In late May, a simpler counter-offer was made to Cate Carter-Evans through counsel, giving her and husband Mark Englehart Evans of Shanghai the entire month of June to consider. Declining by ignorance, 52 of 55 posts taken down in June were returned to CatherineLynneCarter.com and this petition for review from 27 June posted on July 3.
Oregon Supreme Court building, Salem
IN THE SUPREME COURT OF THE STATE OF OREGON
CATHERINE LYNN CARTER,
Petitioner-Appellant, Respondent on Review
RORY GREY BOWMAN, aka Rain Grey Bowman,
Multnomah County Circuit Court No. 060303051 CA A143679
Respondent-Respondent, Petitioner on Review
ANDY SIMRIN #914310, ROBERT A. CALLAHAN #880263
405 Northwest 18th Avenue
Portland, Oregon 97209
(503) 265-8940, (503) 228-0930
Attorneys for Respondent on Review
BEAR WILNER-NUGENT #044549
Bear Wilner-Nugent, Counselor and Attorney at Law LLC
621 SW Morrison Street, Suite 1250 Portland, Oregon 97205
(503) 351-2327 firstname.lastname@example.org
Attorney for Petitioner on Review
PETITION FOR REVIEW OF RORY GREY BOWMAN
Petition for review of the decision of the Court of Appeals on appeal from a judgment of the Circuit Court for Multnomah County, Honorable RONALD E. CINNIGER, Senior Judge
Opinion Filed: May 2, 2012 Author of Opinion: Duncan, J. Before: Armstrong, P.J., Haselton, C.J., and Duncan, J.
PETITIONER ON REVIEW INTENDS TO FILE A BRIEF ON THE MERITS
PRAYER FOR RELIEF
Rory Grey Bowman, respondent below, respectfully requests that this court review and reverse the Court of Appeals’s decision reversing the termination of a stalking protective order in C.L.C. v. Bowman, __ Or App ___, __ P3d ___ (May 2, 2012). A copy of the opinion is attached at App 1.
STATEMENT OF FACTS
The parties were romantically involved for about a year. Tr 10-11. They separated in 1998. Tr 11. The parties maintained sporadic social contact after their split, but that contact gradually ebbed. Tr 11-12, 28-29. In 1999, petitioner brought an action for issuance of a stalking protective order (SPO) against respondent. Ex 1; Tr 12. That petition was dismissed after a contested hearing. Tr 13.
In 2005, respondent joined a social networking website, tribe.net, for the purposes of promoting his computer consulting business. Tr 32, 45. Petitioner also maintained a presence on tribe.net. Tr 15. Shortly after respondent’s arrival on tribe.net, petitioner posted a notice indicating that a new member had joined who should not have her contact information and requesting that other members not facilitate online contact between them. Tr 15-16. There is no indication in
the record that respondent made any attempt to directly contact petitioner via tribe.net.
Several months later, respondent received an unexpected invitation through tribe.net from petitioner’s new boyfriend Balmer, inviting respondent to a screening of a movie that Balmer helped make. Tr 36. Respondent attended the screening but did not encounter either petitioner or Balmer there. Tr 20-21, 36-37. Respondent sent Balmer an email shortly thereafter thanking him and seeking to clarify the meaning of Balmer’s film invitation, but received no response. Tr 21, 37.
Confused by Balmer’s perceived mixed social signals, respondent arranged to encounter Balmer on a public sidewalk outside Balmer’s workplace. The two men engaged in a brief, peaceful conversation. Ex 103; Tr 21-24, 37- 39, 46-47, 51-52. Balmer testified that, while he was surprised by the encounter, he did not perceive respondent to be threatening to him or petitioner. Tr 24.
Following this encounter, petitioner again filed an action requesting issuance of a SPO against respondent. Petitioner alleged three predicate contacts by respondent within the last two years: his film attendance, his email to Balmer after that film, and his sidewalk conversation with Balmer. Tr 7-8. The court issued the SPO after a contested hearing held in April 2006. ER 1-3.
