Best v. Marino , 2017 NMCA 73 ( 2017 )

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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:20:52 2017.11.03
Certiorari Denied, August 31, 2017, No. S-1-SC-36586
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2017-NMCA-073
Filing Date: June 29, 2017
Docket No. A-1-CA-34680
STEVEN BEST,
Petitioner-Appellee,
v.
CAMILLE A. MARINO,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Darren M. Kugler, District Judge
Law Office of Jerold D. Friedman
Jerold Friedman
Cypress, TX
L. Helen Bennett P.C.
L. Helen Bennett
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
WECHSLER, Judge.
{1} This appeal arises from a finding of indirect criminal contempt against Respondent
1
Camille Marino for her violation of an order of protection (Order of Protection) issued
pursuant to the Family Violence Protection Act (FVPA), NMSA 1978, §§ 40-13-1 through
-12 (1987, as amended through 2016). In addition to 179 days incarceration, the district court
imposed an almost complete restriction on Respondent’s ability to access the Internet.1
{2} Respondent first argues that the Order of Protection is invalid and should be vacated
by this Court. She bases this argument on her claim that Petitioner Steven Best did not allege
or prove the elements of “stalking” when he obtained the Order of Protection in October
2012. Petitioner argues that Respondent’s argument is an impermissible collateral attack on
the Order of Protection and, as a result, this Court should dismiss Respondent’s appeal.
Although we agree that Respondent’s argument is subject to the collateral bar rule, we
decline to dismiss the appeal outright in light of other potentially meritorious issues raised
by Respondent. Respondent additionally argues without development that the district court
lacked subject matter jurisdiction over this action. This argument lacks merit.
{3} Respondent next argues that the restrictions imposed by the Order of Protection
violated her First Amendment right to free speech by treating her online activity2—which
inarguably is speech—as sanctionable conduct. We disagree.3 As discussed at length herein,
the Order of Protection imposes certain restraints on Respondent that could not be imposed
on a non-restrained person. As such, the appropriate question on appeal is not whether the
government can generally restrict the speech at issue in this case, but whether the district
court can restrict Respondent from engaging in such speech. We conclude that it can.
{4} In a related argument, Respondent argues that the district court’s finding of contempt
resulted from a due process violation because the Order of Protection failed to provide
1
The district court’s order allowed Respondent to access the Internet to contact her
attorney and her accountant. All other access was prohibited.
2
Throughout this opinion we use the phrase “online activity” to describe
Respondent’s posting of statements and photographs related to Petitioner on (1)
Respondent’s own website; (2) Respondent’s own Facebook and other social media pages;
and (3) third-party controlled Facebook and other social media pages. Our use of the phrase
“online activity” does not include email messages sent directly by Respondent to Petitioner,
which we consider separately.
3
Substantial evidence supports a finding that Respondent violated the Order of
Protection by directly contacting Petitioner by telephone, email, and postal service. See State
v. Smith, 2016-NMSC-007, ¶ 19, 367 P.3d 420 (“Substantial evidence is relevant evidence
that a reasonable mind might accept as adequate to support a conclusion.” (internal quotation
marks and citation omitted)). Although we could simply affirm the district court’s contempt
finding under the right-for-any-reason doctrine, we instead elect to address the questions that
arise from its finding that Respondent’s online activity constituted a violation of the Order
of Protection.
2
sufficient notice that her online activity would be considered “contact” constituting a
violation. The district court did not, however, conclude that Respondent “contacted”
Petitioner in violation of the Order of Protection. It concluded that Respondent’s
“harassment of Petitioner” caused “emotional distress.” The Order of Protection restrained
Respondent from committing “acts of abuse” and defined “abuse” to include “any
incident . . . resulting in . . . severe emotional distress[.]” The appropriate question on appeal,
therefore, is not whether Respondent’s online activity was “contact,” but whether
Respondent reasonably should have known that her online activity would cause Petitioner
to suffer severe emotional distress. We answer this question in the affirmative.
{5} Finally, Respondent argues that the district court’s restriction of her ability to access
the Internet is overbroad and violates the First Amendment. We agree. We therefore affirm
Respondent’s term of incarceration but reverse the restriction on her ability to access the
Internet.
BACKGROUND
{6} Petitioner is a philosophy professor at the University of Texas at El Paso (UTEP) and
resides in Anthony, New Mexico. Respondent resides in Wildwood, Florida. Petitioner and
Respondent became acquainted through their work in the animal rights movement and
maintained a platonic friendship for several years until that friendship deteriorated in August
2012.
{7} On October 15, 2012, Petitioner filed a petition requesting protection from acts of
domestic abuse perpetrated by Respondent. His petition alleged that Respondent (1) sent
threatening email messages, (2) made threatening telephone calls, (3) left threatening voice
messages, and (4) posted slanderous and derogatory statements about Petitioner on her
website and Facebook page.
