Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”
This is especially true in family law.
We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.
I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).
One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?
If I go into a custody hearing representing myself, how come the judge will not look at any of my evidence or even give me the chance to talk?
It’s due to at least one of the two following things:
Number 1 (and most likely): the “evidence” that you believe is important or that the court needs to see is either not admissible (because you filed it incorrectly or filed it late) or it is not relevant. Relevance is defined as follows:
Utah Rules of Evidence, Rule 401. Test for Relevant Evidence. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
When the judge rejects irrelevant stories and irrelevant documents and photographs, pro se litigants (“pro se” and “pro per” are terms for people who represent themselves without an attorney in legal proceedings) they think the court is “not listening to” or “not looking at” evidence when in fact the court is listening and considering the evidence but then rejecting it—and properly rejecting it—as irrelevant.
Additionally, the rules that govern the practice of law can be quite technical. And frankly, what many people believe to be relevant evidence is anything but. People who are not lawyers who go to court to argue their own cases usually end up wanting the court to hear and review stuff that isn’t very helpful to the court in its efforts to learn the facts and decide which party should win or lose.
Another problem with pro se litigants is their ignorance of laws and legal procedures. They don’t understand the procedures for making oral arguments in court, they don’t know how to make proper objections, they often end up filing the wrong documents, forget to file necessary documents, miss deadlines, etc. So if you’re going to try to represent yourself in court, make sure you have at least a solid rudimentary understanding of court rules and the rules of evidence. If you don’t get such a basic understanding under your belt before you go to court, you’d likely be much much better off hiring an attorney to assist and represent you.
Number 2 (and this shouldn’t happen, but it does happen far more often than you’d think): the court simply doesn’t like you, doesn’t take you seriously, has it in for you because you are a pro se litigant. Why?
(Now the next few words of mine that you’re about to read are not meant to offend you, they are simply meant to share with you some hard and unfortunate truths.)
First, the majority of pro se litigants are usually among the least intelligent of litigants. Pro se litigants are often poor and are often poor because they are not very intelligent and/or in many cases mentally ill. In fairness to our judges, it doesn’t take long for them to learn this for themselves. And thus, after many years on the bench, when they pick up a case file that involves at least one pro se litigant, most of these poor judges groan inwardly, and with good reason. Odds are that this is going to be a tough case because these pro se litigants don’t know the rules and don’t know the law which inevitably leads to procedural chaos, silly and long-winded arguments, and a lot of wasted time and wasted judicial resources. Dealing with these kinds of pro se litigants makes the job of being a judge miserable.
Second, there are many judges who take offense at the fact that someone would dare try to represent himself or herself without a lawyer. “It’s as though these pro se litigants think that they are just as good as those of us who went to college and law school without having to make the sacrifices those of us in the legal profession made.” It’s this way in a lot of other jobs and professions. Someone who can pick up the guitar and play like a master naturally is often envied and resented by those who have worked so hard to reach the same level. That’s not fair, but it is human nature, and there are a lot of judges who let this weakness cloud their impartiality and their judgment.
Utah Family Law, LC | divorceutah.com | 801-466-9277
STATE OF UTAH, Appellee,
v.
NATHAN DAVID BAIZE, Appellant.
Opinion
No. 20180326-CA
Filed December 12, 2019
Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 161100835
Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Nathan David Baize appeals his convictions for violating a protective order. We affirm.
¶2 Baize and his former wife (Victim) were married in 2010 and divorced in 2014. Victim had sole physical custody of their child and shared joint legal custody with Baize. After enduring several instances of verbal and physical abuse, Victim sought a protective order against Baize. The court issued a protective order after a hearing, at which Baize was present, directing Baize not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” Baize was also ordered, “Do not contact, phone, mail, e-mail, or communicate in any way with [Victim], either directly or indirectly,” with the exception that Baize could email Victim about their child, provided his communications were “civil in nature.”
¶3 After the entry of the protective order, Baize sent numerous emails to Victim that were not about their child, not civil in nature, and arguably abusive. Much of the content of the emails was directed toward Victim’s qualities and character. Baize sent emails to Victim telling her that she was a “spoiled brat,” “lazy,” “irresponsible,” “vindictive,” “selfish,” “uncooperative,” “incapable,” “fake,” and lacking “integrity.” Baize also sent emails to Victim telling her to “[u]se your brain blondie,” to “[k]eep it simple stupid, [Victim’s name],” and that he was “sick and tired . . . of [Victim’s] blonde, lazy, messed up approach to cooperation.” Additionally, on several occasions, Baize threatened to call the police for “custodial interference charges.”
