Best v. Marino ( 2017 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: __________
3 Filing Date: June 29, 2017
4 NO. 34,680
5 STEVEN BEST,
6 Petitioner-Appellee,
7 v.
8 CAMILLE A. MARINO,
9 Respondent-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
11 Darren M. Kugler, District Judge
12 Law Office of Jerold D. Friedman
13 Jerold Friedman
14 Cypress, TX
15 L. Helen Bennett P.C.
16 L. Helen Bennett
17 Albuquerque, NM
18 for Appellee
19 Bennett J. Baur, Chief Public Defender
20 J.K. Theodosia Johnson, Assistant Appellate Defender
21 Santa Fe, NM
22 for Appellant
1 OPINION
2 WECHSLER, Judge.
3 {1} This appeal arises from a finding of indirect criminal contempt against
4 Respondent Camille Marino for her violation of an order of protection (Order of
5 Protection) issued pursuant to the Family Violence Protection Act (FVPA), NMSA
6 1978, §§ 40-13-1 through -12 (1987, as amended through 2016). In addition to 179
7 days incarceration, the district court imposed an almost complete restriction on
8 Respondent’s ability to access the Internet.1
9 {2} Respondent first argues that the Order of Protection is invalid and should be
10 vacated by this Court. She bases this argument on her claim that Petitioner Steven
11 Best did not allege or prove the elements of “stalking” when he obtained the Order
12 of Protection in October 2012. Petitioner argues that Respondent’s argument is an
13 impermissible collateral attack on the Order of Protection and, as a result, this Court
14 should dismiss Respondent’s appeal. Although we agree that Respondent’s argument
15 is subject to the collateral bar rule, we decline to dismiss the appeal outright in light
16 of other potentially meritorious issues raised by Respondent. Respondent additionally
1
17 The district court’s order allowed Respondent to access the Internet to contact
18 her attorney and her accountant. All other access was prohibited.
1 argues without development that the district court lacked subject matter jurisdiction
2 over this action. This argument lacks merit.
3 {3} Respondent next argues that the restrictions imposed by the Order of Protection
4 violated her First Amendment right to free speech by treating her online
5 activity2—which inarguably is speech—as sanctionable conduct. We disagree.3 As
6 discussed at length herein, the Order of Protection imposes certain restraints on
7 Respondent that could not be imposed on a non-restrained person. As such, the
8 appropriate question on appeal is not whether the government can generally restrict
9 the speech at issue in this case, but whether the district court can restrict Respondent
10 from engaging in such speech. We conclude that it can.
2
11 Throughout this opinion we use the phrase “online activity” to describe
12 Respondent’s posting of statements and photographs related to Petitioner on (1)
13 Respondent’s own website; (2) Respondent’s own Facebook and other social media
14 pages; and (3) third-party controlled Facebook and other social media pages. Our use
15 of the phrase “online activity” does not include email messages sent directly by
16 Respondent to Petitioner, which we consider separately.
3
17 Substantial evidence supports a finding that Respondent violated the Order of
18 Protection by directly contacting Petitioner by telephone, email, and postal service.
19 See State v. Smith, 2016-NMSC-007, ¶ 19, 367 P.3d 420 (“Substantial evidence is
20 relevant evidence that a reasonable mind might accept as adequate to support a
21 conclusion.” (internal quotation marks and citation omitted)). Although we could
22 simply affirm the district court’s contempt finding under the right-for-any-reason
23 doctrine, we instead elect to address the questions that arise from its finding that
24 Respondent’s online activity constituted a violation of the Order of Protection.
2
1 {4} In a related argument, Respondent argues that the district court’s finding of
2 contempt resulted from a due process violation because the Order of Protection failed
3 to provide sufficient notice that her online activity would be considered “contact”
4 constituting a violation. The district court did not, however, conclude that Respondent
5 “contacted” Petitioner in violation of the Order of Protection. It concluded that
6 Respondent’s “harassment of Petitioner” caused “emotional distress.” The Order of
7 Protection restrained Respondent from committing “acts of abuse” and defined
8 “abuse” to include “any incident . . . resulting in . . . severe emotional distress[.]” The
9 appropriate question on appeal, therefore, is not whether Respondent’s online activity
10 was “contact,” but whether Respondent reasonably should have known that her online
11 activity would cause Petitioner to suffer severe emotional distress. We answer this
12 question in the affirmative.
13 {5} Finally, Respondent argues that the district court’s restriction of her ability to
14 access the Internet is overbroad and violates the First Amendment. We agree. We
15 therefore affirm Respondent’s term of incarceration but reverse the restriction on her
16 ability to access the Internet.
17 BACKGROUND
18 {6} Petitioner is a philosophy professor at the University of Texas at El Paso
19 (UTEP) and resides in Anthony, New Mexico. Respondent resides in Wildwood,
3
1 Florida. Petitioner and Respondent became acquainted through their work in the
2 animal rights movement and maintained a platonic friendship for several years until
3 that friendship deteriorated in August 2012.
