3.7Access to Court Records and Proceedings

“MCR 8.119 governs a court’s maintenance of court records, the public’s access to those records, and the circumstances under which a court may seal, or perpetually prohibit the public’s access, to those records.” Jenson v Puste, 290 Mich App 338, 342 (2010).

Court records and confidential files are not subject to disclosure under Michigan’s Freedom of Information Act (FOIA), as the judicial branch of government is specifically exempted from that act. MCL 15.232(h)(iv); MCL 15.233(1). However, court records are public except as otherwise indicated by law, court rule, or court order. See MCR 6.007; MCR 8.119(H)(7).¹ 

Specifically, MCR 8.119(H)(7) provides that “[u]nless access to a case record or information contained in a record as defined in [MCR 8.119(D)] is restricted by statute, court rule, or an order entered pursuant to [MCR 8.119(I)²], any person may inspect that record and may obtain copies as provided in [MCR 8.119(J)].”³ However, public access to documents containing a party’s personal identifying information (PII) is subject to the additional safeguards and conditions outlined in MCR 1.109(D)(9)-(10).⁴ MCR 8.119(H)(3)-(5).

A.Access to Documents Containing a Victim’s Personal Identifying Information

“[P]ersonal identifying information is protected and shall not be included in any public document or attachment filed with the court on or after April 1, 2022, except as provided by [any other court rule].” MCR 1.109(D)(9)(a). Protected personal identifying information for purposes of MCR 8.119 is not the same as the personal identifying information described in the Crime Victim’s Rights Act. See MCR 1.109(D)(9); MCR 8.119; MCL 780.758; MCL 780.788; MCL 780.830. For purposes of the court records and other specified material addressed by MCR 8.119 and MCR 1.109, all of the following are identified as protected PII:⁵

•date of birth,

•social security number or national identification number,

•driver’s license number or state-issued personal identification card number,

•passport number, and

•financial account numbers. MCR 1.109(D)(9)(a)(i)-(v).

For detailed information about the scope of PII and the requirements for accessing it, see MCR 1.109 and MCR 8.119. For a discussion of the court rules addressing protected PII, see the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 1, and Child Protective Proceedings Benchbook, Chapter 21.

B.Preserving Confidentiality of Victim’s Home and Work Addresses and Telephone Numbers and Other Identifying Information

1.Felony Cases

“Records are public except as otherwise indicated in court rule or statute.” MCR 6.007.

In Michigan, crime victims have a constitutional “right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.” Const 1963, art 1, § 24. To protect this right, the Crime Victim’s Rights Act (CVRA) provides that “information and visual representations of a victim are subject to the following:

(a) The home address, home telephone number, work address, and work telephone number of the victim are exempt from disclosure under the [FOIA, MCL 15.231-MCL 15.246], unless the address is used to identify the place of the crime.

(b) A picture, photograph, drawing, or other visual representation, including any film, videotape, or digitally stored image of the victim, are exempt from disclosure under the [FOIA], and, if the picture, photograph, drawing, or other visual representation is from a court proceeding that is made available to the public through streaming on the internet or other means, the picture, photograph, drawing, or visual representation may be blurred.

(c) The following information concerning a victim of child abuse, criminal sexual conduct, assault with intent to commit criminal sexual conduct, or a similar crime who was less than 18 years of age when the crime was committed is exempt from disclosure under the [FOIA]:

(i) The victim’s name and address.

(ii) The name and address of an immediate family member or relative of the victim, who has the same surname as the victim, other than the name and address of the accused.

(iii) Any other information that would tend to reveal the identity of the victim, including a reference to the victim’s familial or other relationship to the accused.”⁶ MCL 780.758(3).

A victim’s address and telephone number maintained by the sheriff or Department of Corrections for notification purposes are exempt from disclosure under the FOIA, and must not be released. MCL 780.769(2). MCL 780.769a(3) also excludes from disclosure under the FOIA “[a] victim’s address and telephone number maintained by a hospital or facility” for purposes of notification regarding a defendant’s hospitalization or admittance by court order subsequent to the defendant being found not guilty by reason of insanity.

The CVRA also limits access to a victim’s address and phone number from court files:

“The work address and address of the victim shall not be in the court file or ordinary court documents unless contained in a transcript of the trial or it is used to identify the place of the crime. The work telephone number and telephone number of the victim shall not be in the court file or ordinary court documents except as contained in a transcript of the trial.” MCL 780.758(2).

