Saturday, March 28, 2009

Connecticut, The lack of a Constitution State

For those of you who have not suffered judicial abuse firsthand, or know about how really corrupt all 3 branches of Connecticut government are, I'd be wasting my time trying to inform you. It is so beyond ridiculous, it defies belief.

I was sent the below by email. If you know the story, and can read between the lines, you wonder why these bums are being paid tax dollars and have remained outside of jail cells.

Judges and power brokers make up rules as they go along, they have a long history of this in Connecticut. These "important" people, the ruling class, with a pretend Court System, as part of the Judicial Branch, rule a State like a Monarchy, and there is a class system. There is separate and unequal justice. Injustice is the rule, not the exception. A lot is hidden between statute language and "lawyer-speak". Those of us who have been following the judicial abuse in Connecticut can cite example after example. Police, attorney, prosecutorial, judicial, and official misconduct should not be so prevalent in any state, especially a state that calls itself, "The Constitution State, Connecticut".

"Do as I say, not as I do"

-Steven G. Erickson

This came in by email:

Separation of Power discussion Judiciary Hearings

REP. LAWLOR: And in the rules promulgation process, the process you've been in charge of for some time at the juddicial branch, has this come up at all? Have there been rules suggested or adopted that, you know, with victim notification or victim participation or access to information?

JUSTICE PETER T. ZARELLA: Not that I'm aware of. I don't recall any proposals being made with -- with regard to adding it as an element of canvass or something like that. That might be a potential, worth of investigation.

REP. LAWLOR: Thank you, your Honor. And congratulations once again.


SENATOR McDONALD: Your Honor, I just had a couple of questions to follow up on something that Representative Lawlor started to talk about.

As you know, over the last couple of years this committee, in particular, at the General Assembly, in general, has been looking at the separation of powers issues associated with the promulgation of rules and court procedures. It's been a difficult and mettlesome problem, but I certainly appreciate your efforts over the last couple of years to try to craft solutions, if you will. But picking up on Representative Lawlor's comment that you are a constitutional scholar and Chairman of the Rules Committee, is it your understanding that the Supreme Court has always had exclusive jurisdiction to promulgate its rules of procedure?

JUSTICE PETER T. ZARELLA: It -- it's a -- it depends what you use as the -- the measuring stick.

Prior to 1818, there was a statute passed by the Legislature that delegated the rulemaking authority to the -- the judges of the Superior Court sitting as a Supreme Court, I think is the language of the 1807 statute. That was kind of interesting because they were one and the same at that point. All of the superior court judges were -- sat at the Supreme Court at that point.

That remained unchanged, as I -- nearly as I can tell until 1818, when the Constitution was -- was adopted and the separation of powers was implemented for the first time in a document in Connecticut.

I don't know how much history you want here, but you asked whether or not the -- the Supreme Court has always maintained control over it. There are a number of statutes throughout the 18 -- 1800s that took the rulemaking authority from the Supreme Court, gave it to the Superior Court. I think it went back to the Supreme Court for a while and eventually it ended up in the -- the rulemaking authority ended up, by statute, in any event, with the judges of the Superior Court, the present system that we have now.

So if you're measuring stick is what the statute said, then it has been back and forth between the Supreme Court and the Superior Court.

SENATOR McDONALD: And the statute that you're referencing that's known as 51-14, which talks about the delegation by the Legislature to the judicial branch or to the judges of the Superior Court to promulgate rules.



Now in the statute it talks about all statutes relating to pleadings, practice and procedure in existence on July 1st of 1957 shall be deemed to be rules of court and shall remain, in effect, as such until modified, superseded, to the extent -- that type of thing.

Does the Rules Committee separately track the rules that were promulgated prior to 1957?

JUSTICE PETER T. ZARELLA: Every year, I think there's another statute that goes along with that that requires the chief justice to report to the -- maybe it's in the same statute -- report to the -- either the Judiciary Committee or the Legislature any changes in statutes that are above and beyond those that existed in that year, so -- and I believe that report is done. It's not -- I don't believe the Rules Committee does that. I think the -- I think the chief justice does it.

