Court Reverses Harassment Conviction for Vulgar Calls to City About Water Shutoff

From yesterday's Ohio Court of Appeals decision in State v. Golga (my students Dice Hagiwara, Jonathan Kaiman, and Brandon Peevy and I had filed an amicus brief in the case, with the invaluable help of local counsel Jeffrey M. Nye [Stagnaro, Saba & Patterson], on behalf of Profs. Stephen Lazarus, Kevin O'Neill, Margaret Tarkington, the 1851 Center for Constitutional Law, and myself, urging reversal of the conviction):

The City of North Ridgeville … shut off the water supply to Mr. Golga's residence because of nonpayment. He responded by calling the City's Water Department eight times over the course of 26 minutes. During the calls, he screamed, used profanity, and insisted his service be restored. An accounting clerk attempted to aid him but ended several calls because Mr. Golga would not stop screaming and cursing at her. Needing a moment, she allowed another of his calls to go to voicemail. He left the following voicemail message:

[Y]ou can't just be hanging up on people. That's f***ing bullsh*t. If you're f***ing trying to kill me by turning my f***ing water off, then f*** you. And if you'd like me to come down to the f***ing thing, we can have a f***ing conversation, go f*** yourself! You think you're f***ing bad? Yeah, f*** him. Let's starve him out. Let's f***ing kill 'em all, right? F*** you!

Mr. Golga eventually spoke with the City's public utilities director who came up with a plan to restore Mr. Golga's water service the next morning.

After Mr. Golga's voicemail message was forwarded to the police, he was charged with one count of telecommunications harassment in violation of Revised Code Section 2917.21(A)(1). A jury found him guilty of the offense. The municipal court sentenced Mr. Golga to 180 days in jail but suspended 177 of them. It also ordered him to complete anger management.

The Court of Appeals reversed, in an opinion written by Judge Jennifer Hensal and joined by Judge Donna Carr:

Section 2917.21(A)(1) prohibits any person from knowingly making a telecommunication "with purpose to harass, intimidate, or abuse any person at the premises to which the telecommunication is made, whether or not actual communication takes place between the caller and a recipient * * *." "'Abuse' may be defined as '[t]o injure (a person) physically or mentally.'" Intimidation "involves the creation of fear in a victim," especially by way of threats. "Finally, 'harassment' may be defined as '[w]ords, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress to that person and serves no legitimate purpose; purposeful vexation.'" …

It is understandable that the employees felt harassed, intimidated, and abused by Mr. Golga's profanity-laced tirades and they were justified in hanging up on his repeated calls. For Mr. Golga to be guilty of telecommunications harassment, however, we must focus on his state of mind and whether it was his purpose to "abuse, [intimidate], or harass" them.

A careful review of the record reveals that it does not contain any evidence that Mr. Golga's calls were made to purposefully abuse, intimidate, or harass the employees. The employees testified that Mr. Golga called the utilities department to get his water service turned back on. He began the first call politely but became irate when he learned that they could not or would not help him. He began repeatedly swearing at them and accused them of trying to kill him and his children by depriving them of water. He specifically told a child who was with him that the employee he was talking to wanted to kill the child. The employees could not remember exactly what Mr. Golga said during the phone calls, but said it was similar in content to his voicemail. Mr. Golga stopped calling after the public utilities director intervened and made arrangements with Mr. Golga to have his service restored.

In his voicemail, Mr. Golga expressed that he thought the employees were trying to harm and harass him. He rejected their invitation to come down to the utilities department to have a conversation. He accused them of trying to act "bad[,]" trying to "f*** him" over, trying to starve him, and trying to kill him. Those are statements of one who is threatened, not one who is intentionally seeking to harass, intimidate, or abuse others. The dissent contends that there was no evidence that the employees invited Mr. Golga to come to the water department, but the employee who initially received Mr. Golga's calls testified that, after a customer receives a final shut off notice, the customer must come into the department to make arrangements to continue their service, which includes putting the arrangements in writing.

Because there was no evidence of purposeful intent by Mr. Golga, we conclude that his conviction for telecommunications harassment is not supported by sufficient evidence….

Judge Carr joined, but added:

I write separately to express my concern that prosecutions for telecommunications harassment such as the one here could have a chilling effect on the First Amendment rights of citizens to contact government offices in order to redress grievances. Courts should remain mindful that the First Amendment affords protections against laws which abridge the freedom of speech as well as the freedom to petition the government to redress grievances.

Judge Jill Flagg Lanzinger dissented; an excerpt:

Both the accounting clerk and the Public Utilities Director repeatedly expressed how Mr. Golga's calls negatively affected them. They testified that they felt abused, intimated, harassed, and concerned for their safety. The accounting clerk testified that, in her 17 years working for the Water Department, she "only had two customers that [she had] been truly * * * worried about them coming to City Hall and Mr. Golga was one of them." The Public Utilities Director testified that, of all the "irate residents" she had dealt with during her time at City Hall, Mr. Golga "rank[ed] at number one." …

Viewing the evidence in a light most favorable to the State, a rational trier of fact could have concluded that the State proved its case beyond a reasonable doubt. Mr. Golga repeatedly called the Water Department to scream and curse at the two females who answered his calls. Even if he initially called the department for a legitimate purpose (i.e., to have his water service restored), the accounting clerk testified that he quickly became aggressive when he was told his water service would not be restored without payment. The change in the tone and manner of his speech, combined with the frequency of his calls, evidenced a specific intent to abuse, intimidate, or harass the accounting clerk and the Public Utilities Director. Both women described how Mr. Golga screamed at them, swore at them, and refused to listen to any of their efforts to aid him.