A prosecutor may motion the court and ask that witnesses not be compelled to testify about a victim’s identifying information:

“Based upon the victim’s reasonable apprehension of acts or threats of physical violence or intimidation by the defendant or at [the] defendant’s direction against the victim or the victim’s immediate family, the prosecuting attorney may move that the victim or any other witness not be compelled to testify at pretrial proceedings or at trial for purposes of identifying the victim as to the victim’s address, place of employment, or other personal identification without the victim’s consent. A hearing on the motion shall be in camera.” MCL 780.758(1).

2.Serious Misdemeanor Cases

In Michigan, crime victims have a constitutional “right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.” Const 1963, art 1, § 24. To protect this right, the CVRA provides that “information and visual representations of a victim are subject to the following:

(a) The home address, home telephone number, work address, and work telephone number of the victim are exempt from disclosure under the [FOIA].

(b) A picture, photograph, drawing, or other visual representation, including any film, videotape, or digitally stored image of the victim, are exempt from disclosure under the [FOIA], and, if the picture, photograph, drawing, or other visual representation is from a court proceeding that is made available to the public through streaming on the internet or other means, the picture, photograph, drawing, or visual representation may be blurred.

(c) The following information concerning a victim of child abuse, criminal sexual conduct, assault with intent commit criminal sexual conduct, or a similar crime who was less than 18 years of age when the crime was committed is exempt from disclosure under the [FOIA]:

(i) The victim’s name and address.

(ii) The name and address of an immediate family member or relative of the victim, who has the same surname as the victim, other than the name and address of the accused.

(iii) Any other information that would tend to reveal the identity of the victim, including a reference to the victim’s familial or other relationship to the accused.”⁷ MCL 780.818(2).

A victim’s address and telephone number maintained by a court or sheriff are exempt from disclosure under Michigan’s FOIA. MCL 780.830.

A prosecutor may motion the court and ask that witnesses not be compelled to testify about a victim’s identifying information:

“Based upon the victim’s reasonable apprehension of acts or threats of physical violence or intimidation by the defendant or at [the] defendant’s direction against the victim or the victim’s immediate family, the prosecuting attorney may move that the victim or any other witness not be compelled to testify at pretrial proceedings or at trial for purposes of identifying the victim as to the victim’s address, place of employment, or other personal identification without the victim’s consent. A hearing on the motion must be in camera.” MCL 780.818(1).

Although a victim’s name, address, and telephone number must appear on certain documents related to the case, these documents “shall not be a matter of public record.” MCL 780.812 (requiring “[a] law enforcement officer investigating a serious misdemeanor involving a victim [to] include with the complaint, appearance ticket, or traffic citation filed with the court a separate written statement including the name, address, and phone number of each victim[, and that] [t]his separate statement shall not be a matter of public record[]”); MCL 780.816(1) (requiring the court to send notice to the prosecuting attorney when a guilty or nolo contendere plea was accepted at arraignment on a separate form; notice must include the name, address, and telephone number of the victim; and “notice is not a public record and is exempt from disclosure under the freedom of information act, . . . MCL 15.231 to [MCL] 15.246”).

3.Juvenile Offenses

In Michigan, crime victims have a constitutional “right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.” Const 1963, art 1, § 24. To protect this right, the CVRA provides that “information and visual representations of a victim are subject to the following:

(a) The home address, home telephone number, work address, and work telephone number of the victim are exempt from disclosure under the [FOIA].

(b) A picture, photograph, drawing, or other visual representation, including any film, videotape, or digitally stored image of the victim, are exempt from disclosure under the [FOIA], and, if the picture, photograph, drawing, or other visual representation is from a court proceeding that is made available to the public through streaming on the internet or other means, the picture, photograph, drawing, or visual representation may be blurred.

(c) The following information concerning a victim of child abuse, criminal sexual conduct, assault with intent commit criminal sexual conduct, or a similar crime who was less than 18 years of age when the crime was committed is exempt from disclosure under the [FOIA]:

(i) The victim’s name and address.

(ii) The name and address of an immediate family member or relative of the victim, who has the same surname as the victim, other than the name and address of the accused.

(iii) Any other information that would tend to reveal the identity of the victim, including a reference to the victim’s familial or other relationship to the accused.”⁸ MCL 780.788(2).

