IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
CATHERINE LYNNE CARTER, Petitioner
v
RORY GREY BOWMAN, Respondent
Case No. 060303051
RESPONDENT’S MOTION TO TERMINATE STALKING PROTECTIVE ORDER AND MEMORANDUM OF LAW
Oral Argument Requested
Respondent Rory Grey Bowman, through counsel, respectfully moves the Court for an order terminating the stalking protective order entered in this case on April 21, 2006, and requiring petitioner Catherine Lynne Carter to pay respondent reasonable attorney fees and costs and disbursements expended in seeking termination of the order.
Respondent requests that the Court hold an evidentiary hearing and entertain legal argument on this motion. This motion is based on the record previously developed in this case, the following memorandum of law, and evidence to be introduced at the motion hearing. Pursuant to UTCR 5.050, respondent requests oral argument and official court reporting services and estimates that the time necessary for this hearing will not exceed three hours.
FACTS
The parties met in 1994 when petitioner was a student at Reed College and respondent, a Reed alumnus, worked as a security guard there. Tr 10.[1] Petitioner dated respondent’s brother, Marcus, in 1996. Tr 10-11, 28-29. Following Marcus Bowman’s suicide in early 1997, the parties became lovers and lived together. Tr 11, 29. The parties broke up in early 1998. Tr 11.
Following their breakup, the parties saw each other socially, but this gradually stopped. A lawyer friend of petitioner’s, Marti Dell, met respondent for coffee and told him to stay away from petitioner, without disclosing that she was speaking in a representative capacity. Tr. 11-12. Respondent, to whom petitioner had given a key to her truck, used the truck to return petitioner’s remaining possessions to her. Tr. 11-12, 29. After that, contact died out. Tr 28.
In 1999, petitioner brought an action, Multnomah Count Circuit Court case no. 990708238, for issuance of a stalking protective order against respondent. Ex 1; Tr 12. Petitioner was represented by a lawyer, Nancy Cooper; respondent appeared pro se. After hearing evidence and argument, the Honorable David Smedema dismissed the case. Tr 13. Judge Smedema ordered respondent to return petitioner’s truck key through Cooper, which respondent did. Tr 13, 29, 42.
After the 1999 proceeding, respondent contacted petitioner only a few more times. Twice, on her birthdays in 2001 and 2003, he sent mail to her, once care of Cooper and once care of petitioner’s father, proposing friendship. Ex 2, 3; Tr 16, 18, 30-31, 48-50, 52-53. When petitioner did not answer, respondent stopped trying to communicate with her.
Respondent was present as a videographer at a 2003 dance performance produced by Elinor Friedberg, a former partner of his. Coincidentally, petitioner, who sometimes designed costumes for Friedberg, was also present at the performance. The parties did not, however, make contact or speak at that time. This was the last time there is any evidence in the record that the parties saw one another outside of court. Tr 16.
During the two years prior to the issuance of the stalking protective order now at issue, respondent had no contact of any kind with petitioner herself. The contacts that served as the basis for the Court’s issuance of the order were between respondent and petitioner’s boyfriend, Kevin Balmer.
In November 2005, respondent, now self-employed as a computer consultant, joined a social networking website called tribe.net in an effort to market himself to new clients. Tr 32, 45. Members of tribe.net can subscribe to various interest groups on the website. One of the interest groups respondent joined was the general Portland group.
Shortly thereafter, petitioner (who was also a tribe.net member) posted a citywide notice, seen by respondent among many others, announcing that someone had joined tribe.net who should not have her contact information and requesting that no one give it out without her permission to anyone they did not know. Tr 15, 18, 24-26, 32-33, 44. Petitioner then changed her screen name from her actual name to “Invisigoth.” Tr 24-26, 33. This name was taken from an X-Files episode that petitioner and respondent had watched during their relationship. Petitioner had told respondent at that time that she would adopt the alias “Invisigoth” if she ever had to hide out from anyone. Tr 33. Shortly thereafter, Balmer changed his user icon to a picture of himself pointing a pistol at the camera. Ex 102, Tr. 34-36, 43, 54.
