Jan 10, 2017

Michigan Case Doesn't Show the Way on Device Bans

Michigan Live reports that a Michigan man has filed an appeal with the U.S. Supreme Court challenging a policy banning cell phones from courthouses in Saginaw County, Michigan. While I am sympathetic with the plaintiff's case here, it is extremely unlikely that the Supreme Court will take the case. And even if it did, the Court would likely not rule for the plaintiff because of the technicalities of this particular case.

I have previously discussed bans on electronic devices in courts across the country.  My main problem with these policies is that they usually apply only to the "little people," since they often contain exemptions for the legal "elite," such as members of the media, lawyers, judges, police officers, court staff.

So even though the Saginaw County court's policy, as stated on its website, provides that "[p]ossession or use of any Electronic Device [in court areas of the Saginaw County Governmental Center] is strictly prohibited without Judicial permission" (emphasis added), in reality there are exemptions for courthouse employees (including, of course, the judges who instituted the "ban"); active members of the State Bar of Michigan; law enforcement personnel; probation and parole officers; and media reporters covering cases. Judges can also grant other, individual exemptions.

Robert W. McKay, a resident of neighboring Tuscola County, challenged the new policy in federal court. In December 2014, that court held that McKay did not have standing to bring the lawsuit, since he did not have any pending business before the Saginaw County court and thus had not been affected by that court's ban on electronic devices. The court also held that even if McKay had standing, the order was a legitimate method to achieve the rational goal of maintaining decorum in the courtrooms and thus did not violate McKay's First Amendment rights. McKay v. Federspeil, 22 F. Supp. 3d 731 (E.D. Mich. 2014).

McKay appealed the ruling to the federal Sixth Circuit Court of Appeals, which affirmed the lower court's ruling that he lacking standing to bring the suit.
McKay has not set forth the manner and degree of evidence required to demonstrate a credible threat of enforcement ... especially since he has not yet sought an administrative exemption from the challenged order.
McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016), reh'g denied, 2016 U.S. App. LEXIS 15693 (6th Cir. Aug. 10, 2016).
This is the decision that McKay is now asking the U.S. Supreme Court to review.

But the High Court is unlikely to do so. First, the court usually accepts only one or two percent of the cases that it is asked the review. Second, the Sixth Circuit decision involves only the technical question of whether McKay can bring the case at all, and the Supreme Court usually does not accept cases on such matters.

The second point means that even if the Court were to take the case, it would be unlikely to rule on the question of whether the Saginaw County ban is unconstitutional.

This leaves the federal district court decision that the policy is not unconstitutional as the final word on the subject, for now. But hopefully McKay or someone else can bring a case that will overcome the procedural hurdles, and challenge one of these court bans on the merits, resulting in a definitive court ruling on the question.


Eric P. Robinson said...

Update: As I suggested, the U.S. Supreme Court has denied the certorari petition in this case. McKay v. Federspiel, cert. denied, No. 16-878 (U.S. Mar. 6, 2017).

Daniel Rudd said...

Thank you for your work in this field. I'm posting this as a comment because I could not locate contact information. I'm working on a parallel issue regarding a litigants right to obtain a copy of the video recordings produced and maintained by trial courts in place of a written transcript.

As you are probably aware, many state courts utilize automated video recording systems for the official record of bench trials. Some courts make these recordings available to litigants at the cost of materials. However, the majority of Michigan courts have adopted local administrative orders which broadly prohibit access and/or duplication of these video files. In most cases there is no mechanism for judicial review or any reference to a state interest which would preclude offering duplicates which can easily be created with existing equipment.

If you are interested, I would be happy to send you more information. My e-mail address is

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