MICHAEL STEPHEN IRISH V KEVIN BECK
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL STEPHEN IRISH,
UNPUBLISHED
September 24, 2009
Plaintiff-Appellant,
v
KEVIN BECK, KIMBERLY R. BOSMA,
MICHAEL BOSMA, COLLEEN GARBER,
MATT GARBER, CATHY ENGLE, MICHAEL
ENGLE, JIM JAMES, SANDRA JAMES,
TIMOTHY D. JAMES, MELINDA JAMESNICKELS, MICHAEL A. NICKELS, FRED
SAINTAMOUR, and LESLIE SAINTAMOUR,
No. 287631
Barry Circuit Court
LC No. 08-000302-NZ
Defendants-Appellees.
Before: Servitto, P.J., and Fitzgerald and Bandstra, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting summary disposition pursuant to MCR
2.116(C)(8) in favor of defendants in this action alleging defamation, intentional infliction of
emotional distress, and malicious prosecution. We affirm.
I
On October 31, 2007, a jury convicted plaintiff Michael Stephen Irish of disturbing the
peace, MCL 750.170. The jury acquitted Irish of aggravated indecent exposure, MCL
750.335(a)(2)(B). The trial court sentenced Irish to 19 days in jail, 24 months’ probation, and a
fine of $500. This Court affirmed defendant’s conviction and sentence. People v Irish,
unpublished opinion per curiam of the Court of Appeals, issued June 9, 2009 (Docket No.
282950). In upholding Irish’s conviction, this Court stated in its opinion that Irish “admitted
during testimony to the conduct underlying his [disturbing the peace] conviction. Id. at slip op p
2.
The record in the present case reveals that on June 6, 2007, Cathy Engle and Mike Engle
each provided a written statement to the police regarding the June 1, 2007, incident. On June 5,
2007, a number of citizens of the Algonquin Lake community provided a written statement to the
Barry County Sheriff, with a copy to the Michigan State Police and the Barry County
Prosecuting Attorney, requesting increased public safety patrols in and around the Algonquin
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Lake community to “help protect our families.” from Irish’s “reckless behavior.” This statement
indicated, “citizens have witnessed [Irish] demonstrating unsafe behavior while drinking and
driving, drinking and boating, and lewd behavior through indecent exposure.” The Algonquin
Lake community residents named as defendants in this case signed this statement.
After his conviction and sentence, Irish filed the present action on May 30, 2008, raising
a claim of defamation against Cathy Engle, Michael Engle, and the remaining defendants, as
well as claims of intentional infliction of emotional distress and malicious prosecution against all
defendants. After answering, defendants moved for summary disposition pursuant to MCR
2.116(C)(8) on the ground that the claims had no legal or factual basis. Defendants also moved
for sanctions for filing a frivolous lawsuit under MCL 600.2591(1) and (2). With regard to the
defamation claim, defendants argued that defendants’ statements to the police of Irish’s criminal
activities were both privileged and truthful. With regard to the malicious prosecution claim,
defendants argued that it was the Barry County Prosecutor’s Office, and not defendants, that
commenced and pursued criminal charges against Irish. With regard to the intentional infliction
of emotional distress claim, defendants argued that no reasonable mind could conclude that
defendants acted extremely and outrageously in reporting Irish’s activities to the police.
A hearing was held on defendants’ motions on August 7, 2008. In response to
defendants’ arguments, Irish maintained that the privilege afforded statements to the police does
not apply to false statements, and that a question of fact existed with regard to whether
defendants’ statements to the police were false.1 In granting defendants’ motion for summary
disposition, the court opined:
Well, I – as I’ve already expressed, I have a very great difficulty believing
that in this scenario that a person can be charged with two offenses, one being
drunk and disorderly and the other one being aggravated indecent exposure, be
acquitted on one count, convicted on the other after, quite frankly, engaging in
extreme and outrageous conduct themselves; that is, the Plaintiff in this case, and
the – and then turn around and sue the people who reported him to the police.
That’s just – I mean I’ve read the cases, I’ve read your briefs. I don’t really need
to read a brief to know that shouldn’t be the law in the State of Michigan. And if
it is, there is something very wrong with our public policy.
II
Plaintiff argues that the trial court erred by granting summary disposition of plaintiff’s
defamation claims. This Court reviews a trial court's decision on a motion for summary
disposition de novo. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004).
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings
alone. Michigan Ins Repair Co, Inc v Manufacturers Nat'l Bank of Detroit, 194 Mich App 668,
1
It appears that Irish must be referring only to the statements regarding indecent exposure in
light of the fact that Irish was acquitted on this charge only.
