Underlying Facts

EH vs. KH is an unpublished 2020 Appellate Division opinion in which this office represented Edward (not his real name), the husband, against Erlina (not her real name), the wife. This was Edward’s appeal from the trial court’s entry of a Final Restraining Order against him, in which the trial court found Edward harassed Erlina when he mailed his divorce counterclaim to several managers at Erlina’s job, the wife of one of Erlina’s paramours, and Erlina’s father. The counterclaim contained graphic allegations about Erlina. The issue on appeal was whether the trial court correctly applied the law of protected expression to the NJ Prevention of Domestic Violence Act (“PDVA”). We urged the Appellate Division to find the trial court’s decision in error and dismiss the Final Restraining Order.

Edward did not dispute that he disseminated copies of the counterclaim anonymously to persons who had no role in the divorce litigation. He contended he was acting as a “whistleblower” and he did not have the requisite purpose to harass, per N.J.S.A. 2C:33-4. He further argued that the trial court’s ruling impinged upon his rights of free speech. He also argued the trial court erred in finding that an FRO was needed to prevent future domestic violence because there was no proof that he would commit physical violence against Erlina.

We recognized there was a constitutional issue in this case before the FRO hearing even began. We argued freedom of speech and expression to the trial court, but he dismissed these concerns and found Edward guilty of domestic violence based on Edward’s publication of his counterclaim to many people outside the ambit of divorce court.

Applicable Law

Expressive conduct is behavior designed to convey a message; its function as speech means that it has increasingly been protected by the first amendment. When courts enter restraining orders based on non-harassing speech and expression, they violate the first amendment. Two rough synonyms are symbolic speech — statements made through the use of symbols rather than words — and speech plus, which is behavior used by itself or in connection with language to communicate a message.

Edward contended to both the trial court and the Appellate Division that his mailing of the counterclaim did not constitute the predicate act of harassment. Specifically, Edward argued he did not do any of the acts prohibited by the harassment statute, namely he did not (1) publish anything to plaintiff; (2) make any communications to Erlina at inconvenient hours; (3) communicate with her in offensively coarse language; (4) subject her to striking, kicking, shoving, or other offensive touching, or threaten to do so; or (5) engage in any other course of alarming conduct or repeatedly committed acts with purpose to alarm or seriously annoy. He also argued, affirmatively, that his conduct was permissible free expression and not harassing of Erline.

To establish commission of a predicate act of domestic violence, Erlina was required to prove all the elements, including the requisite mental culpability, N.J.S.A. 2C:2-2(a), of at least one of the offenses enumerated in N.J.S.A. 2C:25-19(a). The PDVA is codified as a Chapter in Title 2C, the New Jersey Code of Criminal Justice (Code). The definition of the term “domestic violence” set forth in N.J.S.A. 2C:25-19(a) lists nineteen offenses that are defined elsewhere in the Code, violation of any of which, if proved based on a preponderance of the evidence, could constitute domestic violence. The PDVA incorporates by reference not just the name of these nineteen offenses but also their material elements. See N.J.S.A. 2C:1-14(h) (defining the term “element of an offense”).

In EH vs. KH, the Appellate Division agreed with us that the elements of a predicate act had to adhere not only to statutory factors, but also New Jersey appellate law interpreting them. This principle of incorporation by reference in N.J.S.A. 2C:25-19(a) applies whether the elements of a listed offense are written by the Legislature, as per usual, or are modified by the Supreme Court to conform an otherwise vague or overbroad statute to satisfy constitutional requirements.

We argued, and the Appellate Division agreed, that the principles of State v. Hoffman, 149 N.J. 564, 583 (1997) (narrowing the breadth of catchall language in N.J.S.A. 2C:33-4(a) to avoid constitutional infirmity), and more recently State v. Burkert, 231 N.J. 257 (2017), applied to this case.

Precedential criminal cases that construe the elements of a listed offense apply not only in criminal prosecutions themselves, but also when that offense is alleged to have been committed as a predicate act of domestic violence. See, e.g., Cesare v. Cesare, 154 N.J. 394, 404 (1998).

What Actually Happened?

The Appellate division reversed and remanded to the trial judge with instructions to address the problems cited.

Unfortunately for our client, the trial court had made explicit witness credibility findings, which were not disturbed on appeal. Specifically, the court found Erlina’s testimony was credible despite minor discrepancies exposed on cross examination. In stark contrast, the court found that Edward was “absolutely not credible,” and that his asserted reasons for mailing the counterclaim did not make sense. The court rejected, for example, Edward’s explanation that he distributed the counterclaim as a “truth seeker” or a “whistleblower”. The court found instead that he distributed the counterclaim “because he’s angry and he wanted to send a message to [] Erlina.”

The statute provides a person commits the offense of harassment “if, with purpose to harass another,” he or she:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other persons.

[N.J.S.A. 2C:33-4]

All the distinct variations of harassment share a common mental culpability state, that is, that the person acted “with purpose to harass another.” Thus, to find harassment, there must be proof that a defendant’s conscious object was to “harass [,]” that is, “‘annoy’; [sic] ‘torment’; [sic] ‘wear out’; [sic] and ‘exhaust.'” State v. Castagna, 387 N.J. Super. 598, 607 (App. Div. 2006) (quoting Webster’s II

New College Dictionary 504 (1995)); see also J.D. v. M.D.F., 207 N.J. 458, 487 (2011) (stating that, to find a party acted with purpose to harass, there must be “some evidence that the actor’s conscious object was to alarm or annoy; mere awareness that someone might be alarmed or annoyed is insufficient” (citing State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989))).

In this instance, the Appellate Division found substantial evidence in the record to support the trial court’s conclusion that an FRO was needed to protect Erlina from further acts of domestic violence. The trial court had an opportunity to personally observe the defendant as he testified and found that Edward “clearly has not gotten over the fact that his wife has cheated on him. It angers him.” The court concluded that “until [Edward] starts to get a better hold of his emotions[,] . . . there is a legitimate and reasonable fear of future acts of domestic violence.”

The Appellate Division further found there was a risk of recurrent harm to Erlina, based on the trial court’s findings of fact, which justified issuance of a FRO – if the trial court on remand could satisfy the Appellate Division’s stated concerns about first amendment rights and their intersection with the harassment predicate act of the PDVA. And on remand, the trial court so found, much to Edward’s distress and dismay.

CONCLUSION

In conclusion, while our firm fought a valiant two-year-plus battle for Edward and his constitutional rights to free speech and expression – and proved the trial court’s mistakes — the Appellate Division opinion became a roadmap for the trial court to review and correct its errors. At the intersection of free speech and domestic violence law, society won but Edward lost.

If you or your friends or loved ones have any questions about family law, domestic violence, or any related matters, please contact Kingston Law Group. We will listen to your facts, explain the law, and advise you of your legal options. We will help you maximize your legal and social outcomes. Call us today. You will be glad you did.