In 2008, respondent retained counsel to pursue termination of the SPO. Respondent also posted several entries during this time to personal blogs hosted on publically accessible websites concerning his feelings and perceptions of the stalking order and his treatment by petitioner and the legal system. ER 22-24, 28-30. After a contested hearing in August 2009, the court terminated the SPO in accordance with the procedure set forth in Edwards v. Biehler, 203 Or App 271, 124 P3d 1256 (2005). ER 48-50.
Petitioner appealed the termination of the order. The Court of Appeals reversed the judgment of the circuit court and remanded for a new hearing on respondent’s motion. The court held that the circuit court had erred by concluding that it could not take into account respondent’s speech – namely, his blog posts â€” when considering whether petitioner’s ongoing fear of respondent was still objectively reasonable, since (as the circuit court determined) none of that speech amounted to a threat as defined in State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999). Since the termination of a stalking protective order, unlike its issuance, does not, in the judgment of the Court of Appeals, involve a new restraint on speech, that court explained that the trial court should have weighed the blog posts alongside the other evidence supporting and opposing petitioner’s claim of an ongoing objectively reasonable fear of respondent. App 7-8.
QUESTION PRESENTED AND PROPOSED RULE OF LAW
May a court ruling on a respondent’s motion to terminate a stalking protective order take the respondent’s constitutionally protected speech not amounting to a threat or a violation of the order into account in determining whether the petitioner continues to have an objectively reasonable fear of the respondent?
Proposed Rule of Law
For the purposes of terminating and issuing a stalking protective order alike, the only constitutionally protected speech by the respondent that a court may take into account is a threat or a violation of an existing stalking protective order.
REASONS FOR GRANTING REVIEW
I. Legal Background
Stalking is subject to both criminal and civil penalties in Oregon. The criminal stalking laws, which provide the basic template, are codified from ORS 163.730 through ORS 163.755. Further aspects of the law unique to civil actions appear in ORS 30.866.
An SPO is an order by a circuit court that the respondent desist fromÂ stalking the petitioner. A successful stalking claim requires proof of repeated, unwanted, objectively alarming contact between the respondent and either the petitioner or an immediate family or household member of the petitioner.
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 v. Fadden, 225 Or App 431, 437-438, 201 P3d 278, rev den, 346 Or 213 (2009) (emphasis in original).
When issuing an SPO, the types of contacts that the circuit court may take into account are limited, in view of the rights protected by Article I, section 8 of the Oregon Constitution and the First Amendment to the United States Constitution. As this court held in Rangel,
If the contact in question amounts to communication by speech or writing, only a threat will be sufficient to â€œcause apprehension or fear resulting from the perception of danger,â€ as ORS 163.730 requires…
[A] proscribable threat is a communication that instills in the addressee aÂ fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts… Those characteristics of a threat â€œexclud[e] 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.â€ [State v.] Moyle, 299 Or [691,] 705, 705 P2d 740 [(1985)].
328 Or at 302-303. Although Rangel was a criminal stalking case, its rule applies with equal force in civil stalking cases like this one. Wood v. Trow, 228 Or App 600, 605, 208 P3d 1030 (2009).
In Edwards, 203 Or App 271, the Court of Appeals first held that a respondent might move to set aside, or â€œterminate,â€ an SPO. If the circuit court were to grant a motion to terminate an SPO, the result would be â€œentry of an order that relieves the respondent of continuing prospective application ofâ€ the SPO. Id. at 273 n. 2. Termination is appropriate
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 â€œreasonable apprehensionâ€ due to the past acts of the respondent under ORS 163.738(2)(a)(B)(iii).
Id. at 277.
The termination procedure is the same regardless of the method of originÂ of the SPO. App 6. The respondent must prove â€œthat the concerns that underlay the issuance of the original [order] have sufficiently abated that the order should be set aside.â€ Benaman v. Andrews, 213 Or App 467, 476, 162 P3d 280 (2007). The question is not â€œwhether the circumstances since the issuance of the original [order] would be sufficient to justify the issuance of a new [order],â€ id., but rather whether or not petitioner continues to suffer â€œreasonable apprehensionâ€ due to respondent’s past acts. Edwards, 203 Or App at 277; see also Benaman, 213 Or App at 476-477, and Stuart v. Morris, 231 Or App 26, 30, 217 P3d 1080 (2009).
