SUPREME COURT
2019 TERM
Case No. 2019-0306
CHRISTINA DEPAMPHILIS
Plaintiff-Appellee
vs.
PAUL MARAVELIAS
Defendant-Appellant
RULE 7
MANDATORY APPEAL OF STALKING FINAL ORDER OF PROTECTION
From
10th Circuit Court – District Division – Derry
BRIEF
OF DEFENDANT
Submitted
by Defendant, Paul J. Maravelias ORAL ARGUMENT
34 Mockingbird Hill Rd
Windham, NH 03087
paul@paulmarv.com
603-475-3305
REQUESTED
E. The
Trial Court’s Anomalous Dilatory Practices Prejudiced Defendant
B. As-Applied
Violation of Fundamental Right To Free Speech And Public Self-Expression
C. As-Applied
Violation of Constitutional Right To Equal Protection Under The Law
A. Defendant’s
Trial Court Briefings Hereon Suffice For The Instant Appellate Litigation
B. RSA
633:3-a, III-c. Violates Equal Protection Rights On Its Face
V. THE
TRIAL COURT UNSUSTAINABLY EXERCISED ITS DISCRETION.
State Cases
Appeal of Morin, 140 N.H. 515, 520, 669 A.2d 207, 211 (1995)................ 36
Economides v. Economides, 116 N.H. 191 (1976)........................................ 46
Fillmore v. Fillmore, 147 N.H. 283, 284, 786 A.2d 849 (2001).................. 46
Fisher v. Minichiello, 155 N.H. 188, 921 A.2d
385 (2007)................... 43,
46
In re Aldrich, 156 N.H. 33 (2007).................................................................... 33
Kiesman v. Middleton, 156 N.H. 479, 937 A.2d 917 (2007)....................... 46
MacPherson v. Weiner, 158 N.H. 6, 10 (2008)....................................... 39,
45
McCarthy v. Wheeler, 152 N.H. 643, 645 (2005).......................................... 22
Miller v. Blackden, 154 N.H. 448, 453-54 (2006)......................................... 28
Morancy v. Morancy, 134 N.H. 493 (1991)................................................... 28
N.H. Dep’t of Envtl. Servs. v. Mottolo, 155 N.H. 57, 917 A.2d
1277 (2007) 24
Nash v. Keene Pub. Corp., 127 N.H. 214 (1985)........................................... 44
O’Brien v. Borowski, 461 Mass. 415, 429 (2012)......................................... 52
Opinion of the Justices, 137 N.H. 260, 268 (1993).......................... 22, 54, 55
Petition of Harvey, 108 N.H. 196 A.2d 757 (1967)....................................... 22
Pickering v. Frink, 123 N.H. 326, 329, 461 A.2d 117, 119 (1983)............. 44
Rios v. Fergusan, 51 Conn. Supp. 212, 978 A.2d 592 LEXIS 3223 (Conn. Super. Ct. 2008) 51
Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 320, 855 A.2d 1278 (2004) 29
South v. McCabe, 156 N.H. 797, 800, 943 A.2d 779, 781 (2008)........ 32, 33
State v. Blackmer, 149 N.H. 47, 49 (2003)..................................................... 53
State v. Brobst, 151 N.H. A.2d 1253 (2004)................................................... 48
State v. Chick, 141 N.H. 503, 504, 688 A.2d 553 (1996)............................. 54
State v. Craig, 167 N.H. 361, 377 (2015)........................................................ 50
State v. Laforest, 140 N.H. 286, 289, 665 A.2d 1083, 1086 (1995)............ 34
State v. LaPorte, 134 N.H. 73, 76, 587
A.2d 1237, 1238-39 (1991)........... 55
State v. Porelle, 149 N.H. 420 (2003).............................................................. 23
State v. Veale, 158 N.H. 632 (2009)................................................................ 23
State v. Willey, 163 N.H. 532, 542, 44 A.3d 431, 439 (2012)..................... 35
Federal Cases
Broadrick v. Oklahoma, 413 U.S. 601 (1973)................................................ 48
Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct 2252, 2259 (2009)...... 37
Citizens United v. Fed. Election Comm’n, 130 S. Ct. 882,883 (2010)....... 49
Cohen v. California, 403 U.S. 15, 21 (1971)............................................ 51,
52
Connally v. General Constr. Co., 269 U.S. 385,
391, 70 L. Ed. 322,
46 S. Ct. 126 (1926)....................................................................................... 47
Doe v. Harris, 772 F.3d 563 (2014)................................................................. 50
Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985)................................... 53
FCC v. Fox Television Stations, Inc., 567 U.S. 239, 254 (2012)................ 47
Goldberg v. Kelly, 397 U.S. 254, 299 (1970)................................................. 41
Hill v. Colorado, 530 U.S. 703 (2000)............................................................ 47
Maravelias v. Coughlin, et al., 1:19-CV-00143(SM) (D.N.H. 2019).......... 15
Maravelias v. DePamphilis (No. 19-34., NHSC No. 2018-0376)................ 57
New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808 (2001)............... 30
Prager Univ. v. Google LLC, No. 17-CV-06064-LHK, 2018 U.S. Dist. LEXIS 51000
(N.D. Cal. Mar. 26, 2018).......................................................................................................... 48
R. A. V. v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 2542 (1992)...... 50
Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 117 S. Ct. 855 (1997) 51
Sorrell v. IMS Health Inc., 131 S. Ct. 2664 (2011)....................................... 49
Stephenson v. Davenport Community Sch. Dist.,
110 F.3d 1303 (8th Cir. 1997)..................................................................... 47
Turner Broadcasting System,
Inc. v. FCC, 512 U.S. 622, 658, 114 S.Ct. 2445, 129 L.Ed.2d 497
(1994)............................................................................................................... 49
United States ex rel. Robinson v. Pate, 345 F.2d 691, 692 (7th Cir. 1965) 37
United States v. Jeffries, No. 3:10-CR-100, 2010 U.S. Dist. LEXIS 125665 (E.D.
Tenn. Oct. 22, 2010)................................................................................................................ 48
United States v. Playboy Ent’t Group, 529 U.S. 803, 813 (2000)............... 51
Village of Willowbrook v. Olech, 528 U.S. 562 (2000)............................... 52
Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) 36
Non-Precedential Orders
Cambridge Mutual Fire Insurance Company v. Mark
Acciard (2018-0465) 49
In the Matter of Gina Bundza and Brian Bundza (2018-0173).................... 30
Jessica F. v. Clinton C.F., No. 2007-0513, 2008 WL 11258706 (N.H. Apr. 16, 2008) 28
Kristiansen v. Erlandson (2017-0348)............................................................. 39
McKenna v. Collier, No. 2014-0283, 2015 N.H. LEXIS 242 (May 8, 2015) 32
Rock v. Michaels, No. 2007-0012, 2007 WL 9619509 (N.H. Dec. 7, 2007) 52
Statutes
RSA 173-B:3, I................................................................................................... 32
RSA 633:3-a, II.(a)............................................................................................. 50
RSA 633:3-a, III-a.............................................................................................. 54
RSA 633:3-a, III-c...................................................................................... passim
Constitutional Provisions
N.H. Const, Pt. I., Art. 14......................................................................... 41
N.H. Const, Pt. I., Art. 15...................................................... 22,
31, 33, 39
N.H. Const, Pt. I., Art. 22......................................................................... 48
N.H. Const., Pt. I, Art.
2............................................................................ 22
U.S. Const., Amend I.................................................................................. 48
U.S. Const., Amend.
XIV.......................................................................... 22
Court Rules
Dist. Div. R. 1.1.................................................................................................. 42
Dist. Div. R. 1.4.................................................................................................. 42
Dist. Div. R. 1.4(f).............................................................................................. 42
Dist. Div. R. 3.26................................................................................................ 41
N.H. Sup. Ct. R. 20(2)....................................................................................... 42
1.
Is
RSA 633:3-a, III-c. unconstitutionally overbroad or void for vagueness on its
face or as-applied to this case?
(T25,186,204;A60-71;144-148;201)[1]
2.
Compared
to RSA 633:3-a, III-a, does the different and lower standard for extending
stalking orders at RSA 633:3-a, III-c. violate substantive due process or
constitutional equal protection rights?
(A202)
3.
Did
the trial court violate Maravelias’s due process rights?
(A197-199;276-278)
4.
Was
Maravelias prejudiced by inadequate notice of the allegations being considered
against him at the 2/12/19 Hearing on Plaintiff’s Motion to Extend?
(A197-199)
5.
Did
the trial court afford Maravelias a fair and full opportunity to be heard on
all his arguments and claims he wished to raise?
(T8:5;A197-199)
6.
Did
the trial court engage in unreasonable dilatory practices prejudicing
Maravelias?
(T16-17;A275-276;367-370)
7.
Did
the trial court err in ignoring, denying, or never ruling upon Maravelias’s
post-trial Motion to Dismiss?
(A205;234;272-280)
8.
Did
the trial court err by refusing to specifically find which “offensive and
hateful statements” by Defendant it cited for granting extension, upon request?
(A206)
9.
Did
the trial court unsustainably exercise discretion in granting the extension?
(A197-206)
10.
Did
the evidence of defendant’s legitimate non-threatening speech in public relied-upon
by the trial court sufficiently support its finding of concern for Plaintiff’s
“safety or well-being” to warrant “good cause” to grant extension?
