Booth Newspapers, Inc. v. Cavanaugh

Decision Date23 December 1968
Docket NumberNo. 3,Docket No. 4955,3
Citation166 N.W.2d 546,15 Mich.App. 203
PartiesBOOTH NEWSPAPERS, INC., a Michigan corporation, Plaintiff-Appellee, v. Robert A. CAVANAUGH, Probate Judge for Muskegon County, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Harold M. Street, Poppen, Street & Sorensen, Muskegon, for appellant.

H. Winston Hathaway, Hathaway, Latimer, Clink & Robb, Muskegon, for appellee.



Plaintiff newspaper corporation sent one of its reporters to the probate court of Muskegon county to look at the last will of a prominent citizen of the community recently deceased. No specific reason has been given by plaintiff for its desire to inspect the will. Defendant, a probate judge, denied the reported permission to do so. A complaint for superintending control was filed by plaintiff and answer followed, the case was submitted on the pleadings and the Muskegon county circuit court decided in favor of allowing the plaintiff to inspect the will. Appeal followed.

The applicability of the term 'persons interested' to plaintiff newspaper is in issue, the term being included in section 28 of the probate code, P.A.1939, No. 288, (C.L.1948, § 701.28 (Stat.Ann. § 27.3178(28))) which reads as follows:

'The judge of probate shall have possession of the seal, records, books, files and papers belonging to said court, and shall keep a true and correct record of each order, sentence and decree of the court, and of all other official acts made or done by him, and of all wills proved therein with the probate thereof, of all letters testamentary, and of administration, and of all other things proper to be recorded in said court. Such records, except as otherwise provided by law, May be inspected without charge by all persons interested. (Emphasis supplied.)

The fundamental rule in Michigan on the matter before us, first enunciated in the case of Burton v. Tuite (1889), 78 Mich. 363, 44 N.W. 282, is that citizens have the general right of free access to, and public inspection of, public records. This is contrary to the English common law rule which permitted inspection but prohibited private use, by providing no remedy in the absence of a showing of special interest specifically concerning litigation. The oft-cited equity standard of 'no right without a remedy' 1 helped to destroy the rule as has the democratic desire to maintain freedom of access of the public to the records made by its government.

The case of Nowack v. Auditor General (1928), 243 Mich. 200, 219 N.W. 749, 60 A.L.R. 1351, remains the definitive law of this State and has been employed by other jurisdictions to assist in resolving problems similar to the present one. 2 Plaintiff there was the manager and editor of a newspaper which sold news to the people, and he sought to inspect the records of the defendant with the lawful purpose 3 of publishing a true and fair statement of the expenditure of public money. When his request was denied, he sought remedy by a writ of mandamus through the office of the attorney general, but in his own name, which required that he show a 'special interest' not possessed by the citizens generally. By reason of his position as editor of a newspaper who has been injured in his particular business of dissemination of news, plaintiff was held to possess the 'special interest' and was permitted access to the records.

The case of Borah v. White County Bridge Commission (C.A. 7, 1952), 199 F.2d 213, is cited by both parties to this appeal and merits discussion. Plaintiff, a taxpayer and a toll payer, sought to inspect the records of the White County Bridge Commission, but was denied access on the grounds that he was not one of the class of 'all persons interested' who were permitted to do so by an act of Congress which specifically created the commission as a corporation to carry out a governmental purpose financed, not from taxation, but from services furnished and rendered. (Act April 12, 1941, 55 Stat. 140; 28 U.S.C.A. § 2201.) Borah did not possess a 'special interest' different than that possessed by the public at large, unlike in the Nowack Case, supra, for he did not have 'something more than a common concern for obedience to law', 4 such a concern being one which may be directly and materially affected by alleged unlawful action. He made no charge of malfeasance or irregularity and so was not a person sufficiently interested to have access.

Defendant attempts to draw an analogy to the Borah decision, urging this Court to find that plaintiff also fails to show a 'special interest'. We cannot agree, and find that the Borah court was primarily concerned with not imposing an unreasonable burden of mass inspection upon a quasi-governmental commission, created by Congress and Not financed by taxation of the general public. A probate court is in no way similar to such a commission for purposes of the issue before us, and such a 'burden' does not exist.

