Zoom hearings could become permanent for Michigan courts, burps and all

LANSING – Michigan courts have held more than 5 million hours of hearings on Zoom since the COVID-19 pandemic began, and the virtual option may be here to stay — even if judges worry that maintaining order online isn’t always easy.

The Michigan Supreme Court is debating whether to make permanent what had been temporary rules for remote hearings, a pandemic-era shift facilitated by a fortuitous May 2019 decision to give a Zoom license to every judge in the state.

The proposed administrative order would direct courts to use video conferencing “to the greatest extent possible” regardless of COVID, prompting a vigorous debate between supporters who contend Zoom has expanded access to justice and detractors who say judges need more discretion to prevent legal hearings from devolving into online shouting matches.

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Attorneys and judges across the state have weighed in, and “we’ve learned that going back isn’t really an option,” State Court Administrator Tom Boyd told lawmakers Tuesday in the House Judiciary Committee. No one wants to “return to a situation where we don't have remote proceedings,” he said. 

“The question is what type of remote proceedings will we have?”

Judges, attorneys and other legal advocates seem to agree that it makes sense to continue using Zoom for lower-level procedural hearings and some civil cases, but several have argued the video conferencing technology is inappropriate for evidentiary hearings and other important pre-trial steps in criminal cases. 

“Zoom proceedings in criminal cases is bad policy,”  Judge Kirsten Hartig of the 52nd District Court in Oakland County told Supreme Court justices last month in a remote hearing of their own.

Across the state, district court judges have complained about disruptive and disrespectful behavior during remote hearings, Hartig said.

Attorneys “completely unprepared to represent their clients” have logged on while driving, smoking cigarettes, jogging and wearing swimsuits, she told justices.

Defendants, litigants and witnesses have urinated, slept, smoked marijuana, intentionally farted and overdosed on drugs during remote hearings, she added.

Judges also have seen a “defendant on the record while getting her hair dyed," a defendant’s “camera pointed towards dog feces on the floor,” pointing a computer camera at a toilet and wiping their bottom with toilet paper, Hartig said.

"The courtroom is a physical space that communicates the important jurisprudence that occurs there," Hartig said, describing the benefits of in-person hearings. "It encourages court users to know and understand their responsibilities for proper conduct."

Early in the pandemic, Michigan closed its courtrooms, but opted against moving criminal jury trials online, limiting those to in-person only, Boyd said.

The proposed rule has sparked heated debate, and two Supreme Court justices,  Richard Bernstein and David Viviano, have spoken out against it.

The proposal has prompted more public comments that "probably anything in the history of the court," Supreme Court spokesperson John Nevin told Bridge Michigan. 

But finding a path forward on remote hearing rules for Michigan courts is something  Chief Justice Bridge McCormack “thinks about and talks about all the time," Nevin said. 

"It's a priority for her," he said.

‘Barriers to access’

Since the pandemic began, more than 180 trial courts in Michigan have set up YouTube accounts to stream Zoom proceedings, and millions of viewers have tuned in, according to Boyd, the State Court administrator and a former Ingham County district court judge.

The Michigan Judiciary Committee on Tuesday took testimony on the proposed court rules but did not take an official position during what Chair Graham Filler, R-DeWitt, called an “informational hearing” to ensure the public “knows what’s going on.”

As the Supreme Court considers remote hearing rules, early feedback has made clear the general public has benefited from Zoom hearings because people no longer need to take a full day off work, get day care and pay for parking to appear in court for what are often brief hearings, Boyd said. 

But Zoom hearings have challenged the “dignity and decorum” of the courtroom, he acknowledged. 

Technology “doesn’t work every time” and litigants may not always have the access or capability to log into Zoom, Boyd told lawmakers.

“These problems are solvable,” he said. “We need to create exit ramps so people can appear in-person if that’s what’s appropriate.”

Despite some missteps, remote hearing technology has “dramatically” improved attorneys’ ability to serve clients, Ashley Lowe, chief executive officer of Lakeshore Legal Aid in southeast Michigan, told Supreme Court justices in last month’s administrative hearing. 

Remote hearings mean attorneys and clients do not need to drive to courtrooms, increasing efficiency, she said. 

In 2021, legal aid attorneys who provide free services to low-income residents in metro Detroit helped an average of 140 clients, up from 100 in 2018, and assisted over 7,000 tenants facing eviction. 

“What are inconveniences for many of us — finding childcare or traveling to court or taking off a day of work — are absolute barriers to access to justice,” Lowe said. “Default rates have plummeted in eviction court because … clients don't have to find a family member to watch their kids or beg a friend to drive them to court or risk losing their job for a 15-minute hearing.”

‘What’s good for the public’

Under the proposed rule, a judge determining whether a remote court hearing is feasible would have to verify that participants are able to use the technology and ensure that all proceedings are "consistent with a party's Constitutional rights," allowing for confidential communication between a defendant and their attorney.

The state is trying to balance expanding access through video conferencing and the judicial discretion "that's needed to make sure we're setting the proper environment for those proceedings," Boyd told lawmakers on Tuesday.

"We must focus on who benefits," he said. "From our perspective, it has to be the public. The system we adopt going forward must start with and end with what's good for the public." 

Several judges oppose the proposed rule, however, because it creates a "presumption" that court hearings should be held remotely when at all possible. 

“A trial judge's discretion must be preserved,” 52nd District Court Judge Julie Nicholson of Oakland County told Supreme Court justices last month in a remote administrative hearing. 

“There are simply too many factors to roll into a presumption given that this is not a one-size-fits-all solution.”

While remote hearings can increase access, the proposed presumption could be "an inherent pressure for people who have been accused of crimes or convicted of crimes to agree to remote technology even if they have a constitutional right to be present," Jessica Zimbelman of the State Appellate Defenders office told justices last month.

"The presumption should be for in-person court given the importance of what is at stake: people's loss of liberty and other serious collateral consequences."

Criminal defendants have a constitutional right to request in-person hearings, and defendants in civil cases should have the same right, state Rep. Steve Johnson, R-Wayland, argued Tuesday in the legislative hearing. 

Remote hearings should only be held if “all parties” agree to the format, Johnson said. 

“I don't want to get into a case where you're letting the judges make the call, where the judges say, ‘I don't feel like having these people in my courtroom.’ Sometimes that's more problematic.”