"Margaret has been stalking these people for a decade and has ignored previous orders to cease and desist. She has expressed no remorse and exhibits no inclination to discontinue her dangerous fixation on the people she torments. Banishment from Walworth County was proper because it may finally keep the tormentor at bay."
Judge Richard S. Brown Wisconsin Court of Appeals
A court can banish a person from the county as a sanction for violating a no-contact order, the Wisconsin Court of Appeals held on Jan. 22.
In 1991, Pamela S. Predick and Mar-garet O’Connor became neighbors and acquaintances. At some point, Margaret began calling and harassing Pamela, her family, and many of her friends. On at least one occasion, Margaret approached and pushed her in front of one of her children. As a result, a two-year restraining order was issued against Margaret in 1994.
In 1995, while Pamela was jogging, Margaret forced her off the road by driving towards her at a high rate of speed. Margaret then slammed on the brakes, exited the vehicle and reached into the rear of the car. Pamela had to run away in fear.
In 1997, after the expiration of the first restraining order, Pamela and her husband George commenced another action against Margaret, seeking a second injunction. An injunction was issued pursuant to stipulation.
Later in 1997, the Predicks filed a complaint alleging defamation and intentional infliction of emotional distress, and asserting a claim for punitive damages. The complaint alleged that Margaret had continued to harass them by both telephoning and
threatening them, their friends, their family and their co-workers during all hours of the day and night.
The parties resolved the dispute by entering into a stipulation and order imposing a permanent injunction on both parties. The resolution further required Margaret to pay the Predicks $4,000 and barred her from, among other things, contacting, harassing or interfering with the Predicks, members of their family, medical providers, utility companies, and co-workers.
The agreement was to last for the duration of Margaret’s lifetime and provided that if she violated the agreement, the court could impose a fine of up to $1,000 and imprisonment not exceeding 90 days.
In 2000, the Predicks alleged that Mar-garet had not complied with the stipulation, and in August 2001, the court found Margaret in contempt. The court ordered Margaret to serve 90 days in jail, but gave her the opportunity to purge the contempt by paying $2,000 to the Predicks, having no future contact with them, complying with all prior court orders, and not calling anyone or mentioning the Predicks’ names to anyone other than her counsel. The court then added penalties for noncompliance.
In October 2001, the Predicks filed an order to show cause, alleging that Mar-garet was in contempt of the order. After a hearing, the court found that Margaret had violated the order by trying to drive Pamela’s business partner, Tina M. Busch, off the road, and by calling Pamela’s attorney 141 times for illegitimate purposes. Tina then also sought a harassment injunction against Margaret.
Margaret failed to appear for the hearing, and the court entered default judgment against her, granting an injunction prohibiting her from entering Walworth County, except for court appearances.
The court subsequently denied a motion to reconsider by Margaret, and Margaret appealed. The court of appeals affirmed the injunction in an opinion by Judge Richard S. Brown and joined by Judge Neal Nettesheim. Judge Daniel P. Anderson wrote a concurring opinion.
"Get Out of Dodge"
The court began by acknowledging the unusual nature of the order, stating, "At first blush, an order banishing a person from a county seems like it was taken from the script of some old Grade-B cowboy movie where the sheriff tells the bad guy to get out of Dodge.’ The knee-jerk reaction is that this kind of order is arbitrary at the very least and an invasion of a person’s constitutional right to travel at the most. When applied to the facts in these two harassment actions, however, the orders make a lot of sense."
Detailing those facts, and considering the propriety of the court, the court continued, "Margaret O’Connor twice used her automobile as a dangerous weapon, once running Tina M. Busch off the road while Tina
was driving both her daughter and Pamela and George Predick’s daughter to soccer practice, and once attempting to side swipe’ Pamela while Pamela was jogging. Margaret has been stalking these people for a decade and has ignored previous orders to cease and desist from her behavior. She has expressed no re-morse and exhibits no inclination to discontinue her dangerous fixation on the people she torments. The trial court determined that because of O’Connor’s past utter disregard for less intrusive orders and because of her use of a vehicle as a dangerous weapon, O’Connor’s victims needed a zone of protection.’ We hold that banishment from Walworth county was a proper exercise of discretion because it may finally keep the tormentor at bay. We affirm."
