965 N.W.2d 101
Mich. Ct. App.2020Background
- Petitioner TT (the child’s maternal great-aunt) obtained an ex parte nondomestic PPO after respondent KL posted on public Facebook pages accusing TT of aiding a twice-convicted sex offender (LW) who allegedly had access to the child OGL. TT alleged the statements were false and harmed her employment and reputation.
- The original ex parte PPO prohibited many stalking-related acts and barred respondent from “posting comments about petitioner on social media” under MCL 750.411s.
- Respondent repeatedly posted about TT, faced multiple show-cause orders and warrants for alleged PPO violations, and moved to terminate the PPO; an evidentiary hearing followed where the trial court received posts, messages, and custody-transcript excerpts.
- KL filed a federal 42 U.S.C. § 1983 suit challenging the nondomestic PPO statute and named the state judge in her official capacity; KL then sought to withdraw his state motion and moved to disqualify the trial judge, alleging improper ex parte communications with the court’s federal counsel and appearance-of-bias.
- The trial court denied disqualification and, after concluding KL’s online statements were false and caused harassment under MCL 750.411s, amended the PPO to bar KL from “posting defamatory statements about [p]etitioner on social media and/or … elsewhere.”
- The Court of Appeals affirmed denial of disqualification but held the amended PPO was constitutionally overbroad; it remanded to narrow the injunction to the specific adjudicated statements (posts asserting TT allowed LW access to OGL or otherwise violating MCL 750.411s).
Issues
| Issue | Plaintiff's Argument (TT) | Defendant's Argument (KL) | Held |
|---|---|---|---|
| Whether the trial judge had to disclose/recuse for alleged ex parte communications with the court’s federal counsel or because KL sued the judge | TT: No evidence of ex parte communications; suing a judge for official rulings is not automatic recusal. | KL: Judge’s attorney-client privilege in the federal suit prevented compliance with Canon 3(A)(4); appearance of impropriety requires recusal. | Denied. Motion untimely; no evidence of disqualifying communications or bias; suing a judge for official acts doesn’t automatically require recusal. |
| Whether a PPO under MCL 600.2950a may enjoin online statements under MCL 750.411s (First Amendment issues) | TT: MCL 750.411s prohibits postings that cause third-party unconsented contacts/harassment; defamatory or harassing posts may be enjoined. | KL: Speech was protected (no defamation); statute cannot be used to impose a prior restraint; defamation remedy is statutory damages (MCL 600.2911), not a PPO. | The court held petitioner proved the statutory elements under MCL 750.411s and that defamatory statements are not First Amendment–protected, so a PPO can enjoin posts that meet MCL 750.411s—but the injunction must be narrowly tailored. |
| Whether injunctive relief for defamatory postings requires proof of economic injury | TT: Economic injury need not be shown when statutory stalking-type elements are established. | KL: Equity will not enjoin defamation absent economic injury; damages are the proper remedy. | Held: Under modern trend and because MCL 750.411s targets cyberstalking, economic injury need not be shown when posts meet the statute’s elements. |
| Whether the amended PPO’s language (banning „posting defamatory statements…on social media and/or…elsewhere") was proper | TT: Broad ban prevents further harassment and unconsented contacts. | KL: Language is overbroad and functions as an unconstitutional prior restraint. | Held: Overbroad. PPO must be narrowed to enjoin only the specifically adjudicated posts (e.g., those asserting TT allowed LW access to OGL or otherwise violating MCL 750.411s). |
Key Cases Cited
- TM v MZ, 501 Mich 312 (Mich. 2018) (PPO appeals remain reviewable to update LEIN entries; discusses prior-restraint concerns)
- TM v MZ (On Remand), 326 Mich App 227 (Mich. Ct. App. 2018) (prior restraint and injunction of defamatory speech; factfinder must adjudicate falsity and injunction must be narrowly tailored)
- Buchanan v Crisler, 323 Mich App 163 (Mich. Ct. App. 2018) (interpreting MCL 750.411s and explaining cyberstalking-by-proxy and limits on enjoining speech on matters of public concern)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (U.S. 2009) (due-process outer bounds for judicial disqualification; appearance-of-impropriety standard)
- Grievance Administrator v Fieger, 476 Mich 231 (Mich. 2006) (suing a judge based on rulings is not alone a basis for disqualification)
- In re MKK, 286 Mich App 546 (Mich. Ct. App. 2009) (standards for reviewing judicial disqualification motions)
- McFadden v Detroit Bar Ass'n, 4 Mich App 554 (Mich. Ct. App. 1966) (traditional rule that equity will not enjoin defamation absent economic injury)
- Olsen v Wainwright, 565 F.2d 906 (5th Cir. 1978) (naming a trial judge as a defendant in a civil suit does not by itself require disqualification)