SENATOR McDONALD: Well, but my question -- my question was do you see any -- well, let me ask a different question.

Do you see any distinction between rules that were promulgated prior to July 1st of 1957 and rules of practice promulgated after that date about who has the authority to do -- to promulgate such rules?

JUSTICE PETER T. ZARELLA: I think in -- in State versus DeJesus, which is a case that was recently decided that had to do with rules of evidence, it had nothing to do with -- it didn't have anything directly to do with rules of procedure. There is an analogy made between the rules of procedure or practice and the rules of evidence, saying there's a -- a fairly healthy -- I thought it was healthy -- discussion in that case as to the authority inside the branch itself with respect to the rules of evidence, but brought into that discussion was the -- was the history of the rules of practice.

There is a theory, and I'm not expressing an opinion on this because it hasn't been before us yet, and it may or may not come before us, but there is a theory that if, when the constitution was passed or adopted in 1818, it froze in time whatever existed at that point with respect to the powers of the various branches. And if the statute in 1818, the appropriate delegation by the Legislature to the -- to the courts in 1807 was in effect in 1818 when the Constitution was adopted, then in 1818 that became part of the Constitution. I think that's probably the argument that it doesn't matter what happened after that once it was constitutionalized in 1818.

SENATOR McDONALD: Okay. So let me get back to my -- one of my prior questions. Does the Rules Committee that you chair, separately track rules of practice that were promulgated before July 1st of 1957?

JUSTICE PETER T. ZARELLA: The Rules Committee itself does not. The -- the -- the Office of Counsel that offers services to the Rules Committee I believe does that for the chief justice.

SENATOR McDONALD: And in your experience, has any rule of practice or procedure that was promulgated before July 1st of 1957, ever been modified, extended or superseded?

JUSTICE PETER T. ZARELLA: I'm sure they have.

SENATOR McDONALD: And you as the --


SENATOR McDONALD: My point is --

JUSTICE PETER T. ZARELLA: Oh, I get -- I understand.

SENATOR McDONALD: You got my point. Okay.

Has the Legislature been notified of that?

JUSTICE PETER T. ZARELLA: I believe they have.


JUSTICE PETER T. ZARELLA: No -- beforehand?


JUSTICE PETER T. ZARELLA: I doubt it was beforehand. I suspect that that notification probably goes out after the Rules Committee completes it -- its work and the judges in the Superior Court have adopted the rule.

SENATOR McDONALD: And how can that be done consistent with 51-14? How can a rule that was declared by statute to be a rule be superseded without the acquiescence of the General Assembly?

JUSTICE PETER T. ZARELLA: It would -- if the power resides in the juddicial branch constitutionally to create and -- and modify its own rules, that's the power.



SENATOR McDONALD: And ultimately -- I mean, the challenge for us institutionally is that, under that paradigm, the juddicial branch is the only one having a discussion about who has the authority to adopt or modify rules that, at least going back into the fifties, appear to have been done by statute?

JUSTICE PETER T. ZARELLA: I would suggest that it's been done even prior to 1957 by the Legislature and by statute. The statutes didn't begin in 1957 with this -- in this regard. They date all the way back -- you'll find one of them in the 1850's. I think you'll find another one in the 1830's.


JUSTICE PETER T. ZARELLA: And it's a product, in my view, of the history of the development of the independent judiciary in this state.

In 1818, the Legislature -- and with all due respect, I know you're all Legislators and -- did not recognize fully the independence of the branch, the judicial branch. In fact, they, I believe, continued to do divorces in the -- in the Legislature. And it was only -- and the branch was unwilling in the early days of the supposed independence of challenging the Legislature in the 18 -- early 1800's. It was only until the Norwalk Railroad case that really established the independence of the branch, and that was in the late 1800's that they -- they established the independence of -- of the -- of the branch.


JUSTICE PETER T. ZARELLA: So these statutes were passed as a matter of course.

SENATOR McDONALD: All right. You know, we are at -- I know other members of the committee want to ask questions. I have a couple of other ones, but I actually want to ask you -- we're going to have an opportunity to be revisiting this subject later on in the session -- would you be willing to come back and help us work through some of these issues when we have that opportunity?


