IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Marriage of No. 71201-2-1 consolidated with RUSTINA V.H.C. GUTHRIE, No. 71490-2-1
Appellant,
and
JOSEPH F. ZARATKIEWICZ, UNPUBLISHED OPINION
cj- Respondent. FILED: July 20, 2015
Verellen, A.C.J. — The trial court issued a protection order restraining Rustina
Guthrie from (1) communicating with any of her ex-husband's prospective employers,
(2) communicating with any branches of the military or Veteran's Administration about
any matters regarding her ex-husband, and (3) providing her ex-husband's medical
information or academic transcripts to any entity or individual. The trial court also held
Guthrie in contempt of court for violating the protection order. Because the protection
order is "not specifically crafted to prohibit only unprotected speech,"1 we conclude the
order constitutes an impermissible prior restraint. Although substantial evidence
supports a protection order, this protection order is overbroad. Because the contempt
order was based upon the overbroad protection order, it must be reversed.
1 In re Marriage of Meredith. 148 Wn. App. 887, 898, 201 P.3d 1056 (2009). No. 71201-2-1/2
FACTS
This appeal is the latest chapter in a long-running and litigious dispute between
Guthrie and her ex-husband, Joseph Zaratkiewicz. Guthrie and Zaratkiewicz married in
1994, divorced in 2001, remarried in 2005, and divorced for the second time in 2011.
Guthrie obtained multiple contempt orders against Zaratkiewicz for his failure to
pay child support. Those orders required Zaratkiewicz to provide Guthrie his job
applications and job contacts until he showed proof of full-time employment. Guthrie
was also authorized to contact prospective employers "to see if they [were]
contemplating his employment" and to verify Zaratkiewicz's applications.2
In August 2013, the trial court found that Zaratkiewicz intentionally failed to
comply with the purging conditions of a May 2013 contempt order. The court
imprisoned Zaratkiewicz for his recalcitrance. He was released one week later.
In September 2013, Zaratkiewicz obtained a temporary antiharassment
protection order against Guthrie. On October 2, 2013, the trial court issued
Zaratkiewicz a one-year antiharassment protection order against Guthrie. The order
stated:
The Respondent shall refrain and immediately desist from communicating in any way—including by telephone, e-mail, letter, texting with any prospective employers of the Petitioner. The Respondent is further prohibited from communicating in any way with any branches of the military or Veterans Administration regarding the Petitioner. Respondent shall not provide medical information or academic transcripts pertaining to the Petitioner to any entity or individual.t3]
2 Report of Proceedings (RP) (Dec. 13, 2012) at 24. 3 Clerk's Papers (CP) at 36. No. 71201-2-1/3
The day after Zaratkiewicz obtained an antiharassment protection order, Guthrie
sent Zaratkiewicz's commander at the National Guard an envelope containing his
military, financial, and medical records. Guthrie also contacted one of Zaratkiewicz's
prospective employers, seeking to depose him. At a December 13, 2013 hearing, the
trial court determined Guthrie was in contempt for violating the antiharassment
protection order. The trial court later extended the terms of the October 2, 2013
antiharassment protection order until October 1, 2015.
Guthrie appeals both the trial court's October 2, 2013 antiharassment protection
order and the December 13, 2013 contempt order.
ANALYSIS
Protection Order
In this consolidated appeal, Guthrie first contends the trial court erred by granting
the protection order because there is insufficient evidence that she committed unlawful
harassment. We disagree.
