A judge had the authority to order a Pinal County man to stay off some areas of his own property to alleviate a neighbor’s concern of harassment, the Arizona Court of Appeals ruled last week, even though key documents were missing from the court file.
John Hack is prohibited under a court-ordered injunction against harassment from going “on or near” the Arizona City property of neighbor Cynthia Jardine. The order bans Hack from being on his property within eight feet of a west boundary wall shared with Jardine and five feet from a shared south boundary wall.
In a unanimous decision issued Jan. 13, the court of appeals affirmed the injunction issued by Judge Robert Olson of the Pinal County Superior Court, who found Hack engaged in “a series of acts” against Jardine which “would seriously harass, alarm, or annoy a reasonable person.” The acts had no legitimate purpose, Olson ruled.
Jardine accused Hack in a March 2020 petition for the injunction of erecting 12-foot “screens” along Jardine’s fence and placing two Gadsden Flags on or near the boundary lines. After a two-day hearing, Hack was given an option to accept a “distance restriction” from the boundary walls or remove the screens and flags on his property.
Hack accepted the boundary restriction at the time but later appealed, arguing Olson’s offer was unconstitutional under Article 2 of the Arizona Constitution as it prohibits Hack from “engaging in lawful conduct on his own property and violates his fundamental right . . . to acquire, possess, and protect property.”
However, the court of appeals’ 3-0 decision notes such restrictions “may, under certain circumstances, infringe on others’ constitutional rights if necessary to serve the interest of protecting citizens from harassment” and where “necessary for the protection of the alleged victim” and “proper under the circumstances.”
The appellate decision does not mention how Hack’s acts harassed Jardine.
Even though Hack lost his appeal, the decision reveals Hack’s attorneys did not file one of the key records of what happened in Olson’s court. This resulted in the court of appeals making its ruling based only on what was provided.
“Hack did not provide this court with the transcript for the hearing on April 23, 2020, the first of the two hearings on Jardine’s petition,” the appellate decision states. “Without this transcript, we presume the evidence and arguments presented at the April 23, 2020 hearing support the trial court’s ruling to grant Jardine’s injunction.”
Court records show Olson did not order Hack to remove the screen because to do so was “beyond an injunction against harassment. Nor was Hack enjoined from flying the Gadsden flag.
But Olson did note when issuing the injunction that flying a flag which “has the message such as the Gadsden flag” where Jardine could see it could be seen as impermissible communication under the injunction.
The Gadsden Flag’s “Don’t Tread On Me” message was initially directed toward King George during the American Revolution. It has been adopted by other groups in the United States over the next 245 years, including the Libertarian movement and the Tea Party. Most recently it has become a symbol of limited government.
In 2016, the EEOC ruled that the flag can “sometimes” be interpreted “to convey racially-tinged messages in some contexts.”
