e-Journal Summary

e-Journal Number : 47150
Opinion Date : 10/21/2010
e-Journal Date : 10/25/2010
Court : Michigan Court of Appeals
Case Name : Jenson v. Puste
Practice Area(s) : Litigation, Personal Protection Orders
Judge(s) : K.F. Kelly, Murray, and Donofrio
Full Text Opinion

Whether a trial court has authority to seal a PPO pursuant to MCR 8.119(F); UAW v. Dorsey; Saffian v. Simmons; Interpreting a court rule; Green v. Ziegelman; Vyletel-Rivard v. Rivard; MCR 8.119(F)(5); Use of the words "may not"; Walters v. Nadell; Johnson v. White; Specific provision controls over a general provision; Gebhardt v. O'Rourke


Holding that a court is prohibited from sealing court orders and court opinions pursuant to MCR 8.119(F)(5), the court affirmed the trial court's order denying the defendant's motion for entry of a consent order to vacate a PPO nunc pro tunc and to seal the court file. The parties were divorced in March 2006. The plaintiff-ex-wife sought a PPO in November 2006 and her petition was granted. The PPO remained in effect for a year, apparently without further incident, and she did not seek to renew it after it expired. In April 2009, defendant moved for entry of a consent order to vacate the PPO nunc pro tunc and to seal the court file, contending that while the PPO had been removed from the LEIN system, a background check of defendant through the court system revealed its existence. He alleged that he was unable to obtain employment because his background check revealed the PPO. Thus, he asked the trial court to find "good cause" to seal the court file pursuant to MCR 8.119(F)(1) and enter a consent order vacating the PPO nunc pro tunc. The trial court denied the motion, concluding that MCR 8.119(F)(5) does not grant a court discretion to seal a court order or opinion. On appeal, defendant argued that MCR 8.119 gave the trial court the discretion to seal the court file, including the PPO, and that sealing the records was justified upon his showing of good cause and the fact that no less restrictive means were available to adequately protect his interest. The court disagreed with his interpretation of the court rule. While MCR 8.119(F) establishes a procedure allowing a court to seal court records, MCR 8.119(F)(5) "specifically prohibits a court from sealing court orders and opinions." Significantly, subrule (F)(5) "does not allow a court the authority to exercise discretion in deciding whether to seal these two types of court records, unlike the limited discretion that subrule (F)(1) allows when a motion involves other court records." Reading the two subrules together, the court concluded that, in light of the definition of "court records," it was clear that "the limited discretionary authority that is extended to a court deciding a motion to seal court records under subrule (F)(1), is not extended to a court deciding a motion to seal a court order or court opinion under subrule (F)(5)." The court concluded this understanding of (F)(5) was supported by a reading of subrule (F) as a whole. Defendant's interpretation "would make subrule (F)(5) a superfluous provision and would render it nugatory." Further, in light of the rule's general purpose of granting public access to court records, the court concluded that the intent of the rule was contrary to an interpretation that would give a court "unbridled discretion in deciding whether to seal a court order or opinion." Affirmed.

Full Text Opinion