Streeter v. Visor ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
GEOFFREY STREETER; MATTHEW HANSEN, Plaintiffs/Appellees,
v.
SHARON VISOR; LEROY VISOR, Defendants/Appellants.
No. 1 CA-CV 14-0595
FILED 12-1-2015
Appeal from the Superior Court in Maricopa County
No. CV2014-093311, CV2014-093312, CV2014-093313, and CV2014-093314
The Honorable Margaret Benny, Judge Pro Tempore
REVERSED
COUNSEL
Fennemore Craig, P.C., Phoenix
By Theresa Dwyer-Federhar
Counsel for Plaintiffs/Appellees
Sharon Visor, Leroy Visor, Sun Lakes
Defendants/Appellants
STREETER et al. v. VISOR
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.
C A T T A N I, Judge:
¶1 Sharon and LeRoy Visor appeal the superior court’s
continuation of four injunctions against harassment obtained against them
by Geoffrey Streeter and Dr. Matthew Hansen. For reasons that follow, we
vacate the injunctions as impermissible prior restraints of protected speech.
FACTS AND PROCEDURAL BACKGROUND
¶2 Hansen, aided by physician’s assistant Streeter, performed
shoulder replacement surgery on LeRoy Visor. LeRoy Visor continued to
see Hansen for follow-up care for several months after the surgery, during
which he claims he suffered increasing pain. LeRoy Visor then underwent
revision surgery with another surgeon.
¶3 Following the revision surgery, the Visors wrote Hansen and
Streeter alleging medical malpractice and demanding compensation for
LeRoy Visor’s alleged injuries. The Visors also stated that, if their
compensation demand was not met, they would “commence with legal
action, filing a complaint with the medical board and alert various media
sources of this malpractice.”
¶4 After sending their demand letter, the Visors prepared two
flyers titled “Malpractice Alert” and “Medical Negligence Awareness.”
Both flyers stated detailed allegations against Hansen and Streeter
regarding LeRoy Visor’s care and treatment. The Visors sent flyers to
Hansen’s and Streeter’s homes and places of business, as well as to
Streeter’s neighbors and parents. Sharon Visor also handed flyers to people
visiting Hansen’s and Streeter’s offices and placed flyers on vehicles in the
parking lot.
¶5 Both Hansen and Streeter thereafter obtained injunctions
against harassment against each of the Visors. See Ariz. Rev. Stat. (“A.R.S.”)
2
STREETER et al. v. VISOR
Decision of the Court
§ 12-1809.1 The injunctions prohibited the Visors from contacting Hansen
or Streeter or visiting their homes or workplaces. Each injunction also
broadly prohibited the Visors from further distributing the flyers at issue,
proscribing “mak[ing], post[ing] or distribut[ing] comments, letters, faxes,
flyers or emails regarding [Hansen or Streeter] to the public (including but
not limited to [Hansen’s and Streeter’s] family, neighbors, workplaces or
colleagues) without agreement of the parties or permission of the court.”
¶6 The Visors requested a hearing to contest the injunctions. See
A.R.S. § 12-1809(H). Both Hansen and Streeter, along with two of their co-
workers, testified at the hearing; the Visors cross-examined those witnesses
but did not testify themselves. The superior court affirmed the injunctions,
finding by a preponderance of the evidence that the Visors had committed
acts of harassment. See Arizona Rules of Protective Order Procedure 8(F).
¶7 The Visors timely appealed. We have jurisdiction under
A.R.S. § 12-2101(A)(5)(b) and Rule 9(A)(2), (B)(2) of the Arizona Rules of
Protective Order Procedure. See LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 8, 56
P.3d 56, 59 (App. 2002).
DISCUSSION
¶8 As a preliminary matter, we consider whether the injunctions’
expiration during the pendency of this appeal renders the issue moot. See
A.R.S. § 12-1809(J) (injunction expires one year after service). Generally, an
appeal becomes moot and subject to dismissal if this court’s resolution of
the appeal would no longer affect the parties. Cardoso v. Soldo, 230 Ariz. 614,
617, ¶ 5, 277 P.3d 811, 814 (App. 2012). But this rule is a matter of prudential
restraint, subject to our discretion. Id. Among other exceptions, we may
decline to dismiss on this basis if a party may continue to suffer collateral
consequences tied to the otherwise moot issue. Id. at 617–18, ¶ 9, 277 P.3d
at 814–15.
