Judge Judith Hayes' inconsistencies in two cases about websites and free speech

Judith Hayes believes in free speech for some people, as shown by this ruling from Judge Hayes in the Digital Cornerstone v. Kevin Carmony case:

"...the Defendant had a bona fide noncommercial use for the website, the Court finds the general purpose of the website to be a free speech forum wherein Defendant criticized the management of Plaintiff. ..the Defendant at no time harbored a bad faith intent to profit from a registered mark and that his use of the website undertaken to inform consumers and criticize Plaintiff's management constituted a lawful use of the site."

But Judge Hayes came to a very different conclusion about free speech in a case where there was no attempt to fool people about who owned the website, and no profit was made.

The possible explanations for her behavior in my case are considerably narrowed by her recent ruling in Digital Cornerstone v. Kevin Carmony.

One difference between my case and the Kevin Carmony case is that I'm a school teacher, not a CEO, and I'm representing myself. Judge Hayes apparently sees me as someone whose rights can be easily violated, and no one will notice. Clearly, she sees Stutz Artiano Shinoff & Holtz law firm as a group of people whom no schoolteacher should ever criticize, no matter how much money they charge the public or how many documents that refuse to produce. The firm walked out of its deposition, and the lawyer most involved in my case refused to show up for his deposition. This was fine with Judge Hayes. I wonder if Digital Cornerstone also walked out of its deposition? I'm sure Carmony's lawyer Gil Cabrera wouldn't let the plaintiff and Judge Hayes get away with such shenanigans. I'm trusting that in my case, the Court of Appeal will put a stop to the shenanigans of Stutz law firm and Judge Hayes.

The odd thing is that my case is much clearer and simpler than the Carmony case. My website is a purely public interest website. I never allowed advertisements on it, much less advertisements from competitors of the people I criticized. I never paid a premium ($6000) to get a domain name that was likely to fool people into thinking my site was owned by the very people I was criticizing, as Carmony did. My site has my own name: mauralarkins.com. Judge Hayes and her research attorney Monica Barry should have had no trouble seeing that my case was completely different from Del Junco v. Hufnagel, particularly since they found a difference between Freespire.com and the website in the Del Junco case.

Judge Hayes made the above ruling in the Carmony case just over a month after this ruling slapping me with $3000 in contempt sanctions for not erasing every mention of Stutz law firm from my website. (Hayes' ruling in my case is so brazenly unconstitutional that Michael Robertson look like a free speech advocate compared to this incarnation of Judge Hayes.) Clearly, Hayes knows how to act like a good judge when she knows she's being watched. She can be quite the stickler for the appearance of integrity. For example, it was rather extreme for her to recuse herself just because her bailiff's daughter was on a high school girls sports team. But she refused to recuse herself in my case.

I keep asking myself why Judge Hayes would act as she has in my case, regardless of whether she thought she could get away with it. What was her motivation? Perhaps District Attorney Bonnie Dumanis has a theory about this. She forced Judge Hayes out of the criminal courts even though both Dumanis and Hayes share a conservative philosophy. Dumanis seems to consider Judge Hayes' behavior on the bench to be unpredictable.

Freespire.com apparently exists to criticize Michael Robertson. From the home page of the website: "Freespire.com is dedicated to shedding light on the REAL Michael Robertson. Robertson tried unsuccessfully to shut down this site, as he clearly doesn't want the truth about him known. We've seen Robertson go to great lengths to create a skewed public persona, quite different from the one you will hear about from those who know him..."

I could say these same words about Stutz, Artiano Shinoff & Holtz, the lawyers who are suing me on their own behalf.

But my site isn't limited to criticizing one person or even one group of people. It covers a broad range of education issues.

Here's what Wikipedia says about Michael Robertson: "Michael Robertson (born 1967) is the founder and former CEO of MP3.com, which quickly became one of the most popular Internet music sites. In the years following his departure from MP3.com, Robertson launched several small start-up companies, including Linspire, SIPphone, MP3tunes, and Ajax 13..."