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673; 487 NW2d 517 (1992). All factual allegations supporting the claim are accepted as true, as
well as any reasonable inferences or conclusions that can be drawn from the facts. Id. The
motion should be granted only when the claim is so clearly unenforceable as a matter of law that
no factual development could possibly justify a right of recovery. Feister v Bosack, 198 Mich
App 19, 22; 497 NW2d 522 (1993).
To establish a defamation claim, a plaintiff must show (1) a false and defamatory
statement about the plaintiff,2 (2) an unprivileged publication to another party, (3) fault
amounting at a minimum to negligence on the publisher's part, and (4) either actionability of the
statement regardless of special harm or the existence of special harm as a result of the
publication. Kevorkian v American Medical Ass'n, 237 Mich App 1, 8-9; 602 NW2d 233 (1999).
The complained-of statements must be pleaded with specificity. Royal Palace Homes, Inc v
Channel 7 of Detroit, Inc, 197 Mich App 48, 53-54, 56-57; 495 NW2d 392 (1992).
Defendants Engle made the statements regarding defendant’s alleged indecent exposure
to the police, and the statement signed by all of the defendants was made to the police and the
prosecutor. Where an absolute privilege exists, there can be no action for defamation. Couch v
Schultz, 193 Mich App 292, 294; 483 NW2d 684 (1992). In Couch, the defendant, a corrections
officer, filed a prison “major misconduct report” against the plaintiffs, inmates in the custody of
the Department of Corrections, charging them with sexual misconduct. A prison disciplinary
hearing was held, and the plaintiffs were found guilty of the charge. Id. Before the disciplinary
hearing, the plaintiffs filed an action against the defendant, alleging that he had defamed them by
filing the report. Id. The trial court granted the defendant’s motion for summary disposition on
the basis that a prison disciplinary hearing was a “judicial proceeding” in which witnesses enjoy
absolute immunity from liability for defamation, and therefore, the defendant’s major
misconduct report was an absolutely privileged communication for which liability could not
attach. Id.
This Court agreed with the trial court, finding that a prison disciplinary hearing was a
“judicial proceeding” and statements made in relation to such hearings were absolutely
privileged. Id. at 293-294. This Court stated that strong policy reasons favored a finding of
absolute privilege, id. at 297, and that allowing prisoners to bring defamation actions against
corrections officers who were carrying out their obligations would have a chilling effect upon the
reporting of offenses within a prison and would result in the court being inundated with
prisoners’ lawsuits. Id.
This Court explained the privilege:
It is well settled in Michigan that statements made during the course of legislative
proceedings, statements made during the course of judicial proceedings, and
communications by military and naval officers are absolutely privileged.
“Judicial proceedings” may include any hearing before a tribunal or
2
At issue in this case are the statements made by defendants with regard to the acquitted charge
of aggravated indecent exposure inasmuch as plaintiff was convicted of disturbing the peace.
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administrative board that performs a judicial function. An absolutely privileged
communication is one for which no remedy is provided for damages in an [sic]
defamation action because of the occasion on which the communication is made.
A privileged occasion is an occasion where the public good requires that a person
be freed from liability for the publication of a statement that would otherwise be
defamatory. Public policy is the principle underlying the doctrine of absolute
privilege. [Couch, supra at 294 (citations omitted).]
In the present case, plaintiff alleged that defendants lied in their statements by stating that
they observed him expose himself. Like the filing of the “major misconduct report” in Couch,
the statements regarding plaintiff’s conduct were made as a complaint to the police. This Court
has stated:
The immunity extends to every step in the proceeding and covers anything that
may be said in relation to the matter at issue, including pleadings and affidavits.
See Stewart v Walton, 254 Ga 81; 326 SE2d 738 (1985) (complaint); Gunter v
Reeves, 198 Miss 31; 21 So 2d 468 (1945) (search warrant); Jenson v Olson, 121
Minn 388; 141 NW2d 488 (1966) (testimony at civil service hearings). The
judicial proceedings privilege should be liberally construed so that participants in
judicial proceedings are free to express themselves without fear of retaliation.
Sanders v Leeson Air Conditioning Corp, 362 Mich 692, 709; 108 NW2d 761
(1961). [Couch, supra at 295.]
In addition, like the policy concerns in Couch, there are strong policy reasons supporting
a finding of absolute privilege in the case at hand. Allowing a person to bring a defamation
action against the person(s) making a report of criminal activity would have a chilling effect on
the reporting of such abuse and could result in numerous actions for defamation being filed in
our lower courts.
