Booth Newspapers, Inc. v. Muskegon Probate Judge

166 N.W.2d 546, 15 Mich. App. 203, 1968 Mich. App. LEXIS 808

• Court: Michigan Court of Appeals
• Decided: December 23, 1968
• Docket: Docket 3,147
• Status: Published

Opinion

Fitzgerald, J.

Plaintiff newspaper corporation sent one of its reporters to the probate court of Muskegon county to look at the last will of a prominent citizen of the community recently deceased. No specific reason has been given by plaintiff for its desire to inspect the will. Defendant, a probate judge, denied the reporter permission to do so. A complaint for superintending control was filed by plaintiff and answer followed, the case was submitted on the pleadings and the Muskegon county , cir euit court decided in favor of allowing the plaintiff to inspect the will. Appeal followed.

The applicability of the term “persons interested” to plaintiff newspaper is in issue, the term being included in section 28 of the probate code; PA 1939, No 288 (CL 1948, § 701.28 [Stat Ann § 27.3178(28)]) which reads as follows:

“The judge of probate shall have possession of the seal, records, books, files and papers belonging to said court, and shall keep a true and correct record of each order, sentence and decree of the court, and of all other official acts made or done by him, and of all wills proved therein with the probate thereof, of all letters testamentary, and of administration, and of all other things proper to be recorded in said court. Such records, except as otherwise provided by law, may be inspected ivithout charge by all persons interested. (Emphasis supplied.)

The fundamental rule in Michigan on the matter before us, first enunciated in the case of Burton v. Tuite (1889), 78 Mich 363, is that citizens have the general right of free access to, and public inspection of, public records. This is contrary to the English common-law rule, which permitted inspection but prohibited private use, by providing no remedy in the absence of a showing of special interest specifically concerning litigation. The oft-cited equity standard of “no right without a remedy” 1 helped to destroy the rule as has the democratic desire to maintain freedom of access of the public to the records made by its government.

The case of Nowack v. Auditor General (1928), 243 Mich 200 (60 ALR 1351), remains the definitive law of this State and has been employed by other jurisdictions to assist in resolving problems similar to the present one. 2 Plaintiff there was the manager and editor of a newspaper which sold news to the people, and he sought to inspect the records of the defendant with the lawful purpose 3 of publishing a true and fair statement of the expenditure of public money. When his request was denied, he sought remedy by a writ of mandamus through the office of the attorney general, but in his own name, which required that he show a “special interest” not possessed by the citizens generally. By reason of his position as editor of a newspaper who has been injured in his particular business of dissemination of news, plaintiff was held to possess the “special interest” and was permitted access to the records.

The case of Borah v. White County Bridge Commission (1952), 199 F2d 213, is cited by both parties to this appeal and merits discussion. Plaintiff, a taxpayer and a toll payer, sought to inspect the records of the White County Bridge Commission, but was denied access on the grounds that he was not one of the class of “all persons interested” who were permitted to do so by an act of Congress which specifically created the commission as a corporation to carry out a governmental purpose financed, not from taxation, but from services furnished and rendered. (Act April 12, 1941, 55 Stat 140; 28 TJSCA §2201.) Borah did not possess a “special interest” different than that possessed by the public at large, unlike in the Nowaclc Case, supra, for he did not have “something more than a common concern for obedience to law” 4 such a concern being one which may be directly and materially af fected by alleged unlawful action. He made no charge of malfeasance or irregularity and so was not a person sufficiently interested to have access.

Defendant attempts to draw an analogy to the Borah decision, urging this Court to find that plaintiff also fails to show a “special interest”. We cannot agree, and find that the Borah court was primarily concerned with not imposing an unreasonable burden of mass inspection upon a quasi-governmental commission, created by Congress and not financed by taxation of the general public. A probate court is in no way similar to such a commission for purposes of the issue before us, and such a “burden” does not exist.

The Noivach decision has “placed Michigan at the vanguard of those states holding that a citizen’s accessibility to public records must be given the broadest possible effect.” 5 6 Restrictions placed on such broad access can be of several types, none of which is applicable here.

First, the legislature, for its own reasons, may specifically define and limit “persons interested” to a certain class, also intending that such definition be uniform throughout the code. 6 It may also foresee certain governmental burdens and so restrict access by providing definitions of “public” as opposed to “private” records. 7 Finally, the courts may determine that the legislature intended to restrict access in cases where harm to the public interest may be said to outweigh the right of members of the public to have access, 8 or where the purpose for which the information will be used is stated to be unlawful, 9 or where reputations may be harmed, 10 or for pastime, whim or fancy. 11 In such cases, a balancing of the public interest with the right of access must be made. The only harm to the public interest which could occur here would be if we would deny access to the newspaper.

