Opinion
No. 2 CA-CV 2016-0198
12-18-2017
TIFFANY BREDFELDT AND PHILIP BREDFELDT, WIFE AND HUSBAND, Plaintiffs/Appellees, v. TODD GREENE, Defendant/Appellant.
COUNSEL Law Offices of Christopher L. Scileppi, PLLC, Tucson By Christopher L. Scileppi Counsel for Plaintiffs/Appellees Dean Brault, Pima County Legal Defender By Kristine Alger, Assistant Legal Defender, Tucson Counsel for Defendant/Appellant UCLA School of Law, Los Angeles, California First Amendment Amicus Brief Clinic By Eugene Volokh and Osborn Maledon, P.A., Phoenix By Eric M. Fraser Counsel for Amicus Curiae Electronic Frontier Foundation
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20131650
The Honorable Richard E. Gordon, Judge
AFFIRMED
COUNSEL Law Offices of Christopher L. Scileppi, PLLC, Tucson
By Christopher L. Scileppi
Counsel for Plaintiffs/Appellees Dean Brault, Pima County Legal Defender
By Kristine Alger, Assistant Legal Defender, Tucson
Counsel for Defendant/Appellant UCLA School of Law, Los Angeles, California
First Amendment Amicus Brief Clinic
By Eugene Volokh and Osborn Maledon, P.A., Phoenix
By Eric M. Fraser
Counsel for Amicus Curiae Electronic Frontier Foundation
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ESPINOSA, Judge:
¶1 Todd Greene appeals from the trial court's denial of his motion to dissolve a permanent injunction he alleged to be an unconstitutional infringement of his First Amendment rights. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 Tiffany Bredfeldt met Greene in 2005 while boarding her horse at a facility owned by Greene's mother. Although the nature of their relationship is disputed, it is uncontested that it soured when Tiffany perceived Greene as behaving in a manner she described as "sexual toward [her]." She removed her horse from the facility, and several months later obtained an injunction against harassment by Greene from the Pima County Justice Court after alleging "increasingly threatening and aggressive" behavior. Greene sought to overturn the injunction through several avenues, but was unsuccessful.
¶3 The temporary injunction against harassment expired one year after it was issued, at which point Greene began contacting the Bredfeldts' family members, employers, and colleagues, and made allegedly defamatory remarks on his Internet blog. In March 2013, Tiffany and her husband filed a "complaint for injunctive relief (non-classified civil)" with the Pima County Superior Court, alleging Greene had "set [out] on a[n] intentional course of conduct since 2006 to constantly defame Plaintiff Tiffany and cause her emotional distress." The complaint requested that Greene be enjoined from "communicat[ing] to or with anyone regarding anything involving Plaintiffs" and that he "permanently remove his website and never start another one." After an evidentiary hearing, the trial court signed a minute entry granting a preliminary injunction. In September, the court found Greene to be in compliance with its orders but sua sponte determined the injunction "should remain as a permanent injunction for future conduct" and "close[d]" the matter. Greene's objection was overruled and he then filed a timely appeal, but abandoned it. The September 2013 permanent injunction thus became a final judgment of the court.
¶4 In March 2016, the Bredfeldts filed a petition for an order to show cause in which they alleged Greene "ha[d] continuously and contemptuously violated" the 2013 injunction order by, among other things, "continuing to publish on the internet items that make reference to Plaintiffs." Because "jail time [was] requested," Greene was appointed an attorney, who subsequently filed a motion to dissolve the injunction, alleging it was overbroad and thus violated his free speech rights under the First Amendment. At a joint hearing in July 2016 on both the motion to dissolve and the petition for order to show cause, the trial court granted Greene's oral motion to stay the contempt proceedings pending resolution of the motion to dissolve. After additional briefing, the court denied Greene's motion to dissolve, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b).
Discussion
¶5 Greene first argues the trial court erred "in refusing to dissolve the permanent injunction under its authority in equity and under the First Amendment." Specifically, he contends the injunction contains provisions that are "overbroad" and "facially invalid," a contention the Bredfeldts do not convincingly refute. Although we review alleged constitutional violations de novo, Nash v. Nash, 232 Ariz. 473, ¶ 31 (App. 2013), the issue before us is not whether the injunction is constitutionally permissible, but whether the trial court properly refused to modify or dissolve it.
At least one provision of the injunction would appear clearly unconstitutional, ordering that "[t]he defendant . . . immediately cease and desist all future publications on his website or otherwise." The Bredfeldts recognized a potential overbreadth problem at the July 2016 evidentiary hearing, an issue they have not specifically addressed in this appeal.
