New Michigan rule limiting access to records in the People's Court is out of order

I've always thought one of the best things about being a judge, other than going commando under those groovy robes, is that the only person who can tell you you're wrong is another judge.

Today, you can add to that list a pesky reporter who believes you should have as many options as possible to find the public records you seek.

So, it is with a heavy heart, that I tell the legal eagles perched in their aerie atop the Michigan State Supreme Court that their well-intentioned plan ordering district courts — the People's Courts — to suppress information about people headed for trial is wrong-headed.

State Court Administrator Thomas Boyd, a retired judge, says our state Supreme Court justices don't want to bury this information; they just want to consolidate it in the circuit courts, which also are known as the trial courts. We'll discuss in a minute how criminal cases proceed through the justice system here in Michigan and why Boyd thinks the Supremes' order will ultimately improve your chance of finding the information you seek.

First, we need to talk about how we got here.

Our story starts with a well-intentioned, but also wrong-headed, policy that Boyd says forced the state Supreme Court's hand.

It never happened ... even though it really did

It's been several years since state lawmakers succeeded in passing legislation making it harder to find out about crimes committed in Michigan. These "clean slate" laws are part of a crusade to help folks who have fallen down get back on their feet without having to overcome the stigma of a mistake they made that resulted in a criminal conviction.

Expungement, as its known, is a noble cause and worthy endeavor … even if obliterating any trace of someone's conviction for car theft still won't bring back your stolen Buick.

Rather than get bogged down in a debate over the merits of these policies, let's focus on how these laws invoked the law of unintended consequences. We'll start with a quick review of our criminal justice system.

In Michigan, if you're arrested and locked up, law enforcement officials have only a couple days to bring you before a judge who will announce the charges against you and set bail. This is called arraignment, and it happens in district court. These are the busiest courts in the state because they handle everything from noise violations to speeding tickets to evictions to minor lawsuits, all the way up to rape and murder. Every criminal case starts in district court. But felony charges trigger something called a preliminary examination. The prelim is like a mini-trial, where prosecutors can present evidence and witnesses to convince a district court judge there's enough evidence to bind a case over to circuit court for trial before a circuit court judge or jury.

Currently, and until July 2, you can find records relating to felony cases at the district AND circuit court level (assuming the case was bound over to the circuit court for trial). Clean slate advocates are concerned the paperwork ordering the suppression, or burying, of records related to a conviction that has been expunged could get lost in the paper chase. This would effectively negate the benefit of the expungement, because while the records won't be available at the circuit court, someone could still find them at the district court.

In an effort to comply with the law and address this dilemma, the Michigan State Supreme Court in March 2023 proposed a rule effectively sealing district court records once a case is bound over to circuit court — regardless of whether the case was expunged. So, even in the vast majority of cases where the slate hasn't been cleaned, the rule forbids district court officials from even acknowledging the existence of a felony case after it has been bound over to circuit court.

Before the justices issued their order, they invited the public to weigh in. Only three people submitted testimony. Two of them were district and circuit court officials who opposed the policy. Both of them said it would create more work, extra expenses and cause confusion.

The State Bar of Michigan, which represents lawyers and says its mission includes "promoting improvements in the administration of justice and advancements in jurisprudence, improving relations between the legal profession and the public," was "generally supportive of the rule" but expressed concerns, according to The Detroit News.

News reporter Beth LeBlanc quoted state bar executive director Peter Cunningham as saying: "Strictly in terms of the population of individuals impacted by such a broad approach, the unintended, negative consequences of this proposed amendment far outweigh the benefits it would provide."

When I suggested to Boyd that the expungement laws had created a predicament the justices were left to address, he vigorously disagreed.

"We have a better rule going forward than we did in the past," he told me last week. "We are in a better place. Maybe it's just serendipity."

"It isn't a predicament for us," Boyd insisted. "It's found gold."

When I asked Boyd if it might actually be ferrous pyrite, he said he didn't know what that was.

So I told him: Ferrous pyrite is also known as "fool's gold."

All that glitters

Boyd grants that allowing district courts to at least acknowledge a felony case started there gives you and me an extra shot at learning about that criminal matter.

But, he added: "Not too many people are wandering around looking for cases."

Boyd rejects the notion this extra chance is a good thing, because he says we'll all be better off in the long run if we learn to just check the circuit court for records of felony cases. This is especially true in the case of jurisdictions like Wayne, Oakland and Macomb counties, which have multiple district courts binding cases over to their respective circuit courthouses.