A victim’s address and telephone number maintained by a sheriff or the Department of Corrections for notification purposes are exempt from disclosure under Michigan’s FOIA, and must not be released. MCL 780.798(5).

A prosecutor may motion the court and ask that witnesses not be compelled to testify about a victim’s identifying information:

“Based upon the victim’s reasonable apprehension of acts or threats of physical violence or intimidation by the juvenile or at [the] juvenile’s direction against the victim or the victim’s immediate family, the prosecuting attorney may move, or in the absence of the prosecuting attorney, the victim may request that the victim or any other witness not be compelled to testify at any court hearing for purposes of identifying the victim as to the victim’s address, place of employment, or other personal identification without the victim’s consent. A hearing on the motion must be in camera.” MCL 780.788(1).

Although a victim’s name, address, and telephone number must appear on certain documents related to the case, these documents “shall not be a matter of public record.” MCL 780.784 (requiring “the investigating agency that files a complaint or submits a petition seeking to invoke the court’s jurisdiction for a juvenile offense [to] file with the complaint, or petition a separate written statement listing any known victims of the juvenile offense and their addresses and phone numbers[, and that] [t]his separate statement shall not be a matter of public record[]”).

C.Confidentiality of Records in Juvenile Delinquency Cases⁹

“Records of a case brought before the court under Chapter XIIA of the Probate Code, MCL 712A.1 et seq., are only open to persons having a legitimate interest.” MCR 3.925(D)(1). See also MCL 712A.28(3). “Diversion records are open only as provided in the juvenile diversion act.” Id.

“Except as otherwise provided in . . . MCL 780.799, if the hearing of a case brought before the court is closed under [MCL 712A.17], the records of that hearing are open only by court order to persons having a legitimate interest.” MCL 712A.28(3).

“Persons having a legitimate interest” include, but are not limited to the following:

•the juvenile,

•the juvenile’s parent,

•the juvenile’s guardian or legal custodian;

•the juvenile’s guardian ad litem;

•counsel for the juvenile;

•DHHS or a licensed child caring institution or child placing agency with which DHHS has contracted to provide for the juvenile’s care and supervision if it is related to an investigation of child neglect or child abuse;

•law enforcement personnel;

•a prosecutor;

•a member of a local foster care review board;

•the Indian child’s tribe if the juvenile is an Indian child;

•a court of this state. MCR 3.925(D)(1); MCL 712A.28(5)(d).

A confidential file is accessible only by individuals “who are found by the court to have a legitimate interest [in the file].” MCR 3.925(D)(2). “In determining whether a person has a legitimate interest, the court shall consider the nature of the proceedings, the welfare and safety of the public, the interest of the minor, and any restriction imposed by state or federal law.” Id.

“Confidential files are defined in MCR 3.903(A)(3) and include the social case file and those records in the legal case file made confidential by statute, court rule, or court order.” MCR 3.925(D)(2). The contents of a juvenile’s social file, including victim statements, are part of the confidential file. MCR 3.903(A)(3)(b)(vi).

D.Name Changes

MCL 711.1, MCL 711.2, MCL 711.3, and MCR 3.613 govern the process by which individuals, including crime victims, may change their names. MCL 711.1 et seq. (adult or minor name changes).¹⁰ 

1.Published Notice Required

Unless otherwise indicated in MCR 3.613, the court must order that notice of a proceeding to change a name be published in a newspaper in the same county where the action is pending. MCR 3.613(B). MCL 711.1(1) requires that “[t]he court shall set a time and place for hearing and, except as provided in [MCL 711.3], order publication as provided by [MCR 3.613].”

The published notice must include the following information:

•name of petitioner,

•current name of the subject of the petition,

•proposed name, and

•time, date, and place of the hearing. MCR 3.613(B).

“If the court has waived fees under MCR 2.002, it must pay the cost of any ordered publication, including any affidavit fee charged by the publisher or the publisher’s agent for preparing the affidavit pursuant to MCR 2.106(G).” MCR 3.613(B). “Any court record reflecting court payment must be nonpublic.” Id.

Proof of service must satisfy the requirements of MCR 2.106(G)(1). MCR 3.613(B).