Here, respondent conceded that petitioner continued to fear him as of the date of the hearing on his motion to terminate the SPO. Respondent contested, however, the objective reasonableness of that fear in light of the evidence. Resp Br 3-4.
II. This Court Should Grant Review Because the Decision of the Court of Appeals Revives Constitutional Problems with the Stalking Law that Rangel, Properly Applied, Avoided.
In Rangel, this court applied a narrowing construction to the criminal stalking statute to save it from a claim of unconstitutionality through overbreadth. 328 Or at 302-304, 307. The details of this construction, pertaining to the requirement that a speech-based predicate contact constitute a threat and defining a threat, are quoted supra at pp. 5-6.
In this case, the Court of Appeals held that
the proper inquiry for the court on a motion to terminate an SPO is whether, in view of all the circumstances, including the respondent’sÂ speech, the conduct that gave rise to the issuance of the SPO continues to cause the petitioner to have a subjective apprehension regarding personal safety and that apprehension continues to be objectively reasonable.
App 3. Applying its holding, the court explained that the circuit court â€œerred in concluding that it could not consider the [blog] postings because they did not meet the Rangel standardâ€ for threats.â€ Id. Because letting this decision stand would permit the prior restraint of purely expressive speech not directly communicated by an SPO respondent to the petitioner in violation of the SPO, this court should grant review and reverse the decision of the Court of Appeals.
The Court of Appeals relied on its own decision in Habrat v. Milligan, 208 Or App 229, 237, 145 P3d 180 (2006) in explaining that â€œRangel does not prevent a court from considering nonthreatening speech as context for other contacts.â€ App 7. As an initial matter, this summary misconstrues Habrat. In that case, the expressive contacts in question were directed at the petitioner personally and included â€œsexual overtures and statements [the respondent] made in other interactions with [the] petitioner, such as his demand for a haircut.â€ 208 Or App at 237. Here, by contrast, respondent’s blog postings were directed at the internet writ large. ER 22-24, 28-30. Thus the narrow rationale of Habrat (and the like decision on which it relies, Castro v. Heinzman, 194 Or App 7, 14, 92 P3d 758 (2004)) should not be controlling.
More to the point, however, the decisions of the Court of Appeals mustÂ yield to the decisions of this court. In Rangel, the court established a rule with which the decision below plainly conflicts. It determined that the only type of speech that could be taken into account in issuing an SPO was a threat. 328 Or at 302-303. Respondent will admit readily enough that, when considering whether to terminate an SPO, a respondent’s compliance with the SPO is also relevant to the Edwards/Benaman test. 213 Or App at 476; 203 Or App at 277; see App 8. But to expand the universe of speech-based contacts any further would lead to the kind of constitutional violation that Rangel carefully avoided.
This court does not simply sit to correct error, to be certain. As explained in ORAP 9.07(1), however, when deciding whether to grant review, the court takes into account the correctness of lower courts’ determinations about whether statutes are facially constitutional or being applied in a constitutional way. The court also scrutinizes the consistency of the apposite case law. ORAP 9.07(9). Were the decision of the Court of Appeals to stand, the stalking case law would be inconsistent.
The basic reasoning on which the Court of Appeals depended was to conclude that a stalking respondent, whose speech is already restrained, cf. State v. Ryan, 350 Or 670, 682, 261 P3d 1189 (2011), suffers no additional harm when his or her motion to terminate the SPO is denied because of the purportedly contextual clues to ongoing objectively reasonable fear furnished byÂ speech. Yet if the speech in question is the dispositive factor, that speech is being regulated. Rangel teaches that such regulation is constitutional only in the case of threats. The court should grant review to resolve the tension created by these opposed holdings.