4 {7} On October 15, 2012, Petitioner filed a petition requesting protection from acts
5 of domestic abuse perpetrated by Respondent. His petition alleged that Respondent
6 (1) sent threatening email messages, (2) made threatening telephone calls, (3) left
7 threatening voice messages, and (4) posted slanderous and derogatory statements
8 about Petitioner on her website and Facebook page.
9 {8} On October 26, 2012, a domestic violence special commissioner (the special
10 commissioner) held a hearing (October 2012 hearing) on Petitioner’s claims. The
11 special commissioner found that Respondent was a “stalker” and recommended that
12 the district court enter an order of protection. Respondent did not file any objections
13 to the special commissioner’s findings or recommendations.
14 {9} The district court reviewed and adopted the special commissioner’s findings
15 and recommendations and entered an Order of Protection using Form 4-965 NMRA,
16 which articulated the terms of the order of protection. The Order of Protection
17 restrained Respondent from “committing further acts of abuse or threats of abuse” and
18 “any contact” with Petitioner and defined “abuse” as:
19 [A]ny incident by one party against the other party or another household
20 member resulting in (1) physical harm; (2) severe emotional distress; (3)
4
1 bodily injury or assault; (4) threat by . . . Respondent causing imminent
2 fear of bodily injury to the other party or any household member; (5)
3 criminal trespass; (6) criminal damage to property; (7) repeatedly
4 driving by Petitioner’s . . . residence or workplace; (8) telephone
5 harassment; (9) stalking; (10) harassment; or (11) harm or threatened
6 harm to children in any manner set forth above.
7 In light of the specific conduct alleged, the district court modified the definition of
8 “contact” on Form 4-965. As a result, the Order of Protection stated that Respondent
9 “shall not telephone, talk to, visit or contact [Petitioner] in any way . . . including
10 social media[.]”
11 On July 1, 2014, Petitioner filed an affidavit of violation, in which he alleged:
12 Since the filing of th[e O]rder [of Protection], the Respondent has used
13 social media to harass the Petitioner. She has caused severe emotional
14 distress. The Respondent has used her websites, social media (including
15 [F]acebook, [T]witter, [P]interest), and blogging to carry out revenge
16 styled postings, including numerous damaging pictures of [Petitioner]
17 and making outrageous/false accusations against him. These posts are
18 intended to harm [Petitioner’s] career, charitable causes, and personal
19 life. This has occurred on numerous dates between the issuance of the
20 [O]rder of [P]rotection and the date of this filing[.]
21 {10} This affidavit triggered a hearing before the special commissioner. Petitioner
22 introduced sixteen exhibits—consisting of screen captures of Respondent’s website
23 and Facebook page—purported to represent merely a fraction of Respondent’s online
24 activity since October 2012. Petitioner also introduced an email message sent directly
25 from Respondent to Petitioner on November 8, 2012. The special commissioner
26 found that Respondent violated the Order of Protection by “contacting [Petitioner],
5
1 by using social media to harass him, by using social media to stalk him, and by using
2 social media to cause severe emotional distress.” As a result of these findings, the
3 special commissioner recommended sanctions and certified the matter to the district
4 court for a criminal contempt hearing.
5 {11} Respondent filed objections to the special commissioner’s recommendations.
6 The district court scheduled a hearing to resolve Respondent’s objections, which the
7 district court stated was a “hearing de novo” on the special commissioner’s
8 recommendations.
9 {12} Both parties testified, and Petitioner introduced twenty-eight exhibits—again
10 consisting of screen captures of Respondent’s online activity. Petitioner also
11 introduced three email messages sent directly from Respondent to Petitioner on
12 November 4, 2012 and November 8, 2012. In these exhibits, Respondent referred to
13 Petitioner as (1) “the grand high exalted drug-addicted hypocrite,” (2) “a drug-addled
14 imbecile,” (3) “a sexist, racist woman beater,”and (4) “UTEP junkie professor.” One
15 exhibit threatened to “hold [Petitioner] accountable” and to make him “pay dearly.”
16 Other exhibits threatened to “expose” and to “neutralize” Petitioner. Still others
17 contained song lyrics with obliquely violent imagery. Many of the exhibits included
18 photographs of Petitioner snorting prescription drugs (drug photos). Petitioner also
19 testified that: (1) Respondent continued to directly contact Petitioner by telephone
6
1 and email after the entry of the Order of Protection; (2) Respondent mailed a package
2 containing written materials to Petitioner’s home address after the entry of the Order
3 of Protection; and (3) Petitioner’s girlfriend received two telephone calls from an
4 unknown individual alleging that the caller was driving through Anthony, New
5 Mexico with the intent to kill Petitioner and his cats.
6 {13} Inexplicably, the district court did not discuss the possibility that Respondent’s
7 direct contact of Petitioner—by telephone, postal service, and email—constituted a
8 violation of the Order of Protection. Instead, it focused its ruling expressly on
9 exhibits related to Respondent’s online activity. In its oral ruling, the district court
10 cited specific exhibits that it found to violate the Order of Protection. Its second
11 amended order memorialized its oral ruling and referred to Respondent’s use of
12 “social media and the [I]nternet to engage in a sustained pattern of stalking and
13 harassment of Petitioner[,] including . . . emotional distress to Petitioner.” It
14 sentenced Respondent to 179 days incarceration with credit for time served. It also
15 ordered that Respondent “shall not use the [I]nternet or any social media for any
16 purpose other than contacting her attorney or accountant.” (Emphasis omitted.) This
17 appeal resulted.