2.Published Notice Is Not Required and Record of Proceedings Is Confidential

MCR 3.613(C) and MCL 711.3(1) address the confidentiality of name change proceedings and when notice of such proceedings must not be published. An individual may petition the court to refrain from publishing notice of a name change proceeding, and the court must, for good cause shown, order that notice not be published and that the record of any such proceeding be confidential. MCR 3.613(C); MCL 711.3(1). MCR 3.613(C) states:

“Good cause includes but is not limited to evidence that publication or availability of a record of the proceeding could place the petitioner or another individual in physical danger or increase the likelihood of such danger, such as evidence that the petitioner or another individual has been the victim of stalking,^[11] domestic violence, human trafficking, harassment, or an assaultive crime, or evidence that publication or the availability of a record of the proceeding could place the petitioner or another individual at risk of unlawful retaliation or discrimination.”¹² 

“Evidence under [MCL 711.3(1)] of the possibility of physical danger must include the petitioner’s or the endangered individual’s sworn statement stating the reason for the fear of physical danger if the record is published or otherwise available.” MCL 711.3(2). See also MCR 3.613(C)(1), which contains substantially similar language. However, “[i]f evidence is offered of stalking or an assaultive crime, the court shall not require proof of arrest or prosecution for that crime to reach a finding of good cause under [MCL 711.3(1)].” MCL 711.3(2); MCR 3.613(C)(1).

“A court officer, employee, or agent who divulges, uses, or publishes, beyond the scope of his or her duties with the court, information from a record made confidential under [MCL 711.3] is guilty of a misdemeanor.” MCL 711.3(3). MCL 711.3(3) does not apply to disclosures made under a court order. Id

“In cases where the court orders that records are to be confidential and that no publication is to take place, records are to be maintained in a sealed envelope marked confidential and placed in a private file.” MCR 3.613(G). Unless the court orders otherwise, “only the original petitioner may gain access to confidential files, and no information relating to a confidential record, including whether the record exists, shall be accessible to the general public.” Id. See also MCL 711.3(4), which provides that confidential records created under this statute are exempt from disclosure under Michigan’s FOIA.¹³

3.Granting or Denying Petition Requesting That Notice Not Be Published

“The court must issue an ex parte order granting or denying a petition requesting nonpublication and confidential record under [MCR 3.613(C)].” MCR 3.613(C)(2).

a.Petition Is Granted

When a court grants a petition for nonpublication, the court must:

•issue a written order, MCR 3.613(C)(3)(a),

•inform the petitioner that the court granted the petition, MCR 3.613(C)(3)(b),

•inform the petitioner of the time, date, and place of the hearing to be held on the requested name change, id., and

•if the subject of the petition is a minor, instruct the petitioner to notify the minor’s noncustodial parent as described in MCR 3.613(E). MCR 3.613(C)(3)(c).¹⁴

If the noncustodial parent’s address or whereabouts is unknown and cannot be determined after diligent inquiry, notice given by publication under MCR 3.613(E)(2)(a), or other method that is not directed only to the noncustodial parent, must not include the minor’s existing or proposed name. MCR 3.613(C)(3)(c).

b.Petition Is Denied

When a court denies a petition for nonpublication, the court must:

•issue a written order stating the reasons for denying the petition, MCR 3.613(C)(4), and

•advising the petitioner of the right

—to ask for a hearing about the denial within 14 days after the order of denial was entered, MCR 3.613(C)(4)(a),

—to file a notice of dismissal, MCR 3.613(C)(4)(b), or

—to go ahead with a hearing on the name-change petition under circumstances described in MCR 3.613, MCR 3.613(C)(4)(c).

If a petitioner whose petition for nonpublication was denied wishes to proceed with a hearing on the name-change petition, the petitioner has 14 days after entry of the order denying the petition for nonpublication to submit to the court the proper SCAO-approved form for publication of a notice of name-change hearing.¹⁵ MCR 3.613(C)(4)(c).

If the petitioner timely submits the form for publishing notice of the name-change hearing, the court must, pursuant to MCR 3.613(B), set a time, date, and place for the hearing and order publication of the information. MCR 3.613(C)(4)(c). “If the court has waived fees under MCR 2.002, it must pay the cost of any ordered publication, including any affidavit fee charged by the publisher or the publisher’s agent for preparing the affidavit pursuant to MCR 2.106(G).” MCR 3.613(B). “Any court record reflecting court payment must be nonpublic.” Id.

