Friday, September 21, 2012

Motion to Quash Injunction

Our blogger hopes some attorney can make use of this. (Judges like it better when attorneys plead their cause vs. dumb pro se's.) Arizona Injunction law is unconstitutional on its face, since it doesn't, by law, comport with federal Rule 65.

Also, our blogger cites Lafaro v. Cahill about injunctions and protected speech.

     Defendant Peter Michael Palmer moves this court to quash the above-referenced ex parte Injunction for the reasons below. Pursuant to Super.Ct.Local Prac.Rules, Yavapai County, Rule 15, pro se defendant asks for leave of the court if I exceed a page limit.

    Defendant files this motion under protest, holding that Arizona Injunction law is patently unconstitutional when applied ex parte (as here).


I.     Arizona ex parte Injunction law, A.R.S. § 12-1809, is unconstitutional

    While defendant realizes that even the Arizona Court of Appeals is reluctant to rule statutes unconstitutional, the case must be made here.

    Depriving a person of liberty or property via an ex parte action is patently unconstitutional by definition. An ex parte action, being one sided, violates our right to due process as guaranteed in both the U.S. constitution's Fourteenth Amendment and the Arizona constitution's Article 2, Section 4. The latter plainly says, "No person shall be deprived of life, liberty, or property without due process of law." But this is exactly what an ex parte injunction does!

    While federal courts (and so state courts too) have temporarily allowed such constitutional deprivations when "immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition," the deprivation is only allowed with numerous safeguards for a very short time (fourteen days in federal, ten in Arizona) to minimize damage to the adverse party. But A.R.S. § 12-1809 E. eviscerates two of the safeguards put in place by the federal (and Arizona state) courts when issuing injunctions.

    Namely, 1809 E. says, "Rules 65(a)(1) and 65(e) of the Arizona rules of civil procedure do not apply to injunctions that are requested pursuant to this section." (In fact, Rule 65(d)—which calls for an ex parte injunction to expire within ten (10) days—does not apply either. Nor does Rule 65(h) as it pertains to setting "forth the reasons for its issuance . . .")

    Now, Rule 65(a)(1) says, "No preliminary injunction shall be issued without notice to the adverse party." But an ex parte civil injunction is a de facto one year preliminary injunction without notice to the adverse party!

    And Rule 65(e) says "No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant . . ." The purpose of demanding security is to protect adverse parties by preventing, or at least minimizing frivolous petitions for injunctions. But the Legislature has unconstitutionally done away with that protection. Consequently, since there is no down side to filing a fraudulent or frivolous petition, it's no surprise that injunctions against harassment are abused to harass.   

    Furthermore, there are three more constitutional protections in federal case law that are lacking in Arizona Injunction law.

    In the Federal Court, Injunctions are an "extraordinary remedy" and rarely granted. Whereas in Arizona, civil injunctions against harassment are granted for the asking. In the Federal Court, an Injunction maintains the status quo. In Arizona, Injunctions upset the status quo.

    In the Federal Court, there is a balancing test typically employed to determine whether to issue an injunction. The defendant's Fifth Amendment due process rights are weighed (heavily) against the immediacy of the harm allegedly done to the plaintiff. But in Arizona, one citizen can swear out a false or frivolous petition against another with no consequences, and totally ex parte, deprive another citizen his constitutional rights! (And force defendants in an Injunction to incur attorney fees with no remedy for recovery since there is no security required from which to recompense defendants.) There is no balancing test in Arizona at all. All the weight is given to the petitioner.

    In an attempt to mitigate this unconstitutional practice in Arizona of "guilty until proven innocent," Arizona ostensibly guarantees the defendant in an Injunction a speedy trial (within ten days of request) to challenge and quash an Injunction. That, however, is illusionary and does not ameliorate the constitutional harm.

    Ten days is not enough time for a zealous defense considering pretrial motions that might need to be filed. (Say, a motion for a mental exam of the petitioner. Or motions for discovery. Or whatever.) After the commensurate back and forth of Response & Reply, time can easily extend to months before a hearing. Moreover, record requests, say from the police department, needed to defend oneself, take longer than ten days and cause delay. (Not to mention that it costs the defendant time and money to do all this, whereas it cost the plaintiff nothing to bring the action.)

    So then, because this ex parte injunction is unconstitutional on its face, lacking any of the four safeguards federal law put in place, this injunction must be quashed.

