Judge Wiley Orders Berrien to Pay Attorney Fees in Sheriff’s Gun Range Case

When the Michigan Supreme Court ruled in late March of 2018 that they would not hear an appeal from Berrien County regarding the 13-year battle royal over the Sheriff’s gun range in Coloma Township, everyone figured that would be the end of the story. Everyone except for the businesses near the range who successfully got the shooting to end and the range to be closed down. They, and Coloma Township itself, elected to fight to recover attorney fees from the lengthy fight and to get the range destroyed.

Berrien County Trial Court Judge Dennis Wiley held a session at the Berrien County Courthouse last week to take up the issue of attorney fees arguing the County was guilty of civil contempt and Coloma Township wanted to assure that the range could never spring to life again, lobbying for it to be permanently destroyed.

In a 19-page decision handed down by Judge Wiley, he denied Berrien County’s motion filed last October for summary disposition and instead granted the plaintiff businesses motion to have attorney fees paid by the County as requested last October, found Berrien County to be in civil contempt for resuming shooting despite an injunction against it, but denied Coloma Township’s bid to “abate the nuisance,” as filed last October, contending that “the berms (of the range) are not a nuisance per se.” Rather, he suggests, “The nuisance per se is the use of the berms as a shooting range. Therefore, because the nuisance, i.e., the use of shooting, was abated by measures that are less drastic than destruction of the property and the property may have alternative lawful uses, the destruction of the berms and buildings is unnecessary.”

Coloma Township, through Attorney Scott Dienes, had argued that the berms and building “may prove too tempting, and future political leaders in the County could decided to resume shooting, thus removal of the shooting ranges (i.e. berms) is essential to ensuring that the County does not again use the property for illegal shooting.”

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Wiley termed that argument “unpersuasive and speculative because there is a permanent injunctive order still in effect,” adding, “Defendant Berrien County is now put on notice that it cannot use this property as a shooting range.”

Wiley also ordered the businesses motion for summary disposition in September of 2014 is granted “pursuant to the direction from the Court of Appeals.”

Wiley further ordered:

  • Judge John Dewane’s grant of summary disposition to Berrien County in October of 2014 is vacated, pursuant to the direction from the Court of Appeals
  • Dewane’s modification of the 2008 permanent injunctive order is vacated pursuant to the direction of the Court of Appeals
  • Dewane’s partial grant of Berrien County’s motion for summary disposition regarding civil contempt pursuant to governmental immunity in August of 2014 is vacated pursuit to the Court of Appeals implicit rejection of the county’s claim for governmental immunity
  • Dewane’s denial of the plaintiff businesses motion for summary disposition regarding civil contempt as well as Dewane’s dismissal with prejudice of their civil contempt claim in September of 2014 is vacated pursuant to the Court of Appeals implicit rejection of the county’s claim for governmental immunity
  • The county’s motion for summary disposition in October of 2018 for governmental immunity is denied pursuant to the Court of Appeals implicit rejection of their claim for governmental immunity
  • That Berrien County is found to be in civil contempt for violating the 2008 permanent injunctive order,
  • That the county’s two separate motions for summary disposition filed last October are denied,
  • That the businesses are granted summary disposition for the award of attorney fees based on the county’s motion for summary disposition last October,
  • and ordered that the businesses and Coloma Township’s independent motions for attorney fees are granted.
  • and ordered all plaintiff businesses awarded attorney fees are to be paid by Berrien County,
  • Denied Coloma Township’s motion to abate the nuisance through destruction and dismissed the claim with prejudice.

Wiley’s statement closes with the comment, “This is not a final order and does not close the case.”

The plaintiff businesses who have been granted attorney fees to be paid by Berrien County include Joe & Sue Herman from Karma Vista Winery, Jay & Sarah Jollay and Jerry Jollay from Jollay Orchards, farmer Neal Kreitner, Tony & Liz Peterson from Contessa Winery, farmers Randy & Annette Bjorge from Bjorge Farms, and Tina Buck from The Chocolate Garden.

It was last October that two brief sentences and the key word “denied” ended the 13-year battle over a Berrien County Sheriff’s gun range in Coloma Township, when the Michigan Supreme Court ruled in favor of the Coloma area business owners by denying Berrien County’s latest appeal in a see-saw battle that dates all the way back to 2005.

When the court acted last fall, Attorney Scott Dienes, who represented Coloma Township and the business community in the long-running battle, called it “A huge win for Coloma Township and the Coloma community.” He said, “It means the County can no longer operate the gun range at the landfill.” The landfill in question is operated by Landfill Management Company and Hennessy Land Company who joined the Sheriff’s Department and the County in defending their use of the range.

The business owners had been fighting against use of the gun range for years, arguing the noise of the shooting harms their businesses many of which are along Friday Road.