7
1 {14} On June 13, 2016, Respondent filed a request for this Court to designate the
2 state of New Mexico as the real party in interest. This request was denied.4
3 COLLATERAL ATTACK
4 {15} Respondent’s first argument on appeal is that the Order of Protection is invalid
5 and should be vacated by this Court because Petitioner did not allege or prove the
6 elements of “stalking” when he obtained the Order of Protection in October 2012.
7 Petitioner claims that Respondent is not now permitted to attack the validity of the
8 Order of Protection after a finding of contempt. We agree with Petitioner.
9 {16} This issue was addressed in State v. Bailey, in which the defendant defied an
10 injunctive order that required him to obtain a driver’s license and registration prior
11 to operating his vehicle. 1994-NMCA-107, ¶ 3, 118 N.M. 466, 882 P.2d 57. After the
12 defendant refused to comply with the injunction, the district court found him in
13 contempt. Id. On appeal, this Court held that the district court lacked authority to
14 issue the injunction but upheld the finding of contempt. Id. ¶¶ 6, 11. We based our
15 holding on the “collateral bar rule,” which precludes litigants “from challenging [a]
4
16 Although we acknowledge the potential merits of Respondent’s argument,
17 Respondent failed to preserve the issue at trial, and we decline to review the question
18 for the first time on appeal. See Rule 1-093(D)(2) NMRA (“The court shall appoint
19 the district court to prosecute the criminal contempt for the state.”); State v. Frazier,
20 1973-NMCA-127, ¶ 7, 85 N.M. 545, 514 P.2d 302 (holding that alleged errors that
21 are neither jurisdictional nor fundamental may not be raised for the first time on
22 appeal).
8
1 contempt citation by a collateral attack on the injunction.” Id. ¶ 11. We additionally
2 noted that “[t]he method of correcting error is by appeal, and not by disobedience.”
3 Id. (internal quotation marks and citation omitted).
4 {17} Respondent claims that, during the October 2012 hearing, Petitioner failed to
5 prove that Respondent’s actions constituted “stalking” as provided in Section 40-13-
6 2(D)(1) and that Petitioner’s principal concern was for his reputation rather than his
7 physical safety. Section 40-13-2(D)(1) limits acts of “domestic abuse” by non-
8 household members to “stalking” and “sexual assault.” Petitioner did not allege that
9 he was a victim of sexual assault. As such, to justify restraint under the FVPA,
10 Petitioner’s burden at the October 2012 hearing was to prove that Respondent’s
11 conduct constituted “stalking.”
12 {18} The special commissioner expressly found Respondent to be a “stalker.” Rule
13 1-053.1 NMRA provided Respondent with an opportunity to challenge the special
14 commissioner’s findings, including whether sufficient evidence supported the special
15 commissioner’s finding that Respondent was a “stalker,” before the district court
16 adopted the special commissioner’s recommendations and entered the Order of
17 Protection. See Rule 1.053.1(H)(1)(b) (“If the party files timely, specific objections
18 to the recommendations, the [district] court shall conduct a hearing appropriate and
19 sufficient to resolve the objections.”). Respondent did not file objections to the
9
1 special commissioner’s recommendations. In the absence of objections from
2 Respondent, the district court adopted the special commissioner’s recommendations
3 and entered the Order of Protection. The collateral bar rule precludes a restrained
4 party from challenging the merits of an injunction after a finding of contempt.
5 Respondent’s argument presents such a challenge and is, therefore, precluded.
6 SUBJECT MATTER JURISDICTION
7 {19} In an associated claim, brought pursuant to State v. Franklin, 1967-NMSC-151,
8 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712
9 P.2d 1, Respondent argues that the district court lacked subject matter jurisdiction
10 over this action. The issue of subject matter jurisdiction may be raised at any time,
11 including for the first time on appeal. Lasley v. Baca, 1981-NMSC-041, ¶ 13, 95
12 N.M. 791, 626 P.2d 1288. We review questions of subject matter jurisdiction de novo.
13 Murken v. Solv-Ex Corp., 2006-NMCA-064, ¶ 8, 139 N.M. 625, 136 P.3d 1035.
14 {20} “[D]istrict courts are courts of general jurisdiction having the power to hear
15 all matters not excepted by the constitution and those matters conferred by law.” State
16 ex rel. Foy v. Austin Capital Mgmt., 2015-NMSC-025, ¶ 7, 355 P.3d 1 (internal
17 quotation marks and citation omitted). “The only relevant inquiry in determining
18 whether the court has subject matter jurisdiction is to ask whether th[e] kind of
19 claim . . . advance[d] falls within the general scope of authority conferred upon such
10
1 court by the constitution or statute.” Gonzales v. Surgidev Corp., 1995-NMSC-036,
2 ¶ 12, 120 N.M. 133, 899 P.2d 576 (internal quotation marks and citation omitted).
