AHO Brief

8/6/2019 AHO Brief

http://slidepdf.com/reader/full/aho-brief 1/9

PETITIONER’S MOTION FOR ENTRY OF ANTI-HARRASMENT ORDER PURSUANT TO RCW 10.14 ET SEQ.,AND OPPOSITION TO RESPONDENT’S MOTION TO STRIKE PETITIONER’S MOTION FORANTI-HARASSMENT ORDERPAGE - 1

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THE HONORABLE MARIANNE SPEARMAN

Hearing Date: June 7, 20118:30 a.m.

IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTONIN AND FOR KING COUNTY

MARTA LYALL,

Petitioner,

v.

SARAH LEVINE SIMON,

Respondent.

NO. 11-2-16227-3 SEA

PETITIONER’S MOTION FOR ENTRYOF ANTI-HARRASMENT ORDERPURSUANT TO RCW 10.14 et seq., ANDOPPOSITION TO RESPONDENT’SMOTION TO STRIKE

I. RELIEF REQUESTED

Petitioner, Marta Lyall, requests this Court enter a constitutionally valid Anti-

Harassment Order to protect her from Respondent, Sarah Simon’s course of vengeful, illegal

and damaging conduct. Significant portions of Simon’s internet posts and damaging emails,

cross the line between legitimate discourse or expression regarding her son’s conviction, and

unlawful harassment designed to punish and chill a crime victim.

Much of what Respondent report is provably false, misleading at best and always

presented to cast Petitioner in a horribly false light. Some posts mimic her son’s criminal

harassment. Some intrude on Petitioner’s privacy. Almost all are, in part if not in whole,

highly offensive.

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PETITIONER’S MOTION FORANTI-HARASSMENT ORDERPAGE - 2

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The content and character of Simon’s posts demonstrate her improper intent:

(1) to punish her son’s victim for reporting his crime, aiding the prosecution and

embarrassing her family; and,

(2) to chill Petitioner from seeking enforcement of court ordered restitution and

protection.

The State has a compelling interest in protecting crime victims like Petitioner from both

these evils. As such, neither the U.S. or Washington Constitutions pose a bar to a well-tailored

anti-harassment order that furthers these interest.

Petitioner also asks that this Court to deny Respondent’s motion for outright dismissal

of Petitioner’s request for a protective order coupled with an award of $10,000. Denial of

Respondent’s motion to strike is required for three reasons: (1) Washington’s recently revised

anti-SLAPP statute, RCW 4.24.525, is unconstitutional by its terms, (2) the statute is

unconstitutional as applied in this case; and, (3) even if the statute was valid (which it is not),

the record I this case provides ample evidence to establish the probability that Petitioner’s

requested protective order will issue, in one form or another. Respondent’s assertion that RCW

4.24.525 requires this Court to leave a crime victim standing alone and unprotected from efforts

of her perpetrator’s family to humiliate and publically harass her distorts principles of free

speech and is contrary of the statute.1

II. STATEMENT OF FACTS2

A. Sara Simon’s Harassment

After Noah was convicted Respondent started gathering information on Petitioner. She

acknowledged she engaged a private investigator. Ex. She requested Ms. Lyall’s employment

1 If the Court does issue a protective order (and it should), Petitioner also requests Respondent be ordered to

reimburse her costs and attorneys’ fees pursuant to RCW 10.14.090(2).

2 Petitioner has presented an abbreviated statement of facts give the Court’s familiarity of the facts and issues by

virtue of presiding over Lyall v.Noah Simon, No. 10-2-04392-6 SEA. As such, the pleadings and materials

submitted in that case are incorporated herein.

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records from 10 years ago from UW and from over 15 years ago at other schools. Exs. Her

requests were very specific:

I would like to know the circumstances of her termination, and if

she filed complaints against fellow faculty members,administrative personnel, or students. Or whether she engaged inlegal actions against any of the above. Or whether complaintswere filed against her.

