DWJ v. CLB
| Docket Number | 363324 |
| Decision Date | 02 November 2023 |
| Parties | DWJ, Petitioner-Appellee, v. CLB, Respondent-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 22-108559-PH
Before: LETICA, P.J., and MURRAY and PATEL, JJ.
Petitioner the city attorney for the city of Inkster, obtained an ex parte personal protection order against respondent, who moved to have it terminated on the ground that all the complained of conduct was constitutionally protected speech. The trial court denied the motion, holding that respondent's repeated conduct of showering petitioner with offensive commentary, while sometimes displaying critical caricatures of petitioner, both in-person and electronically, constituted stalking. The court also held that respondent's communications were not constitutionally protected expression because they violated petitioner's "right to be left alone." Respondent appeals as of right. We reverse.
Respondent is a private citizen who has often engaged petitioner, a city attorney, through e-mail and at public meetings, to express his opinion of petitioner's job performance through insulting utterances and displays of petitioner's face in unflattering and embarrassing settings. Petitioner testified that respondent first contacted him by e-mail at his work address in January 2020 after petitioner denied one of respondent's Freedom of Information Act (FOIA)[1] requests. Thereafter, respondent filed many additional FOIA requests and lawsuits. According to respondent, petitioner "began a pattern of appearing at the public meetings and ridiculing myself ridiculing my clients, depicting me, along with elected officials in defamatory and pornographic" ways. Petitioner sought the protective order after respondent appeared at a city council meeting with a poster depicting petitioner's wife disparaging him to the mayor, while their heads were resting on pillows. Petitioner alleged that respondent then called him a "chump" when petitioner walked near him, and that he thought that respondent was armed because he had informed officials that he would exercise his permit to carry a concealed weapon during public meetings and then appeared with a small tote bag on his body.
On July 22, 2022, the trial court issued an ex parte personal protection order on behalf of petitioner against respondent. On October 7, 2022, another trial court judge denied respondent's motion to terminate the PPO, holding that respondent's repeated conduct of displaying critical caricatures of petitioner, with commentary, to petitioner, both in-person and electronically, constituted stalking. The trial court further held that respondent's communications were not protected by the First Amendment because they violated petitioner's "right to be left alone." Respondent now appeals as of right.
This Court reviews a trial court's decision regarding whether to issue, or terminate, a PPO for an abuse of discretion. See TT v KL, 334 Mich.App. 413, 438; 965 N.W.2d 101 (2020). The trial court abuses its discretion when it chooses an outcome outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 N.W.2d 809 (2006). The trial court's findings of fact are reviewed for clear error. Berryman v Mackey, 327 Mich.App. 711, 717; 935 N.W.2d 94 (2019). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. at 717-718.
This Court reviews constitutional questions de novo. TM v MZ (On Remand), 326 Mich.App. 227, 236; 926 N.W.2d 900 (2018).
The purpose of personal protection orders is to protect individuals "who are maliciously followed, harassed, or intimidated by stalkers." Nastal v Henderson &Assoc Investigations, Inc, 471 Mich. 712, 721; 691 N.W.2d 1 (2005). A petition for a PPO is governed by the court rules except as otherwise provided in MCL 600.2950 and MCL 600.2950a. TT, 334 Mich.App. at 439. MCL 600.2950a is the nondomestic PPO statute, which "addresses stalking behavior or conduct that is not limited to certain existing relationships."
In a motion to terminate an ex parte PPO, the petitioner bears the burden of persuasion. TM, 326 Mich.App. at 236. A court may not grant a nondomestic PPO "unless the petition alleges facts that constitute stalking as defined in section 411h or 411i, or conduct that is prohibited under section 411s, of the Michigan penal code." MCL 600.2950a(1). In this case, the trial court stated that "[p]etitioner testified to [a] course of conduct of stalking and repeated unconsented contact by Respondent which caused him to feel emotional distress, terrorized, frightened, intimidated, threatened and harassed," citing MCL 750.411h(1)(d) and MCL 750.411h(1)(a).
At the hearing on the motion to terminate the PPO, petitioner testified that he denied respondent's initial FOIA request, that respondent filed subsequent FOIA requests and lawsuits, and he described respondent's pattern of appearing at public meetings, including some that were not of the city council, for approximately one year. According to petitioner, respondent commented negatively about petitioner's job performance at every meeting petitioner attended. Petitioner testified about, and presented numerous exhibits to show, respondent's "constant," "weekly, sometimes daily," e-mails to petitioner, beginning in June 2020, some of which were also sent to members of petitioner's law firm or other public officials, which typically included depictions of petitioner's face superimposed on the body of another person or animal in an offensive way, along with statements disparaging petitioner's competence or personal characteristics.
Respondent does not dispute petitioner's assertions regarding the authenticity, frequency, tone, or contents of his communications, but argues that "everything the appellee alleged in his petition and/or ruled on by the trial court in its opinion and order is constitutionally protected speech and activity." We agree.
The First Amendment of the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech ...." The Michigan Constitution provides that "[e]very person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech." Const 1963, art 1, § 5. Speech over the Internet is constitutionally protected" 'to the same extent as speech over other media.'" TM, 326 Mich.App. at 237, quoting Thomas M Cooley Law Sch v Doe 1, 300 Mich.App. 245, 256, 833 N.W.2d 331 (2013). However, "the freedom of speech is not absolute," and such "well-defined and narrowly limited" classes of speech as "obscenity, defamation, fraud, incitement, and speech integral to criminal conduct" may be suppressed without offending constitutional principles. Buchanan v Crisler, 323 Mich.App. 163, 181-182; 922 N.W.2d 886 (2018) (cleaned up).
The extent to which respondent's offensive speech targeting petitioner was protected is dependent on petitioner's characterization as either a public or private figure. The trial court did not make an explicit determination in this regard. On appeal, respondent takes the position that petitioner was a public figure, and petitioner argues otherwise.
"Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz v Robert Welch, Inc, 418 U.S. 323, 342; 94 S.Ct. 2997; 41 L.Ed.2d 789 (1974). A person who has acquired "pervasive fame or notoriety" may become a public figure "for all purposes and in all contexts." Id. at 351. However, Id. Also bearing on the question is that MCL 750.478a(7)(d)(ii) defines "public officer" as a person "elected or appointed" to a "public office of a city, village, township, or county in this state." Not in dispute is that, at the time relevant, petitioner held municipal appointments as Inkster's city attorney, and as a member of the City of Detroit Board of Ethics. We conclude, as a matter of law, that, in light of the obvious focus of the speech at issue on matters of public interest relating to local politics, and of petitioner's statutorily recognized status as a public officer, petitioner was a public figure for present purposes.
The trial court held that respondent's political commentary toward petitioner lost constitutional protection because it infringed on petitioner's "right to be left alone," explaining as follows:
When balancing the right of every person to be let alone with the balancing of the right of others to communicate, this Court finds that Petitioner's right to be left alone has been compromised. See Hill v Colorado, 530 U.S. 703, 717; 120 Ct 2480; 147 Ed 2d 597 (2000). The right to be let alone is that right which the PPO statute seeks to protect, by criminalizing stalking except where the conduct is constitutionally protected. Here, Respondent's direct targeting of Petitioner, . . . which Respondent acknowledged doing at the hearing held on August 4, 2022, lost its protected character.
In Hill, 530 U.S. at...
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