Delgado v. SoudersDelgado v. Souders
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This case involves
FACTS AND PROCEDURAL BACKGROUND
The facts are as follows. In 1995, plaintiff was a student at Oregon State University (OSU) in Corvallis, working toward a doctoral degree in education administration. In the summer of 1995, plaintiff lived in an apartment about four blocks from the OSU campus and seven blocks from her office at the School of Education building, and she regularly walked to and from campus. During that summer, plaintiff noticed defendant several times a week, sometimes more than twice a day, either walking around plaintiffs apartment building or walking nearby as plaintiff walked to and from campus. She also noticed defendant a number of times in the OSU library when she was studying there. Initially, defendant’s presence caused plaintiff no alarm or concern, although she began to notice defendant with increasing frequency and, on one occasion, noticed that defendant appeared to be looking in her direction.
One morning in late September 1995, when plaintiff was walking to campus, she heard leaves crunching behind her, turned, and saw defendant right behind her. Defendant passed by plaintiff within one or two feet and, in the course of passing by, crossed the street diagonally away from her. Plaintiff was startled and thought it strange that defendant had not said anything when he passed by her so suddenly, particularly because the area otherwise was deserted.
After that encounter, between September and November 1995, plaintiff noticed defendant on at least three occasions seated at tables near her study carrel in the basement of the OSU library. She ultimately stopped going to her study carrel, because defendant’s presence made her uncomfortable. During the same time frame, plaintiff also noticed on a few occasions that defendant would appear on different floors of the library when she was working on those floors. On one or two of those occasions, she and defendant made “very, very brief’ eye contact. By mid-November, plaintiff began to feel as if defendant were stalking her and became concerned for her personal safety.
In late November 1995, plaintiff was unloading her vehicle in the afternoon after returning home from a Thanksgiving trip. At that time, the street was quiet and deserted. When plaintiff locked and closed her vehicle door and turned around, she saw defendant about two or three feet away from her; he walked past her and, in the course of passing by, crossed the street diagonally away from her. Plaintiff began to feel more uncomfortable about defendant’s conduct and became afraid and concerned for her personal safety. Consequently, she began documenting her encounters with defendant. One of plaintiffs concerns was the manner in which defendant “silently and swiftly” walked up behind her, without announcing — or without her otherwise noticing — his presence. Plaintiff also was concerned by the physically close nature of defendant’s appearances, at times when no other people were nearby and when defendant was walking in a large, unobstructed area.
On December 1, 1995, during the late afternoon, plaintiff noticed defendant, from a distance, walking toward the School of Education building. At one point, defendant walked on the same side of the street as plaintiff; however, he turned and walked up a pathway near the building, and did not come into contact with plaintiff or otherwise give any indication that he was aware of her presence. Plaintiff again became concerned and afraid as a result of seeing defendant so frequently, particularly because, to plaintiffs knowledge, defendant neither worked nor attended classes at the School of Education building.
Later on December 7, 1995, an Oregon State Police (OSP) officer located defendant, handcuffed him, and transported him to the Public Safety Building on the OSU campus. An OSU public safety officer then issued defendant a notice, which is not at issue in this proceeding, declaring that he no longer was permitted on the OSU campus. On December 12, 1995, a trial court held an initial hearing on plaintiff’s complaint and, after considering plaintiff’s allegations, entered a temporary SPO against defendant under
In February 1996, the trial court held an evidentiary hearing, pursuant to
At the close of plaintiffs evidence, defendant moved to dismiss, based upon insufficient evidence. The trial court denied that motion, and defendant then presented his case. For his part, defendant testified that, like plaintiff, he lived within walking distance of the OSU campus and frequently used the OSU library as a resource for his work. Defendant noted that he used materials on different floors of the library and that he often read the newspapers in the basement.