¶4 On another occasion, Baize emailed Victim—with a copy also sent to Victim’s new husband—complaining about Victim and alleging that Victim engaged in certain improprieties during their marriage. Victim’s husband spoke to Baize at length and told him that he “need[ed] to stop the belligerent, degrading emails to [Victim].” Baize responded that his emails “will never stop.” Furthermore, Baize told Victim that she was “a weak, weak person” because she would “construe [his email comments] as personal attacks.”
¶5 The content of Baize’s emails to Victim prompted the State to charge him with four counts of violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018). These charges were enhanced from misdemeanors to third degree felonies because Baize already had a prior conviction for violating the same protective order. See id. § 77-36-1.1(2)(c) (Supp. 2019) (describing enhanced penalties for violating a protective order). Baize moved to dismiss the charges, arguing that the protective order was an unconstitutional prior restraint of speech and that requiring his emails to be “civil in nature” was unconstitutionally vague. Baize also asked the court to give the jury an instruction defining the terms “harassing,” “threatening,” and “abuse” in the protective order as “forms of violence or threats of violence.” The court denied both motions.
¶6 At trial, Baize stated that while the tone in his emails might indicate that he was “[f]rustrated,” “feeling dejected,” “[h]elpless, hopeless, [and] concerned,” the emails were never uncivil. Rather, Baize asserted that he was just being “honest” and “clear.” However, Baize also testified that he suspected Victim would be offended by the emails and that Victim was “weak” for reading his emails as insults. Baize also admitted that his emails were similar in tone and content to emails he had sent previously to Victim, which formed the basis of his prior conviction for violating the same protective order. The jury found Baize guilty of three counts of violating a protective order. Baize appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 The first issue on appeal is whether the restriction in the protective order requiring that Baize’s communication with Victim be “civil in nature” rendered the order unconstitutionally vague or acted as a prior restraint on speech. “Whether [an order] is constitutional is a question of law that we review for correctness, giving no deference to the trial court.” State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).
¶8 Baize’s second challenge on appeal is that the trial court erred in denying his request to instruct the jury on the “legal definitions” of terms in the protective order. This issue presents a question of law, and both parties agree that we review the trial court’s decision on this point for correctness. See State v. Dozah, 2016 UT App 13, ¶ 12, 368 P.3d 863 (“We review a district court’s refusal to give a requested jury instruction for correctness.”).
ANALYSIS
I. Constitutional Challenges to the Protective Order
¶9 At the outset, we must determine whether Baize is permitted, “in this criminal proceeding, [to] collaterally attack the protective order entered in the prior civil proceeding.” See State v. Hegbloom, 2014 UT App 213, ¶ 10, 362 P.3d 921. The State contends that as “a threshold matter, this Court should not address either constitutional claim because the collateral bar rule precludes Baize from challenging the validity of the protective order in a prosecution for violating that order.”
¶10 A collateral attack is “where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or revised or modified or by a proceeding in equity to prevent its enforcement.” Olsen v. Board of Educ. of Granite School Dist., 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified). “Under the collateral bar doctrine, a party may not challenge a district court’s order by violating it. Instead, [the party] must move to vacate or modify the order, or seek relief in an appellate court.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 13, 391 P.3d 239 (quotation simplified). “With rare exception, when a court with proper jurisdiction enters a final judgment, . . . that judgment can only be attacked on direct appeal.” State v. Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111.
¶11 The proper forum for a defendant to challenge a protective order’s terms is in the original action, not in a subsequent criminal case resulting from its violation. This court has already addressed this issue in Hegbloom, where we stated that a civil protective order is not subject to collateral attack and that there is “nothing fundamentally unfair in not allowing a litigant to challenge collaterally a judgment he could have challenged directly had he chosen to do so.” 2014 UT App 213, ¶¶ 15, 22; see also Olsen, 571 P.2d at 1338 (explaining that when an issue is erroneously decided, the proper remedy is to directly, rather than collaterally, attack it); Iota, 2016 UT App 231, ¶ 18 (“The proper method for contesting an adverse ruling is to appeal it, not to violate it.” (quotation simplified)). Courts in other jurisdictions are in accord.[2]
¶12 Thus, our precedent and that of other jurisdictions make clear that the collateral bar rule applies to situations in which a defendant seeks to attack the validity of a protective order in a criminal proceeding for addressing a violation of that same protective order. See State v. Winter, 979 A.2d 608, 615 (Conn. App. Ct. 2009) (“The collateral bar rule has been extended to apply to situations in which . . . the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order.” (quotation simplified)).