Respondent was surprised, then, when in January, 2006, he received an invitation from Balmer, sent via tribe.net, to attend a screening of a film in whose production Balmer was involved. Tr 36. The invitation had been sent to several others in addition to respondent. Respondent, believing that including him in the invitation list was a gesture of reconciliation between Balmer and petitioner and himself, replied that he would attend. Tr 36-37. Posting this reply to the website was an action that other tribe.net members, including petitioner, could see. Tr 20, 36. Petitioner RSVP’d to the website after respondent. Tr. 36. Respondent attended the film, sitting by an aisle so that he could be seen. Tr 21. Petitioner was not present at the screening, and no one made contact with respondent. Tr 37.
Confused as to the meaning of the invitation and lack of followup and concerned by the possible meaning of Balmer’s self-portrait with the gun, respondent attempted to get to the bottom of things. In February, 2006, respondent emailed Balmer, asking him to clarify what the meaning of the film invitation was. Tr 21, 37.[2] Respondent subsequently left tribe.net. Tr 37, 39, 44-45.
Respondent eventually met with Balmer on the public sidewalk outside Balmer’s workplace, Consolidated National Freightways (CNF). The two men had a brief and peaceful conversation. Ex 103; Tr 21-24, 37-39, 46-47, 51-52. Balmer testified on direct examination at the previous hearing in this case that, on that day, he “wanted to give [respondent] an opportunity really to engage me.” Tr 22. Although Balmer testified that, while he may have been “just a little bit alarmed, a little bit surprised,” by respondent speaking with him outside his workplace, when asked by petitioner’s counsel, “Was there anything about [respondent’s] overture that… you took as… threatening either directly or overtly to you regarding your relationship with [petitioner]?” Balmer answered, “No there weren’t, really.” Tr 24.
Following the conversation between Balmer and respondent, petitioner filed her complaint in this case. She alleged that, within the preceding two years, respondent had made three predicate contacts: appearing at the film screening, emailing Balmer afterward, and speaking with Balmer outside CNF. The complaint also made allegations concerning the earlier letters to petitioner, but those fell outside the two-year statute of limitations. ORS 30.866(6).
The order that respondent now asks the Court to terminate was granted following an April 21, 2006 hearing before Judge Todd, where petitioner was represented by a lawyer, Robert Callahan, but respondent again was not. No charges of violating this order have ever been brought.
Respondent began the process that culminates with the instant motion by writing letters to petitioner’s counsel in late 2007 and early 2008. This was in keeping with the Court’s direction at the close of the 2006 hearing to communicate with counsel if respondent sought to modify or terminate the order. Tr 59. In July, 2008, respondent retained his own counsel to pursue termination of the order. Respondent’s counsel first sent Callahan a letter requesting that petitioner voluntarily move to vacate the order. With that request unavailing, respondent’s counsel sent a letter relating respondent’s plans to file the instant motion but proposing mediation before the motion was filed. Counsel for both parties met with the Honorable Kristena LaMar on December 2, 2008, without the parties in the room, but the attempted mediation was unsuccessful.
ARGUMENT
In Edwards v. Biehler, 203 Or App 271 (2005), the Court of Appeals held that Oregon’s stalking statutes permit a respondent to move to terminate a stalking protective order of unlimited duration.[3] By termination, the court explained, the statutes refer to “entry of an order that relieves the respondent of continuing prospective application of” a stalking protective order. Id. at 273 n. 2. This Court is empowered to terminate a stalking protective order
when, on the respondent’s motion, [the] court finds that the criteria for issuing the order under ORS 163.738(2)(a)(B)(i) to (iii) are no longer present. The court’s inquiry will focus primarily on whether petitioner continues to suffer “reasonable apprehension” due to the past acts of the respondent under ORS 163.738(2)(a)(B)(iii).
Id. at 277.
Respondent asks that the order be terminated on two grounds. First, the criteria for issuing an order are no longer present. Second, they were never present to begin with.