The voicemail he left did not contain any pleas for aid or questions about the restoration of his service. He left the voicemail to condemn the accounting clerk for terminating his call, accuse her of trying to kill him, and suggest she might like him to "come down to the f***ing thing" to "have a "f***ing conversation." Both the accounting clerk and the Public Utilities Director noted that Mr. Golga's calls were some of the worst they had received while working for the City. Indeed, Mr. Golga appeared to recognize the outrageousness of his own behavior when he introduced himself in person as "the psychopath" or something similar. Based on the foregoing evidence, the jury reasonably could have concluded that it was Mr. Golga's specific intent to mentally injure the females, cause them fear, and/or annoy, alarm, or cause them substantial emotional distress for no legitimate purpose….

Peter Pattakos and Gregory Gipson represent Golga.

Comments

[Brett Bellmore]

Regrettably, sounds right: The law hinged on intent, not effect. No matter how abusive he was, it's pretty clear his intent was to get his water turned back on.

[apedad]

Honest question . . . why do you say regrettably?

[Brett Bellmore]

I don't like harassment?

[Rev. Arthur L. Kirkland]

Antisocial boors and substandard parents have rights, too.

[David Nieporent]

Strangely, the Usual Suspects™ aren't accusing Prof. Volokh of having some sort of right wing agenda by posting this.

[Rev. Arthur L. Kirkland]

This seems to be more sympathy for awkward misfits than clinger tribalism.

[NvEric]

"... they felt abused, intimated, harassed, and concerned for their safety." Being in Public Service has some drawbacks, however, receiving abuse is to be expected and, perhaps justified, even though repugnant. Mr. Golga is the sort who brings down standards.

However, water is required for many reasons, and the cost of that water is miniscule compared to the infrastructure required for delivery, which has already been paid for. Might a reduction in flow be tried first to get customer attention ?

[Bob from Ohio]

Water departments are almost universally the worst departments.

[apedad]

I thought it was local school boards that were the worst departments.

Or university administrators.
Or TSA agents.
Or the FBI, IRS, ATF, NSA, etc.

Or just about any local, state, or federal govt entity because you're simply anti-gubment.

[Brett Bellmore]

They're all the worst when you're interacting with them.

Well, no, I must admit that DMVs have actually dramatically improved over my lifetime. They used to deserve every bit of abuse flung their way, these days they're very organized, friendly, and efficient. One of the rare cases of a bureaucracy improving.

[Rossami]

No. Not only would that be illegal, it's impossible. Water systems aren't built with valves like that. Retrofitting them in to the existing systems would cost billions. Being more complicated valves, they'd also fail more often and have to be replaced more often. All for the dubious value of temporarily intimidating a tiny minority of delinquent payors.

[Brett Bellmore]

Eh, it's possible to turn the valve part way, and just restrict the flow, but doing so is more work than just shutting it off, it's hard to tell you've done it unless the customer is using water at the time, and you can hear the turbulence set in.

And it really wouldn't have much effect until it was almost completely closed, because the valve is sized to handle the maximum demand. So, your toilet tank refills slower if you're running a load of laundry AND taking a shower, how noticeable is that?

So, impractical? Sure. But, illegal? How so?

[Vandalia]

In her dissent, why did Judge Jill Flagg Lanzinger keep referring to the employees as "female"? How is that relevant to the issues presented?

[jimc5499]

I found that funny. About six years ago my Gas was shutoff because I missed a payment. When I called the Gas Company the girl said "Let me check your account." When she got back to me she said "This is strange. You have a $700 credit." We figured out that no one ever checked the meter. They went off an estimate based on history. That was when my Mother, two Sisters and my Sister's two kids lived with me. I said 'Fine. Turn the gas back on." She said that they couldn't do it. I had to come in and pay a $50 reconnect fee. I said "Can't the fee come out of the credit?" I was told that it couldn't and that I had to come in and pay it. That where I almost went off like the guy did about his water. Since I lived an hour away from my job and their office didn't open until 9AM I had to take a half day off to pay the $50. Then I had to make it a full day because somebody had to be there when they turned it on to make sure all of the pilots were lit.

[John F. Carr]

Prof. Volokh recently posted about the inability of the government to sue for defamation. I think a similar principle should apply to the voicemail message. When such a message sent to a government recipient about official business, the employees should be required to be thick-skinned. It would be OK if they told him to call back after he calmed down.

If the shouting is about private affairs or contains a threat, then bring out the lawyers.

[mulched]

I think I'd disagree on this one. The guy's end goal was getting his water back on, but he intended to harass the workers -- as a way of getting them to turn it back on.

[Drewski]

"End goal" is the same as "purpose," which is what the statute looks to. Intent to harass is fine under the statute as long as the purpose is legitimate.