Cellphone ban raises questions about courtroom transparency
An Isabella County Trial court policy prohibiting cellphones, recording devices and cameras in the county courthouse has raised issues of First Amendment rights among community members.
Chief Judge Paul Chamberlain said the policy, adopted March 9, was created to maintain the security of the courthouse, preserve the integrity of the court record and the trial process and to ensure appropriate courtroom behavior.
“There was unanimous consensus from the court’s management council,” Chamberlain said. “Because of my philosophy, because of our philosophy, we do not believe it is in everyone’s best interest to allow phones into the court anymore.”
He told Central Michigan Life the policy was prompted by an incident of a reporter publishing pictures from court files as well as several recordings of courtroom actions being uploaded to YouTube by Isabella County resident Ted Visner, who has been outspoken against law enforcement and the court for going beyond the scope of their authority.
“Our courts are public. There are no laws barring us from recording our public servants,” Visner said. “What’s happening is these people are putting themselves above their role as a public servant. They consider themselves masters of the people and that’s opposite of what it is.”
Regional State Court Administrator and former Mount Pleasant Mayor J. Bruce Kilmer said chief judges can set policies on any kind of decorum in their court houses.
According to Michigan Court Rule 8.110, a chief judge may initiate policies concerning the court’s internal operations and its position on external matters affecting the court. MCR 8.112 states a trial court may adopt local court rules regulating practice in that court and communications devices are able to be banned under MCR 8.115.
Michigan Court Rules state that policy can be established regarding the use of portable electronic communications devices. The policy makes no mention of recording devices. Failure to comply with policy established by the chief judge may result in a fine, including confiscation of the device, incarceration or both for contempt of court.
“It’s a policy they intend to enforce like law,” Visner said. “The enforcement part comes with a contempt of court charge, which is a crime. So Paul Chamberlain is legislating from the bench essentially.”
Visner argues citizens have the right to record courtroom proceedings and this policy infringes on these rights and inhibits transparency.
General Counsel for the Michigan Press Association Robin Herman said a court can prohibit a third party from discussing court proceedings, such as Visner’s YouTube commentary, by issuing a gag order, however this only occurs in rare circumstances with sensitive cases.
“I’m not sure how this causes a security concern, and I wouldn’t want to speculate on that,” Herman said. “While the judge was trying to deal with a particular problem, this seems to be an over broad attempt to address one particular problem.”
Herman said the public is free to take written notes and talk about the proceedings in any manner that they want. Visner argues modern recording devices are an extension of that right.
Kilmer said Michigan courts have begun establishing these policies because they have had problems with people posting pictures of witnesses and jurors online.
“I wouldn’t record anything that might be used adversely if there were jurors present or special witnesses, I respect their privacy,” Visner said. “I’m talking about the everyday proceedings.”
In a 1981 case, Chandler v. Florida, the U.S. Supreme Court held that the federal Constitution does not prohibit states from allowing cameras in the courtroom and states may adopt their own rules permitting recording equipment. Since this ruling, states have adopted varying rules on the topic.
Michigan law generally allows sound and video recording of state court proceedings if requested beforehand. The court has discretion to terminate or prohibit recording if it determines it would be in the interests of justice. For instance, the court may exclude recordings of particularly sensitive witnesses or testimony involving confidential business information.
Federal courts in Michigan, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.
Howell attorney Thomas Kizer, who is currently engaged in litigation to obtain access to Michigan court records which he believes should be accessible to the public, said banning cellphones and recording devices from the courts is a slippery slope.
“It is a violation of our due process, our freedom of speech, our right to assemble, and our rights of access to public record,” Kizer said. “We (the public) pay for these proceedings and records, they must be available to us.”
Kizer said some judges have been hasty to prevent recording devices from being permitted within the courts ever since a minor scandal involving Michigan Supreme Court Justice Clifford Taylor. In 2008, a Michigan Democratic Party ad claimed to show footage of Taylor sleeping on the bench while presiding over a case regarding the deaths of six children in a public housing fire. Kizer said since then, certain Michigan judges have been restricting access to courtrooms.
“All judges who are unreasonably restricting our freedom of access are insulting the public,” Kizer said. “They fear that the public will not have the decency, or the brains, to filter through the information presented to them.”
Chamberlain said the policy does not change the public’s access to courtroom proceedings, and that hearings and trials are still open to everyone including the media.
Ed Simpson, professor of journalism at Central Michigan University, said such a provision will leave the court to decide what constitutes press.
“I don’t want a judge deciding what a legitimate journalist is,” Simpson said. “When you go to fill out a form requesting access, that’s when they decide if you are real press.”
The new policy banning recording devices includes a provision that allows for members of the press to record within the court.
“There is only one official record,” Chamberlain said. “That is the court’s record. Other records might be made out of context, or the content may be changed by not including the full verbatim record. The court offers an official typed record of the transcript.”
Public records of courtroom proceedings can be obtained through the Isabella Trial Court on 300 N. Main St. Records are public and can be viewed for free at the trial court office.
Certified copies of documents cost $10 for the first page and $1 for each additional page. Citizens can also fill out an online request, where a $5 search fee will be added to the previous costs.
Kizer said judges are using the line “out of context,” to unreasonably restrict public access.
“It’s an issue of self preservation for those judges,” Kiser said. “They fear remarks made on the bench, or their demeanor on the bench will impact their efforts toward re-election.”
Kizer said whatever legal power a chief judge has over their court does not give them the right to restrict access.
“As long as observers are not disrupting a trial or hearing, the court has no right to restrict the public eye.”
Michigan’s courts already maintain a policy to allow for civilized recording of high profile proceedings. In trials where a media frenzy is likely, the court will generally stream the proceedings in another room so members of the media all have access to the footage and can report on it in real time, without media affecting the trial or impacting the jury.
Kizer said the only legitimate reasons a judiciary can use to make restrictions within the courthouse are protection of a defendant’s right to a fair trial, legitimate safety issues, and reasonable rules ensuring decorum in the courtroom.
Law Clerk Anne Szczubelek said no one has violated the policy thus far.