SENATOR McDONALD: I appreciate that.

I did want to go back to the DeJesus case, however, because that decision is largely unnoticed in the public, but I think it's a very important decision. And the question I have for you is, if the rules of evidence codify existing statutes and the common law on the rules of evidence -- right? Do we agree that the rules of evidence codify existing statutes and common law?


SENATOR McDONALD: Okay. So if the rules of evidence are the codification of statutory and common law, how is the Supreme Court authorized to supplant the rules of evidence if it deems it appropriate in any particular case?

And that's what I understood the DeJesus decision to allow the Supreme Court to do, and if I'm wrong, please correct me.

JUSTICE PETER T. ZARELLA: The DeJesus case was a question of whether or not the ultimate authority with respect to the code of evidence lies with the Superior Court judges or the Supreme Court. It was an interbranch dispute, had not -- not -- literally, nothing to do with the Legislature.

The question was, if the Superior Court judges promulgated a code of evidence, was that code binding on the Supreme Court? Obviously, if there -- there is a recog -- has been a recognition in this state that there is a joint function in creating the rules of evidence, you have the right to pass statutes with respect to evidence, we have the common law of evidence that we develop. This had nothing to do with whether or not the Supreme Court could ignore or overrule a statute. This had to do with the power of the Superior Court judges to bind the Supreme Court judges.

SENATOR McDONALD: But -- and I understand that. But the Superior Court judges codified -- in adopting the rules of evidence, it codified within the code statutory evidentiary standards.


SENATOR McDONALD: So is there a carve-out in the DeJesus case to say that the Supreme Court can only overrule rules of evidence that were promulgated under the code of evidence under the common law and not under statute?

JUSTICE PETER T. ZARELLA: The -- the -- no. There wasn't a carve-out, and I don't believe that it was necessary to carve anything out, because the dispute in, and as I said, in DeJesus, revolved around the distribution of power inside the judicial branch. Nobody was suggesting that the Supreme Court, by common law, could ignore or overrule a statute.

SENATOR McDONALD: So what would happen if the Legislature codified the code of evidence into statute; would that be binding on the Supreme Court?

JUSTICE PETER T. ZARELLA: It's a -- that's a -- it's a difficult question. I think certainly -- it's a difficult question. I suspect you probably could.


JUSTICE PETER T. ZARELLA: And, in fact, I think the reason you didn't and specifically asked the -- the -- the judicial branch to do it was because when -- whenever you try and codify a major piece of work like the rules of evidence, you're going to have everybody sort of picking at their pet, you know, their pet peeves, and I guess that was the reason why it was asked that the code originally be codified and adopted by the -- by the judicial branch.

SENATOR McDONALD: Right. And -- but, see, the problem -- the problem I have is I under -- that predates my tenure here in the Legislature.


SENATOR McDONALD: The problem I have with that is, if something like that is done as a matter of convenience, a generation later it takes on added significance that it was somehow ceding power from one branch of government to another. And your branch of government is concerned with that type of thing; our branch of government is concerned with that type of thing. I'm just trying to figure out where that appropriate balance is because -- well, let me ask you the question.

Why should the judges of the Superior Court participate in an annual review of the rules of evidence if it doesn't appear to have any binding authority on the branch itself?

Does that not -- I understand we have a -- that there's an intellectual and constitutional issue at stake, but I'm trying to figure out why would judges waste their time in participating in that process if it didn't have any real-world consequences.

JUSTICE PETER T. ZARELLA: Well, if you take -- if you look at the code as a codification of existing law on a date its published, it's a very useful and -- and -- it's useful to attorneys. It's useful to judges. It's a very useful document.

Whether or not the judges of the Superior Court ought to be adopting it as a binding --

SENATOR McDONALD: Your Honor, could I interrupt you.


SENATOR McDONALD: This is now the second time that the testimony has been interrupted by cell phones. Would everybody please take a moment to turn their cell phones off or turn them on to a silent mode so that we can give our full attention to Justice Zarella.

I apologize for interrupting, your Honor.