¶6 As an initial matter, we note that Greene brought his motion to dissolve pursuant to Rule 65(c), Ariz. R. Civ. P. As the trial court correctly observed, that rule "explicitly applies to temporary injunctions, not permanent injunctions." Because Greene sought relief from a final order he alleged to be facially overbroad and inequitable, we analyze his motion as one filed pursuant to Rule 60(b)(5), Ariz. R. Civ. P. And because the federal rule is identical to the state rule, see Rule 60(b)(5), Fed. R. Civ. P., we give "great weight" to federal court interpretations of this rule, Estate of Page v. Litzenburg, 177 Ariz. 84, 93 (App. 1993).
Rule 60(b)(5) allows a court to "relieve a party or its legal representative from a final judgment, order, or proceeding [when] . . . applying it prospectively is no longer equitable."
¶7 "An injunction is an equitable remedy which allows the court to structure the remedy so as to promote equity between the parties." Ahwatukee Custom Estates Mgmt. Ass'n v. Turner, 196 Ariz. 631, ¶ 9 (App. 2000), quoting Scholten v. Blackhawk Partners, 184 Ariz. 326, supp. op., 184 Ariz. 331, 331 (App. 1995). "[A] party is always entitled to move to modify an equitable decree," Brown v. Plata, 563 U.S. 493, 561 (2011) (Scalia, J., dissenting), and because the power of a court to enforce a permanent injunction "continues for all time[, a]s a correlative, there must also exist the power to . . . modify or vacate" inequitable injunctions, Gillespie Land & Irrigation Co. v. Narramore, 93 Ariz. 67, 71-72 (1963), quoting Lowe v. Prospect Hill Cemetery Ass'n, 106 N.W. 429, 431 (Neb. 1905). Under the doctrine of res judicata, however, "an existing final judgment rendered upon the merits . . . by a court of competent jurisdiction is conclusive as to every point decided and as to every point which could have been raised by the record." Di Orio v. City of Scottsdale, 2 Ariz. App. 329, 330 (1965). A party seeking modification or dissolution of a final permanent injunction, therefore, bears the burden of establishing a significant change in facts or law warranting revising or dissolving the injunction. See Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000). And a party seeking relief under Rule 60(b)(5) must make a motion under that rule "within a reasonable time." Ariz. R. Civ. P. 60(c)(1).
¶8 The trial court concluded it "possess[ed] some equitable authority to prospectively modify an otherwise permanent injunction," citing State ex rel. Corbin v. Portland Cement Ass'n, 142 Ariz. 421, 425 (App. 1984). In that case, the state had been enjoined from pursuing certain claims in a parallel action in federal court, and the state court's dismissal of the state proceeding was conditioned upon the state's amendment of the federal complaint within thirty days. Corbin, 142 Ariz. at 423. The state moved to amend the complaint three days late, but the state court retroactively extended the deadline to bring the state into compliance. Id. at 424. On appeal, this court rejected the appellant's argument that the court lacked "legal authority to modify its final judgment." Id. at 424, 426. Rather, we noted that the trial court's dismissal order contained provisions "framed as mandatory injunctions," which "were in large part to be performed in the future," and because "[a]n injunction is a decree in equity," it was "'subject always to adaptation as events may shape the need.'" Id. at 425, quoting United States v. Swift & Co., 286 U.S. 106, 114 (1931).
¶9 In noting the inherent jurisdiction of a trial court to enforce and modify a continuing decree, we quoted Gillespie, 93 Ariz. at 71:
There is no question that while a decree of a court of equity is res judicata as to the circumstances which existed at the time of the making of the decree, a court of original jurisdiction has inherent power to enforce, and when deemed necessary, to modify a decree as to its prospective application and to relieve a litigant of the effect of such a decree, where, because of subsequent changed circumstances, its application is no longer equitable.Corbin, 142 Ariz. at 425. In Gillespie, the appellants contended equity required dissolution of a continuing decree that required them to convey water from the Gila River to downstream users through a canal on their property. 93 Ariz. at 69-70. Specifically, they alleged a change in circumstances had rendered the Gila River water "toxic," resulting in contamination of groundwater conveyed to their fields through the common canal. Id. However, there was conflicting evidence on this point, and the trial court determined the appellants had not sustained their burden of showing ongoing damage by the allegedly toxic water. Id. at 72-73. In upholding that ruling, our supreme court stated that a "court does have jurisdiction in the event it deems some action is necessary in the light of all the facts and circumstances existing at the time of the filing of the petition for modification." Id. at 72. The court noted, however, there must be "clear" evidence of changed circumstances before equitable decrees are modified or dissolved. Id.