The terms “interested” and “person” appear in different arrangements in the probate code a total of 41 times by defendant’s count. By referring to several of the statutes, defendant attempts to replace the terms with the word “newspapers” as evidence that the legislature clearly did not intend such a semantical juxtaposition be made. An example of defendant’s theory serves to show the invalidity of his position instead of supporting it, to wit: “If all persons interested in the estate shall signify in writing their assent to such sale * * * the notice may be dispensed with.” (Section 467 [CL 1948, § 709.7; Stat Ann 1962 Rev § 27.3178(467)]; emphasis supplied.) It is apparent that “newspapers” cannot be substituted here if one makes any reasonable interpretation of the intent of the legislature as expressed. Technical definitions of the terms occur seemingly at random throughout the code and the definition given in one statute obviously is not intended to apply in another in most cases. Compare CL 1948, § 704.31 (Stat Ann 1962 Rev §27.3178 [282]) with CL 1948, §709.6 (Stat Ann 1962 Rev § 27.3178 [466]). Instead, the lower court, and this Court, believe that every use of the terms must be reinterpreted for meaning in each statute, where the meaning does vary and is not uniform. Reference should be made to the nature and purpose of the subject matter, considering the “persons” allegedly “interested” while examining any restrictions or definitions provided by the legislature in the particular statute. If this procedure does not work, then reference may be made to other relevant definitions of the terms for assistance. 12 To apply this test to the present case, we find that the subject matter is probate records, 13 the persons interested are newspapers, 14 and no further relevant definition or restriction is employed by the legislature. The nature of the subject matter and of the persons interested in the present case are sufficient to dictate inspection of the records.

The good faith attempt of defendant to carry out the mandate of the statute charging him with possession of the seal and records as cited, supra, is not questioned. There may be instances where failure to deny access to the records might be called a dereliction of duty on the part of a judge. This case, however, limited to the facts before ns, dictates that access should have been granted to plaintiff newspaper corporation.

Affirmed. No costs, a public question being involved.

Lesinski, C. J., and Templin, J., concurred.

1 30 CJS, Equity, § 105.

2 See MacEwan v. Solm (1961), 226 Or 27 (359 P2d 413); Matthews v . Pyle, Governor (1952), 75 Ariz 76 (251 P2d 893); Anno., 60 ALR 1356; 76 CJS, Records, §§ 35, 37; Evening Journal Assn. v. MacPhail (1957), 45 NJ Super 184 (131 A2d 887).

3 See discussion of this point, infra.

4 L. Singer and Sons v. Union Pacific R. Co., 311 US 295 (61 S Ct 254, 85 LEd 198).

5 OAG, 1961-1962, No 3590, pp 581, 587.

6

7 Generally, see 76 CJS, Records, § 1.

8 State, ex rel. Youmans, v. Owens (1965, 1966), 28 Wis 2d 672 (137 NW2d 470, 139 NW2d 241), second appeal (1966), 32 Wis 2d 11 (144 NW2d 793), a newspaper was granted right to inspect secret report of city attorney on misconduct of policemen after trial judge had examined report in chambers and covered those parts whose disclosure lie found would be prejudicial to the public interest; City and County of San Francisco v. Superior Court (1951), 38 Cal 2d 156 (238 P2d 581), serious handicap to functions of public ageneies to reveal confidential information; State, ex rel. Crummcr v. Pace (1935), 121 Fla 871 (164 So 723); see Anno., 102 ALR 756 as to “secrets” of public utility conducted by municipal corporation.

9 MacEwan, supra.

10 Wisconsin statutes cited in State, ex rel. Youmans, v. Owens, supra.

11 Holcombe v. State, ex rel. Chandler (1941), 240 Ala 590 (200 So 739), citing Nowack; Payne v. Staunton (1904), 55 W Va 202 (46 SE 927).

12 See general definition of “parties interested” at Buie 18, See 2, Buies of Praetiee of the Probate Courts of the State of Michigan. Many “people” are not covered here, and their omission does not mean that the legislature therefore intends to bar their access in every situation.

13 Probate records are judicial records and may beeome publie records after proceedings are completed and entered. See Schmedding v. May (1891), 85 Mich 1; Kalamazoo Gazette Co. v. Kalamazoo County Clerk (1907), 148 Mich 460.

14 We have seen in Nowack that newspapers often have a sufficient and “special” interest. The right of newspaper representatives to inspect publie records to acquire material for the business of selling news is such an interest. A newspaper, by reason of its relation to the common interest, acts as the representative of a common or publie right in its dissemination of the news. (Subject to definite restrictions by the legislature as previously discussed.) Holcombe v. State, ex rel. Chandler, supra; Lee v. Beach Pub. Company (1937), 127 Fla 600 (173 So 440).