I. THE COURT SHOULD TERMINATE THE ORDER BECAUSE THERE IS NO LONGER ANY VALID REASON TO MAINTAIN IT.
The Court should grant respondent’s motion because, when weighed as part of the entire history of contacts between the parties, the passage of three violation-free years demonstrates that the stalking protective order is no longer necessary. The party seeking to terminate a stalking protective order has the burden of proving “that the concerns that underlay the issuance of the original [order] have sufficiently abated that the order should be set aside.” Benaman v. Andrews, 213 Or App 467, 476 (2007). Although the Court is not called to decide “whether the circumstances since the issuance of the original [order] would be sufficient to justify the issuance of a new [order],” id., the primary consideration for the Court is whether or not petitioner continues to suffer “reasonable apprehension” due to respondent’s past acts. Edwards, 203 Or App at 277.
Respondent will demonstrate at the hearing that any continuing apprehension felt by petitioner is not “objectively reasonable,” ORS 30.866(1)(b), in view of the whole record: that is, the record previously developed in this case as augmented by subsequent events.
ORS 30.866(1) has both a subjective and an objective component. To satisfy the subjective component, “[t]he contacted person must in fact be alarmed or coerced by the contacts, and the contacts must in fact cause the person apprehension regarding his or her personal safety.” Weatherly v. Wilkie, 169 Or App 257, 259, 8 P3d 251 (2000). To satisfy the objective component, “the contacted person’s alarm or coercion must be objectively reasonable” and that person’s apprehension for his or her personal safety must also be objectively reasonable. Id.”
Lowrance v. Trow, 225 Or App 250, 252 (2009).
Even if petitioner is subjectively alarmed by, or apprehensive of, respondent, any such alarm or apprehension is objectively unreasonable in view of the lack of congruence between respondent’s actual pattern of conduct toward petitioner and the types of contact that the stalking laws make potential grounds for issuance of an order. These types of contact are listed in ORS 163.730(3). Respondent will address each of them.
Other than the 2006 hearing, respondent has not knowingly entered a place in which petitioner was present since the 1999 hearing. The last time the record shows that the parties encountered each other in person outside court, even accidentally, was in 2003, at Friedberg’s dance performance. Tr. 16. It has been over a decade since the parties intentionally saw one another outside of court. Tr 16, 19; ORS 163.730(3)(a). Respondent has not spoken out loud with petitioner outside court since 1998, either. Tr 13, 16; ORS 163.730(3)(e). Respondent has not delivered any tangible objects to petitioner in person since returning her possessions in 1999. Tr 11-12, 19, 29; ORS 163.730(3)(k).
Respondent has not attempted to correspond with petitioner since shortly before the 2006 hearing, when he was confused about what he reasonably perceived as an attempt at rapprochement through tribe.net. Ex 103; Tr 38, 47-48; ORS 163.730(3)(d). Once it was made clear to respondent that Balmer’s tribe.net invitation was an attempt to promote, citywide, a work of art and was not targeted personally at him, respondent let the subject drop.
Since the previous hearing in this case, all respondent’s communications having anything to do with petitioner (or Balmer, for that matter) have been directed toward termination of the order, something it is respondent’s legal right to seek. Respondent wishes to accomplish this because the order has had undesirable collateral effects on his professional and personal life that have nothing to do with the legitimate purposes of the stalking laws and do not, in fact, afford petitioner any benefit. These communications have been sent to petitioner’s counsel or, in one instance, Balmer. None have been sent to petitioner. Since respondent retained counsel, all communications have been to petitioner’s counsel exclusively and all have been from respondent’s counsel rather than from respondent himself. ORS 163.730(3)(f).
There was no evidence presented in 2006 that respondent had ever engaged in several other types of conduct enjoined by the order with respect to petitioner. There will be no evidence that he has engaged in these types of conduct since the issuance of the order, either. Specifically, respondent has never followed petitioner, ORS 163.730(3)(b); waited outside petitioner’s home, property, place of work, or school, ORS 163.730(3)(c); committed a crime against petitioner, ORS 163.730(3)(g); communicated with a third person who has a relationship with petitioner with the intent of affecting the third person’s relationship with her, ORS 163.730(3)(h);[4] communicated with business entities with the intent of affecting some right or interest of petitioner’s, ORS 163.730(3)(i); nor damaged petitioner’s home, property, place of work, or school, ORS 163.730(3)(j).
