Stalking Protective Orders (SPOs): Getting Them And Getting Rid of Them
© Mark Kramer/Kramer & Associates
mark@kramer-associates.com
1. Statutory Authority: ORS 163.730-163.753; ORS 30.866.
2. Elements of Claim:
• Within the prior two years;
• Respondent intentionally, knowingly, or recklessly;
• Engaged in repeated (two or more) and unwanted contacts:
• Must cause Petitioner reasonable apprehension about his/her personal safety
or safety of immediate family or household. Personal safety relates to
physical safety (Delgado v. Souders, 334 OR 122, 150-151 (2002)).
• With Petitioner or a member of Petitioner’s immediate family or household;
• Alarming or coercing the other person:
• Contacts must be subjectively unwanted;
• Must be objectively reasonable for Petitioner to be alarmed or coerced by the
contacts.
• To summarize from Delgado v. Souders, 334 OR 122, 133 (2002):
Applying those definitions to ORS 30.866(1)(a), we conclude that ORS
161.085(7) requires
that a defendant act with a conscious objective to engage in repeated and
unwanted contact with the
other person; ORS 161.085(8) requires that a defendant act with an awareness
that he or she is
engaging in repeated and unwanted contact with that person; and ORS 161.085(9)
requires that a
defendant be aware of and then consciously disregard a substantial and
unjustifiable risk that he
or she is engaging in repeated and unwanted contact with that person, and the
risk must be of such
a degree that a reasonable person would not have disregarded it. Stated
differently, at a minimum
(that is, in the case of "recklessly"), a defendant subjectively must be aware
of a substantial and
unjustifiable risk that the contacts in question are repeated and unwanted by
the recipient, and then
consciously and unreasonably disregard that risk.
That, in turn, demonstrates that ORS 30.866(1)(a) speaks to a defendant's
mental state and
actions with regard to a particular person--in other words, a defendant at least
recklessly must
direct his or her repeated and unwanted contacts toward a targeted, particular
person. By contrast,
a defendant who intentionally, knowingly, or recklessly places himself or
herself in a particular
location without any awareness of a substantial and unjustifiable risk that the
contacts in question
are repeated and unwanted by a particular person cannot be said to have acted
with the minimal
requisite mental state in respect of "contact[ing]" that person.
3. Certain Activities Excluded From Breach of SPO. ORS 163.755 lists a
number of
exemptions for which an SPO may not be issued, including labor activities and
persons in
the criminal justice system against law enforcement officers. However, see State
v.
Borowski, 231 Or App 511 (2009) where the Court of Appeals voided ORS 164.887
(interference with agriculture operations) under the equal protection clause to
the United
States Constitution, based upon a similar exemption for activities connected
with a “labor
dispute.” The court held that the equal protection clause was violated because
the statute
“creates a distinction (exemption) for labor protest activities, that has no
bearing on any
legitimate governmental interests.” Id. At 524. The court in Borowski declined
the option
to save the statute by excising the labor exemption, asserting that that would
have been
contrary to legislative intent.
4. Higher Burden for Speech-Based Contacts. State v. Rangel, 328 OR 294,
302-04 (1999).
Where the unwanted contacts are speech based (including writings), such contacts
must:
• Instill in the recipient a fear of imminent, serious, and personal violence;
• Express authors intention that the threat will be executed and author has the
ability
to execute;
• Be unequivocal;
• Be objectively likely to be followed by unlawful acts.
[Where there are both speech and non-speech based contacts, the speech-based
contacts can
“provide context for *** other, non-communicative contacts” and bolster a
petitioner’s claim
for a SPO. Wood v. Trow, 228 Or App 600, 606 (2009).]
5. Getting a Stalking Order - Two Paths:
• ORS 30.866 - ex parte application to Court (like FAPAs);
• ORS 163.744 - via law enforcement agency (complaint form - see ORS 163.735).
6. Hearing and Relief:
• Evidentiary standard is preponderance of the evidence. Burden on Petitioner.
• The facts alleged in the Stalking Petition are not evidence. Jones v. Lindsey,
193 Or
App 674, 677 (2004).
• Court may enter temporary order pending further proceedings or protective
order of
unlimited duration. Court may order:
• No or limited contact;
• Mental health evaluation;
• Initiate civil commitment procedures;
• Disqualify Respondent from receiving handgun license or lead to revocationof such license;
• Other relief. Petitioner may also recover special and general (economic and
non-economic) damages, including damages for emotional distress; punitive
damages; and reasonable attorneys fees and costs (ORS 30.866(4)). (Query:
Attorney fees provide for Petitioners only - Would court make the right
reciprocal for a prevailing Respondent?)
7. Terminating SPOs. Edwards v. Biehler, 203 Or App 271 (2005). Upon
application of
Respondent and hearing, Court may terminate a stalking protective order when the
bases for
issuing the order are no longer present. Court to determine whether Petitioner
continues to
suffer “reasonable apprehension” due to past acts of Respondent. Similar to FAPA
renewal
standards. [Biehler specifically references SPOs issued under ORS 163.738.
