Berryman v. Mackey

327 Mich.App. 711

935 N.W.2d 94

James M. BERRYMAN, Petitioner-Appellee,

v.Wendell Shane MACKEY, Respondent-Appellant.

No. 340879

Court of Appeals of Michigan.

Submitted March 5, 2019, at Detroit.

Decided March 12, 2019, at 9:10 a.m.

James M. Berryman in propria persona.

Wendell S. Mackey in propria persona.

Before: O’Brien, P.J., and Jansen and Ronayne Krause, JJ.

Per Curiam.

Respondent appeals as of right a modified personal protection order (PPO) entered in favor of petitioner. For the reasons set forth in this opinion, we vacate the modified PPO.

I. FACTS AND PROCEDURAL HISTORY

This case arises from an acrimonious relationship between petitioner—the former mayor of Adrian, Michigan—and respondent. Respondent is active in publicly commenting on and writing about the political landscape in Adrian, and at the time of the events giving rise to the PPO, he was a candidate for the Adrian City Commission. Over 30 years earlier, in 1986, respondent was convicted of breaking into petitioner’s flower shop in Adrian and sentenced to 6½ to 10 years' imprisonment. In the spring of 2017, respondent began writing a series of articles on an online blog—exposingadrian.com—that were critical of the way Adrian public officials governed the city.

On July 6, 2017, petitioner petitioned the trial court for an ex parte PPO against respondent. According to petitioner, this filing was prompted by a verbal exchange between petitioner and respondent at a city commission meeting and a later e-mail that respondent sent to city officials on July 5, 2017. The relevant verbal exchange took place at a public meeting of the Adrian City Commission on June 19, 2017, after respondent commented on issues before the commission during the public-comment portion of the meeting. Petitioner initiated the following verbal exchange:

[Petitioner ]: Mr. Mackey, let me just, while you're there, ask you, are you the same Shane Mackey that robbed my flower shop back in 1986?

[Respondent ]: I certainly am.

[Petitioner ]: Are you?

[Respondent ]: Yes, I am.

[Petitioner ]: Okay. And then you wonder [what—]

[Respondent ]: I'm also the same Shane Mackey who you put in prison because you conspired with Judge Glaser as a young teenager for stealing teddy bears out of your store. And then I went to law school, and here I am.

[Petitioner ]: Okay. I just wanted to make sure that you're the same one that spent time in prison for that.

[Respondent ]: I'm sorry?

[Petitioner ]: You make those kind of accusations towards this commission, and yet—and yet, you took your time—

[Respondent ]: I was 19 years old. I'm 51 now. What else you got?

[Petitioner ]: Yeah.

[Respondent ]: What else you got? Because [it’s gonna get] dirty, so go ahead and get it out there. Because [it’s gonna get] dirty in this selection process.

[Petitioner ]: [No,] you're the one that continues to bring—to bring up things about this city commission and—

[Respondent ]: Such as—Such as—you're into the law [?] [S]uch as your criminal college deal?

[Petitioner ]: I just— [Respondent ]: Follow the law, that’s all I'm asking for. Because I did enough time in jail because of you, sir, because you [feel you’re above] the law.

[Petitioner ]: Because you broke—Because you broke into my store.

[Respondent ]: And the guidelines were probation, and I went to prison because you had talked to Judge Glaser, that’s what happened. And that’s why I went to law school, because of you, sir, because you're a corrupt, dirty, crooked politician. You're a career politician. And so I'm here, I'm going to be a thorn in your side, and I'm not going away.

And quite frankly, let me just say this: I've invested quite a bit of money into this community. And do you know why people don't invest downtown? Because it only works for three groups of people: Westfalls, Hickmans, and Kapnicks are the only ones getting money out of you guys. I would gladly invest downtown, but I can't. You know why? Because you're crooked. You're crooked.

The sales pitch you gave tonight, it was pathetic, it’s disingenuous. You sat there for seven years, and, oh, suddenly, it’s all about safety and saving the babies from bricks falling out of the sky, isn't it? Quite frankly, when I talked to your counsel about liability, do you know what she said to me? We have insurance. You have insurance. So who cares at all?

