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Judge Did Not Improperly Decry Respondent’s Contact With Third Party, C.A. Declares
By a MetNews Staff Writer
The Third District Court of Appeal has rejected the contention that a judge presiding over a civil harassment restraining order proceeding was out of line in observing that the respondent should not have communicated with a third party about the plaintiff.
Justice Stacy E. Boulware Eurie authored the unpublished opinion, filed Thursday. It affirms a three-year stay-away order that was obtained by petitioner Brook Ritter and imposed on respondent Jennifer Fairman.
Fairman had been married to Shane Fairman and had two children by him. Ritter also had a child by Shane Fairman.
Child custody litigation was in progress between Ritter and Andrew Fiack. Fairman contacted Fiack to provide information about Ritter.
In the course of the hearing on Ritter’s request for a restraining order, Butte Superior Court Judge Virginia Gingery decried that contact. She commented:
“Much of the evidence presented at the trial dates back to 2020 and 2021. However, the most recent incident as reported by Petitioner in her request filed in October of 2022 was an exchange between herself and Mr. Fiack about information being relayed by Respondent to Mr. Fiack regarding Mr. Fairman’s whereabouts. Respondent admits that she took it upon herself to reach out to Mr. Fiack and start discussing matters involving Petitioner with him. She had no previous relationship with Mr. Fiack and would have no reason to know him had she not been so concerned with Petitioner’s dealings with her ex. There is no legitimate basis for Respondent’s conduct vis-a-vis Petitioner and Mr. Fiack.”
Remark Draws Protest
In Jennifer Fairman’s opening brief on appeal, drafted by attorney Martin S. McHugh of the Chico firm of Howell & McHugh, exception was taken to Gingery’s reference to “Respondent’s conduct vis-a-vis Petitioner and Mr. Fiack.”
McHugh wrote:
“What conduct? Communicating with Mr. Fiack? This is NOT conduct that can warrant issuing a Restraining Order under CCP section 527.6. The restraining order issued does not preclude nor could it, from FAIRMAN to continue to communicate with Mr. Fiack. Who sought who, what prior relationship they may have had is irrelevant to the determination of the appropriateness of a restraining order. FAIRMAN and Mr. Fiack have a First Amendment Right to communicate AND Associate with each other.”
The lawyer added: “The privacy of personal association is protected by the First and Fourteenth Amendments of the United States Constitution.”
He contended that while the contact was irrelevant to the issues, it appeared to be perceived by Gingery as being of significance.
2005 Opinion
Boulware Eurie cited the Jan. 25, 2005 Third District opinion in Brekke v. Wills in which the appellant contended that his “First Amendment rights of freedom of speech and freedom of association, as well as his right to privacy” were violated by a restraining order. The order, imposed on a 15-year-old boy, was obtained by parents of a 16-year-old to whom the defendant/appellant had written profanity-laced letters urging improper conduct.
Then-Presiding Justice Arthur Scotland (now retired) wrote:
“Here, defendant’s speech was between purely private parties, about purely private parties, on matters of purely private interest…and the trial court properly considered defendant’s speech in determining whether to issue injunctive relief pursuant to Code of Civil Procedure section 527.6.”
He remarked:
“Defendant’s assertion that the no-contact order violates his right to freedom of association reflects a juvenile view of the First Amendment.
“We categorically reject the absurd suggestion that defendant’s freedom of association trumps a parent’s right to direct and control the activities of a minor child, including with whom the child may associate.”
Boulware Eurie’s Opinion
Boulware Eurie wrote that “[s]imilarly here,” the record indicates that Jennifer Fairman’s association with Fiack “is between purely private parties on matters of purely private interest.”
Disputing McHugh’s assertion that “the kingpin, for the court’s ruling seems to have been FAIRMAN’S interaction with Mr. Fiack,” Boulware Eurie said there is “nothing in the court’s ruling indicating that” Jennifer Fairman’s association with Fiack “was the more important consideration.”
The jurist declared forfeited two of appellant’s contentions: that the restraining order was not supported by substantial evidence—noting that her “statement of the case and facts is three sentences long” and insufficient—and that the order is overly broad which, Boulware Eurie said, was not raised below.
Chico attorney Sara Knowles, who represented Ritter, commented Friday:
“It’s unfortunate that Respondent (J.F.) elected to appeal. Such appeal lacked any merit—as is evidenced by the ruling.”
The case is B.R. v. J.F., C098636.
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