A hearing held under MCR 3.613(C)(4)(a) regarding the court’s denial of a petition for nonpublication must be on the record. MCR 3.613(C)(7). A petitioner whose petition for nonpublication was denied and who requests a hearing about the denial under MCR 3.613(C)(4)(a) must attend the hearing. MCR 3.613(C)(8). If the petitioner does not attend the hearing, the court must adjourn the hearing and reschedule it. Id. “If the petitioner fails to attend the rescheduled hearing, the court may adjourn and reschedule, dismiss the petition for name change, or notify the petitioner that it will publish notice of the name change proceeding if the petitioner does not file a notice of dismissal within 14 days from the date of the rescheduled hearing.” Id.

After a hearing held under MCR 3.613(C)(4)(a), the court must provide, on the record, its reasons for granting or denying the petition for nonpublication and enter an appropriate order. MCR 3.613(C)(9).

If the petitioner fails to request a hearing regarding the denial as provided by MCR 3.613(C)(4)(a) within 14 days after the order of denial was entered, the order denying the petition for nonpublication is final. MCR 3.613(C)(5).

If the petitioner fails to request a hearing under MCR 3.613(C)(4)(a) or file a dismissal under MCR 3.613(C)(4)(b) within 14 days after the order denying the petition for nonpublication was entered, “the court may set a time, date, and place of a hearing on the petition for a name change and order publication of notice as provided in [MCR 3.613(B)], and if applicable, [MCR 3.613(E)].” MCR 3.613(C)(6).

If the petition for nonpublication is denied, and the court or the petitioner sets a time, date, and place for a hearing on the name-change petition pursuant to MCR 3.613(C)(4)(c) or MCR 3.613(C)(6), “the court must order that the record is no longer confidential.” MCR 3.613(C)(10).

E.Sealing Records

A victim may wish to seal the court record; MCR 8.119(I) governs the procedure for sealing court records:

“(1) Except as otherwise provided by statute or court rule, a court may not enter an order that seals courts records, in whole or in part, in any action or proceeding, unless

(a) a party has filed a written motion that identifies the specific interest to be protected,

(b) the court has made a finding of good cause, in writing or on the record, which specifies the grounds for the order, and

(c) there is no less restrictive means to adequately and effectively protect the specific interest asserted.

(2) In determining whether good cause has been shown, the court must consider,

(a) the interests of the parties, including, where there is an allegation of domestic violence, the safety of the alleged or potential victim of the domestic violence, and

(b) the interest of the public.

(3) The court must provide any interested person the opportunity to be heard concerning the sealing of the records.

(4) Materials that are subject to a motion to seal a record in whole or in part must be made nonpublic temporarily pending the court’s disposition of the motion.

(5) For purposes of this rule, ‘court records’ includes all documents and records of any nature that are filed with or maintained by the clerk in connection with the action.

(6) A court may not seal a court order or opinion, including an order or opinion that disposes of a motion to seal the record.

(7) Whenever the court grants a motion to seal a court record, in whole or in part, the court must forward a copy of the order to the Clerk of the Supreme Court and to the State Court Administrative Office.

(8) Nothing in this rule is intended to limit the court’s authority to issue protective orders pursuant to MCR 2.302(C) without a motion to seal or require that a protective order issued under MCR 2.302(C) be filed with the Clerk of the Supreme Court and the State Court Administrative Office. A protective order issued under MCR 2.302(C) may authorize parties to file materials under seal in accordance with the provisions of the protective order without the necessity of filing a motion to seal under this rule.

(9) Any person may file a motion to set aside an order that disposes of a motion to seal the record, to unseal a document filed under seal pursuant to MCR 2.302(C), or an objection to entry of a proposed order. MCR 2.119 governs the proceedings on such a motion or objection. If the court denies a motion to set aside the order or enters the order after objection is filed, the moving or objecting person may file an application for leave to appeal in the same manner as a party to the action. See MCR 8.116(D).”

“When considering a motion to seal court records in a civil or criminal matter[ and] the motion involves an allegation of domestic violence, the court shall consider the safety of any alleged victim or potential victim of the domestic violence.” MCL 600.2972(1).

