Best v. Marino
2017 NMCA 73
| N.M. Ct. App. | 2017Background
- Steven Best, a New Mexico resident and UTEP professor, obtained an FVPA Order of Protection (Oct 2012) after a special commissioner found Camille Marino a "stalker" based on emails, calls, voice messages, and online postings (website/Facebook). Marino did not object to the special commissioner’s findings.
- The Order restrained Marino from "committing further acts of abuse" (defined to include "severe emotional distress") and from "contact" with Best, specifically including social media.
- Best later filed an affidavit alleging Marino continued to harass him via social media (posts including photos depicting Best using drugs and pejorative labels). The special commissioner found violations and certified contempt; the district court (de novo) found Marino in indirect criminal contempt and sentenced her to 179 days in jail.
- The district court also broadly prohibited Marino from using the Internet or social media except to contact counsel or an accountant. Marino appealed, challenging the validity of the Order, due process/notice, First Amendment protections, and the Internet ban.
- The Court of Appeals (Wechsler, J.) affirmed the contempt conviction (finding sufficient evidence that Marino’s online conduct caused Best severe emotional distress) but reversed the near-total Internet restriction as an overbroad prior restraint violating the First Amendment.
Issues
| Issue | Plaintiff's Argument (Best) | Defendant's Argument (Marino) | Held |
|---|---|---|---|
| 1. Collateral attack on validity of Order of Protection | Best: Marino cannot attack the underlying Order after contempt; collateral bar applies. | Marino: Order invalid because stalking elements were not alleged/proved. | Court: Collateral bar applies; Marino’s merits attack on the Order is precluded because she failed to object earlier. |
| 2. Subject-matter jurisdiction | Best: District court had jurisdiction under FVPA where protected person lives. | Marino: District court lacked subject-matter jurisdiction. | Court: Jurisdiction proper under §40-13-3(A); Marino conceded the prerequisites. |
| 3. First Amendment / notice re: what conduct violates order | Best: Order properly restrained Marino (already found a stalker); social-media posts could be enjoined where they cause severe emotional distress. | Marino: Online speech is protected; order lacked notice that online posts would be "contact" or violate the Order. | Court: Restraints on a restrained person are permissible; due process satisfied because Part 4 (prohibiting "abuse" causing "severe emotional distress") gave reasonable notice that online conduct causing such distress violated the Order. |
| 4. Overbreadth / prior restraint of Internet ban | Best: Maintain restriction or defer to district court remedies. | Marino: Near-total Internet ban is overbroad and an unconstitutional prior restraint on speech. | Court: Internet ban is an unconstitutional, not least-restrictive prior restraint; reversed the restriction while affirming incarceration for contempt. |
Key Cases Cited
- State v. Bailey, 118 N.M. 466, 882 P.2d 57 (N.M. Ct. App. 1994) (collateral bar rule precludes challenging an injunction by disobeying it)
- Kimbrell v. Kimbrell, 306 P.3d 495 (N.M. Ct. App. 2013) (district court may not order removal of online materials without addressing whether speech is unprotected)
- State v. Cherryhomes, 114 N.M. 495, 840 P.2d 1261 (N.M. Ct. App. 1992) (due process requires an order sufficiently clear to give notice for contempt)
- Trujillo v. N. Rio Arriba Elec. Coop., Inc., 131 N.M. 607, 41 P.3d 333 (N.M. 2002) (definition of "severe emotional distress" in tort context: incapacity to cope)
- Reno v. ACLU, 521 U.S. 844 (U.S. 1997) (Internet described as a modern public forum; government prior restraints on speech subject to strict scrutiny)