Best v. Marino

• Decision Date: 29 June 2017
• Docket Number: NO. A-1-CA-34680.,A-1-CA-34680.
• Citation: 404 P.3d 450
• Parties: Steven BEST, Petitioner-appellee, v. Camille A. MARINO, Respondent-appellant.
• Court: Court of Appeals of New Mexico

404 P.3d 450

Steven BEST, Petitioner-appellee,

v.Camille A. MARINO, Respondent-appellant.

NO. A-1-CA-34680.

Court of Appeals of New Mexico.

Filing Date: June 29, 2017

Certiorari Denied, August 31, 2017, No. S-1-SC-36586

Law Office of Jerold D. Friedman, Jerold Friedman, Cypress, TX, L. Helen Bennett P.C., L. Helen Bennett, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

JAMES J. WECHSLER, Judge

{1} This appeal arises from a finding of indirect criminal contempt against Respondent Camille Marino for her violation of an order of protection (Order of Protection) issued pursuant to the Family Violence Protection Act (FVPA), NMSA 1978, §§ 40-13-1 through -12 (1987, as amended through 2016). In addition to 179 days incarceration, the district court imposed an almost complete restriction on Respondent's ability to access the Internet.¹

{2} Respondent first argues that the Order of Protection is invalid and should be vacated by this Court. She bases this argument on her claim that Petitioner Steven Best did not allege or prove the elements of "stalking" when he obtained the Order of Protection in October 2012. Petitioner argues that Respondent's argument is an impermissible collateral attack on the Order of Protection and, as a result, this Court should dismiss Respondent's appeal. Although we agree that Respondent's argument is subject to the collateral bar rule, we decline to dismiss the appeal outright in light of other potentially meritorious issues raised by Respondent. Respondent additionally argues without development that the district court lacked subject matter jurisdiction over this action. This argument lacks merit.

{3} Respondent next argues that the restrictions imposed by the Order of Protection violated her First Amendment right to free speech by treating her online activity² —which inarguably is speech—as sanctionable conduct. We disagree.³ As discussed at length herein, the Order of Protection imposes certain restraints on Respondent that could not be imposed on a non-restrained person. As such, the appropriate question on appeal is not whether the government can generally restrict the speech at issue in this case, but whether the district court can restrict Respondent from engaging in such speech. We conclude that it can.

{4} In a related argument, Respondent argues that the district court's finding of contempt resulted from a due process violation because the Order of Protection failed to provide sufficient notice that her online activity would be considered "contact" constituting a violation. The district court did not, however, conclude that Respondent "contacted" Petitioner in violation of the Order of Protection. It concluded that Respondent's "harassment of Petitioner" caused "emotional distress." The Order of Protection restrained Respondent from committing "acts of abuse" and defined "abuse" to include "any incident ... resulting in ... severe emotional distress[.]" The appropriate question on appeal, therefore, is not whether Respondent's online activity was "contact," but whether Respondent reasonably should have known that her online activity would cause Petitioner to suffer severe emotional distress. We answer this question in the affirmative.

{5} Finally, Respondent argues that the district court's restriction of her ability to access the Internet is overbroad and violates the First Amendment. We agree. We therefore affirm Respondent's term of incarceration but reverse the restriction on her ability to access the Internet.

BACKGROUND

{6} Petitioner is a philosophy professor at the University of Texas at El Paso (UTEP) and resides in Anthony, New Mexico. Respondent resides in Wildwood, Florida. Petitioner and Respondent became acquainted through their work in the animal rights movement and maintained a platonic friendship for several years until that friendship deteriorated in August 2012.

{7} On October 15, 2012, Petitioner filed a petition requesting protection from acts of domestic abuse perpetrated by Respondent. His petition alleged that Respondent (1) sent threatening email messages, (2) made threatening telephone calls, (3) left threatening voice messages, and (4) posted slanderous and derogatory statements about Petitioner on her website and Facebook page.

{8} On October 26, 2012, a domestic violence special commissioner (the special commissioner) held a hearing (October 2012 hearing) on Petitioner's claims. The special commissioner found that Respondent was a "stalker" and recommended that the district court enter an order of protection. Respondent did not file any objections to the special commissioner's findings or recommendations.