1.Filing Documents Under Seal

“Public documents may not be filed under seal except when the court has previously entered an order in the case under MCR 2.302(C). However, a document may be made nonpublic temporarily before an order is entered as follows:

(a) A filer may request that a public document be made nonpublic temporarily when filing a motion to seal a document under MCR 8.119(I). As part of the filing, the filer shall provide a proposed order granting the motion to seal and shall identify each document that is to be sealed under the order. The filer shall bear the burden of establishing good cause for sealing the document.

(b) Pending the court’s order, the filer shall serve on all the parties:

(i) copies of the motion to seal and the request to make each document nonpublic temporarily,

(ii) each document to be sealed, and

(iii) the proposed order.

(c) The clerk of the court shall ensure that the documents identified in the motion are made nonpublic pending entry of the order.

(d) Before entering an order sealing a document under this rule, the court shall comply with MCR 8.119(I). On entry of the order on the motion, the clerk shall seal only those documents stated in the court’s order and shall remove the nonpublic status of any of the documents that were not stated in the order.” MCR 1.109(D)(8).

2.Request to Seal a Personal Protection Order (PPO)

The court does not have the authority to seal personal protection orders (PPOs) under MCR 8.119(I)(1). See Jenson v Puste, 290 Mich App 338, 345 (2010), where the trial court properly denied the defendant’s request for entry of a consent order to seal a PPO under MCR 8.119(I)(1) because “[MCR 8.119(I)(6)¹⁶] specifically prohibits a court from sealing court orders and opinions.”

For a detailed discussion on PPOs, see the Michigan Judicial Institute’s Domestic Violence Benchbook, Chapter 5.

3.Access to Sealed Trial Court File During Appeal to Court of Appeals

If a party files an appeal in a case where the trial court sealed the file, the file remains sealed while in the possession of the Court of Appeals. MCR 7.211(C)(9)(a). Any requests to view the sealed filed will be referred to the trial court. Id. 

F.Public Access to Search Warrant Affidavits

MCL 780.651(8) provides that, “[e]xcept as provided in [MCL 780.651(9)], an affidavit for a search warrant contained in any court file or court record retention system is nonpublic information.” MCL 780.651(9) provides:

“On the fifty-sixth day following the issuance of a search warrant, the search warrant affidavit contained in any court file or court record retention system is public information unless, before the fifty-sixth day after the search warrant is issued, a peace officer or prosecuting attorney obtains a suppression order from a judge or district court magistrate upon a showing under oath that suppression of the affidavit is necessary to protect an ongoing investigation or the privacy or safety of a victim or witness. The suppression order may be obtained ex parte in the same manner that the search warrant was issued. An initial suppression order issued under this subsection expires on the fifty-sixth day after the order is issued. A second of subsequent suppression order may be obtained in the same manner as the initial suppression order and shall expire on a date specified in the order. This subsection and [MCL 780.651(8)] do not affect a person’s right to obtain a copy of a search warrant affidavit from the prosecuting attorney or law enforcement agency under the [FOIA], . . . MCL 15.231 to [MCL] 15.246.”

G.Limitations on Access to Court Proceedings

MCR 8.116(D) sets out the procedures for limiting public access to court proceedings:

“(1) Except as otherwise provided by statute or court rule, a court may not limit access by the public to a court proceeding unless

(a) a party has filed a written motion that identifies the specific interest to be protected, or the court sua sponte has identified a specific interest to be protected, and the court determines that the interest outweighs the right of access;

(b) the denial of access is narrowly tailored to accommodate the interest to be protected, and there is no less restrictive means to adequately and effectively protect the interest; and

(c) the court states on the record the specific reasons for the decision to limit access to the proceeding.

(2) Any person may file a motion to set aside an order that limits access to a court proceeding under this rule, or objection to entry of such an order. MCR 2.119 governs the proceedings on such a motion or objection. If the court denies the motion or objection, the moving or objecting person may file an application for leave to appeal in the same manner as a party to the action.

(3) Whenever the court enters an order limiting access to a proceeding that otherwise would be public, the court must forward a copy of the order to the State Court Administrative Office.”

1.Closing Preliminary Examination to Members of the Public

Upon the motion of any party and satisfaction of certain conditions, the examining magistrate has the discretion to close to members of the general public the preliminary examination of a person charged with any of the following offenses:

•Criminal sexual conduct in any degree;

•Assault with intent to commit criminal sexual conduct;

•Sodomy;

•Gross indecency;

•Any other offense involving sexual misconduct. MCL 766.9(1).