However, there
is no reason to believe that the same avenue for relief would not be available
under ORS
30.866.]
There is no prescribed time period which must pass in order for a respondent to
seek to
terminate an SPO but in Stuart v. Morris, 231 Or App 26 (2009), the Court held
that the mere
passage of 5 months after Respondent’s first motion to terminate an SPO was
insufficient.
The Court noted it is Respondent’s burden to meet the burden of persuasion on a
motion to
terminate. In Stuart, on the first and second motions to terminate, Respondent
remained
incarcerated but Petitioner continued to fear him. Petitioner testified that
Respondent’s
friends had threatened her since his incarceration.
CASE LAW - INTRODUCTION
The following case law review and analysis is not exhaustive. However, it
indicates quite
clearly the Court of Appeals’ exacting analysis of SPOs. The Court has
repeatedly struck down
SPOs, even where the underlying conduct was obnoxious, offensive, or socially
inappropriate. The
Court requires strict adherence to the elements required to sustain a stalking
order, including the
subjective and objective elements. The Court is particularly exacting when
expressive conduct forms
the basis of the stalking conduct.
CASE LAW REVIEW
Stalking Protective Orders Reversed on Appeal:
Edwards v. Lostrom, 224 Or App 253 (2008). SPO prohibits contact with
granddaughter. Petitioner
fails to demonstrate Respondent’s required mental state. No evidence that
Respondent was told his
contact with Granddaughter was unwelcome. No evidence that Respondent knew that
contact was
unwelcome.
Farris v. Johnson, 222 Or App 377 (2008). Respondent driving past Petitioner’s
home and coming
into Petitioner’s visual presence insufficient to show unwanted contact.
Encounter with Petitioner’s
husband outside courtroom at temporary SPO hearing insufficient where no
evidence Petitioner was
aware of such contact.
Goodness v. Beckham, 224 Or App 565 (2008). Ex-spouses. E-mail correspondence is
expressive
contact. Only one physical contact insufficient to meet two or more standard.
While third party
contacts can be considered, Respondent’s contacts to Eugene police not imputed
to Respondent as
prohibited physical contacts.
Lopus v. Glover, 149 Or App 482 (2004). Insufficient evidence of more than one
unwanted contact
or that any contact caused Respondent reasonable apprehension of physical harm.
Magyar v. Weinstein, 211 Or App 86 (2007). Threatening statements made not to
Petitioner but
to Respondent’s sister. Such comments could not be reason for Petitioner to fear
for “his personal
safety.” Other contacts insufficient to show reasonable fear of personal safety.
Michieli v. Morgan, 192 Or App 550 (2004). Respondent’s contacts are purely
expressive.
Insufficient evidence to meet additional proof requirements required by State v.
Rangel, supra.
Osborne v. Fadden, 225 OR 431 (2008). While evidence showed existence of civil
conspiracy by
Respondents (Husband and Wife) against Petitioners (Husband and Wife - (Wife was
Respondent/Husband’s ex) none of the e-mails and phone calls by Respondents
caused Petitioners
reasonable apprehension of personal safety. Among other things, Respondents
signed Petitioners
up for magazine subscriptions, music services, and made e-mails to Petitioners’
employer seeking
to get one of the Petitioners fired. This conduct supported the civil conspiracy
but not stalking.
Ross v. Holt, 224 Or App 405 (2008). Unmarried parents. Phone calls and
conversations
insufficient to show imminent fear of serious violence, although one contact
included a threat to take
the children. Court construed the threat as Respondent’s intention to seek legal
custody.
“Respondent had no history of violence or any activity or trait that would cause
a reasonable person
in Petitioner’s situation to be alarmed by his coming into the presence of her
or her children***.”
Id at 410 [suggests that the Court may be forced to accept character evidence
regarding
Respondent’s history of non-violent behavior.]
Sparks v. Deveny, 221 Or App 283 (2008). Respondent e-mailed contacts to
Petitoner’s ex-husband; showed up at gym where Petitioner exercised; attended her exercise
classes, sent Christmas
cards and correspondence, and made phone calls. Contacts were “boorish,
obsessive, and troubling”
but did not amount to a fear of imminent and serious personal violence as
required by Rangel. Non-expressive contacts also do not meet personal safety threshold.
Valerio v. Valerio, 224 Or App 265 (2008). Daughter/Stepmother. Yelling incident
at coffee shop
amounts to expressive conduct insufficient to meet Rangel standard.
Cases Upholding SPOs:
Boyd v. Essin, 170 Or App 509 (2000). A mix of expressive and non-expressive
contacts, but Court
rules at least three non-expressive contacts were sufficient, including
Respondent assaulting his son,
driving by Petitioner’s home multiple times per day, and watching Petitioner’s
home with binoculars.
As to the latter, although not falling within specific stalking acts (ORS
163.730 (3)), “It shows an
unwanted relationship or association between Petitioner and Respondent, and it
is precisely the kind
of contact the statute was intended to prevent.” Id at 517. Although Petitioner
did not expressly say
that she was subjectively alarmed, Court may infer such subjective state from
her testimony, the
nature of Respondent’s contacts, and his history of assaultive behavior toward
Petitioner. Judge
Armstrong, in dissent, questions the majority inferring the element of
subjective alarm.