It bears repeating that the type of apprehension against which the stalking statures are meant to guard is reasonable apprehension of physical harm. Osborne v. Fadden, 225 Or App 431, 438 (2009), citing Delgado v. Souders, 334 Or 122, 151-152 (2002). In view of the evidence, summarized above, to be presented at the hearing on this motion, together with the record of the parties’ earlier relationship, the Court should find that petitioner does not have any objective reason to believe that respondent poses a threat of physical harm to her. With that finding, respondent has met his burden under Edwards and Benaman to prove that the concerns that underlay the issuance of the original order have abated. The Court should, accordingly, order the stalking protective order terminated.
II. THE COURT SHOULD TERMINATE THE ORDER BECAUSE PETITIONER FAILED TO MEET HER BURDEN OF PRODUCTION IN THE 2006 HEARING.
Even if the Court determines that respondent is not entitled to relief on the basis of changed circumstances, it should still terminate the stalking protective order. The order has been unjustified since it was issued, because petitioner never introduced sufficient evidence to make out a proper prima facie case.
To argue that a stalking protective order of unlimited duration should be terminated because it was not supported by sufficient evidence when issued is a type of claim permitted under the principles set forth in Edwards v. Biehler but not yet explicitly discussed in a published appellate decision. Edwards held that a stalking protective order may be terminated when the criteria for issuing the order “are no longer present.” 203 Or App at 277. Given that the criteria for issuing an order were not present in the first place, certainly they are “no longer” present. The court’s determination is, under Edwards, supposed to “focus primarily” on the continuing need for the order. Neither Edwards nor the sources of authority on which it depends, however, rule out a motion to terminate a stalking protective order grounded on the invalidity of the order ab initio.[5]
To read Edwards more narrowly would plunge the Court into the thicket of potential constitutional problems with the stalking laws that the Court of Appeals deemed it prudent to avoid by permitting motions to terminate stalking protective orders. Id. at 273, 276. Assuming for the sake of argument that a stalking protective order was invalid when issued, the lack of a later means to challenge such an order would violate the right to a remedy by due course of law for every civil wrong, which is guaranteed by Article I, Section 10 of the Oregon Constitution. That absence would also violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution by creating an impermissible risk of an erroneous deprivation of weighty private rights, considering the ease of supplying alternate procedural safeguards (i.e., bringing a motion such as the instant one). See Mathews v. Eldridge, 424 US 319 (1976). If petitioner interposes a procedural objection to this reading of Edwards, respondent will address these constitutional issues at more length in a reply memorandum.
The Court of Appeals recently outlined the elements of a stalking claim.
A petitioner may obtain an SPO against another if the petitioner can establish three elements by a preponderance of the evidence. ORS 30.866(7). First, a petitioner must establish that two or more times, ORS 163.730(7), within the two years before the request for the SPO, ORS 30.866(6), the respondent intentionally, knowingly, or recklessly engaged in unwanted contact with the petitioner or a member of the petitioner’s immediate family or household, thereby alarming or coercing the petitioner, ORS 30.866(1)(a). Second, when viewed in the totality of the circumstances, it must be objectively reasonable for the petitioner to have been alarmed or coerced by the contacts. ORS 30.866(1)(b); Pinkham v. Brubaker, 178 Or App 360, 372, 37 P3d 186 (2001). Third, the contacts must cause the petitioner reasonable apprehension about the personal safety of the petitioner or a member of his or her immediate family or household. ORS 30.866(1)(c); see also Delgado v. Souders, 334 Or 122, 151-52, 46 P3d 729 (2002) (the term personal safety does not encompass apprehension of harm other than physical harm)…
Osborne, 225 Or App at 437-438 (emphasis in original).