Defendant further testified that he walked everywhere, that he would pass the School of Education building when walking from his apartment to the OSU library, and that he would pass plaintiff’s apartment building when walking from his apartment to downtown Corvallis. Defendant testified that it was not unusual for him to walk by plaintiffs apartment building between four to eight times in one day. Defendant also described his manner of walking as “fairly fast” and stated that he regularly overtook other pedestrians on the sidewalk, giving no warning of his approach. Defendant further testified that he never remembered seeing plaintiff during the time period in question and that he did not know that plaintiff had complained about his conduct until he was transported to the Public Safety Building. Finally, other witnesses testified, in defendant’s behalf, that defendant was a peaceful and truthful person, and that he walked quickly and “with a purpose,” using long strides.
At the close of all the evidence, defendant renewed his pretrial motion to dismiss plaintiff’s complaint, based upon various constitutional grounds. The trial court adhered to its earlier ruling and also concluded that plaintiff had established all the elements required to obtain an SPO under
SUFFICIENCY OF EVIDENCE
We first address defendant’s evidentiary challenge.
See State v. Montez,
324 Or 343, 346, 927 P2d 64 (1996) (addressing subconstitutional issues before constitutional issues). As explained below, we conclude that plaintiff presented sufficient evidence to establish all the elements required to obtain an SPO under
We begin by setting out the civil anti-stalking statute.
“(1) A person may bring a civil action in a circuit court for a court’s stalking protective order or for damages, or both, against a person if:
“(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person’s immediate family or household thereby alarming or coercing the other person;
“(b) It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and
“(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim’s immediate family or household.
“(2) At the time the petition is filed, the court, upon a finding of probable cause based on the allegations in the petition, shall enter a temporary court’s stalking protective order that may include, but is not limited to, all contact fisted inORS 163.730. The petition and the temporary order shall be served upon the respondent with an order requiring the respondent to personally appear before the court to show cause why the temporary order should not be continued for an indefinite period.
“(3)(a) At the hearing, whether or not the respondent appears, the court may * * * proceed to enter a court’s stalking protective order * * *.
“(b) If respondent fails to appear after being served as required by subsection (2) of this section, the court may issue a warrant of arrest * * * in order to ensure the appearance of the respondent in court.
“(4) The plaintiff may recover:
“(a) Both special and general damages, including damages for emotional distress;
“(b) Punitive damages; and
“(c) Reasonable attorney fees and costs.
“(7) Proof of the claim shall be by a preponderance of the evidence.”
“(1) ‘Alarm’ means to cause apprehension or fear resulting from the perception of danger.
“(2) ‘Coerce’ means to restrain, compel or dominate by force or threat.
“(3) ‘Contact’ includes but is not limited to:
“(a) Coming into the visual or physical presence of the other person;
“(b) Following the other person;
“(c) Waiting outside the home, property, place of work or school of the other person or of a member of that person’s family or household;
“(d) Sending or making written or electronic[ 2 communications in any form to the other person;
“(e) Speaking with the other person by any means;
“(f) Communicating with the other person through a third person;
“(g) Committing a crime against the other person;
“(h) Communicating with a third person who has some relationship to the other person with the intent of affecting the third person’s relationship with the other person;
“(i) Communicating with business entities with the intent of affecting some right or interest of the other person;
“(j) Damaging the other person’s home, property, place of work or school; or
“(k) Delivering directly or through a third person any object to the home, property, place of work or school of the other person.
“(7) ‘Repeated’ means two or more times.”
As noted above, defendant contends that plaintiff presented insufficient evidence to establish that defendant had engaged in stalking under
We begin with defendant’s contention- that, regardless of the reasonableness of plaintiffs sense of alarm, plaintiff presented insufficient evidence as a matter of law to establish that his conduct constituted stalking. For purposes of our analysis, we focus upon the elements set out in
“A person may bring a civil action * * * for a court’s stalking protective order * * * against a person if:
“(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person’s immediate family or household thereby alarming or coercing the other person [.]”
(Emphasis added.) Among other things,
“(a) Coming into the visual or physical presence of the other person; [or] .
