Lawyer’s Appeal Of Trial Court Recording & Broadcast Policy Is Denied

A federal court has refused to hear the appeal of a Michigan attorney who was charged with contempt after he screenshotted a state trial court proceeding and then posted the photo to social media.

Bingham Farms attorney Nicholas Somberg, while appearing via Zoom at a 52nd District Court hearing, snapped a screenshot of the proceeding, which was also being livestreamed on YouTube. He then posted the photo on Facebook. Jessica Cooper, the Oakland County Prosecutor at the time, filed contempt charges against Somberg, claiming his conduct violated the trial court’s rules on recording and broadcasting judicial proceedings. The charges against Somberg were ultimately dismissed on procedural grounds.

Somberg wanted to continue posting photos of Michigan trial court proceedings, but he was concerned that contempt charges may again be brought against him. So Somberg challenged the trial court’s recording and broadcast policy in a Detroit federal court, claiming it violated the First and 14th Amendments. Somberg filed a motion for summary judgment, while the Oakland County Prosecutor asked the federal court to dismiss the claims. U.S. District Court Judge Gershwin A. Drain ruled that the First Amendment does not protect the right to record court proceedings. Judge Drain, however, also declined the Oakland County Prosecutor’s request to dismiss the case because a cross-motion for summary judgment had not been filed.

Somberg then petitioned the 6th U.S. Circuit Court of Appeals, seeking permission to appeal the denial of his motion for summary judgment under 28 USC §1292(b).

The 6th Circuit rejected Somberg’s request in In re Somberg (Docket No. 22-0101). “Because immediate review would not bring this lawsuit to a close materially sooner than an appeal from a final judgment, we deny the petition,” the three-judge panel said.

6th Circuit Chief Judge Jeffrey S. Sutton, and Judges Karen Nelson Moore and R. Guy Cole, Jr. were on the panel that issued the order.

No Interlocutory Review

In its analysis, the 6th Circuit explained that Somberg’s interlocutory appeal would not “materially advance” the litigation. “Appeals fulfilling that criterion typically are those where, absent review, potentially unnecessary ‘protracted and expensive litigation’ will ensue,” the court said, citing various cases where the 6th Circuit has permitted review.

“Interlocutory review would forestall little here,” the 6th Circuit wrote. “Somberg acknowledges that his case does not turn on any disputes of fact, which means that there is no trial to avoid. The most likely next step, as we see it, would be for the prosecutor’s office to move for summary judgment. The district court’s conclusion that Somberg’s summary judgment motion failed as a matter of law raises the possibility that it will be amenable to a motion cutting the other way. Right or wrong about that possibility, there is plenty of reason to think that the case could proceed to final judgment quickly.”

The 6th Circuit also said it was not “moved” by the lower court’s reasoning. “It noted that, if the litigation continues without appeal, Somberg will likely have to amend his complaint to proceed. But that reality cautions against immediate review, not in favor of it. If we deny permission to appeal now, and Somberg adds new claims, the district court can address them, and we can review his claims all at once at the end of the proceedings below. If we grant permission, regardless of what we say about the existing claim in the interim, the district court would need to address the hypothetical new claims afterward. The case could easily come back to this court after that. At best, that seems like six of one and a half dozen of the other. Given the countervailing interest against piecemeal appeals, we exercise our discretion to avoid it.”

The lower court “also relied on our cases suggesting that when a lawsuit will proceed ‘in substantially the same manner regardless’ of what we say on appeal, it does not warrant interlocutory review,” the 6th Circuit observed. “The court took that statement to mean that an appeal materially advances litigation if it affects how the litigation proceeds. But that seems to be the flipside of [In re City of Memphis, 293 F3d 345 (6th Cir. 2002)], not a restatement of it. No doubt, an immediate appeal has the potential to alter this litigation’s path and outcome, just as an appeal of almost any controlling question of law would. But immediate review will not accelerate its end in this instance. Under these circumstances, the preference for final judgments wins out.”

Further, the fact that the Oakland County Prosecutor failed to oppose interlocutory review did not “change things,” the 6th Circuit concluded. “Even though we have observed that the §1292(b) factors are ‘guiding criteria’ for our court, not ‘jurisdictional prerequisites,’ … that does not mean the parties can concede their way to appellate review without our input …. We deny the petition for leave to appeal.”