{9} The district court reviewed and adopted the special commissioner's findings and recommendations and entered an Order of Protection using Form 4-965 NMRA, which articulated the terms of the order of protection. The Order of Protection restrained Respondent from "committing further acts of abuse or threats of abuse" and "any contact" with Petitioner and defined "abuse" as:

[A]ny incident by one party against the other party or another household member resulting in (1) physical harm; (2) severe emotional distress; (3) bodily injury or assault; (4) threat by ... Respondent causing imminent fear of bodily injury to the other party or any household member; (5) criminal trespass; (6) criminal damage to property; (7) repeatedly driving by Petitioner's ... residence or workplace; (8) telephone harassment; (9) stalking; (10) harassment; or (11) harm or threatened harm to children in any manner set forth above.

In light of the specific conduct alleged, the district court modified the definition of "contact" on Form 4-965. As a result, the Order of Protection stated that Respondent "shall not telephone, talk to, visit or contact [Petitioner] in any way ... including social media[.]"

On July 1, 2014, Petitioner filed an affidavit of violation, in which he alleged:

Since the filing of th[e O]rder [of Protection], the Respondent has used social media to harass the Petitioner. She has caused severe emotional distress. The Respondent has used her websites, social media (including [F]acebook, [T]witter, [P]interest), and blogging to carry out revenge styled postings, including numerous damaging pictures of [Petitioner] and making outrageous/false accusations against him. These posts are intended to harm [Petitioner's] career, charitable causes, and personal life. This has occurred on numerous dates between the issuance of the [O]rder of [P]rotection and the date of this filing[.]

{10} This affidavit triggered a hearing before the special commissioner. Petitioner introduced sixteen exhibits—consisting of screen captures of Respondent's website and Facebook page—purported to represent merely a fraction of Respondent's online activity since October 2012. Petitioner also introduced an email message sent directly from Respondent to Petitioner on November 8, 2012. The special commissioner found that Respondent violated the Order of Protection by "contacting [Petitioner], by using social media to harass him, by using social media to stalk him, and by using social media to cause severe emotional distress." As a result of these findings, the special commissioner recommended sanctions and certified the matter to the district court for a criminal contempt hearing.

{11} Respondent filed objections to the special commissioner's recommendations. The district court scheduled a hearing to resolve Respondent's objections, which the district court stated was a "hearing de novo" on the special commissioner's recommendations.

{12} Both parties testified, and Petitioner introduced twenty-eight exhibits—again consisting of screen captures of Respondent's online activity. Petitioner also introduced three email messages sent directly from Respondent to Petitioner on November 4, 2012 and November 8, 2012. In these exhibits, Respondent referred to Petitioner as (1) "the grand high exalted drug-addicted hypocrite," (2) "a drug-addled imbecile," (3) "a sexist, racist woman beater," and (4) "UTEP junkie professor." One exhibit threatened to "hold [Petitioner] accountable" and to make him "pay dearly." Other exhibits threatened to "expose" and to "neutralize" Petitioner. Still others contained song lyrics with obliquely violent imagery. Many of the exhibits included photographs of Petitioner snorting prescription drugs (drug photos). Petitioner also testified that: (1) Respondent continued to directly contact Petitioner by telephone and email after the entry of the Order of Protection; (2) Respondent mailed a package containing written materials to Petitioner's home address after the entry of the Order of Protection; and (3) Petitioner's girlfriend received two telephone calls from an unknown individual alleging that the caller was driving through Anthony, New Mexico with the intent to kill Petitioner and his cats.

{13} Inexplicably, the district court did not discuss the possibility that Respondent's direct contact of Petitioner—by telephone, postal service, and email—constituted a violation of the Order of Protection. Instead, it focused its ruling expressly on exhibits related to Respondent's online activity. In its oral ruling, the district court cited specific exhibits that it found to violate the Order of Protection. Its second amended order memorialized its oral ruling and referred to Respondent's use of "social media and the [I]nternet to engage in a sustained pattern of stalking and harassment of Petitioner [,] including ... emotional distress to Petitioner." It sentenced Respondent to 179 days incarceration with credit for time served. It also ordered that Respondent "shall not use the [I]nternet or any social media for any purpose other than contacting her attorney or accountant." (Emphasis omitted.) This appeal resulted.

{14} On June 13, 2016, Respondent filed a request for this Court to...