3 {21} Petitioner alleged that he was a victim of domestic abuse and that Respondent
4 perpetrated that abuse. Section 40-13-3(A) confers jurisdiction to the district court in
5 the judicial district in which an alleged victim of domestic abuse lives. Respondent
6 does not contest either of these points on appeal. As a result, the district court had
7 subject matter jurisdiction over this action.
8 FREE SPEECH RIGHTS OF RESTRAINED PERSONS
9 {22} Respondent next argues that her online activity is protected speech and is,
10 therefore, not sanctionable. As indicated above, we address this argument by
11 considering whether the state is permitted to sanction Respondent’s online activity
12 given the limitations placed on her First Amendment rights by the Order of
13 Protection. “Whether a statement is privileged under the First Amendment presents
14 a question of law for the court to determine.” Kimbrell v. Kimbrell, 2013-NMCA-070,
15 ¶ 32, 306 P.3d 495 (alteration, internal quotation marks, and citation omitted), rev’d
16 on other grounds, 2014-NMSC-027, 331 P.3d 915. We review questions of
17 constitutional law de novo. Morris v. Brandenburg, 2015-NMCA-100, ¶ 26, 356 P.3d
18 564, aff’d 2016-NMSC-027, 376 P.3d 836.
11
1 {23} The First Amendment to the United States Constitution prohibits the
2 government from enacting laws “abridging the freedom of speech.” Elane
3 Photography, LLC v. Willock, 2013-NMSC-040, ¶ 22, 309 P.3d 53. That said, neither
4 the United States nor the New Mexico Constitution provides an absolute right to free
5 speech. See United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (holding that
6 certain categories of speech, including “advocacy intended, and likely, to incite
7 imminent lawless action; obscenity; defamation; speech integral to criminal conduct;
8 so-called ‘fighting words’; child pornography; fraud; true threats; and speech
9 presenting some grave and imminent threat the government has the power to prevent”
10 are not protected by the First Amendment (citations omitted)); City of Albuquerque
11 v. Pangaea Cinema LLC, 2012-NMCA-075, ¶ 24, 284 P.3d 1090 (holding that “First
12 Amendment rights are not immune from governmental regulation” (internal quotation
13 marks and citation omitted)), rev’d sub nom. on other grounds by State, City of
14 Albuquerque v. Pangaea Cinema LLC, 2013-NMSC-044, 301 P.3d 604; City of
15 Farmington v. Fawcett, 1992-NMCA-075, ¶¶ 8-10, 114 N.M. 537, 843 P.2d 839
16 (holding that (1) Article II, Section 17 of the New Mexico Constitution does not
17 provide an “absolute right” to free speech, and (2) “the state may constitutionally
18 regulate . . . speech”).
12
1 {24} The state has broad power to limit a person’s liberty interests based on that
2 person’s prior conduct. See Black’s Law Dictionary 935 (10th ed. 2014) (defining
3 “liberty interest” as “[a]n interest protected by the due-process clauses of state and
4 federal constitutions”). Under the most extreme circumstances, the state may
5 incarcerate a person for the remainder of the person’s natural life. See NMSA 1978,
6 § 31-18-14 (2009) (“When a defendant has been convicted of a capital felony, the
7 defendant shall be sentenced to life imprisonment or life imprisonment without
8 possibility of release or parole.”). The state may restrict a convicted felon’s right to
9 vote or to possess a firearm. See NMSA 1978, § 31-13-1(A) (2005) (“A person who
10 has been convicted of a felony shall not be permitted to vote in any . . . election held
11 pursuant to the provisions of the Election Code[.]”); NMSA 1978, § 30-7-16(A)
12 (2001) (“It is unlawful for a felon to receive, transport or possess any firearm or
13 destructive device in this state.”). It may also restrict the movements of convicted sex
14 offenders within the state. See NMSA 1978, § 29-11A-4(B), (F) (2013) (requiring
15 convicted sex offenders to register each and any new physical address with the county
16 sheriff). The rationale underlying such statutes is that the public interest is served by
17 limiting a convicted felon’s ability to engage in certain activity—even though that
13
1 limitation burdens the exercise of the person’s inherent rights.5 See, e.g., Lewis v.
2 United States, 445 U.S. 55, 61 (1980) (stating that Congress’s intent in prohibiting
3 the possession of firearms by felons was directly related to “the problem of firearm
4 abuse by felons”); see also Kane v. City of Albuquerque, 2015-NMSC-027, ¶ 9, 358
5 P.3d 249 (holding that “the right to vote is fundamental”); Griego v. Oliver, 2014-
6 NMSC-003, ¶ 1, 316 P.3d 865 (describing “the right to bear arms, freedom of speech,
7 [and] freedom of the press” as “inherent rights, enjoyed by all New Mexicans”).