The Nowack decision has 'placed Michigan at the vanguard of those states holding that a citizen's accessibility to public records must be given the broadest possible effect'. 5 Restrictions placed on such broad access can be of several types, none of which is applicable here.

First, the legislature, for its own reasons, may specifically define and limit 'persons interested' to a certain class, also intending that such definition be uniform throughout the code. 6 It may also foresee certain governmental burdens and so restrict access by providing definitions of 'public' as opposed to 'private' records. 7 Finally, the courts may determine that the legislature intended to restrict access in cases where harm to the public interest may be said to outweigh the right of members of the public to have access, 8 or where the purpose for which the information will be used is stated to be unlawful, 9 or where reputations may be harmed, 10 or for pastime, whim or fancy. 11 In such cases, a balancing of the public interest with the right of access must be made. The only harm to the public interest which could occur here would be if we would deny access to the newspaper.

The terms 'interested' and 'person' appear in different arrangements in the probate code a total of 41 times by defendant's count. By referring to several of the statutes, defendant attempts to replace the terms with the word 'newspapers' as evidence that the legislature clearly did not intend such a semantical juxtaposition be made. An example of defendant's theory serves to show the invalidity of his position instead of supporting it, to wit: 'If All persons interested in the estate shall signify in writing their assent to such sale * * * the notice may be dispensed with.' (Section 467 (C.L.1948, § 709.7; Stat.Ann.1962 Rev. § 27.3178(467)); emphasis supplied.) It is apparent that 'newspapers' cannot be substituted here if one makes any reasonable interpretation of the intent of the legislature as expressed. Technical definitions of the terms occur seemingly at random throughout the code and the definition given in one statute obviously is not intended to apply in another in most cases. Compare C.L.1948, § 704.31 (Stat.Ann.1962 Rev. § 27.3178 (282)) with C.L.1948, § 709.6 (Stat.Ann.1962 Rev. § 27.3178(466)). Instead, the lower court, and this Court, believe that every use of the terms must be reinterpreted for meaning in each statute, where the meaning does vary and is not uniform. Reference should be made to the nature and purpose of the subject matter, considering the 'persons' allegedly 'interested' while examining any restrictions or definitions provided by the legislature in the particular statute. If this procedure does not work, then reference may be made to other relevent definitions of the terms for assistance. 12 To apply this test to the present case, we find that the subject matter is probate records, 13 the persons interested are newspapers, 14 and no further relevant definition or restriction is employed by the legislature. The nature of the subject matter, and of the persons interested, in the present case are sufficient to dictate inspection of the records.

The good faith attempt of defendant to carry out the mandate of the statute charging him with possession of the seal and records as cited, Supra, is not questioned. There may be instances where failure to deny access to the records might be called a dereliction of duty on the part of a judge. This case,...

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  • Swickard v. Wayne County Medical Examiner
    • United States
    • Michigan Supreme Court
    • 19 Septiembre 1991
    ...FOIA in 1977, Michigan enjoyed a long history of allowing citizens free access to public records. Booth Newspapers, Inc. v. Muskegon Probate Judge, 15 Mich.App. 203, 166 N.W.2d 546 (1968). In Booth, the Court of Appeals "The fundamental rule in Michigan on the matter before us, first enunci......
  • Kestenbaum v. Michigan State University
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    ...that citizens have a general right of free access to, and inspection of, public records. See Booth Newspapers, Inc. v. Muskegon Probate Judge, 15 Mich.App. 203, 166 N.W.2d 546 (1968), and the cases cited Plaintiff has argued that by making the information available in a printed directory, t......
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    ...Mich. 200, 203-204, 219 N.W. 749 (1928); Burton v. Tuite, 78 Mich. 363, 375, 44 N.W. 282 (1889); Booth Newspapers, Inc. v. Muskegon Probate Judge, 15 Mich.App. 203, 205, 166 N.W.2d 546 (1968).12 The type of case in Schlitz Brewery is generally described as "reverse FOIA" in that a party sub......
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