(A199-200)
11.
Given
Christina DePamphilis’s history of mid-order incitative harassment against
Maravelias, did the trial court’s findings support the conclusion that she had
“reasonable” “ongoing” “fear” for her “personal safety”?
(A15;19;205)
12.
Where
the trial court failed even to identify the correct version of its own summer
2018 “extended terms” in effect, did it unsustainably exercise discretion in
continuing them?
(A203)
13.
Did
the trial court violate Maravelias’s state or federal constitutional rights by
re-imposing the “extended terms”?
(T165;A203-204;124-171)
14.
Did
the trial court err in denying Maravelias 12/10/18 Motion?
(A372-373)
15.
Is
this state appellate court an adequate, impartial forum granting Maravelias a
fair and full opportunity to litigate his claims under the Constitution of the
United States of America?
(A204-206;230-238)
The Original Order (2017)
After
a December 2016 telephone argument David DePamphilis made with Paul Maravelias,
Plaintiff Christina DePamphilis, David’s daughter, filed a stalking petition
against Defendant Maravelias on 12/28/16 in Salem District Court. Maravelias
had asked-her-out to dinner on 12/12/16. He never communicated with her after
that day weeks prior, when he had respectfully taken her polite rejection on the
chin like a gentleman and disappeared eternally. (A14)
DePamphilis
obtained a Stalking Order against pro se Maravelias on 2/7/17. (Stephen,
J.) Honorable Judge Robert S. Stephen held that, because Maravelias had obeyed Christina’s
father David’s personal request to give her a ride-home from a restaurant in
2013, and because Maravelias “offered her” “a mazzaretti”
in 2016, therefore she was stalked. (473-2016-CV-124)
Maravelias
appealed and lost (2017-0139) because, a lawyer-less college student, he didn’t
“preserve” his appeal arguments. Having read Honorable Judge Stephen’s insane
stalking order against Maravelias, a non-interested, prominent Judge in New England
told Maravelias in person that year:
“I can’t believe Judge
Stephen actually wrote this”,
and,
“someone needs to rein him
in.”
The First Extension (2018)
DePamphilis
petitioned for a one-year-extension on 1/5/18. Derry District Court scheduled a
Hearing on 2/20/18, 46 days later, in violation of RSA 633:3-a, III-c.’s 30-day-hearing requirement.
John
J. Coughlin was at Derry making decisions at this time.
On
6/15/18, he granted DePamphilis an extension to 2/6/19. Then, on 7/2/18, she
requested certain arbitrary commandments (“extended terms”) against Maravelias,
citing zero authority. John Coughlin scribbled “granted” on this Motion on 8/7/18
(A193), in complete absence of jurisdiction, nearly one-month after somehow
first scribbling “Denied.” on 7/13/18 on Maravelias’s Objection thereto (A192).
John’s
historically unprecedented “extended terms” criminalize Maravelias’s “possession”
of his own “social media” civil court exhibit of Christina DePamphilis and
boyfriend incitatively cyber-bullying Maravelias with their middle-fingers, while
she risibly claimed to “fear” him. (A15-16)
Maravelias
appealed again. (2018-0483) This Court affirmed, (1) rubber-stamping that
Maravelias’s “sole purpose” in responding to a legal-threat-letter he received
was to “stalk and harass” the recipient lawyer’s client’s daughter and (2) totally
omitting any reference to Christina DePamphilis’s vulgar social media
harassment against Maravelias, one of his foremost appeal arguments. This Court
overlooked Maravelias’s extensive argumentation against Coughlin’s “extended
terms” at pages 54-57, A156-177, A182-185 of Maravelias’s Brief, remarking he
didn’t “sufficiently develop” such arguments in said thirty (30) pages.
Ominously,
this Court self-censored and published nowhere[2]
this 1/16/19 Final Order nor its 11/30/18 Final Order damaging Maravelias in a
related Maravelias-DePamphilis appeal.
Maravelias
subsequently sued John and state enforcement officials in federal court (A124)
to enjoin enforcement of his unconstitutional, extrajurisdictional “extended
terms”, pending as Maravelias v. Coughlin, et al.,
1:19-CV-00143(SM) (D.N.H. 2019).
The Second Extension (2019)
DePamphilis
petitioned for yet another extension on 1/24/19. Derry District Court held a
2/12/19 Hearing.
On
3/8/19, The Honorable Judge Elizabeth M. Leonard granted DePamphilis another
one-year-extension to 2/7/20. (Leonard, J.)
This
appeal follows.
Appellant
presents the story behind this case in his 1/28/19 Objection to DePamphilis’s
1/24/19 Motion to Extend (A12) and 2018 extension appellate brief[3].
Here, Appellant dives straight into the 2019 extension.
Instead Of Filing a
Defamation Lawsuit, Christina DePamphilis Usurps A
Stalking Proceeding To Punish Maravelias For His Speech Criticizing The Same
Stalking Proceeding
In
his bitterness and envy (A36-39), David DePamphilis, the “rich man
behind the scenes pulling the strings” of legal abuse against Maravelias (T15),
could not let the attacks go. Years-after his “perjuring, fornicating” daughter
(A40,82,95) totally lost her attractiveness to Maravelias, David
teamed-up with his daughter and Attorney Brown to invent the most bizarre,
devoid-of-substance “stalking” motion to date. The 2019 Motion to Extend “orbit[ed]
around a ridiculous-seeming mescolanza of
inadmissible new facts concerning internet speech by strangers for strangers,
Unidentified Driving Objects, friends-of-friends at Dunkin Donuts, and hallucinogenic
summertime beach-trips.” (A75) Interestingly, David DePamphilis figures
heavily in “Christina’s” Motion to Extend. His name appears fifteen (15) times.
Every
corner of DePamphilis’s Motion to Extend (A79-88) bemoaned Maravelias’s
negative beliefs about the person who was exposed and proved in 2018 to have falsely
accused him of stalking.
The
DePamphilis actors paid a lawyer to argue that Maravelias’s thoughts and
opinions “impugning [Christina DePamphilis’s] virtue” is an offense “as bad as
almost anything”. (T203) For instance, when DePamphilis pictured herself
doing illegal drugs and consuming alcohol at age 16 (A186), or when she published
an image bragging about how far she and her 21-year-old boyfriend moved the bed
also at age 16 (A17) – Maravelias was instantly somehow guilty. When one
asks Christina DePamphilis the last time Maravelias stalked her, she invariably
responds, “I continue to being [sic] stalked every day.” (A31); accord
T55.
Recognizing
the evident absurdity of such baseless whining and “grasping at straws” (T139)
in a proceeding nominally alleging “stalking”, DePamphilis needed to spike her
dead Motion with a memorable allegation sounding of actual “stalking”:
“On October 23, 2018,
at approximately 7:00 p.m., Maravelias followed Christina in his car as she was
driving to cheerleading practice.”
(A85)
Unfortunately
for the DePamphilis actors, they chose a tragically ironic, poetically just,
bad day for their criminal fraud false accusation.
Christina DePamphilis Gets
Busted Lying, Falsifying Maravelias’s Whereabouts, Contradicting Herself, and
Committing Fraud Upon the Court
DePamphilis
previously knew Maravelias enabled cell-phone location history records with
Google. (T135) She took two steps therefore to trap Maravelias in the
false setup. First, she inexplicably changed the time of the allegation from “7
pm” to “4 pm” at-trial in a highly rehearsed direct-examination stunt with
Attorney Brown. (T62) Second, she and Attorney Brown failed to conceal their
advance anticipation of Maravelias’s location history, damningly, by presciently
contending Maravelias had “multiple phones”:
“Q
Well, let me ask you. You’ve introduced some Google documents
but you have more than one phone, don't you?
A
No, I don’t.
Q
Oh, you don’t?
A
I have only one phone in operation.
…
Q So if the police documented in their paperwork that there were three phones
when they went to your house that day, that would be inaccurate?
A I can’t speak for what they found at a house that I was not even living at at that time.”
(T76)
The
DePamphilis “following” criminal falsification scheme really turned disastrous
when Maravelias revealed where he truly was around 4pm on 10/23/18. He was miles away from Windham in Concord,
first at the Administrative Office of the Courts, then at this very Court,
filing an after-hours-drop-box pleading in 2018-0376 coincidentally requiring
him to write the time-of-day on said filing, and took a picture for
documentation! (T142-147).
DePamphilis
did a poor job concealing her willful lies and foul-play. She testified she
knew Maravelias’s exact two cars, both black. (T65) She knew he had two
black cars, but claimed a “silver SUV” was “following” her on 10/23/18 (T66)
before asserting under penalty of perjury in her Motion that on “October 23, 2018 … Maravelias
followed Christina in his car”. (A85)
There
were yet other times where David wished his daughter did a better job serving
the restraining order harassment crusade.
Asked to explain how Maravelias continues “to harass” her, DePamphilis
could only make reference to this legal case itself – which she chooses to perpetuate
– “all these appeals and everything you
have to say about me in every single appeal, or every single reply … it [sic]
negative … like, an angry tone” – and how Maravelias posts his legal documents
“online”. (T111-112)
Miss
DePamphilis was so confused at times, Maravelias felt the need to remain
“respectful” of evident “[psychological] issues”. (T150) When asked to
explain the reasoning behind her alleged fear Maravelias’s “angry words” “will
come into violence”, DePamphilis replied, “because I don’t want any contact
with you at all.” (T115-116) The following exchange was also
disturbing:
Q
Are you mentioned in that summary?