¶10 Federal courts have imposed the same requirement. In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992), the United States Supreme Court expressly held that "a party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree." Upon a finding of changed circumstances, the Rufo court observed that modification may be appropriate when changed factual conditions make compliance more onerous, when a decree proves unworkable because of unforeseen obstacles, when enforcement would be detrimental to the public interest, or if compliance becomes legally impermissible. Id. at 384, 388. Although Rufo arose in the context of institutional reform litigation, id. at 392-93, federal courts have applied its "flexible standard," id. at 393, to injunctions beyond that limited scope. See S.E.C. v. Coldicutt, 258 F.3d 939, 942 (9th Cir. 2001) (stating that the Rufo standard applies to all Rule 60(b)(5) petitions in equity); Bldg. & Constr. Trades Council of Phila. & Vicinity, AFL-CIO v. N.L.R.B., 64 F.3d 880, 886-87 (3d Cir. 1995) (expressly rejecting argument that Rufo should be limited to "affirmative provisions of institutional reform consent decrees").
¶11 As noted above, the trial court here concluded it was required to find "changed circumstances or exigencies" that would "make ongoing enforcement of the 2013 injunction inequitable or unfair" before it could dissolve or modify the injunction. We recognize that requiring such a finding necessarily places in direct conflict two compelling judicial principles: the respect for the finality of judgments and the correction of legal error.
¶12 Greene suggests that our duty to correct legal error trumps any consideration of stability inherent in final judgments, arguing "public policy and case law dictate that a defendant be afforded relief from an unjust judgment, particularly one that so clearly offends the First Amendment." He does not, however, identify any authority for the proposition that a court is authorized to modify or vacate a permanent injunction simply because of underlying legal error. Indeed, our research has revealed only contrary authority. See, e.g., Miranda v. Pacheco Entm't Prod. Enters., Inc., 220 So. 3d 523, 527-28 (Fla. Dist. Ct. App. 2017) (acknowledging legal error, but affirming dismissal because of lack of changed circumstances); cf. Bldg. & Constr. Trades Council, 64 F.3d at 888 (cautioning that interest in finality of judgments "should not be either deprecated or ignored").
¶13 Regarding changed circumstances, at the most recent evidentiary hearing, Greene asserted that the situation had changed because the Bredfeldts were "attempting to enforce the injunction in a way that was never contemplated." The trial court rejected this claim, noting that a final and permanent injunction could not be collaterally challenged "simply by flouting its requirements and inviting a contempt proceeding." On appeal, Greene expands upon his assertion of changed circumstances, arguing he has engaged in "primarily pure speech" protected by the First Amendment, the injunction is "unworkable" as written, and its continued enforcement is "detrimental to the public interest." But these arguments are raised for the first time on appeal, and are therefore waived. See In re MH 2008-002659, 224 Ariz. 25, ¶¶ 9-10 (App. 2010).
¶14 Moreover, even assuming Greene's new arguments were not waived, it is unclear what, if anything, has actually changed in this case. Even if we agreed the injunction is "unworkable" in its present form, that would have been true from the time it was issued, and it remains a final judgment. We do not, however, suggest that Greene could never meet his burden of providing clear evidence of changed factual or legal circumstances at some point under Rule 60(b)(5) or any other provision of that rule. We simply conclude that the trial court did not err in rejecting Greene's cursory allegations of changed circumstances.
¶15 Finally, we note that Greene was provided multiple opportunities to litigate the constitutionality of the injunction; he could have challenged the preliminary injunction, both in the trial court and on appeal, and he could have challenged it again when it became permanent. Greene did not avail himself of any of these opportunities, and the permanent injunction became a final judgment. Accordingly, we must treat it as such.
We also note that nothing in this decision should be construed as preventing the trial court from considering whether particular speech sought to be sanctioned is constitutionally protected. Cf. Shelley v. Kraemer, 334 U.S. 1, 20 (1948) (judicial enforcement of racially restrictive covenants would violate Fourteenth Amendment). --------
Disposition
¶16 Because Greene has not met his burden of establishing the trial court erred in denying his motion to dissolve the permanent injunction entered against him, the court's ruling is affirmed.