Friday, March 27, 2020
Court of Appeal:
Total Ban on Contacting Marine Corps Was Invalid, Order Must Be Pared
Opinion Declares Domestic Violence Restraining Order Cannot Prohibit Any Communique to Plaintiff’s Employer, Only Those Pertaining to Him, Wife
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has invalidated a portion of a domestic violence restraining order that, in essence, directed a woman not to “tell it to the Marines.”
A proviso that defendant Lih Bin Shih direct no communication to the Marine Corps went too far in restricting her speech, Acting Presiding Justice Patricia Benke said in an opinion filed Wednesday and not certified for publication.
San Diego Superior Court Judge Richard S. Whitney found that Shih had harassed his condominium neighbors Nathan and Julie Parnell through a barrage of derogatory emails about them sent to the homeowners’ association and its members, in an effort to have them evicted, to the Marine Corps, which is the husband’s employer, and to the Parnells. Whitney issued a three-year order requiring that Shih not contact the Parnells or otherwise harass them, stay five yards from them and their son and 100 yards from their dog, and make no contact with the Marine Corps.
“The court implicitly found, and we affirm, that there was no legitimate purpose for Shih’s communications to the Marine Corps about Nathan and restrained her from all communications with the Marine Corps. A restraint that implicates the First Amendment must be narrowly tailored….A restraining order’s infringement of a respondent’s speech should be no broader or more restrictive than is necessary to prevent the respondent’s harassment of a petitioner.”
She went on to say:
“The Marine Corps is a large and public entity that engages in many activities beyond employing Nathan. Shih could be aggrieved by actions other than its employment of Nathan. The order should be modified so that Shih continues to have the opportunity to complain to the Marine Corps about any topic other than the Parnells.”
No Legitimate Purpose
Benke said the First Amendment is not offended by barring expressions that are unlawful; and declared that Shih’s “actions were without legitimate purpose” and “as a whole were legally sufficient to constitute harassment.”
Shih complained Whitney made his decision without reviewing the emails she had sent because copies were produced at the start of the 45-minute hearing, and the judge made his ruling at the end. Benke responded:
“[T]he court had time to peruse the exhibits while listening to the testimony of the parties. The nature of the e-mails is evident upon a quick review. Insulting and derogatory comments are frequent and noticeable.”
The case is Parnell v. Shih, D074805.
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