We review the trial court's decision to grant or deny a protection order for an
abuse of discretion.4 We limit our review to determining whether substantial evidence
supports the trial court's findings.5 Substantial evidence is evidence sufficient to
convince a rational person of the truth of the finding.6
4 RCW 10.14.080(6); State v. Noah. 103 Wn. App. 29, 43, 9 P.3d 858 (2000). 5 In re Marriage of Rideout, 150 Wn.2d 337, 351, 77 P.3d 1174 (2003) (where court holds a hearing and weighs contradictory evidence before entry of a protection order, the proper standard of review is substantial evidence). 6 In re Welfare of T.B.. 150 Wn. App. 599, 607, 209 P.3d 497 (2009). No. 71201-2-1/4
A superior court may enter a civil antiharassment protection order if it finds by a
preponderance of the evidence that unlawful harassment exists.7 "Unlawful
harassment" is a "knowing and willful course of conduct directed at a specific person
which seriously alarms, annoys, harasses, or is detrimental to such person, and which
serves no legitimate or lawful purpose."8 A "course of conduct" is "a pattern of conduct,
composed of a series of acts over a period of time, however short, evidencing a
continuity of purpose."9 An individual's course of conduct is measured both subjectively
and objectively.10 The course of conduct must be "such as would cause a reasonable
person to suffer substantial emotional distress, and shall actually cause substantial
emotional distress to the petitioner."11 The course of conduct may include harassing
behavior directed to others who have a relationship with the petitioner, even though the
others are not parties to the action.12 "Constitutionally protected activity is not included
within the meaning of 'course of conduct.'"13
Although vigorously disputed by Guthrie, the record contains substantial
evidence supporting the trial court's determination that Guthrie committed unlawful
harassment. The record includes evidence of her conduct:
• contacting Zaratkiewicz's former community college in a purported official capacity and asserting that his transcript was fraudulent;
7 RCW 10.14.080(3); Noah, 103 Wn. App. at 38. 8 RCW 10.14.020(1). 9 RCW 10.14.020(2). 10 Burchell v. Thibault, 74 Wn. App. 517, 521, 874 P.2d 196 (1994). 11 RCW 10.14.020(1). 12 Trammel v Mitchell. 156 Wn.2d 653, 665, 131 P.3d 305 (2006). 13 RCW 10.14.020(2). No. 71201-2-1/5
• contacting the Veteran's Administration and Social Security Administration (SSA) and asserting that Zaratkiewicz filed a fraudulent claim for disability benefits;
• contacting an American Legion Service Officer who assisted Zaratkiewicz in filing a disability claim with the SSA and claiming that Zaratkiewicz filed a fraudulent claim;
• contacting the American Legion Service Officer's commander and complaining about the officer's assistance of Zaratkiewicz;
• contacting a prospective employer of Zaratkiewicz, volunteering information, and threatening the prospective employer; and
• contacting a military hospital and accusing Zaratkiewicz of conspiring to defraud the government.
The evidence relied upon by the trial court reflects that Guthrie committed "a
pattern of conduct composed of a series of acts over a period of time, however short,
evidencing a continuity of purpose."14 Guthrie directed her conduct at Zaratkiewicz or
others assisting him. The trial court focused on Guthrie's conduct. Further, the record
includes sufficient evidence that Guthrie's course of conduct served no legitimate or
lawful purpose. The record also supports that Guthrie's course of conduct would cause
a reasonable person to suffer substantial emotional distress and in fact caused
Zaratkiewicz substantial emotional distress. Her conduct impeded Zaratkiewicz's ability
to obtain gainful employment in order to satisfy his child support obligations.
Guthrie's many arguments disputing the evidence presented by Zaratkiewicz
ultimately turn on credibility determinations. But we do not second guess the trial
court's credibility determinations.15 For example, Laura Standley's declaration and the
copies of e-mails between Guthrie and Highline Community College provided sufficient
14 RCW 10.14.020(2). 15 In re Marriage of Wilson, 165 Wn. App. 333, 340, 267 P.3d 485 (2011). No. 71201-2-1/6
evidence to allow the trial court to determine that she purported to act in an official
capacity to obtain information on behalf of the court to confirm that Zaratkiewicz was
using forged academic transcripts. Although she offers an alternative interpretation, the
trial court was not compelled to accept her version as credible. Similarly, Standley's
declaration describes Guthrie's attempts to convince Standley that she should not assist
Zaratkiewicz in pursuing a disability claim Guthrie contends is fraudulent, and Guthrie's
complaints to Standley's commander for that same purpose. But the trial court was not
compelled to agree with Guthrie that the disability claim was fraudulent and that
Guthrie's conduct was motivated by her interests in preventing a fraud. It was within the
trial court's discretion to find that Guthrie was attempting to harass or intimidate those
assisting Zaratkiewicz. Such conduct is not constitutionally protected and is adequate
to support a protective order.
