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untanglingwebs
El Supremo
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I remember being at the White Horse when an attorney at my able complained about the Prosecutor's (Busch)Divorce being made "non-public."
Then I was told Ron Fonger of the Journal was unable to locate documents related to Judge Hayman.
Now I find two marriages in the Clerk records for Judge Theile but no divorce. After digging around for an explanation, I finally discovered the records are in the Court storage, but are given a special code to make them "non-public".
Doesn't the public have the right to transparency about the integrity of the public officials we elect? True divorces are sometimes messy and can have false allegations, but those issues can be sorted out by the court.
Do we want a politician, especially one whose biases and discriminatory viewpoints can influence their decisions and impact negatively those they are sworn to serve?
Politicians are public persons and they need to be subject to scrutiny. They should not get special privileges.
Last edited by untanglingwebs on Tue Sep 20, 2016 2:50 pm; edited 1 time in total |
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Fri Sep 02, 2016 2:25 pm |
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untanglingwebs
El Supremo
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1 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY ...
www.rcfp.org/.../20121005_111330_m...
Reporters Committee for Freedom of the Press
Oct 2, 2012 - Sealing court records is considered such a serious action that any court that ... involving elected public officials, and particularly sitting judges.
DENISE R. KETCHMARK,
Plaintiff,
Case No. 12-305642-DP
v. Hon. Cheryl A. Matthews
ARCHIE L. HAYMAN,
Defendant.
BRIEF IN SUPPORT OF OPPOSITION BY NON-PARTIES MLIVE MEDIA GROUP,
THE FLINT JOURNAL AND E.W. SCRIPPS, INC. (d/b/a WXYZ-TV) TO
MOTION TO SEAL FILE PURSUANT TO MCR 8.119(F)
Non-parties MLive Media Group (“MLive”), The Flint Journal (“Flint Journal”) and E.
W. Scripps, Inc., d/b/a WXYZ-TV (“WXYZ-TV”) oppose respectfully submit this memorandum
in support of their Opposition to Motion to Seal File.
As set forth in the Motion, the Michigan Court Rules at MCR 8.119(F) establish that
sealed court files are to be the exception and that court files may only be sealed from the public
in extreme situations. Moreover, the United States Supreme Court and other federal courts have
repeatedly emphasized that sealing court records, or for that matter, denying the public access to
court records and court proceedings, is constitutionally suspect under the First Amendment.
It is difficult to imagine a case that would require greater transparency, but which
Defendant seeks to litigate in secret.
This First Amendment law, as laid down by the Supreme Court, does not justify
suppression of the public’s justifiable interest in this litigation and in the public official and
practicing attorney who are enmeshed in it, and are parties.
2
Suppression to protect reputations is specifically not justified. The common law and
constitutional grounds supporting the public’s right of access to judicial records were
emphasized in Brown & Williamson Tobacco Corp v Federal Trade Commission, 710 F2d 1165,
1177-1181 (CA 6, 1983), cert denied, 465 US 110 (1984). In Brown & Williamson, the Sixth
Circuit, based on the First Amendment and common law, vacated a suppression order that the
district court had entered with respect to the administrative record and other documents flied by
the Federal Trade Commission. The court stated:
Throughout our history, the open courtroom has been a fundamental
feature of the American judicial system. Basic principles have emerged to
guide judicial discretion respecting public access to judicial proceedings.
These principles apply as well to the determination of whether to permit
access to information contained in court documents because court records
often provide important, sometimes the only bases or explanations for a
court’s decision.
710 F.2d at 1177. These principles apply to civil as well as criminal cases. Id. at 1179.
In Brown & Williamson, the Sixth Circuit noted that there are two types of exceptions to
the strong presumption in favor of openness: (1) '”those based on the need to keep order and
dignity in the courtroom,” and (2) “those which center on the content of the information to be
disclosed to the public.” Id. As to the second category, the court found that “[s]imply showing
that the information would harm the company’s reputation is not sufficient to overcome the
strong common law presumption in favor of public access to court proceedings and records.” Id.,
emphasis added. Citing Joy v North, 692 F.2d 880, 894 (CA 2, 1982), cert denied, 460 US 1051
(1983), the court noted that while there is a natural desire on the part of parties to shield
prejudicial information contained in judicial records from competitors and the public, this desire
“cannot be accommodated by courts without seriously undermining the tradition of an open
judicial system.” Id. at 1180.