Boyd's theory works like this: There are more than a dozen district courts in Wayne County. If you look up Joe Bagodonuts in one district court and don't find a felony case, you may assume he's a solid citizen with a clean sheet. But unless you check each of the district courts, you can't be sure Bagodonuts hasn't caught a case in Wayne County. So, Boyd says you should just check with the circuit court. He believes having no access to information at the district court level on felony cases after they have been bound over for trial to the circuit court will teach the public to make the circuit courts their one-stop shop for felony background checks.

Among those who don't buy this argument is state Supreme Court Justice David Viviano, who wrote in an April 3 dissent that suppressing the records at the district court level "impedes access to court records and imposes an unnecessary burden on court clerks and staff. The new requirements will make it more difficult to obtain court records that have always been accessible to the public up until now."

I didn't ask Boyd to criticize one of his bosses, but I did point out that the only people who submitted comments on the proposed rule opposed it.

"Public comment is an important part of the rule making process," Boyd told me. "But three entities expressing reservations doesn't represent the entire court system or the work that needs to be done."

When I asked if he was suggesting everyone who didn't comment was part of a silent majority that supported the new rule, Boyd responded: "It's not a popularity contest."

The roads less traveled

I like the way Boyd thinks, and I agree that anyone who is interested in finding felony cases is better off checking at a circuit court than running a gauntlet of district courts.

You could even argue that the new order poses no hardship, because most of the district courts in Michigan are housed in the same building as the nearest circuit court, or are a short walk away.

But most of Michigan's population lives in counties where multiple district courts send their felony cases to the nearest circuit court.

And "nearest" is a relative term.

The drive from the district court in Novi to Oakland County Circuit Court is 27 miles.

It's 25 miles from Plymouth District Court to Wayne County Circuit Court.

The trip from Romeo District Court to Macomb County Circuit Court is 21 miles.

It's 30 miles from the district court in South Haven to Van Buren County Circuit Court in Paw Paw.

Even the relatively short trek from the district court in Mason, where Boyd once served as a judge, to Ingham County Circuit Court in Lansing is 14 miles.

This is relevent because if you want to look up a file in your local district court, it's probably closer to your home than the circuit court.

Boyd counters that more and more courts are putting case information online. That's swell, as long as you have a computer, internet service and your judicial circuit has joined us here in the 21st century. But even if the court you're interested in makes these records available online, all you can see is the docket, which is the list of things that happened with the case and is also known as the "Register of Actions." You cannot view the actual documents filed in the case unless you visit the courthouse — and it's hard to know exactly what happened in a case unless you can examine the complaint, the response, the motions, the orders and all the other paperwork that was filed.

Lawyers have been able to file documents electronically for years.

"As we contine to expand eFiling, we will continue to expand what eFiling can do," Boyd says. "We're getting there."

In the meantime, any rule that makes it harder to find records — wherever they have been — is not in the public's best interest.

Boyd says the state Supreme Court's order eliminates human error when it comes to ensuring that both the district and circuit courts have supressed records associated with an expungement. If so, this will be the first time any government anywhere has eliminated human error.

Ironically, the expungement movement is based on the principle that we can forgive humans some errors. And district court clerks are human, too.

One improvement the state Supreme Court should consider making is allowing district court officials to at least acknowledge the existence of cases which haven't been suppressed until every court's records are available online. I see no harm in telling the curious: "There is a case, but we don't have it. You'll have to go to circuit court."

The real problem isn't eliminating human error or making it easier to find cases — or even allowing people to wipe certain crimes from their record. The problem is narrow minds who expect people to live error-free lives. The clean slate laws are meant to thwart people who don't believe in second chances. Again, it's a laudable goal, but you can't legislate grace.

You can require open records.

Until every district and circuit court allows us to search their records from our most convenient electronic device — and until we can check every courthouse in Michigan with a single search — the justices and Boyd should rescind any and every order that diminishes our chance of finding the records we have a right to see.

Boyd said the state's high court will see how things play out. If, after six months, they identify a problem, he said "we're always willing to change it."

They shouldn't wait that long. In their zeal to shield expunged records, the justices have already made the first human error.

M.L. Elrick is a Pulitzer Prize- and Emmy Award-winning investigative reporter and host of the ML's Soul of Detroit podcast. Contact him at mlelrick@freepress.com or follow him on X at @elrick, Faceook at ML Elrick and Instagram at ml_elrick.

This article originally appeared on Detroit Free Press: Michigan rule moving felony records to circuit court limits access