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State v. Smith

Court of Appeals of Kansas

September 27, 2019

State of Kansas, Appellee,
v.
Lisa A. Smith, Appellant.

         SYLLABUS BY THE COURT

         1. Appellate courts generally avoid making unnecessary constitutional decisions. Thus, when there is a valid alternative ground for relief, an appellate court need not reach a constitutional challenge.

         2. When the controlling facts are based on written or documentary evidence or stipulations, the appellate court has as good an opportunity to examine and consider the evidence as did the court below.

         3. The Fourth Amendment concept that persons may legitimately demand privacy in the curtilage of their homes from arbitrary interference by the government does not apply in determining whether a person made a statement publicly for purposes of a defamation claim.

         4. In an appeal from a criminal judgment that a person violated a protection from stalking order, an appellate court may determine the constitutionality of the underlying order.

         5. To prove defamation, the plaintiff must prove knowingly false and defamatory words that are communicated to someone else and that injure the reputation of the person defamed.

         6. Generally, a prior restraint restricts speech in advance based on content and carries a presumption of unconstitutionality.

         7. The purpose of our stalking statute is to protect innocent citizens from threatening conduct that subjects them to a reasonable fear of physical harm. The stalking statute expressly excludes constitutionally protected activity from its definition and does not reflect any State interest in preventing slander.

         8. Under the circumstances of this case, the protection from stalking order, as applied solely to speech which does not subject a person to a reasonable fear of physical harm, is an improper prior restraint of the appellant's constitutional right to freedom of speech.

          Appeal from Douglas District Court; Peggy C. Kittel, judge.

          Adam M. Hall, of Thompson Warner, P.A., of Lawrence, for appellant.

          Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Gardner, P.J., Pierron, J., and Burgess, S.J.

          GARDNER, J.

         Lisa A. Smith appeals the district court's decision finding that she violated a protection from stalking (PFS) order. Smith argues that the PFS order, as applied, is an unconstitutional prior restraint on her free-speech rights. In the alternative, Smith argues that insufficient evidence shows that she made a disparaging statement "in public, " as the PFS order prohibited, since she made the statement to her husband while standing on the doorstep to her home. We find that sufficient evidence shows Smith made the statement publicly. But we agree that the PFS order, as applied, is an unconstitutional prior restraint on her free-speech rights. As a result, we reverse her conviction and vacate her sentence.

         Factual and Procedural Background

         Smith lives across the street from Jonathan Perez. The two families apparently have a history of conflict which includes each making criminal allegations against the other. In 2016 or 2017, Smith accused Perez of sexual misconduct with Smith's child. In April 2017, both Smith and Perez received temporary orders of stalking against the other. After a trial in June 2017, the district court denied Smith a final PFS order against Perez but granted Perez a final PFS order against Smith. To get such a civil order, Perez had to prove by a preponderance of the evidence that Smith was stalking him. See K.S.A. 2018 Supp. 60-31a05(a); Elem v. Elem, No. 119, 774, 2019 WL 1746753, at *5-6 (Kan. App. 2019) (unpublished opinion). But our record on appeal does not include the record from that civil trial.

         The PFS order against Smith, in addition to the typical PFS prohibitions on conduct (following, harassing, telephoning, or contacting a named person), added the following special prohibition on speech which Smith challenges here:

"Defendant shall not make direct or indirect disparaging statements in public regarding plaintiff being a child molest[e]r. 'Public' includes social media postings. Any such postings made directly or indirectly by defendant shall be removed immediately. This Order authorizes social media entities to remove disparaging postings regarding Plaintiff."

         In November 2017, Smith, while entering her residence, turned toward her husband who was standing in their driveway and said, "come inside away from the pedophile." Smith made that statement loudly enough that Perez and his family heard it from their home across the street. Perez also captured the statement through a video and audio surveillance system installed outside his residence.

         After being criminally charged with violating the PFS order, Smith moved to dismiss the case. She argued that the PFS order was an unconstitutional, content-based restriction on her free-speech rights and that criminal prosecution under K.S.A. 2017 Supp. 21-5924 for violating the order was unconstitutional as applied to her. The State argued that Smith's speech was not protected by the First Amendment to the United States Constitution, but even if it were, the ...


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