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Howard Russell Yntema v. Leah Smith

Court denies review of speech restriction order in a divorce proceeding, but acknowledges potential due process concerns for nonparties

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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.[1] 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. I am authorized to state that Justice Warren and Justice LaGrua join in this concurral.

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