“(b) Following the other person [.] ”
Defendant does not dispute that plaintiff sufficiently proved that, under the foregoing definition of “contact,” he “engage [d] in repeated and unwanted contact,”
We begin by examining the text and context of
The legislature did, however, impose a mental-state requirement in
We further observe that the adjectives “repeated” and “unwanted” modify the object “contact.” Because those adjectives serve to describe the type of contact in which a defendant intentionally, knowingly, or recklessly must engage, we conclude from the. text that a defendant must act intentionally, knowingly, or recklessly respecting the repeated and unwanted nature of the contacts in question.
The context of
“(7) ‘Intentionally’ or ‘with intent,’ when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.
“(8) ‘Knowingly or ‘with knowledge,’ when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.
“(9) ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Applying those definitions to
That, in turn, demonstrates that
To summarize (particularly as applicable to this case): Under
With that construction of
We first note that we must view the evidence in the record, and all reasonable inferences to be drawn therefrom, in favor of plaintiff, the nonmoving party. See State v. Krummacher, 269 Or 125, 137, 523 P2d 1009 (1974) (in deciding whether trial court erred in denying defendant’s motion for judgment of acquittal, conflicts in evidence must be viewed in state’s favor); Anderson v. Sturm, 209 Or 190, 191, 303 P2d 509 (1956) (in reviewing sufficiency of evidence on defendant’s motion for nonsuit, court views evidence, and every reasonable inference to be drawn therefrom, in plaintiffs favor). Further, it is a question of law whether the evidence presented was sufficient to support the elements required to obtain an SPO. See State v. Belt, 325 Or 6, 11, 932 P2d 1177 (1997) (question of law whether evidence sufficient to support requisite element of criminal statute at issue); State Farm v. Century Home, 275 Or 97, 105, 550 P2d 1185 (1976) (same, regarding civil action). In evaluating plaintiff’s evidence, we must determine whether she presented enough evidence, as a matter of law, to permit reasonable persons to conclude that the evidence established each element by the requisite burden of proof (here, preponderance of the evidence). See State v. Herrera, 286 Or 349, 360, 594 P2d 823 (1979) (so stating, in context of submission of defense to jury in criminal case); Pattle v. Wildish Construction Co., 270 Or 792, 798, 529 P2d 924 (1974) (so stating, in context of motion for nonsuit in civil case at close of plaintiffs evidence).
In reviewing the record, we also must be mindful that a party may establish an element of a criminal offense or a civil action by circumstantial evidence and reasonable inferences arising from such evidence. See State v. Carson, 292 Or 451, 461, 640 P2d 586 (1982) (jury entitled to review chain of circumstances to infer criminal defendant’s mental state); Lemons et al v. Holland et al, 205 Or 163, 188, 284 P2d 1041 (1955) (element of civil action may be established by circumstantial evidence and reasonable inferences arising therefrom). However, as noted above, it is a legal question whether the evidence presented is sufficient to support a particular inference. Belt, 325 Or at 12.
Finally, in assessing such an inference, the question for this court is whether the evidence presented gives rise to a reasonable inference respecting an element in question or, depending upon the circumstances, whether a conflicting reasonable inference also can be drawn.
Id.; see also Lemons,
205 Or at 188 (facts so established must be
As will be seen, this case turns upon the existence of evidence, including any reasonable inference to be drawn therefrom, tending to establish defendant’s mental state visa-vis his contacts with plaintiff. We now turn to the record and apply the foregoing principles in that regard.
