Predick v. O'CONNOR

2003 WI App 46, 660 N.W.2d 1, 260 Wis. 2d 323

• Court: Court of Appeals of Wisconsin
• Decided: January 22, 2003
• Docket: 02-0503, 02-0504
• Status: Published

Opinions

BROWN, J.

¶ 1. At first blush, an order banishing a person from a county seems like it was taken from the script of some old Grade-B cowboy movie where the sheriff tells the bad guy to "get out of Dodge." The knee-jerk reaction is that this kind of order is arbitrary at the very least and an invasion of a person's constitutional right to travel at the most. When applied to the facts in these two harassment actions, however, the orders make a lot of sense. Margaret O'Connor twice used her automobile as a dangerous weapon, once running Tina M. Busch off the road while Tina was driving both her daughter and Pamela and George Predick's daughter to soccer practice, and once attempting to "side swipe" Pamela while Pamela was jogging.¹ Margaret has been stalking these people for a decade and has ignored previous orders to cease and desist from her behavior. She has expressed no remorse and exhibits no inclination to discontinue her dangerous fixation on the people she torments. The trial court determined that because of O'Connor's past utter disregard for less intrusive orders and because of her use of a vehicle as a dangerous weapon, O'Connor's victims needed a "zone of protection." We hold that banishment from Walworth county was a proper exercise of discretion because it may finally keep the tormentor at bay. We affirm.

¶ 2. While the salient facts of this case revolve around the two instances in which Margaret used her vehicle to harass Tina and Pamela, we set forth in detail the factual history of this case in order to demonstrate how the trial court has attempted to implement more narrowly tailored orders and why they have failed to prevent Margaret's continuous harassment. The facts of this case stretch back to approximately 1991 when Pamela and Margaret, whose mother lives across the street from the Predicks in the City of Delavan, became neighbors and acquaintances. At her deposition in 1998, Pamela testified that sometime after the parties became acquainted and had socialized on a few occasions, Margaret began to call and harass her, her family and many of her friends several times during both day and nighttime hours. Pamela also testified that on at least one occasion Margaret had approached and pushed her in front of one of her children. In her deposition, Margaret justified her past actions by claiming that she and Pamela had been in a romantic relationship.² According to Pamela's testimony, Margaret's actions resulted in a two-year restraining order being issued against Margaret in 1994.

¶ 3. Pamela also testified at her deposition, and then again at a later hearing, that sometime in 1995 she had gone jogging and a car driven by Margaret came at her at a high rate of speed such that she was forced to jump off to the side of the road to avoid getting hit. Pamela stated that Margaret then slammed on the brakes, exited the vehicle and reached into the rear of the car. Pamela testified that she feared for her safety and she had to run as fast as she could in order to get away. At the hearing, Margaret denied running Pamela off the road and testified that all she had done that day was pass by her in her car.

¶ 4. In 1997, after the expiration of the first restraining order, the Predicks commenced another action against Margaret, seeking a second harassment injunction. The parties entered into a stipulation and order pursuant to which the trial court issued a harassment injunction against Margaret. In December 1997, the Predicks filed a complaint alleging defamation and intentional infliction of emotional distress and asserting a claim for punitive damages.³ The Predicks alleged that Margaret had continued to harass them by both telephoning and threatening them, their friends, their family and their co-workers during all hours of the day and night. Margaret admitted making the calls to Pamela's co-workers and to contacting the Predicks, but denied contacting Pamela's family and making many of the alleged statements. Margaret once again justified her conduct by asserting that at one time Pamela had initiated an intimate relationship with her.

¶ 5. In 1999, the parties resolved the dispute by entering into a stipulation and order imposing a permanent injunction on both parties. The stipulation and order required the Predicks to refrain from contacting, harassing or interfering with the lives of Margaret and her mother. The stipulation and order further required Margaret to pay the Predicks $4000 and barred her from, inter alia, contacting, harassing and interfering with the Predicks, members of their family, and their medical providers, utility companies and co-workers.⁴ The agreement was to extend throughout Margaret's lifetime and provided that if she violated the agreement, the court could impose a fine of up to $1000 and imprisonment not exceeding ninety days.⁵

¶ 6. In the fall of 2000, the Predicks filed several pleadings with the trial court, alleging that Margaret had not complied with the 1999 stipulation and order. In August 2001, the trial court found Margaret in contempt of court for violating the stipulation and order by intentionally threatening in a telephone conversation with the Predicks1 attorney that she would have video surveillance conducted against the Predicks and by contacting an acquaintance of both the Predicks and Margaret and inferring in the conversation that the "Predicks were in trouble." The court further found that the phone calls served no legitimate purpose and were meant to harass the Predicks. The court ordered Margaret to serve ninety days in jail, but gave her the opportunity to purge the contempt. According to the purge conditions, Margaret was to: (1) pay $2000 to the Predicks, (2) have absolutely no future contact with the Predicks, (3) comply with all prior court orders in place, and (4) not call anyone or mention the Predicks' names to anyone other than her counsel. The court then added penalties for noncompliance.

