277 P.3d 634
Or. Ct. App.2012Background
- Petitioner obtained a stalking protective order (SPO) against respondent in 2006.
- In 2009 respondent moved to terminate the SPO, and a hearing occurred.
- Petitioner introduced Internet postings by respondent (two blog posts and a comment) as evidence.
- Trial court refused to consider the postings, applying the Rangel threat standard for speech-based contacts.
- Court of Appeals reversed and remanded, holding the court could consider the postings as context for continuing apprehension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could consider Internet postings at termination | Petitioner argues postings are probative context for fear. | Bowman argues postings do not meet Rangel threat standard. | Yes; court may consider postings as context. |
| Proper standard to terminate an SPO under ORS 30.866 | Continuing apprehension must be evaluated with all circumstances, including speech. | Termination requires absence of original criteria; fear must be shown anew. | Court may terminate if original criteria no longer present and continuing apprehension exists. |
| Burden of proof at termination hearing | Petitioner bears burden to show continuing risk to safety. | Respondent bears burden to show no continuing risk. | Burden shifts to respondent; can consider speech but does not restrict free speech. |
| Role of Rangel threat standard in evaluating speech | Rangel threat test should not bar considering nonthreatening speech as context. | Speech must meet Rangel to be actionable contact. | Speech not required to meet Rangel for context; nonthreatening speech can inform the assessment. |
Key Cases Cited
- Rangel v. State, 328 Or. 294 (1999) (threat standard for speech-based contacts in SPOs)
- Edwards v. Biehler, 203 Or. App. 271 (2005) (termination procedure for SPOs under similar framework)
- Benaman v. Andrews, 213 Or. App. 467 (2007) (burden of proof on respondent at termination)
- Habrat v. Milligan, 208 Or. App. 229 (2006) (speech as context for other contacts)
- Travis v. Strubel, 238 Or. App. 254 (2010) (de novo review standards for appeals on SPOs)
- State v. Ryan, 350 Or. 670 (2011) (speech-based restriction context in enforcement)