The evidence offered at the 2006 hearing in this case failed to meet this standard in multiple ways. First, most of petitioner’s testimony concerned various general fears about respondent or prior aspects of the relationship between the parties. See generally Tr 13-18. This testimony did not substantively tend to prove any of the predicate contacts alleged in the complaint as a basis for issuance of the order. The scope of issues for decision in a stalking case is framed by the well-pled allegations in petitioner’s complaint, just as the pleadings frame the scope of issues in any civil action. Jones v. Lindsey, 193 Or App 674, 676-677 (2004). Any alleged apprehension caused by respondent’s conduct toward petitioner outside the statute of limitations is inadequate to support issuance of a stalking protective order without proof that two or more qualifying contacts happened within the statute of limitations. Id. at 681, citing Schiffner v. Banks, 177 Or App 86, 96-97 (2001). In other words, “the alarm or coercion must arise from the contact[s]” within the statute of limitations themselves. Schiffner, 177 Or App at 92.
Second, to the extent that petitioner’s evidence concerned particular actions on respondent’s part, most of those actions did not constitute “contacts” as defined in the stalking laws. For instance, respondent’s attendance at the film screening did not constitute a contact. Respondent attended the film screening in response to the tribe.net invitation, but if petitioner or Balmer were there respondent did not become aware of it, much less see them or speak with them. Tr. 21, 37. Thus, respondent did not actually make contact with either petitioner or Balmer at the film screening in any of the ways that “contact” is defined in ORS 163.730(3). ORS 163.730(3) bars only completed contact, not attempted contact.
Third, petitioner offered insufficient evidence with regard to the alleged predicate contacts themselves. Petitioner and Balmer were the only witnesses who testified in support of the complaint. Both agreed — on examination, respectively, by the Court and by petitioner’s counsel — that the only contacts made by respondent within the two years before the issuance of the order that either of them believed to fall within the ambit of the stalking laws were the messages posted on tribe.net and respondent’s meeting with Balmer at CNF. Tr. 19, 20-24. If those messages and that meeting were not actually contacts of a type barred by the stalking laws, than the order should never have been issued.
The tribe.net messages and the CNF meeting did not qualify as predicate contacts because they did not constitute threats.
[F]or contacts that involve speech, Article I, section 8, of the Oregon Constitution requires proof that the contact constitutes a “threat.” A threat (1) “instills in the addressee a fear of imminent and serious personal violence from the speaker,” (2) “is unequivocal,” and (3) “is objectively likely to be followed by unlawful acts.” State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999). That definition “’exclud[es] the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee.’“ Id. (quoting State v. Moyle, 299 Or 691, 705, 705 P2d 740 (1985)).
Osborne, 225 Or App at 437-438.
In the last year alone, the Court of Appeals has reversed multiple stalking protective orders in cases involving behavior that was considerably more outrageous than anything respondent was even accused of doing in this case. See e.g. Goodness v. Beckham, 224 Or App 565 (2008); Sparks v. Deveny, 221 Or App 283 (2008); Valerio v. Valerio, 224 Or App 265 (2008). The common thread running through all of these cases is that the expressive conduct at issue did not constitute a threat. Even “expressions of anger or frustration” — and there is no evidence in the record that respondent made any such expressions to petitioner or Balmer in the two years before April 21, 2006 — are “impotent” for purposes of the stalking laws unless they “unequivocally involve a threat that would instill in a reasonable person fear of imminent and serious physical violence.” Farris v. Johnson, 222 Or App 377, 381 (2008). None of the expressive conduct in which respondent did engage involved such a threat.
The requirement of a threat stems from Hanzo v. deParrie, 152 Or App 525, 543-544 (1998). There, radical anti-abortion activists — members of the faction of their movement that had, contemporaneously, killed or injured doctors who performed abortions in other states — aggressively protested on multiple occasions outside the home of a Portland doctor who performed abortion, verbally berating her, as well as making harassing phone calls and taking other steps to confront her. Id. at 527-534. Nonetheless, the Court of Appeals held that this conduct did not constitute stalking.