JUSTICE PETER T. ZARELLA: Unfortunately, and I agree with you, that sometimes things are done for one reason, but over the course of time that reason gets lost. My understanding of how the -- the code of evidence was originally delegated to the -- to the judicial branch was that there was --

SENATOR McDONALD: Not delegated.

JUSTICE PETER T. ZARELLA: Well -- I'm sorry. Ended up being done by the -- the judicial branch, was there was a joint committee of the Legislature and the judicial branch. And that committee, working together, codified -- they came up with the proposed codification of the rules of evidence, taking into account all of the case law and all of the statutes, incorporated it into this one document. I think it was 1999 this happened. It was then presented to this committee, it's my understanding, and after some thought it was decided -- and I was not part of it -- it was decided that it might be better if the judges -- if the judicial branch adopted it.

I think Justice Callahan was -- was the chief justice at the time, and a decision was made that, if there's a -- we have a rules committee who created a code of evidence committee inside the judicial branch, don't make a recommendation of -- on evidence rules to the rules committee, which will then pass it on to the judges of the Superior Court. I think that was chosen because it was the only method that was available, at that particular point in time, inside the branch itself for the adoption of any kind of rules.

SENATOR McDONALD: And one final question.

JUSTICE PETER T. ZARELLA: And I don't know what the support for that is. I don't know what the authority to do that is.

SENATOR McDONALD: One final question and then I'll shut up. The -- if the rules of evidence are not binding on the Supreme Court, given their constitutional role, right, how can they be binding on individual judges of the Superior Court who are also discharging their constitutional obligations?

JUSTICE PETER T. ZARELLA: Again, if -- if there is a separate source of authority such as a statute, it's binding on all of them. If it's common law that's where we --

(Gap in tape.)

JUSTICE PETER T. ZARELLA: -- have common law authority as well. If there's an area where no decision has ever been made on a particular evidentiary question, they're creating the common law.

If that is appealed to the Supreme Court, that becomes the ultimate common law authority.

SENATOR McDONALD: Understood. But it --

JUSTICE PETER T. ZARELLA: So if -- I'm sorry.

SENATOR McDONALD: No. Well, I mean, you know, any creative lawyer can find a nuance in any rule of evidence, and my concern is if that -- if that nuance is created, does that create an opening for a Superior Court judge to create a new rule of common law in spite of the code of evidence if they can crack the door open a little bit?

JUSTICE PETER T. ZARELLA: They -- they may. I mean, and there's nothing wrong with that because it will ultimately be reviewed by the Supreme Court. And either the imprimatur will be put on that or it won't. So I don't see that as a particular problem.

SENATOR McDONALD: Okay. Well, I'll be happy to take the subject up with you later. I appreciate your time. And, obviously, we are always illuminated by your comments, and I congratulate you on your nomination.


SENATOR McDONALD: Senator Kissel.

SENATOR KISSEL: Thank you very much, Chairman McDonald.

Justice Zarella, delighted to see you. Thank you for all

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I was terrorized at the Connecticut State Capitol [story]

Monday, March 02, 2009

Freedom of Speech Case

The below was sent to me by email:

Plaintiff, )
vs. )Case No. DR 99-1631.03
Defendant. )


