Van Buskirk v. Ryan

225 P.3d 118, 233 Or. App. 170, 2010 Ore. App. LEXIS 7
CourtCourt of Appeals of Oregon
DecidedJanuary 6, 2010
Docket070302847; A136589
StatusPublished
Cited by6 cases

This text of 225 P.3d 118 (Van Buskirk v. Ryan) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Van Buskirk v. Ryan, 225 P.3d 118, 233 Or. App. 170, 2010 Ore. App. LEXIS 7 (Or. Ct. App. 2010).

Opinion

LANDAU, P. J.

Respondent appeals a permanent stalking protective order (SPO) issued pursuant to ORS 30.866 prohibiting him from having any contact with petitioner. He argues that, because all of his contacts with petitioner were communicative and there is no evidence that he ever threatened her, the order violates his free speech rights under Article I, section 8, of the Oregon Constitution. On de novo review, Osborne v. Fadden, 225 Or App 431, 433, 201 P3d 278, rev den, 346 Or 213 (2009), we affirm.

A detailed recitation of the facts would not be of assistance to the bench or bar. To briefly summarize, petitioner writes for the Portland Tribune. She met respondent once at an open house held by petitioner’s employer. Over the next two years, respondent never saw petitioner again, but communicated with her through letters and e-mails, attempting to establish a romantic relationship with her. In many of respondent’s correspondences, he told petitioner that, if the contact was inappropriate, “please let me know and I will stop.” However, petitioner or those acting on her behalf repeatedly asked respondent to stop attempting to contact her, to no avail.

In his letters, respondent commented on petitioner’s articles and on her appearance. He extended invitations to meet for lunch or dinner, shared his project ideas, expressed gratitude for her time and support, and often concluded with such statements as “[w]ishing you a joyful day!” or “[e]njoy the day!” Petitioner has a young son whom she had mentioned in some of her newspaper articles, and the letters also made references to him. The letters reflected that respondent was experiencing irrational and delusional thinking about his relationship with petitioner. In a letter to petitioner’s parents, he compared them to Romeo and Juliet. The letters repeatedly referred to people who had been “contaminated” and who were against him and his desire not to expose petitioner to “danger or contamination.” Petitioner received a few letters from respondent in 2005, 11 letters from respondent in 2006, and 12 letters in 2007.

Respondent also attempted to contact petitioner by telephone and in person. He called her on her home and work [173]*173telephones and left messages for her but never spoke to her, because she screened his calls.

Respondent attempted many times to visit petitioner at work to drop off letters for her. He never succeeded in seeing petitioner at her workplace, because petitioner’s co workers, supervisor, and receptionist intervened; however, respondent’s visits were troubling to petitioner and to her co workers. Respondent began attending public events sponsored by the Tribune or its sister company.

Respondent attempted to contact petitioner through her parents, although he never succeeded in meeting them in person. Petitioner’s father had a photography website, and respondent attempted to contact him through that. He wrote letters to petitioner’s father, suggesting “business proposals.” He went to the parents’ house to drop off letters for petitioner.

At the hearing on the permanent SPO, petitioner testified that she was frightened by respondent’s persistent contacts, because of their irrational and paranoid tone, their references to “danger” and “contamination,” and respondent’s unfounded belief that he and petitioner could have a relationship. She testified that she feared for her own safety and for that of her son:

“Q. And, were you fearful for your safety, or your child’s safety?
“A. I was. Yes. And I continue to be. You know, it’s talking about, that it’s Romeo and Juliet. Obviously had a tragic ending.
“The fact that what he’s saying is so out of touch with reality, you know, I found extremely frightening that — -it’s just — you know, he obviously was able to learn things about me personally, and my son personally. I was extremely frightened, you know.
“By contacting my parents, as well. Finding out where they lived. Going to their house. I felt very frightened that he would come to my house or go to my son’s school, or, you know — and, when it became obvious that the contact — that we weren’t going to have a relationship, it seemed very frightening with what could happen in that case.”

[174]*174Respondent, who represented himself at the hearing, cross-examined petitioner and asked her if he had ever made any threatening remarks to her. Petitioner testified that, although respondent had never threatened her personally, she considered the situation to be threatening because it seemed so unpredictable and irrational. Respondent testified on his own behalf, explaining that he never intended to harm petitioner or anyone else.

The court explained to the parties that, because of the communicative nature of respondent’s contacts, the court could enter a permanent SPO order only if it found that respondent’s contacts constituted an imminent serious physical threat. State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999) (A threat “is a communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.”). The trial court found

“that, under the circumstances, given the content of the letters, indicating that there was references to her son, references to contamination of other people, reference to the Romeo, Juliet relationship; that [respondent] made further contact through her parents after the * * * temporary order had been entered; that, despite his statements that he had said that he would stop any contact if that was indicated to him, that that was her wishes; that, despite that, he still continued to contact her, so I find that it is objectively reasonable for a person in her position to have been alarmed by his contact.
“I find that his contact caused her reasonable apprehension regarding her own safety and the safety of her son, based on her own testimony about him making inquiries about her son, and making — continuing to make contact regarding her, by clear indication that it was to stop; that, because of the nature of the contact in terms of their bizarreness and some of the language used in his communication; that he appeared to her to be unpredictable, and ‘delusional,’ was the word she used; that, based on that, it was reasonable that she would feel that apprehension.
“I find that, based on the pattern of contact, the duration of contact, and the morosity of the contact with regard to her through her workplace, her parents’ home, her own home, accessing her voicemail when it wasn’t — her phone [175]*175at home, when, although she was in the book, she said she wasn’t in the phone book in the complete — under her complete name.
“These kinds of contacts and the efforts that [respondent] clearly went to in order to make these contacts, in the face of the — of the indication that they were unwanted, I find that, in fact, it is a credible threat to her physical safety, and, based on that, I am going to enter the permanent stalking order.”

On appeal, respondent contends that the trial court’s order violates his free speech rights under Article I, section 8, of the Oregon Constitution.

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Related

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476 P.3d 972 (Court of Appeals of Oregon, 2020)
C. Q. R. v. Wafula
471 P.3d 786 (Court of Appeals of Oregon, 2020)
State v. Ryan
261 P.3d 1189 (Oregon Supreme Court, 2011)
State v. Ryan
239 P.3d 1016 (Court of Appeals of Oregon, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
225 P.3d 118, 233 Or. App. 170, 2010 Ore. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-buskirk-v-ryan-orctapp-2010.