Kristian E. Hedine v. Alexis Guerrero ( 2021 )

FILED
MAY 13, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
KRISTIAN E. HEDINE, ) No. 37244-8-III
) (consolidated with
Respondent, ) No. 37245-6-III,
) No. 37246-4-III)
v. )
)
ALEXIS GUERRERO, )
)
Petitioner. )
)
)
ASHELY C. KULBERG, )
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ALEXIS GUERRERO, )
)
Petitioner. )
)
)
CLARA ROSSI GRANT, )
)
Respondent, )
)
v. )
)
ALEXIS GUERRERO, )
)
Petitioner. )
Nos. 37244-8-III; 37245-6-III; 37246-4-III
Hedine v. Guerrero
PENNELL, C.J. — Alexis Guerrero has obtained discretionary review of
antiharassment orders issued in favor of three Walla Walla County District Court
personnel: Judge Kristian Hedine, Ashely Kulberg, and Clara Grant (collectively
Respondents). We affirm in part and reverse in part.
FACTS
Alexis Guerrero posted a video on YouTube entitled “THREATENED by a
JUDGE!!”. The video depicted an encounter at the district court between Mr. Guerrero
and Judge Kristian Hedine, Court Administrator Clara Grant, and Probation Officer
Ashely Kulberg. Mr. Guerrero had been told he was not authorized to make a video
recording at the court and that he needed to leave. He disobeyed this instruction and
recorded his interactions with various court officials.
Mr. Guerrero’s YouTube post included the following description of the video:
Protesting a $10 parking ticket should never have this result. A judge
should know his place and shouldn’t cause a disturbance as he did or act
beyond his authority as well. The unethical behavior was reported to the
Commission of Judicial Conduct, and they found no misconduct or
unethical behavior By [sic] judge Hedine. Well I beg to differ and I’m sure
I’m not alone in tht [sic] opinion. Let’s give them a call and let them know
how you feel about the violation of rights that are clear in this video! Title
18 section 242. Deprivation of rights under the color of law!
Clerk’s Papers (CP) at 24. The video contained the names and work phone numbers of
Judge Hedine, Ms. Grant, and Ms. Kulberg. A caption superimposed on the video
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Hedine v. Guerrero
exhorted viewers to “Flood Calls PLEASE” with Ms. Grant’s phone number. Id. at 797.
Another caption stated that Judge Hedine became a judge “by default.” Id. at 447.
The video was also posted on a second YouTube channel that was not controlled
by Mr. Guerrero. Between the two postings, the video received over 10,000 views. Mr.
Guerrero posted a comment on one of the videos, stating in part:
Google how [Judge Hedine] initially got put into the bench and you will
clearly see that it was initially by default and he’s just taking over for
another piece of shit judge. Who clearly had his own issues with sleeping
with a married staff.
Id. at 36. Mr. Guerrero’s comments repeatedly referred to Judge Hedine derogatorily and
with profanity.
The videos received numerous comments, including threatening statements aimed
at Judge Hedine, court staff, and their families. In the days following the posting of the
video, Judge Hedine, Ms. Grant, and Ms. Kulberg all received vitriolic phone calls and
e-mails. Some phone calls included threats against Judge Hedine and courthouse staff. As
a result of these threats, Judge Hedine was forced to switch the location of his office, and
sheriff’s deputies were posted outside the district court’s facility.
Judge Hedine, Ms. Grant, and Ms. Kulberg all petitioned for civil antiharassment
protection orders against Mr. Guerrero. The petitions contained hyperlinks to Mr.
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Hedine v. Guerrero
Guerrero’s video on YouTube. A visiting district court judge presided over the hearing on
the petitions. The judge watched the YouTube videos and granted the petitions.