Comes now the Defendant Scott Christopher Hobbs (hereinafter referred to as “Chris”), by and through his attorney of record, and files this Memorandum of Law in Support of his Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, as follows:
This Court cannot grant the Plaintiff Dora Heisey’s (hereinafter referred to as “Dora”) request without impermissibly violating Chris’ First and Fourteenth Amendment rights to free speech. The restrictions sought by Dora are unconstitutional. Dora is not attempting to restrict Chris’ speech to their child, per se, but she is attempting to restrict Chris’ speech to the public, because of the effect she thinks Chris’ public speech might have on the child.
A. The First Amendment of the United States Constitution prohibits the government from interfering with a person’s freedom of speech.
The First Amendment of the United States Constitution prohibits the government from interfering with a person’s “freedom of speech.” Alabama courts have considered many First Amendment cases, and have been consistently emphatic of the enormous protection afforded one’s right to free speech. The Alabama Appellate Court has affirmed that the First Amendment was fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Ford v. Jefferson County, 904 So.2d 300 (Ala.Civ.App. 2004) (Per Murdock, J., with four Judges concurring in the result)(citations omitted). Further, the law is clear that speech concerning public affairs is more than self-expression under the First Amendment; it is the essence of self-government. Id. Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values,” ’ and is entitled to special protection. Id. (Citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).
In the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court stated the following with regard to the First Amendment's protection of freedom of speech:
“The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498. ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’ Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117. ‘[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions,’ Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192, and this opportunity is to be afforded for ‘vigorous advocacy’ no less than ‘abstract discussion.’ N.A.A.C.P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405. The First Amendment, said Judge Learned Hand, ‘presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.’ United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.1943)..”
Id. at 270-71, 84 S.Ct. 710.
B. Dora seeks to restrict Chris’ political expression speech aimed at informing the public about his experience in the domestic relations court.
As noted in Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 16 L.Ed2d 484 (1966):
“ ‘Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.’”
The Alabama Supreme Court considered First Amendment issues regarding statements by a school board member and a mayor that a state senator and other public figures may have violated state ethics laws in Sanders v. Smitherman, 776 So.2d 68 (Ala. 2000). The Supreme Court of Alabama held that such statements were, at their core, political speech concerning matters of public concern and were subject to full measure of protection under First Amendment. The Supreme Court noted that they had to “consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 74 (quoting New York Times v. Sullivan, supra).
Dora claims in her Petition that Chris has subjected the child to “information concerning court proceedings and [Chris’s] position that he has been treated inequitably and unfairly by the judges of this county.” She makes no complaint in her Petition other than about Chris’ statements about the previous judge in his case. Clearly, such speech on the part of Chris is a “vehement, caustic and ...unpleasantly sharp attack on [a] government and public official” that is protected, and indeed valued, as described by the Alabama Supreme Court in Sanders, supra.
C. A court order restricting political expression is subject to strict scrutiny and Dora must prove a compelling governmental reason to restrict this speech.
It is clear that the speech Dora seeks to restrict is political expression aimed at informing the public about Chris’ experience in the domestic relations court. Because she is seeking a court order restricting political expression that “occupies the core of the protection afforded by the First Amendment,” this Court will apply “the most exacting scrutiny” when analyzing the order’s constitutionality. Butler v. Alabama Judicial Inquiry Com’n, 802 So.2d 207 (Ala. 2001); see also Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 153 (1982). When “a State seeks to restrict directly [political expression], the First Amendment surely requires that the restriction be demonstrably supported by not only a legitimate interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression.” Brown, 456 U.S. at 53-54, 102 S.Ct. 1523. Freedom of speech or press is susceptible to only such restrictions as are necessary to prevent grave and immediate danger to interests which state may lawfully protect. Mills, supra.
The law is clear that the First Amendment not only prohibits censorship, but prohibits government conduct that inhibits free and general discussion of public matters. Ex parte Balogun, 516 So.2d 606 (Ala. 1987)(Overruled on other grounds). Further, the protection afforded by the First Amendment does not turn upon the truth, popularity or social value of the ideas and beliefs which are offered. Id. Requirements of the First Amendment are stringent and demanding and any regulatory scheme impinging upon such rights is assured of close scrutiny. General Corp. v. State ex rel. Sweeton, 320 So.2d 668 (Ala. 1975)(Per Almon with three Judges concurring, four Judges concurring in the result and one Judge concurring specially).