Guthrie also argues that her contacts with the Veteran's Administration and the
Washington National Guard all occurred while she was still married to Zaratkiewicz. But
she provides no authority that the trial court cannot consider such prior conduct in
evaluating whether there is a course of conduct that amounts to unlawful harassment.
The trial court was not compelled to accept Guthrie's versions of events. The
declarations and documents submitted by Zaratkiewicz, if believed by the trial court,
provide substantial evidence of a course of conduct supporting a protective order. To
the extent that Guthrie contends prior court orders authorized the very conduct that was
the basis for the October 2 protection order, she misreads those prior orders. None of
them authorize abusive speech or harassment of those attempting to assist
Zaratkiewicz. It was also within the trial court's discretion to determine that Guthrie's No. 71201-2-1/7
conduct exceeded the prior authorization to contact prospective employers in order to
determine if the employer contemplated hiring Zaratkiewicz.
Therefore, we conclude substantial evidence supports the October 2 protection
order.
Guthrie also contends the trial court erred by failing to enter written findings in its
protection order specifying Guthrie's course of conduct, the person at whom her
conduct was directed, and the emotional distress suffered by Zaratkiewicz. Guthrie
contends written findings are required by State v. Noah.16 While the trial court entered
written findings in Noah, neither Noah nor the antiharassment statute mandate the entry
of written findings. Noah holds that the appellate court's inquiry is limited to "whether
there was a factual basis for the antiharassment order."17 And generally, in the absence
of written findings, an appellate court may look to an oral opinion to determine the basis
for the trial court's resolution of an issue.18
The trial court's oral opinion reflects that the court considered and found all
statutory elements. Judge Parisien specifically referred to Standley's declaration, the
e-mail correspondence from Zaratkiewicz's community college, and Zaratkiewicz's
petition for an antiharassment protection order. Guthrie does not provide persuasive
authority that written findings are required. The trial court's oral findings adequately
support the trial court's conclusion that the statutory elements of unlawful harassment
are satisfied.
16 103 Wn. App. 29, 9 P.3d 858 (2000). 17 JU at 39. 18 In re Marriage of Griffin. 114 Wn.2d 772, 777, 791 P.2d 519 (1990). No. 71201-2-1/8
Prior Restraint on Speech Rights and Right to Petition
Guthrie contends the trial court's protection order constitutes an unconstitutional
prior restraint on her federal First Amendment rights to free speech and to petition the
government for a redress of grievances.19 We agree, in part.
Guthrie did not raise this argument below. We generally "refuse to review any
claim of error which was not raised in the trial court."20 But "[ijssues involving the
exercise offree speech in the civil arena can be raised for the first time on appeal."21 The protection order here states:
The Respondent shall refrain and immediately desist from communicating in any way—including by telephone, e-mail, letter, texting with anyprospective employers of the Petitioner. The Respondent is further prohibited from communicating in any way with any branches of the military or Veterans Administration regarding the Petitioner. Respondent shall not provide medical information or academic transcripts pertaining to the Petitioner to any entity orindividual.[22]
"The First Amendment of the United States Constitution prohibits the government
from interfering with a person's 'freedom of speech' and 'right... to petition the Government for a redress of grievances.'"23 "Although the right to free speech and the
19 Guthrie refers to both the federal and state constitutions, but acknowledges "a separate state constitutional analysis" under State v. Gunwall is not necessary because "the Washington Constitution provides, at minimum, no less protection ofspeech as the First Amendment, and that level as applied in state decisions is ample to protect Rustina's rights." Appellant's Br. at 57. Therefore, we do not separately address the state constitutional provisions. 20 RAP 2.5(a). 21 In re Dependency of T.L.G., 139 Wn. App. 1, 19, 156 P.3d 222 (2007). 22 CP at 36 (emphasis added). 23 In re Marriage of Meredith. 148 Wn. App. 887, 896, 201 P.3d 1056 (2009) (alteration in original).
