In re Buchanan

394 N.W.2d 78, 152 Mich. App. 706
CourtMichigan Court of Appeals
DecidedJune 17, 1986
DocketDocket No. 85600
StatusPublished

This text of 394 N.W.2d 78 (In re Buchanan) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Buchanan, 394 N.W.2d 78, 152 Mich. App. 706 (Mich. Ct. App. 1986).

Opinion

Per Curiam.

In this suit to compel the 67th District Court to allow public access to its files, plaintiff appeals as of right from an order of the Genesee Circuit Court entered June 6, 1985, granting summary judgment to defendant. We reverse in part.

The basic facts, set forth in plaintiff’s deposition on the question of summary disposition, are not disputed. In November, 1983, plaintiff was elected [708]*708to a four-year term on the city council of Burton, Michigan. In February, 1984, the city council formed a committee to investigate allegations of political payoffs and favoritism in the misdemeanor diversion program. The diversion program is similar to a probation program except that a participant in the diversion program is never formally charged with a crime if he successfully completes the program. Patrick McDougal operated the program under a contract with the city council. In order to be eligible for the diversion program, one had to be recommended by the city attorney.

Both before and after the investigation committee was formed, the plaintiff asked Mr. McDougal for access to the diversion program files. When the plaintiff asked for access to the files before the investigation committee was formed, she asked out of curiosity because she had heard rumors of drunk drivers making payoffs to avoid criminal prosecution. After the committee had been formed, she and Councilwoman Barrera requested access to twelve individual files on people who had been placed in the diversion program. The plaintiff intended to learn the locations of the offenses, the Breathalyzer results, and whether the individuals had prior convictions. Mr. McDougal would not give them access.

On August 1, 1984, plaintiff applied to the presiding judge of the 67th District Court for an administrative order granting public access to the 67th District Court files. On August 10, 1984, an attorney, Jack Belzer, moved to intervene on grounds that confidences of his clients would be disclosed if the public were granted access to the district court files. On August 21, 1984, Judge Harry P. Newblatt heard oral arguments on the [709]*709plaintiffs motion for an administrative order and ruled that the diversion program files were City of Burton records, not court records. The court also ruled that the court files contained confidential matters that could not be made available to the general public, such as Law Enforcement Information Network reports. The court further ruled that the harm to the person put on diversion would outweigh any benefit from public inspection of the records. On September 4, 1984, the investigation committee, of which plaintiff was a member, was disbanded. On September 5, 1984, an order was issued denying the relief requested.

On September 19, 1984, plaintiff filed a complaint for superintending control in the Genesee Circuit Court seeking an order from the circuit court commanding the district court "to forthwith make available to plaintiff and the general public all court files of the 67th District Court.” Both parties moved for summary disposition and arguments were heard on May 20, 1985. At this hearing before Judge Earl E. Borradaile, the parties argued whether the plaintiff was properly before the court, whether superintending control was the proper remedy, and whether the members of the public at large had a right of access to court files. Following the hearing, Judge Borradaile ruled that a writ of superintending control, rather than an appeal from the district court, was the proper form of action; that any writ of superintending control could only control access to district court records; that the court did not know whether diversion files were district court files; and that since the Burton City Council had disbanded the investigation committee, the plaintiff was not entitled to access to records based on her membership on the committee. The court also ruled that, as an individual member of the council, the plaintiff had no more right [710]*710to see the records than anyone else.

So, we’re dealing with — most of these questions are ones of the same issue that Midland Publishing Company dealt with: that once it becomes a public trial, then there is the right to have access. But the court does not believe that any of the cases give the right to have access prior to the time that a case becomes a public trial, basically something that Justice Cavanagh has said in In re: Midland Publishing Company [420 Mich 148; 362 NW2d 580 (1984)].
This court cannot find, based upon its review of the cases, that the general public, whether it be Ms. Buchanan or anyone else, has a right to go into a court as to a case that has not yet been tried in the public court and demand access to the records of the clerk keeping the records of that court.
If there were a showing in this case that the Burton City Council’s special committee to investigate the actions of its city attorney, that committee still being in effect, and by due authorization from the city council as having acted by at least a majority voting and saying that they hereby requested the right of inspection in order to determine the actions of the city attorney. Then the court believes that the district court judge or judges at that particular time would have to review the action of the city commission as to whether in fact it did have a majority, and whether that was the proper interest that is detailed in all the cases to justify the judge authorizing the clerk of the court to permit access by that committee.
Since it seems apparent to this court that the authority of the committee had ended at the time the request was made, this court cannot find that the petitioner in this case has the right to demand, as a matter [sic] of the city council, that she be [711]*711granted access to any and every file which she asks for.
In fact as merely one member, without a majority vote in the city council, the court doubts if any district judge, or any other judge for that matter, would have to give her access. But if she did show that she was a duly-constituted person, either as an individual or as the duly-authorized member of a committee, then the district judge would have the right, as the court notes the Nixon Supreme Court opinion [Nixon v Warner Communications, Inc, 435 US 589; 98 S Ct 1306; 55 L Ed 2d 570 (1978)] says, to, in that judge’s discretion, determine if there should be the granting of access.

On June 6, 1985, the court entered an order denying plaintiffs motion for superintending control and granting defendant’s counter-motion for an order of dismissal.

We think the respected trial judge stated the law concerning a citizen’s right to access of court records too narrowly. Michigan has long recognized a citizen’s common-law right of access to public records. As early as 1889, our Supreme Court in Burton v Tuite, 78 Mich 363; 44 NW 282 (1889), granted a private citizen, engaged in the abstract business in Detroit, the right to éxamine the records and files in the city treasurer’s office in Detroit. In so doing, Justice Morse, speaking for the Court, stated:

I can see no danger of great abuses or inconveniences likely to arise from the right to inspect, examine, or make note of public records, even if such right be granted to those who get their living by selling the information thus gained.

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Related

Nixon v. Warner Communications, Inc.
435 U.S. 589 (Supreme Court, 1978)
Booth Newspapers, Inc. v. Muskegon Probate Judge
166 N.W.2d 546 (Michigan Court of Appeals, 1968)
In Re Midland Publishing Co., Inc.
317 N.W.2d 284 (Michigan Court of Appeals, 1982)
In Re Midland Publishing Co.
362 N.W.2d 580 (Michigan Supreme Court, 1985)
Penokie v. Michigan Technological University
287 N.W.2d 304 (Michigan Court of Appeals, 1979)
Blue Cross and Blue Shield of Mich. v. Insurance Bureau
304 N.W.2d 499 (Michigan Court of Appeals, 1981)
Nowack v. Auditor General
219 N.W. 749 (Michigan Supreme Court, 1928)
Burton v. Tuite
7 L.R.A. 73 (Michigan Supreme Court, 1889)

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Bluebook (online)
394 N.W.2d 78, 152 Mich. App. 706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-buchanan-michctapp-1986.