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Sixth Circuit tackles whether parties are owed access to audio court records

Previously, a federal judge dismissed the individuals’ First Amendment claims finding that they could be denied audio versions of court proceedings.

CINCINNATI (CN) — The Sixth Circuit heard oral arguments Thursday in a case where two individuals claim First Amendment violations because they were denied audio recordings of their state court proceedings.

The case originates from two separate state court actions in Michigan. According to court documents, Claudette Greenhoe and her husband were parties to litigation before the Bay County Probate Court. Kolu Stevens was involved in litigation before the Family Division of the Antrim County Circuit Court.

Both parties lost their cases and both believed that the court provided transcripts for their respective appeals contained serious errors. Each party then sought to gain access of audio recordings for their proceedings and were denied by officials.

Eventually, both parties filed the lawsuit claiming that their First Amendment right of access should include certain court records related to state-level court proceedings, namely the audio recordings of their case. Originally Greenhoe’s husband was also a party to the case, but according to court documents has since passed away.

Stevens and Greenhoe faced a setback in November of last year when U.S. District Judge Paul Maloney ruled against them, finding that the First Amendment’s right of access does not extend to audio recordings of court proceedings.

“The Court concludes that Defendants did not deny Plaintiffs’ First Amendment right of access. While the Michigan Rules of Court might consider the audio recordings to be court records, the First Amendment does not consider those same recordings to be judicial records to which the public or press must have some access,” Maloney wrote. “And, even if the recordings are so protected, Plaintiffs were not denied access because they were present during the proceedings, have a transcript of the proceedings, and likely could pay for the preparation of another transcript of the proceedings.”

The pair proceeded to appeal the district court’s ruling which brought the case to the Sixth Circuit, where arguments were heard by both sides before a three-judge panel during a roughly 30-minute hearing.

Representing Stevens and Greenhoe during oral arguments was attorney Philip Ellison, who argued that the district court’s admission that the audio records were indeed court records shows that his clients had their First Amendment rights violated.

“What makes this case, I think, incredibly simple, is the fact that Michigan has designated these as court records,” Ellison said. “And I would ask the court to apply that test accordingly.”

Ellison also agreed that a simple copy of the audio recordings in question would suffice.

Attorney Douglas Curlew briefly argued on behalf of Kim Mead and William Hefferan, the two court administrators who were sued as defendants in the case. He claimed that his clients were not liable parties to the case because they were just carrying out orders from the court when denying the requests for the recordings.

“The real beef is with the rule making authority,” Curlew said. “As far as Mead and Hefferan are concerned, they're just doing what was signed by judges.”

Circuit Judge Karen Moore, who was nominated to the Sixth Circuit by President Clinton, seemed to agree with Curlew’s argument that the two county administrators would not be liable.

“I think we all agree,” Moore said.

Attorney Bryan Beach represented the other defendant in the case, Michigan State Court Administrator Tom Boyd. Beach argued to the judges that the audio records are in fact treated slightly different than other court records.

“The audio recording itself is just something used to create the transcript,” Beach said. “I would argue that there is a First Amendment right to the transcript. The final version that is created and is signed off as the official transcript. The audio itself is just a tool that is used to create that transcript.”

Beach also argued that his client was not a liable party to the lawsuit because in his position, he does not draft the actual court rules.

This prompted both Circuit Judge Danny Boggs, who was nominated by President Reagan, and George W. Bush nominee Circuit Judge Richard Griffin to ask Beach who should be sued when local court rules such as the ones presented in the case are challenged.

“If the issue is that the court rules give the local courts these options, it certainly is not the state court administrator,” Beach said.

The trio of judges all continued to ask Beach about the merits of the First Amendment claims, positing a variety of questions about why the audio records could be withheld.

Beach answered by saying that in a case where a transcript of the proceedings is generated, that provided transcript would satisfy the First Amendment.

Ellison closed the proceedings by saying that neither of the two opposing counsels had countered his arguments to the court.

“You’ve all asked each of these two gentlemen here, who are two very smart attorneys, asked them to justify to you any reason why the audio recordings should not on a practical matter be provided,” Ellison said. “And despite asking both directly that question, neither one of them provided you with an answer.”

The court did not indicate how or when they would issue their ruling in the case.

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