Quinn v. Gjoni , 89 Mass. App. Ct. 408 ( 2016 )

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15-P-540 Appeals Court
ZOË TIBERIUS QUINN1 vs. ERON GJONI.
No. 15-P-540.
Suffolk. March 18, 2016. - May 19, 2016.
Present: Milkey, Agnes, & Meade, JJ.
Abuse Prevention. Protective Order. Practice, Civil, Appeal,
Moot case. Jurisdiction. Moot Question.
Complaint for protection from abuse filed in the Dorchester
Division of the Boston Municipal Court Department on September
16, 2014.
A hearing to extend an abuse prevention order was had
before Serge Georges, Jr., J., and a motion to vacate the order
was heard by James W. Coffey, J.
Jeffrey G. Harris for the defendant.
Felicia H. Ellsworth (Tasha J. Bahal & Daniel C. Wewers
with her) for the plaintiff.
Daniel J. Lyne & Theodore J. Folkman for Eugene Volokh &
another, amici curiae, submitted a brief.
1
Prior to this appeal, the plaintiff's legal name was
Chelsea Van Valkenburg. During the appeal, she changed her name
to Zoë Tiberius Quinn, the name she had already begun using
professionally.
2
MILKEY, J. The plaintiff, Zoë Quinn, obtained an abuse
prevention order against her ex-boyfriend, Eron Gjoni. That
order included a provision restricting Gjoni's ability to post
information about Quinn online. On appeal, Gjoni principally
argues that this provision impermissibly interfered with his
rights pursuant to the First Amendment to the United States
Constitution, and he urges us to reach those arguments even
though the order is no longer in effect. For the reasons set
forth below, we decline to do so.
Background. Quinn is a designer of video games who -- as
both parties appear to agree -- has become a controversial
figure in gaming circles. The parties dated for several months.
In seeking an abuse prevention order pursuant to G. L. c. 209A,
§ 3, Quinn alleged that Gjoni abused her in various respects,
including through being violent toward her on one occasion. She
also alleged that after she and Gjoni broke up, he published
online a lengthy screed that included highly personal
information about her, and that this in turn incited many third
parties to harass her, including through making numerous "death
and rape threats" to her. Gjoni concedes that he posted
information about Quinn online, and he does not appear to
contest that third parties have heaped significant abuse on her.
Rather, the parties appear to dispute the extent to which Gjoni
3
should be deemed legally responsible for causing the third
parties to act as they have.2
Quinn originally obtained the abuse prevention order
(order) at an ex parte hearing held in the Dorchester Division
of the Boston Municipal Court on September 16, 2014.
Specifically, the judge ordered Gjoni not to abuse or contact
Quinn, and to stay away from her residence and workplace. In
order to address Quinn's allegations that Gjoni was inciting
others to threaten and harass her through his online posts, the
judge also ordered Gjoni "not to post any further information
about [Quinn] or her personal life online or to encourage 'hate
mobs.'" For simplicity, we will refer to this provision as the
"no posting requirement."
After Gjoni was notified of the order, an evidentiary
hearing was held on September 30, 2014, before a second judge.
In response to Gjoni's counsel having indicated his desire to
cross-examine Quinn, the judge peremptorily stated "[t]here's
going to be no cross-examination of the plaintiff." Gjoni
himself was present at the hearing but did not testify. When
2
Quinn acknowledged that Gjoni was not "directing" the
third parties to harass her, but she alleged that he
nevertheless was distributing the information online in a manner
that he knew would have that effect (e.g., by specifically
targeting the information to groups or people that he knew were
already hostile to Quinn). Gjoni denied any conscious effort to
harm Quinn, and asserted a First Amendment right to comment
about her.
4
the judge signaled his intention to extend the order for another
year, Gjoni's counsel attempted to argue that the scope of the
existing order infringed on his client's First Amendment rights.
The judge declined to consider the issue, stating, "Counsel,
I'll leave that to your appellate rights." Gjoni filed a timely
appeal, which was docketed in this court on April 21, 2015.
