Michigan Supreme Court rule change limiting where felony records are held draws scrutiny

Lansing — The Michigan Supreme Court has adopted court rule changes that confine felony records to the court in which the case was last heard, meaning the court records could be found in either district court or circuit court, but not in both.

The new rules — which would make district court records nonpublic after bindover and circuit court records nonpublic if a case is remanded back to district court — have raised concerns about how the change may affect mandates requiring court records to remain open and accessible to the public. But the state court administrator maintains the new system will decrease confusion about where to find certain records and, in that sense, increase accessibility.

The change in rules adopted by a majority of the Michigan Supreme Court on April 3 will go into effect July 2 at courthouses across Michigan.

"Everything will all be available in one place instead of two places," said Tom Boyd, a former Ingham County judge and current administrator for the State Court Administrative Office. "Under the old paradigm, you had to know how the process worked. You had to be a lawyer or a reporter at a big news outlet to know which district court or circuit court to look in."

But a Supreme Court justice expressed concerns about disruptions to Michigan's decades-old case management process and the Michigan Press Association said it was worried the rule change went too far. The press association's lawyers, Detroit News Editor and Publisher Gary Miles and Detroit Free Press Executive Editor Jim Schaefer plan to meet Wednesday with Boyd regarding the issue.

"Much like the expungement law, we feel this goes too far and will have unintended consequences," said Lisa McGraw, public affairs manager for the Michigan Press Association.

For many Michigan residents, the local district court may be the most accessible facility, but the proposed rule would require them to travel to circuit court instead for some records, Justice David Viviano wrote last week in opposition to the rule. Additionally, the records changes would create more work for court staff, he said.

"I see no good reason to force individuals wishing to access information about a felony case to obtain that information from the circuit court," Viviano wrote. "If the case is public and the local court has the relevant records or information sought, the public should have a right to access it at that court."

Midland County District Judge Mike Carpenter, president for the Michigan District Judges Association, noted judges across the state received a memo Monday regarding the change.

"We will be discussing this at our board meeting next week and with a group as diverse as ours there will certainly be differences of opinion about it," Carpenter said. "However, it is our duty to faithfully follow the law and when the rule is effective I am certain that will be done."

The series of events that prompted the rule change dates back to 2020, when lawmakers passed what's been dubbed the Clean Slate package, a series of changes to state law that expanded expungement opportunities for a variety of misdemeanors and felonies. About a year ago, the last portion of that package was put in place when Michigan State Police deployed an automatic expungement tool that automatically set aside certain misdemeanors and felonies.

In the first 24 hours of the software going live April 11, 2023, more than 1.2 million convictions were set aside automatically, including more than 105,000 felonies.

Once those convictions are set aside, the court records pertaining to those crimes are supposed to be made nonpublic, but since the expungement for felonies occurs at the circuit court level it's difficult to relay that reality back to district court where some records of the proceeding may still exist.

When court officials began looking into the best way to ensure the record is made nonpublic, they began to explore rules that would require all cases — not just those subject to expungement — to be confined to one court in order to centralize filings in the case, Boyd said.

"It is the court’s responsibility to implement processes and procedures to comply with that law," Boyd said of the State Court Administrative Office's work to implement the expungement process. "We have worked tirelessly to make sure this works.”

In theory, the rule would work as so: An individual arrested on a Royal Oak larceny charge would be arraigned in 44th District Court in Royal Oak and their case file would remain with district court until or unless they are bound over to circuit court. Once the case is bound over, everything in the file would transfer to Oakland County's 6th Circuit Court and the record in 44th District Court would be made completely nonpublic.

On the rare occasion a circuit court judge finds error in a bindover of charges for trial, they would remand the case back to district court and the case file would return there and the circuit court record would become nonpublic.

The Supreme Court said the rule would apply prospectively, meaning it would apply only to active cases or cases that arise in the future.

The new rule was first proposed in March 2023 and the comment period ended July 1, 2023 with just three public comments. A public hearing on the rule Sept. 20 elicited no testimony from the public. The final rule was issued April 3.

Among the public comments submitted last year was one from Montmorency County Clerk Cheryl Neilsen who argued there was no reason to make district court records that were not subject to expungement nonpublic.

"This would require an additional step to the bind over process and/or having to purchase different file types that can separate out those items," Neilsen wrote in April of last year.

Matthew Sawicki, a district court administrator in Redford Township, said the rule may cause confusion when a circuit court calls to clarify something from the case and district court is required to answer that no public record exists because the case is nonpublic.

"This proposed court rule just makes a clerk's work more difficult," Sawicki wrote.

The State Bar of Michigan in June said it was generally supportive of the rule requiring the entire district court file to be transferred to circuit court, but expressed concerns the nonpublic designation of files in district court may prove a burden for prosecutors and defense attorneys seeking to access information on a case.

"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," wrote Peter Cunningham, executive director for the State Bar of Michigan.

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