Outside Legal Counsel PLC

OLC's Representation Results in St Clair County Judge's PPO Practice Being Deemed Unconstitutional

For Immediate Release | Dec 15, 2018

Port Huron, Michigan - After fighting for more than three years against a set of invalid personal protection orders (PPOs) entered by a St Clair County judge, the Michigan Court of Appeals sided with Hemlock-based Outside Legal Counsel PLC and its client, MZ, and declared that the practice of local judges using the PPO statute to 'supplement the rules that we all live in society by' to be unconstitutional.

The Michigan Court of Appeals decision was issued October 23, 2018 and only became finalized in December due to certain procedural court rules. The case is a major win for supporters of free speech and was also featured in the legally-renowned legal blog, The Volokh Conspiracy, at Reason.com

OLC's client, MZ, is neighbors with TM. These neighbors have rarely gotten along. Both previously served as public officials of a small township in St. Clair County. Due to MZ's health issues, his participation in politics and interacting with members of the community is done via Facebook. In July 2015, he made various posts on Facebook and some private messages to third parties. This attention upset TM and she sought a personal protection order from the St. Clair County courts. The case was assigned to St. Clair County probate judge John D. Tomlinson. Rather than conducting an evidentiary hearing to determine if the allegations from TM were accurate or to otherwise hear MZ's side of things, Judge Tomlinson issued a PPO ex parte. He did this despite none of the posts being threatening in any way.

After being served with the improperly-issued PPO, MZ retained Outside Legal Counsel and the order was immediately challenged.

In August 2015, OLC re-argued to Judge Tomlinson that his practice of issuing PPOs as a form of social engineering was unconstitutional under the First Amendment. The First Amendment prohibits the government, including judges, from abridging the freedom of speech. Michigan's 1963 Constitution goes even further and mandates that "every 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 or of the press."

The judge disagreed and OLC began a three-year multi-court appeal. After two intermediate court challenges and a successful case before the Michigan Supreme Court on a procedural issue that arose in this case [Video], a three-judge panel of the Michigan Court of Appeals issued 10-page decision holding that St. Clair County Court's orders violated the First Amendment in two ways; that the PPO was improperly issued based on MZ's constitutionally protected speech and also that the PPO was unconstitutional prior restraint.

The Court of Appeals vacated the PPOs and remanded the matter back to the St. Clair County Court with instructions to rescind (i.e. erase) the PPOs from MZ's record in the Law Enforcement Information Network, commonly known as LEIN. LEIN is the computer system police officers typically have installed in their police cruisers.

"This groundbreaking decision has validated what we have said from the beginning. Judges are not arbiters of whether a speech is in good taste, but rather an arbiter of law," states Philip L. Ellison, the OLC attorney representing MZ.

In addition to providing a cleared LEIN record to MZ, the Michigan Court of Appeals also designated the decision as published, meaning it is now the mandatory standards all PPO-issuing judges throughout Michigan must adhere to when deciding PPO cases.

Attorney Philip L. Ellison of Outside Legal Counsel was also supported in the case by friends-of-the-court briefing from the well-known First Amendment scholar Professor Eugene Volohk from the UCLA School of Law.

A copy of the TM v MZ decision can be downloaded here.