¶ 7. In October 2001, the Predicks filed an order to show cause, alleging that Margaret was in contempt of the order. After a hearing on the matter, the court concluded that Margaret had violated the order for two reasons. First, the court found that Margaret had violated the previous orders barring contact with members of the Predick family. The court found that Margaret, in her rental car, had followed Tina, who at the time was driving her daughter and the Predicks' daughter to soccer practice. The court found that Margaret drove up to Tina's car and gesticulated and yelled obscenities at her, scaring everyone in the car. The court further found that in an attempt to drive Tina off the road, Margaret had forced her into the oncoming lane of traffic, endangering all of the passengers in the vehicle. We note that in a prior hearing the court had observed that Margaret had chosen to harass Tina because she had become convinced, in the absence of any evidence, that Pamela and Tina were lovers and consequently had come to view Tina as a rival for Pamela's affections. Second, the court found that Margaret had on numerous occasions violated the purge conditions in the August 2001 order, which barred her from uttering the Predicks' names in the presence of anyone other than her counsel, by leaving numerous after-hours voice messages of an unreasonable and harassing nature on the office voicemail of the Predicks' counsel. The court further found that the calls were abusive and Margaret used personally derogatory language toward the Predicks and their counsel. The court counted 141 times that Margaret had mentioned the Predicks in the voice messages. According to the court, the calls bore no resemblance to the reasonable pursuit of her case. The court then imposed remedial sanctions and additional purge conditions, among them a condition prohibiting Margaret from entering Walworth county. Margaret then filed a motion to modify the purge conditions, which the court subsequently denied.

¶ 8. In October 2001, in response to the incident in which Margaret allegedly attempted to drive her off the road, Tina, who is Pamela's business partner, also filed a petition for a harassment injunction against Margaret pursuant to Wis. Stat. § 813.125 (1999-2000).⁶ Margaret failed to appear, and, based upon the testimony given in the Predicks' case, the court granted Tina a default judgment against Margaret and an injunction prohibiting Margaret from entering Walworth county, with limited exceptions for court appearances. The court ordered that Margaret have "no contact of any type at any place petitioner(s) may be. No contact through any third person of petitioner(s) on behalf of respondent. Court also will order her (respondent) not to be in Walworth County unless she is here for a court appearance or on her way to court." The court denied Margaret's subsequent motion to reconsider the civil injunction.

¶ 9. Margaret appeals from the trial court orders from both of the cases prohibiting her from entering Walworth county and denying her motions for reconsideration. These appeals were consolidated and we address them both here.

¶ 10. This appeal requires us to apply a two-part standard of review. Whether the trial court's orders violated Margaret's constitutional rights is a question of law. We review questions of law without deference to the decisions of the lower court. Ball v. Dist. No. 4, Area Bd. of Vocational, Technical and Adult Educ., 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984). However, we will not overturn the trial court's findings of fact in either of the proceedings unless they are clearly erroneous. See Wis. Stat. § 805.17(2).

¶ 11. Margaret seems to argue that banishment is a per se violation of constitutional rights and that a court should not have the authority to impose it. She cites to numerous cases from other jurisdictions that at first glance would appear to hold that banishment is presumptively invalid. While as a matter of course we do not normally engage in a lengthy discussion of cases from foreign jurisdictions, we believe it is important to do so here. A closer inspection of the facts and circumstances of the cases will reveal why the courts in fact chose to invalidate the banishment conditions before them.

¶ 12. In sevéral of the cases, the courts determined that while they might have the authority to banish an individual from a geographic area, the facts and circumstances of the case did not support the imposition of the restriction. In State v. Doran, 95 Wash. App. 1068, 1999 WL 350657 at 1 (Wash. App. Div. 1) (per curiam),⁷ for example, a case Margaret discusses at length, Doran was convicted of telephone harassment and violating a protection order that was in place against him. Id. As a condition of his sentence, the trial court ordered him to leave the county upon his release from prison. Id. The court of appeals determined that the record did not demonstrate that Doran's conduct, i.e., telephone harassment, and the victim's activities within the county, justified a countywide ban. Id. at 3. However, the court refused to rule out the possibility that in some circumstances a countywide prohibition would be appropriate, noting that relying on the well-defined boundaries of a county or city would foster the uniform enforcement of such a restriction. Id.