{8} On October 26, 2012, a domestic violence special commissioner (the special
commissioner) held a hearing (October 2012 hearing) on Petitioner’s claims. The special
commissioner found that Respondent was a “stalker” and recommended that the district
court enter an order of protection. Respondent did not file any objections to the special
commissioner’s findings or recommendations.
{9} The district court reviewed and adopted the special commissioner’s findings and
recommendations and entered an Order of Protection using Form 4-965 NMRA, which
articulated the terms of the order of protection. The Order of Protection restrained
Respondent from “committing further acts of abuse or threats of abuse” and “any contact”
with Petitioner and defined “abuse” as:
[A]ny incident by one party against the other party or another household
member resulting in (1) physical harm; (2) severe emotional distress; (3)
bodily injury or assault; (4) threat by . . . Respondent causing imminent fear
3
of bodily injury to the other party or any household member; (5) criminal
trespass; (6) criminal damage to property; (7) repeatedly driving by
Petitioner’s . . . residence or workplace; (8) telephone harassment; (9)
stalking; (10) harassment; or (11) harm or threatened harm to children in any
manner set forth above.
In light of the specific conduct alleged, the district court modified the definition of “contact”
on Form 4-965. As a result, the Order of Protection stated that Respondent “shall not
telephone, talk to, visit or contact [Petitioner] in any way . . . including social media[.]”
On July 1, 2014, Petitioner filed an affidavit of violation, in which he alleged:
Since the filing of th[e O]rder [of Protection], the Respondent has used social
media to harass the Petitioner. She has caused severe emotional distress. The
Respondent has used her websites, social media (including [F]acebook,
[T]witter, [P]interest), and blogging to carry out revenge styled postings,
including numerous damaging pictures of [Petitioner] and making
outrageous/false accusations against him. These posts are intended to harm
[Petitioner’s] career, charitable causes, and personal life. This has occurred
on numerous dates between the issuance of the [O]rder of [P]rotection and
the date of this filing[.]
{10} This affidavit triggered a hearing before the special commissioner. Petitioner
introduced sixteen exhibits—consisting of screen captures of Respondent’s website and
Facebook page—purported to represent merely a fraction of Respondent’s online activity
since October 2012. Petitioner also introduced an email message sent directly from
Respondent to Petitioner on November 8, 2012. The special commissioner found that
Respondent violated the Order of Protection by “contacting [Petitioner], by using social
media to harass him, by using social media to stalk him, and by using social media to cause
severe emotional distress.” As a result of these findings, the special commissioner
recommended sanctions and certified the matter to the district court for a criminal contempt
hearing.
{11} Respondent filed objections to the special commissioner’s recommendations. The
district court scheduled a hearing to resolve Respondent’s objections, which the district court
stated was a “hearing de novo” on the special commissioner’s recommendations.
{12} Both parties testified, and Petitioner introduced twenty-eight exhibits—again
consisting of screen captures of Respondent’s online activity. Petitioner also introduced three
email messages sent directly from Respondent to Petitioner on November 4, 2012 and
November 8, 2012. In these exhibits, Respondent referred to Petitioner as (1) “the grand high
exalted drug-addicted hypocrite,” (2) “a drug-addled imbecile,” (3) “a sexist, racist woman
beater,”and (4) “UTEP junkie professor.” One exhibit threatened to “hold [Petitioner]
accountable” and to make him “pay dearly.” Other exhibits threatened to “expose” and to
“neutralize” Petitioner. Still others contained song lyrics with obliquely violent imagery.
4
Many of the exhibits included photographs of Petitioner snorting prescription drugs (drug
photos). Petitioner also testified that: (1) Respondent continued to directly contact Petitioner
by telephone and email after the entry of the Order of Protection; (2) Respondent mailed a
package containing written materials to Petitioner’s home address after the entry of the Order
of Protection; and (3) Petitioner’s girlfriend received two telephone calls from an unknown
individual alleging that the caller was driving through Anthony, New Mexico with the intent
to kill Petitioner and his cats.
{13} Inexplicably, the district court did not discuss the possibility that Respondent’s direct
contact of Petitioner—by telephone, postal service, and email—constituted a violation of the
Order of Protection. Instead, it focused its ruling expressly on exhibits related to
Respondent’s online activity. In its oral ruling, the district court cited specific exhibits that
it found to violate the Order of Protection. Its second amended order memorialized its oral
ruling and referred to Respondent’s use of “social media and the [I]nternet to engage in a
sustained pattern of stalking and harassment of Petitioner[,] including . . . emotional distress
to Petitioner.” It sentenced Respondent to 179 days incarceration with credit for time served.