¶13 Here, Baize was ordered not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” The relevant portion of the protective order also provided the following prohibition: “Do not contact, phone, mail, e-mail or communicate in any way with [Victim], either directly or indirectly,” the only exception being that Baize could contact Victim “via email about Child,” provided the emails were “civil in nature.” Not only did Baize sign the protective order as a whole, but he initialed each provision of the order, including those he now challenges on constitutional grounds. Thus, at the outset and even before he signed it, Baize had the opportunity to seek clarification of any provision in the order that he believed was too restrictive or vague. And after the protective order was entered by the court, Baize still could have challenged the order on direct appeal. But he never did so. Instead, Baize raised his prior restraint and vagueness challenges to the protective order only after he was criminally charged a second time with violating the order.
¶14 Precedent—both that of Utah and other jurisdictions states that a defendant cannot attack the validity of a protective order in a prosecution for violating the order. And that is exactly what Baize attempts to do here. Thus, we conclude that Baize cannot collaterally attack a protective order arising from a civil proceeding in this criminal proceeding. Put simply, this is not the proper forum to address constitutional challenges to the protective order’s terms.[3]
II. Legal Definitions in the Protective Order
¶15 The protective order prohibited Baize from “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” to Victim. Baize argues that the trial court erred when it denied his request to define for the jury certain “legal terms” contained in the protective order.
¶16 Jury instructions require no specific form as long as they accurately convey the law. “To determine if jury instructions correctly state the law, we look at the jury instructions in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.” State v. Painter, 2014 UT App 272, ¶ 6, 339 P.3d 107 (quotation simplified); see also State v. Hobbs, 2003 UT App 27, ¶ 31, 64 P.3d 1218 (stating that jury instructions will be upheld when they “fairly tender the case to the jury even where one or more of the instructions, standing alone, are not as full or accurate as they might have been” (quotation simplified)).
¶17 Baize was charged with violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018) (stating that any person who is “subject to a protective order” and “who intentionally or knowingly violates that order after having been properly served” is guilty of a misdemeanor or felony, depending on the circumstances). The court instructed the jury that to find Baize guilty of violating the protective order, it would need to find beyond a reasonable doubt the following elements:
Nathan David Baize;
While subject to a protective order issued by a Utah Court;
After having been properly served with the protective order;
Intentionally or knowingly violated the protective order; and
Is or was a cohabitant of the alleged victim.
¶18 Baize contends that the court erred when it denied his motion requesting a jury instruction that defined the terms “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” as forms of violence or the threat of violence. Baize argues that “because the protective order only prohibits stalking, harassing, threats, and abuse insofar as these terms could mean violence or a threat of violence,” the definitions of those terms should be “limited . . . to that realm.” (Quotation simplified.) Specifically, Baize requested that the court instruct the jury on the definitions of harassment and physical harm as those terms are defined in Utah’s criminal code or in the Cohabitant Abuse Procedures Act. See Utah Code Ann. § 76-5-106(1) (LexisNexis 2017) (defining harassment as intentionally frightening or harassing another by communicating “a written or recorded threat to commit any violent felony”); id. § 77-36-1(4) (Supp. 2019) (defining domestic violence as “any criminal offense involving violence or physical harm or threat of violence or physical harm”).[4]
¶19 The violence-based definitional language Baize requested is not found in the protective order or in the statute he was accused of violating. But Baize asserts that because Utah Code section 76-5-108 does not define the terms in the protective order (namely, harassing and threatening), the court should have given the jury the statutory meanings of those terms pulled from other provisions of the criminal code instead of allowing the jury to rely on the general understanding of the terms. Baize’s argument misses the mark. He was not charged with harassing or any other violent behavior pursuant to a separate statute. Rather, he was charged pursuant to Utah Code section 76-5-108 with four counts of violating the protective order, and the jury instructions on those four counts closely tracked the language of that section. Moreover, Baize presents no evidence that the protective order adopted the specific violence-based statutory definitions he proposed.
¶20 We conclude that the trial court did not err when it denied Baize’s request that the jury be instructed using Baize’s restrictive definitions of certain terms and allowed the jury to determine whether Baize violated the protective order based on common definitions of the terms contained in the protective order.[5]
CONCLUSION
¶21 We hold that the proper forum for Baize to challenge the protective order was the original civil proceeding pursuant to which the order was entered. Because Baize had notice and the opportunity to appeal the protective order, he is barred from collaterally challenging it in the subsequent criminal proceeding resulting from its violation. We also conclude that the trial court did not err in denying Baize’s request to define for the jury certain terms contained in the protective order. Accordingly, the judgment of the trial court is affirmed.