Here's what Linux Watch says about Kevin Carmony:
Linspire CEO Kevin Carmony resigns
Aug. 05, 2007

In an interview today with Linux-Watch, controversial Linux leader Kevin Carmony confirmed rumors that he had resigned as CEO of desktop Linux vendor Linspire on July 31. Carmony said he plans to work on several of his own business projects, and on Mitt Romney's presidential campaign.

Carmony said that, after six years at Linspire, it was time to move on. Projects he plans to work on include continuing as Chairman of the Board of Sadie's, a nationwide children's photography studio chain, and serving as CEO of Dating DNA, an online dating service based on social networks. In addition, Carmony will be working more on Mitt Romney's campaign to become the Republican candidate for the U.S. Presidency in 2008.

While he may be leaving Linspire, Carmony said, "I will always be a big supporter of Linspire and desktop Linux." And, "I will always be a desktop Linux user."

Carmony also said that Linspire is stronger than ever. "I can't speak for Linspire now, but I believe the upcoming release of Freespire 2.0 and open CNR (Click N' Run) will be great for Linspire and desktop Linux."

"With the new Freespire coming along, the continued push of Linspire to our OEMs [original equipment manufacturers], and CNR making it easy for other Linux desktop distribution users to install software, Linspire is doing great, and it was time for someone else to take it forward from here," Carmony added.

Carmony also said his resignation, contrary to some rumors, had nothing to do with any disagreement with Linspire's primary owner Michael Robertson, or with fallout from either of Linspire's recent deals with Microsoft, which covered technology licensing and patent indemnification.

Carmony joined Linspire, then known as "Lindows," in June of 2001 to become its president. Later, he became the company's CEO...

Sorry, Judge Judith Hayes and Dan Shinoff: Appellate Court Throws Out Prior Restraint

A December 11, 2009 injunction prepared by Stutz law firm and signed by Judge Judith Hayes of San Diego Superior Court says I am permanently banned from mentioning the names of Stutz law firm or its lawyers.

This injunction is clearly unconstitutional. But Judge Hayes knows that, right? She's read the following cases, I trust. Or is it possible that she simply doesn't understand constitutional law?

Evans v. Evans: Appellate Court Throws Out Prior Restraint
May 13th, 2008
by Sam Bayard
Citizen Media Legal Project

Yesterday, a California appellate court struck down a brazenly unconstitutional preliminary injunction prohibiting two defendants from making "false and defamatory statements" about, or publishing the "confidential personal information" of, Thomas Evans, a deputy sheriff in San Diego. The case, Evans v. Evans, 2008 WL 2009669 (Cal. Ct. App. May 12, 2008), involves a nasty post-divorce dispute between Thomas Evans and his former wife, Linda Evans, and her mother, Shirley Preddy. Linda and Preddy allegedly posted false statements about Thomas on various websites, filed complaints about him with his employer, and published confidential information from his medical and financial records on the Internet. The lower court granted Thomas a broad preliminary injunction against their alleged misconduct, without specifying any particular forbidden statements or defining what "confidential personal information" means.

The appellate court held that the preliminary injunction was an unconstitutional prior restraint on speech, and that it was unconstitutionally vague because it failed to alert Linda and Preddy as to what conduct would violate the court's order. The case itself is relatively prosaic; it is interesting largely because it demonstrates yet again just how unfamiliar many lower court judges are with basic First Amendment principles. Beyond that, it tells us two important things about California law relating to prior restraints:

1. The venerable principle that courts cannot enjoin alleged defamation before trial still holds despite the Calfornia Supreme Court's decision in Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141 (2007). Not a huge surprise. According to Evans, Balboa means only that a court may order a defendant not to make certain specific statements found at trial to be false and defamatory.

2. A court has more leeway to prohibit the publication of private personal information than to prohibit publication of allegedly false statements... the lower court would be "fully justified" in prohibiting the disclosure of Thomas's telephone number, address, and Social Security number on the Internet, especially because he is a police officer...



BALBOA ISLAND ALLOWS COURTS TO ISSUE PRIOR RESTRAINTS ONLY FOR SPECIFIC STATEMENTS THAT HAVE BEEN FOUND TO BE DEFAMATORY

Courts can prohibit repetition of defamatory speech
May 2, 2007 ·
Reporters Committee for Freedom of the Press

The California Supreme Court ruled last week that it is constitutional for courts to issue limited injunctions prohibiting defendants from repeating statements that were determined at trial to be defamatory.

