Durham Cnty. Dept. Soc. Servs. v. Wallace, ___ N.C. App. ___ (September 3, 2024)
Held:
Vacated and Remanded
- Facts: Former DSS employee (Respondent) appeals from a civil no-contact order entered pursuant to the Workplace Violence Prevention Act (WVPA). Respondent founded Operation Stop Child Protective Services (Operation Stop CPS) and led rallies and protests against DSS policies, especially focused on abuse and neglect practices. DSS (Petitioner) filed a complaint for a civil no-contact order on behalf of DSS and its employees to enjoin Respondent and her “followers.” The complaint’s allegations included Respondent’s protests near the DSS office and at the Director’s residence, and social media posts and hundreds of text messages sent to an employee by Operation Stop CPS advocates which caused employees to feel fearful. The trial court granted a temporary ex-parte no-contact order and following a hearing, the court found that Respondent’s actions constituted harassment and issued a permanent no-contact order. The court concluded Respondent committed unlawful conduct but would still be allowed to peacefully protest and directed Respondent, among other things, to not visit or interfere with DSS, its employees, or its operations. The order further decreed that the Respondent and her “followers” must be allowed to peacefully protest so long as they are at least 25 feet from the DSS entrances while protesting, do not use amplification devices, and do not yell or chant when minor children are leaving the building when they appear to be exercising DSS supervised visitation (restrictions). Respondent appeals, arguing (1) the social media posts and text messages do not constitute harassment under the WVPA; (2) the no-contact order did not include a finding that Respondent acted with the intent to place an employee in reasonable fear of their safety as required by the WVPA; (3) the order’s restrictions violate Respondent’s freedom of speech under the federal and state constitutions; and (4) the WVPA does not grant the court authority to enjoin non-parties in the order.
- Appellate courts review the “trial court’s record for ‘competent evidence that supports the trial court’s findings of fact’ and the propriety of its ‘conclusions of law . . . in light of such facts.” Sl. Op. at 5 (citation omitted). Conclusions of law are reviewed de novo.
- The WVPA authorizes a trial court to issue a civil no-contact order “upon finding that an ‘employee has suffered unlawful conduct committed by’ a respondent[,]” which includes “otherwise harassing [conduct], as defined in [N.C. Gen. Stat. §] 14-277.3A. . .” Sl. Op. at 6, quoting G.S. 95-264(a), 95-260(3)(b). Civil harassment has five statutory elements under G.S. 14-277.3A: (1) knowing conduct (2) directed at (3) a specific person (4) that torments, terrorizes, or terrifies, and (5) serves no legitimate purpose. “ ‘Direct at’ element also implicates Respondent’s direction of third parties towards a targeted employee.’ ” Sl. Op. at 9. Relying on Ramsey v. Harman, 191 N.C. 146 (2008), to apply the appellate courts’ interpretation of the identical statutory language and schema of G.S. Chapter 50C applicable to civil no-contact orders, for no-contact orders entered pursuant to the WVPA, the trial court must make findings of harassment “without legal purpose and with the intent to place the employee in reasonable fear for the employee’s safety” to determine the Respondent committed unlawful conduct. Sl. Op. at 12, quoting G.S. 95-260 (emphasis in original).
- Respondent’s social media posts and text messages meet the statutory definition of harassment. Respondent knowingly intended to advocate for certain causes and deliberately took actions in furtherance of that objective. Respondent influenced and directed Operation Stop CPS advocates to target their efforts at specific DSS employees. The record shows the posts and texts were directed at two specific employees, the Director and a specific social worker, both named in the petition. The fourth element was not addressed by Respondent or the court. The acts may not serve a legitimate purpose based on the court’s finding that Respondent intimidated the Director; the finding that numerous texts sent in a short time could also be considered an illegitimate purpose.
- Findings are insufficient to support the court’s conclusion that DSS and its employees suffered unlawful conduct committed by Respondent. The court incorporated the facts alleged in the petition in its findings of fact, including protests at the main office and personal residence of an employee, intimidation of the director, and the receipt of numerous texts in a single evening by a social worker that made the social worker and their employees fearful. However the court did not make any findings concerning the content of the harassment or intimidation, or identify who sent the messages. Without these findings, the appellate court cannot review whether the conduct served a “legitimate purpose” or specific intent to “torment, terrorize, or terrify” DSS employees to constitute harassment under G.S. 14-277.3A(b)(2) and thereby conclude that Respondent engaged in unlawful conduct under the WVPA, G.S. 95-260(3)(b).
- To determine whether Respondent’s constitutional right to free speech afforded by Article I of the N.C. Constitution were unconstitutionally restricted by the no-contact order, the appellate court relied on preexisting federal Free Speech Clause jurisprudence, citing State v. Petersilie, 334 N.C. 169 (1993) (expressly adopting federal free speech jurisprudence to interpret N.C. Const., Art. I, through its disposition). An analysis of “First Amendment free-speech rights and government fora requires four inquiries . . . : (1) whether the restriction affected protected speech or expressive conduct; (2) if so, whether the restriction is either content-based or content-neutral; (3) if content-neutral, which tier of judicial review below strict scrutiny applies to the restriction; and (4) which category of forum the restriction concerns.” Sl. Op. at 16 (citations omitted and cleaned up). “Content-neutral restrictions of traditional and designated (collectively, ‘unlimited’) fora are subject to intermediate scrutiny[.]” Unlimited fora are “quintessential community venue[s], such as a public street, sidewalk, or park.” Sl. Op. at 18 (citation omitted). Sl. Op. at 18. To satisfy intermediate scrutiny, “the restriction must be narrowly tailored to achieve an important or substantial government interest in a manner that allows for ample alternative channels of communication” but “need to be the least restrictive or least intrusive means [in achieving said interest].” Sl. Op. at 17-18 (citation omitted).
- The no-contact order satisfies intermediate scrutiny and does not violate Respondent’s free speech rights. The effect of the WVPA through the no-contact order implicates Respondent’s expressive conduct of protesting DSS’s practices. Respondent challenges the WVPA and the order’s restrictions as applied to her and therefore the restrictions are content-neutral. Due to the lack of precise findings in the no-contact order, the appellate court deferred determining the exact forum classification at issue here, presumed the forum to be a “quintessential community venue,” and applied the most stringent applicable test – intermediate scrutiny. The content-neutral restrictions were aimed at achieving the significant public interests of protecting employee safety and preventing psychological harm to minor children visiting the DSS building. The restrictions were narrowly tailored because they promote this significant interest and would be achieved less effectively otherwise. Finally, the order left open ample alternative channels of communication by specifically allowing Respondent to protest subject to the order’s narrow restrictions.
- Appellate courts void “injunctions ‘affecting [the] vested rights’ of non-parties who lack any identifiable relationship to the parties or any notice of the proceedings.” Sl. Op. at 13 (citation omitted). Here, the trial court did not identify any “followers” of Respondent to enjoin in the order. The portion of the order enjoining the undetermined and unnamed followers is vacated.
- N.C. R. App. P. 10(a)(1) requires Respondent to “present[ ] to the trial court a timely request, objection, or motion” stating “the specific grounds for the ruling the party desired the court to make.” Respondent did not preserve her constitutional right-to-petition claim for appellate review. Respondent did not raise this claim at any point during trial or as part of an expressed objection, separate from Respondent’s freedom of speech objection.
Category:
Civil Cases with Application to Child WelfareStage:
OrderTopic: