Michigan to allow cellphones in all courts, striking down local bans

The Court’s new cellphone rule will go into effect in May and apply to all state and local courts. (Bridge file photo)

LANSING –  Cellphones, laptops, tablets and similar devices will be allowed in all Michigan courts beginning in May, the Michigan Supreme Court ruled Wednesday.

The order strikes bans on cellphones that are common in Michigan’s 242 courts, which are allowed to set their own policies. And it follows public testimony from lawyers and other advocates who said the rules create barriers for defendants, the indigent and their families.

“The comments we received and testimony we heard that cell phone access was essential to self-represented litigants was compelling,” Chief Justice Bridget Mary McCormack said in a statement. “We appreciate the willingness of local courts to implement this reform that will help make sure the doors to our courts are open to all.”

Some judges expressed concern that the rule change would allow for witness intimidation, secretly recorded testimony and chaotic courtrooms. The Michigan Probate Judges Association, the Michigan Court Administrators Association and the Michigan District Judges Association could not immediately be reached for comment Wednesday.

The rule bars audio or video recording of court proceedings without the permission of a judge, prohibits photos of jurors, and allows judges to sanction those who break those restrictions, including the ability to charge rule-breakers with contempt of court. 

“Not having a cellphone impairs an individuals’ ability to get to court, to present evidence… and to have counsel present,” in cases when attorneys don’t show up, Charles Hobbs of Detroit-based nonprofit Street Justice told the court in November. 

Another significant element of the rule change allows for the public to use cellphones and other devices to copy public court documents as long as it doesn’t “unreasonably interfere with the operation of the clerk’s office.”

The record reproduction proposal was a major concern for multiple county clerks tht wrote in to protest the change. Many said file reproduction could cause confidential information such as Social Security numbers to accidentally be made public and put a dent in revenue as most counties currently charge about $1 per page to copy documents. The Michigan Association of County Clerks and individual clerks were not immediately available for comment Wednesday. 

Justice Stephen Markman dissented, arguing the court had a umber of other options of how to tackle the problem that he would have supported, including requiring courts provide lockers for phones in courthouses so they would remain secure while people are courtrooms or allowing only jurors, self-represented people and others with special circumstances to have phones. 

The rule will create challenges for courtrooms working to enforce its restrictions while conducting regular business, will create distractions in the courtroom, and put people in danger in criminal trials, Markman wrote. 

“This Court gives greater regard to a modest increase in personal convenience than to the traditional sanctity of the courtroom and the security of jurors and witnesses.”

A number of other states have considered changes to cellphone policies in the courts after the Conference of Chief Justices and the Conference of State Court Administrators encouraged members to review their policies in a 2018 resolution.

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Comments

David Wolf
Thu, 01/09/2020 - 10:08am

This is a great step in the right direction. As someone who goes to the courthouses regularly, I have often seen people show up for court-ordered (i.e. subpoenaed, a party to a complaint, jury duty, etc.) without the luxury of having a vehicle that they can return to - only to be denied entry because they have their cellphone with them. That is a Catch-22, since there is no way to comply with the court's (or their job's) requirement that they be there without hiding their expensive phone in a bush or something. (Seriously, that happens!)
As to court clerks' complaints about loss of revenue, the cost per page that they charge for printed pages is supposed to offset the court's cost of producing those pages. This includes the court clerk's time for making the photocopies, as well as the material costs of doing so - including the provision of copying hardware, paper and toner or ink. It should never, in my estimation, have been a scheme to make a profit on those people who require information from the courts. We The People have provided those courts for We The People and only the added cost of production of the copies should be charged.
As to disruption in court proceedings, judges still have awesome powers from the bench to control decorum of their proceedings. If they lack the will to exercise those powers, when necessary, they should seek another line of work. It is understood that many judges feel pressure to NOT take actions as they may be seen as controversial - and cost them votes when reelection time comes around. That must be a risk that comes with the territory.
As to inadvertent releases of confidential information, such as social security numbers, that information is vulnerable merely by having someone pull and review a file - which any person is entitled to do. Only sealed matters are off limits. Unredacted social security numbers or other information would still be viewable, and nothing prohibits folks viewing files from taking hand-written notes.
Finally, the one thing that a photograph of a record will NOT do is provide a True or Certified Copy of a document, which requires a seal and/or signature of a court clerk. Clerks would still be able to charge their statutory fees for those services, as well as charge copy fees to those people who wish a hard printout.
With people literally carrying their personal papers and records in their smartphones, it has become an unfair burden on those who must use the courts to have that resource excluded from the building. It would essentially be like telling a lawyer or litigant that he or she was not allowed to bring their brief case and papers into the courthouse.
As an aside, I spend a great amount of time in courthouses and, as a matter of course, I have all of my contact information and a great deal of information on the matters I may be researching at the courthouse on my smartphone. Without being an attorney and carrying a Bar card, I haven't been able to bring my smartphone into some courts. (Some courts allow it, some don't, which has added to the confusion by many court-goers.) This has wound up costing me time, clients time (and unnecessary expenses), and significant inefficiencies.
Over the years, I have gone out of my way to acquire a smartphone WITHOUT A CAMERA, to avoid the problem. (Courts allow cell phones - just not cameras and recording devices.) As the technology has changed, those non-camera phones have become a thing of the past, and I have been unable to get one that still has the smart features. (One would think that with all of the military and industrial situations where photography would be disallowed would have influenced that market a bit more, but it hasn't.)
I think the new rules, as I have read them, will be fair for all and will still allow the courts to maintain the order that is necessary. While judges may be hesitant to take action if people violate the new rules, it won't take many occasions of violators being marched off in handcuffs to get the message out.
Justice for all will be improved by this change.

Dale Westrick
Sun, 01/12/2020 - 4:32pm

I completely agree with Mr Wolf on all the points he has made. According to FOIA rules the courts are way over charging for documents from the court.
I personally am glad the law is being changed.
Dale Westrick