The ruling arose from a case where the defendant, Anne Lemen, vocally criticized and protested the noise and activities occurring at a bar, the Balboa Island Village Inn, close to her home.

According to the court's majority opinion, Lemen told the neighbors that there was child pornography, drug dealing, and prostitution going on in the Village Inn. She also videotaped customers and made derogatory comments to employees.

In October 2001, the Village Inn sued Lemen for nuisance, defamation and interference with business, and sought a court order against Lemen.

The trial court agreed with the Village Inn and granted a permanent injunction prohibiting Lemen from contacting the inn's employees; from repeating certain defamatory statements, including that the bar "acts as a whorehouse" and "encourages lesbian activities"; and from filming within 25 feet of the Village Inn. The order applied not just to Lemen but also "her agents" and "all persons acting on her behalf."

The appeals court overturned most of the injunction...

The black hole that sucks up judge's orders and outgoing mail has reappeared at Stutz Artiano Shinoff & Holtz law firm

Seven minutes after I created this post I got an email from Stutz Artiano Shinoff & Holtz saying, in so many words, that the black hole that mysteriously sucks up proposed orders and judge's orders at Stutz law firm had abated, and Stutz was able to find a letter mailed to the firm two days ago. (Or perhaps I should say that Stutz was able to admit that it had the letter in its possession.)


Two days ago I had served Stutz with a check for $3000 for sanctions. Judge Judith Hayes imposed the sanctions because I violated her shockingly unconstitutional PERMANENT injunction NEVER TO MENTION THE NAME OF STUTZ ARTIANO SHINOFF & HOLTZ on my website.

Yesterday and today I asked Stutz, via phone calls and emails, if the check had arrived. After all my efforts, the only response I got was an email that said, "Who was it addressed to? That may make it easier to locate. Thank you. -- Richard"

Perhaps Richard was at a loss because his mentors Ray Artiano, Daniel Shinoff and Jeffrey Wade were not available to tell him whether or not to tell the truth about receiving my check. I'm guessing he was able to get an okay from one of them at around 2:28 p.m. today, so at last he told the truth in an email: "Please disregard my last e-mail, the check has arrived. Thank you. -- Richard"


This was the fifth incident, since Stutz law firm's defamation case against me began, that critically important documents in the case disappeared into the noxious ether that seems to permeate the firm's office.

NOTE TO JUDGE HAYES: This incident illustrates why we Americans keep the First Amendment to our Constitution. If law firms that represent public entities were free to cheat and lie, then government would become impossibly corrupt. Free speech keeps government honest, or at least it pushes it in that direction. We've got a long way to go until we actually have honest public entities, it seems. Why are you so intent on keeping the public ignorant of the truth about Stutz law firm?

Judge Judith Hayes finds this blogger in contempt for mentioning the name of Stutz law firm; a blogger in China has related problems

See all Judge Judith Hayes posts.

There was no gag order in this case, nor was there a temporary injunction. Inexplicably, the judge issued a permanent injunction that this blogger should never mention the name of Stutz, Artiano, Shinoff & Holtz law firm.

For the past year I've gotten the chills every time I thought of the years Judith Hayes spent as a criminal judge. If she treated me with so much contempt, and disregarded the law in my case, I reasoned she must have done the same thing to at least some criminal defendants, particularly the ones who didn't have their own lawyers. (Public defenders are so overworked they simply don't have time to give a lot of time to each defendant.) I wonder how many falsely-accused people went to jail because of Judith Hayes.


Click on image to enlarge.








See the injunction on which this ruling is based. According to case law, this injunction is wildly unconstitutional.


I was surprised recently when I read that Judith Hayes was actually ousted from the criminal courts. I was further surprised that her removal was not for behavior such as what I have witnessed. In fact, she was boycotted by Bonnie Dumanis because of her surprising leniency to at least one particular criminal defendant:

...Hayes was boycotted just months after Dumanis took office in 2003. The former state and federal prosecutor now hears civil cases in downtown San Diego.