It also ordered that Respondent “shall not use the [I]nternet or any social media for any
purpose other than contacting her attorney or accountant.” (Emphasis omitted.) This appeal
resulted.
{14} On June 13, 2016, Respondent filed a request for this Court to designate the state of
New Mexico as the real party in interest. This request was denied.4
COLLATERAL ATTACK
{15} Respondent’s first argument on appeal is that the Order of Protection is invalid and
should be vacated by this Court because Petitioner did not allege or prove the elements of
“stalking” when he obtained the Order of Protection in October 2012. Petitioner claims that
Respondent is not now permitted to attack the validity of the Order of Protection after a
finding of contempt. We agree with Petitioner.
{16} This issue was addressed in State v. Bailey, in which the defendant defied an
injunctive order that required him to obtain a driver’s license and registration prior to
operating his vehicle. 1994-NMCA-107, ¶ 3, 118 N.M. 466, 882 P.2d 57. After the
defendant refused to comply with the injunction, the district court found him in contempt.
Id. On appeal, this Court held that the district court lacked authority to issue the injunction
4
Although we acknowledge the potential merits of Respondent’s argument,
Respondent failed to preserve the issue at trial, and we decline to review the question for the
first time on appeal. See Rule 1-093(D)(2) NMRA (“The court shall appoint the district court
to prosecute the criminal contempt for the state.”); State v. Frazier, 1973-NMCA-127, ¶ 7,
85 N.M. 545, 514 P.2d 302 (holding that alleged errors that are neither jurisdictional nor
fundamental may not be raised for the first time on appeal).
5
but upheld the finding of contempt. Id. ¶¶ 6, 11. We based our holding on the “collateral bar
rule,” which precludes litigants “from challenging [a] contempt citation by a collateral attack
on the injunction.” Id. ¶ 11. We additionally noted that “[t]he method of correcting error is
by appeal, and not by disobedience.” Id. (internal quotation marks and citation omitted).
{17} Respondent claims that, during the October 2012 hearing, Petitioner failed to prove
that Respondent’s actions constituted “stalking” as provided in Section 40-13-2(D)(1) and
that Petitioner’s principal concern was for his reputation rather than his physical safety.
Section 40-13-2(D)(1) limits acts of “domestic abuse” by non-household members to
“stalking” and “sexual assault.” Petitioner did not allege that he was a victim of sexual
assault. As such, to justify restraint under the FVPA, Petitioner’s burden at the October 2012
hearing was to prove that Respondent’s conduct constituted “stalking.”
{18} The special commissioner expressly found Respondent to be a “stalker.” Rule 1-
053.1 NMRA provided Respondent with an opportunity to challenge the special
commissioner’s findings, including whether sufficient evidence supported the special
commissioner’s finding that Respondent was a “stalker,” before the district court adopted
the special commissioner’s recommendations and entered the Order of Protection. See Rule
1.053.1(H)(1)(b) (“If the party files timely, specific objections to the recommendations, the
[district] court shall conduct a hearing appropriate and sufficient to resolve the objections.”).
Respondent did not file objections to the special commissioner’s recommendations. In the
absence of objections from Respondent, the district court adopted the special commissioner’s
recommendations and entered the Order of Protection. The collateral bar rule precludes a
restrained party from challenging the merits of an injunction after a finding of contempt.
Respondent’s argument presents such a challenge and is, therefore, precluded.
SUBJECT MATTER JURISDICTION
{19} In an associated claim, brought pursuant to State v. Franklin, 1967-NMSC-151, 78
N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1,
Respondent argues that the district court lacked subject matter jurisdiction over this action.
The issue of subject matter jurisdiction may be raised at any time, including for the first time
on appeal. Lasley v. Baca, 1981-NMSC-041, ¶ 13, 95 N.M. 791, 626 P.2d 1288. We review
questions of subject matter jurisdiction de novo. Murken v. Solv-Ex Corp., 2006-NMCA-
064, ¶ 8, 139 N.M. 625, 136 P.3d 1035.
{20} “[D]istrict courts are courts of general jurisdiction having the power to hear all
matters not excepted by the constitution and those matters conferred by law.” State ex rel.
Foy v. Austin Capital Mgmt., 2015-NMSC-025, ¶ 7, 355 P.3d 1 (internal quotation marks
and citation omitted). “The only relevant inquiry in determining whether the court has
subject matter jurisdiction is to ask whether th[e] kind of claim . . . advance[d] falls within
the general scope of authority conferred upon such court by the constitution or statute.”
Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶ 12, 120 N.M. 133, 899 P.2d 576 (internal
quotation marks and citation omitted).
