E-FILED IN COUNTY CLERK'S OFFICE PIERCE COUNTY, WASHINGTON September 22 2011 12:06 PM

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KEVIN STOCK COUNTY CLERK

NO: 11-2-13049-1

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SUPERIOR COURT OF WASHINGTON IN AND FOR PIERCE COUNTY

CHARLES COX and JUDY COX, husband and

NO.

11-2-13049-1

9 wife,

10 Plaintiffs"
v.
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REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

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JOSHUA POWELL; STEVEN POWELL; ALINA POWELL; and MICHAEL POWELL,

Defendants.

A. This Court should deny defendant's motion to shorten time.

Plaintiffs served defendant with their Motion for Preliminary Injunction on August 31,

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2011. Declaration of Anne Bremner ii 2 ("Bremner Decl."). A note for motion was set for
September 9, 2011.

!d. On September 8, 2011, Mr. Lobsenz contacted plaintiffs' counsel to

provide his notice of appearance. d. ii 3. Mr. Lobsenz also requested a continuance of the
original September 9th hearing date. d. Out of courtesy to Mr. Lobsenz and his client, plaintiffs
granted the continuance and reset the hearing for September 23,2011. d. iiii 3-4.

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On September 21, 2011, at approximately 12:00 p.m., Mr. Lobsenz served defendants

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with defendant Joshua Powell's motion to shorten time, defendant Joshua Powells motion to

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strike declaration of Charles Cox, defendant Joshua Powell's memorandum in opposition to

REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION - 1
11532-030894 810371x

STAFFORD FREY COOPER

PROFESSIONAL CORPORATION

601 Union Street Suite 3100

Seatte WA 98101.1374

TEL 2066239900 FAX 2066246885

1 motion for preliminary injunction, and defendant Joshua Powell In Opposition to Plaintiffs
2 Motion for Preliminary Injunction. Bremner Decl. ii 5.
3 Although defendant was given a two-week extension and ample time to review and draft

4 a response to plaintiffs' motion for preliminary injunction, he waited until the last possible

5 minute to serve plaintiffs with his motion to shorten time and motion to strike. This
6 strategically-executed maneuver has prejudiced plaintiffs and wil limit their ability to reply if
7 the motion to shorten time is granted. Additionally, defendant did not meet the notice

8 requirements under PCLR 7. PCLR 7(c)(2)(D) states that "the party requesting the Order to
9 Shorten Time shall notify all opposing parties of the Motion to Shorten Time and the time and

10 location of its presentation." Mr. Lobsenz sent plaintiffs counsel an email on September 20,
11 201 1, providing his "intention to note a motion for shortened time to strike portions of the
12 Declaration of Charles Cox." Bremner Decl. ii 6, Ex. A. However, he failed to provide a time

13 and location for its presentation. Rather, he waited until the next day and provided that
14 information at the same time defendant's response to the motion for preliminary injunction was

15 provided.

16 Plaintiffs have not been provided a reasonable amount of time to prepare a response to
17 this motion or the motion to strike the declaration of Charles Cox as they have been required to

18 devote all of their time to replying to the Motion for Preliminary Injunction. Defendant's
19 Opposition to the Motion for Preliminary Injunction includes an eighteen page memorandum in

20 opposition as well as a seven page declaration with attached exhibits. Defendant knew that
21 serving the two motions along with the responsive materials would require plaintiffs to limit their
22 focus on each motion, especially considering the 24-hour time period to respond.

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REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION - 2
11532-030894 810371x

STAFFORD FREY COOPER

PROFESSIONAL CORPORATION

601 Union Street Suite 3100

Seatte WA 98101.1374

TEL 2066239900 FAX 2066246885

1 A deviation from the normal time limits should not be permitted unless there is ample
2 notice and time to prepare. Loveless v. Yantis, 82 Wash. 2d 754, 513 P.2d 1023 (1973). There

3 has not been ample notice nor has there been time to prepare a response to the motion to shorten

4 time or the motion to strike the declaration of Charles Cox. As a result, this Court should deny
5 both motions.
6 B. Plaintiffs have never alleged they have standing to bring claims for violation of

the privacy of Ms. Cox Powell or Ms. Cornett.

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Plaintiffs' standing rests in the violation of their own personal privacy rights. The
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Restatement (Second) or Torts, 6521, comment a, states that a "cause of action is not
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assignable, and cannot be maintained by other persons such as members of the individuals'

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family, unless their own privacy is invaded along with (hers)." (emphasis added). Here,
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plaintiffs' privacy rights were invaded by the publication of their daughter's journals that
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contains information directly linked to their private lives.

