Opinion
S24C0850
09-17-2024
HOWARD RUSSELL YNTEMA v. LEAH SMITH.
Court of Appeals Case No. A23A1660
The Honorable Supreme Court met pursuant to adjournment. The following order was passed:
The Supreme Court today denied the petition for certiorari in this case.
All the Justices concur.
PETERSON, Presiding Justice, concurring.
I concur fully in the denial of Howard Yntema's petition for a writ of certiorari. Although there is gravity in whether the order of the trial court prohibiting a broad range of speech by a variety of people was permitted by the federal and state constitutional rights to free speech, Yntema consented to that order (and so waived whatever rights the order might otherwise have violated). But Kitty, Yntema's new wife, was not a party to the litigation, and did not consent to the order.
It seems to me that Kitty's challenges to the order - both on free speech grounds and on due process grounds as a nonparty - are significant. And I have serious doubts about aspects of the Court of Appeals's resolution of those challenges. But Kitty has not filed a petition for a writ of certiorari, and this is not the sort of case warranting the exercise of our certiorari power sua sponte. And, in any event, as the Court of Appeals rightly noted, its review was very limited given that the trial court order on appeal is interlocutory. It may be that Kitty can more persuasively raise constitutional challenges before the trial court on remand; although the Court of Appeals's narrow decision will be law of the case in future proceedings before the trial court and the Court of Appeals as to the issues actually decided, it does not prevent either court from considering broader issues on remand, and does not prevent our consideration of an eventual cert petition even as to the issues already decided by the Court of Appeals.
As to the due process issue, the case law on which the court relied for a trial court's authority to hold a nonparty in contempt does not seem to apply. The Court of Appeals concluded that the consent order applied to Kitty merely because she had notice of it. Notice is a necessary condition, but is not sufficient alone. The sole case the Court of Appeals cited in which a contempt order was upheld involved a nonparty taking extraordinary efforts to frustrate orders of the trial court, and then being held in contempt for those efforts. See Wilkerson v. Tolbert, 239 Ga. 702 (238 S.E.2d 338) (1977). The Court of Appeals cited no decision of our Court empowering trial courts to include nonparties within the scope of an order like the one here absent some previous effort to impede the trial court's lawful authority. And as to the free speech issue, the Court of Appeals properly recognized that at least some of the trial court's order was constitutionally impermissible. But it applied a decision of our Court for the proposition that it is constitutionally permissible for a trial court to require parties in a divorce proceeding "to refrain from making derogatory remarks about the other before the children." See Maloof v. Maloof, 231 Ga. 811, 812 (6) (204 S.E.2d 162) (1974). That statement in Maloof cited no authority, Maloof has never been cited by our Court, and the statement was dicta, given the Court's holding that the order at issue was not permissible. And, in any event, Maloof's conclusory dicta was limited by its terms to parties. It is not at all clear that broad prior restraints such as those here (which extended far beyond statements made in the presence of the children) would satisfy the constitutional rights to free speech. See, e.g., K. Gordon Murray Prods. v. Floyd, 217 Ga. 784, 790-793 (2) (125 S.E.2d 207) (1962) (holding that prior restraint that was permissible under United States Constitution was impermissible under Georgia Constitution); see also Shak v. Shak, 144 N.E.3d 274, 279-280 (Mass. 2020) (considering nondisparagement order in divorce proceeding under First Amendment and holding that, although "the State has a compelling interest in protecting children from being exposed to disparagement between their parents," order was impermissible prior restraint because no case-specific showing was made "linking communications by either parent to any grave, imminent harm to the child" (citations and punctuation omitted)); Yanez v. Sanchez, 548 P.3d 341, 345 (Ariz.Ct.App. 2024) (while considering First Amendment challenge to order imposing speech restrictions in domestic case, observing "nearly every state to have tackled the issue requires proof of actual or threatened physical or emotional harm to a child" and invalidating order due to lack of record "evidence of actual or threatened physical or emotional harm to the child") (citing cases).
I am authorized to state that Justice Warren and Justice LaGrua join in this concurral.