8 {25} Orders of protection are essentially justified by the same rationale. The purpose
9 of an order of protection is to prevent future harm to a protected party by a restrained
10 party. See United States v. Or. State Med. Soc., 343 U.S. 326, 333 (1952) (“The sole
11 function of an action for injunction is to forestall future violations.”); Section 40-13-
12 5(A)(7) (providing that the district court may order “injunctive relief as [it] deems
13 necessary for the protection of a party”). To achieve this result, it is constitutionally
14 permissible to limit a restrained party’s ability to engage in certain
15 activity—including the exercise of his or her right to free speech.
16 {26} The Order of Protection limited Respondent’s right to speak and publish freely
17 only inasmuch as it restrained her from (1) directly contacting Petitioner, and (2)
5
18 Although Respondent was not convicted of “stalking,” we conclude that the
19 district court’s finding is analogous to a conviction for the purposes of this opinion.
14
1 causing Petitioner to suffer severe emotional distress. See § 40-13-5(A) (authorizing
2 the district court to enjoin a restrained party from abusing a protected party); Form
3 4-965 (prohibiting a restrained party from contacting a protected party and/or from
4 “committing further acts of abuse[,]” and defining “[a]buse” as “any incident . . .
5 resulting in . . . severe emotional distress”). Placing such limitations on
6 Respondent—as the restrained party under the Order of Protection—is not an
7 unconstitutional limitation on her First Amendment rights.
8 {27} Respondent argues, by citing to Kimbrell, 2013-NMCA-070, that a district
9 court must affirmatively find that speech alleged to violate an injunctive order
10 actually constitutes “a true threat or similar unprotected speech” prior to imposing
11 any type of sanction. Respondent’s interpretation of Kimbrell is not persuasive in the
12 present case.
13 {28} Kimbrell arose from a highly contentious custody dispute, in which the father
14 filed numerous motions to remove, and at least one disciplinary complaint against,
15 the guardian ad litem (the GAL). Id. ¶ 2. In response to his fifth motion to remove the
16 GAL, the district court ordered the father to “refrain from filing any complaint,
17 motion, or other ‘device’ pertaining to the GAL without leave of the court.” Id. ¶ 4.
18 {29} The father in Kimbrell sought leave to file another disciplinary complaint
19 against the GAL. Id. ¶ 5. The district court instead entered a preliminary injunction
15
1 that reprimanded the father for “improper” behavior and enjoined him “from
2 communicating with the media, the Department of Justice, or the [c]hildren’s
3 biological parents regarding his complaints about the GAL.” Id. The father then
4 formed an organization called “Stop Court Abuse of Children” (SCAC), through
5 which he filed another disciplinary complaint against the GAL without the leave of
6 the district court. Id. He also published the newly-filed disciplinary complaint and
7 other related materials (collectively, the materials) on SCAC’s website. Id.
8 {30} The GAL in Kimbrell requested that the district court issue a permanent
9 injunction requiring the father to remove the materials from the Internet. Id. ¶ 6. At
10 the hearing on this request, the GAL argued that the materials were defamatory. Id.
11 The father argued that the requested injunction would violate the First Amendment.
12 Id.
13 {31} The district court ordered the father to remove the materials but did not
14 determine that the materials were defamatory at trial or in its order. Id. ¶¶ 7, 43.
15 Instead, the district court ruled that publication of the materials on the Internet
16 “harass[ed] and intimidate[d] the GAL in the exercise of her duties.” Id. ¶ 43
17 (alteration and internal quotation marks omitted). This Court reversed, stating that
18 “freedom of speech can only be limited where the speech is not protected” and
16
1 holding that the district court’s order failed to “address[] or establish[] the existence
2 of the requisite elements of defamation[.]” Id. ¶¶ 44, 45.
3 {32} Our reading of Kimbrell indicates that the issue on appeal in Kimbrell arose not
4 from a violation of the preliminary injunction, but from the GAL’s request that the
5 district court require the father to remove allegedly defamatory materials from the
6 Internet. As such, Kimbrell is distinguishable because, unlike the present case, the
7 materials—or speech—at issue were not previously subject to an injunctive order.
8 {33} The district court in this case found Respondent to be a “stalker” in October
9 2012. Respondent did not appeal or otherwise contest this finding prior to the date on
10 which Petitioner filed his affidavit of violation. Because she is a “stalker,”
11 Respondent is subject to the restraints imposed by the FVPA and the Order of
12 Protection. Those restraints included valid limitations on her First Amendment rights.
13 {34} The district court, therefore, was not required to find that Respondent’s online
14 activity constituted defamation or harassment or stalking or some otherwise
15 unprotected speech. Instead, it needed only to conclude that Respondent’s online
16 activity violated the Order of Protection by causing Petitioner to suffer severe
17 emotional distress. Similarly, on appeal, we need not determine whether
18 Respondent’s online activity constituted unprotected speech, but instead we need only
17
1 determine whether sufficient evidence supports a finding that Respondent’s online
2 activity caused Petitioner to suffer severe emotional distress.6
3 SUFFICIENCY OF THE EVIDENCE
4 {35} “Sufficient evidence, in a criminal contempt proceeding, is proof beyond a
5 reasonable doubt.” In re Stout, 1984-NMCA-131, ¶ 11, 102 N.M. 159, 692 P.2d 545.