The Hanzo court determined that the stalking laws could not be constitutionally applied to any expressive conduct, even in a civil case, unless (1) that conduct represented “a threat or something that does not meaningfully differ from one”; (2) the petitioner actually felt “fear or apprehension of a danger to personal safety”; and (3) the fear or apprehension petitioner felt was objectively reasonable. Id. at 542, quoting State v. Rangel, 146 Or App 571, 577-578 (1997), aff’d, Rangel, supra, 328 Or 294. The court went on to explain that, given the requirement that expressive conduct constitute a threat or its equivalent before it can count as a predicate contact,
a civil [stalking protective order] can constitutionally issue only if that expression or other associated conduct so unambiguously, unequivocally, and specifically communicated the respondent’s determination to cause harm that an objectively reasonable person in the petitioner’s situation would fear for his or her personal safety, or for the safety of a member of his or her immediate family or household.
Hanzo, 152 Or App at 544.
The conduct at issue here plainly fails to pass that test, as the Court should have determined in 2006. In the tribe.net messages at issue, respondent expressed his intention to attend the film screening and then, later, his thoughts about the film and the meaning of the invitation. Tr 20-21, 36-37. Petitioner never introduced any evidence that these messages unambiguously, unequivocally, and specifically communicated the respondent’s determination to cause harm. Indeed, petitioner never bothered to introduce the text of the messages at all.
Even if the petitioner felt subjective apprehension and it was objectively reasonable for her to do so, all expressive predicate contacts must pass the Rangel threat test. Michieli v. Morgan, 192 Or App 550, 555 (2004). Petitioner’s failure even to meet her burden of production as to the threat test, much less demonstrate that the tribe.net messages pass it, means that the Court should find that neither tribe.net message constituted a threat, and, in turn, that neither constituted a predicate contact.
The Court should make the same findings about the meeting between Balmer and respondent outside CNF. Again, there was no evidence of a threat at all, much less an unambiguous, unequivocal, and specific threat. Petitioner was not present. Balmer’s testimony about the content of respondent’s communication was wholly anodyne. Balmer said he was a “little bit” alarmed or surprised, Tr 22, that respondent had decided to speak with him in person, but was unable to testify — even when petitioner’s counsel was questioning him — that he actually felt fear for his own or petitioner’s safety. Tr 24. Petitioner’s subjective fear of respondent, Tr 18, cannot make an expressive contact with a third party into a predicate contact unless that contact passes the Rangel threat test. The CNF meeting did not.
Even if the Court found that nonexpressive elements of the meeting with Balmer somehow made that meeting qualify as a predicate contact, the tribe.net messages, which amount to pure expression, still do not qualify, due to their utter failure to constitute threats. The status of the CNF meeting on this analysis would be unavailing to petitioner, because no single contact can support the issuance of a stalking protective order by itself. Farris, 222 Or App at 383, citing ORS 163.730(7) (“defining ‘[r]epeated’ as ‘two or more times’”) and Jennings v. Gifford, 211 Or App 192, 197 (2007); see also Putzier v. Moos, 193 Or App 80 (2004) (summarily reversing stalking protective order when two of three alleged contacts were nonthreatening instances of expression). Since petitioner either did not establish any predicate contacts or, at worst, did not establish more than one, the Court should grant respondent’s motion.
III. THE COURT SHOULD AWARD RESPONDENT REASONABLE ATTORNEY FEES AND COSTS AND DISBURSEMENTS.
If the Court grants respondent’s motion, the Court should award respondent his costs and disbursements associated with litigating the motion. As the prevailing party, he would be entitled to costs and disbursements under ORCP 68 B, including the prevailing party fee established in ORS 20.190(1)(b).
Respondent should also be able to recover reasonable attorney fees under ORCP 68 C. ORS 30.866(4)(c) provides that “[t]he plaintiff” in an action for a court’s stalking protective order may recover reasonable attorney fees but is silent as to whether or not the respondent may recover them.
Respondent contends that for the legislature to create a one-sided right to recover attorney fees in a stalking action violates the guarantee in Article I, Section 20 of the Oregon Constitution that “[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” It also violates the right to a remedy guaranteed in Article I, Section 10.
