FILED. TON! HELLON CLERK, SUPERIOR COURT 21/2016 22717 PM ARIZONA SUPERIOR COURT, PIMA COUNTY HON. SARAH R SIMMONS CASENO. — €20161109 DATE: April 21, 2016 CODY E. WHITAKER Plaintift ws, ROY G. WARDEN . Defendant UNDER ADVISEMENT RULING Onder t Show Cause — Injunction Against Harassment Order This Court heard argument with regard to PlaintifY Cody E. Whitaker's Notice of Plaintiff's First Amendment to Notice of Contempt & Summaries of Deféndant’s Harassing Statements on April 14, 2016. Mr. Whitaker alleges Deféndant Roy G. Warden violated this Court’s March 7, 2016 Injunction Against Harassment Order. Mr. Warden contested this allegation at the April 14 Hearing and submitted his Motion to Dismiss as to the underlying Injunction Against Harassment Order. Mr, Warden's Motion to Dismiss the underlying Injunction Against Harassment is not appropriate Pursuant to the Arizona Rules of Protective Order Procedure, Rule 41, “a plaintiff’ may request the dismissal of a protective order at any time during the term of the order.” (emphasis supplied). There is no provision in the rules for the Defendant to do so. Rather, the Defendant may request a hearing, pursuant to Rule 38, Ariz. R. Protect. Order P. Mr. Warden has done so, and that hearing is pending, Mr. Whitaker obtained the original injunction based on a series of comments posted by Mr. Warden on. Facebook. Mr. Whitaker considered the comments harassing, and, in issuing the Injunction Against Harassment ‘on March 7, 2016, Judge Catherine Woods agreed. Judge Woods ordered Mr. Warden to have no contact with Mr. Whitaker, except through attomeys, legal process, and court hearings and ordered Mr, Warden to maintain adistance of at kast $00 feet from Mr. Whitaker and not to speak to or harass him if they both were at a VA facility Under A.RS. §12-1809(B), evidence of harassment can be harassment by electronic contact or communication, and harassment means “a series of acts over any period of time that is directed at a speci Mary Mieler/ Judicial Administrative AssistantUNDER ADVISEMENT RULING Page 2 Date: April21, 2016 Case No.:_€20161109 person”. Thus, Mr. Whitaker's complaints were the proper subject of an Injunction Against Harassment, Mr. Warden argued at the April 14 hearing that all of his comments to and about Mr. Whitaker were protected fee speech because they were all on political blogs or other politically oriented sites. Mr. Warden cites the case of LaFaro v. Cahill, 203 Ariz. 482, 56 P. 3d 56 (2002) in support of his position, Cahill involved face to face conversation between PlaintifT and Defendant when Phintiff was collecting signatures for a recall petition, “bigot”. The Court of Appeals According to Phantiff and another witness, Defendant at least called Plaintit held that the one statement was not enough to constitute harassment. The Court of Appeals, however, also discussed the constitutional issues arising ffom this injunction against harassment. In its discussion of the constitutional issues involved, the Cahill court found that the prohibition of the tral court on any and all in person” contact between Plaintiff and Defendant was overly broad and unconstitutionally restricted Deféndant’s freedom of speech. The Court, however, declined t0 declare A.RS. §12-1809 unconstitutional in all its applications, saying only that the definition of harassment under that statue excludes pure political speech. In the case at hand, the Court can only find one instance where Mr. Warden may have violated the Mr. Whitaker. In an April 2 Facebook post (after the Injunction Against Harassment by direct contact wit injunction was issued), a post begins with “Hey Cody Whitaker”, This post was written with the intent to, and was successfill in, making contact with Cody Whitaker, The remaining Facebook posts inchided in Mr. Whitaker's request for relief do not violite the March 7 Order because they do not constitute an initation of contact. ‘The Court cannot say whether Mr. Warden’s posts are protected by the First Amendment to the United States Constitution or otherwise because the Court does not have sufficient infirmation about the nature and context of the communications to know whether they are protected free speech. However, since Mr, Warden has requested a hearing on the Injunction Against Harassment, itis likely that these issues will be explored at that time. Mr. Warden has requested a continuance of the April 26, 2016 hearing in order to prepare for i, Under Ariz, R. Protect. Order P. 38(b)(2), a hearing requested by a Defendant must be held within 10 court business days unless the Court finds good cause to continue the hearing, Based upon Mr. Warden's request, the Court does find good cause, and the hearing is continued until Wednesday, May 25 at 1:30 p.m, for 3 hours. Mr. Warden abo requested that the Court subpoena certain witnesses and documents for the hearing. That & not the Mary Mieker/ls Judicial Administrative AssistantUNDER ADVISEMENT RULING Page 3 Date: April 21, 2016 Case No. C20161109 Court's duty. Rather, if a party wishes to subpoena ether witnesses or documents for trial, the party must undertake to do so. ‘The Injunction Against Harassment sued by Judge Woods remains in effect as a valid Court Order pending further ruling of this Court following hearing. (AD: S4sfeebe-ebdT-43568151-S7HDISCICE5) ce: Cody E. Whitaker Roy G. Warden Clerk of Court - Under Advisement Clerk Mary Miers Judicial Administrative Assistant