The Utah Court of Appeals has invalidated a stalking injunction retired Utah lawmaker Mike Noel secured against one of his critics, concluding that a lower-court judge had issued the order without grounding it in the applicable legal standards.
The ruling handed down March 10 was a welcomed but expensive victory for Kanab resident William James who had argued the protection order served no legitimate purpose and was issued to punish his political activism in the southern Utah community.
Sixth District Judge Marvin Bagley imposed the order in 2020 in response to a petition Noel filed following a heated dust up between the two men at a public hearing before the Kanab City Council regarding a proposed sand quarry in the dunes west of town.
Noel alleged James’ behavior was threatening, even though video of the encounter failed to support the claim. Nor did Noel present any evidence that James leveled any actual or veiled threats or even tried to communicate with him outside public meetings.
According to the ruling written by Judge Diana Hagen, the relevant question should have been whether James’s behavior would have caused fear in “a reasonable person in [Noel’s] circumstances.” Bagley’s injunction, issued following a daylong hearing, made no such determination.
“It is far from obvious that a reasonable person in Noel’s circumstances would have feared for his safety or suffered emotional distress, given the context in which James’s conduct took place,” Hagen wrote. “The encounter occurred in a public place — a city council meeting — and in full view of a room packed with witnesses. Law enforcement officers were stationed at the meeting and ready to intervene. And Noel is an experienced public official accustomed to dealing with members of the public.”
While Noel’s legal fees were covered by the Kane County Water Conservancy District, James says he is on the hook for $17,000 in fees generated fighting the injunction. He lacked the money to retain counsel for the appellate case, so he argued the appeal pro se, while Noel was represented by Frank Mylar, a former assistant Utah Attorney General, on the appeal.
A guiding-business operator, James and many other Kanab residents opposed the proposed sand mine, which was ultimately rejected because it could have industrialized the scenic landscape that helps support the local tourism-oriented economy and threaten water supplies.
At the July 2019 city council meeting, Noel and James were both ejected after they jockeyed to be the last in line to speak and traded insults. Because he refused to leave, James was arrested. Earlier in the day, James had been asked to leave a Chamber of Commerce luncheon where he “cackled” at a presentation Noel was giving.
James contends it was Noel doing the harassing and accused him of lying in his petition to the court and on the witness stand.
“It’s disgusting for a government to use civil statutes intended to protect real abuse victims as de facto gag orders to silence anyone who dares exercise basic rights in a way that the patriarchs don’t approve,” James wrote in a GoFundMe post. “My hope is that it brings attention to the fact that while these people are the first to claim constitution when it serves their interests, they are the first to trash it when it serves their interests or when it comes to respecting the rights of dissent, freedoms, and well being of outsiders and their families.”
For his part, Noel characterized James as “a loose canyon” who approached him in a “burly manner.” He also viewed James’ posts on social media, criticizing Noel family members’ ties to the proposed mine, as amounting to threats.
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