6
{21} Petitioner alleged that he was a victim of domestic abuse and that Respondent
perpetrated that abuse. Section 40-13-3(A) confers jurisdiction to the district court in the
judicial district in which an alleged victim of domestic abuse lives. Respondent does not
contest either of these points on appeal. As a result, the district court had subject matter
jurisdiction over this action.
FREE SPEECH RIGHTS OF RESTRAINED PERSONS
{22} Respondent next argues that her online activity is protected speech and is, therefore,
not sanctionable. As indicated above, we address this argument by considering whether the
state is permitted to sanction Respondent’s online activity given the limitations placed on
her First Amendment rights by the Order of Protection. “Whether a statement is privileged
under the First Amendment presents a question of law for the court to determine.” Kimbrell
v. Kimbrell, 2013-NMCA-070, ¶ 32, 306 P.3d 495 (alteration, internal quotation marks, and
citation omitted), rev’d on other grounds, 2014-NMSC-027, 331 P.3d 915. We review
questions of constitutional law de novo. Morris v. Brandenburg, 2015-NMCA-100, ¶ 26, 356
P.3d 564, aff’d 2016-NMSC-027, 376 P.3d 836.
{23} The First Amendment to the United States Constitution prohibits the government
from enacting laws “abridging the freedom of speech.” Elane Photography, LLC v. Willock,
2013-NMSC-040, ¶ 22, 309 P.3d 53. That said, neither the United States nor the New
Mexico Constitution provides an absolute right to free speech. See United States v. Alvarez,
132 S. Ct. 2537, 2544 (2012) (holding that certain categories of speech, including “advocacy
intended, and likely, to incite imminent lawless action; obscenity; defamation; speech
integral to criminal conduct; so-called ‘fighting words’; child pornography; fraud; true
threats; and speech presenting some grave and imminent threat the government has the
power to prevent” are not protected by the First Amendment (citations omitted)); City of
Albuquerque v. Pangaea Cinema LLC, 2012-NMCA-075, ¶ 24, 284 P.3d 1090 (holding that
“First Amendment rights are not immune from governmental regulation” (internal quotation
marks and citation omitted)), rev’d sub nom. on other grounds by State, City of Albuquerque
v. Pangaea Cinema LLC, 2013-NMSC-044, 301 P.3d 604; City of Farmington v. Fawcett,
1992-NMCA-075, ¶¶ 8-10, 114 N.M. 537, 843 P.2d 839 (holding that (1) Article II, Section
17 of the New Mexico Constitution does not provide an “absolute right” to free speech, and
(2) “the state may constitutionally regulate . . . speech”).
{24} The state has broad power to limit a person’s liberty interests based on that person’s
prior conduct. See Black’s Law Dictionary 935 (10th ed. 2014) (defining “liberty interest”
as “[a]n interest protected by the due-process clauses of state and federal constitutions”).
Under the most extreme circumstances, the state may incarcerate a person for the remainder
of the person’s natural life. See NMSA 1978, § 31-18-14 (2009) (“When a defendant has
been convicted of a capital felony, the defendant shall be sentenced to life imprisonment or
life imprisonment without possibility of release or parole.”). The state may restrict a
convicted felon’s right to vote or to possess a firearm. See NMSA 1978, § 31-13-1(A) (2005)
(“A person who has been convicted of a felony shall not be permitted to vote in any . . .
7
election held pursuant to the provisions of the Election Code[.]”); NMSA 1978, § 30-7-
16(A) (2001) (“It is unlawful for a felon to receive, transport or possess any firearm or
destructive device in this state.”). It may also restrict the movements of convicted sex
offenders within the state. See NMSA 1978, § 29-11A-4(B), (F) (2013) (requiring convicted
sex offenders to register each and any new physical address with the county sheriff). The
rationale underlying such statutes is that the public interest is served by limiting a convicted
felon’s ability to engage in certain activity—even though that limitation burdens the exercise
of the person’s inherent rights.5 See, e.g., Lewis v. United States, 445 U.S. 55, 61 (1980)
(stating that Congress’s intent in prohibiting the possession of firearms by felons was
directly related to “the problem of firearm abuse by felons”); see also Kane v. City of
Albuquerque, 2015-NMSC-027, ¶ 9, 358 P.3d 249 (holding that “the right to vote is
fundamental”); Griego v. Oliver, 2014-NMSC-003, ¶ 1, 316 P.3d 865 (describing “the right
to bear arms, freedom of speech, [and] freedom of the press” as “inherent rights, enjoyed by
all New Mexicans”).