With regard to privileges accorded to statements, in Hall v Pizza Hut of American, Inc,
153 Mich App 609, 619; 396 NW2d 809 (1986), this Court held that “information given to police
officers regarding criminal activity is absolutely privileged.” In Hall, the plaintiffs were arrested
based on information supplied by Pizza Hut employee Nichols, who thought the plaintiffs looked
like three people who had committed an armed robbery five days earlier at the restaurant. The
plaintiffs were released and no charges were ever filed against them. Id. at 612. The plaintiffs
filed a complaint against Pizza Hut and the City of Detroit, which included a claim for slander.
Id. The trial court denied Pizza Hut’s motion for summary disposition on the ground that there
were “disputed questions of material fact regarding the reasonableness of the behavior of the
Pizza Hut employees in this particular instance.” Id. This Court found that the plaintiffs’ claim
of slander failed, in part because the information given to the police officers regarding criminal
activity was absolutely privileged. Id. at 619, citing Shinglemeyer v Wright, 124 Mich 30, 239240; 82 NW 887 (1990). Although the Hall Court may have retreated slightly from this
statement, Shinglemeyer unequivocally states that statements made to police regarding criminal
activity are absolutely privileged. The Supreme Court reiterated this finding in Gowan v Smith,
157 Mich 443, 450; 122 NW 286 (1909):
The private citizen, as part of his moral duty to the public, should
undoubtedly convey to the police officers any information he may have in regard
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to a crime believed to have been committed, and the perpetrator thereof. Such
communications are absolutely privileged.
Couch and Hall remain good law. Thus, pursuant to Michigan law, communications made to
police concerning criminal activity are absolutely privileged. Because all of the statements at
issue were made to police concerning defendant’s unlawful conduct, the trial court did not err by
granting summary disposition in favor of defendants on plaintiff’s defamation claims.
III
Plaintiff asserts that the trial court erred by granting summary disposition of plaintiff’s
malicious prosecution claim. We disagree.
In an action for malicious prosecution, the plaintiff has the burden of proving (1) that the
defendant has initiated a criminal prosecution against him, (2) that the criminal proceedings
terminated in his favor, (3) that the private person who instituted or maintained the prosecution
lacked probable cause for his action, and (4) that the action was undertaken with malice or a
purpose in instituting the criminal claim other than bringing the offender to justice. Matthews v
Blue Cross & Blue Shield of Michigan, 456 Mich 365, 378; 572 NW2d 603 (1998).
“[I]n Michigan, the prosecutor’s exercise of his independent discretion in initiating and
maintaining a prosecution is a complete defense to an action for malicious prosecution.”
Matthews, supra at 384. In the instant case, plaintiff did not allege that the indecent exposure
prosecution was initiated other than at the sole discretion of the prosecutor. Indeed, the
complaint alleges that the sheriff’s department submitted a warrant request to the prosecutor, and
that the prosecutor’s office thereafter issued a complaint charging Irish with aggravated indecent
exposure. Plaintiff did not allege that there was any inducement or pressure or an infringement
on the prosecuting attorney’s authority in bringing or continuing the prosecution. Further,
plaintiff’s contentions that his prosecution for aggravated indecent exposure was motivated by
defendants’ false information and for improper and malicious reasons are just mere allegations
that have no substance. The trial court did not err by granting summary disposition in favor of
defendants on plaintiff’s malicious prosecution claim.
IV
Plaintiff contends that the trial court erred by granting summary disposition of plaintiff’s
claim of intentional infliction of emotional distress. Again, we disagree. To sustain a claim of
intentional infliction of emotional distress, a plaintiff must establish the following: “(1) extreme
and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional
distress.” Haverbush v Powelson, 217 Mich App 228, 233-234; 551 NW2d 206 (1996), citing
Roberts v Auto-Owners Ins Co, 422 Mich 594, 602; 374 NW2d 905 (1985); Johnson v Wayne
Co, 213 Mich App 143, 161; 540 NW2d 66 (1995). “Liability for such a claim has been found
only where the conduct complained of has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and
utterly intolerable in a civilized community.” Haverbush, supra at 234.
Plaintiff based his claim of intentional infliction of emotional distress on defendants’
reports of criminal activity to the police. In light of our conclusion that these reports were
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absolutely privileged, we conclude that the trial court properly granted defendants’ motion for
summary disposition on plaintiff’s claim of intentional infliction of emotional distress.
Affirmed. Defendants, being the prevailing parties, may tax costs pursuant to MCR
7.219.
/s/ Deborah A. Servitto
/s/ E. Thomas Fitzgerald
/s/ Richard A. Bandstra
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