The refusal of our legislators to bring increased transparency to our executive and legislative branches is well documented in Michigan, but this Sunshine Week, we would like to shine a light on the opacity in our judicial branch as well.

side by side pictures of a woman and man
Samantha K. Hallman is a lecturer in Health and Human Services at the University of Michigan-Dearborn and plaintiff in a First Amendment lawsuit against Oakland County circuit and district courts. John T. Kulesz is an attorney, counselor and facilitator of the Constitution Cafe at the Troy Historic Village. (Courtesy photos)

A hallmark of a thriving democracy is not merely our right to vote, but our ability to readily access the information needed to be informed in our voting. Government transparency is all that separates democracy from authoritarianism, as even authoritarians hold “elections” while avoiding accountability by obscuring what really goes on behind closed doors. This is why the Supreme Court of the United States has repeatedly held that courts must be open to the public under the First Amendment.

Unlike states where judges are appointed, Michiganders enshrined judicial elections in our state constitution so voters could hold judges accountable at the polls. Yet judicial accountability remains elusive because the public too often lacks reasonable access to the kind of information needed to assess judicial performance. Though court proceedings are technically “open” to the public, their location and timing make it impossible for most of us to attend in person to observe whether our judicial branch is functioning as it should – with integrity, impartiality, and efficiency. The foreseeable consequence is that judicial misconduct that persists outside of voters’ awareness only comes to light well after damage has been inflicted on litigants, attorneys, staff, and the reputation of the judiciary as a whole. 

Michigan law requires courts to record proceedings, and for years this has been accomplished with specialized digital recording technology purchased with our tax dollars. Access to these court records could eliminate barriers to attendance at public court proceedings by allowing us to observe what happens without having to find child care, miss class, or take time off work. 

But unlike other states that have a statewide presumption of public access to these records (such as Ohio, Indiana, and Wisconsin), there is no uniform statewide policy in Michigan. Instead, the decision is left to individual judges, with no mechanism for appellate review when access is denied.

It is not surprising that, with some notable exceptions, the majority of judges throughout the state deny access to video and/or audio records that could be used to hold them accountable, instead limiting our access to mere transcripts of the public proceedings, which are themselves transcribed from the recordings. Importantly, even litigants and their attorneys are unable to obtain copies of video and/or audio records of their own proceedings to share with voters and policymakers, and subsequently have little recourse when they are the victims of judicial misconduct.

Many judges claim that transcripts are sufficient records of what transpires in their courtrooms, but the problem is that transcripts are often cost-prohibitive, void of important evidence of judicial intemperance (such as yelling or sarcasm), and are not uncommonly inaccurate — sometimes deliberately so. Furthermore, transcripts do not lend themselves to channels of communication such as social media to which voters — especially young voters — increasingly turn to obtain their information.

In short, policies that limit voters’ access to only transcripts give the illusion that our courtrooms are “open” to scrutiny, while maintaining a degree of practical obscurity that allows judicial misconduct to go unchecked.This Sunshine Week, we implore the Michigan Supreme Court to adopt a uniform statewide policy that gives the public presumptive access to copies of video and/or audio recordings of public proceedings. We also encourage readers to reach out to the Michigan Judicial Council at mjc@courts.mi.gov to insist on a more transparent judiciary.

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