{25} Orders of protection are essentially justified by the same rationale. The purpose of
an order of protection is to prevent future harm to a protected party by a restrained party. See
United States v. Or. State Med. Soc., 343 U.S. 326, 333 (1952) (“The sole function of an
action for injunction is to forestall future violations.”); Section 40-13-5(A)(7) (providing that
the district court may order “injunctive relief as [it] deems necessary for the protection of
a party”). To achieve this result, it is constitutionally permissible to limit a restrained party’s
ability to engage in certain activity—including the exercise of his or her right to free speech.
{26} The Order of Protection limited Respondent’s right to speak and publish freely only
inasmuch as it restrained her from (1) directly contacting Petitioner, and (2) causing
Petitioner to suffer severe emotional distress. See § 40-13-5(A) (authorizing the district court
to enjoin a restrained party from abusing a protected party); Form 4-965 (prohibiting a
restrained party from contacting a protected party and/or from “committing further acts of
abuse[,]” and defining “[a]buse” as “any incident . . . resulting in . . . severe emotional
distress”). Placing such limitations on Respondent—as the restrained party under the Order
of Protection—is not an unconstitutional limitation on her First Amendment rights.
{27} Respondent argues, by citing to Kimbrell, 2013-NMCA-070, that a district court must
affirmatively find that speech alleged to violate an injunctive order actually constitutes “a
true threat or similar unprotected speech” prior to imposing any type of sanction.
Respondent’s interpretation of Kimbrell is not persuasive in the present case.
{28} Kimbrell arose from a highly contentious custody dispute, in which the father filed
numerous motions to remove, and at least one disciplinary complaint against, the guardian
ad litem (the GAL). Id. ¶ 2. In response to his fifth motion to remove the GAL, the district
5
Although Respondent was not convicted of “stalking,” we conclude that the district
court’s finding is analogous to a conviction for the purposes of this opinion.
8
court ordered the father to “refrain from filing any complaint, motion, or other ‘device’
pertaining to the GAL without leave of the court.” Id. ¶ 4.
{29} The father in Kimbrell sought leave to file another disciplinary complaint against the
GAL. Id. ¶ 5. The district court instead entered a preliminary injunction that reprimanded
the father for “improper” behavior and enjoined him “from communicating with the media,
the Department of Justice, or the [c]hildren’s biological parents regarding his complaints
about the GAL.” Id. The father then formed an organization called “Stop Court Abuse of
Children” (SCAC), through which he filed another disciplinary complaint against the GAL
without the leave of the district court. Id. He also published the newly-filed disciplinary
complaint and other related materials (collectively, the materials) on SCAC’s website. Id.
{30} The GAL in Kimbrell requested that the district court issue a permanent injunction
requiring the father to remove the materials from the Internet. Id. ¶ 6. At the hearing on this
request, the GAL argued that the materials were defamatory. Id. The father argued that the
requested injunction would violate the First Amendment. Id.
{31} The district court ordered the father to remove the materials but did not determine
that the materials were defamatory at trial or in its order. Id. ¶¶ 7, 43. Instead, the district
court ruled that publication of the materials on the Internet “harass[ed] and intimidate[d] the
GAL in the exercise of her duties.” Id. ¶ 43 (alteration and internal quotation marks omitted).
This Court reversed, stating that “freedom of speech can only be limited where the speech
is not protected” and holding that the district court’s order failed to “address[] or establish[]
the existence of the requisite elements of defamation[.]” Id. ¶¶ 44, 45.
{32} Our reading of Kimbrell indicates that the issue on appeal in Kimbrell arose not from
a violation of the preliminary injunction, but from the GAL’s request that the district court
require the father to remove allegedly defamatory materials from the Internet. As such,
Kimbrell is distinguishable because, unlike the present case, the materials—or speech—at
issue were not previously subject to an injunctive order.
{33} The district court in this case found Respondent to be a “stalker” in October 2012.
Respondent did not appeal or otherwise contest this finding prior to the date on which
Petitioner filed his affidavit of violation. Because she is a “stalker,” Respondent is subject
to the restraints imposed by the FVPA and the Order of Protection. Those restraints included
valid limitations on her First Amendment rights.
{34} The district court, therefore, was not required to find that Respondent’s online
activity constituted defamation or harassment or stalking or some otherwise unprotected
speech. Instead, it needed only to conclude that Respondent’s online activity violated the
Order of Protection by causing Petitioner to suffer severe emotional distress. Similarly, on
appeal, we need not determine whether Respondent’s online activity constituted unprotected
speech, but instead we need only determine whether sufficient evidence supports a finding
9
that Respondent’s online activity caused Petitioner to suffer severe emotional distress.6
SUFFICIENCY OF THE EVIDENCE
{35} “Sufficient evidence, in a criminal contempt proceeding, is proof beyond a
reasonable doubt.” In re Stout, 1984-NMCA-131, ¶ 11, 102 N.M. 159, 692 P.2d 545. A
“reasonable doubt” is one “that would make a reasonable person hesitate to act in the graver
and more important affairs in life.” UJI 14-5060 NMRA. We review the evidence in
contempt proceedings “in the light most favorable to the verdict.” State v. Cherryhomes,
1992-NMCA-111, ¶ 9, 114 N.M. 495, 840 P.2d 1261.