II.    The Injunction unconstitutionally violates defendant's right to free speech

    A. Arizona case law

    Defendant refers the court to the Arizona Court of Appeals case, LaFaro v. Cahill ((App. Div.1 2002) 203 Ariz. 482, 56 P.3d 56) which is on point in this case. (Except that, in LaFaro, there was one actual incident of contact. Whereas in this case, defendant has not had any contact with plaintiff for seven or eight years now. Consistent with this, plaintiff does not allege any contact by defendant, either with her or the children.)

    Now, according to the Court of Appeals, "The legislature likely intended A.R.S. § 12-1809 to provide a civil (i.e., non-criminal) method to help protect citizens from stalkers . . . " (¶22)

    As above, plaintiff does not allege any stalking behavior by defendant, let alone any contact by defendant against her or the children. Therefore, as in LaFaro, the injunction must be quashed for failing to meet the statutory requirements to issue an injunction. (¶16)

    Instead, it's evident from plaintiff's petition that her sole reason for wanting an injunction is because she is unhappy with defendant because she tripped across an "outrageous" blog about her,, which she doesn't like. She protests, as cause for an injunction, that "None of what he says about me is true." Clearly, then, this is about content of speech.

   According to her petition, plaintiff's sole proximate reason for seeking an injunction in April is because, in March 2011, presumably while 'googling' for her name, she discovered a blog titled "That Woman Jezebel." But the blog shows it's been up since December 2010, four months prior to her petition for an Injunction Against Harassment. The point being, she did not pursue an injunction until she became aware of the blog — on her own.

    She swears on oath the blog talks about her "death." (Note that she consistently put "death" in quotes in her petition.) But that's not true. The blog never mentions the "death" of Miss Thomas-Morgan. (Nor were the Bodine minor children ever mentioned by name in the blog at that time, as she falsely swears.)

    It is true that the blog That Woman Jezebel talks about spiritual life and spiritual death of a Melody Bodine. That would be spiritual "death," as frequently talked about in the Bible, as in "The wages of sin is death. (Romans 6:23a.) Spiritual "death" as also in the well known verse (among born-again Christians): "As for you, you were dead in your transgressions and sins . . ." (Ephesians 2:1)

    In fact, the header in the blog says, "On the life... err, death and death of Mrs. Melody Anne Bodine, 6/25/1982 - 4/21/2009." The "birth date" of 6/25/1982 is not the former Mrs. Bodine's birth date, but the date of the former Mrs. Bodine's wedding, when she became Mrs. Bodine. The "death date" is the date Mrs. Bodine legally changed her name. Of course the significance of these particular dates are obvious to Miss Thomas-Morgan. She knows full well that the blog is not calling for anyone's death. It's merely documenting a former wife's spiritual passing.

    Plaintiff refers to "lies" about her. But that is not grounds for a court to issue an Injunction. At best, if she's correct (that there are lies about her in the blog) that is libel. The proper remedy for libel is a civil suit, not an abuse of law, seeking an Injunction against harassment.

    As to the "outrageous" speech in the blog, in LaFaro, the Court noted "As a general matter, in public debate [as in a blog on the Internet] our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." (at ¶20)

    As to "overhearing" conversation on the Internet by plaintiff, quoting Lafaro at ¶13, "Both parties acknowledge that [they] had no direct contact or communication . . . Although LaFaro [plaintiff] may have overheard a segment of that conversation [as here, overhearing something on the Internet], Cahill's communication does not satisfy the statutory definition of harassment, which requires a harassing act to be 'directed at' the specific person complaining of harassment."

    Plaintiff LaFaro claims, as plaintiff implies here, that the defendant called him names. (¶14) But the Court of Appeals felt especially "compelled to address the unconstitutional applications of § 12-1809 to permit an injunction placing significant restrictions on [the defendant's] freedom of speech." The Court ruled that "The injunction against Cahill was unconstitutionally broad because of its infringement of his First (and Fourteenth) Amendment right to free speech as well as Cahill's right to free speech under the Arizona constitution." (¶16) The Court also noted that "We are confident that the legislature did not intend § 12-1809 to be used for issuance of injunctions restricting political speech." (¶22)

    In fact, the Arizona Legislature recently reaffirmed its intentions regarding protected speech by way of H.B. 2549, which "amends §§ 13-2916 and 13-2923, Arizona Revised Statutes; relating to Electronic or digital devices." The Arizona Legislature took a lot of heat and ridicule from the nation when it was reported that the Legislature's first pass at this amendment was overbroad and infringed on the First Amendment rights of bloggers as it would criminalize speech that "annoyed" or "offended." Subsequently, the Legislature modified its Bill, removing those two elements, thus showing it did not mean to restrict protected speech. The news report from the outrageous Phoenix New Times newspaper blog sums it up pretty well: "Feel Free to Continue Being an A-Hole on the Internet." (Exhibit 1)

     By extension, the First Amendment right to free political speech must also extend to free religious speech too, as the U.S. Supreme Court recently ruled. (See B, below.)