Anything else? Any other questions?

[Petitioner ]: No, you answered it.

[Respondent ]: Thank you. Have a good night.

Following this exchange, respondent sent an e-mail to the Adrian city attorney on July 5, 2017, criticizing petitioner and the city commission for not adhering to rules of parliamentary procedure during its meetings. Petitioner and other members of the city commission were copied on this correspondence.

On July 7, 2017, the trial court granted petitioner’s July 6 request for an ex parte PPO against respondent.

After the court issued the PPO, respondent sent an e-mail to the Adrian city attorney and the Adrian chief of police on July 8, 2017, advising them of his political campaign schedule and asking that petitioner be informed of the schedule so that the two would not cross paths.

Respondent also moved to rescind the ex parte PPO. The judge who issued the ex parte PPO thereafter recused herself, and the State Court Administrative Office reassigned the matter to a judge from a neighboring county. Following a three-day evidentiary hearing, the trial court denied respondent’s motion to rescind the PPO, but the court modified it. The modified PPO prohibited respondent from directly contacting or confronting petitioner but otherwise permitted respondent to "confront [petitioner] in the context of public speech and/or debate" and to contact petitioner by phone, if necessary, as part of the "political process."

Respondent now appeals as of right, arguing that the trial court erred by refusing to rescind the PPO.

II. STANDARD OF REVIEW

Because a PPO is an injunctive order, a trial court’s decision whether to rescind a PPO is reviewed for an abuse of discretion. Hayford v. Hayford , 279 Mich. App. 324, 325; 760 N.W.2d 503 (2008). The trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id. "A trial court necessarily abuses its discretion when it makes an error of law." Pirgu v. United Servs. Auto. Ass'n , 499 Mich. 269, 274; 884 N.W.2d 257 (2016). The trial court’s findings of fact are reviewed for clear error. Hayford , 279 Mich. App. at 325, 760 N.W.2d 503. A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. Ross v. Auto. Club Group , 481 Mich. 1, 7, 748 N.W.2d 552 (2008).

III. ANALYSIS

Respondent argues that the trial court erred by entering a modified PPO rather than rescinding the PPO because his conduct did not meet the statutory requirements of MCL 750.411h. We agree.

The trial court’s modified PPO was entered under MCL 600.2950a, which provides, in pertinent part:

(1) Except as provided in [ MCL 600.2950a(27), (28), and (30) ], by commencing an independent action to obtain relief under this section, by joining a claim to an action, or by filing a motion in an action in which the petitioner and the individual to be restrained or enjoined are parties, an individual may petition the family division of circuit court to enter a personal protection order to restrain or enjoin an individual from engaging in conduct that is prohibited under ... MCL 750.411h, 750.411i, and 750.411s. A court shall not grant relief under this subsection 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, 1931 PA 328, MCL 750.411h, 750.411i, and 750.411s.

An individual against whom an ex parte PPO has been entered may petition to rescind the PPO. See MCL 600.2950a(13) and (14).

The individual petitioning the trial court for a PPO "bears the burden of proof." Lamkin v. Engram , 295 Mich. App. 701, 706; 815 N.W.2d 793 (2012). Because petitioner’s petition for an ex parte PPO was based on MCL 750.411h, petitioner was required to demonstrate that respondent’s conduct amounted to stalking as defined by the statute. See id. In determining whether to issue a PPO, the trial court is not limited to the petition itself but may consider additional testimony, documents, and "other evidence proffered to determine whether a respondent engaged in harassing conduct." Id . at 711, citing MCL 600.2950a.

MCL 750.411h(1) defines "harassment" and "stalking" in the following manner:

(c) "Harassment" means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.

(d) "Stalking" means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

MCL 750.411h(1) defines "course of conduct" and "unconsented contact" in the following manner:

(a) "Course of conduct" means a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose.

* * *

(e) "Unconsented contact" means any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued.

In this case, when the trial court ruled to modify rather than rescind petitioner’s PPO against respondent, it reasoned as follows:

So this is certainly an unusual case .... Technically, very

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