¶ 13. In Johnson v. State, 672 S.W.2d 621, 623 (Tex. Ct. App. 1984), the court concluded that banishing Johnson from his county of residence as a condition of his probation was not reasonably related to his rehabilitation when banishment would leave him broke and unemployed. In a similar vein, in Jones v. State, 727 P.2d 6, 8-9 (Alaska Ct. App. 1986), the court vacated a probation condition prohibiting Jones from being within a forty-five block area as not being reasonably related to his rehabilitation. The court determined that the trial court had not given a reason why, in light of the fact that the forty-five block area included both Johnson's work location and residence, it had imposed such a harsh condition. Id. at 9. In McCreary v. State, 582 So. 2d 425, 426, 428 (Miss. 1991), the court struck down a condition essentially banishing McCreary, who was convicted of rape, from the State of Mississippi, concluding that on the facts available, the condition was also wholly unrelated to McCreary's rehabilitation. The court acknowledged that in another case it had upheld a condition prohibiting an individual from coming within 125 miles of a county, see Cobb v. State, 437 So. 2d 1218 (Miss. 1983), but stated that it was concerned about the public policy implications of dumping convicts on another state. McCreary, 582 So. 2d at 427-28. Further, in In re White, 97 Cal. App. 3d 141, 147 (Cal. Ct. App. 1979), the court struck down a probation condition banishing White, who was convicted of soliciting an act of prostitution, from certain high-prostitution areas during all hours of the day and night. The court could not see how the sweeping prohibition was reasonably related to White's past or future criminality when White's criminal conduct took place at a time of darkness and the evil to be eliminated by the criminal statute, i.e., streetwalking, was more prevalent in the later hours of the day. Id. at 147-48.

¶ 14. We acknowledge that several of the cases contain language suggesting that banishment is impermissible, but conclude that these cases either must be limited to their facts or have been modified by subsequent decisions. For example, the court in In re Mannino, 14 Cal. App. 3d 953, 965 (Cal. Ct. App. 1971), concluded that banishment was a prohibited term of probation. There, the court invalidated a condition prohibiting a student, who was convicted of assault for kicking a student and resisting police officers at an anti-war demonstration, from entering the grounds of any school in which he was not enrolled. Id. at 956, 957 n.2, 962. We observe that in a subsequent unpublished case, the court limited Mannino to its facts and upheld an order imposing a similar banishment condition. See State v. Fred S., 2002 WL 1925124,1 (Cal. App. 2 Dist.).

¶ 15. While in Bird v. State, 190 A.2d 804, 807 (Md. Ct. App. 1963), the court did hold that suspension of a sentence conditioned on banishment was beyond the power of the trial court, the conclusion must be read in context of the drastic nature of the banishment condition in that case. The trial court there had banished Bird to Puerto Rico for ten years. Id. at 805. Thus, the banishment condition amounted to more than a minor burden on Bird's rights to travel and association. It was, in fact, the equivalent of deporting Bird to another country. Similarly, in Silva v. Babak S., 22 Cal. Rptr. 2d 893, 895, 898 (Cal. Ct. App. 1993), the court vacated a trial court order requiring Babak S., a juvenile, to live with his parents in Iran for two years, concluding that it constituted a de facto deportation.

¶ 16. Although in State ex rel. Halverson v. Young, 154 N.W.2d 699, 702 (Minn. 1967), the Minnesota Supreme Court did declare that courts did not have the power to impose banishment as a condition of probation, riiore recently, in State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000), the court seemed to modify the earlier ruling and concluded that as a general rule courts did have the authority to impose geographical limitations. In fact, the court explicitly acknowledged that the probation condition in the case — banishment from the city of Minneapolis — was not presumptively invalid. Id. at 84. While the court did strike down that condition, it did so because it determined that the source of Franklin's criminal behavior, criminal trespass, was centered on one individual home, which was located mere blocks from the southern border of Minneapolis and miles from the northern border. Id. at 83-84.

