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

Michigan Hall of Justice

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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