The district court’s protection orders restrained Mr. Guerrero from contacting,
surveilling, or being within 1,000 feet of the petitioners’ homes and workplaces, except to
conduct legitimate court business. Mr. Guerrero was also:
[R]estrained from posting any additional defamatory or harassing content
on the internet either by himself or through third parties and is directed to
immediately remove all defamatory and harassing content which has been
previously posted on the internet concerning the Petitioner, specifically
threatening and defamatory posts.
Id. at 4, 394, 783.
Mr. Guerrero appealed the protection orders to superior court. A superior court
judge reviewed the YouTube videos along with the report of proceedings and the district
court’s written findings. The superior court found substantial evidence in support of the
district court’s findings and largely affirmed the restraining orders. However, the court
ruled the orders as to Ms. Grant and Ms. Kulberg must be modified to eliminate a
prohibition on posting defamatory content. The court made this modification based on the
fact that only Judge Hedine had made allegations of defamation.
Mr. Guerrero sought discretionary review in this court, which was granted under
RAP 2.3(d)(2).
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Nos. 37244-8-III; 37245-6-III; 37246-4-III
Hedine v. Guerrero
ANALYSIS
Mr. Guerrero’s brief raises three issues: (1) whether sufficient evidence justified
the antiharassment orders, (2) whether the YouTube videos posted by Mr. Guerrero were
constitutionally protected as free speech, and (3) whether the antiharassment orders’
prohibitions on future speech constituted invalid prior restraints on speech.
Issues one and two: evidentiary sufficiency and free speech
The current record is insufficient to permit review of Mr. Guerrero’s first two
claims. The rulings of both the district and superior courts rested heavily on Mr.
Guerrero’s video as posted to YouTube. At the time of the prior court hearings, the videos
were available online. However, the videos have since been taken down and are not part
of the record on review. Given this circumstance, we are unable to assess whether there
was a factual basis for entry of the restraining orders against Mr. Guerrero or whether
Mr. Guerrero was engaged in protected speech.
Mr. Guerrero argues that the absence of the videos from the record favors his
position because, without the videos, a factual basis is necessarily lacking. We disagree
with this assessment. As the petitioner, Mr. Guerrero bears the responsibility of providing
an adequate record for review. RAP 9.2(b). When evidence forming the basis for a
decision on review is absent from the record, the petitioner can and should seek
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Hedine v. Guerrero
supplementation. RAP 9.10; State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942(2012). We bear no responsibility to help petitioners make their record, especially where,
as here, the missing evidence lies in the control of the petitioner. We deny Mr. Guerrero’s
request for relief under the first two assignments of error, based on his failure to provide
an adequate record.
Issue three: prior restraint
Mr. Guerrero’s third assignment of error, regarding prior restraint, requires little
factual analysis and can therefore be reviewed on the current record. Mr. Guerrero claims
the provisions of the restraining orders prohibiting him from prospectively posting
defamatory or harassing content on the Internet are invalid prior restraints that violate his
constitutional right to free speech. We review this constitutional challenge de novo. In re
Marriage of Suggs, 152 Wn.2d 74, 79, 93 P.3d 161 (2004).
A prior restraint is a governmental restriction that bars speech before it occurs. Id.
at 81. Prior restraints implicate constitutional free speech rights and “carry a heavy
presumption of unconstitutionality.” Id. Generally, prior restraints are warranted only in
exceptional circumstances such as war, obscenity, and incitements to violence. Id. Our
case law does not include all instances of unprotected speech in the “exceptional
circumstances” category. After all, it is hard to determine in advance whether speech will
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Hedine v. Guerrero
be protected or unprotected. See id. at 82 (“Labeling certain types of speech ‘unprotected’
is easy. Determining whether specific instances of speech actually fall within
‘unprotected’ areas of speech is much more difficult.”). Freedom of expression is a core
constitutional right. To safeguard this right, it is constitutionally preferable to punish
unprotected speech after it occurs, not in advance.
A court order imposing prospective limits on speech—such as an antiharassment
restraining order—does not typically raise prior restraint concerns. The exercise of free
speech can be regulated by time, place, or manner restrictions so long as those restrictions
are narrowly tailored to a compelling governmental purpose. State v. Noah, 103 Wn. App.