Ex. She claims obtained these records to help exonerate her son. Ex. After some UW records

were released to Respondent, Petitioner obtained a preliminary injunction enjoining any further

release until privacy issues could be resolved. . Respondent is aware of the injunction.

On May 2, 2011 UW received another request for Petitioner’s records using the exact

same language quoted above. Ex. The request was made by Herbert Tichman, of Walnut

Creek, California. But Herbert Tichman is apparently dead. Ex. He died in October 2010.

Herbert Tichman was a professional clarinetist. Ex. He went to Julliard. Respondent went to

Julliard. Herbert Tichman’s passing was reported in Julliard’s Online Journal in February of

this year. Ex.

Ms. Simon has sent many emails to the Court, Petitioner’s counsel and to current and

former associates of Petitioner that contain false inflammatory statements. To her current

counsel she wrote: “You know quite well there was never a cyber-stalking. You have a

mentally ill client on your hands. She exhibits all the features of the Borderline Personality

Disorder she was diagnosed with.” Ex. In another email in which she “put Ms. Lyall on notice

she will be filing a lawsuit against her in Manhattan,” Respondent averred Lyall “was a

criminally insane teacher who obsessed about her male colleagues.” Ex.

Other examples of allegations made about Ms. Lyall in emails to the courts and others

include:

“She is a sick and paranoid woman and once she gets into peoples lives she is there to

stay.” Ex.

She is illegally soliciting donations on line to cover her legal expenses. Ex.

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She fired her lawyer when we suggested mediaton. Ex.

Lyall herself is cyberstalker . Ex.

“Keep yourself safe, it seems you have crossed her. Check what she writes to the bar

association. Keep your family safe. She is checking up on them too. She is probably hacking

into your computer right now.” Ex.

To a current and former associate of Petitioners Respondent wrote: “ my greatest fear is

that when she can no longer use the courts for her fiendish ends that she will resort to

violence.” Ex.

The emails also contain threats: We are going to file a lawsuit against her. Ex. “We

are retroactively filing a complaint against her with the CMU Ombuds [sic] office for violating

the boundaries between professor and student.” Ex.

Respondents most egregious harassment takes the form of posts on a web site she has

dedicated to “sharing the facts of her son’s case with the world.” Ex. But the site says much

more about Lyall’s past than it does her son’s case.

The most horrific example of her harassment is the May 5, 2011 posting. Ex.It is

almost seven pages of very private personal information culled by CMU’s defense attorney’s

from Ms. Lyall’s personal diaries. Id. It discusses her history with therapists, the fact that she

is rape victim, and a ten year old psychiatric diagnosis that wasn’t even correct at the time. In

section X of this post Respondent mischaracterizes a on a Marta’s UW email as an outrageous

liable defamatory to Jews.

Petitioner herself best describes these posts the affront to her:

She cuts and pastes from only the defense’s unchallengedallegations, and merges that content with content from othersources to create her own fictitious and damaging story.

[She has] put[] up a firewall in front of any public telling of my experience at Carnegie Mellon University, and re-contextualizesmy experience through her harassing and defaming distortions.She was not a party in this case, nor was her son, and neither of them knows the details of my experience.

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The postings and emails of Ms Simon, attempt to forever distortmy experience that lead to a legitimate claim of discriminationand retaliation, and to publicly humiliate me. It is a retrying of this distorted version of the defense’s position in a forum where Icannot respond without causing myself further damage. It isintentionally not presented in a court hearing, where there are

rules and order. This is public humiliation through harassment,and one that brings up the trauma of my experience which beganthe first day of my appointment at Carnegie Mellon University in1995. It has harmed me both professionally and personally.

Respondent also uses the site to re-write the history of Noah Simon ’s crimes and the

fact that he pled guilty. She says she has “a right to demonstrate to the court and to the public

that my son was carefully framed with electronic evidence taken out of context by Ms. Lyall.”

Ex.. But her son pled guilty to his crimes and did not seek to defend against them at trial. And

neither Respondent nor her son appeared in the controlled environment of a courtroom for the

hearing on restitution.