    Even plaintiff agrees with this. In a Cease and Desist letter sent defendant, plaintiff acknowledges through her attorney that the blog,, is First Amendment protected speech, stating ". . . you certainly have the right to blog" about the plaintiff. (Exhibit 2.) Further, she goes on to acknowledge the spiritual nature of the blog in the C&D letter, asking defendant for a treatise on John 8:7 in the Bible.

    Because LaFaro, the Arizona Legislature and even the plaintiff agree that speech on the Internet is protected speech, the injunction was issued unlawfully and should be quashed.

    B. Federal Law

    In March 2011, a month before the Prescott court granted plaintiff's ex parte petition, the U.S. Supreme Court ruled 8-1 that "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate." (Quoting Justice Roberts in Snyder v. Phelps, et al. 562 U. S. ____ (2011)) That case was about religious free speech. (The infamous Westboro Baptist church.) But in Prescott, the court punished the speaker.

    Similarly, in mid-July 2011, the Ninth Circuit reversed a criminal conviction of a man who blogged about 50 caliber bullets and a presidential candidate. Ostensibly real, serious "death threats." But as Chief Judge Kozinski wrote, "Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate . . . given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment." United States v. Bagdasarian, 2011 WL 2803583 (9th Cir. July 19, 2011)

    Similarly, taking the blog in the context of all of the relevant facts and circumstances, given any reasonable construction of the words in the postings, the statements in the blog do not constitute a “true threat,” and they are therefore protected speech.

    There is nothing in the blog about bullets. Nor are there threats of any kind. Even plaintiff knows this. In her petition, she consistently puts the word "death" in quotes, making it clear that even she understands the word is not to be taken literally. As such, she acknowledges there is no "true threat."

    And again plaintiff knows her Injunction is really just a ploy to squelch defendant's First Amendment rights. Exhibit 3 is an email between plaintiff and her personal police liaison, Dan Murray of the Prescott Police. Referring to the defendant as "Dufus #2," she says "He does not have all the freedom he thinks he has under the First Amendment. Yeah! [sic]"

    Actually, according to the U.S. Supreme Court, the Ninth Circuit and the Arizona Court of Appeals, I do. WE do.

    It's obvious that plaintiff is simply unhappy that some of us exercise our First Amendment right saying things she does not want to hear. But the court should note that no one is forcing her listen.


    This injunction should be quashed for any of three reasons. First, an ex parte injunction without federal Rule 65 safeguards, which is what we have in this instance by statute, is facially unconstitutional.

    Second, the Arizona Court of Appeals said "Section 12-1809 is intended to address a situation in which a person directs harassing conduct at his target repeatedly." (¶15) Blogging about someone on the Internet is not "harassing conduct," let alone conduct. The Arizona Legislature recently reaffirmed our right to be outrageous on the Internet by removing the words "annoy or offend" from its first overbroad draft of H.B. 2549 defining harassment. (That is, it's not harassment to annoy or offend on the Internet.) Furthermore, the amended law only applies to telephone calls, text messages, instant messages and email. (i.e., directed communication.) None of which have been sent by defendant to plaintiff. Defendant has not had any contact with plaintiff for seven or eight years!

    Third, per LaFaro, the Ninth Circuit and the SCOTUS, an injunction against harassment cannot be issued simply because one citizen is unhappy that another citizen exercised his First Amendment rights to free protected speech. That this injunction was issued in the first place punishes the speaker, a path affirmatively rejected by the SCOTUS.

    Therefore, the injunction must be quashed.

    As this instant court allowed before, defendant will lodge an extra copy of this notice with the court to serve on plaintiff, since defendant has been threatened in the past by Judge Markham for complying with Rule 5(a) while under an Injunction.
DATED this 18th day of August, 2012

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