A
Yes, I believe so.
Q So you’re mentioned in the summary of the “David the Liar”?
A
No, I -- I'm not mentioned
(T109)
Or still:
Q
So you sought out this account that you thought was mine and you blocked it?
A
Yes.
Q
Okay. Have I ever communicated with you over social media?
A
I don’t believe so.
(T99)
Appellant
believes enough has been said and prefers to progress to the legal aspects of
this appeal.
The
trial court deceptively baited Defendant-Appellant Maravelias into preparing a
defense against certain limited allegations in Plaintiff’s Motion to Extend, enumerating
exact paragraphs thereof to “focus” the Hearing, but then granted extension
based exclusively upon a wholly extraneous allegation. It denied Maravelias’s
right to be fully heard, ignored Maravelias’s thoroughly briefed arguments, neglected
to rule whatsoever on his Motion to Dismiss, misidentified the content of its
own standing 8/7/18 Order, abused its discretion, and violated fundamental constitutional
rights by basing its extension on Maravelias’s legitimate, protected comment in
public about this case.
The
trial court had even previously sustained (T39:19-20) Maravelias’s
objection to admitting this sole relied-upon factual allegation when Plaintiff
first introduced it on direct testimony, having noticed it nowhere before trial.
The
trial court unlawfully enacted RSA 633:3-a, III-c., a facially invalid statute for
substantial overbreadth and unconstitutional vagueness in violation of federal
law.
Accordingly,
the protective order extension must be vacated.
The
trial court violated Maravelias’s Right to Due Process of Law under U.S. Const., Amend. XIV and N.H.
Const., Pt. I, Art. 2 and 15.
“No subject shall be deprived of his property, immunities, or privileges, … or
deprived of his life, liberty, or estate, but by the judgment of his peers, or
the law of the land․” Id. “Law of the land in this article means
due process of law.” Petition of Harvey, 108 N.H. 196 A.2d 757 (1967).
Federally, “no State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law.” U.S. Const., Amend. XIV.
“The
initial inquiry in determining whether a particular state action violates due
process is whether there is a deprivation of liberty or property.” Opinion
of the Justices, 137 N.H. 260, 268 (1993).
“It hardly bears mentioning that a restraining order restrains [a defendant’s]
liberty ... from a number of legal activities”, McCarthy v. Wheeler, 152
N.H. 643, 645 (2005),
including restricting Maravelias’s Second-Amendment rights and even limiting
his “fundamental right to freedom of movement”, State v. Porelle,
149 N.H. 420 (2003).
The extended “stalking” restraining order is a “governmental determination”
implicating Maravelias’s personal liberty interest to be free of resultant reputational
stigma, further triggering due process requirements. State v. Veale, 158
N.H. 632 (2009).
On 1/28/19, Defendant
Maravelias filed a “RSA 633:3-a, III-c. Motion to State Reasons for Granting
Preliminary Extension of Stalking Final Order of Protection” along with his
Objection to Plaintiff’s Motion to Extend. (A239) Defendant quoted RSA
633:3-a, III-c. in
relevant part,
“The
court shall state in writing, at the respondent’s request, its reason or
reasons for granting
the extension.”
Defendant requested,
“In order
to inform a more productive, focused Hearing, Defendant Maravelias respectfully
requests this Court state its reasons for granting the 1/24/19 preliminary
extension.”
Id. at ¶4. (A239)
A
2/12/19 Hearing scheduled (A241), the trial court granted the Motion to
State Reasons (Leonard, J.) in a 2/7/19 Order:
“Motion is granted. See
Paragraphs 12, 13, 22-24, and 27 of Plaintiff’s Verified Motion to Extend which
the Court found constitutes good cause to extend the Stalking Final Order of
Protection.”
(A11)
It
is pellucid that, by citing these paragraphs, the trial court accepted
Defendant’s stated premise “to inform a more productive, focused
Hearing”. It did not, e.g., state these paragraphs motivated exclusively
its pre-hearing preliminary extension reasoning, with a proviso that other
parts of Plaintiff’s Motion to Extend could be considered at the Hearing on
whether to extend the Final Order. Rather, the trial court explicitly stated it
found said paragraphs constitute “good cause” to extend the “Final Order
of Protection” – the subject matter of the 2/12/19 Hearing.[4]
The
trial court even verbally reiterated the plain meaning of its 2/7/19 Order at
the 2/12/19 Hearing: that the scope thereof would be limited to Motion
to Extend “Paragraphs 12, 13, 22-24, and 27” and that no other allegations were
being considered against Maravelias.
The
following courtroom exchange between Maravelias and Judge Leonard is a death
knell to any contrary interpretation:
Maravelias: “Thank you, Your
Honor – for telling me those paragraphs.”
The Court: “Um-hum.”
Maravelias: “I really
appreciate that. … I really wanted to thank you that you did that, and you did
follow the law in respect to my rights.”
The Court: “Okay. Well, that’s
why I wanted the hearing to be focused on what allegations were pertinent for
the Court’s consideration.”
Maravelias: “Right. Right.
Right.”
(T24-25) (Emphasis added)
The
trial court frequently warned Maravelias to confine his case to the enumerated
paragraphs, adamant to limit the Hearing’s subject-matter “to the meat of what
we need to decide” (T20): the allegations contained within the enumerated
paragraphs, e.g., at T87:20-32;T95;T115;T166:11-15;T39:22-40:2.
In particular, the trial court disclosed it understood DePamphilis’s disproved allegation
about “the following in the car” (T39;T88:19) was the gravamen of
the extension case, sparsely deigning to permit Maravelias contest much of
DePamphilis’s disconnected Motion to Extend allegations.
Despite
the above, on 3/8/19, the trial court issued an Order extending the stalking
order based on its sole finding of conduct:
“In
particular, the Court finds that Mr. Maravelias [sic] continued efforts at disparaging Ms. DePamphilis and her family by
making offensive and hateful statements in public postings on the internet
demonstrates [sic] that he continues to harbor hostility toward her and her family such
that legitimate concerns for Ms. DePamphilis’ safety and well-being continue to
exist.”
(A7)
(Emphasis added)
The trial court’s Order
completely exceeded the subject-matter boundaries it fixed for the Hearing:
·
Paragraphs
“12 and 13” of DePamphilis’s Motion to Extend (A81-82) did not remotely notice
any such allegation. They paraphrased this Court’s summary of Maravelias’s past
truthful, justified “offensive” statements he had made (1) in his courtroom
testimony (2) at the past 2018 extension, not any “continued
efforts” at making “offensive” “statements” in “public postings on the
internet” subsequently.
·
Paragraphs
“22-24” forged DePamphilis’s fraudulent, exposed “following” false accusations.
(A85)
·
Paragraph
“27” accused Maravelias of attaching a public social media legal exhibit to a
2018 appellate brief to show DePamphilis blatantly lied. (A86)
No
allegation about Defendant making “offensive statements” against Plaintiff “on
the internet” appeared anywhere in the paragraphs to which the trial court
strictly constrained the scope of the extension case. In fact, it barely
appears anywhere in Plaintiff’s Motion to Extend whatsoever, resembled only by
a vague, nondescript, and undeveloped blanket-reference at Paragraph 15. (“[Defendant]
also made disparaging comments about David and Christina DePamphilis on those
YouTube sites.”) (A84)
In
further support, when Plaintiff first surreptitiously introduced the single specific
allegation of Defendant making a possible “offensive” comment “on the internet”
during her direct examination at the 2/12/19 Hearing, Maravelias made a
contemporaneous objection about notice.
See generally, T38-40:
Attorney Brown: “At the
bottom of that page, under New Hampshire Outrage [YouTube account] in 2018,
quote, ‘As for your little girl comment, the false accuser is almost 18 and has
been banging a 21-year-old man boyfriend since she was 16’. Is that written there?”
Christina DePamphilis: “Yeah.”
Maravelias: “Your Honor, I object. This was not noticed to me. … [T]hat
comment is true and supported by the record in this case. But it’s not about
the content of that comment. This was not noticed to me in the motion to
extend, oh, hey, he said this [specific] mean comment on the
internet. That was nowhere in the petition, so I object to that.”
…
Judge Leonard: “Okay. All
right. So why don’t you move off this testimony?”
Attorney Brown: “All right.”
Judge Leonard: “I mean, … as I put in a response to Mr. Maravelias’ motion
[to state reasons], … I guess the following in the car, those
sort of violations that … Plaintiff’s alleging made her feel unsafe
… is important to the Court”.
(Emphasis added)
This
error prejudiced Maravelias’s due process right to advance-notice of
allegations being considered against him so to prepare meaningful legal and
factual rebuttals – especially where this Court has held it is “respondent’s
burden to prove a legitimate purpose for his [alleged] conduct” in civil
stalking proceedings. Jessica F. v. Clinton C.F., No. 2007-0513, 2008 WL
11258706 (N.H. Apr. 16, 2008),
at *2, citing Miller v. Blackden, 154 N.H.