On August 13, 2015 -- while the appeal was pending -- Quinn
filed a motion in the trial court seeking to have the order
vacated in its entirety. According to Quinn, "the existence of
[the] Order, and Mr. Gjoni's appeal of it, is in fact
exacerbating her situation by allowing Mr. Gjoni to continue to
draw attention to himself, and as a result [to her], which has
the direct effect of increasing the harassment and threats she
suffers." On August 28, 2015, after a hearing, a third judge
terminated the order and directed law enforcement agencies to
destroy all records of it.3 See G. L. c. 209A, § 7, third par.,
as appearing in St. 1990, c. 403, § 8 ("The court shall notify
the appropriate law enforcement agency in writing whenever any
such order is vacated and shall direct the agency to destroy all
3
In June, 2015, Gjoni had filed with the Supreme Judicial
Court a petition for direct appellate review (DAR) in which he
highlighted his claim that the no posting requirement raised
First Amendment concerns. In response to that petition, Quinn
informed the Supreme Judicial Court that she intended to have
the order vacated in the trial court because it was not serving
to protect her. After the third judge terminated the order, the
Supreme Judicial Court denied Gjoni's DAR petition.
5
record of such vacated order and such agency shall comply with
that directive").
In his appellate brief, Gjoni principally argues that the
no posting requirement violated his First Amendment rights and
that this requirement was, at a minimum, overly broad.4 In her
brief, Quinn did not address the underlying merits, but instead
argued solely that Gjoni's appeal should be dismissed on the
ground that the case has become moot. In reply, Gjoni argued
that the case is not fully moot and that, in any event, this
court should reach the merits. In this vein, Gjoni pointed out
that as of the date his reply brief was filed, he was facing a
criminal prosecution for allegedly violating the no posting
requirement before it had been terminated. A subsequent filing
revealed that the District Attorney since has issued a nolle
prosequi of that case.
Discussion. 1. We begin by addressing the threshold
question of whether the third judge had authority to terminate
the order while the appeal was pending.5 Ordinarily, once an
appeal has been docketed, the trial court lacks jurisdiction to
modify the judgment being appealed. See Springfield Redev.
4
Gjoni's First Amendment arguments are supported by an
amicus brief submitted by two law professors, Eugene Volokh and
Aaron H. Caplan.
5
We raised this question sua sponte prior to oral argument.
6
Authy. v. Garcia, 44 Mass. App. Ct. 432, 434-435 (1998), citing
Commonwealth v. Cronk, 396 Mass. 194, 197 (1985). We agree with
Quinn's argument that this rule does not apply in the sui
generis context of c. 209A abuse prevention orders. Pursuant to
statute, an abuse prevention order that has been issued can be
modified "at any subsequent time." G. L. c. 209A, § 3(i), as
appearing in St. 2000, c. 236, § 23. This provision serves to
protect victims of abuse by allowing them to tailor the terms of
abuse prevention orders as (often rapidly) developing
circumstances may warrant. See Guidelines for Judicial
Practice: Abuse Prevention Proceedings § 5:08 commentary, at
2011 (Sept. 2011) (Guidelines) ("A victim of [domestic] abuse is
in the best position to decide what course of action will
provide more safety. At a given time, an abuse prevention order
might exacerbate the plaintiff's danger").6 With the parties
having a recognized statutory right to seek modification of
existing orders, it follows that a pending appeal of a 209A
order does not deprive the trial court of its ability to modify
the order.7 Compare Braun v. Braun, 68 Mass. App. Ct. 846, 852-
6
It is also worth noting that, unlike the usual civil case
in which a single final judgment brings the trial court
proceedings to a conclusion, a c. 209A proceeding typically is
made up of a series of discrete, time-bound orders.