{36} As described above, Petitioner introduced numerous exhibits that demonstrated the
content of Respondent’s online activity. Of these exhibits, the district court emphasized that
those containing the drug photos and referring to Petitioner as “a junkie” violated the Order
of Protection. Its second amended order found that Respondent “used social media and the
[I]nternet to engage in a sustained pattern of stalking and harassment of Petitioner[,]
including . . . emotional distress.” It is the emotional distress portion of the district court’s
finding that we consider in this opinion.
{37} No New Mexico appellate court has interpreted the meaning of “severe emotional
distress” as that phrase is used in the FVPA. Its meaning, therefore, presents a question of
statutory interpretation, which we review de novo. State v. Powels, 2003-NMCA-090, ¶ 3,
134 N.M. 118, 73 P.3d 256.
{38} When a statute leaves a word or phrase undefined, “[t]he words . . . should be given
their ordinary meaning absent clear and express legislative intention to the contrary.” State
v. Ogden, 1994-NMSC-029, ¶ 24, 118 N.M. 234, 880 P.2d 845. “We give words their
ordinary meaning, and if the statute is clear and unambiguous, we refrain from further
statutory interpretation.” Moongate Water Co. v. City of Las Cruces, 2013-NMSC-018, ¶ 6,
302 P.3d 405 (internal quotation marks and citation omitted). Appellate courts often refer
to dictionary definitions to ascertain the ordinary meaning of statutory language. See State
v. Nick R., 2009-NMSC-050, ¶ 18, 147 N.M. 182, 218 P.3d 868 (using dictionary definition
in statutory interpretation).
{39} Webster’s Dictionary defines “severe” as “of a great degree or an undesirable or
6
As additional support for her “true threat or other unprotected speech” argument,
Respondent provides citation to extrajurisdictional statutes, including N.Y. Penal Law §
240.30 and Conn. Gen. Stat. § 53A-183 (2017), and cases interpreting those statutes,
including People v. Dupont, 107 A.D.2d 247, 252 (N.Y. App. Div. 1985) and State v.
Nowacki, 111 A.3d 911, 928 (Conn. App. Ct. 2015). Because we are analyzing Respondent’s
online activity through the lens of the restraints placed upon her by the Order of Protection,
neither the statutes nor cases cited by Respondent are pertinent to our analysis.
10
harmful extent.” Webster’s Third New Int’l Dictionary 2081 (3rd ed. 1993). It defines
“emotion” as “the affective aspect of consciousness” and “emotional” as “relating to
emotion[.]” Id. at 742. Finally, it defines “distress” as “anguish of body or mind” and “a
painful situation[.]” Id. at 660.
{40} These definitions clarify that “severe emotional distress” is characterized by great
harm to a person’s mental health and well-being. This conclusion is consistent with our
Supreme Court’s declaration—also in the context of an intentional tort—that “severe
emotional distress” is that which “a reasonable person, normally constituted, would be
unable to cope adequately with the mental distress engendered by the circumstances.”
Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, ¶ 28, 131 N.M. 607, 41 P.3d
333 (internal quotation marks and citation omitted). Considering the context in which the
FVPA uses the phrase “severe emotional distress,” we conclude that it unambiguously
describes the prohibited conduct. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)
(“The plainness or ambiguity of statutory language is determined by reference to . . . the
specific context in which that language is used[.]”).
{41} The evidence demonstrated Respondent’s widespread publication of the drug photos
on the Internet. The drug photos were often accompanied by statements claiming that
Petitioner was a “junkie,” a “drug-addled imbecile,” and a “drug-addicted hypocrite.”
Petitioner testified to the impact of Respondent’s online activity on his emotional well-being,
stating that he (1) felt like “a person ha[d] . . . hijacked [his] life,” (2) “go[es] to bed at night
wondering what’s coming next,” (3) “had nightmares,” and (4) “talked about suicide.”
Viewing the evidence in the light most favorable to the verdict, sufficient evidence supports
a finding that Respondent’s online activity resulted in severe emotional distress,
characterized by great harm to Petitioner’s mental health and well-being.
{42} We note that the district court found that Petitioner suffered emotional distress
without explicitly finding that the emotional distress was severe.7 On appeal, however, “there
is a presumption of correctness in the rulings and decisions of the trial court and the party
claiming error must clearly show error.” State v. Carlos A., 1996-NMCA-082, ¶ 8, 122 N.M.