She was challenged soon after dismissing murder charges in the middle of a trial against Michael Savala, who was accused of fatally shooting two bouncers at a Bonita restaurant after the prosecution had presented its case...
--San Diego Union Tribune

Here's the problem with what Judge Hayes' decision, and the reason Bonnie Dumanis was so outraged. The killer went home and got a weapon and came back and committed the murders. That's definitely NOT a classic crime of passion. There is a BIG question here, which requires the taking of evidence and a jury's finding of fact (not a judge's): what was the killer's psychological state? Judge Hayes isn't God. She doesn't know the answer to this question. A more restrained and respectful jurist would have had the jury decide this question. But this leaves me wondering why Judge Hayes did this. What would possess a Republican conservative to suddenly go soft on a criminal?

I have to agree with Bonnie Dumanis that Judge Hayes can not be trusted to appropriately apply the law.

The injunction ruling on which the above contempt finding is based is being appealed.



RELATED STORY: BLOG BLOCKED IN CHINA
See posts about Google and China.

It's a mystery why this blogger removed an important story from her blog in China. I'm thinking she probably didn't get a call from Judge Judith Hayes. I'll bet she got a call from someone even scarier.

Hong Kong entertainer removes sensitive news story from mainland Chinese blog
By Min Lee (CP)
Apr 1, 2010

HONG KONG — A Hong Kong actress-singer has removed a news story about an activist's court case from her mainland Chinese blog, purportedly to placate angered fans, underscoring the difficulty of navigating sensitive subjects in China's tightly controlled cyberspace.

Hong Kong entertainer Gigi Leung on Wednesday posted an excerpt of a news story about the trial of Zhao Lianhai on her blog hosted by mainland Internet company Sina Corp., Leung's agent, Jacky Wong, told The Associated Press in a phone interview Thursday.

Zhao had advocated on behalf of parents whose children were sickened in a tainted milk scandal and pleaded innocent to charges of inciting social disorder on Tuesday.

But Leung removed the posting later the same day, Wong said, sparking speculation that the Hong Kong actress-singer was bending to Chinese censors. "Gigi Leung is muzzled," Hong Kong newspaper Apple Daily wrote in a headline...

Where did Judge Judith Hayes develop her thinking about free speech?

See all Judge Judith Hayes posts.

Judge Hayes says that I don't understand Constitutional law (click on image above to read her decision). She's right that I don't understand that the Constitution allows Judge Hayes to impose broad prior restraints on a citizen journalist in order to protect law firms that appear before her. Well, not ALL the law firms who appear before her, but one of them, a group that was founded by two members of what some school-watchers think of as the Poway Pow-wow, lawyers who live in the suburb beloved by Judge Hayes.

What is this constitutional subtlety that Judge Hayes accuses me of not understanding? It seems to be the Hayes Doctrine, devised to fill a gaping hole in the legal system of the United States--a hole that allows citizens to become informed about actions of public entities that their lawyers don't want the public to know about.

In my benighted state, I believe that the law that Hayes is supposed to follow is Balboa Island Village Inn v. Lemen, 156 P.3d 339 (Cal. 2007), a decision striking down an overly broad injunction on speech. (Judge Hayes' injunction says I must remove every mention of Stutz law firm from my websites, and never mention their name again. Balboa Island says that court may only apply prior restraints to specific statements found to be defamatory.


Judge Hayes attended Catholic University of America, which may explain her antipathy to citizen journalism and her remarkable efforts to protect Stutz law firm from criticism. The University is under censure for lack of academic freedom.

Catholic University of America--Academic freedom
Wikipedia

Although the University continues to be under censure by the American Association of University Professors (AAUP) for academic freedom violations and continues to ban certain speakers from campus, CUA has made a general statement of policy that the academic freedom of its faculty and students will be respected.[18] It considers academic freedom a "fundamental condition for research and dissemination of information."[18] The policy sets forth its respect for the right and responsibility of its faculty and students to (i) conduct research, (ii) publish their findings, and (iii) discuss ideas according to the principles, sources and methods of their academic disciplines.[18] The University further "sanctions" the investigation of "unexplored phenomena, advancement of knowledge, and critical examination of ideas, old and new" and "accepts the responsibility of protecting both teacher and student from being forced to deny truth that has been discovered or to assert claims that have not been established in the discipline."[18]