REASONS FOR REVERSAL
After considering the constitutionally permissible evidence presented in this case, is not possible to find that respondent’s apprehension of petitioner was objectively reasonable as a matter of law. First, the record demonstrates a long absence of direct contact between petitioner and respondent. App 4 n. 2. The circuit court concluded in 2009 that, with the exception of one mailing sent immediately after the imposition of the 2006 SPO, â€œthere was no other contact between the respondent and the petitioner as a matter of fact.â€ Tr 221-222. Petitioner failed to produce any evidence at her hearings that respondent had ever followed her, waited outside her home, property, place of work, or school, committed any crimes against her, or communicated with others with the intent of affecting her interests or rights. Petitioner was further unable to show that respondent had sent her anything larger than a letter since 1999, nor spoken with her outside court since 1998. The evidence also showed that, with the exception of the parties’ 2006 hearing, respondent had not knowingly entered a place petitioner was present since her unsuccessful attempt in 1999 to obtain a stalking order against him.
Because the record is so bereft of contacts between the parties, petitioner was forced to argue at the termination hearing that respondent’s speech directed towards her boyfriend Balmer was sufficient to render her objectively apprehensive about her personal safety. While respondent did correspond on a few occasions with Balmer, this correspondence was undertaken with the intent of lifting the SPO, not with the intent of affecting Balmer’s relationship with petitioner in violation of ORS 163.730(3)(h). As a result, such contact cannot be considered an unlawful attempt to contact petitioner.
Stalking laws are meant to protect individuals against reasonable apprehension of physical harm. Osborne, 225 Or App at 438, 201 P3d 278, rev den, 346 Or 213 (2009), citing Delgado, 334 Or 122. Here, the evidence at each stage demonstrates a consistent pattern of physical avoidance, not contact. Even if unwanted contact between the parties occurs, it must be alarming before it can support the issuance of a SPO. See Schiffner v. Banks, 177 Or App 86, 33 P3d 701 (2001).
During the SPO termination hearing, respondent had to prove that â€œthe concerns that underlay the issuance of the original [order had] sufficiently abated that the order be set aside.â€ Benaman, 213 Or App at 476. According to
the court in 2006, the chief concern underlying the issuance of the SPO in respondent’s case was behavior such as him surprising Balmer by striking up a conversation outside Balmer’s workplace in early 2006. Tr 91-92 (announcing court’s ruling on petition for SPO). No such actual, physical, intentional contact ever again occurred after the SPO was granted. All that transpired in the following months and years was that respondent, aggrieved by the SPO, engaged in speech directed to other people. ER 22-24, 28-30.
Respondent met his burden at the SPO termination hearing by showing that the court’s concerns regarding his contacts with Balmer had sufficiently abated. As a result, the court terminated the SPO. It correctly concluded that, given respondent’s nearly perfect compliance with the SPO’s letter since its issuance and its spirit long beforehand, any ongoing fear of petitioner’s was objectively unreasonable. Tr 222. Considering the lack of contact between the parties, respondent’s demonstrated pattern of physical avoidance of petitioner, and the benign nature of any contact between respondent and Balmer, insufficient evidence existed to show that petitioner’s apprehension of respondent was objectively reasonable.
Upon correction of the Court of Appeals’s erroneous holding under Rangel, the types of expressive conduct of which petitioner complains would once again not fall within the ambit of the stalking laws at any stage of the process. The Court of Appeals itself has held that repeated unwanted, alarming emails from a respondent to a petitioner, because they were written, were not sufficient to issue a SPO where there was no evidence that the emails were truly threatening. Michieli v. Morgan, 192 Or App 550, 86 P3d 688 (2004). Subsequently, the court has adhered to the principle distinguishing pure speech from other types of conduct in case after case. See e.g. Webb v. Lovette, 217 Or App 165, 171, 174 P3d 1082 (2007); Sparks v. Deveny, 221 Or App 283, 189 P3d 1268 (2008); Goodness v. Beckham, 224 Or App 565, 198 P3d 980 (2008). These cases remain controlling authority in this case. The trial court recognized as much. Tr 222. Respondent’s speech furnishes no basis to reverse the trial court’s order terminating the SPO.
For the foregoing reasons, the court should grant review, reverse the decision of the Court of Appeals, and affirm the judgment of the trial court.
Respectfully submitted this 27th day of June, 2012,
/s/ Bear Wilner-Nugent
BEAR WILNER-NUGENT Attorney for Petitioner on Review
Rory Grey Bowman