Further, nonreciprocal recovery of attorney fees is deprecated by Oregon’s public policy. Jewell v. Triple B. Enterprises, Inc., 290 Or 885 (1981) (relying on ORS 20.096(1), which requires modification of contracts permitting attorney fee awards to one party only); Benchmark Northwest, Inc. v. Sambhi, 191 Or App 520 (2003) (same).
Finally, the Lane County Circuit Court has awarded attorney fees to a respondent in a stalking case as a sanction under ORCP 17 D. Mathews v. Hutchcraft, 221 Or App 479 (2008) (dismissing petitioner’s appeal of attorney fee award after petitioner appealed from wrong judgment). The Court should allow respondent’s motion for attorney fees.
CONCLUSION
For the foregoing reasons, the Court should hold a hearing on respondent’s motion and, after considering the evidence and argument offered in support of the motion, enter an order terminating the stalking protective order and relieving respondent of its prospective application. The Court should further order petitioner to pay respondent reasonable attorney fees and costs and disbursements.
Respectfully submitted this ____ day of May, 2009,
Bear Wilner-Nugent, OSB # 044549, Counsel for Respondent
CERTIFICATE OF SERVICE
I hereby certify that I served a true and complete copy of the foregoing RESPONDENT’S MOTION TO TERMINATE STALKING PROTECTIVE ORDER AND MEMORANDUM OF LAW on Robert Callahan, attorney for petitioner Catherine Lynne Carter, by mailing or hand-delivering a true copy thereof to said attorney’s office at 405 Northwest 18th Avenue, Portland, Oregon 97209, on this ____ day of May, 2009.
[1] Transcript citations are from the April 21, 2006 hearing. The transcript is attached. Citations to exhibits refer to the exhibits presented at that hearing. For respondent’s understanding, as 2006, of the chronology of events preceding the hearing,
see generally Ex 101.
[2] In February, 2006, respondent also sent another letter to petitioner, care of Cooper’s office. That letter was returned to him. Ex 103; Tr 38, 47-48.
[3] Although the Edwards court had before it a stalking order initiated through a complaint filed with a law enforcement agency rather than a complaint filed in court, 203 Or App at 274 n.3, the procedural analysis should be the same. This is because the underlying substantive law and burden of persuasion are identical in either circumstance, as is the term used by the Legislative Assembly to describe the resulting order (a “court’s stalking protective order”). Compare ORS 30.866(1)(a) to (c) with ORS 163.738(2)(a)(B)(i) to (iii).
[4] While respondent has communicated with Balmer, petitioner has never introduced evidence that respondent did so with intent to affect Balmer’s relationship with petitioner, which is what ORS 163.730(3)(h) forbids. Petitioner testified that respondent’s contact with Balmer made her concerned for her own safety. Tr 18. She said nothing about its effect on her relationship with Balmer, much less respondent’s intent to have any effect on that relationship. Balmer, for his part, testified that he did not take anything respondent said as “threatening either directly or overtly to [him] regarding [his] relationship with [petitioner].” Tr 24. Petitioner will not be able to introduce any such evidence on the hearing on this motion, either.
[5] In Benaman, the court did state that “the court’s function in determining whether a [stalking protective order] should be terminated is not to re-evaluate the correctness of the original order.” 213 Or App at 476. This statement, however, cannot be read to limit respondent’s ability to bring a motion to terminate the stalking protective order in this case based on the ground of insufficiency of the evidence, because the Benaman court did not have such a motion before it. Since the quoted passage was not necessary to the decision in Benaman, in other words, it was dicta, and is not binding on this Court. Indeed, what the Benaman court meant — as can be seen by reading the quoted passage in context — is simply that the correct resolution of a motion to terminate a stalking protective order on the basis of changed circumstances does not depend on the original validity of the order. This analytical distinction between independent legal theories for terminating a stalking protective order is reflected in the way the arguments are arranged in this memorandum.
( Were there any hints, along the way, that things might turn out the way they did? Just wondering . . .
