995 N.W.2d 361
Mich. Ct. App.2022Background
- ARM obtained multiple domestic personal-protection orders (PPOs) against KJL after an acrimonious custody dispute; the PPO at issue was entered March 31, 2016 and barred stalking under the criminal statutes.
- In 2019 ARM moved to show cause, offering a 12‑page screenshot exhibit of Facebook activity (pages 1–12) from accounts titled “Justice for O” and a “KW” profile; page 7 contained a comment that tagged ARM.
- Defense counsel expressly stated “no objection” when the prosecutor offered pages 1–12 into evidence; the court denied a defense motion to strike pages 1–7 and admitted recorded jail calls in which KJL directed others how and from which account to post.
- The trial court found most posts protected speech but concluded the tagged post on page 7 constituted direct electronic contact in violation of the PPO and found KJL guilty of criminal contempt.
- Separately, the court imposed several short jail terms in 2021 and included language denying any good‑time credit, citing a longstanding St. Clair County sheriff policy; KJL appealed, challenging the contempt finding, the free‑speech issue, and the denial of good‑time credit.
- The Court of Appeals affirmed the contempt conviction, held KJL’s free‑speech collateral attack failed, found the evidence sufficient, but reversed the sentencing orders to remove the preclusion of good‑time credit as contrary to MCL 51.282.
Issues
| Issue | Plaintiff's Argument (ARM) | Defendant's Argument (KJL) | Held |
|---|---|---|---|
| Whether prosecutor waived reliance on pages 1–7 of Exhibit A | Prosecutor relied on entire exhibit and never stipulated to limit the court to pages 8–12; defense consented to admission | Prosecutor waived claims based on pages 1–7 by earlier statement limiting focus to pages 8–12 | No waiver; defense counsel consented to admission and pages 1–7 remained in evidence, so court could consider them |
| Sufficiency of evidence identifying KJL as responsible for the tagged post | Circumstantial proof (recorded calls directing posts, pattern of coordination, witness recognition) supports identity | No direct proof KJL authored the KW post; MC testified she controlled the profile | Sufficient evidence: recorded calls and circumstantial proof supported trial court’s identity finding |
| First Amendment challenge / collateral attack on 2016 PPO | The PPO and contempt conviction infringe KJL’s free speech; order is transparently invalid | KJL failed to timely appeal/raise constitutional challenge to PPO; collateral‑attack rule bars relief; even on merits tagging is contact not protected | Claim barred as collateral attack; on merits court held tagged direct contact falls outside protected speech and contempt did not violate free speech |
| Denial of good‑time credit under MCL 51.282 | Sheriff’s blanket policy and court orders denying good time were lawful | Court erred by foreclosing statutory good‑time credit in advance; sheriff policy cannot override statute | Reversed as to sentencing orders: trial court cannot preclude good‑time credit in advance; remanded to omit the no‑good‑time provision |
Key Cases Cited
- In re JCB, 336 Mich App 736 (standard for contempt review and sufficiency of evidence)
- Porter v Porter, 285 Mich App 450 (abuse‑of‑discretion standard)
- TM v MZ (On Remand), 326 Mich App 227 (de novo review for constitutional/statutory issues)
- Braverman v Granger, 303 Mich App 587 (party’s consent to admission waives evidentiary objection)
- People v Galloway, 335 Mich App 629 (identity as element of offense)
- People v Cannon, 206 Mich App 653 (sheriff/court may not deprive prisoners of statutory good‑time credit in advance)
- Workers’ Compensation Agency Dir v MacDonald’s Indus Prod, Inc, 305 Mich App 460 (prohibition on collateral attack via second proceeding)
- In re Providence Journal Co, 820 F.2d 1342 (First Circuit rule discussed re: "transparently invalid" orders)
- In re Providence Journal Co (On Rehearing), 820 F.2d 1354 (modification requiring good‑faith attempt at emergency appellate relief)
- Olmstead v United States, 277 US 438 (right to be left alone / privacy principle)
- Hill v Colorado, 530 US 703 (balancing free speech and unwilling‑listener interests)
- Giboney v Empire Storage & Ice Co, 336 US 490 (speech may be element of unlawful conduct)
- Buchanan v Crisler, 323 Mich App 163 (electronic tags/posts may constitute contact)