29, 41, 9 P.3d 858 (2000). “Protecting citizens from harassment is a compelling state
interest.” Id. Thus, the government may place narrow restrictions on speech in order to
protect a harassment victim from contact by the respondent. Id. This is true regardless of
whether the speech would otherwise be classified as protected. See Se. Promotions, Ltd.
v. Conrad, 420 U.S. 546, 556, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975).
Respondents do not claim the orders prohibiting defamatory and harassing speech
constituted valid time, place, or manner restrictions. Nor could they. The orders were not
tailored to prohibit Mr. Guerrero from contacting the Respondents directly or through
third parties. Because the court’s orders did not impose narrow time, place, or manner
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Hedine v. Guerrero
restrictions, their validity turns on whether they are aimed at the exceptional forms of
unprotected speech that are amenable to a priori restraint instead of post hoc punishment.
Our Supreme Court’s decision in Suggs casts serious doubt on whether a prior
restraint can ever be applied to defamatory speech. Suggs, 152 Wn.2d at 82. To be valid, a
prior restraint on defamation requires “certainty” that the court order will restrain
defamatory speech, as opposed to speech that is insulting or imprecise. See id. Mere
labels do not work in this context. Id. Instead, a prior restraint order must be narrowly
worded in a way that does not chill protected speech. Id. at 84.
The Respondents claim the court’s orders restricting defamatory speech were
narrow because each order restrained more than merely speech labeled “defamatory.”
Instead, Mr. Guerrero was prohibited from posting “additional” defamatory content on the
Internet. According to the Respondents, the adjective “additional” specified Mr. Guerrero
was prohibited from posting defamatory content that was similar to his prior defamatory
content.
We do not find this proffered limitation helpful. The record lacks findings
clarifying which of Mr. Guerrero’s prior statements were defamatory. One might assume
that the statement at issue was Mr. Guerrero’s claim that Judge Hedine became a judge by
“default.” But it is far from clear that this statement qualified as defamation. Defamation
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Hedine v. Guerrero
requires more than proof of falsity. Duc Tan v. Le, 177 Wn.2d 649, 662, 300 P.3d 356(2013). Furthermore, when defamation is alleged by a public official, the speaker must be
shown to have acted with actual malice. Id. We do not find the protection orders
sufficiently precise to constitute a valid prior restraint of defamatory speech.
Apart from defamation, the court’s orders also restrained Mr. Guerrero from
engaging in harassing speech. This provision is even more problematic than the
prohibition on defamation. Speech that is merely harassing is not exempt from
constitutional protections. Catlett v. Teel, 15 Wn. App. 2d 689, 704, 477 P.3d 50 (2020).1
As such, the concept of prior restraint is inapplicable in this context.
1
Speech that constitutes the crime of harassment is not constitutionally protected.
But the crime of harassment requires more than what is typically covered in an
antiharassment order. The crime of harassment requires proof of a true threat, involving a
serious expression of intent to inflict bodily harm. State v. Kilburn, 151 Wn.2d 36, 43, 84
P.3d 1215 (2004).
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Nos. 37244-8-III; 37245-6-III; 37246-4-III
Hedine v. Guerrero
CONCLUS10N 2
The orders of protection are reversed in part. These matters are remanded with
instructions to remove prior restraints on posting additional defamatory or harassing
content. The orders of protection are otherwise affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, C.J.
WE CONCUR:
``,.:r.
Fearing, J.
2 On the last page of his opening brief, Mr. Guerrero claims "the [antiharassment]
order is unlawful as it orders remedies beyond the scope of the court's statutory authority.
It is overbroad and overlong in violation of the statute. RCW 10.14.080." The issue of
whether the antiharassment orders were too long falls outside the scope of the order
granting discretionary review and has not been sufficiently developed to permit appellate
analysis. We therefore decline to address it further.
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