3
It is well established in MCR 8.119(F) that the press and public have always had a
common law right of access to judicial proceedings and records. Over the last quarter century,
the United States Supreme Court has recognized that openness in courtroom proceedings and
records of all kinds is also a requirement of the United States Constitution. See, Press-Enterprise
Co v Superior Court Judge, 478 us 1 (1986).
Although United States Supreme Court cases have recognized that there can be truly
exceptional circumstances which may permit very narrowly tailored exceptions to the rule of
unrestricted access to court proceedings and records, a rigorous test must first be met. In brief,
before ordering closure, a trial court must find the need for closure to be “compelling,”
“overriding,” and “essential to preserve higher values,” that “alternatives to closure will not
protect adequately,” and that “closure will be effective in protecting against the perceived harm.”
The reasons supporting closure must be articulated on the record in “findings specific enough
that a reviewing court can determine whether the closure order was properly entered.” PressEnterprise
Co v Superior Court, 464 US 501, 510 (1984) (“Press-Enterprise I”).
In additional to the requirements of MCR 8.119(F), the Constitution also requires that
representatives of the press and general public be given an opportunity to be heard on the
question of their exclusion. Globe Newspaper Co v Superior Court, 457 US 596,609 n 25 (1982).
In Press-Enterprise Co v Superior Court, 478 US 1 (1986) (“Press-Enterprise II”), the
United States Supreme Court held that the First Amendment right of public access attaches to
pretrial proceedings, as well as trials. The right of access to judicial documents is also protected
by the First Amendment. “[M]aterials on which the court relies in determining the litigants’
substantive rights are judicial records, subject to the right of public access.” Smith v US District
Court, 19 Med L Rptr 2025, 2027 (CA 7, 1992). |
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Sat Sep 03, 2016 3:51 am |
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untanglingwebs
El Supremo
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Before public access to these court records can continue to be limited, the parties seeking
suppression here and the court agreeing to it must prove:
(1) A compelling interest will be irreparably harmed by open records;
(2) No alternatives to closure are reasonably available to preserve that interest; and
(3) That closure will be effective in accomplishing its intended purpose.
This stringent test was not, nor can it now be satisfied in this case. Only in the most
extraordinary circumstances may courts shut out the press and public. “Closed proceedings,
although not absolutely precluded, must be rare.” Press-Enterprise I, 464 US at 509.
Because of this strong presumption against barring the press and public from judicial
proceedings and records, a party’s justification for closure '”must be a weighty one.” Globe
Newspapers v Superior Court, 457 US at 596, 606 (1982). The need for closure must be
demonstrably “compelling,” id., “overriding,” and “essential to preserve higher values.” PressEnterprise
I, 464 US at 510, quoted in Press-Enterprise II, 478 US at 9. Any measures to
accommodate that need must be "narrowly tailored." 456 US at 607; quoted in Press-Enterprise
I, 464 US at 510; Press-Enterprise II, 478 US at 9. The burden of proof rests squarely on the
proponent of closure. United States v Brooklier, 685 F2d 1162, 1169 (CA 9, 1982); United States
v Chagra, 701 F2d 354, 365 (CA 5, 1983); Associated Press v United States District Court, 705
F2d 1143, 1145 (CA 9, 1983). Specifically, the proponent of closure must establish with
empirical support: (a) “a substantial probability that irreparable damage to [a compelling interest]
will result from conducting the proceeding in public”; (b) “a substantial probability that
alternatives to closure will not protect adequately” that interest; and (c) “a substantial probability
that closure will be effective in protecting against the perceived harm.” United States v
5
Brooklier, 685 F2d at 1167 (quoting Gannett Co v DePasquale, 443 US 368, 440-42 (1979)
(Blackmun, J., concurring in part, dissenting in part)); Press-Enterprise II, 478 US at 13-14.
In addition, there are two procedural prerequisites to closure: (1) “representatives of the
press and general public ‘must be given an opportunity to be heard on the question of their
exclusion,’” Globe, 457 US at 609 n 25 (citation omitted) and (2) the reasons supporting closure
must be articulated on the record in “findings specific enough that a reviewing court can
determine whether the closure order was properly entered.” Press-Enterprise I, 464 US at 510.
Accordingly, pursuant to the First Amendment and to MCR 8.119(F), MLive, the Flint
Journal and WXYZ-TV respectfully request the opportunity to be heard and for the Court to
deny Defendant’s Motion to Seal File.
