Schiffner v. Banks

33 P.3d 701, 177 Or. App. 86, 2001 Ore. App. LEXIS 1525
Court of Appeals of Oregon·Decided October 3, 2001·No. 99C-20003, 99C-20004 A109203 (Control), A109204·Published·Cited by 9 cases

Opinions

[88] WOLLHEIM, J.

Respondent Roger Banks appeals from the trial court’s issuance of stalking protective orders (SPOs) in favor of petitioners Aubrey Rogers and Jo Schiffner.1 We review de novo, Hanzo v. deParrie, 152 Or App 525, 537, 953 P2d 1130, rev den 328 Or 418 (1998), and conclude that petitioners failed to prove that they had experienced “alarm” as a result of contacts with respondent. ORS 163.738(2)(a)(B)(i). Accordingly we reverse.

Respondent and petitioners were coworkers. Tension between respondent and petitioners apparently began in 1998 when Schiffner chose Rogers rather than respondent for a promotion. Respondent suspected that Schiffner and Rogers were having an affair and believed that Rogers had received the promotion because of that relationship. Consequently, respondent filed an internal ethics grievance with his employer, which was ultimately rejected for of lack of evidence. In September 1998, respondent resigned from his position in lieu of discharge.

Respondent decided to obtain proof of the suspected affair and determined that the most likely time for illicit meetings would be early in the mornings when Rogers ordinarily worked out at a gym. At about 5:00 a.m. on December 8, 1998, respondent drove near Rogers’s home and saw that Rogers’s truck was not there. He then went to the gym where Rogers usually worked out and confirmed that Rogers’s truck was not there. Finally, respondent proceeded to Schiffner’s apartment, where he found Rogers’s truck parked nearby. Respondent took photographs both of Rogers’s truck and of Schiffner’s apartment complex.

[89] On December 11 and December 28, 1998, respondent again drove past Rogers’s home and gym early in the morning to verify Rogers’s absence and then proceeded to Schiffner’s apartment. On both of those occasions, he again took photos of Rogers’s truck and of Schiffner’s apartment complex. During the December 11 episode, respondent waited and watched Schiffner’s door until he observed Rogers leave at 6:20 a.m. On December 28, one of Schiffner’s neighbors “nearly stumbled” over respondent as he was poised with a video camera, waiting to film Rogers leaving Schiffner’s apartment. Concerned that he “had been discovered,” respondent abandoned his efforts to document the suspected affair further.

Although the record is unclear, it appears that Schiffher became aware of respondent’s presence outside her apartment on at least one of those occasions. There is no evidence that she told anyone about respondent’s conduct or expressed any contemporaneous concern about, or experienced any contemporaneous apprehension from, his presence outside her apartment.

From December 28, 1998, to August 16, 1999, respondent’s interactions with petitioners — both direct and indirect — ceased. Then, between August 16, 1999, and December 15, 1999, respondent had several conversations with four people — Hemmer, Scott, Parks, and Pilgrim2— about his past employment and his efforts to document petitioners’ suspected affair. During respondent’s conversations with Hemmer, Scott, and Pilgrim, he became visibly angry to the point that they were each concerned that respondent might act violently towards petitioners. For example, Pilgrim testified that “in light of everything that goes on in our society today and all of the other violence and things that take place, that I felt that there could have been some potential harm with regards to [petitioners].” Consequently, they each [90] related the substance of those conversations either to their supervisors or to petitioners directly.

Respondent’s conversation with Parks occurred on November 23, 1999, during a break from work. In that conversation, respondent told Parks that he had been “blacklisted” by the state and explained how he had been denied a promotion as a consequence of an affair between a male coworker and his female supervisor. Respondent went on to tell Parks how he had waited outside his female coworker’s apartment and had taken photographs to document the affair.

During that conversation, respondent neither threatened petitioners nor mentioned petitioners by name. At one point during the conversation, in response to a question from Parks, respondent noted that he did have a permit to carry a concealed weapon.3 But as Parks testified, respondent “didn’t appear angry or hostile. I thought he thought of himself to me more of a victim than anything else.” Nevertheless, Parks was concerned by respondent’s efforts to document the suspected affair. Consequently, Parks later mentioned the conversation to a coworker, who urged her to tell her supervisor. On December 2, 1999, acting on that advice, Parks discussed the conversation with her supervisor.

On December 3,1999, petitioners filed stalking complaints against respondent with the Oregon State Police. ORS 163.744. After two evidentiary hearings on those complaints, the circuit court issued the permanent SPOs sought by petitioners in January 2000. In a letter ruling accompanying those orders, the court stated:

“I find that a Stalking Order should be issued in favor of Petitioners Schiffner and Rogers since [Banks] admitted that he had ‘contacted’ them as that term is used in ORS 163.730(3)(c) by waiting outside their home. Mr. Banks admitted taking photographs of [Rogers’s] vehicle when it was parked at [Schiffner’s] home. [Parks] testified that [Banks] had spoken with her about his negative feeling [91] towards [Schiffher] and [Rogers] and in the same conversation stated that at that time he had a concealed weapons permit. I do believe that it is objectively reasonable for [Schiffner] and [Rogers] to be alarmed by [Banks’s] ‘contact.’ ”

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Schiffner v. Banks, 33 P.3d 701, 177 Or. App. 86, 2001 Ore. App. LEXIS 1525 (Or. Ct. App. 2001).

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Schiffner v. Banks
33 P.3d 701 (Court of Appeals of Oregon, 2001)