However, the University specifically provides that "theologians" in the University are "expected to give assent to the teachings of the magisterium in keeping with the various degrees of assent that are called for by authoritative teaching."[18]

The latest in Stutz v. Larkins defamation case; Stutz Artiano Shinoff & Holtz asks for jail time for me

UPDATE: The San Diego Reader came out with a story today about Stutz client San Diego County Office of Education--SDCOE. In the Rodger Hartnett case, SDCOE has disobeyed court orders. Surely Stutz believes Superintendent Randolph Ward belongs in jail, or does Stutz simply think that its clients and itself are above the law, and only its opponents in civil law suits should be jailed (see below)?


UPDATE: REPLY TO STUTZ LAW FIRM


Richard E. Romero, Esq.
Stutz Artiano Shinoff & Holtz, APC
Dear Mr. Romero:

I am aghast at your message, sent by a public entity law firm.

Stutz Artiano Shinoff & Holtz isn't interested in getting a determination of constitutionality before asking that an opponent in a civil case be jailed for 5 days?

And at the same time Stutz has demanded that I not be allowed to say that Stutz law firm has a habit of using the threat of jail against opponents in civil cases!

Have you no respect for the Constitution? Or for your obligation as an officer of the court not to use the justice system for your personal benefit?

Maura Larkins




UPDATE: STUTZ LAW FIRM REPLIES:

To: Maura Larkins
Feb 3, 2010
RE: Meet and confer: Would your client object to a stay of proceedings in Stutz v. Larkins?

We object. -- Richard

Richard E. Romero, Esq.



ORIGINAL POST:

To: Richard Romero
Feb 2, 2010
Meet and confer:
Would your client object to a stay of proceedings in Stutz v. Larkins?

Hi Richard;
I'm writing to find out if Stutz law firm objects to a stay of proceedings while I petition the Court of Appeal for a Writ of Prohibition/Mandate/Review.

Particularly since you are asking for sanctions including jail time, fines of $2500.00, a daily fee, and attorney's fees of over $$6500.00, it is an urgent matter to have the permanent injunction, which contains prior restraints that are tremendously broad in addition to having been interpreted by the court as extremely flexible and vague, submitted for examination by Court of Appeal.

I am planning to file an ex parte application asking for a stay of
this proceeding while I appeal the constitutionality of the judge's
rulings.

Will your client object?
Sincerely,
Maura Larkins

Is SDCOE Superintendent Randy Ward in contempt of court? Am I? We both have been hit with Orders to Show Cause, basically a criminal proceeding

See all Randy Ward posts.

SDCOE lawyers are dealing with contempt of court allegations a lot these days.

SDCOE Superintendent Randy Ward is accused of contempt of court in the Hartnett case.

One of Ward's favorite law firms, Stutz Artiano Shinoff & Holtz, is busy at the same time making accusations against me of contempt of court.

And here's the kicker: SDCOE is actually deeply (and illegally) involved in Daniel Shinoff's defamation lawsuit against me. Public entities aren't allowed to sue for defamation!

Something tells me that Ward is more likely to get away failure to obey court orders than I am. When you're part of the power elite, the justice system works differently. For example, Stutz lawyer Daniel Shinoff was allowed to completely ignore a subpoena for a deposition in his defamation case against me. And he didn't have to produce documents. All he had to do was to write up a short declaration claiming my statements about him were false, and Judge Judith Hayes handed him a summary judgment victory.

Now I have an Order to Show Cause hearing on March 5, 2010.



Judge dismisses contempt order
By Jeff McDonald,
SAN DIEGO UNION-TRIBUNE STAFF WRITER
December 18, 2009 at 3:41 p.m.

The judge presiding over a wrongful-termination case against the county Office of Education dismissed a contempt-of-court order against Superintendent Randolph Ward this morning, saying lawyers who sought the order did not follow proper procedures.

Judge Steven R. Denton also said attorneys for former claims coordinator Rodger Hartnett were “hopelessly vague” in articulating how the superintendent failed to comply with the court’s earlier rulings.

Orders to show cause are “essentially criminal proceedings that require strict compliance with procedures,” Denton said.