448, 453-54 (2006). The trial court (1) baited Maravelias into
preparing a case in rebuttal of certain accusations he successfully dismantled
at hearing and (2) rigorously limited him thereto at said hearing, but afterwards
(3) tricked him with an extension order based wholly on a different allegation
against which he could have prepared a defense if not deceived. Maravelias apprised the trial court of its
error in his 3/21/19 Motion to Reconsider (A197), yet the court still
failed to correct its Order, nor offered any justification whatsoever for this
glaring injustice (A10).
“It
is well settled that a defendant is entitled to be informed of the theory on
which the plaintiffs are proceeding … as a result of the defendant’s actions.” Morancy v. Morancy,
134 N.H. 493 (1991) (internal citation omitted). Here, the Court
had explicitly limited the parts of Plaintiff’s “theory” to-be-litigated at the
Hearing. The error of extending based on an excluded allegation that Defendant
made “offensive and hateful” statements on the “internet” warrants reversal.
“The ultimate standard for judging a due
process claim is the notion of fundamental fairness.” Saviano v. Director,
N.H. Div. of Motor Vehicles, 151 N.H. 315, 320, 855 A.2d 1278 (2004).
“Fundamental fairness requires that government conduct conform to the
community’s sense of justice, decency and fair play.” Id. That the trial
court would bait Maravelias into preparing a defense limited to “X”, only to
penalize him thereafter based on “Y”, egregiously violates this standard.
Defendant
reminded in his Motion for Reconsideration (A199) that his unjustly
foreclosed extended self-defense would have rebutted the legal theory that the
relied-upon surprise-allegation about his public internet speech was viable,
constitutional grounds to extend the order. Deceived by the trial court’s
citation of paragraphs and its own sustaining his earlier contemporaneous objection
to the “banging a 21-year-old man” comment allegation at T39:19-20,
Maravelias did not address this specific allegation during his
cross-examination of Plaintiff, T55-124, nor during his direct
testimony, T133-173. Could he have known this allegation was
still wrongly “on the table”, he would have treated it extensively in
his defense.
Incredibly,
when Attorney Brown, Plaintiff’s counsel, desperately resurrected the improper
allegation during his cross-examination (T183), in froward disrespect of
Judge Leonard’s earlier ruling, Attorney Brown himself objected to Maravelias’s
only testimony confirming he wrote the comment! (T184:17, “I’m going
to object to this.”) Maravelias openly admitted he wrote the undisputedly
true (A17) comment just prior. Judicial estoppel therefore precluded the
trial court even from finding that Maravelias wrote this comment. See New
Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808 (2001).
The
prejudice to Maravelias’s case was want of pre-trial notice to prepare legal
argument about this allegation. Cornered and ambushed, pro se Maravelias
had to improvise legal argument on-the-stand towards the lawful, legitimate
purpose and non-viability for extension of his comment as-alleged that morning.
(T184-185) Maravelias was due advance notice. He could
have assembled written legal argument, cross-examined Plaintiff, and prepared
testimony himself regarding this comment responsive towards its legal inability
to cause extension. Maravelias would have assembled the controlling First-Amendment
jurisprudence contained hereinafter to argue this specific allegation cannot constitutionally
warrant extension. Maravelias quite evidently shirked-not on the measure of
this opportunity not robbed of him: he had submitted a 20-page pre-trial
Memorandum of Law (A51) briefing his legal arguments against
Plaintiff’s noticed allegations and a 28-page factual Objection thereto (A12).
This
Court must accordingly reverse the extension for reasons strikingly similar to
its recent reversal In the Matter of Gina Bundza
and Brian Bundza (2018-0173):
“We agree with the [appellant]
that—based on the hearing notice, the prior orders, and the parties’
agreement—a reasonable person in the [appellant’s] position would not have
expected that the issue of whether he had sexually abused his child would be
litigated at the February 14, 2018 hearing. We hold, therefore, that the notice
the [appellant] received was inadequate to fairly inform him of the issues to
be adjudicated at the hearing in violation of Part I, Article 15 of the New
Hampshire Constitution.”
Id.
Identically,
no reasonable person in Maravelias’s shoes could have expected the key
surprise-allegation of the “offensive” “banging a 21-year-old” comment, upon
which the trial court granted extension (being the sole specific “offensive”
“online” comment alleged), would be litigated at the 2/12/19 Hearing. Early-on
during the Hearing, when Plaintiff debuted the “banging 21-year-old” comment
allegation on direct-examination (T38), the trial court conclusively directed
Plaintiff to “move off this testimony” (T39:19-20) in light of
Maravelias’s contemporaneous objection, specifically citing its “response to
[Defendant’s] motion [to state reasons]” (T39:23), the limited
paragraphs. I.e., the trial court itself acknowledged this allegation
was outside the cited paragraphs. Judge Leonard even confirmed Maravelias
had “covered everything” (T115:21) when wrapping up his
cross-examination containing zero treatment of the specifically-disallowed-by-trial-court
(T39:19-20) “banging 21-year-old” comment allegation upon which the
court later erroneously based its entire extension reasoning.
Separately,
Paragraph 15 of Plaintiff’s Motion to Extend (A84), even if cited, did
not even contain this specific allegation; rather, DePamphilis ambushed
Maravelias at trial by introducing a screenshot of the comment (A103) previously
available to her for “5 months” (A103;T39:6-7), excluded intentionally
from her Motion. Its vague reference to “disparaging comments” on “YouTube
sites” could not possibly enable Maravelias to prepare a meaningful rebuttal, unless
he be expected to guess what specific legal theory the word “disparaging” embraced
and to assemble records of every single comment he – an avid YouTube user and
commenter – has ever or could be alleged to have made about the case, and brief
legal First-Amendment analysis for the trial court on every single such comment.
This
Court has held such “general statement[s]” alleging an
“ongoing pattern of … behavior” do not “provide sufficient notice of the actual
‘facts alleged against the defendant’”. South v. McCabe, 156 N.H.
797, 800, 943 A.2d 779, 781 (2008) (citing RSA 173-B:3, I.).
This Court likewise reversed a protective order where plaintiff’s “general
reference in the petition to the respondent’s prior ‘violence’ failed to notify
him of the ‘actual facts alleged against [him].’” McKenna v. Collier,
No. 2014-0283, 2015 N.H. LEXIS 242 (May 8, 2015), at
*5 (quoting South, 156 N.H. at *800).
Here, Plaintiff’s general reference to “disparaging online comments” failed to
give Maravelias adequate notice of the specific “banging 21-year-old” comment
allegation which he could have rebutted with thorough constitutional law
arguments had Plaintiff ever noticed her intent so to allege before her sly morning-of-Hearing
ambush-maneuver (T38:17-19).
The “trial
court should [have] limit[ed] its findings to the factual allegations
specifically recited in” Plaintiff’s Motion to Extend. South,
supra, 156 N.H. at *800.
(Emphasis added) Therefore,
the utter nonexistence therein of the “16-year-old Christina bragged about banging
a 21-year-old man” YouTube comment allegation would warrant reversal alone, even
if the trial court had cited Paragraph 15.
By
errantly relying upon such “unnoticed charges”, the trial court inescapably
foreordained this Court’s reversal. In re Aldrich, 156 N.H. 33 (2007).
The
trial court suffocated Defendant’s case and coerced him to pick-and-choose
salient points to compress into a limited time, exacerbating the prejudice
described hereinabove. This pervasive behavior violated Defendant’s constitutional
“right to produce all proofs that may be favorable to himself”, N.H. Const., Pt. I, Art. 15,
and contravened the Code of Judicial Conduct, Canon 2, Rule 2.6. State
constitutional protections hereon are least co-extensive with the Fourteenth
Amendment. State v. Laforest, 140 N.H. 286, 289,
665 A.2d 1083, 1086 (1995).
Defendant’s
right to an extension hearing is meaningless if trial courts can command-away
large portions of defendants’ cases in their self-serving interest of “time
limits” (T20:19):
Judge Leonard: “I’m going
to stick to one hour … I know you [Maravelias] want to argue some other
issues here but I want to stick to one hour.”
(T8)
Judge Leonard: “This isn’t
going to be a three-day hearing. This is going to be a one-hour hearing.”
(T20)
Maravelias: “Your Honor, I
think we definitely are going to -- at some point, need to continue this. I
mean, I have at least two witnesses.”
Judge Leonard: “Okay. Well, we’re
going to finish it today.”
…
Maravelias: “…probably going
to be necessary to continue it to a further date.”
Judge Leonard: “But I don’t
want to. I want to finish it today. So that’s why I’m asking you to stay
focused on your testimony.”
(T81)
(Emphasis added)
This
behavior furthered Defendant’s betrayed expectation the trial court would only
consider the “focused” paragraphs it cited. Judge Leonard successfully pressured
Maravelias to terminate prematurely his cross-examination of Plaintiff, “So
you’ve go[t] about five more
minutes. Are you done?” (T120), “Ask one more question then
you’re done” (T122), “[Maravelias] I would ask … that Attorney
Brown also have an abbreviated cross-examination as I had abbreviated mine”
(T132).