8 No. 71201-2-1/9
right to petition are separate guarantees, they are related and generally subject to the
same constitutional analysis."24
"'[T]he First Amendment does not guarantee the right to communicate one's
views at all times and places or in any manner that may be desired.'"25 The right of free
speech is not absolute, and the State may punish its abuse.26 Washington courts have
the authority to prohibit dissemination of abusive speech, including defamation and
harassment.27
Prior restraints on speech are disfavored because such restraints burden the
exercise of the right to speak before any abuse of the right is shown.28 "Prior restraints
are 'official restrictions imposed upon speech or other forms of expression in advance of
actual publication.'"29 "Temporary restraining orders and permanent injunctions—i.e.,
court orders that actually forbid speech activities—are classic examples of prior
restraints.'"30 "Prior restraints are presumptively unconstitutional unless they deal with
non-protected speech."31 But post-publication restrictions "simply prohibit further
24 jo\ 25 Bering v. SHARE. 106 Wn.2d 212, 222, 721 P.2d 918 (1986) (quoting Heffron v. Int'l Soc'v for Krishna Consciousness. Inc.. 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559(1981)). 26 JdL at 226. 27 Id, at 244; Rhinehart v. Seattle Times Co.. 98 Wn.2d 226, 237, 654 P.2d 673 (1982), affirmed. 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984). 28 Seattle v. Bittner. 81 Wn.2d 747, 756, 505 P.2d 126 (1973). 29 Noah. 103 Wn. App. at 41 (quoting State v. Coe. 101 Wn.2d 364, 372, 679 P.2d 353 (1984)) (internal quotation marks omitted). 30 In re Marriage of Suggs. 152 Wn.2d 74, 93 P.3d 161 (2004) (quoting Alexander v. United States. 509 U.S. 544, 550, 113 S. Ct. 2766, 125 L Ed. 2d 441 (1993)). 31 Noah. 103 Wn. App. at 41. No. 71201-2-1/10
exercise of the right after a showing of abuse."32 Subsequent punishment of abusive
speech is not a prior restraint.33
The trial court here properly focused on Guthrie's conduct and not the content of
her speech. In the abstract, the right to free speech or to petition the government would
generally extend to a legitimate challenge of an application for government benefits.
But the right to free speech and to petition do not extend to abusive speech or a petition
raising a false claim of fraud as a device to harass the applicant.34 None of the cases
cited by Guthrie provide constitutional protection for her conduct as found by the trial
court:
• contacting Zaratkiewicz's former community college in a purported official capacity and asserting that his transcript was fraudulent;
• contacting the Veteran's Administration and Social Security Administration (SSA) and asserting that Zaratkiewicz filed a fraudulent claim for disability benefits;
• contacting an American Legion Service Officer who assisted Zaratkiewicz in filing a disability claim with the SSA and claiming that it was a fraudulent claim;
32 Bering. 106 Wn.2d at 243. 33 Id. (emphasizing "the important distinction between prior restraint and subsequent punishment"); Bradburn v. N. Cent. Reg'l Library Dist.. 168 Wn.2d 789, 802, 231 P.3d 166 (2010) ("A prior restraint seeks to prohibit future speech rather than to punish speech that has occurred."). 34 U.S. v. Alvarez. U.S. , 132 S. Ct. 2537, 2547, 183 L. Ed. 2d 574 (2012) ("Where false claims are made to effect a fraud ..., it is well established that the Government may restrict speech without affronting the First Amendment."); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council. Inc.. 425 U.S. 748, 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976) (fraudulent speech generally falls outside the protections of the First Amendment); Meredith. 148 Wn. App. at 899 ("As with the right to speak freely, the right to petition does not protect harassing or libelous speech."); see also McDonald v. Smith. 472 U.S. 479, 483-85, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985) (petition clause does not provide absolute immunity from damages for libel and defamation); Richmond v. Thompson. 130 Wn.2d 368, 378, 922 P.2d 1343 (1996) (same).
10 No. 71201-2-1/11
• contacting the American Legion Service Officer's commander and complaining about the officer's assistance of Zaratkiewicz;
• contacting a prospective employer of Zaratkiewicz, volunteering information, and threatening the prospective employer; and
• contacting a military hospital and accusing Zaratkiewicz of conspiring to defraud the government.
The trial court focused upon Guthrie's conduct, but the broad scope of the protection
order does not prohibit only unprotected speech.