6 A “reasonable doubt” is one “that would make a reasonable person hesitate to act in
7 the graver and more important affairs in life.” UJI 14-5060 NMRA. We review the
8 evidence in contempt proceedings “in the light most favorable to the verdict.” State
9 v. Cherryhomes, 1992-NMCA-111, ¶ 9, 114 N.M. 495, 840 P.2d 1261.
10 {36} As described above, Petitioner introduced numerous exhibits that demonstrated
11 the content of Respondent’s online activity. Of these exhibits, the district court
12 emphasized that those containing the drug photos and referring to Petitioner as “a
13 junkie” violated the Order of Protection. Its second amended order found that
14 Respondent “used social media and the [I]nternet to engage in a sustained pattern of
6
15 As additional support for her “true threat or other unprotected speech”
16 argument, Respondent provides citation to extrajurisdictional statutes, including N.Y.
17 Penal Law § 240.30 and Conn. Gen. Stat. § 53A-183 (2017), and cases interpreting
18 those statutes, including People v. Dupont, 107 A.D.2d 247, 252 (N.Y. App. Div.
19 1985) and State v. Nowacki, 111 A.3d 911, 928 (Conn. App. Ct. 2015). Because we
20 are analyzing Respondent’s online activity through the lens of the restraints placed
21 upon her by the Order of Protection, neither the statutes nor cases cited by
22 Respondent are pertinent to our analysis.
18
1 stalking and harassment of Petitioner[,] including . . . emotional distress.” It is the
2 emotional distress portion of the district court’s finding that we consider in this
3 opinion.
4 {37} No New Mexico appellate court has interpreted the meaning of “severe
5 emotional distress” as that phrase is used in the FVPA. Its meaning, therefore,
6 presents a question of statutory interpretation, which we review de novo. State v.
7 Powels, 2003-NMCA-090, ¶ 3, 134 N.M. 118, 73 P.3d 256.
8 {38} When a statute leaves a word or phrase undefined, “[t]he words . . . should be
9 given their ordinary meaning absent clear and express legislative intention to the
10 contrary.” State v. Ogden, 1994-NMSC-029, ¶ 24, 118 N.M. 234, 880 P.2d 845. “We
11 give words their ordinary meaning, and if the statute is clear and unambiguous, we
12 refrain from further statutory interpretation.” Moongate Water Co. v. City of Las
13 Cruces, 2013-NMSC-018, ¶ 6, 302 P.3d 405 (internal quotation marks and citation
14 omitted). Appellate courts often refer to dictionary definitions to ascertain the
15 ordinary meaning of statutory language. See State v. Nick R., 2009-NMSC-050, ¶ 18,
16 147 N.M. 182, 218 P.3d 868 (using dictionary definition in statutory interpretation).
17 {39} Webster’s Dictionary defines “severe” as “of a great degree or an undesirable
18 or harmful extent.” Webster’s Third New Int’l Dictionary 2081 (3rd ed. 1993). It
19 defines “emotion” as “the affective aspect of consciousness” and “emotional” as
19
1 “relating to emotion[.]” Id. at 742. Finally, it defines “distress” as “anguish of body
2 or mind” and “a painful situation[.]” Id. at 660.
3 {40} These definitions clarify that “severe emotional distress” is characterized by
4 great harm to a person’s mental health and well-being. This conclusion is consistent
5 with our Supreme Court’s declaration—also in the context of an intentional tort—that
6 “severe emotional distress” is that which “a reasonable person, normally constituted,
7 would be unable to cope adequately with the mental distress engendered by the
8 circumstances.” Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, ¶ 28,
9 131 N.M. 607, 41 P.3d 333 (internal quotation marks and citation omitted).
10 Considering the context in which the FVPA uses the phrase “severe emotional
11 distress,” we conclude that it unambiguously describes the prohibited conduct. See
12 Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of
13 statutory language is determined by reference to . . . the specific context in which that
14 language is used[.]”).
15 {41} The evidence demonstrated Respondent’s widespread publication of the drug
16 photos on the Internet. The drug photos were often accompanied by statements
17 claiming that Petitioner was a “junkie,” a “drug-addled imbecile,” and a “drug-
18 addicted hypocrite.” Petitioner testified to the impact of Respondent’s online activity
19 on his emotional well-being, stating that he (1) felt like “a person ha[d] . . . hijacked
20
1 [his] life,” (2) “go[es] to bed at night wondering what’s coming next,” (3) “had
2 nightmares,” and (4) “talked about suicide.” Viewing the evidence in the light most
3 favorable to the verdict, sufficient evidence supports a finding that Respondent’s
4 online activity resulted in severe emotional distress, characterized by great harm to
5 Petitioner’s mental health and well-being.
6 {42} We note that the district court found that Petitioner suffered emotional distress
7 without explicitly finding that the emotional distress was severe.7 On appeal,
8 however, “there is a presumption of correctness in the rulings and decisions of the
9 trial court and the party claiming error must clearly show error.” State v. Carlos A.,
10 1996-NMCA-082, ¶ 8, 122 N.M. 241, 923 P.2d 608. The district court concluded that
11 Respondent violated the Order of Protection, which required the level of severe
12 emotional distress. Respondent does not find fault with the language of the finding
13 on appeal. The district court’s finding was sufficient under the circumstances.