As discussed at the outset of this opinion, plaintiff presented evidence of three occasions in which defendant passed by her suddenly, silently, and swiftly, when no other people were nearby — once while plaintiff was walking to the OSU campus, once on the street in front of plaintiffs apartment building, and once on the OSU campus. On two of those occasions, upon reaching plaintiff and passing by her, defendant crossed the street diagonally away from her and made “side glances” in her direction. In addition, the record shows that, on at least three occasions during the time period in question, defendant appeared in different parts of the OSU library when plaintiff was present. Finally, on one occasion, plaintiff noticed defendant, from a distance, walking toward the School of Education building. Those occurrences, taken together, took place over a three-month period, between late September and mid-December 1995. 5
At the close of plaintiff’s evidence, the trial court, without comment, denied defendant’s motion to dismiss plaintiffs complaint. The question before us is whether plaintiff presented sufficient evidence, as a matter of law, to establish each element required to obtain an SPO under
For purposes of our analysis, we first note that, as to the contacts in the OSU library and the first occasion (in September 1995) when defendant passed by plaintiff closely while walking to campus, plaintiff did not present evidence that, at the time that they occurred, those contacts had caused her alarm or any reasonable apprehension for her personal safety. Rather, plaintiff testified that those contacts, which had occurred over about a two-month period, had caused her concern, in that she had begun noticing defendant more and more frequently in unexpected locations. Although those contacts — regardless of defendant’s mental state at the time — cannot be said to satisfy all the elements of
Turning, then, to those two contacts, the record demonstrates that plaintiff presented sufficient evidence to establish both that those contacts subjectively had caused her alarm,
The remaining question is whether the evidence was sufficient as a matter of law to prove that defendant had acted with a requisite mental state regarding the two contacts in question. As explained earlier,
Because defendant never said anything to plaintiff or otherwise communicated with her in any way, and because plaintiff also did not vocalize to defendant in any way (until after he had passed by her a final time in December 1995) that his repeated presence was unwanted, we must infer his mental state in
Having rejected defendant’s subconstitutional challenge, we turn to his constitutional challenges.
APPLICABILITY OF CONSTITUTIONALLY REQUIRED SAFEGUARDS FOR CRIMINAL PROSECUTIONS
Defendant contends that, although
“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor * *
(Emphasis added.) 7
The state responds that
At the outset, we note that the parties’ disagreement about whether
“is wholly confined within an historical exception that was well-established when the Oregon constitutional guarantee of a jury trial in all criminal prosecutions was adopted, and the jury trial guarantee in Article I, section 11, demonstrably was not intended to reach punishment for indirect criminal contempt for violation of court orders to pay child support.”
Id. at 114-15.
Similarly, in State ex rel Hathaway v. Hart, 300 Or 231, 708 P2d 1137 (1985), this court concluded that criminal contempt proceedings for restraining order violations under the Abuse Prevention Act fell within a historical exception to Article I, section 11. In so concluding, the court acknowledged that the framers of the Oregon Constitution could not have been aware of restraining orders under the Act, which was enacted in 1977. Id. at 240. However, the court determined that it could review the historical record “for analogies to restraining orders under the Act.” Id. Based upon a historical exception for injunctions preventing spousal harassment, as well as the exception for criminal contempt proceedings discussed in Dwyer, the court in Hathaway concluded that the framers would have viewed restraining order proceedings under the Act as an exception to Article I, section 11, and, consequently, that no right to a jury trial applied. Id. at 241-42.
Consistent with
Dwyer
and
Hathaway,
we shall review the historical record to determine whether an SPO entered under
To that end, we think it significant that, before statehood, the Statutes of Oregon provided for proceedings to prevent the commission of crimes. Under those statutes, upon receipt of a complaint of a threat to commit an offense against another person or another person’s property, a magistrate could examine both the complainant and the accused person, as well as any potential witnesses. The accused person, in turn, had a statutory right to be assisted by counsel. Statutes of Oregon, Act to Define Crimes and Misdemeanors, and Regulate Criminal Proceedings, ch XVI, §§ 2, 4, 5 (1855). The
magistrate further could compel the appearance of the accused person,
id.
at § 3, and, upon a finding of “just cause to fear that any such offence will be committed” by the accused person, could require the accused person to enter into recognizance
9
with sufficient
The statutory procedure set out in
In light of the foregoing, we conclude that the procedures set out in
Defendant also contends that, “as applied” to him, the procedures set out in
The evidence reflects, as defendant contends, that a police officer frisked and handcuffed him, and transported him by police vehicle, on the date that plaintiff filed her complaint. However,
OVERBREADTH
Before the trial court and the Court of Appeals, and in his petition for review, defendant contended that
Defendant next contends that
We begin with the state’s contention that defendant cannot bring a vagueness challenge to a civil statute under the Oregon Constitution. As will be seen, in addressing the state’s response to defendant’s “fair notice” argument, it is necessary to examine the nature of a vagueness challenge under both Article I, section 20, and Article I, section 21.
