-Caveat Lector- http://www.zwire.com/site/news.cfm?newsid=3948766&BRD=982&PAG=461&dept_id=467992&rfi=6
Lawmakers defending secret warrants By JOHN WISELY, Of The Oakland Press April 25, 2002 April 25, 2002 Local legislators are defending two new laws that limit public access to court documents. The laws, which took effect this week, stop the public from gaining access to search warrants and affidavits. It deems them nonpublic records. Lawmakers - who unanimously voted for the measures in the Senate and House of Representatives - said the laws protect crime victims, informants and witnesses from criminals and the media. But civil libertarians and First Amendment lawyers argue they invite police abuse and curtail public scrutiny. State Sen. Bill Bullard, R-Highland Township, who co-sponsored one of the bills with Sen. Shirley Johnson, R-Royal Oak, said despite specific wording that makes the records "nonpublic," he believes affidavits still are subject to Michigan's Freedom of Information Act (FOIA). Johnson could not be reached for comment. "FOIA trumps that," Bullard said Wednesday. "If we had wanted to amend FOIA, we would have done that." But a Friday memo from State Court Administrator John Ferry Jr. to courts across the state makes no such distinction. The memo tells clerks that access to the records is restricted. When an Oakland Press reporter sought a search warrant from a district court Tuesday, a clerk said "they can't be released" and handed over a copy of the memo about the new law. The new law "makes all search warrants, affidavits and tabulations in any court file or record retention system nonpublic," according to the memo. "How else is that to be interpreted?" said Dawn Phillips, a First Amendment lawyer with the Michigan Press Association. "People in law enforcement want to follow laws. If they are looking at that memo, they are not going to release those records." The bills were part of an anti-terrorism package that passed the Legislature after the Sept. 11 attacks. At issue are affidavits, the sworn information police submit to courts when they want to get permission to search someone's home. The information often includes the name of the person who has told police where the criminal or evidence can be found. If a person's home is searched and he or she is charged with a crime, a defense lawyer can demand access to the information. If the government seeks to forfeit the person's property in a civil case, the file also would be opened. But if no charges are brought, the new law doesn't spell out a way for the person who was searched to learn why the police searched the home. Pontiac defense attorney Elbert Hatchett said the move is an expansion of a dubious process of sealing warrants. "Unfortunately, that's been the case for some time," Hatchett said. "The officer asks for a search warrant and then asks the judge for a suppression order citing an on-going investigation. It's almost automatic. These courts and these legislators have always exalted the rights of police over the rights of the accused." State Rep. Ruth Johnson (R-Holly) said the point of the law is to protect victims. She said judges still must approve warrants. "Everything we do is a balancing act," she said. "The judge is the person that is entrusted to make sure it's done properly." State Rep. Nancy Cassis (R-Novi), who cosponsored the bill in the House, said the provisions originated in a domestic violence package. Legislators were worried that attackers could learn where their victims were staying by getting the address from the affidavit. "Believe me, if there were to occur abuse of this, I'm sure it would be relooked," Cassis said. State Rep. Andrew Raczkowski (R-Farmington Hills) said closing the affidavits to public view protects victims from criminals and the media. "On that affidavit, you also have information about the victim," Raczkowski said. 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