O'Brien v. Borowski

461 Mass. 415

961 N.E.2d 547

Robert O'BRIEN

v.Alan BOROWSKI.

SJC–10866.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 7, 2011.Decided Jan. 31, 2012.

Jeremia Pollard, Lee, for the plaintiff.

Eric Lucentini (Sandra Lucentini with him) for the defendant.

The following submitted briefs for amici curiae:Patricia A. DeJuneas & Sarah Wunsch, Boston, for American Civil Liberties Union of Massachusetts.Susan M. Finegan, Andrew N. Nathanson, Elissa Flynn–Poppey, Boston, Helen M. Guyton, & Jamison B. Arterton, Boston, for Victim Rights Law Center & others.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

After a hearing, a judge of the District Court on September 3, 2010, issued a harassment prevention order under An Act relative to harassment prevention orders, G.L. c. 258E, inserted by St.2010, c. 23 ¹ (act or c. 258E), that directed Robert O'Brien (O'Brien) not to abuse or harass Alan Borowski (Borowski), to stay fifty yards away from Borowski, and to remain away from Borowski's residence. O'Brien filed a petition to vacate and dismiss the order under G.L. c. 211, § 3, before a single justice of this court, who reserved and reported the case for decision by the full court. O'Brien argues that c. 258E is unconstitutionally overbroad on its face because it regulates protected speech, and unconstitutional as applied to him because the conduct complained of was protected speech.² We conclude that c. 258E is not unconstitutionally overbroad under our interpretation of the statute. Because we vacate the now-expired harassment prevention order on other grounds, we do not reach the question whether the application of the statute in his case was unconstitutional.³

Background. Borowski is a police officer with the Northampton police department, who knew O'Brien before he became a police officer thirteen years ago. He had “charged [O'Brien] with a crime” in 2006, and knew O'Brien to be “a fighter.”

On the evening of May 15, 2010, Borowski entered a bar with his girl friend, saw O'Brien inside, and decided immediately to leave. After Borowski left the bar, O'Brien followed him out of the bar, yelled Borowski's name, and when Borowski turned to look at him, raised both of his middle fingers in the air and said, “[F]uck you.”

On the afternoon of August 8, 2010, Borowski was at his home moving his truck from the driveway when he saw O'Brien in the front passenger seat of a truck traveling past his house. As the truck drove past the house, O'Brien put his hand outside the window and again “flipped [him] off” with his middle finger. After Borowski got out of his truck, the truck O'Brien was traveling in stopped in the middle of the street approximately seventy-five yards from Borowski's house, remained there for several seconds, and drove off.

Approximately ninety minutes later, Borowski was standing on his deck when he heard a horn sound in front of his house. He saw O'Brien lean forward in the passenger seat of the truck and again extend his middle finger in the air; the driver then drove away.

Borowski applied for a harassment prevention order on August 23, 2010, and a temporary order issued. A hearing was conducted on September 3, 2010; Borowski was the lone witness. After the hearing, the judge extended the order until September 2, 2011. On September 30, 2010, O'Brien filed the instant petition under G.L. c. 211, § 3, for relief from the harassment prevention order. In reserving and reporting the case to the full court, the single justice urged the court to consider, apart from the constitutional issues, “whether the case is moot, and if so, whether it nonetheless should be decided; and whether the use of G.L. c. 211, § 3, shall continue as the avenue of review of an order entered pursuant to G.L. c. 258E.”

Discussion. We first address the procedural questions raised by the single justice. The harassment prevention order expired on September 2, 2011, and Borowski did not move to extend the order, so the case is now moot. Even though there is no longer a live dispute among the parties, we shall reach the merits of this case because it is fully briefed and raises issues of public importance regarding the constitutionality of a recently enacted statute that will likely arise again but, if we dismiss on grounds of mootness, evade review. See Aime v. Commonwealth, 414 Mass. 667, 670, 611 N.E.2d 204 (1993), and cases cited.