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The Washington Supreme Court has recognized a protectable privacy right where
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conduct towards an immediate family member is sufficiently egregious to enable the family
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member to maintain his or her own action. See Reid v. Pierce County, 136 Wash.2d 195,961
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P.2d 333 (1998) ("When there are unusual circumstances.. .it may be that a defendant's conduct
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towards (a family member) wil be found to be sufficiently egregious to give rise to an

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independent cause of action in favor of members of (that individual's) immediate family.")

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(quoting Loftv. Fuller, 408 So.2d 619, 624 (Fla.App.1981)).

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Plaintiffs have shown that their daughter's journals contain detailed information about
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them personally and their private family life. Publication of the journals by defendant invades
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the recognized and legally protected privacy rights of plaintiffs.

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REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION - 3
11532-030894 810371x

STAFFORD FREY COOPER

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100

Seattle WA 981011374

TEL 2066239900 FAX 206.624.6885

C. Ms. Powell's journals are not a matter of public concern that outweighs her

family's privacy interest.

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While Plaintiffs have participated in the public debate surrounding the disappearance of
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their daughter, this does not open the door to every intimate detail of their family lives.
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Restatement (Second) of Torts 652D (1977), comment h, points out that not all matters are of a
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legitimate public interest:

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The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake which a reasonable member of the public, with decent standards, would say that he had no concern.
Even where matters are within the protected sphere of legitimate public interest, private facts about an individual nevertheless lie outside that sphere. In Virgil v. Time, Inc., 527 F.2d 1122

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(9th Cir. 1975), an action by a surfer based on publicity about his private affair in an article about
surfing, the Ninth Circuit pointed out that

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(t)he fact that (people) engage in an activity in which the public can be said to have a general interest does not render every aspect of their lives subject to public disclosure.
public can be said as matter of

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Most persons are connected with some activity, vocational or avocational, as to which the law to have a legitimate interest or curiosity.

Id. at 113 1. In the age of the internet, Facebook, Twitter, and other social media outlets, each

member of our society at some time is likely to engage in an activity that could be characterized

as a matter of public interest or concern; to permit that activity to open the door to the exposure
of any truthful secret about that person would render meaningless the tort of public disclosure of
private facts.

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Supporting plaintiffs' plea for privacy, Courts have previously recognized family
members' rights to privacy in the diaries of

persons involved in possible crimes. In Sheets v. Salt

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Lake County, 45 F.3d 1383 (1995), Gary Sheets, the husband of a murder victim sued the county

and county investigator for violation of a constitutional right to privacy based on release to a
REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION - 4
11532-030894 810371x

STAFFORD FREY COOPER

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100

Seattle WA 98101.1374

TEL 206623.9900 FAX 206.624.6885

1 book author of excerpts from his wife's diary. Sheets sought to avoid disclosure of portions of
2 his wife's journal that were personal to him and his marriage. Id. at 1388. The court found that

3 Sheet's had a reasonable expectation of privacy surrounding the diary and that such right was

4 violated when the county investigator released the diary.

5 While recognizing that Sheets did not author the diaries and that his wife's murder was a

6 public event, the court stil found that his privacy rights had been violated: "(t)he fact that Mr.
7 Sheets did not author the information does not prohibit him from having a distinct privacy
8 interest in the dissemination of information written about the personal aspects of his life." Id.

9 The court even acknowledged that the facts revealed in the diary about Sheets may not be
10 controversial or embarrassing, but determined that information need not be embarrassing to be

11 personal: "We find that information conveyed to one's spouse or that one's spouse has observed

12 about one's character, marriage, finances, and business to be personal in nature and subject to a
13 reasonable expectation of

privacy." Id. (emphasis added).

14 Similar to Sheets, the Plaintiffs have a reasonable expectation of privacy, even where 15 their daughter and her journal have become a topic of public interest. There are some facts that
16 are inherently protected by the right of privacy. See Cowles Pub

i 'g Co. v. State Patrol, 109

17 Wash.2d 712, 748 P.2d 591 (1988) ("Every individual has some phases of his life and his

18 activities and some facts about himself that he does not expose to the public eye, but keeps
19 entirely to himself or at most reveals only to his family or to close personal friends.") (emphasis
20 added).

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REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION - 5
11532-030894 810371x

STAFFORD FREY COOPER

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100

Seattle WA 98101.1374

TEL 2066239900 FAX 2066246885

D.Prohibition on the publication of Ms. Cox Powell's journal is not an

unconstitutional prior restraint on speech.

Every case supporting defendant's position that the publication of Ms. Cox Powells
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personal and most intimate writings is an unconstitutional prior restraint on speech is

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distinguishable from our present facts as those cases deal with either cases of defamation,

opinion, or a legitimate public interest.

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7 statements.