The court reviewed a number of cases from other jurisdictions, some holding that particular banishments were unconstitutional, and others holding them appropriate.
The court found that even in those jurisdictions where courts have held banishment impermissible, many have been subsequently modified.
What the court held
Case: Pamela S. & George Predick v. Margaret O’Connor, No. 02-0503; Tina M. Busch v. Margaret O’Connor, No. 02-0504.
Issue: Can a court order that a party be banished from a county as a sanction for contempt of a harassment injunction?
Holding: Yes. Where the party’s conduct is egregious, previous orders have been ineffective, and the geographical scope is reasonably tailored, a banishment order is permissible.
Counsel: Micabil Diaz-Martinez, Milwaukee; Ramond D. Jamieson, Milwaukee; Seth P.
In one instance, although a published California Court of Appeals case held that banishment was a prohibited condition of probation, a subsequent unpublished case upheld an order imposing a similar condition.
The Minnesota Supreme Court also once held that banishment is impermissible, but has since held that banishment from a city was not presumptively invalid.
Turning to Wisconsin law, the court found a case cited by neither party, State v. Nienhardt, 196 Wis.2d 161, 537 N.W.2d 123 (Ct.App.1995), in which the court of appeals upheld a condition of probation that banished a stalker from entering the city of Cedarburg during the term of her probation.
Accordingly, the court concluded that banishment is not a per se constitutional violation, but that each case must be analyzed on its own facts to determine whether the geographic restriction is narrowly drawn.
Here, the court found that facts sufficiently egregious to warrant banishment, stating, "we have an individual who has twice used a vehicle as a dangerous weapon in Walworth county and who has repeatedly demonstrated that a standard, more narrowly tailored, order will not deter her from harassing and endangering the lives of three innocent victims and their families, all of whom live in the county."
The court added that Margaret does not even live or work in Walworth County, but frequently rents cars and drives around there. In addition, the court found Margaret has an "absolute fixation on Tina and Pamela and an unwillingness to accept any possibility other than that she has been wronged and has a right to follow, threaten, harass and endanger these two women and their families. … Hence, Margaret poses a constant and dangerous threat any time she is present in the county."
Turning to the geographical scope of the order, the court concluded, "An area smaller than the county would provide her with too many opportunities to meet up with her victims, who, as we have noted, live and work in that area. Further, in the event that she does violate the orders and enter Walworth county, relying on the county’s boundaries will give area law enforcement the opportunity to apprehend her before she is able to threaten or, worse, seriously injure Tina, Pamela, George and other members of their families. Thus, the injunction and purge condition are properly tailored to prohibit any future harassment and do not unduly impinge on Margaret’s constitutionally protected activities."
Accordingly, the court affirmed the orders banishing Margaret from Walworth County.
Judge Anderson wrote separately, "to make clear that both Margaret’s dangerous behavior and the need to protect victims’ constitutional rights provide grounds for the order of banishment."
After citing extensively to studies and law review articles on the dangerousness of stalkers, Anderson wrote, "Margaret fails to acknowledge that the victims also have a constitutional right to travel and that right includes the right to move freely about the sidewalks and streets of the community. When private citizens have competing constitutional rights, it is the duty of the court to achieve a balance between the exercise of those rights, vis-a-vis each individual asserting the constitutional right and the citizenry as a whole."
Anderson also concluded that Margaret had violated the victims’ constitutional right to privacy "the right to be left alone," citing a Washington State case upholding the constitutionality of an anti-stalking law, State v. Lee, 957 P.2d 741 (Wash. 1998).
Quoting that case at length, Anderson repeated, "The United States Supreme Court has recognized the right of privacy’ may be created by specific constitutional guaranties although the right of privacy’ does not exist in any specific provision of the United States Constitution. … Personal rights found in the guaranty of privacy are fundamental to or implicit in the concept of ordered liberty. If the right of privacy offers any protection, that protection must include the right to be left alone."
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David Ziemer can be reached by email.