¶9 The injunctions at issue here may carry such collateral
consequences because of potential reputational harm to the Visors. See
Cardoso, 230 Ariz. at 618, ¶ 12, 277 P.3d at 815 (ongoing reputational harm
and stigma are appropriately considered in determining whether an appeal
from an expired order of protection should be dismissed on the basis of
mootness). Expired injunctions against harassment could impose adverse
consequences on enjoined defendants because they remain a part of the
1 Absent material revisions after the relevant date, we cite a statute’s
current version.
3
STREETER et al. v. VISOR
Decision of the Court
court record and are easily located. Accordingly, we conclude that the
Visors’ interest in excising ongoing stigma justifies consideration of their
appeal.
¶10 The Visors contend that the injunctions impermissibly
burdened their First Amendment free speech rights. Given the breadth of
the injunctions’ prohibitions, we agree. Although the Visors only obliquely
raised this issue before the superior court, both the superior court and this
court have an affirmative obligation to safeguard First Amendment
protections absent some clear and intentional waiver by the parties. See
Dombey v. Phx. Newspapers, Inc., 150 Ariz. 476, 482–83, 724 P.2d 562, 568–69
(1986).
¶11 In addition to proscribing certain conduct by the Visors, the
injunctions also prohibited “mak[ing], post[ing] or distribut[ing]
comments, letters, faxes, flyers or emails regarding [Hansen or Streeter] to
the public” at large. This broad restriction expressly forbidding future
speech is a classic example of a prior restraint. See Alexander v. United States,
509 U.S. 544, 550 (1993). Prior restraints, which we have characterized as
“the most serious and least tolerable infringement on First Amendment
rights,” carry a heavy presumption of invalidity. Nash v. Nash, 232 Ariz.
473, 481–82, ¶ 32, 307 P.3d 40, 48–49 (App. 2013).
¶12 A restriction like this based on the content of speech is
permissible only if narrowly tailored to achieve a compelling state interest.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
Because of the dangers of prior restraints, even content-neutral injunctions
should not burden more speech than necessary to serve a significant
government interest. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765
(1994). Here, the injunctions at issue were not narrowly tailored and were
overbroad because they prohibited all public speech regarding Hansen or
Streeter.
¶13 Hansen and Streeter counter that the Visors’ past behavior—
targeting individuals associated with the medical providers with “detailed
and defamatory statements”—justifies the scope of injunctions. But the
injunctions sweep far beyond communications with particular individuals
and instead enjoin any public speech about Hansen and Streeter, including
for instance internet reviews (even wholly truthful ones) expressing
dissatisfaction with treatment or even complaints to regulatory bodies. See
LaFaro, 203 Ariz. at 487, ¶ 16, 56 P.3d at 61 (holding that injunction against
harassment may not restrict political speech). Moreover, although Hansen
and Streeter now characterize the Visors’ flyers as “defamatory,” they
4
STREETER et al. v. VISOR
Decision of the Court
expressly excluded the issue of defamation from consideration in this
proceeding, and there is no record determination (judicial or otherwise)
regarding the validity of the Visors’ statements.
¶14 Although the injunctions included several other provisions
permissibly restricting the Visors’ conduct, the prohibition against any
public speech regarding Hansen or Streeter sweeps well beyond
permissible restrictions on time, place, or manner of expression and is thus
unconstitutionally overbroad. Accordingly, we reverse the superior court’s
ruling affirming the injunctions and, because the permissible conduct
restrictions have already expired, vacate the injunctions themselves.
Because we reverse on this ground, we need not address the Visors’ other
arguments for reversal.
¶15 Hansen and Streeter seek an award of attorney’s fees and
costs on appeal under A.R.S. §§ 12-1809(O) and 12-349(A). But they have
not prevailed, and we decline to award them fees. As the prevailing parties
the Visors are entitled to their costs on appeal subject to compliance with
ARCAP 21.
CONCLUSION
¶16 The superior court’s judgment is reversed, and the injunctions
against harassment vacated.
:ama
5