Dated: October 2, 2012
Respectfully submitted,
/s/James E. Stewart
James E. Stewart (P23254)
James.Stewart@tklaw.com
Thompson & Knight LLP
39533 Woodward Ave., Ste. 320
Bloomfield Hills, MI 4830 |
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Sat Sep 03, 2016 4:06 am |
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untanglingwebs
El Supremo
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STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE
DENISE R. KETCHMARK,
Plaintiff,
Case No. 12-305642-DP
v. Hon. Cheryl A. Matthews
ARCHIE L. HAYMAN,
Defendant.
OPPOSITION BY NON-PARTIES MLIVE MEDIA GROUP, THE FLINT JOURNAL
AND E.W. SCRIPPS, INC. (d/b/a WXYZ-TV) TO
MOTION TO SEAL FILE PURSUANT TO MCR 8.119(F)
Pursuant to MCR 8.119(F) and the First Amendment to the United States Constitution,
non-parties MLive Media Group (“MLive”), The Flint Journal (“Flint Journal”) and E. W.
Scripps, Inc., d/b/a WXYZ-TV (“WXYZ-TV”) oppose Defendant’s Motion to Seal File as
follows:
1. MLive, an online news service operating throughout the State of Michigan, and
the Flint Journal, the newspaper of general circulation in Genesee County, have been reporting
on this litigation, as it involves matters of significant public interest.
2. WXYZ-TV operates Channel 7, a television station that covers Southeastern
Michigan. Channel 7 has been following this litigation and wishes to report on it to the public, as
it is a matter of significant public interest.
3. MCR 8.119(F)(6) provides that any member of the public has standing to and may
appear to oppose the proposed entry of an order sealing court records. Further, MCR 8.119(F)(3)
provides that, “[t]he court must provide any interested person the opportunity to be heard
concerning the sealing of the records.” Thus, MLive, the Flint Journal and WXYZ-TV have
standing and the right to be heard on this matter.
2
4. MCR 8.119(F)(1)(b) provides that a file may not be sealed unless the court makes
specific finding of “good cause,” including specific findings that there is no less restrictive
option to protect the specific interest claimed to be the basis for sealing the file. Additionally,
MCR 8.119(2)(b) provides that in making a determination of good cause, the court is to consider
“the interest of the public.”
5. Sealing court records is considered such a serious action that any court that seals a
court file must report that action to the Michigan Supreme Court. MCR 8.119(7).
6. Additionally, the United States Supreme Court and other federal courts have
repeatedly held that sealing court records is presumptively unconstitutional under the First
Amendment and that any person seeking to do so faces significant First Amendment hurdles.
7. This action involves serious charges filed in a public court by a practicing
attorney. These are extremely serious matters and the public is entitled to knowledge of such
important matters involving elected public officials, and particularly sitting judges. Moreover,
the public is entitled to transparency in the court system and its handling of cases before any
court of this state. This is particularly important and compelling when one of the parties in the
case is a sitting judge.
8. Additionally, this litigation has been the subject of reporting, and sealing the file
would be pointless at this stage.
A supporting brief is filed herewith.
WHEREFORE, MLive, the Flint Journal and WXYZ-TV respectfully request the
opportunity to be heard and for the Court to deny Defendant’s Motion to Seal File.
3
Dated: October 2, 2012
Respectfully submitted,
/s/James E. Stewart______________
James Stewart (P23254)
James.Stewart@tklaw.com
Thompson & Knight LLP
39533 Woodward Ave., Ste. 320
Bloomfield Hills, MI 48304
Tel.: (248) 258-7900
CERTIFICATE OF SERVICE |
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Sat Sep 03, 2016 4:09 am |
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untanglingwebs
El Supremo
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4. MCR 8.119(F)(1)(b) provides that a file may not be sealed unless the court makes
specific finding of “good cause,” including specific findings that there is no less restrictive
option to protect the specific interest claimed to be the basis for sealing the file. Additionally,
MCR 8.119(2)(b) provides that in making a determination of good cause, the court is to consider
“the interest of the public.”
5. Sealing court records is considered such a serious action that any court that seals a
court file must report that action to the Michigan Supreme Court. MCR 8.119(7).
6. Additionally, the United States Supreme Court and other federal courts have
repeatedly held that sealing court records is presumptively unconstitutional under the First
Amendment and that any person seeking to do so faces significant First Amendment hurdles. |
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Sat Sep 03, 2016 4:10 am |
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untanglingwebs
El Supremo
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Sealing request | Reporters Committee for Freedom of the Press
www.rcfp.org/category/.../sealing-reque...
Reporters Committee for Freedom of the Press
A request to a court that it seal and shield from public view a court record ... A Michigan family court judge yesterday denied a motion to seal records in a ...
