Boyd v. Essin

ARMSTRONG, J.,

dissenting.

I respectfully dissent. The majority reaches the conclusions that it does by making questionable inferences from oblique references in a woefully inadequate record. It uses those inferences to paint a very disturbing picture, but it fails to divulge that that picture is nothing more than mere conjecture. Moreover, it uses the facts involving respondent’s expressive conduct to buttress its conclusion that respondent has repeatedly engaged in unwanted contact with petitioner, but it fails to acknowledge that Article I, section 8, of the Oregon Constitution bars us from considering that conduct as actionable conduct under the anti-stalking statute. 1 The *520 shortcomings in the majority’s analysis cannot be ameliorated by its emotional appeal.

The first and most important flaw in the majority’s opinion is its failure to address the fact that petitioner offered no evidence of the subjective alarm required by ORS 30.866. Although the majority states that “[i]f a stalking protective order was warranted in Delgado, it is also warranted here,” 170 Or App at 530 (citing Delgado v. Souders, 146 Or App 580 , 934 P2d 1132 , rev allowed, 326 Or 43 (1997)), the question is not merely whether respondent’s acts are sufficient to produce reasonable alarm, but also whether they actually did so. Unlike respondent in this case, the respondent in Delgado did not dispute that the petitioner actually experienced alarm. Here, however, respondent argues explicitly that petitioner failed to prove subjective alarm or coercion. Indeed, the transcript is devoid of any testimony that any of respondent’s acts caused petitioner to experience “apprehension or fear resulting from the perception of danger.” ORS 163.730(1) (defining “alarm”). 2 The closest that petitioner comes to asserting that she experienced subjective alarm is at the end of her testimony when she indicated that her life has been more peaceful since the issuance of the temporary stalking protective order. An absence of peace, however, need not entail the fear or apprehension required here.

The void in petitioner’s testimony regarding the element of subjective alarm requires us to address whether subjective alarm can be inferred under these circumstances. That issue has not been addressed with regard to stalking protective orders. Although factfinders may infer subjective states of mind, the inference is most appropriate when one party has the burden of proving the other’s subjective state of mind, as in the employment discrimination context. When, as here, the party whose subjective state of mind is at issue is also the party seeking a judgment from the court, a failure to testify to feelings of subjective alarm should lead to the inference that the required state of mind is not present. Nonetheless, the majority opinion breezes through the question of subjective alarm as though it can be presumed simply from *521 the nature of the conduct it ascribes to respondent. However, if subjective alarm were regularly inferred from objectively alarming behavior, the statute’s requirement of subjective alarm would become superfluous; once the statutory requirement of objectively alarming behavior had been established, subjective alarm would be presumed and there would never be a need to address that requirement separately (except, of course, in the unlikely event that a petitioner denied feelings of subjective alarm). We have repeatedly said that statutes should be interpreted so as to give effect to all of their provisions. See, e.g., Quintero v. Board of Parole, 329 Or 319, 324 , 986 P2d 575 (1999). That principle holds true here. The majority errs in inferring subjective alarm from the nature of respondent’s behavior. Without evidence of subjective alarm, the stalking protective order in this case should not stand.

The majority’s analysis suffers from other flaws as well. As mentioned previously, it uses the facts of respondent’s communicative conduct to embellish its overall picture of respondent as an unpleasant person, but it fails to acknowledge that we may not consider any of that conduct as prohibited contact because none of it rises to the level of “unambiguous” and “unequivocal” threats of serious physical harm that are “specific to the addressee.” Hanzo v. deParrie, 152 Or App 525, 543 , 953 P2d 1130 (1998), rev den 328 Or 418 (1999) (citations and internal quotation marks omitted). Thus, the facts that respondent has said “hi” to petitioner, has told her he loves her and will never love anyone else, has called her a whore and an adulterer, and has threatened to take her back to court cannot form part of the implicit bases of this court’s decision on the merits. Whatever we may personally think of an ex-husband’s name calling, it is simply beside the point. To enjoin respondent’s conduct in part to prevent him from continuing to communicate with petitioner in an unpleasant manner would violate Article I, section 8, of the Oregon Constitution.

Another respect in which the majority errs is in taking petitioner’s testimony out of context. Read as a whole, her testimony about respondent’s behavior is quite equivocal. The quotations chosen by the majority, however, give the impression that her testimony regarding respondent is much more consistent. For instance, the majority quotes petitioner *522 as saying that respondent has threatened her in private “many times.” However, it ignores the fact that the exchange between her and respondent’s attorney raises substantial doubt about whether the threats to which she alludes occurred within the relevant time period for the purposes of the stalking protective order. 3 The majority’s rendition of petitioner’s testimony on that issue also fails to account for petitioner’s earlier equivocations. That segment of petitioner’s testimony centered on her interactions with respondent at school events and in other public places. According to petitioner, what is objectionable about those encounters is that respondent threatened to take her back to court and threatened her with other “verbal” harm. In fact, petitioner refers to respondent’s statements that he will take her back to court as “threats” so often throughout the transcript that one has to wonder whether she understands at all that, for purposes of a stalking protective order, only threats of physical harm are relevant. 4

A final problem with the majority’s analysis is that it fails to distinguish between contacts between respondent and petitioner that occurred when the parties lived together and those that occurred after their separation. As we indicated in Wayt v. Goff, 153 Or App 347, 353 , 956 P2d 1063 (1998), contacts that are initiated by the complaining party cannot properly be described as “unwanted” within the *523 meaning of ORS 30.866, although the nature of the contact may be unwanted. Thus, any contacts that occurred while the parties lived together, such as the incident between respondent and his son, cannot form the basis of a stalking protective order. That leaves the incident with the binoculars and respondent’s driving by petitioner’s house as the only relevant contacts. In light of the fact that the parties live in a very small town, and therefore driving by petitioner’s house may be difficult to avoid, I would view only the binoculars incident as potentially alarming. Accordingly, I would conclude that respondent has not engaged in repeated unwanted contacts as ORS 30.866 requires.

Because petitioner has not presented evidence of subjective alarm and has not shown that respondent has engaged in repeated unwanted contacts, the stalking protective order should be vacated. I would reverse.

As discussed below, I view respondent’s acts of driving by petitioner’s house and watching her house with binoculars as the only relevant contacts under ORS 30.866. Moreover, because there is insufficient evidence that his driving by her house would alarm a reasonable person, the only relevant incident is the one with the binoculars.

Petitioner has not argued that respondent’s acts were coercive or potentially coercive.

See ORS 30.866(6).

Petitioner also referred to respondent’s statement that he was going to come to the house to remove his belongings, rather than hiring someone to do so, as a threat. Moreover, in another part of her testimony, petitioner stated that her “life has been threatened in front of the children.” When asked to describe the incident more specifically, however, she related an instance when respondent asked one of the children to have petitioner come outside so that he could talk to her. When she did so, he tried to get her to sign a tax form. She refused, and he called her a “whore” and an “adulteress.” At the very least, such inconsistencies call into question petitioner’s ability to describe events objectively. In fact, the transcript is devoid of any descriptions of physical threats made by respondent. Petitioner’s witness, who overheard and listened in on respondent’s phone calls to petitioner’s home, admitted that none of the calls involved physical threats against petitioner. Finally, although the majority refers to a letter from respondent’s psychologist that states that petitioner told him that respondent had physically threatened her, it fails to acknowledge that the letter contains no indication of when those threats allegedly occurred. The letter also is quite positive in its assessment of respondent’s psychological state. It states that “in general, [respondent! has good control over his emotions” and that the four youngest children had “indicate[dl that they would rather live with their father and ‘visit’ their mother.”