384 P.3d 532
Or. Ct. App.2016Background
- Petitioner obtained an ex parte temporary restraining order under the Elderly Persons and Persons With Disabilities Abuse Prevention Act (EPPDAPA) based on voluminous emails respondent sent that petitioner considered threatening.
- Respondent requested and received a contested hearing held over two days; respondent appeared pro se by telephone.
- At the start of the hearing, the trial court announced it would not allow the parties to question each other and would only permit each side to "respond" to the other’s evidence.
- Petitioner introduced email evidence and testified; respondent repeatedly sought to ask questions about petitioner’s testimony but was not allowed to pose them directly or through the court.
- The trial court entered an order upholding the restraining order. Respondent appealed, arguing denial of the opportunity to cross-examine the only adverse witness (petitioner).
- The appellate court concluded the issue was unpreserved but found plain error, reversed, and remanded for further proceedings because the trial court’s blanket prohibition on questioning denied respondent his right to cross-examination under the Oregon Evidence Code.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent was denied the right to cross-examine petitioner at the contested EPPDAPA hearing | The court’s procedure (no party questioning the other) was proper to avoid traumatic confrontation and protect petitioner | Denial of any direct or indirect opportunity to question petitioner violated respondent’s statutory and due process rights | The trial court plainly erred by wholly prohibiting questioning; reversal and remand required |
| Whether the claim was preserved for appeal | N/A (petitioner did not appear on appeal) | Respondent did not formally object at the outset but made later remarks; claim preserved or subject to plain-error review | Appellate court found the claim unpreserved but corrected the error under ORAP 5.45 plain-error review |
| Whether EPPDAPA / Oregon Evidence Code allow a complete bar on cross-examination to prevent confrontation | Protective-statute interest supports limiting confrontation, especially for vulnerable petitioners | Statutory evidence rules and precedent do not permit extinguishing the right to cross-examine | Court held statutory guidance does not permit wholesale denial of cross-examination; control may be exercised but not total prohibition |
| Whether the error required reversal despite trial court discretion to control proceedings | N/A | Trial court discretion to manage questioning balanced against fundamental right to cross-examine | Gravity of error and record showing explicit prohibition warranted reversal and remand |
Key Cases Cited
- State v. Hovies, 320 Or 414 (reaffirming right to cross-examination under Oregon Evidence Code; trial court may limit but not extinguish cross-examination)
- State v. Halsey, 116 Or App 225 (trial court cannot wholly deny right to cross-examine)
- Howell-Hooyman and Hooyman, 113 Or App 548 (denial of opportunity to complete cross-examination is reversible error; court control must be fundamentally fair)
- Hemingway and Mauer, 247 Or App 603 (denial of cross-examination in a restraining-order hearing was an abuse of discretion)
- Miller v. Leighty, 158 Or App 218 (reversed where respondent lacked opportunity to cross-examine adverse witnesses in protective-order proceeding)
- Decker v. Klapatch, 275 Or App 992 (trial court abused discretion by denying continuance to secure a witness in an EPPDAPA hearing)
- Best v. Tavenner, 189 Or 46 (cross-examination is an established right)
- Jones v. Siladic, 52 Or App 807 (opportunity for cross-examination is essential safeguard)
- Bryant v. Walker, 190 Or App 253 (distinguished: where record supported inference respondent declined to cross-examine, error was not apparent)