14 {43} The Order of Protection validly limited Respondent’s First Amendment rights.
15 Because Respondent’s online activity violated the Order of Protection, she was
16 subject to sanction by the district court.
7
17 The district court, however, did find that Respondent “harassed” Petitioner.
18 Criminal harassment is defined, in pertinent part, as conduct that “would cause a
19 reasonable person to suffer substantial emotional distress.” NMSA 1978, § 30-3A-
20 2(A) (1997).
21
1 NOTICE OF CONDUCT CONSTITUTING A VIOLATION OF THE ORDER
2 OF PROTECTION
3 {44} Respondent next argues that the district court’s finding of contempt resulted
4 from a due process violation because the Order of Protection did not provide
5 sufficient notice that her online activity was “contact” that would constitute a
6 violation. We review questions related to due process protections de novo. State v.
7 Tafoya, 2010-NMCA-010, ¶ 7, 147 N.M. 602, 227 P.3d 92. As indicated above, we
8 address Respondent’s argument by considering not whether her online activity was
9 “contact” as that word is commonly used, but whether she reasonably should have
10 known that her online activity would cause Petitioner to suffer severe emotional
11 distress.
12 {45} “There is no question that New Mexico district courts have the power to hold
13 a litigant in contempt for disobeying a direct order.” Bailey, 1994-NMCA-107, ¶ 6.
14 Such power is, however, subject to due process considerations. See Concha v.
15 Sanchez, 2011-NMSC-031, ¶ 26, 150 N.M. 268, 258 P.3d 1060 (“A criminal
16 contempt defendant is . . . entitled to due process protections of the criminal law[.]”).
17 This Court has previously concluded that due process is satisfied in a criminal
18 contempt proceeding when “an order existed that was sufficient to put [the defendant]
19 on notice of what was required of him.” Cherryhomes, 1992-NMCA-111, ¶ 10.
22
1 {46} Form 4-965 contains fourteen numbered parts. Part 4 is titled “DOMESTIC
2 ABUSE PROHIBITED.” Part 5 is titled “CONTACT PROHIBITIONS.” Both parts
3 are intended to provide the restrained party with notice of the conduct that is
4 prohibited.
5 {47} Respondent claims that Part 5 of the Order of Protection is impermissibly
6 vague because it does not place her on notice that “posting about [Petitioner] on her
7 own website or a third-party’s Facebook page would be considered ‘contacting’
8 [Petitioner].” The generic version of Form 4-965 provides that one or both parties
9 “shall not telephone, talk to, visit or contact the other party in any way except as
10 follows” and includes blank space for the special commissioner or district court to
11 include exceptions. In the present case, the district court modified Form 4-965 to
12 provide that “Respondent . . . shall not telephone, talk to, visit or contact the other
13 party in any way including social media.” Respondent’s argument centers on the
14 meaning of the word “contact.”
15 {48} The Order of Protection does not clearly define whether Respondent’s online
16 activity would constitute “contact” as that term is commonly used.8 Ultimately, we
8
17 Although it appears likely that this deficiency resulted from the district court’s
18 lack of familiarity with the nuances of various social media platforms, it is perhaps
19 an indication that the FVPA is not well-suited to address the issue of cyberstalking.
20 Other jurisdictions have enacted statutes that are more narrowly-tailored to the
21 conduct at issue in this case. See, e.g., Wash. Rev. Code § 9.61.260(1)(b) (2004) (“A
23
1 need not decide in this case whether Respondent’s online activity constituted
2 “contact” as prohibited in Part 5 of the Order of Protection.
3 {49} Part 4 of the Order of Protection expressly prohibited “abuse,” which it defined
4 as “any incident by one party against the other party . . . resulting in . . . severe
5 emotional distress.” Whether this language provides sufficient notice of the conduct
6 prohibited by the Order of Protection presents a question of statutory interpretation.
7 This Court reviews questions of statutory interpretation de novo. Powels, 2003-
8 NMCA-090, ¶ 3.
9 {50} Having just analyzed the meaning of “severe emotional distress” in the context
10 of the FVPA, we decline to undertake the same analysis here. The Order of Protection
11 prohibited Respondent from engaging in conduct that would cause Petitioner to suffer
12 severe emotional distress. Petitioner is a university professor. Respondent repeatedly
13 used the drug photos to imply that Petitioner had a substance abuse problem. Such
14 intent is demonstrated by her characterization of Petitioner as a “junkie” and a “drug-
15 addled imbecile.”
16 person is guilty of cyberstalking if he or she, with intent to harass, intimidate,
17 torment, or embarrass any other person, . . . makes an electronic communication to
18 such other person or a third party . . . repeatedly whether or not conversation
19 occurs[.]”).
24
1 {51} Respondent argues that the substance of her online activity was not intended
2 to reach Petitioner. This argument is disingenuous. Respondent and Petitioner both
3 worked in the animal rights arena. Respondent’s website was accessible by the public,
4 and she posted the same content on public Facebook pages. It is unreasonable for
5 Respondent to assert that Petitioner could have remained unaware of her online
6 activity in light of his ongoing work in the animal rights movement.