Utah Family Law, LC | divorceutah.com | 801-466-9277
———————–
[1] “On appeal, we recite the facts from the record in the light most favorable to the jury’s verdict and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
[2] 2. Other jurisdictions also explicitly bar collateral attack in this context. See, e.g., State v. Grindling, 31 P.3d 915, 918–19 (Haw. 2001) (stating that a domestic restraining order is not subject to collateral attack in the criminal proceeding for its violation and collecting cases stating the same); Wood v. Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005) (stating that a party “may not launch a collateral attack on the validity of an emergency protective order in a subsequent prosecution for violation of that order”); Truesdell v. State, 304 P.3d 396, 399 (Nev. 2013) (“[A] party may not collaterally attack the validity of a [protective order] in a subsequent criminal proceeding based on violation of the [protective order].”); Best v. Marino, 2017-NMCA-073, ¶ 18, 404 P.3d 450 (“The collateral bar rule precludes a restrained party from challenging the merits of [a protective order] after a finding of contempt.”); City of Seattle v. May, 256 P.3d 1161, 1165 (Wash. 2011) (en banc) (“The collateral bar rule precludes challenges to the validity . . . of a court order in a proceeding for violation of such an order except for challenges to the issuing court’s jurisdiction to issue the type of order in question.”).
[3] 3. Even if we were to conclude that Baize could attack the validity of the civil protective order here and agree with him that the “civil in nature” language in the protective order is unconstitutionally vague, Baize ignores the alternative restriction imposed on him by the protective order, namely that his communication with Victim must pertain to their child. Baize’s emails to Victim appear to have violated this provision.
Baize’s communications variously described Victim in unflattering terms and accused her of indiscretions. Indeed, our review of the record reveals that Baize’s emails to Victim are replete with examples of Baize directing his comments to Victim’s alleged attributes rather than a discussion of co-parenting needs or the needs of the child.
We find the argument that Baize’s comments took place in the context of communication about their child unpersuasive. Baize’s concerns regarding their child’s well-being or Victim’s parenting could have been effectively communicated without personal commentary about Victim. In fact, Baize admitted at trial that he was “[g]ambling on” Victim construing the comments he made in his emails as “personal attacks.”
[4] Baize also argues on appeal that the jury should have been instructed on the definition of stalking. But at trial, the State stipulated that the court would consider instructing the jury on the definition of stalking only “[i]f the State [brought] in evidence of stalking.” The State did not attempt to introduce evidence of stalking, and Baize did not again request that the trial court instruct the jury on the issue of stalking. Consequently, Baize waived this aspect of his argument below and cannot raise it on appeal. See State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443 (“Waiver, in the context of raising an issue before a court, is generally the relinquishment or abandonment of an issue before a trial or appellate court. . . . If an issue has been waived in the trial court, that issue is not preserved for appeal.”).
[5] 5. We resolve this aspect of Baize’s appeal by declining to apply strict statutory definitions, but we note that the language of the relevant provisions of the protective order was written broadly and did not suggest that Baize was prohibited from engaging in only physically violent behavior or in making threats of violence. Baize’s violence-based reading of the protective order’s terms conflicts with the public policy underlying the entire domestic violence statutory scheme:
Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders . . . because of the need to provide ongoing protection for the victim . . . . [T]he court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless the court determines by clear and convincing evidence that the victim does not . . . have a reasonable fear of future harm or abuse.
Utah Code Ann. § 77-36-5.1(6)(a)–(b) (LexisNexis Supp. 2019); see also State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645 (“The state has an inarguably significant interest in protecting the health and well-being of its citizens. In furtherance of this goal, the state has created a mechanism whereby the victims of domestic violence may obtain civil orders of protection against their abusers. As part of this protection, the court may prohibit the abuser from having any contact, direct or indirect, with the victim or the victim’s family.”). Thus, the statute’s purpose is to protect domestic abuse victims from further abusive behavior in the broad sense, including psychological abuse and other forms of controlling behavior. Baize’s violence-based interpretation of the protective order’s terms appears to run contrary to the significant interest the State has in protecting the overall health and emotional well-being of its citizens.
Of course you can ask the attorney to explain the basis for his/her legal fees and services pricing.
Any attorney worth his/her salt and who has the requisite amount of humility and empathy will be willing to provide you with such an explanation. Indeed, any attorney that would be offended by a request to elaborate on the bases for his/her billing rates and services pricing is probably an attorney who has something to hide with regard to fees (and perhaps other flaws and failings).
Sure, you can ask a lawyer to give you quote for a flat fee or an estimate of fees or a promise not to charge up to a certain amount. That does not mean that the attorney must negotiate with you or make concessions as to what he/she charges, but an attorney is certainly not prevented from negotiating billing rates and prices with you.
Utah Family Law, LC | divorceutah.com | 801-466-9277