As to the proper avenue of review, the parties agree that, because the act does not expressly provide any other means to appeal from a harassment prevention order, the only alternative presently available is to seek relief from a single justice of this court under G.L. c. 211, § 3, and then, if necessary, from the full court on appeal. See Flynn v. Warner, 421 Mass. 1002, 654 N.E.2d 926 (1995); Callahan v. Boston Mun. Court Dep't, 413 Mass. 1009, 604 N.E.2d 1287 (1992). In Zullo v. Goguen, 423 Mass. 679, 681, 672 N.E.2d 502 (1996), we recognized that G.L. c. 211, § 3, had provided the only avenue to appeal from a restraining order issued by a District Court judge under G.L. c. 209A. But we concluded that “[u]niformity of treatment of litigants and the development of a consistent body of law” would be better accomplished if the appeal from all c. 209A orders were directed to the Appeals Court, and so ordered. Id. at 682, 672 N.E.2d 502, quoting Department of Revenue v. Jarvenpaa, 404 Mass. 177, 181, 534 N.E.2d 286 (1989). For similar reasons, we reach the same conclusion here with respect to harassment prevention orders under c. 258E. For example, where someone alleges abuse from a former spouse and the spouse's current partner, and seeks an order against the former under c. 209A and against the latter under c. 258E, it would not serve the interests of justice for an appeal from the c. 209A order to be heard in the Appeals Court and an appeal from the c. 258E order to be heard by a single justice of the Supreme Judicial Court. After the date of the rescript in this case, all litigants seeking judicial review of such orders are directed to the Appeals Court.

1. Statutory framework. Before we turn to the constitutional questions raised by O'Brien, we consider first how the act fits within the over-all statutory framework protecting victims of abuse and harassment. General Laws c. 209A, inserted by St.1978, c. 447, § 2, enables a person “suffering from abuse from an adult or minor family or household member” to obtain a protective order directing the defendant, among other things, to refrain from the abuse. G.L. c. 209A, § 3. “Abuse” is defined as “the occurrence of one or more of the following acts between family or household members: ( a ) attempting to cause or causing physical harm; ( b ) placing another in fear of imminent serious physical harm; ( c ) causing another to engage involuntarily in sexual relations by force, threat or duress.” G.L. c. 209A, § 1. The violation of an abuse prevention order is a crime, punishable by a fine or imprisonment in a house of correction. G.L. c. 209A, § 7.

A person who is abused by someone other than a “family or household member” does not qualify for a protective order under c. 209A and could obtain a restraining order only by seeking injunctive relief in the Superior Court under Mass. R. Civ. P. 65, 365 Mass. 832 (1974). Violation of such a restraining order may constitute a contempt of court, but is not a crime. Mass. R. Civ. P. 65.3, as appearing in 386 Mass. 1244 (1982).

Chapter 258E was enacted in 2010 to allow individuals to obtain civil restraining orders against persons who are not family or household members, and to make the violation of those orders punishable as a crime. See An Act Relative to Harassment Prevention Orders, Formal House Session January 28, 2010 (statements of Representatives O'Flaherty, Atkins, Jones, Swan). But while a protective order under c. 209A requires a finding of “abuse,” a protective order under c. 258E requires a finding of “harassment,” defined in G.L. c. 258E, § 1, as “[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” ⁴

The definition of “[h]arassment” in c. 258E, § 1, evolved from the criminal harassment statute enacted in 2000, G.L. c. 265, § 43A, inserted by St.2000, c. 164, which makes it a crime to “willfully and maliciously engage [ ] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress.” ⁵

Both civil and criminal harassment require proof of three or more acts of wilful and malicious conduct aimed at a specific person. See Commonwealth v. Welch, 444 Mass. 80, 89, 825 N.E.2d 1005 (2005) ( Welch ) (“phrase ‘pattern of conduct or series of acts' [in G.L. c. 265, § 43A,] requires the Commonwealth to prove three or more incidents of harassment”). But the definitions of civil and criminal harassment differ in three respects. First, there are two layers of intent required to prove civil harassment under c. 258E: the acts of harassment must be wilful and “[m]alicious,” the latter defined as “characterized by cruelty, hostility or revenge,” and they must be committed with “the intent to cause fear, intimidation, abuse or damage to property.” G.L. c. 258E, § 1. Only the first layer of intent is required for criminal harassment under c. 265, § 43A. Second, the multiple acts of civil harassment must “in fact cause fear, intimidation, abuse or damage to property,” while the multiple acts of criminal harassment must “seriously alarm [ ]” the targeted victim. Third, criminal harassment requires proof that the pattern of harassment “would cause a reasonable person to suffer substantial emotional distress,” but civil...