State v. Noah
| Decision Date | 11 September 2000 |
| Docket Number | No. 41241-8-I, No. 43048-3-I. |
| Citation | 9 P.3d 858,103 Wash. App. 29,103 Wn. App. 29 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Charles "Chuck" NOAH, Appellant. David L. Calof, d/b/a Family Psychotherapy Practice of Seattle, Respondent, v. Francie Casebeer, Appellant, James Joyce; Charles "Chuck" Noah and June Noah, individually and as a marital community; Phil Hoxter and Susie Hoxter, individually and as a marital community; Gene Adams and Jane Doe Adams, individually and as a marital community; Patricia Prather and John Doe Prather, individually and as a marital community; Robert "Bob" Farkus and Jane Doe Farkus, individually and as a marital community; Bruce Baldwin and Jane Doe Baldwin, individually and as a marital community; The so called "Apple Dumpling Gang," an informal association; John Does 1-10 and Jane Does 1-10, individually and as a marital community, Defendants. |
David Utevsky, Foster Pepper & Sheleman, Aaron Caplan, ACLU of Washington, William Crittenden, Elena Garella, Law Office of Arnold Barer, Seattle, for Appellants.
Stephen Anderson, Douglass North, Maltman Reed North Ahrens & Manlanti, Sandra Widlan, Kristin Houser, Schroeter Goldmark & Bender PS, Rebecca Roe, Seattle, for Respondents.
Noah and Casebeer were involved in activities protesting Calof's work in repressed memory recovery. Calof secured an antiharassment order against Noah. Noah was found in contempt for violating the antiharassment order. Noah challenges the antiharassment order and his conviction for contempt on the grounds it violated First Amendment rights including free speech, the right to picket, and the right to photograph Calof in public. We hold an antiharassment order may place enforceable limits of First Amendment rights as needed to enforce the no contact provisions of the order. We affirm the antiharassment order and his conviction for contempt.
Calof sued Casebeer and others for defamation and other injuries. Casebeer and others entered voluntarily and knowingly into a mediated settlement agreement. Casebeer repudiated the agreement on the grounds that she could not lawfully contract away First Amendment rights, such as speech and picketing. The trial court held that the agreement was enforceable. We hold that mere enforcement of the agreement does not constitute state action for purposes of constitutional analysis. The agreement is enforceable. We affirm.
David L. Calof is a mental health counselor registered under the laws of the State of Washington and has practiced psychotherapy in the Seattle area for over 25 years. Calof works generally in the area of trauma treatment with a special interest in the treatment of people suffering the affects of childhood sexual, physical and emotional abuse. In addition to his therapy practice, Calof presents at a number of national and international conferences, seminars and professional meetings each year.
Charles Noah's daughter accused him of having sexually abused her when she was a child. Noah denied the accusations and blames his daughter's therapist, Linda McDonald, for the revelations. Noah protested McDonald's practice. His conduct resulted in an antiharassment order being issued.
In 1995, though David Calof never had a professional or personal relationship with Noah or his daughter, Noah picketed along the sidewalk in front of Calof's office allegedly protesting recovered memory therapy. He displayed signs such as "Voodoo Therapy Practiced Here," "Big Bucks For Therapy Spreading Child Abuse Hysteria," and "David Calof Voice of Hatred And Revenge."
Calof claims Noah harassed him in his personal and professional life. On May 5, 1995, Noah entered Calof's office and approached and spoke with one of Calof's clients. Noah made an unsolicited telephone call to Calof's private residence. On another occasion, Calof postponed a hearing citing his father's illness as an excuse, and Noah attempted to locate Calof's father to verify whether he was truly ill. Calof's lease was up for renewal in July 1995. Noah called Calof's landlord on at least one occasion.
Calof alleges that Noah conducted his picketing in such a way that harmed Calof, his employees and patients. In entering the building, Calof's staff could not "easily avoid passing by him." Calof claims that as a result many patients either used the back door to the office or cancelled appointments. Calof also claims that Noah used cameras and video equipment to photograph him, his clients, and his staff. Calof claims he suffered emotional distress, pecuniary loss, and damage to his professional reputation.
On April 26, 1995, the trial court issued a one-year antiharassment order, restraining Noah from contacting Calof or placing him under surveillance and prohibiting Noah from going within 250 feet of Calof's office or residence. Calof filed a motion for contempt and modification of the antiharassment order. On May 31, 1995, the trial court entered an amended antiharassment order. The new order specifically restrained Noah from photographing or videotaping near Calof's building, and aiding and abetting any person from doing the things prohibited to him. The court also increased the radius of the prohibited zone around Calof's building from 250 to 300 feet. Noah appealed the district's order to the superior court which remanded the case for entry of findings of fact. On October 31, 1995, the district court entered its findings of fact and conclusions of law.
Calof filed a second contempt motion against Noah. On October 12 and 13, 1995, the district court heard Calof's second contempt motion. The court found that Noah remained outside the 300-foot zone, and that he had intentionally violated the order by "aiding and abetting and acting in concert with others in doing those things which he is himself forbidden to do directly." Noah was held in contempt.
Noah appealed both the antiharassment order and the finding of contempt to the superior court. Noah argued that the provisions of the antiharassment order that prohibited picketing within 300 feet from Calof's building were unconstitutional and that the order had expired. Noah did not object to the provisions prohibiting him from contacting Calof or from going within 300 feet of his home.
On July 31, 1997, the superior court found that the antiharassment order had improperly intruded into an area of constitutionally protected activity. The court found that the district court had "inappropriately considered" Noah's protected activities (i.e. peaceful picketing) as part of the conduct found to constitute harassment. It also found that the district court had erred in finding that Noah's picketing signs were libelous per se.
The provision restraining Noah from picketing within 300 feet of Calof's office was stricken as unconstitutional because it restrained a protected activity. In addition, the court held that it was error to issue an antiharassment order that remained in effect for more than one year without the statutorily required findings. Therefore, the order had expired as a matter of law on the anniversary of its issuance. The finding of contempt was affirmed, however, because the
Francie Casebeer began picketing outside Calof's office in 1995. Casebeer became involved in the picketing after her sister's therapy produced "memories" of abuse that alienated her from Casebeer and her parents. Casebeer associates Calof with repressed memory therapists.
Calof claims that Casebeer's picketing escalated to harassment. Calof filed suit against Casebeer and Noah alleging defamation, invasion of privacy, negligent and intentional infliction of emotional distress, tortious interference with business and professional relations, nuisance and civil conspiracy.
On December 19, 1997, following eleven hours of mediation, the parties reached a settlement agreement (agreement). Casebeer renounced the agreement. Calof filed a motion to enforce settlement. The superior court held a hearing and found that the agreement was knowingly and voluntarily entered into and granted the motion to enforce settlement on April 14, 1998.
Casebeer then brought a motion to invalidate the settlement on May 26, 1998, contesting the agreement's constitutionality. The superior court denied the motion stating that Casebeer appeals the trial court's denial of the motion to invalidate agreement. She objects to the constitutionality of the agreement, but concedes that the agreement was knowingly and voluntarily entered into. Noah joined Casebeer's renunciation of the agreement at the initial hearing, but did not join on this appeal. The court of appeals linked the cases anticipating the potential for the settlement agreement in Casebeer might influence the result in Noah.
The Washington Constitution was amended in 1993 to allow the district court to exercise jurisdiction in antiharassment cases by adding the following language: "Superior courts and district courts have concurrent jurisdiction in cases in equity." Wash. Const. art. 4, § 6 (amended 1993). The harassment statute implements the new constitutional grant of authority. RCW 10.14.150 provides:
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