7
See McCarthy v. O'Connor, 398 Mass. 193, 196-197 (1986)
(where the rules of appellate procedure expressly allow a trial
court in some circumstances to dismiss an untimely appeal, the
7
854 (2007) (recognizing the ability of a divorce litigant to
pursue a modification complaint while an appeal of the original
judgment is pending). Of course, litigants should keep
appellate courts apprised of any relevant ongoing proceedings
(as the parties to this case laudably did here), and, if time
permits, seek leave of the appellate court to modify the order
under review. See id. at 853-854.8
2. We next turn to Quinn's argument that this case is now
moot and that we should simply dismiss it as such. As noted,
Gjoni seeks to press on appeal his claim that the no posting
requirement infringed on his First Amendment rights. At this
time, neither party retains anything but an academic interest in
those issues, which go to the scope of the now terminated order.
We therefore decline to reach them. See Ott v. Boston Edison
Co., 413 Mass. 680, 685 (1992) ("This court should not encourage
the appellate pursuit of an issue . . . in which the appellant's
only appropriate interest is academic"). The rule against
deciding moot questions applies with particular force where, as
trial court retains jurisdiction to do so even after an appeal
has been docketed in the appellate court).
8
In Braun v. Braun, we recognized that even in the context
of modifications to divorce judgments, "there may be emergency
or other situations when modification may be necessary without
time for obtaining approval from an appellate court," and we
expressly held that the failure of a party to obtain leave from
the appellate court does not deprive the trial court of
jurisdiction. Id. at 853-854.
 8
here, the dispute turns on constitutional issues. M.C. v.
Commissioner of Correction, 399 Mass. 909, 912 (1987), citing
Lockhart v. Attorney Gen., 390 Mass. 780, 784 (1984).
Gjoni argues that we nevertheless should reach his First
Amendment arguments because he continues to face the theoretical
possibility of a criminal prosecution for allegedly having
violated the no posting requirement while it was in effect. We
disagree. Generally, whether the terms of an abuse prevention
order went too far has no bearing on whether someone could be
prosecuted for violating it. See Commonwealth v. Marrero, 85
Mass. App. Ct. 911, 912 (2014) ("As a general rule the defendant
does not have the option to act in violation of a court order
and then, in a subsequent criminal proceeding, assert as a
defense that the order should not have been issued"). See also
Mohamad v. Kavlakian, 69 Mass. App. Ct. 261, 264 (2007) ("Even
if erroneous, a court order must be obeyed"). Even where the
person subject to the court order claims it is invalid on First
Amendment grounds, he generally can be prosecuted for a
violation of the order regardless of its validity. See Matter
of Providence Journal Co., 820 F.2d 1342, 1346-1347 (1st Cir.
1986), cert. dismissed, 485 U.S. 693 (1988).9
9
Citing to language in Walker v. Birmingham, 388 U.S. 307,
316 (1967), the First Circuit held that an order prohibiting a
newspaper from publishing certain information regarding the
plaintiff's deceased father was such a "transparently invalid
9
Additionally, Gjoni argues that we should reach his First
Amendment arguments because they present issues that are "of
public importance, capable of repetition, yet evading review."
Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass.
271, 274 (1978). While it may well be true that these issues
are likely to arise again, we are unpersuaded that, if so, they
will evade appellate review. We also note that in circumstances
where an appellate court has exercised its discretion to reach
an issue that is moot, it appears generally that the court has
done so only where the parties have fully briefed the merits of
that issue. See, e.g., Brach v. Chief Justice of the Dist. Ct.
Dept., 386 Mass. 528, 533 (1982) (deciding against dismissal,
even though case was moot, because issues were fully argued by
both sides). See generally Lockhart v. Attorney Gen., supra at
783-784 (discussing the factors assessed in ruling on moot
cases). Here by contrast, Quinn has not briefed the First
. . . prior restraint on pure speech" to be void (not merely
voidable), thus fitting an exception to the general rule that
one can be prosecuted for violating an order even if it runs
afoul of the First Amendment. Matter of Providence Journal Co.,
supra at 1345, 1347, 1353. In any event, any contention that
the no posting requirement was void (and not merely voidable)
could be raised by Gjoni in the unlikely event that he faced a
new prosecution for allegedly having violated the now vacated
order. Conversely, whether the no posting requirement was void
would have no place in the current appeal even if we were to
agree with Gjoni that the scope of this provision was too broad.