¶ 17. Finally, we note that in a case neither party cites, this court upheld a banishment condition. See State v. Nienhardt, 196 Wis. 2d 161, 164-65, 537 N.W.2d 123 (Ct. App. 1995). In that case, Nienhardt was convicted of unlawful use of a telephone; however, evidence at a sentencing hearing demonstrated that she had engaged in a persistent pattern of harassing phone calls in addition to those underlying the conviction and that she had been observed both spying on and following the victim. Id. As a condition of her probation, the trial court banished Nienhardt from the city of Cedar-burg. Id. at 166. On appeal, Nienhardt had argued that the condition violated her constitutional rights. Id. at 168. While we did not specifically address each of Nienhardt's constitutional claims, we did conclude that based on the particular circumstances of the case and the trial court's findings that Nienhardt did not live in Cedarburg and only traveled there to purchase cigarettes, the condition banishing Nienhardt from Cedar-burg was not overbroad or unduly restrictive of her right to travel. Id. at 168-70.

¶ 18. Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn.

¶ 19. We therefore turn to the facts of this case. Here, we have an individual who has twice used a vehicle as a dangerous weapon in Walworth county and who has repeatedly demonstrated that a standard, more narrowly tailored, order will not deter her from harassing and endangering the lives of three innocent victims and their families, all of whom live in the county. The evidence in the record demonstrates that while she does not live or work in the county, Margaret frequently rents cars to drive around Walworth county. Further, her statements on the record indicate an absolute fixation on Tina and Pamela and an unwillingness to accept any possibility other than that she has been wronged and has a right to follow, threaten, harass and endanger these two women and their families. In fact, the trial court found that if Margaret were even in Walworth county, she would be tempted to prey upon her victims. Hence, Margaret poses a constant and dangerous threat any time she is present in the county.

¶ 20. Here, we also have three people who, as the record evidences, are victims for no apparent reason and have been driven to desperation by Margaret's continuous harassment. These innocent victims deserve to be able to live their lives free from the constant fear of being tormented and attacked. The geographic restriction the trial court imposed will provide them with a margin of territorial safety in which they can live in peace.

¶ 21. Margaret asserts that there is no basis in the record for concluding that a "keep away" zone of 300 yards would be any less effective than total banishment from the county in ending the harassment. Margaret's use of a car as a tool for tormenting Tina, Pamela and George makes her too mobile and too dangerous for such a limited restriction. An area smaller than the county would provide her with too many opportunities to meet up with her victims, who, as we have noted, live and work in that area. Further, in the event that she does violate the orders and enter Walworth county, relying on the county's boundaries will give area law enforcement the opportunity to apprehend her before she is able to threaten or, worse, seriously injure Tina, Pamela, George and other members of their families. Thus, the injunction and purge condition are properly tailored to prohibit any future harassment and do not unduly impinge on Margaret's constitutionally protected activities. Accordingly, we affirm the orders of the trial court banishing Margaret from Walworth county.

By the Court. — Orders affirmed.

1 We note that there are three victims in this case, two of whom are married and share the same last name. We will refer to the parties by their first names for the sake of clarity.

2 We note that the trial court determined that it was unlikely that such a relationship existed between Pamela and Margaret. Further, we point out that the existence of the relationship is irrelevant for our purposes, as it would not have entitled Margaret to consistently harass Pamela and her family.

3 The Predicks later amended their complaint in 1998, changing the first count from defamation to libel and slander.

4 In their complaint, the Predicks alleged that Margaret had contacted Pamela's doctor and co-workers at her business, and after gaining access to the Predicks' telephone billing records, had made a series of phone calls to their family and friends.

5 The agreement, in pertinent part, read as follows:

8. Upon approval of the Court, [Margaret] shall be enjoined and restrained from doing any of the following actions for the purpose of contacting, harassing or interfering in any way with the Predicks:

a. Having any contact with the Predicks, including [the enumerated family members], in any fashion, including but not limited to, by telephone, by letter or in person at their homes or the family members' homes, at school and/or at places of employment.

b. Contacting the Predicks and [the enumerated family members], physicians or medical personnel of any kind or nature whatsoever, current and future places of employment, including, but not limited to, S. Abraham & Sons and Burr Oak Manor.

c. Contacting directly or indirectly any utility service, telephone service, mail delivery and other similar services of the Predicks or [the enumerated family members], except as to a party's own particular account with these institutions.

d. Stalking, spying or harassing the Predicks or [the enumerated family members].

6 All references are to the 1999-2000 version of the Wisconsin Statutes unless otherwise noted.

7 We note that in this opinion we do cite to two unpublished opinions from other states. Wisconsin Stat. § 809.23(3) does not prohibit us from doing so. In Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992), we held that the rule does not proscribe citation to circuit court decisions, noting "the statutory scenario of chapter 809 concerns appellate procedure generally and ... Rule 809.23(3), read in context, concerns only court of appeals decisions." Brandt, 160 Wis.2d at 363.