Judge Story, in his Work on the Constitution (5th Ed.) vol. 2, pars. 1886-1892, both
inclusive, fully discusses, with cited authority, the clause of the Constitution preserving the freedom of the press and free speech and concludes with this statement: “No one can doubt the importance, in a free government, of a right to canvass the acts of public men and the tendency of public measures, to censure boldly the conduct of rulers, and to scrutinize closely the policy and plans of the government. This is the great security of a free government. If we would preserve it, public opinion must be enlightened; political vigilance must be inculcated...”
According to the Supreme Court of Alabama, Chris’s constitutional liberty of speech implies the right to freely utter and publish whatever Chris may please, and to be protected against responsibility for so doing, except so far as such publications may be publicly offensive to include blasphemy, obscenity, or scandalous character, or may injuriously affect standing, reputation, or pecuniary interests of individuals by their falsehood and malice. Barton v. City of Bessemer, 173 So. 621 27 Ala App. 413 (1936)(Rev’d on other grounds).
D. The subject of Chris’ website is all matters of public record.
The speech which Dora seeks to restrain is the website, and advertisements for the website. The website contains an outline of the pleadings, transcripts, and trial court and appellate rulings in the custody lawsuits waged by Dora against Chris. The substance of the website is simply a recitation and explanation of matters that are public record.
E. Dora has not made any allegations that, even if they were true, would be sufficient enough to violate Chris’ First Amendment rights.
Dora makes no such claim in her Petition that Chris has published anything false, publicly offensive, or obscene. Further, Dora does not offer any compelling governmental interest to justify restricting Chris’s right to political expression. In fact, she does not make any allegation other than Chris’ political speech has caused the child to “be nervous, resistant to exercising visitation, and has subjected him to extreme embarrassment.” While Chris vehemently denies these accusations, even if these allegations were true, they are insufficient to overcome Chris’ First Amendment rights, as the following cases set forth below demonstrate.

The Supreme Court of Alabama recognized, in Doe v. Roe, 638 So.2d 826 (Ala. 1994) that the fact that a subject is already a matter of public record is an important factor when considering whether the court could enjoin a person from publishing those matters of public record in a different forum. In Doe, the adoptive father of children whose mother was murdered by their father sought an injunction against the publishing of a novel based on the murder. The trial court granted the injunction, and the author/publisher appealed. The dispositive question on appeal is whether the injunction violated Article I, § 4, of the Constitution of the State of Alabama. According to Article I, § 4, “no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”
The adoptive father in Doe contended that the distribution of the novel would intrude upon his children's privacy and that the children would suffer “irreparable mental and emotional injuries” if the novel were published and distributed. The trial court agreed and issued the injunction. The Doe appellate court disagreed and held that the injunction against the publication of the novel violated the author/publisher’s right to free speech.
Another similar case is found in Interest of Summerville, 190 Ill.App.3d 1072, 547
N.E.2d 513 (1989). In Summerville, a child was the subject of a custody dispute and the child’s name and face appeared on a television new report. The trial court then entered an order prohibiting the parties in a child custody case from communicating with the media. The Guardian Ad Litem of the child objected to the order as being violative of the first amendment, overbroad and vague. The Department of Children and Family Services (DCFS) contended that the order was “reasonable to prevent potential future harm and embarrassment to [the minor child who was the subject of the custody suit]...” The Summerville Court held that a finding of “possibilities,” even if present, was not sufficient to support a conclusion that the order was constitutionally valid. The Summerville Court held that the order prohibiting the parties from communicating with the media in the child custody case did violate the First Amendment rights of the parties, as there was no evidence that the conduct of the parties created a clear and present danger, or serious and imminent threat to the fairness and integrity of the judicial process.
Consider also the case of Meredith v. Meredith, -P.3d-, 2009 WL 387272 (Wash.App.Div 2). In this case, the trial court restrained the husband from “contacting any agency regarding [his wife’s] immigration status...” The husband appealed, arguing this order impermissibly interfered with his right to free speech and his right to petition the government for a redress of grievances. The appellate court agreed, and held that the family court’s order was an unconstitutional prior restraint on the husband’s federal First Amendment rights.
In the case at bar, Dora seeks to restrict Chris’ free speech rights via an order directing Chris not to transport his child in an automobile that has an advertisement for the website. She also seeks to restrict Chris’ free speech rights via an order directing Chris not to pass out handbills or leaflets advertising the website when the child is present. Finally, she seeks to restrict Chris’ free speech rights via an order directing Chris not to have a sign in his front yard that advertises the website.