Ward had been served with an order to show cause why he should not be held in contempt for failing to comply with Denton’s earlier rulings that Hartnett be reinstated to his job and awarded back wages.

Hartnett, who was fired in 2007, claimed in his suit he was terminated after raising questions about office billing practices. He said yesterday his attorneys plan to refile the contempt order.

Update on Stutz v. Larkins defamation case

Stutz Artiano Shinoff & Holtz were denied a second time on January 21, 2009 when they asked to have me held in contempt for not erasing every mention of their name from my websites. It's an unconstitutional order, and it's no wonder the judge didn't want to throw me in jail, as Stutz law firm asked.

The current defamation case against me has its origins in the very bizarre events at Chula Vista Elementary School District in 2001.

My lawsuit against CVESD in 2002 was the result of an odd confluence of circumstances, and at the same time it was a typical event in the system that prevails at many schools across the United States. This system values politics and personal loyalty among adults over the duty to educate and protect children.

Dan Shinoff was the school district's lawyer, and I got a real education watching him direct the district's actions. He's not happy that I've recounted publicly his interesting way of handling public entity affairs.

See summary of case.

DISTRICT LAWYERS BRING THE CASE BACK TO COURT IN 2007

As fate would have it, however, my case
is back in court. CVESD’s law firm,
Stutz, Artiano, Shinoff & Holtz,
brought this case back to San Diego Superior Court
in 2007 by filing a defamation suit against me
for publishing this website.

So it’s still possible that justice and sanity
will find their way back to Chula Vista Elementary
School District.

by Maura Larkins

Interestingly, Joe Hogan's wife, Marlene Scholz, is a player in California Teachers Association. She got involved in this case during a local affiliate president's conference at Asilomar, plunging into a long discussion with Barbara Kerr and David A. Sanchez about her husband's ex-wife, making Barbara and David very late for a planned presentation.

Leslie Devaney and school lawyers Dan Shinoff and Ray Artiano want to put a schoolteacher in jail for mentioning them on her website

I got an email this morning from Stutz, Artiano Shinoff & Holtz telling me that they have scheduled an ex parte hearing for Thursday. They are asking the judge for appropriate sanctions "including jail time" to punish me for mentioning them on my website. It's true that Judge Judith Hayes is extremely fond of the folks at Stutz law firm, but--jail?

To Leslie Devaney, Dan Shinoff, Ray Artiano and Jim Holtz:

We must always be careful about what we wish for. What if the judge were to do as you suggest, and put me in jail? Surely the media would cover the case of the school teacher that went to jail at the request of school lawyers for the transgression of mentioning their name on her website.

Sincerely,
Maura Larkins

P.S. Do you not know that we have a budget crisis in California? How much money do you want the taxpayers to spend to help you silence me? Aren't they already paying enough to your law firm?

Strange Events at the San Diego Superior Court Regarding Stutz, Artiano, Shinoff & Holtz defamation suit against Maura Larkins Website

On October 30, 2009 Judge Judith Hayes ordered that information be removed from this
website-- when she wasn't even asked to do so by a litigant!

Even stranger, Judge Hayes kept the ruling under wraps even after it had become final. I went down to the courthouse on November 5, 2009 to get a copy of the order. I discovered that I had won the decision, but that the judge, without putting any explanation in writing, had at the same time ordered that my website be censored.

I was not given a copy of the ruling when I appeared for the hearing on October 30, 2009.

The ruling concerned a Motion to throw out my official response (my "answer") to the lawsuit, an answer that I filed two years ago. Strangely, a summary judgment had already been issued against me. So why did my opponents want a default?

Wasn't it enough that the judge based her decision on the declaration of a man who refused to be deposed or turn over documents? Weren't they satisfied that Judge Hayes threw out my declaration even though I underwent a 6-hour deposition and turned over hundreds of documents?

I suppose the advantage of a default would be that my opponents could collect damages
without having the jury trial that I insist on.

Stay tuned for more of this bizarre saga--unless I am thrown into jail by Judge Hayes. I wonder if the mainstream media will cover this case if that happens?

--Maura Larkins, author of this website




P.S. I worked hard removing information. Here's a sample page.