Unwilling
to appear fractious, Maravelias was constrained to capitulate to the trial
court’s opprobrious treatment of his rights. Having subpoenaed and prepared
cross-examinations for his “two witnesses” (T81), Defendant
surrendered to being “by myself today as a witness” “to be respectful
towards [Judge Leonard’s improper] desire [to rush the hearing]” (T132).
“In the interest of the Court’s particular wishes and requests, I
won’t call any further witnesses.” (T198) Maravelias intentionally
proffered the underlined qualification for appellate purposes: that, coerced,
he non-consensually relinquished his due process “right to present [his] own
witnesses to establish a defense”, State v. Willey, 163 N.H. 532, 542,
44 A.3d 431, 439 (2012),
only because the trial court was forcing his hand. Judge Leonard interrupted
Defendant’s testimony to remind, “it’s the noon hour and I’ve got afternoon
hearings too”, to which Defendant acceded, “my testimony can be done,
Your Honor.” (T172)
On
2/6/19, Defendant filed a Motion to Continue (A245) stating:
“Defendant needs more time
to prepare his case and collect certain evidentiary materials in response to
Plaintiff’s allegations in the Motion to Extend.”
Id.
at ¶3 (A246)
The requested continuance
was “without any prejudice to the Plaintiff, who [had the] stalking order
extension in-effect against Maravelias … [it was] the Defendant who ha[d]
requested a Hearing and who [waived] his statutory rights as to the timeliness
thereof.” Id.
The
trial court denied the continuance the following day (A11), abusing
discretion and incapacitating Defendant’s “right to present a defense” and his
own “version of the facts” where he needed more time to prepare. Washington
v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Even if the trial court
had a good reason, it “should have made a record of its reasons for denying the
continuance”, Appeal of Morin, 140 N.H. 515, 520, 669 A.2d 207, 211
(1995),
rather than exiguously quipping, “Motion to Continue is denied” (A11).
In
fact, the trial court improperly granted Plaintiff’s Motion to Quash
Defendant’s subpoena (A253), served the day prior upon Attorney Brown by
the Merrimack County Sheriff, based upon its inconsistent assertion of “time
limits for requiring someone to produce themselves or produce documents”. (T130)
However, Maravelias properly followed the subpoena process right after receiving
Plaintiff’s 1/24/19 Motion to Extend and even “emailed” it to Attorney
Brown beforehand, giving “him as much [prior] notice as [Maravelias] could.”
(T131) The trial court thus placed Defendant into an impossible “Catch-22”
situation: disallowing him to exercise his right to subpoena a material witness
(A260-262;T24:13-15) because of “time limits”, but also denying
his humble request for a harmless continuance at the wrongful expense of his own
fundamental rights.
“A
fair trial in a fair tribunal is a basis requirement of due process.” Caperton
v. A.T. Massey Coal Co., Inc., 129 S. Ct 2252, 2259 (2009).
This Court must reverse as Defendant did not have a fair trial, but rather one
“conducted under an undue preoccupation with hurried disposition in an
atmosphere charged with haste”. United States ex rel. Robinson v. Pate,
345 F.2d 691, 692 (7th Cir. 1965) The “salutary goal” of
speedy resolution of cases “must not be reached at the expense of
constitutional rights”. Id.
The
trial court routinely dismantled Defendant’s attempts to service its legal
obligation under RSA 633:3-a, III-c. to “review the order, and each renewal
thereof” in deciding such extension requests. When Defendant inquired Plaintiff
about the original order’s factual background and defamatory effect, visible on
Maravelias’s Google search results (T91-92), Judge Leonard
sustained Plaintiff’s objection stating, “I don’t want to go back and
relitigate what happened 2017 or even 2018” (T92:23-24). However, Maravelias
was not attempting to “relitigate” anything; rather, merely to review and
provide context, consistent with the statute.
Yet
worse, the trial court imposed another impossible “Catch-22” situation onto
Maravelias when it impulsively sustained Plaintiff’s objection to Maravelias’s on-point
evidentiary exhibit at T166:8 – his written document from “the
original stalking petition” “which was [his] disproof” of the
petition. (T166) However, this very Court, in its 1/16/19 Final Order
upholding the 2018 extension, embraced a new rule on issue preservation by
sustaining Appellee’s Motion to Strike the very same document ostensibly
because it hadn’t been introduced at the 2018 Hearing, only at the original
2017 proceeding. (A89)
Maravelias: “I have a right
to submit all of the past evidence of their falsification … the Supreme Court
upheld Attorney Brown’s novel argument, found nowhere in the Supreme [C]ourt rules, nowhere in the case law, that the appellate
record … is only, like, the newest hearing thereof. … [W]hat the Supreme Court
[was] saying … okay, if you wanted to have this be part of the appellate
record, you could have brought it up at the most recent hearing.”
(T164-166)
This
Court cannot have it both ways, (1) expecting Maravelias not to include
documents in the appendix hereunder from the record in this case
(albeit, from previous stages thereof), and at the same time, (2) affirming the
trial court’s behavior of forbidding Maravelias to enter the same document(s)
for consideration at-trial. By improperly rejecting this eye-opening exhibit,
the trial court violated its statutory obligation to “review the circumstances
giving rise to the original protective order”, MacPherson v. Weiner, 158
N.H. 6, 10 (2008),
and abrogated Maravelias’s constitutional right “to produce all proofs
that may be favorable to himself” where liberty and property interests are at
stake, N.H. Const, ibid.
A
near-identical occurrence Kristiansen v. Erlandson (2017-0348) is instructive.
There, the Court disagreed with Mr. Erlandson’s argument the trial court failed
to review original circumstances when extending a stalking order, since the
trial court had “admitted ... as an exhibit” and “reviewed” Mr. Erlandson’s
“letter to the court which, he asserted, explained the parties’ relationship”
and “discusse[d] the events in” the original years-prior
stalking order. Id. Mr. Erlandson’s admitted
letter was indistinguishable in purpose from Maravelias’s dialectical “disproof
of the original stalking petition” he tried to enter at T166, which
the trial court rejected, unlike in Erlandson, as “not helpful
for its decision making” (T166:11), divulging its utter disregard
for the due process of law required by statute, necessitating reversal.
Defendant-Appellant
is outraged that, now for the second time, Derry District Court has
completely ignored and never ruled upon a Motion to Dismiss this case.
Last year, it never ruled upon Defendant’s 3/29/18 Motion to Dismiss. See
Appellant’s Brief (2018-0483). Here, it again neglected to make any ruling
whatsoever on his 2/14/19 Motion to Dismiss (A272) nor included in its
3/8/19 narrative extension Order a single finding on any of his legal
arguments for dismissal (A6-8).
After
Maravelias, in his 3/21/19 Motion for Reconsideration, begged Judge Leonard to carry-out
her duty to adjudicate his “multiple legal arguments for dismissal in his
2/14/19 Motion” (A205), the trial court still deserted its duty and
failed to rule upon or specifically address any such arguments (A10).
This
intolerable, unabated misconduct violates the Code of Judicial Conduct, Canon 2
Rule 2.7, “Responsibility to Decide”, and vitiates Maravelias’s
above-referenced due process right to be heard in self-defense.
Further,
Maravelias had a denied-right to present his Motion to Dismiss orally at hearing.
He tried (T4:1-2;T7:4-10;T8;T12:20-21;T13-17;T19:7-10;T20:3-6;T21),
but the trial court shot-him-down only minutes into his oral motion to dismiss (T16:19-22;T18:25-19:4;T19:22-20:2;T20:23-25),
ultimately constraining him to submit a written post-trial Motion to Dismiss (T201;T209-211),
despite his request for “verbal argument” (T201:7). “Written submissions
do not afford the flexibility of oral presentations … [p]articularly
where credibility and veracity are at issue, … written submissions are a wholly
unsatisfactory basis for decision”. Goldberg
v. Kelly, 397 U.S. 254, 299 (1970). Here, the trial court’s history of ignoring
Maravelias’s motions to dismiss magnified the prejudice suffered without an
oral presentation forcing the court to listen, allowing it rather to persist in
defenestrating Maravelias’s written motions insouciantly into the wind.
On
12/10/18, Maravelias filed a “Motion to Amend Stalking Order To
Exclude Second-Amendment-Protected Activity”. (A337) The trial court
violated Dist. Div. R. 3.26 by failing to render a decision within 60-days
after DePamphilis’s 12/18/18 Objection. Maravelias even filed a 1/4/19 “Motion
for Timely Ruling” identifying an improper self-interested benefit to certain
judicial officers by their dilatory practices. (A366) Finally, on
3/8/19, the trial court issued an Order denying the 12/10/18 Motion in
one-word: “Denied”. (A6)
The
trial court also inexplicably tarried to 5/21/19 to issue notice of its “April
30, 2019” Order denying reconsideration – written almost one-month prior – injuriously
stifling Maravelias’s ability to initiate a meaningful appeal. (A10)
These
unfair antics violated Defendant’s right to “a certain remedy ... promptly, and
without delay”, N.H. Const, Pt. I., Art.
14,
and warrant reversal.
Perhaps
the most caricaturable travesty of justice within DePamphilis’s 2019 attack
transpired as the trial court unilaterally discarded Maravelias’s statutory and
constitutional right to videotape his own public hearing (T3-12)
and squarely disallowed him (T8:7) even to rebut Attorney Brown’s wild
attacks spoken immediately prior. Attorney Brown and Judge Leonard committed
Professional and Judicial misconduct, he treating this
Court’s self-censored 1/16/19 Final Order as controlling, precedential case law
in violation of N.H. Sup. Ct. R. 20(2) and she willfully defying Dist. Div. R.
