One Perspective: Are courts ignoring relevant evidence?

 Ron Seigel

In 2011 the Michigan Supreme Court authorized the Wayne County, Oakland County and 13th Circuit Courts not to accept any evidence contained in paper documents. Lawyers and clients can now only submit documents if they are e-filed.

This is true in civil cases and in some areas even in criminal cases.

Marcia McBrien, public information officer for the Michigan Supreme Court, acknowledged that clients with lower incomes might not be able to afford the expense of e-filing or might not have access to the internet, but she said that the courts have met such problems by putting language in their orders “accommodating people who cannot file electronically.”

Elizabeth Kocab, general counsel of the Third District Court in Wayne County declared that those persons “who cannot for some reason use a computer” can seek “a waiver from the chief judge,” but adds “even then the litigants’ documents would be scanned and electronically filed by the [court] clerks.”

McBrien optimistically noted that such measures “ensure that all parties retain access to the court.” 

One woman, Gwendoline Mingo, strongly disagrees. The J.P. Morgan Chase Bank has filed foreclosure proceedings on a house she owned for over 15 years. She claims she has a document from the bank stating that she does not owe it one cent. She has not been able to present it to the presiding judge, Patricia Fresard, because of difficulties in e-filing it.

 In a court brief she described her efforts to follow the process Kocab described in getting help from the court clerks. She stated the clerks refused to help her e-file it until she got permission from the chief judge, Virgil Smith, and he was on vacation. When he came back, Mingo states the judge did authorize the court clerk to e-file the document, but it was one day past her court’s deadline for doing so. The presiding judge dismissed her case and ruled the banks could take her home. 

Mingo is appealing this decision.

How many people might be caught in this position under the present e-file system?

Kocab argues that there are “sound policy reasons” for the e-file requirement, because dealing with paper records in the court system requires a lot of space to store documents, time for employees to file them by hand and money to pay them. She even argues that the e-file requirement saves money for parties in legal disputes, because they can file documents and obtain records without going to the court house.

If this is so much in their interest, why not rely on their self-interest and give them the freedom of choice as to how they file their documents? Kocab answered “past experience has shown that without a mandatory system in place many litigants would simply rely on the traditional method of filing...[by paper].” In short, they would not do what she wanted them to.

American courts were not created to save time, money or space. Time, money and space could be saved by relying on edicts from a monarch or dictator or by going through the medieval system of trial by ordeal. The chief priority of the democratic American justice system ought to be to find the truth and dispense justice. On at least a moral basis, ordering judges to deny people’s right to introduce relevant documents represents tampering with evidence and obstruction of justice. The fifth amendment of the constitution states no one will be deprived of life, liberty or property without due process of law. By no stretch of the imagination can ignoring relevant evidence be defined as due process. 

Even examining financial considerations, we must look at how the economy of our cities has been crippled by numerous foreclosures. Allowing illegitimate foreclosures would greatly worsen the situation. One must certainly recognize that wealthy banks would not have anywhere as much difficulty dealing with mandatory e-mails as ordinary homeowners.

In its original administrative rule, the Michigan Supreme Court declared mandatory e-filing was an “experimental program.” Is it fair to treat average citizens as guinea pigs?

This process ought to be an important election issue. It is difficult for voters to evaluate candidates for judicial office, because legal ethics forbid them to discuss how they stand on issues which they are supposed to decide objectively under the law. However, this is not true their stand on court procedures, which hamper their ability to get relevant information on which they can make decisions. This they have a responsibility to talk about and the public has a right to know.

Groups involved in civil rights and civil liberties like the American Civil Liberties Union might challenge such abuses the current system in court and if they do not the membership might ask the reason why.