Mich. judge's request for sealing order in controversial suit against him denied
Kristen Rasmussen | Secret Courts | News | October 5, 2012
A Michigan family court judge yesterday denied a motion to seal records in a high-profile civil lawsuit without hearing arguments from the attorney representing several local media organizations that objected to the defendant’s request for secrecy.
Oakland County Circuit Judge Cheryl A. Matthews said during a hearing that she had no intention of shielding from public view court documents alleging that a state judge neglected and failed to support his two children. MLive Media Group -- which includes The Flint Journal, MLive.com Flint and MLive.com Detroit -- and WXYZ Channel 7, the ABC affiliate in Detroit, filed an opposition to Judge Archie Hayman’s request to seal the case file, which contains “ugly” allegations lodged by plaintiff-attorney Denise Ketchmark, Detroit media attorney James E. Stewart, who represented the media groups, said in an interview.
But despite the nature of the suit -- in fact, because of the “public’s justifiable interest in [the] litigation and in the public official and practicing attorney who are enmeshed in it” -- such pervasive secrecy infringes the First Amendment-based right of public access to judicial documents, according to the brief Stewart filed in support of the media groups’ opposition.
Under this jurisprudence, “suppression to protect reputations is specifically not justified,” and, given the strong presumption in favor of open court records, a party’s justification for sealing “must be a weighty one,” the brief stated.
In additional to federal constitutional law, Michigan law makes clear that “sealed court files are to be the exception and that court files may only be sealed from the public in extreme situations,” according to the brief.
Matthews agreed: “I can’t imagine a situation in which I would [seal the records],” according to a report by MLive.com Flint.
Although Stewart said he was prepared to present his arguments to the judge during the hearing, she said she did not need to hear them, noting the strong public interest in litigation involving a public official.
Stewart said the case is particularly newsworthy because Hayman — with whom Ketchmark has been having an affair for the past 19 years, according to her complaint — “publicly, has been quite strong about the need for fathers, especially in African-American communities, to be strong father figures. He is not easy on people who don’t pay their child support.”
Related Reporters Committee resources:
· Dig.J.Leg.Gd.: Sealing the trial record
Court records Sealed records Secrecy
Sitemap Terms & Conditions Publications iFOIA - FOIA letters and projects
Connect with us:
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© Reporters Committee for Freedom of the Press
1156 15th St. NW, Suite 1250, Washington, D.C. 20005, (800) 336-4243 or (202) 795-9300, info@rcfp.org |
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Sat Sep 03, 2016 4:15 am |
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untanglingwebs
El Supremo
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CLOSED FOJ CASE REGISTER OF ACTIONS 09/03/16 PAGE 1
98-062513-CL JUDGE NEITHERCUT FILE 02/26/98 ADJ DT 05/22/00 CLOSE 05/22/00
GENESEE COUNTY JDF SCAO LINE 120
P 001 SWIHART,LARRY,L VS D 001 YOUNGS ENVIRONMENTAL CLEANUP,,
ATY:BLACK,RANDIE K. ATY:MCCONAGHY,TIMOT
P-43555 517-324-1100 P-36122 248-589-9670
DISPOSITION 05/22/00 FOJ
SERVICE/ANS 04/06/98 ANS
D 002 ADVANCED ENVIRONMENTAL,INC,
ATY:MCCONAGHY,TIMOT
P-36122 248-589-9670
DISPOSITION 05/22/00 FOJ
SERVICE/ANS 04/06/98 ANS
D 003 YOUNG,ROBERT,S,
ATY:MCCONAGHY,TIMOT
P-36122 248-589-9670
DISPOSITION 05/22/00 FOJ
SERVICE/ANS 04/06/98 ANS
D 004 YOUNG,MARY,
AKA-YOUNG,TRUDY,
ATY:MCCONAGHY,TIMOT
P-36122 248-589-9670
DISPOSITION 05/22/00 FOJ
SERVICE/ANS 04/06/98 ANS |
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Sat Sep 03, 2016 4:28 am |
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untanglingwebs
El Supremo
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When Swihart filed his case he was aware of another successful age discrimination case against this company. The previous case was non-public and I wrote a FOIA protesting the exclusion of this case from public view. Imagine my surprise when I received the file and saw it was made non-public because the previous judge wrote the amount of the settlement in the file and then stated the settlement was confidential.
How many other cases were made confidential by Flint Judges in such an illegal fashion?
Judge or clerical error? Mke carr was clerk then. |
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Sat Sep 03, 2016 4:33 am |
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