None of these restrictions would be constitutional. Chris has a constitutional right not only to free public speech about his experience in the domestic relations court, but also to teach his son about his rights, how our form of government operates, and to demonstrate to him to be an active participant in the freedoms and processes granted to the citizens of the United States by the U.S. Constitution and the Constitution of the State of Alabama without interference by those who dislike the content of Chris’ speech, or Chris’ efforts to educate himself, his son and those in his community. As a result, Chris’ Motion to Dismiss is due to be granted on constitutional grounds.
Not only is Chris’ Motion to Dismiss due to be granted on constitutional grounds, but it is also due to be granted because Dora seeks to hold Chris in contempt for an order that cannot in any way be reasonably interpreted to enjoin Chris from speaking out about the previous trial judge or his experience in domestic relations court. In order to find a party in contempt of court for violating an order, the contempt petitioner must prove beyond a reasonable doubt that the party to be held in contempt was subject to a lawful order of reasonable specificity, that the party violated that order, and that the party’s violation of the order was wilful. Alabama Rules of Civil Procedure, Rule 70(A)(a)(2)(C)(ii).
Dora, however, cannot, and does not in her complaint, point to any order that specifically enjoins Chris from making statements of his opinion of the judiciary or the previous judge in this case. Dora cannot, and does not in her complaint, point to any order that specifically
enjoins Chris from using his child’s photograph when making statements of his opinion of the judiciary or the previous judge in this case.
Further, Dora does not make a claim in her Petition that Chris has made disparaging remarks about her in the presence of the child. Nevertheless, Dora asks that this Court find Chris in contempt of court for violating the orders that enjoins each party from making disparaging remarks about the other in the presence of the child.
Finally, Dora does not make a claim in her Petition that Chris has made his child his confidant. Nevertheless, she asks this Court to find Chris in contempt of court for violating the orders that the parents should not make the children confidants of a parent.
Because Dora seeks to hold Chris in contempt for making remarks about the judiciary and for including the child’s picture in flyers regarding his remarks about the judiciary, and because there is nothing in any court prohibiting Chris from doing so, this Court cannot, as a matter of law, find beyond a reasonable doubt that Chris willfully violated a lawful order of reasonable specificity.
The court orders that Dora seeks to hold Chris in contempt for allegedly violating are
unconstitutionally vague and overbroad. Dora, in effect, asks this Court to interpret the current custody order as an order prohibiting Chris from making statements of his opinion of the judiciary or the previous judge in this case. Such an interpretation is completely without merit, and in fact would result in an unconstitutional result. That is, the court order would be so vague as to leave Chris without knowledge of the nature of speech that is prohibited. Any order restricting speech must include clear guidelines regarding what is illegal so that there will be no “chilling” effect on exercise of free speech. Dowling v. Alabama State Bar, 539 So.2d 149 (Ala. 1988). Clearly, when a court order is issued, the acts or things proscribed should be specified in the order with such reasonable definiteness and certainty that a party bound by the order may readily know what he must refrain from doing without the matter being left to speculation and conjecture.
It would be impossible for the average, reasonable person to conclude that the standard
parenting provisions recited verbatim in paragraph 2 of Dora’s Motion to Hold Defendant in Contempt of Court would enjoin that person from publishing a website speaking out against a trial judge and describing his experience in domestic relations court. It would be impossible for the average reasonable person to conclude that those standard parenting provisions prohibited him from advertising that website at his home or on his vehicle. It would be impossible for the average reasonable person to conclude that he could not publish photographs of his child on his website or on his automobile. This court cannot find, as a matter of law, based upon the pleading before it, beyond a reasonable doubt that Chris was subject to a lawful order of reasonable specificity, that Chris violated that order, and that Chris’s violation of the order was wilful. For these reasons, Chris’ Motion to Dismiss is due to be granted.
This the ____ day of ________________, 2009.
Dinah P. Rhodes
Attorney for the Defendant
115 Manning Drive, Suite D-202
Huntsville, AL 35801
256-536-1676 ‏
I hereby certify that I have served a copy of the foregoing upon opposing counsel of record, William P. Burgess, by placing a copy of the same in his Courthouse Box on this the_______day of February, 2009.

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