To close a preliminary examination to the public, the following conditions must be met:

“(a) The magistrate determines that the need for protection of a victim, a witness, or the defendant outweighs the public’s right of access to the examination.

(b) The denial of access to the examination is narrowly tailored to accommodate the interest being protected.

(c) The magistrate states on the record the specific reasons for his or her decision to close the examination to members of the general public.” MCL 766.9(1)(a)-(c).

When deciding whether it is necessary to close the preliminary examination for the protection a victim or witness, the magistrate must consider all of the following:

“(a) The psychological condition of the victim or witness.

(b) The nature of the offense charged against the defendant.

(c) The desire of the victim or witness to have the examination closed to the public.” MCL 766.9(2).

In addition, “[t]he magistrate may close a preliminary examination to protect the right of a party to a fair trial only if both of the following apply:

(a) There is a substantial probability that the party’s right to a fair trial will be prejudiced by publicity that closure would prevent.

(b) Reasonable alternatives to closure cannot adequately protect the party’s right to a fair trial.” MCL 766.9(3).

In narrowly tailoring closure to accommodate the interests of a victim testifying about sensitive matters, the court should only close those portions of the examination in which such matters are discussed. In re Closure of Preliminary Examination (People v Jones), 200 Mich App 566, 569-570 (1993).

2.Closing Criminal Trials to Members of the Public

All trials must be open to the public. See MCL 600.1420. See also US Const, Am VI and Const 1963, art 1, § 20 (providing a defendant with the right to a public trial). In addition, “a member of the public can invoke the right to a public trial under the First Amendment.” People v Vaughn (Joseph), 491 Mich 642, 652 (2012) (distinguishing between the public’s right to a public trial under the First Amendment and a criminal defendant’s right to a public trial under the Sixth Amendment), citing Presley v Georgia, 558 US 209, 212 (2010).

However, “for good cause shown, [the court may] exclude from the courtroom other witnesses in the case when they are not testifying and may, in actions involving scandal or immorality, exclude all minors from the courtroom unless the minor is a party or witness. This section shall not apply to cases involving national security.” MCL 600.1420.

The requirements for total closure are: “(1) [t]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced[;] (2) the closure must be no broader than necessary to protect that interest[;] (3) the trial court must consider reasonable alternatives to closing the proceeding[;] and (4) it must make findings adequate to support the closure.” People v Kline, 197 Mich App 165, 169 (1992), citing Waller v Georgia, 467 US 39, 48 (1984).

“A partial closure occurs where the public is only partially excluded, such as when family members or the press are allowed to remain, or when the closure order is narrowly tailored to specific needs.” Kline, 197 Mich App at 170 n 2 (with emphasis and without internal citations). Because the effect of a partial closure does not rise to the level of a total closure, only a substantial (rather than a compelling) reason for the closure is necessary. People v Russell (Fred), 297 Mich App 707, 720 (2012) (holding that limited courtroom capacity constituted a substantial reason for the partial closure of voir dire proceedings and did not deny the defendant his right to a public trial); see also People v Gibbs (Phillip), 299 Mich App 473, 481-482 (2013) (no error occurred where, before jury selection began, the trial court stated that spectators were welcome to enter, “but [the courtroom was] then closed once jury selection began[]” because the trial court found it “‘too confusing’ to allow individuals to come and go during jury selection[;]” furthermore, even if error occurred, the defendant was “not entitled to a new trial or evidentiary hearing[] . . . [where] both parties engaged in vigorous voir dire, there were no objections to either party’s peremptory challenges, . . . each side expressed satisfaction with the jury[, and] . . . the venire itself was present[]”); Kline, 197 Mich App at 170.

“The parties may not, by their mere agreement, empower a judge to exclude the public and press.” Detroit Free Press v Macomb Circuit Judge, 405 Mich 544, 549 (1979).

The right to a public trial extends to pretrial hearings, Waller, 467 US at 43-47, and the jury selection process, Presley, 558 US at 212-216; Vaughn (Joseph), 491 Mich at 650-652.

“Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials[,]” e.g., “reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members.” Presley, 558 US at 215-216 (trial court improperly excluded public from courtroom during jury selection process without considering alternatives to closure).