7 {52} A reasonable person would understand that Respondent’s online activity would
8 cause Petitioner to suffer severe emotional distress as we have defined that phrase
9 above. Therefore, Part 4 of the Order of Protection provided Respondent with
10 sufficient notice that her online activity could constitute a violation even if it did not
11 constitute “contact” as that word is commonly used.
12 PRIOR RESTRAINT
13 {53} Respondent finally argues that the district court’s restriction of her ability to
14 access the Internet is overbroad and violates the First Amendment. “A statute is
15 unconstitutionally overbroad if it criminalizes speech that is protected by the [F]irst
16 [A]mendment.” State v. Gattis, 1986-NMCA-121, ¶ 10, 105 N.M. 194, 730 P.2d 497.
17 We review questions of constitutional law de novo. Morris, 2015-NMCA-100, ¶ 26.
18 {54} As discussed above, the First Amendment prohibits laws that abridge freedom
19 of speech. Elane Photography, 2013-NMSC-040, ¶ 22. “Prior restraint” is a related
25
1 term and “is used to describe administrative and judicial orders forbidding certain
2 communications when issued in advance of the time that such communications are
3 to occur.” Kimbrell, 2013-NMCA-070, ¶ 40 (emphasis, internal quotation marks, and
4 citation omitted). Prohibitions on prior restraint ensure that “the government may not
5 enjoin or restrain a particular expression prior to its judicial review[.]” Fawcett, 1992-
6 NMCA-075, ¶ 8.
7 {55} The district court’s restriction of Respondent’s ability to access the Internet is
8 a clear prior restraint on her First Amendment right to speech. In discussing the
9 Internet generally, the United States Supreme Court has stated that, “[f]rom the
10 publisher’s point of view, [the Internet] constitutes a vast platform from which to
11 address and hear from a worldwide audience of millions of readers, viewers,
12 researchers, and buyers.” Reno v. Am. Civil Liberties Union, 521 U.S. 844, 853
13 (1997). It is, simply put, the modern-day town square. See Bill Gates, Business @ the
14 Speed of Thought: Succeeding in the Digital Economy 131 (1st ed. 1999) (“By
15 enabling people to shop, get news, meet each other, be entertained, and gossip in
16 ways we’re only now beginning to understand, the Internet is becoming the town
17 square for the global village of tomorrow.”); Stephen W. Bosky, Note, Defamation
18 in the Internet Age: Missouri’s Jurisdictional Fight Begins With Baldwin v. Fischer-
19 Smith, 56 St. Louis U.L.J. 587, 587 (2012) (same).
26
1 {56} “Strict scrutiny applies when the violated interest is a fundamental personal
2 right or civil liberty—such as first amendment rights, freedom of association, voting,
3 interstate travel, privacy, and fairness in the deprivation of life, liberty or
4 property—which the Constitution explicitly or implicitly guarantees.” Marrujo v.
5 N.M. Highway Transp. Dep’t, 1994-NMSC-116, ¶ 10, 118 N.M. 753, 887 P.2d 747.
6 To uphold a restriction that deprives an individual of such a right, the state must show
7 “that the restriction . . . supports a compelling state interest, and that the legislation
8 accomplishes its purposes by the least restrictive means.” Id. The almost complete
9 restriction of Respondent’s ability to access the Internet imposed by the district court
10 is not the least restrictive means by which to address the harm in this case. See, e.g.,
11 United States v. Walser, 275 F.3d 981, 988 (10th Cir. 2001) (affirming conditions of
12 release that require the probationer to obtain permission from his probation officer
13 before accessing the Internet); United States v. White, 244 F.3d 1199, 1206-07 (10th
14 Cir. 2001) (describing filtering software that restricts the user’s ability to access
15 blacklisted content and cautioning against sanctions that prohibit the use of any
16 computer).
17 {57} Petitioner does not argue that either consideration is met in this case. Instead,
18 he requests that we (1) allow the restriction to stand until such a time as Respondent
19 “exhausts her remedies with the district court,” or (2) affirm on public policy grounds.
27
1 Having concluded that the almost complete restriction of Respondent’s ability to
2 access the Internet violates the First Amendment, we decline Petitioner’s requests.
3 CONCLUSION
4 {58} Respondent’s online activity violated the Order of Protection by causing
5 Petitioner to suffer severe emotional distress. We therefore affirm the district court’s
6 sentence of 179 days incarceration. However, the district court’s restriction of
7 Respondent’s ability to access the Internet is unconstitutionally overbroad. We
8 reverse that restriction. In doing so, we remind Respondent that the Order of
9 Protection remains in effect and that she remains subject to a finding of contempt for
10 online activity that causes Petitioner to suffer severe emotional distress.
11 {59} IT IS SO ORDERED.
12 ________________________________
13 JAMES J. WECHSLER, Judge
14 WE CONCUR:
15 ________________________________
16 MICHAEL E. VIGIL, Judge
17 ________________________________
18 J. MILES HANISEE, Judge
28