In re Marriage of Meredith35 and In re Marriage of Suggs36 are instructive. In
Meredith, the trial court found that Anthony Meredith committed domestic violence and
represented a credible threat to the physical safety of his former wife, Jazmin Muriel.37
The trial court then restrained Meredith from
contacting any agency regarding Ms. Muriel's immigration status, including but not limited to the Department of Homeland Security (Citizenship and Immigration Services, Immigration and Customs Enforcement or Customs and Border Protection), the Executive Office of Immigration Review (the immigration court system), or the Department of State. Any contact that Mr. Meredith believes to be necessary must first be approved by this court through the undersigned judge/department.t38]
On review, Division Two of this court concluded the trial court's order constituted
an unconstitutional prior restraint on Meredith's federal right to free speech.39 Although
the trial court's order properly prohibited Meredith from making harassing and libelous
claims against Muriel, it also prohibited him from "contacting any agency regarding Ms.
Muriel's immigration status" without prior court approval, "without regard to whether the
35 148 Wn. App. 887, 201 P.3d 1056 (2009). 36 152 Wn.2d 74, 93 P.3d 161 (2004). 37 Meredith. 148 Wn. App. at 894-95. 38 Id, at 895. 39 Id. at 896.
11 No. 71201-2-1/12
contact involves protected or unprotected speech."40 The court concluded the
protection order was not "specifically crafted to prohibit only unprotected speech" and
therefore, was an unconstitutional prior restraint.41
In Suggs, the trial court found that Suggs harassed her former husband and
permanently restrained her from "knowingly and willfully making invalid and
unsubstantiated allegations or complaints to third parties which are designed for the
purpose ofannoying, harassing, vexing, or otherwise harming [her former husband] and for no lawful purpose."42 Our Supreme Court in Suggs determined the order prohibited some speech that might be unprotected speech, but the order also prohibited protected speech.43 Because the order was drafted too broadly, it chilled Suggs from making constitutionally protected communications.44 The court vacated the order as an
"unconstitutional prior restraint on speech."45 As in Meredith and Suggs, the protection order here prohibits Guthrie from making
harassing and libelous claims against Zaratkiewicz. But the order also prohibits Guthrie from (1) "communicating in anyway . . . with any prospective employer of [Zaratkiewicz]," (2) communicating in any way with any branches ofthe military orVeterans Administration regarding [Zaratkiewicz]," and (3) providing Zaratkiewicz's "medical information or academic transcripts ... to any entity orindividual."46 The orderdoes not
40 jd, at 898. 41 Jd, 42 Suggs. 152 Wn.2d at 78-79. 43 jd, at 83-84. 44 Id, at 84. 45 Id, 46 CP at 36 (emphasis added).
12 No. 71201-2-1/13
distinguish between protected or unprotected speech but prohibits all such speech to the
aforementioned individuals and entities. As in Suggs, the order here is drafted too
broadly, chilling Guthrie from engaging in speech that the First Amendment protects.
The trial court here issued the protection order "on a very specific issue,"47 and
attempted to focus on Guthrie's conduct, as opposed to the content of her speech. But
the protection order's broad language "is not specifically crafted to prohibit only
unprotected speech."48 For example, if she can someday demonstrate entitlement to a
government benefit available to her as the ex-spouse who is owed child support,
Guthrie may have a legitimate basis to contact the Veteran's Administration or the Army
National Guard regarding Zaratkiewicz.49 Although our Supreme Court "has repeatedly
emphasized that individuals have an important privacy interest in medical information,"50 there could arise a legitimate need by Guthrie to reveal family health history to their
daughter's physician, including medical information about Zaratkiewicz. And if
Zaratkiewicz's unemployment continues, there may be a point when she will be entitled
to conduct discovery with past prospective employers in support of a theory that he has
not made genuine efforts to obtain employment.
Therefore, we conclude the October 2, 2013 protection order extends to
protected speech and is an unconstitutional prior restraint.