3.Closing Juvenile Delinquency Proceedings to Members of the Public

Generally, all juvenile court proceedings on the formal calendar and all preliminary hearings must be open to the public. MCR 3.925(A)(1). However, on motion of a party or a victim, the court may close proceedings to the general public during the testimony of a child-witness or a victim to protect the child-witness’s or victim’s welfare. MCL 712A.17(7); MCR 3.925(A)(2). In deciding whether to close juvenile proceedings, the court must consider:

•the age and maturity of the witness or victim;

•the nature of the proceeding; and

•the witness’s or victim’s preference, and if the witness or victim is a child, the preference of his or her parent, guardian, or legal custodian. MCL 712A.17(7); MCR 3.925(A)(2).

For purposes of MCL 712A.17(7), a child-witness does not include the juvenile against whom the proceeding is brought. MCL 712A.17(8); MCR 3.925(A)(2).

Except where the victim requests a copy of the adjudication order under MCL 780.799, the records from a hearing that is closed under MCL 712A.17(7) must only be opened by court order to persons having a legitimate interest. MCL 712A.28(3).

H. Media Access to Court Proceedings

The press has no greater right of access to court proceedings than does the public. In re Midland Publishing Co, Inc, 420 Mich 148, 162 (1984).

See Administrative Order No. 1989-1, 432 Mich cxii (1989), regarding film or electronic media coverage of court proceedings.

I.Gag Orders

The term gag order refers to a court order directed to attorneys, witnesses, and parties prohibiting them from discussing a case with reporters, or to a court order prohibiting reporters from publishing information related to a case. A court order prohibiting reporters from publishing information related to a case is unconstitutional. Nebraska Press Ass’n v Stuart, 427 US 539, 556 (1976) (“[t]he [United States Supreme] Court has interpreted [First Amendment] guarantees to afford special protection against orders that [impose a prior restraint on speech by] prohibit[ing] the publication or broadcast of particular information or commentary[]”). “A prior restraint on a First Amendment right will be upheld only if there is a clear showing that the exercise of the First Amendment right will interfere with the right to a fair trial.” People v Sledge, 312 Mich App 516, 531 (2015). “In order to determine whether the right to a fair trial justified the prior restraint, a court ‘must examine the evidence before the trial judge when the order was entered to determine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. The precise terms of the restraining order are also important.’” Id., quoting Nebraska Press Ass’n, 427 US at 562.

MCR 8.116(D)(1) should be followed in assessing whether to grant a gag order prohibiting discussion of the case with reporters. A gag order that is reasonable and serves a legitimate purpose that overrides any limited incidental effects on First Amendment rights is permissible. In re Detroit Free Press, 463 Mich 936 (2000).

“[A] gag order precluding all potential trial participants from making any extrajudicial statement regarding the case to the media or to any person for the purpose of dissemination to the public[] . . . [was] overbroad and vague . . . [and] constituted a prior restraint on the freedom of speech, freedom of expression, and the freedom of the press[.]” Sledge, 312 Mich App at 537 (noting that “the vague and overbroad scope of people covered by the gag order indicate[d] that it [was] an impermissible prior restraint on . . .  freedom of expression[,]” and that “[a]lthough the gag order [did] not directly prohibit the media from discussing the case, it prohibit[ed] the most meaningful sources of information from discussing the case with the media[,]” thereby impairing “the right of the [intervening newspaper] to obtain information from all potential trial participants”). Additionally, the trial court erred by “fail[ing] to make findings of fact or conclusions of law to justify the gag order[,]” which was issued sua sponte for the ostensible purpose of protecting the defendants’ right to a fair trial; the court did not “consider the nature and extent of the pretrial news coverage, whether the gag order would prevent the danger to [the] defendants’ right to a fair trial, whether there were any willing speakers[,] . . . and whether there were any alternatives to the gag order.” Id. at 531.

If “there were willing speakers that [a] court intend[s] to preclude from speaking[]” by issuing a gag order, a news agency “[has] standing to challenge the gag order [both] as a recipient of speech and as a news gatherer.” Sledge, 312 Mich App at 526, 527 (holding that where a newspaper “identified at least one willing speaker who felt restrained because of [a] gag order[,]” and “the gag order cut the [newspaper] off from access to important sources of information since it prohibited any potential trial participant from speaking with the news media regarding the case[,]” the newspaper had standing to challenge the order).