B. Life Before the Simon’s

Before Petitioner joined CMU she had over a 10 year history of impressive

achievements and productive working relationships with colleagues even in male dominated

environments. But four years after starting at CMU she was embroiled in a gender

discrimination law suit that turned into a humiliating experience when her personal diaries and

therapy became the focus rather than CMU’s conduct. Petitioner’s female colleagues and the

dean at CMU had acknowledged there was a gender discrimination problem in the art

department. Ex. And several of the male faculty responsible for the discrimination had left or

were leaving, arguably because their discriminatory and abusive conduct had been exposed.

But, Marta was a causality. She left CMU depressed and suicidal. She spent four years at UW

with the stigma and retaliation from the CMU lawsuit dogging her every step. After taking one

medical leave of absence, she negotiated an agreement to terminate her appointment early. She

left UW in 2002, over seven years before she was contacted, out of the blue by Noah David

Simon.

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In the interim Petitioner built a new life. She abandoned the art technology career she

had once loved and decided to work in fiancé. She studied for and obtained her broker’s

license. Despite the onset of Noah Simon’s stalking, she completed a grueling training with a

prominent, national financial services firm. One month before Noah David Simon was arrested

for cyberstalking she was set to “go live” in her new position.

By the time Noah Simon was arrested Marta had suffered through almost two years of

harassment. From the time of his arrest until now, however, Marta has suffered even more.

First there was the fear associated with what Noah might do in response to the arrest and upon

his release. Marta visibly shook when she read her victim statement at sentencing All that was

somewhat tolerable because she believed her public persona and reputation, so damaged by

Noah’s conduct, would be restored. Then Ms. Simon’s public lies and harassment began.

When that happened Marta felt forced to abandon her job to protect her firms reputation.

Petitioner now asks this Court to restrain Respondent from this ongoing course of harassment

that is destroying her life.

III. STATEMENT OF ISSUES

1. Does Respondent’s recent conduct regarding Petitioner, the victim of her son’scriminal harassment, constitute unlawful harassment itself under RCW10.14.020? YES.

2. Is the doctrine of prior restraint applicable to a Court order that restrains futurepublication of material previously published and found to be an abuse of freespeech rights? NO

3. Can this Court restrain Respondent from republishing material that constitutesunlawful harassment of a crime victim without violating Respondent’s right tofree speech? YES

4. Is the protection of a crime victim from intentionally harassing conduct that isdesigned to punish the victim for reporting a crime and assisting the state in itsprosecution as well as to chill the victim from seeking enforcement of courtordered restitution and protection a compelling state interest that warrants anarrowly tailored restraint on Respondent’s speech? YES

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5. Can this Court craft a protective order that restrains Respondent from engagingin a continuing course of unlawful harassment targeted at the victim of her son’s

crimes, that does not impermissibly tread on Respondent’s free speech rights?YES

IV. EVIDENCE RELIED UPON

Declaration of Nancy A, Pacharzina and all exhibits attached thereto; Declaration of

Marta Lyall and all exhibits attached thereto; Petition for an Order for Protection and

Temporary Protection Order and Notice of Hearing entered in this matter; all materials and

pleadings on file in this matter, in Lyall v. Noah David Simon, Case No. 10-2-04392-6 SEA and

in State v. Noah David Simon, Case No. 10-1-10211-2 SEA.

V. ARGUMENT

A. Sarah Simon’s Recent Conduct is Unlawful Harassment Warranting a ProtectiveOrder

Sarah Simon’s conduct described above is a “willful course of conduct,” directed at

Petitioner, which “seriously alarms, annoys, and harasses Petitioner.” There is no question it is

detrimental to Petitioner’s ability to secure employment and to earn a living. All employers

today search the internet for information on job applicants. Even if a potential employer does

not believe everything Respondent publishes, he is likely to prefer a candidate that did not

attract such hostility. After all Ms. Lyall has been through at the hands of Respondent’s son,

this post-conviction harassment is close to intolerable. It is detrimental to her emotional and

physical well-being. Respondent’s false statements and unnecessary intrusions on Petitioner’s

privacy “would cause a reasonable person to suffer substantial emotional distress,” and it has

caused Petitioner to actually suffer substantial emotional distress.”