1.4(f) (T9-10). Judge Leonard forbade
Maravelias to be heard on the matter – which he requested in writing (A270)
– and even cited Plaintiff’s age and gender (T7:22-23) as grounds
for delegating Plaintiff nonexistent rights to dictate Maravelias’s level of access
to his own public hearing! This misconduct flagrantly violated the Code of
Judicial Conduct, Canon 1 Rule 1.1; Rule 1.2; Canon 2, Rule 2.2(B); Rule 2.3
(“by words” and “conduct manifest[ed] bias” “based upon [Plaintiff’s] sex …
[and] age”); and Rule 2.6(A).
This Court was simply
incorrect in its rhetorical unleashing against Maravelias at the end of its
self-censored 1/16/19 Final Order that trial courts can blatantly disregard the
procedural requirements of Dist. Div. R. 1.4 merely by contemplating the existence of Dist.
Div. R. 1.1.
The trial court does have authority to impose reasonable time, place,
and manner restrictions to ensure orderly execution of recording equipment. It
does not, however, have the right to entirely proscribe videotaping of any
kind as it did here. The error prejudiced Maravelias as DePamphilis was
enabled to keep lying without the deterrent effect of being videotaped lying.
Appellant
challenges the evidence was sufficient to support that the “banging
21-year-old” YouTube comment shows “hostility” amounting to “reasonable fear”
for Plaintiff’s “personal safety” warranting an extension. The Court reviews such
claims “as a matter of law and uphold[s] the findings and rulings of the trial
court unless they are lacking in evidential support or tainted by error of law.”
Fisher v. Minichiello, 155 N.H. 188, 921 A.2d
385 (2007).
It
is a true, undisputed fact that Christina DePamphilis, when she was 16 years-old
in 2017, (1) was having sexual intercourse with (“banging”) (2) “a 21-year-old
man”, that (3) she ostentatiously showcased such behavior on social media, and
that (4) these facts are legal record. (T184;A17-18) This was established separately
at both 2018 and 2019 extension hearings[5]
and never, not once, denied by her. Statements like Maravelias’s comment
“made in the course of judicial proceedings are absolutely privileged from
liability in civil actions”, such as Plaintiff’s civil claim here to a stalking
order extension. Pickering v. Frink, 123 N.H. 326, 329, 461 A.2d 117,
119 (1983).
Even if “offensive”, the statement could never be considered defamatory even if
DePamphilis had disputed its truth because Maravelias disclosed the facts he
relied upon as the “basis for [his] opinion”, Nash v. Keene Pub. Corp.,
127 N.H. 214 (1985),
viz., DePamphilis’s post annotating how far her sexual penetration moved
the man’s bed (A17). Nor did the comment contain the slightest
indication of intent to commit any violent or unlawful act, or threat. It did
not even accuse DePamphilis or the adult man of any criminal act. It
merely noted the hypocrisy of DePamphilis’s optical age-baiting-and-posturing
against Maravelias. (T184)
Against this backdrop, no
reasonable person in the trial court’s position could possibly conclude
Maravelias’s repeating a legal argument on the internet, previously aired
before the same exact court, could cause Plaintiff “reasonable fear for her
personal safety”. It strains credulity to believe the trial court even believed
its own theory: were the mere existence of “hostility”
dispositive, all such protective orders would persist ad infinitum. It
is difficult to imagine any civil stalking proceeding without some level of
“hostility” between the parties as an inherent reality of the adversarial
system. Where this Court esteemed MacPherson “a close case” in which the defendant actually
violated the stalking order and physically drove by plaintiff’s home
many times, there can be no question the evidence of Maravelias’s conduct
woefully fails to support the trial court’s conclusion that Plaintiff has
“ongoing, credible, and reasonable” fear. Accordingly, this Court should
reverse.
Defendant-Appellant must
assume it was the “banging 21-year-old man” YouTube reply upon which the trial
court granted extension; indeed, it was the only alleged “online” “comment” remotely
arguable as “disparaging” or “hateful and offensive” of Plaintiff. However, the
trial court’s 3/8/19 Order ambiguously references “comments” in the grammatical
plural, yet colloquially possibly singular. At hearing, Plaintiff alleged a
second “online” “comment” by Defendant on “Change.org” (T33-34) –
likewise advanced-noticed nowhere in her motion, let alone within the focused
paragraphs – but she never characterized (T106) this political comment
as “offensive” or “hateful”, nor even reproduced the actual text thereof
whatsoever (A101), unlike the YouTube comment, nor suggested any
possible similar “offensive” sexual nature.
The trial court failed to
cure this vagueness by denying (A10) Maravelias’s 3/21/19 request for “a
finding to identify the certain ‘offensive’ ‘internet’ comment(s) causing
extension” (A206) and, as such, defied this Court’s controlling case law
requiring “specific findings” of “prohibited conduct” for civil protective
orders. Fisher,
supra. Cf. Fillmore v. Fillmore, 147 N.H. 283, 284, 786
A.2d 849 (2001) (vacating protective order absent specific
factual findings); Kiesman v. Middleton,
156 N.H. 479, 937 A.2d 917 (2007).
There is no sound equitable or jurisprudential reason such requirements would
vanish when an RSA 633:3-a, III-c. extension proceeding is concerned, versus a
new stalking petition. Concealing the “basic facts from which [its] ultimate
conclusion” of hateful and offensive statements was made, the trial court’s
extension Order cannot survive appellate scrutiny. Economides v. Economides,
116 N.H. 191 (1976).
“[A] regulation ‘violates
the first essential of due process of law’ by failing to provide adequate
notice of prohibited conduct.” Stephenson v.
Davenport Community Sch. Dist., 110 F.3d 1303 (8th Cir. 1997), citing Connally v. General Constr. Co.,
269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926) (citations omitted). A statute is
“impermissibly vague … if it fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits.” Hill v. Colorado, 530 U.S. 703
(2000).
As-applied, a reasonable
person in Maravelias’s shoes (1) has no clue what precise calculus the trial
court employed to designate certain self-defensive public-expression as
“hateful” and “offensive”, two words never uttered by Plaintiff at-trial
nor found in her Motion, (2) cannot say whether it relied solely upon
the “banging 21-year-old” or likewise-unnoticed Change.org comment, or a
combination of both, and (3) is left to speculate whether any political,
opinion-speech in public about this restraining order will cause further
deprivation of liberty. Ergo, the trial court violated the heightened
vagueness standard attaching to speech-regulations, necessary to “ensure that
ambiguity does not chill protected speech”. FCC v. Fox Television Stations,
Inc., 567 U.S. 239, 254 (2012).
The
trial court never found Maravelias’s “statements” – whatever they, in fact,
were – fell into a category of speech validly recognized by the U.S. Supreme
Court as unprotected. As such, it violated his free speech rights under U.S. Const., Amend I., and N.H.
Const, Pt. I., Art. 22, by applying RSA 633:3-a,
III-c. to punish his protected speech
with an extended restraining order limiting his fundamental rights.
First-Amendment protection surpasses the ambit of criminal prohibitions and
extends to such “statutes attempting to restrict or burden the exercise of
First Amendment rights.” Broadrick v. Oklahoma, 413 U.S. 601 (1973);
accord State v. Brobst, 151 N.H. A.2d
1253 (2004) at *422-42.
The
YouTube comment section is the apotheosis of the 21st-century public
forum where individuals may exchange competing ideas and bitterly disagree. See,
e.g., Prager Univ. v. Google LLC, No. 17-CV-06064-LHK, 2018 U.S.
Dist. LEXIS 51000 (N.D. Cal. Mar. 26, 2018) , at *16 (“[YouTube is] a public forum dedicated to
freedom of expression to all.”); United
States v. Jeffries, No. 3:10-CR-100, 2010 U.S. Dist. LEXIS 125665 (E.D.
Tenn. Oct. 22, 2010) (YouTube communication proper basis for
governmental deprivation of liberty only where said communication was a
“true threat” to “inflict bodily harm”). The First Amendment “requires
heightened scrutiny whenever the government creates ‘a regulation of speech
because of disagreement with the message it conveys.’”, Sorrell v. IMS
Health Inc., 131 S. Ct. 2664 (2011),
and “stands against attempts to disfavor certain subjects or viewpoints or to
distinguish among different speakers, which may be a means to control content”,
Citizens United v. Fed. Election Comm’n, 130 S. Ct. 882,883 (2010).
“Speaker-based laws demand strict scrutiny when they reflect the Government’s
... aversion to what the disfavored speakers have to say.” Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622, 658, 114 S.Ct. 2445, 129 L.Ed.2d 497
(1994).
Judge
Leonard’s unpretending honesty in her blunt 3/8/19 Order – openly favoring the
“viewpoint” of Plaintiff, striving to “control content” of Defendant’s speech,
and violating his constitutional rights clear-as-night-and-day – marks a large
improvement from the pathological amplified verbal posturing and disingenuous, rarefied
judicial onanism of a “certain judicial officer[’s]” (T144:19) past 2018
Order in this case.[6]
This
shameful judicial abuse of free speech cannot survive even intermediate
scrutiny, where the regulation must be “narrowly tailored to serve a
significant governmental interest, and ... leave open ample alternative
channels for communication of the information”. Doe v. Harris, 772 F.3d
563 (2014),
citing Ward v. Rock Against Racism, 491 U.S. 791 (1989). A statute fails intermediate scrutiny if
burdening “substantially more speech than is necessary to further the
government’s legitimate interests”. Ward at 799.