10
Amendment issues at all, a fact that is unsurprising given that
she lacks any concrete interest in those issues going forward.10
3. Although Gjoni principally focuses on his First
Amendment claims, he does make some additional arguments. Most
prominently, he argues that the second judge extended the ex
parte order without providing him adequate process.11 Unlike his
First Amendment claims, his additional arguments go to whether
the order was properly issued. As to those arguments, there is
language in the case law involving expired abuse prevention
10
We note that the First Amendment issues were not moot
when Gjoni attempted to raise them in the trial court. While we
fully appreciate the difficulties of seeking to harmonize such
interests with the countervailing interest of trying to protect
Quinn from the uncontested deluge of harassment that she faced,
it was not appropriate for the second judge to decline even to
consider such issues. See Care & Protection of Edith, 421 Mass.
703, 705-706 (1996) (trial court judges have a duty to address
the First Amendment implications of court orders by making
specific findings). See also Planned Parenthood League of
Mass., Inc. v. Operation Rescue, 406 Mass. 701, 713-714 (1990)
(discussing a judge's obligations in issuing an injunction
implicating protected First Amendment activities).
11
A judge enjoys substantial discretion in crafting how a
c. 209A evidentiary hearing is to proceed. Thus, even
though a defendant in a c. 209A proceeding has a general right
to cross-examine the plaintiff, a judge may place limits on
cross-examination if warranted by the circumstances. See
Frizado v. Frizado, 420 Mass. 592, 597-598 (1995); Silvia v.
Duarte, 421 Mass. 1007, 1007-1008 (1995). However, a judge must
in any event provide each side "a meaningful opportunity to
challenge the other's evidence." Frizado v. Frizado, supra at
598 n.5, quoting from District Court's Draft Standards of
Judicial Practice, Abuse Prevention Proceedings § 5:01 (Dec.,
1994). Gjoni argues that the second judge's flat prohibition on
cross-examination deprived him of that opportunity.
11
orders that provides him some support for claiming that a
portion of his appeal remains live.12 However, as in Allen v.
Allen, 89 Mass. App. Ct. (2016), the order under appeal
here did not merely expire but has been vacated,13 and copies of
the abuse prevention order possessed by law enforcement
officials were ordered destroyed. The defendant therefore has
obtained all the relief to which he could be entitled,14 and he
no longer has a cognizable interest in whether the order was
12
See, e.g., Wooldridge v. Hickey, 45 Mass. App. Ct. 637,
638 (1998) (because abuse prevention orders have important
collateral consequences, even after such an order has expired, a
defendant "has a surviving interest in establishing that the
orders were not lawfully issued").
13
While the judge marked the order as having been
"TERMINATED," the docket itself refers to the order as having
been "VACATED" (consistent with how Quinn phrased the relief she
requested in her motion). As this case illustrates, in the
context of c. 209A orders, trial courts use "vacate" and
"terminate" interchangeably. See Guidelines § 1:00, at 8-9
(discussing case law that uses both "terminate" and "vacate" to
mean "terminat[ing] [an order] upon motion of either party").
14
Even if we were to hear this appeal and to conclude that
Gjoni was not given adequate process, he still would not be
entitled to have the order expunged from the Statewide registry
of domestic violence. The case law has long established that
someone in Gjoni's position is not entitled to such relief
except "in the rare and limited circumstance that the judge has
found through clear and convincing evidence that the order was
obtained through fraud on the court." Commissioner of Probation
v. Adams, 65 Mass. App. Ct. 725, 737 (2006). See Vaccaro v.
Vaccaro, 425 Mass. 153, 155-159 (1997); Smith v. Jones, 67 Mass.
App. Ct. 129, 137-138 (2006). Gjoni has not argued that such
exceptional circumstances are present here, and, in any event,
nothing in the record suggests that Quinn committed a fraud on
the court.
12
lawfully issued. See ibid. Cf. Almahdi v. Commonwealth, 450
Mass. 1005, 1005 (2007) (in criminal case, issuance of nolle
prosequi rendered bail review appeal moot). Therefore, we
dismiss the entire appeal as moot.
So ordered.