The portions of Respondent’s internet postings that cause the injury (e.g. referring to

Ms. Lyall as mentally unbalanced a pathological liar”) serve no legitimate or lawful purpose. A

review of the factors listed in RCW 10.14.030 demonstrates the fact. Respondent, not

Petitioner is initiating the attacks; Respondent knows the attacks are unwanted; the conduct is

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designed to harass Petitioner; and, most importantly the harassing conduct is not necessary for

her to “defend her son.”

In sum, “the respondent's course of conduct has the purpose or effect of unreasonably

interfering with Petitioner's privacy and it has the purpose and effect of creating an

intimidating, hostile, or offensive living environment for the petitioner.” RCW 10.14.030.

Because the post as currently written constitute unlawful harassment, they should be

modified or partially redacted to remove the material that makes them harassing, i.e., false

misleading statements and unwarranted disclosure and discussion of private personal

information.

B. Restraining Post-Publication of Materials To Prevent Unlawful Harassment Is Not APrior Restraint of Free Speech.

Restraint of a right to republish material previously published is permissible under

Washington’s Constitution. Bearing v. Share, 106 Wn.2d 212, 936-937, 721P.2d 918

(1986)(Restraining content on picketers signs in future demonstrations). The Court explained

Post-publication restraints . . . simply prohibit further exercise of the right after a showing of abuse. Because an individual isresponsible for abuse of the right, a post-publication sanction canbe imposed consistent with Const. art 1, § 5.

Id. In so holding the Court noted that party’s injured by speech should not be required to bring

a tort action as their only source of relief. Id.

[A]s we said in Rhinehart v. Seattle Times Co., 98 Wash.2d 226,237, 654 P.2d 673 (1982), aff'd, 467 U.S. 20, 104 S.Ct. 2199, 81L.Ed.2d 17 (1984), [a] tort action should not and does notconstitute the sole protection which government affords to theprivacy interest of individuals. A threatened invasion of thoseinterests may not have all of the characteristics necessary towarrant recovery of damages under existent tort principles andyet be properly a subject of governmental sanction. . . . Id. Accordingly, we construe Const. art. 1, § 5 to permit post- publication injunctive relief to a private individual if that relief serves a compelling State interest, and is narrowly drawn to serve that interest. ..

Id.(emphasis added). .

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This Court can and should craft a narrowly tailored protective order to prevent further

harassment by Respondent, to further the important state interest of preventing crime victims

from being chilling from reporting crime and assisting prosecution.

C. Respondent’s Motion to Strike this Petition Pursuant toWashington’s Revised Anti-SLAPP Statute Must Be Denied

The record before the Court provides clear and convincing evidence of the probability

that Petitioner’s requested for a protective order should be granted. As such, Petitioner has met

her burden under RCW 4.24.525 and Respondents Motion to Strike should be denied. In

addition it is not at all clear that RCW 4.24.525 is applicable to a request for an Anti-

Harassment Order. While the petition is a “filing requesting relief,” it does not establish any

civil liability when granted.

Finally as noted above, the Constitutionality of the recently revised version of

Washington’s anti-SLAPP statute has not yet been determined. Given its increased burden on

Plaintff ’s combined with the breadth of its application, Petition asserts it is unconstitutional on

its face. If not, it is certainly unconstitutional as applied here, in the context of a petition for a

protective order.

VI. CONCLUSION

For all the reasons stated above the Court should issue a protective order and deny

respondent’s Motion to Srike.

Respectfully submitted this 26rd

day of May, 2011.

PACHARZINA LAW PLLC

By: /s/Nancy A. Pacharzina________

Nancy A. Pacharzina, WSBA #25946601 Union Street, Suite 4200Seattle, Washington 98101Tel: 206.652.3530Fax: 206.456.6656Email: [email protected]

Attorney for Petitioner

mailto:[email protected]




Documents

AHO Brief