If
Maravelias cannot even defend himself in a YouTube comment by making
true statements about this case, then the regulation is neither narrowly
tailored nor affords alternate channels for expression: Maravelias had no other
means of dialoguing with his YouTube interlocutor, an anonymous stranger, (A103)
but to respond to their comment. Nor does Maravelias’s solicited speech in
public to another about this case possibly contradict the government’s interest
in protecting true victims of stalking whatsoever, even minimally, where
stalking conduct excludes legitimate constitutionally protected activities. See
RSA 633:3-a, II.(a).
The trial court enforces a palpably content-based speech regulation, warning
Maravelias to discontinue his expressive conduct it finds “vile” and
“disparaging” (A7), in content, to one of the parties. “Content-based
regulations are presumptively invalid.” R. A. V. v. St. Paul, 505 U.S.
377, 382, 112 S. Ct. 2538, 2542 (1992).
This
Court has already decided this matter favorably to Appellant in State v.
Craig, 167 N.H. 361, 377 (2015) (social media communication was criminal
“indirect contact” only where defendant “directed the victim to his
Facebook page” and personally “addressed the victim”). Maravelias used
the YouTube “Reply” (A103) feature to author a solicited comment in a one-on-one
debate with a third-party. He addressed the comment individually to the sole user
fooled by DePamphilis’s slander and libel against Maravelias. Cf. Rios
v. Fergusan, 51 Conn. Supp. 212, 978 A.2d 592 LEXIS
3223 (Conn. Super. Ct. 2008) (YouTube communication proper grounds for
civil restraining order only where defendant “specifically
targeted his message at Rios by threatening her life and safety”, Id.
at *222).
Accordingly, the trial
court’s punishing Maravelias’s legitimate public discussion serves no
governmental interest, let alone offers adequate “breathing space” for
First-Amendment freedoms. Schenck v. Pro-Choice Network of W.N.Y., 519
U.S. 357, 117 S. Ct. 855 (1997).
“[I]n public debate[,]
our own citizens must tolerate insulting, and even outrageous, speech in order
to provide adequate breathing space
to the freedoms protected by the First Amendment.” Id., 519 U.S. at
*383.
Should
Plaintiff find offensive Maravelias’s political speech (“legal argument”, T184:4-16,
criticizing the government’s determination she was a credible witness), the U.S.
Supreme Court commands she is “expected to protect [her] own sensibilities
‘simply by averting [her] eyes.’” United States v. Playboy Ent’t Group, 529 U.S. 803, 813 (2000) (quoting Cohen v. California, 403 U.S.
15, 21 (1971)).
The trial court’s Orwellian viewpoint-discrimination ignores what Defendant
deems “offensive” – such as Plaintiff’s vulgar social-media-harassment directly
specifically at him[7]
(A15-16) – and impartially adulates the Plaintiff’s viewpoint of
“offensiveness”. It is “often true that one man’s vulgarity is another’s
lyric”. Cohen,
supra.
This
3/8/19 extension was rampantly unconstitutional beyond-the-pale. Contumelious
to the core tenets of American freedoms, it ought to anger The Honorable Court.
The trial
court placed Maravelias into an indiscriminate “class of one” by treating him disparately
compared to similarly situated individuals. See generally Village of Willowbrook v. Olech, 528
U.S. 562 (2000).
Appellant incorporates-by-reference A200-201;315-322;275-276.
Appellant
preserves the following federal issues to pursue, if necessary, in the United
States Supreme Court.
Appellant
repeats herein his extensive trial court argumentation at T25,186,204;A60-71;144-148;201
and categorically denies a duty redundantly to replicate here given the present
9,500-word limitation his 7/16/19 Motion for Extended Briefing explains is
prejudicial, with essentially three separate appeals consolidated unjustly hereinto.
State appellate procedure must comply with federal due process requirements. Evitts
v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985).
Appellant Maravelias requests appellate judgment on the instant facial
overbreadth and vagueness challenges from his incorporated-by-reference pleadings.
The
Court cannot lawfully paste the “State v. Blackmer, 149 N.H. 47, 49
(2003)”
“did not sufficiently develop arguments” formula here. No Court rule exists
whereby incorporation-by-reference negates such arguments’ having been “fully
briefed” in already-submitted pleadings. Blackmer, at *49. Maravelias’s seventeen
pages (A60-71;144-148;201) of robust constitutional argument on this
point and ubiquitous verbal strivings at-trial (T25,186,204)
do not form “passing reference” rendering the issue “waived”. State v. Chick,
141 N.H. 503, 504, 688 A.2d 553 (1996).
Appellant
take this opportunity to buttress one new facet to his facial challenge introduced
upon moving for reconsideration (A202). In summary, the inexplicable
lowering of legal standard in subsection III-c. (for extensions) compared to
III-a. (new stalking orders) in RSA 633:3-a is constitutionally
defective, affording unequal rights to stalking plaintiffs and defendants
solely based upon their current status of involvement with an extant order: a
defect absent in comparable statutes of other jurisdictions. (A70) This
Court effectively adopted Maravelias’s legal theory that “a civil finding of ‘stalking’
on the ‘preponderance of evidence’ standard cannot lawfully distinguish between
past and new stalking defendants for purposes of the ‘similarly situated’ element
of Equal Protection analysis” (A202) in Opinion of the Justices, 137 N.H. 260 (1993):
“The bill
would prohibit a defendant charged with sexual assault from commencing a civil
action against a victim of the alleged crime if the civil action is ‘based upon
statements or reports made by the victim that pertain to an incident from which
the criminal action is derived.’ The bill thereby divides the class of
plaintiffs with civil actions into those plaintiffs who are also defendants
accused of sexual assault and those plaintiffs who are not also defendants
accused of sexual assault, and prohibits the former
from bringing civil actions during the pendency of the criminal matter. In this
manner the bill treats similarly situated plaintiffs differently. See State
v. LaPorte, 134 N.H. 73, 76, 587 A.2d 1237, 1238-39 (1991).”
Id., at
*265-266.
Appellant
brings to the Court’s awareness his Motion for Reconsideration pages 6 and 7 (A202-203),
to which the trial court did not respond in its 4/30/19 Order (A10).
Appellant
repeats herein his Motion for Reconsideration pages 7 and 8 (A203-204)
and his argumentation at A124-171;176-188. The trial court failed to
specifically rebut Maravelias’s constitutional and jurisdictional arguments to
dissolve the “extended terms”; they are irredeemably illegal and must be vacated
for the grounds stated.
Besides
the trial court’s above-discussed error of failing to render any decision
whatsoever upon Defendant’s Motion to Dismiss, Appellant additionally reasserts
and incorporates herein the merits of said Motion (A272).
Similarly,
the trial court wrongly denied Maravelias’s 12/10/18 Motion (A337).
Maravelias deserved a separate appeal this Court erroneously refused to docket.
Appellant
respectfully observes objective facts indicating this Court maintains a hostile
bias against him (A230-238) and unjustly evaded engaging actual de
novo constitutional review of his as-applied challenge in Case No. 2018-0483,
motivating censorship of its 1/16/19 Final Order therein. Appellant
incorporates by reference his summary of this varied conduct in (1) his 1/28/19
Motion for Reconsideration therein and (2) his 6/27/19 Petition for Writ of
Certiorari to the U.S. Supreme Court in Maravelias v. DePamphilis[8]
(No. 19-34., NHSC No. 2018-0376),
where this Court retaliated against Maravelias’s criticism-speech by issuing an
Order awarding a fraudulent $4,900.00 fee award without due process of law.
Maravelias
regrets this unfortunate history. Cooperatively, he wishes to put the past
behind him. He befriends the Honorable Court in trust it will fulfill its duty to
adjudicate properly all claims under federal law herein, rightly to hold a free
society may suffer not a reprobate daughter’s precocious whoredom vitiate the
righteous man’s fundamental liberties.
WHEREFORE,
PREMISES CONSIDERED, Defendant-Appellant Paul Maravelias respectfully requests
this Honorable Court issue an Order:
I.
Reversing
and vacating the trial court’s 3/8/19 extension order;
II.
Reversing
and vacating the trial court’s re-imposition of its 8/7/18 further injunctions
and its denial of the 12/10/18 Motion; and
III.
Declaring
retroactive vacatur of the original stalking order dated 2/7/17 and the
first 6/15/18 extension, that it was error to find Paul Maravelias had ever stalked
the daughter of David DePamphilis.
————♦————
I,
Paul Maravelias, certify that copies of the appealed decisions in writing are submitted
herewith as first-items in the addendum hereunder pursuant to N.H. Sup. Ct.
R. 16(3)(i)(1).
Respectfully submitted,
PAUL J. MARAVELIAS,
in propria persona
|
Paul
J. Maravelias
34 Mockingbird Hill Road
Windham, New Hampshire 03087
paul@paulmarv.com
(603) 475-3305
CERTIFICATE OF SERVICE
AND RULE 16(11) COMPLIANCE
I,
Paul Maravelias, hereby certify that on this day were sent via first-class mail
two copies of the within Defendant’s Brief and accompanying Appendix, postage
prepaid, to Simon R. Brown, Esquire, Counsel for the Plaintiff-Appellee, Christina
DePamphilis, P.O. 1318 Concord, New Hampshire, 03302-1318.
I,
Paul Maravelias, hereby certify that this document was not drafted by a
limited-representation attorney. See
N.H. Sup. Ct. R. 16(10).
Certification,
further, is made of the foregoing document’s compliance to word-count
limitation, 9,496 words being contained, exclusive of the herein
addendum-certificate and of other addenda. See
N.H. Sup. Ct. R. 16(11), 26(7).
August 5th, 2019
__________________________________
Paul J. Maravelias
The
Appellant, Paul Maravelias, respectfully requests Oral Argument before the full
court pursuant to Rule 16(h). 15 minutes are requested.
Trial
Court Decisions and Orders
3/8/19
Decision Granting DePamphilis’s Motion to Extend Duration of Final Stalking
Order of Protection and Related Court Orders............................................................. 1
4/30/19
Decision on Post-Trial Motions......................................................................... 10
2/7/19 Order
Denying Motion To Continue and Granting Motion to State Reasons 11
Motion
To Extend
Maravelias
1/28/19 First-Amended Verified Objection to DePamphilis Motion to Extend.......................................................................................................................................... 12
Maravelias 1/28/19
Memorandum of Law in Support of Objection to DePamphilis Motion to Extend.......................................................................................................................... 51
Maravelias 1/15/19
Preliminary Objection to Motion to Extend................................. 72
DePamphilis
1/24/19 Verified Motion to Extend Duration of Stalking Final Order of
Protection (redundant exhibits excluded – see Plaintiff’s Hearing exhibits
#1 and #4).......................................................................................................................................... 78
Trial
Court 2/12/19 Hearing Exhibits
Plaintiff Exhibit
#1 (NHSC 1/16/19 Final Order in 2018-0483).................................. 89
Plaintiff Exhibit
#2 (Google screenshot and YouTube comments screenshots) [T33] 101
Plaintiff Exhibit
#3 (Exerpt of Maravelias Reply Brief in 2018-0376)......... [T44] 109
Plaintiff Exhibit
#4 (NHSC 11/30/18 Final Order in 2018-0376)............................. 111
Defendant’s
Exhibit A (Maravelias 10/23/18 location history).................... [T147] 115
Defendant’s
Exhibit B (David DePamphilis 2016 text message)................. [T158]
121
Defendant’s
Exhibit C (Supervisor letters)..................................................... [T160]
122
Defendant’s
Exhibit D (Moving pleadings in Maravelias v. Coughlin, et al.,
1:19-00143(SM) (D.N.H. 2019))........................................................................... [T167]
124
Defendant’s
Exhibit E (Attorney Brown email)............................................. [T198]
195
Motion
for Reconsideration Litigation
Maravelias 3/21/19
Verified Motion to Reconsider 3/8/19 Order Granting Stalking Order Extension....................................................................................................................... 196
DePamphilis
3/18/19 Verified Motion to Reconsider ................................................ 208
Maravelias 3/28/19
Objection to DePamphlis Motion to Reconsider....................... 219
DePamphilis 3/29/19
Objection to Maravelias Motion to Reconsider 3/8/19 Order Granting Stalking
Order Extension............................................................................ 225
Maravelias 4/3/19
Reply to DePamphilis 3/29/19 Objection to Maravelias Motion to Reconsider
3/8/19 Order Granting Stalking Order Extension (exhibits excluded – redundant
pleadings and orders in NHSC 2018-0376 and 2018-0483 preserved into this case)............................................................................................................................... 228
Maravelias 4/3/19
Declaration and Affidavit in Support of Reply to DePamphilis 3/29/19 Objection to
Maravelias Motion to Reconsider 3/8/19 Order Granting Stalking Order Extension....................................................................................................................... 236
Other
Pre-Trial Litigation
Maravelias 1/28/19
RSA 633:3-a, III-c. Motion to State Reasons For Granting Preliminary Extension
Of Stalking Final Order of Protection..................................................... 239
Trial Court
1/29/19 Notice of Hearing ......................................................................... 241
Maravelias 2/7/19
A/V Advance Notice Form ............................................................ 242
Maravelias 2/7/19
Subpoenae to Simon R. Brown and Laurie DePamphilis........... 243
Maravelias 2/6/19
Motion to Continue.......................................................................... 245
DePamphilis
2/11/19 Bench Memorandum Regarding Defendant’s Stated Grounds For Dismissal....................................................................................................................... 248
DePamphilis 2/11/19
Motion to Quash Subpoena....................................................... 253
Maravelias 2/12/19
Objection to DePamphilis Motion to Quash (redundant exhibits excluded – see
Defendant’s 2/7/19 subpoenae)....................................................... 263
DePamphilis
2/11/19 Motion to Restrict Video-Recording by Defendant at Extension Hearing (redundant
exhibits excluded – see Plaintiff’s Hearing exhibit #2)....... 265
Maravelias 2/12/19
Objection to DePamphilis Motion to Restrict Video-Recording by Defendant at
Extension Hearing................................................................................ 270
Other Post-Trial
Litigation
Maravelias 2/14/19
Motion to Dismiss......................................................................... 272
DePamphilis 2/22/19
Objection to Maravelias Motion to Dismiss........................... 281
Maravelias 3/8/19 Verified
Emergency Ex Parte Motion to Dismiss or Amend Stalking Order to Remedy Voter
Suppression Conspiracy Against Respondent................ 290
Maravelias 3/28/19
Motion for Clarification................................................................ 315
DePamphilis 4/5/19
Objection to Maravelias Motion for Clarification ................... 323
Maravelias 5/10/19
Reply to DePamphilis 4/5/19 Objection to Maravelias Motion for Clarification ................................................................................................................. 325
Maravelias 3/28/19
Motion to Strike............................................................................. 328
DePamphilis 4/5/19
Objection to Maravelias Motion to Strike................................. 335
Maravelias
12/10/18 Second-Amendment Motion to Amend
Maravelias 12/10/18
Motion to Amend Stalking Final Order of Protection to Exclude
Second-Amendment-Protected Activity................................................................... 337
Maravelias 12/10/18
Memorandum of Law in Support of Motion to Amend Stalking Final Order of
Protection to Exclude Second-Amendment-Protected Activity............. 341
DePamphilis 12/18/18
Objection to Maravelias Motion to Amend Stalking Final Order of Protection to
Exclude Second-Amendment-Protected Activity ............................ 363
Maravelias 1/4/19
Motion for Timely Ruling.............................................................. 366
Maravelias 3/21/19
Motion to Reconsider Denial of 12/10/18 Motion To Amend Stalking Final Order Of
Protection To Exclude Second-Amendment-Protected Activity. 371
DePamphilis
3/29/19 Objection to Maravelias Motion to Reconsider Denial of 12/10/18 Motion
To Amend Stalking Final Order Of Protection To Exclude
Second-Amendment-Protected Activity.................................................................................. 375
Text
of Relevant Authorities
New Hampshire
Revised Statutes Annotated............................................................... 377
Constitutional
Provisions................................................................................................ 378
New Hampshire
Rules of the Circuit Court – District Division................................ 380
[1] T =
Transcript of 2/12/19 Hearing on Plaintiff’s extension request.
A = Appendix herewith.
Example format: (Tx:y-z,Ta-b;A3) where
non-bold numbers y-z reference lines
on transcript page x and Ta-b
reference whole consecutive pages.
[2]https://www.courts.state.nh.us/supreme/finalorders/2018/, https://www.courts.state.nh.us/supreme/finalorders/2019/
[3] https://scribd.com/document/403251297/Paul-Maravelias-s-Pro-Se-2018-Appeal-Brief-Christina-DePamphilis-v-Paul-Maravelias-2018-0483
[4] Even if
the trial court’s explicit clarification were absent, “good cause” is not the
legal standard for the pre-hearing preliminary extension, which is one of “immediate danger of irreparable harm to the party
seeking injunctive relief”. N.H.
Dep’t of Envtl. Servs. v. Mottolo, 155 N.H. 57, 917 A.2d 1277 (2007).
[5] Except,
only, the man’s age was established at the 2018 Hearing exclusively.
[6] Indeed,
this Honorable Court’s abundant patience wore-thin of this individual’s
renegade 2018 pre-retirement anti-defendant tyranny-spree, rightly issuing a
stinging – stinging – plain-error-sua-sponte
reversal in Cambridge Mutual Fire Insurance Company v. Mark Acciard
(2018-0465). Judge
Leonard however, though she erred, is not a career-criminal who belongs in
federal prison.
[7] It has
been held Christina DePamphilis’s incitative/vulgar social-media-cyberbullying
of Maravelias (A15-16) could form a stalking course-of-conduct, Rock
v. Michaels, No. 2007-0012, 2007 WL 9619509 (N.H. Dec. 7, 2007), and potentially constitute
a “true threat”, O’Brien v. Borowski, 461 Mass. 415, 429 (2012).