Bryant v. Walker, 190 Or App 253 (2003). Respondent shopped at the department
store where
Petitioner worked at two or three times a week. Petitioner alleged that
respondent would stare at her
while he shopped, and he always purchased items at her check stand. Other
precipitating events
included one instance where Petitioner asked Respondent “what he was looking at”
and a separate
occasion where Petitioner saw Respondent drive by her home. On appeal,
Respondent raised two
issues. First, under ORS 163.738(2)(a)(B), he argued that he did not know his
contact was
“unwanted”. The Court disagreed with Respondent, noting that Petitioner’s
statement asking the
Respondent “what he was looking at” satisfied this standard. Second, the Court
examined ORS
30.866(1)(b)’s requirement that the Petitioner’s fear and alarm were
“objectively reasonable for a
person in [her] situation.” The Court decided that her fear was objectively
reasonable because the
Respondent drove by her house, indicating he obtained personal information about
her, and because
she had information that, at some point in the past, Respondent had been accused
of violence
towards his ex-wife.
Pinkham v. Brubaker, 178 Or App 360 (2001). SPO prohibits contact with
Petitioner’s daughters.
Respondent is ex-boyfriend who recently moved out of Petitioner’s home. Issue on
appeal is whether
Respondent’s actions constitute two or more “unwanted contacts” sufficient to
satisfy the Rangel
standard. The Court cited several examples of these. First, the Court stated
that driving the
Petitioner’s daughters from school to his house, without the Petitioner’s
knowledge is unwanted
contact. Second, the Court mentioned that shredding the girl’s dresses with
scissors amounted to
unwanted contact. Finally, the Court noted that the Respondent’s contact was
unwanted when he
parked his car outside Petitioner’s house and waited for Petitioner’s daughters
to return home from
school.
Wood v. Trow, 228 Or App 600 (2009). Both speech based and non-speech based
conduct supported
the SPO, with speech based contact providing the contacts for the non-speech
based contacts,
including Respondent wandering in Petitioner’s yard late at night with a knife
and that Respondent
had stolen mail from Petitioner’s mailbox.
Other Cases:
Lomax v. Carr, 194 Or App 518 (2004). Respondent challenged the form of citation
prescribed in
ORS 163.744 as being inconsistent with the requirements of the ORCP. The court
ruled, pursuant
to ORCP 1A, that the rules of civil procedure do not apply where “a different
procedure is specified
by statute or rule.” Since ORS Chapter 163 prescribed a different procedure for
initiating actions,
Respondent’s ORCP challenge was denied. The case, however, was reversed, because
the trial court
prohibited a due process hearing on Respondent’s challenge to the SPO. Note:
ORCP 1A provides
that the ORCP rules govern practice and procedure in all civil actions, “except
where a
different procedure is specified by statute or rule.” Therefore, except for a
few particulars,
for example, the issuance of a stalking citation under ORS 163, as an
alternative to a stalking
complaint under ORS 30.866, the remainder of the ORCP rules should apply,
including
discovery, depositions, requests for findings of facts, etc.
Johnson v. McGrew, 137 Or App 55 (1995). An appeal of a trial court’s SPO is not
a criminal
prosecution under the Oregon Constitution and Respondent is not entitled to
court-appointed
counsel. Although a Respondent may be arrested for violating an SPO, similar to
an arrest for
violation of a FAPA, that does not, in and of itself, render the case criminal
and require the
appointment of counsel.
State v. Rangel, 146 Or App 571 (1997). Defendant was charged with a stalking
criminal offense.
ORS 163.732. Defendant challenged the complaint, arguing that the stalking
statute was over-broad,
in violation of the Oregon Constitution’s free speech provisions, Article 1,
Section 8. By construing
the statute narrowly, the statute was found constitutional. See State v. Rangel
and expressive content
standards above in paragraph 3.
Stuart v. Morris, 231 Or App 26 (2009). A time-lapse of 5 months after
Respondent’s first failed
attempt to terminate an SPO was insufficient time (in the absence of new
evidence) to justify
termination of an SPO in a second attempt. Petitioner’s original fear of
Respondent, though jailed,
from threats from Respondent’s friends was sufficient to justify her reasonable
fear.
PRACTICE SUGGESTIONS
• Request ORCP 62 findings of fact and conclusions of law.
• If challenging a SPO:
• File notice of request for attorney fees citing ORS 30.866 (but note that
statute
provides expressly for Petitioners.
• Pursue pre-hearing discovery, including requests for production of documents
and
depositions. (Get court permission for in person contact at depositions.)
• When challenging an SPO, ensure that Petitioner’s evidence conforms to the
particulars of the petition or complaint.
• Consider, in dissolution and separation cases, stipulating to an order with
appropriate
restraint and no contact language pursuant to ORS 107.095(1)(c) and ORS
107.095(5) (permitting entry of the order into LEDS and NCIC), as an alternative
to
the SPO.