241, 923 P.2d 608. The district court concluded that Respondent violated the Order of
Protection, which required the level of severe emotional distress. Respondent does not find
fault with the language of the finding on appeal. The district court’s finding was sufficient
under the circumstances.
{43} The Order of Protection validly limited Respondent’s First Amendment rights.
Because Respondent’s online activity violated the Order of Protection, she was subject to
sanction by the district court.
7
The district court, however, did find that Respondent “harassed” Petitioner. Criminal
harassment is defined, in pertinent part, as conduct that “would cause a reasonable person
to suffer substantial emotional distress.” NMSA 1978, § 30-3A-2(A) (1997).
11
NOTICE OF CONDUCT CONSTITUTING A VIOLATION OF THE ORDER OF
PROTECTION
{44} Respondent next argues that the district court’s finding of contempt resulted from a
due process violation because the Order of Protection did not provide sufficient notice that
her online activity was “contact” that would constitute a violation. We review questions
related to due process protections de novo. State v. Tafoya, 2010-NMCA-010, ¶ 7, 147 N.M.
602, 227 P.3d 92. As indicated above, we address Respondent’s argument by considering
not whether her online activity was “contact” as that word is commonly used, but whether
she reasonably should have known that her online activity would cause Petitioner to suffer
severe emotional distress.
{45} “There is no question that New Mexico district courts have the power to hold a
litigant in contempt for disobeying a direct order.” Bailey, 1994-NMCA-107, ¶ 6. Such
power is, however, subject to due process considerations. See Concha v. Sanchez, 2011-
NMSC-031, ¶ 26, 150 N.M. 268, 258 P.3d 1060 (“A criminal contempt defendant is . . .
entitled to due process protections of the criminal law[.]”). This Court has previously
concluded that due process is satisfied in a criminal contempt proceeding when “an order
existed that was sufficient to put [the defendant] on notice of what was required of him.”
Cherryhomes, 1992-NMCA-111, ¶ 10.
{46} Form 4-965 contains fourteen numbered parts. Part 4 is titled “DOMESTIC ABUSE
PROHIBITED.” Part 5 is titled “CONTACT PROHIBITIONS.” Both parts are intended to
provide the restrained party with notice of the conduct that is prohibited.
{47} Respondent claims that Part 5 of the Order of Protection is impermissibly vague
because it does not place her on notice that “posting about [Petitioner] on her own website
or a third-party’s Facebook page would be considered ‘contacting’ [Petitioner].” The generic
version of Form 4-965 provides that one or both parties “shall not telephone, talk to, visit or
contact the other party in any way except as follows” and includes blank space for the
special commissioner or district court to include exceptions. In the present case, the district
court modified Form 4-965 to provide that “Respondent . . . shall not telephone, talk to, visit
or contact the other party in any way including social media.” Respondent’s argument
centers on the meaning of the word “contact.”
{48} The Order of Protection does not clearly define whether Respondent’s online activity
would constitute “contact” as that term is commonly used.8 Ultimately, we need not decide
8
Although it appears likely that this deficiency resulted from the district court’s lack
of familiarity with the nuances of various social media platforms, it is perhaps an indication
that the FVPA is not well-suited to address the issue of cyberstalking. Other jurisdictions
have enacted statutes that are more narrowly-tailored to the conduct at issue in this case. See,
e.g., Wash. Rev. Code § 9.61.260(1)(b) (2004) (“A person is guilty of cyberstalking if he or
12
in this case whether Respondent’s online activity constituted “contact” as prohibited in Part
5 of the Order of Protection.
{49} Part 4 of the Order of Protection expressly prohibited “abuse,” which it defined as
“any incident by one party against the other party . . . resulting in . . . severe emotional
distress.” Whether this language provides sufficient notice of the conduct prohibited by the
Order of Protection presents a question of statutory interpretation. This Court reviews
questions of statutory interpretation de novo. Powels, 2003-NMCA-090, ¶ 3.
{50} Having just analyzed the meaning of “severe emotional distress” in the context of the
FVPA, we decline to undertake the same analysis here. The Order of Protection prohibited
Respondent from engaging in conduct that would cause Petitioner to suffer severe emotional
distress. Petitioner is a university professor. Respondent repeatedly used the drug photos to
imply that Petitioner had a substance abuse problem. Such intent is demonstrated by her
characterization of Petitioner as a “junkie” and a “drug-addled imbecile.”
{51} Respondent argues that the substance of her online activity was not intended to reach
Petitioner. This argument is disingenuous. Respondent and Petitioner both worked in the
animal rights arena. Respondent’s website was accessible by the public, and she posted the
same content on public Facebook pages. It is unreasonable for Respondent to assert that
Petitioner could have remained unaware of her online activity in light of his ongoing work
in the animal rights movement.
