1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. SARAH LEVINE SIMON, Respondent.

MARTA LYALL, Petitioner,

THE HONORABLE MARIANNE SPEARMAN Hearing Date: June 7, 2011 8:30 a.m.

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

NO. 11-2-16227-3 SEA PETITIONERS MOTION FOR ENTRY OF ANTI-HARRASMENT ORDER PURSUANT TO RCW 10.14 et seq., AND OPPOSITION TO RESPONDENTS MOTION TO STRIKE

I. RELIEF REQUESTED Petitioner, Marta Lyall, requests this Court enter a constitutionally valid AntiHarassment Order to protect her from Respondent, Sarah Simons course of vengeful, illegal and damaging conduct. Significant portions of Simons internet posts and damaging emails, cross the line between legitimate discourse or expression regarding her sons 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 sons criminal harassment. Some intrude on Petitioners privacy. Almost all are, in part if not in whole, highly offensive.
PETITIONERS MOTION FOR ENTRY OF ANTIHARRASMENT ORDER PURSUANT TO RCW 10.14 ET SEQ., AND OPPOSITION TO RESPONDENTS MOTION TO STRIKE PETITIONERS MOTION FOR ANTI-HARASSMENT ORDER PAGE - 1

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The content and character of Simons posts demonstrate her improper intent: (1) to punish her sons victim for reporting his crime, aiding the prosecution and embarrassing her family; and, (2) 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 Respondents motion for outright dismissal of Petitioners request for a protective order coupled with an award of $10,000. Denial of Respondents motion to strike is required for three reasons: (1) Washingtons 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 Petitioners requested protective order will issue, in one form or another. Respondents assertion that RCW 4.24.525 requires this Court to leave a crime victim standing alone and unprotected from efforts of her perpetrators 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 Simons Harassment After Noah was convicted Respondent started gathering information on Petitioner. She acknowledged she engaged a private investigator. Ex. She requested Ms. Lyalls employment to chill Petitioner from seeking enforcement of court ordered restitution and

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 Courts 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. PETITIONERS MOTION FOR ANTI-HARASSMENT ORDER PAGE - 2

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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 in legal actions against any of the above. Or whether complaints were 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 Petitioners 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 Tichmans passing was reported in Julliards Online Journal in February of this year. Ex. Ms. Simon has sent many emails to the Court, Petitioners 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 sons case with the world. Ex. But the site says much more about Lyalls past than it does her sons 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 CMUs defense attorneys from Ms. Lyalls personal diaries. Id. It discusses her history with therapists, the fact that she is rape victim, and a ten year old psychiatric diagnosis that wasnt even correct at the time. In section X of this post Respondent mischaracterizes a on a Martas 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 defenses unchallenged allegations, and merges that content with content from other sources 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-contextualizes my 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 distort my experience that lead to a legitimate claim of discrimination and retaliation, and to publicly humiliate me. It is a retrying of this distorted version of the defenses position in a forum where I cannot respond without causing myself further damage. It is intentionally 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 began the first day of my appointment at Carnegie Mellon University in 1995. It has harmed me both professionally and personally. Respondent also uses the site to re-write the history of Noah Simons 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 Simons 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 CMUs conduct. Petitioners 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 fianc. She studied for and obtained her brokers license. Despite the onset of Noah Simons 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 Noahs conduct, would be restored. Then Ms. Simons 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 Respondents recent conduct regarding Petitioner, the victim of her sons criminal harassment, constitute unlawful harassment itself under RCW 10.14.020? YES. Is the doctrine of prior restraint applicable to a Court order that restrains future publication of material previously published and found to be an abuse of free speech rights? NO Can this Court restrain Respondent from republishing material that constitutes unlawful harassment of a crime victim without violating Respondents right to free speech? YES Is the protection of a crime victim from intentionally harassing conduct that is designed to punish the victim for reporting a crime and assisting the state in its prosecution as well as to chill the victim from seeking enforcement of court ordered restitution and protection a compelling state interest that warrants a narrowly tailored restraint on Respondents speech? YES

2.

3.

4.

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5.

Can this Court craft a protective order that restrains Respondent from engaging in a continuing course of unlawful harassment targeted at the victim of her sons crimes, that does not impermissibly tread on Respondents 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 Simons Recent Conduct is Unlawful Harassment Warranting a Protective Order Sarah Simons 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 Petitioners 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

17 not believe everything Respondent publishes, he is likely to prefer a candidate that did not 18 19 this post-conviction harassment is close to intolerable. It is detrimental to her emotional and 20 21 22 23 24 25 review of the factors listed in RCW 10.14.030 demonstrates the fact. 26 Petitioner is initiating the attacks; Respondent knows the attacks are unwanted; the conduct is
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attract such hostility. After all Ms. Lyall has been through at the hands of Respondents son,

physical well-being. Respondents false statements and unnecessary intrusions on Petitioners 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 Respondents 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 Respondent, not

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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 A Prior Restraint of Free Speech. Restraint of a right to republish material previously published is permissible under Washingtons 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 is responsible for abuse of the right, a post-publication sanction can be imposed consistent with Const. art 1, 5. Id. In so holding the Court noted that partys 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, 81 L.Ed.2d 17 (1984), [a] tort action should not and does not constitute the sole protection which government affords to the privacy interest of individuals. A threatened invasion of those interests may not have all of the characteristics necessary to warrant recovery of damages under existent tort principles and yet be properly a subject of governmental sanction. . . . Id. Accordingly, we construe Const. art. 1, 5 to permit postpublication 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. Respondents Motion to Strike this Petition Pursuant toWashingtons Revised AntiSLAPP Statute Must Be Denied The record before the Court provides clear and convincing evidence of the probability that Petitioners 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 AntiHarassment 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 Washingtons anti-SLAPP statute has not yet been determined. Given its increased burden on Plaintffs 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 respondents Motion to Srike. Respectfully submitted this 26rd day of May, 2011. PACHARZINA LAW PLLC By: /s/Nancy A. Pacharzina________ Nancy A. Pacharzina, WSBA #25946 601 Union Street, Suite 4200 Seattle, Washington 98101 Tel: 206.652.3530 Fax: 206.456.6656 Email: nancy@pachlaw.com Attorney for Petitioner
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