Over 2,500 comments flood court as Michigan fights to ban masked ICE agents

The Michigan Supreme Court adopted a rule on Wednesday to prohibit civil arrests, including the civil immigration warrants commonly used by ICE, which are administrative warrants, not judicial warrants.

Specifically, the new rule, which will go into effect on May 1, states that “Parties, attorneys, and subpoenaed witnesses are not subject to civil arrest while going to, attending, and returning from the places they are required to attend.”

That is defined in the rule as applying in any location that a person is legally obligated to appear at for judicial proceedings or related functions, as well as “the reasonable and direct travel necessary” to arrive and return from those proceedings.

The rule, first proposed in late November, garnered significant public attention, with over 2,500 comments posted to the court’s website over the course of just over a month. Those comments included support from Attorney General Dana Nessel, as well as a number of state legislators and organizations like the State Bar of Michigan Executive Committee.

“The existence of, and ICE’s compliance with, its own prior policies shows that ICE can carry out its operations without making civil arrests in a courthouse. And there is nothing in the proposed amendment to suggest otherwise,” Nessel wrote. “All told, the impact of the proposed amendment on ICE’s operations will be minimal, and any impact is far outweighed by the need to protect and preserve the people’s fundamental right to participation and accountability in the fair administration of justice.”

This rule now largely aligns Michigan with a number of other states that have enacted policies to limit ICE actions at courthouses, including New York, Connecticut and Illinois.

Judge Noah Hood added a concurring opinion in the order issuing the rule, which he said was to “emphasize that this amendment falls squarely within this Court’s rulemaking function and does not exceed it.”

He noted that the rule “functions to maintain order in courthouses and courtrooms so that litigants, witnesses, and members of the public may conduct their business without unnecessary interference, including when they are en route to and from the same,” and that it does not impair federal or state executives, nor the state Legislature, from executing or making laws related to civil arrests or immigration enforcement.

Justice Brian K. Zahra, the sole Republican on the court, wrote a dissenting opinion in opposition to the new rule, calling it “at best a political statement framed as a solution in search of a problem.” Zahra, who also stated when the rule was first proposed that he would have declined to publish the proposal for comment, wrote that the question of immigration detention at courthouses was not a problem in Michigan.

He also raised concerns about the U.S. Constitution’s Supremacy Clause, which is often cited as a reason why state and local jurisdictions have limited ability to limit ICE actions, including the development of detention centers.

“State courts have no authority to void a federal arrest,” Zahra wrote. “The proposed amendment offers only false assurance that parties, attorneys, subpoenaed witnesses, and officers while going to, attending, and returning from court may not be arrested by the federal government. Moreover, as a practical matter, the prospect of having an arrest ‘voided’ by a state court offers false comfort to someone being held in federal custody.”

The rule’s adoption comes as a set of bills to limit ICE actions in multiple jurisdictions — including courts — has advanced to the full Senate. The bills would also limit the use of masks by federal law enforcement officers. While likely to pass the Democratic-controlled upper chamber, Michigan House Speaker Matt Hall (R-Richland Township) has refused to take up similar legislation in the GOP-led House.