LaFaro v. Cahill

• Decision Date: 22 October 2002
• Docket Number: No. 1 CA-CV 01-0084.,1 CA-CV 01-0084.
• Parties: A.J. LAFARO, Plaintiff-Appellee, v. Dennis CAHILL, Defendant-Appellant.
• Court: Arizona Court of Appeals

56 P.3d 56

203 Ariz. 482

A.J. LAFARO, Plaintiff-Appellee, v. Dennis CAHILL, Defendant-Appellant.

No. -0084.

Court of Appeals of Arizona, Division 1, Department B.

October 22, 2002.

Dean A. LeVay, Tempe, Attorney for Plaintiff-Appellee.

Osborn Maledon, P.A. By Warren J. Stapleton, Phoenix, Attorneys for Defendant-Appellant.

OPINION

GEMMILL, Judge.

¶ 1 Is an injunction against harassment that restricts protected political speech unconstitutional? May an Arizona statute that authorizes injunctions against harassment be given an interpretation that renders it constitutional? We answer these questions in the affirmative.

¶ 2 Dennis Cahill appeals from an injunction against harassment, issued by the trial court, that precludes him from initiating "in person" contact with A.J. LaFaro. For the reasons discussed herein, we vacate the injunction against Cahill.

BACKGROUND

¶ 3 LaFaro was the chairman of Citizens to Recall Neil Giuliano ("CRG"), a group seeking to recall the Mayor of the City of Tempe. In late 2000, LaFaro and CRG members solicited signatures to place a vote to recall Mayor Giuliano on the next Tempe ballot. Cahill, a member of Tempe's City Council, publicly opposed CRG's efforts.

¶ 4 In November 2000, LaFaro petitioned for an ex parte injunction against Cahill prohibiting "harassment" pursuant to Arizona Revised Statutes ("A.R.S.") § 12-1809(R) (Supp.2000). LaFaro's petition alleged that Cahill had harassed him and other CRG members on three separate occasions by referring to LaFaro as a bigot, fascist, homophobe, and Nazi. The petition asserted that the first two incidents occurred in front of the Tempe Public Library on October 29, 2000 and October 31, 2000 while Lafaro was soliciting signatures for the recall campaign. The third alleged incident took place on Election Day, November 7, 2000, at the Pyle Adult Recreation Center, a Tempe polling center. The petition stated that Cahill had "demonstrated he could be physically violent" and requested the court to "review his arrest record."¹ The petition sought to restrain Cahill from contacting LaFaro at his residence or from contacting LaFaro or any other CRG member at the Tempe Public Library or any other location where CRG members were collecting recall petition signatures.

¶ 5 In reliance on LaFaro's verified petition, Judge Jean Hoag entered an injunction enjoining Cahill from harassing LaFaro at his residence, or from contacting LaFaro in person, by telephone or in writing. Judge Hoag noted, "This order is granted solely because of the under oath testimony of Plaintiff regarding the series of acts [on] Oct. 29 and Oct. 31 re: obscenities directed by defendant at plaintiff."

¶ 6 Cahill moved to quash the injunction based on factual inaccuracies in the petition and his First Amendment right to free speech. LaFaro opposed the motion to quash, and the case was assigned to Judge Cheryl Hendrix, who held an evidentiary hearing on the matter. Judge Hendrix found harassment under A.R.S. § 12-1809 because the comments "made by Mr. Cahill to Mr. LaFaro could be found annoying by a reasonable person." She modified the original injunction, ordering Cahill not to initiate "in person" contact with LaFaro. Cahill timely appealed from the modified injunction.

ANALYSIS

This Court's Jurisdiction

¶ 7 We first address LaFaro's contention that the modified injunction does not infringe upon Cahill's "substantial rights" and therefore constitutes a non-appealable protective order. LaFaro cites a legal encyclopedia as authority for his argument regarding the non-appealablity of an injunction. Although this argument reflects an older practice in Arizona, see Bogan v. Pignataro, 3 Ariz. 383, 383, 29 P. 652, 652 (1892), our modern statute explicitly permits the appeal of injunctions. A.R.S. § 12-2101(F)(2) (1994); see also Transport Workers Union, Local 502, AFL-CIO v. Tucson Airport Auth., Inc., 11 Ariz.App. 296, 298, 464 P.2d 367, 369 (1970) (restraining order continued in effect after motion to dissolve becomes appealable preliminary injunction); Bulova Watch Co. v. Super City Dep't Stores of Ariz., Inc., 4 Ariz.App. 553, 555, 422 P.2d 184, 186 (1967) (appeal may be taken from order granting or refusing to grant injunction at any stage of proceeding in which application for injunction is made).

