them. The files are available to insiders, just flip the access switch and make (civil) accessible to the public who paid for them.

Bob P
Thu, 11/21/2019 - 1:45pm

Courts have records and video. We pay a lot of tax dollars to document this work. It should be routine practice to open the files to the public paying for them. The files are available to insiders, just flip the access switch and make (civil) accessible to the public who paid for them.

James F Bish
Thu, 11/21/2019 - 8:25pm

The change needs to be made like yesterday. And it is not just cell phones at issue. 36th
District Court in Detroit will not even let us bring pen/pencil into the building, which prevents us from taking notes.