{52} A reasonable person would understand that Respondent’s online activity would cause
Petitioner to suffer severe emotional distress as we have defined that phrase above.
Therefore, Part 4 of the Order of Protection provided Respondent with sufficient notice that
her online activity could constitute a violation even if it did not constitute “contact” as that
word is commonly used.
PRIOR RESTRAINT
{53} Respondent finally argues that the district court’s restriction of her ability to access
the Internet is overbroad and violates the First Amendment. “A statute is unconstitutionally
overbroad if it criminalizes speech that is protected by the [F]irst [A]mendment.” State v.
Gattis, 1986-NMCA-121, ¶ 10, 105 N.M. 194, 730 P.2d 497. We review questions of
constitutional law de novo. Morris, 2015-NMCA-100, ¶ 26.
{54} As discussed above, the First Amendment prohibits laws that abridge freedom of
speech. Elane Photography, 2013-NMSC-040, ¶ 22. “Prior restraint” is a related term and
she, with intent to harass, intimidate, torment, or embarrass any other person, . . . makes an
electronic communication to such other person or a third party . . . repeatedly whether or not
conversation occurs[.]”).
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“is used to describe administrative and judicial orders forbidding certain communications
when issued in advance of the time that such communications are to occur.” Kimbrell, 2013-
NMCA-070, ¶ 40 (emphasis, internal quotation marks, and citation omitted). Prohibitions
on prior restraint ensure that “the government may not enjoin or restrain a particular
expression prior to its judicial review[.]” Fawcett, 1992-NMCA-075, ¶ 8.
{55} The district court’s restriction of Respondent’s ability to access the Internet is a clear
prior restraint on her First Amendment right to speech. In discussing the Internet generally,
the United States Supreme Court has stated that, “[f]rom the publisher’s point of view, [the
Internet] constitutes a vast platform from which to address and hear from a worldwide
audience of millions of readers, viewers, researchers, and buyers.” Reno v. Am. Civil
Liberties Union, 521 U.S. 844, 853 (1997). It is, simply put, the modern-day town square.
See Bill Gates, Business @ the Speed of Thought: Succeeding in the Digital Economy 131
(1st ed. 1999) (“By enabling people to shop, get news, meet each other, be entertained, and
gossip in ways we’re only now beginning to understand, the Internet is becoming the town
square for the global village of tomorrow.”); Stephen W. Bosky, Note, Defamation in the
Internet Age: Missouri’s Jurisdictional Fight Begins With Baldwin v. Fischer-Smith, 56 St.
Louis U.L.J. 587, 587 (2012) (same).
{56} “Strict scrutiny applies when the violated interest is a fundamental personal right or
civil liberty—such as first amendment rights, freedom of association, voting, interstate
travel, privacy, and fairness in the deprivation of life, liberty or property—which the
Constitution explicitly or implicitly guarantees.” Marrujo v. N.M. Highway Transp. Dep’t,
1994-NMSC-116, ¶ 10, 118 N.M. 753, 887 P.2d 747. To uphold a restriction that deprives
an individual of such a right, the state must show “that the restriction . . . supports a
compelling state interest, and that the legislation accomplishes its purposes by the least
restrictive means.” Id. The almost complete restriction of Respondent’s ability to access the
Internet imposed by the district court is not the least restrictive means by which to address
the harm in this case. See, e.g., United States v. Walser, 275 F.3d 981, 988 (10th Cir. 2001)
(affirming conditions of release that require the probationer to obtain permission from his
probation officer before accessing the Internet); United States v. White, 244 F.3d 1199, 1206-
07 (10th Cir. 2001) (describing filtering software that restricts the user’s ability to access
blacklisted content and cautioning against sanctions that prohibit the use of any computer).
{57} Petitioner does not argue that either consideration is met in this case. Instead, he
requests that we (1) allow the restriction to stand until such a time as Respondent “exhausts
her remedies with the district court,” or (2) affirm on public policy grounds. Having
concluded that the almost complete restriction of Respondent’s ability to access the Internet
violates the First Amendment, we decline Petitioner’s requests.
CONCLUSION
{58} Respondent’s online activity violated the Order of Protection by causing Petitioner
to suffer severe emotional distress. We therefore affirm the district court’s sentence of 179
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days incarceration. However, the district court’s restriction of Respondent’s ability to access
the Internet is unconstitutionally overbroad. We reverse that restriction. In doing so, we
remind Respondent that the Order of Protection remains in effect and that she remains
subject to a finding of contempt for online activity that causes Petitioner to suffer severe
emotional distress.
{59} IT IS SO ORDERED.
____________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
____________________________________
MICHAEL E. VIGIL, Judge
____________________________________
J. MILES HANISEE, Judge
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