¶ 8 LaFaro also argues that the injunction is not a final, appealable order because the trial court left open the possibility of modifying the injunction should Cahill petition for permission to debate LaFaro in a public forum. The fact an injunction may be modified, however, does not defeat its appealability. See A.R.S. § 12-2101(F)(2)(1994). Therefore, we conclude that the injunction against harassment is an appealable order, and we have jurisdiction over this case pursuant to A.R.S. §§ 12-120.21 (1992) and 12-2101(F)(2).

Mootness

¶ 9 As an additional preliminary consideration, we address a potential concern about mootness. The injunction, issued in December 2000, did not include an expiration date, but A.R.S. § 12-1809(J) states that an injunction issued pursuant to that section "expires one year after service on the defendant." The record provided to us does not reveal the date of service nor whether the injunction has expired or was modified or extended. If the injunction has expired, the issues raised may be technically moot. But we choose to exercise our discretion to address these issues because the use of an injunction to restrict political speech is an issue of great public importance that is capable of evading review. See, e.g., Fraternal Order of Police v. Phoenix Employee Relations Bd., 133 Ariz. 126, 127, 650 P.2d 428, 429 (1982)

("We will make an exception, however, to consider a question of great public importance or one which is likely to recur even though the question is presented in a moot case."); see also Turf Paradise, Inc. v. Ariz. Racing Comm'n, 160 Ariz. 241, 242, 772 P.2d 595, 596 (App.1989)("one-year permit is of such relatively short duration that appellate review may be thwarted ..."). Having resolved these questions regarding our consideration of this appeal, we now address the merits of this case.

LaFaro's Failure to Demonstrate a "Series of Acts"

¶ 10 Cahill challenges the trial court's finding of harassment and corresponding grant of the injunction. We review orders granting injunctions under a clear abuse of discretion standard. Ariz. Dep't of Pub. Safety v. Superior Court, 190 Ariz. 490, 494, 949 P.2d 983, 987 (App.1997). The misapplication of the law to undisputed facts is an example of an abuse of discretion. Id. (citing City of Phoenix v. Superior Court (Laidlaw Waste Sys.), 158 Ariz. 214, 217, 762 P.2d 128, 131 (App.1988)).

¶ 11 LaFaro sought an injunction pursuant to A.R.S. § 12-1809, which permits issuance of an injunction against harassment if the court finds

reasonable evidence of harassment of the plaintiff by the defendant during the year preceding the filing of the petition or that good cause exists to believe that great or irreparable harm would result to the plaintiff if the injunction is not granted. . . .

A.R.S. § 12-1809(E). The statute defines "harassment" as

a series of acts over any period of time that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person and serves no legitimate purpose.

A.R.S. § 12-1809(R).

¶ 12 The plain language of A.R.S. § 12-1809 requires a finding that Cahill engaged in a "series of acts" of harassment that were "directed at a specific person," i.e., LaFaro. Id. The trial court received evidence of two instances of contact between the parties: one on October 29, 2000; the other on October 31, 2000.² We have examined the record to determine if the required finding of a "series of acts" of harassment is supported by substantial evidence. Prudential Ins. Co. of Am. v. Pochiro, 153 Ariz. 368, 370, 736 P.2d 1180, 1182 (App.1987) (appellate court will not disturb injunction supported by substantial evidence).

¶ 13 Both parties acknowledge that Cahill and LaFaro had no direct contact or communication on October 29, 2000. Rather, that incident concerned a conversation between Cahill and a Ms. Martelli. Cahill approached Martelli as she was leaving the CRG petition table and he was leaving the library. Cahill and Martelli spoke about CRG's recall effort as they walked to their vehicles. LaFaro overheard part of this conversation in which Cahill denounced CRG's efforts and allegedly used words such as "bigot," "fascist," and "homophobe" to describe LaFaro. LaFaro was not a party to this conversation, and Cahill was not talking to LaFaro. Although LaFaro may have overheard a segment of that conversation, Cahill's communication does not satisfy the statutory definition of harassment, which requires a harassing act to be "directed at" the specific person complaining of harassment. A.R.S. § 12-1809(R). While Cahill was talking about LaFaro and expressing his opinion of the recall effort, his comments were "directed at" Martelli, not Lafaro.³

¶ 14 The incident on October 31, 2000 did involve a conversation between Cahill and LaFaro. A witness testified that on that day, he heard Cahill say directly to LaFaro, "You're a bigot, LaFaro," while LaFaro was soliciting signatures for the recall campaign. LaFaro claims Cahill called him a "bigot, homophobe, fascist, and Nazi." Even assuming Cahill's statements to LaFaro constituted "harassment" under the statute (an issue we do not reach), this conversation was only one act directed at LaFaro, not the "series of acts" required for injunctive relief under A.R.S. § 12-1809(R). At a minimum, the "series of acts" condition requires two incidents. See Hayes v. Continental Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994)

(if the statutory language is clear and unambiguous, we apply it without resorting to other...