1. Plaintiffs are not seeking to enjoin defendant's opinions or defamatory

8 Plaintiffs are not seeking to enjoin defendant from making defamatory comments about
9 his wife. Rather, they are seeking to prevent the publication of protected private information in

10 the journal entries authored by Ms. Cox PowelL. Defendant has cited numerous cases that deal
11 with issues of defamation or opinion, but has provided nothing that supports the argument that a
12 restraint on publication of private journals is unconstitutionaL. See Near v. Minnesota, 383 U.S.

13 691 (1931) (determining that the appropriate means of punishing defamation was through libel

14 laws, not injunction); Organizationfor a Better Austin v. Keefe, 402 U.S. 415 (1971) (barring an
15 injunction which prohibited publication that criticized business practices of real estate broker). It

16 is defendant's prerogative if he wants to defame and/or allow his family to defame his missing

17 wife's character. Plaintiffs are only seeking to restrain the publication of the journals, not any
18 defamatory material or opinion defendant may choose to express.
19 2. The journals are not of legitimate public concern so as to give way to the

privacy interests of plaintiffs.

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The private journal entries of Ms. Cox Powell are not of legitimate public interest and are
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not a public record. The cases cited by defendant are distinguishable from our present facts

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because Ms. Cox Powell's journals have not become public record and her most intimate

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REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION - 6
11532-030894 810371x

STAFFORD FREY COOPER

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100

Seatte WA 981011374

TEL 206.623.9900 FAX 206624.6885

1 thoughts and descriptions of her family life are not of legitimate public concern. See New York

2 Times Company v. United States, 403 U.S. 713 (1971) (disallowing a prior restraint while

3 emphasizing the necessity of open debate and discussion of public issues); See Oklahoma Publg

4 Co. v. District Court, 430 U.S. 308 (1977) (prohibiting an injunction against publication of
5 juvenile's name where obtained from court proceeding attended by members of the press with
6 full knowledge by the judge, prosecutor, and defense counsel); Cox Broadcasting Co. v. Cohn,

7 420 U.S. 469 (1975) (finding that the actual privacy of a matter fades in significance because it

8 has already been made a part of public record and is therefore already on the books). Defendant
9 has not provided any argument to support how Ms. Cox Powell's intimate personal details of

her

10 life and the life of

her parents are a legitimate public concern that outweighs the family's privacy

11 rights.
12 Where an item is not of legitimate public concern, courts have maintained injunctions
13 prohibiting disclosure. See In re Minor, 149 IlL. 2d. 247, 250, 595 N.E.2d 1052 (1992) (finding
14 that juvenile Court Act section authorizing court to prohibit newspaper from disclosing identities

15 of victims was not unconstitutional prior restraint on freedom of speech). Indeed, publication of
16 one's private and personal diary entries would surely have a chiling effect on private speech:

17 " 'The essential thrust of the First Amendment is to prohibit improper restraints on the
voluntary public expression of ideas; it shields the man who wants to speak or publish

18 when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same 19 ultimate end as freedom of speech in its affirmative aspect.' "
20 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S., at 559, 105 S.Ct. 2218 (quoting
21 Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 244
22 N.E.2d 250,255 (1968)).

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REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION - 7
11532-030894 810371x

STAFFORD FREY COOPER

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100

SeattleWA 98101.1374

TEL 206.623.9900 FAX 2066246885

1 3. The alternative remedy of civil damages wil not suffice.

2 Individuals have a constitutional right to privacy against disclosure of personal matters,

3 Whalen v. Roe, 429 U.S. 589, 599 (1977), and the only justifiable remedy is to enjoin publication

4 of Ms. Cox Powells journals. Plaintiffs have a reasonable expectation of privacy in the
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information contained within their daughter's journals and defendant has provided no justifiable
argument establishing the public interest is greater than the family's privacy interests. A remedy

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sought in tort is insuffcient to deal with the evils at hand. As the Washington Supreme Court
stated in Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 237, 654 P.2d 673 (1982), ailel 467
U.S.

20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984),

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affords to the privacy interest of individuals. A threatened invasion of those interests may
existent tort principles and yet be properly a subject of governmental sanction.
Denying an injunction in the present matter strikes directly upon the sanctity of this family's

( a) tort action should not and does not constitute the sole protection which government

not have all of the characteristics necessary to warrant recovery of damages under

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private life and opens the most secure door recognized by our laws. In instances like this, private
information simply must remain private.
E. Conclusion

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For the reasons stated above, plaintiffs Charles and Judy Cox respectfully request this
Court grant their Motion for Preliminary Injunction.
DATED this
day

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of

, 2011.

STAFFORD FREY COOPER

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By:

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Anne M. Bremner, WSBA #13 Evan D. Bariault, WSBA #42867 Attorneys for Plaintiffs
REPLY TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION - 8
11532-030894 810371x

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STAFFORD FREY COOPER

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100

Seattle WA 981011374

TEL 2066239900 FAX 2066246885