47RP(Oct. 2, 2013) at 54. 48 Meredith. 148 Wn. App. at 898. 49 The materials provided by Guthrie do not demonstrate such an existing right. 50 Matter of Juveniles A. B. C. D. E. 121 Wn.2d 80, 106, 847 P.2d 455 (1993) (Utter, J., concurring in part, dissenting in part); see also United States v. Comprehensive Drug Testing. Inc.. 513 F.3d 1085, 1137 (9th Cir. 2008) (noting that the Health Insurance Portability and Accountability Act of 1996 emphasizes the "importance
13 No. 71201-2-1/14
Constitutional Right to Counsel and Access to Courts
Guthrie contends the trial court's protection order and contempt order must be
reversed because she appeared pro se at both hearings and the trial court failed to
advise her she had a right to counsel. When a contempt proceeding may result in
incarceration, "the person accused of contempt must be provided with state-paid counsel
if he or she is unable to afford private representation."51 The threat of imprisonment must
be immediate to trigger the right to counsel.52 In Tetro, our Supreme Court reversed a
contempt judgment against a father who failed to pay his child support obligation because
the indigent contemnor was not advised of his right to state-paid counsel.
Guthrie does not provide any authority that she had a right to counsel for the
protection order hearing on October 2, 2013. She does not demonstrate a threat that
her incarceration was at issue at that hearing. As for the contempt hearing, we reverse
the contempt order and need not reach any arguments regarding the procedure at that
hearing. Further, Guthrie's access to courts argument is tied to her right to counsel
argument and fails for the same reasons. Therefore, any suggestion that we must
reverse the protection order for the trial court's failure to appoint counsel or abridgement
of her right of access to courts lacks merit.
Debra Bright and Laura Standley
Guthrie contends attorney Debra Bright violated her duty of candor and engaged
in conduct prejudicial to the administration of justice. But Bright was appointed only to
of maintaining the privacy of medical information") (citing 65 Fed. Reg. 82462, 82464 (Dec. 28, 2000)). 51 Tetro v. Tetro. 86 Wn.2d 252, 255, 544 P.2d 17 (1975). 52 Id. at255n.1.
14 No. 71201-2-1/15
represent Zaratkiewicz in the contempt proceedings for unpaid child support. Guthrie
does not establish that Bright played any role in the orders that she appeals. Guthrie
attempts to impute conduct by Veterans Service Organization Service Officer Laura
Standley to Bright. But she fails to demonstrate any support in the record for her claim.
Guthrie's suggestion that Standley engaged in the unauthorized practice of law or
otherwise acted improperly is not supported by the record or any compelling legal
authority.53
Judge Parisien Recusal
Guthrie contends Judge Suzanne Parisien should have recused herself from
presiding over Zaratkiewicz's petition for a protection order. But Guthrie does not
provide an adequate record. She does not identify any affidavit of prejudice filed in this
lawsuit, let alone any affidavit filed before a discretionary ruling by Judge Parisien in this
lawsuit.54 Guthrie's arguments of actual bias are not supported by the record or any
compelling legal authority.55 Therefore, her arguments fail.56
Lastly, Guthrie assigns error to the trial court's issuance of the September 20,
2013 temporary antiharassment protection order. But that temporary protection has
53 Further, the Washington State Practice of Law Board dismissed Guthrie's complaint against Standley for the unauthorized practice of law. 54 RCW 4.12.050. 55 RAP 10.3(a)(5), (6); Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992). 56 Pro se litigants are held to the same standard as attorneys, requiring compliance with all procedural rules. In re Marriage of Olson. 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
15 No. 71201-2-1/16
expired, and Guthrie provides no legal authority that the September 30 temporary order implicates the October 2 protective order. Therefore, any issue is moot.57
CONCLUSION
Substantial evidence supports the trial court's entry of a protection order. But the
relief ordered in the October 2, 2013 protection order is not crafted to prohibit only
unprotected speech. Because it appears that the October 2, 2013 protection order has
been extended to October 1, 2015, we remand for further proceedings consistent with
this opinion regarding the protection order. We reverse the December 13, 2013
contempt order that was based upon the invalid October 2, 2013 protection order.
WE CONCUR:
| f\ C/t
57 See State ex rel. Carroll v. Simmons. 61 Wn.2d 146, 149, 377 P.2d 421 (1962); Ferry County Title & Escrow Co. v. Fogle's Garage. Inc.. 4 Wn. App. 874, 880- 81, 484 P.2d 458 (1971).