We begin with Article I, section 21, which provides, in part:
“No ex-post facto law * * * shall ever be passed * *
As pertinent to a vagueness challenge, that constitutional provision prevents those charged with enforcing and applying criminal laws “to make the law after the event.”
State v. Robertson,
293 Or 402, 408, 649 P2d 569 (1982);
see also State v. Cornell I Pinnell,
304 Or 27, 32-33, 741 P2d 501 (1987) (Article I, section 21, prohibits granting “unbridled discretion” to judge and jury in respect of applying criminal statute in question);
Megdal v. Board of Dental Examiners,
288 Or 293, 298, 303, 605 P2d 273 (1980) (vague criminal laws allow court or jury to define crime after the fact, in violation of Article I, section 21).
12
A “criminal” law, in the
Here, defendant challenges the civil anti-stalking statute,
As noted, defendant also cites Article I, section 20, in his vagueness challenge to
“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
Among other things, Article I, section 20, requires that a governmental decision to offer or deny some advantage to a person “be made by permissible criteria and consistently applied.” City of Salem v. Bruner, 299 Or 262, 268-69, 702 P2d 70 (1985) (internal quotation marks omitted); see also State v. Freeland, 295 Or 367, 374, 667 P2d 509 (1983) (Article I, section 20, prohibits “[h]aphazard” or “standardless” administration of laws) (internal quotation marks omitted). Unlike section 21 of Article I, section 20 applies to both civil and criminal laws. See, e.g., Libertarian Party of Oregon v. Roberts, 305 Or 238, 248-51, 750 P2d 1147 (1988) (applying Article I, section 20, to civil law); State v. Graves, 299 Or 189, 195-97, 700 P2d 244 (1985) (applying Article I, section 20, to criminal law).
In the context of a vagueness challenge to a criminal law under Article I, section 20, the inquiry is whether the enactment at issue “creat[es] a serious danger of unequal application” of the enactment.
Cornell/Pinnell,
304 Or at 32;
see also Graves,
299 Or at 195 (Article I, section 20, is implicated “when vague laws give unbridled discretion to judges and jurors to decide what is prohibited in a given case, for this results in the unequal application of criminal laws”). This court has not articulated the extent — if any — to which the standard for analyzing an arguably vague civil law for haphazard and standardless administration, such as
In this case, however, we need not determine the appropriate standard for reviewing a civil law for vagueness under Article I, section 20. That is so, because defendant has not cast his argument in terms of unequal application of the laws. Rather, defendant argues that
We turn to defendant’s challenge to
“No State shall * * * deprive any person of life, liberty, or property, without due process of law * *
In respect of a vagueness challenge under the Due Process Clause, the United States Supreme Court has stated:
“ “Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. Avague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications [.]’ ”
Hoffman Estates v. Flipside, Hoffman Estates, 455 US 489, 498, 102 S Ct 1186, 71 L Ed 2d 362 (1982) (quoting Grayned v. City of Rockford, 408 US 104, 108-09, 92 S Ct 2294, 33 LEd 2d 22 (1972)). The protection against vague laws that the Due Process Clause affords applies to both criminal and civil laws. See Chicago v. Morales, 527 US 41, 119 S Ct 1849, 144 L Ed 2d 67 (1999) (invalidating ordinance that imposed criminal sanctions as unconstitutionally vague); Rowan v. Post Office Dept., 397 US 728, 90 S Ct 1484, 25 L Ed 2d 736 (1970) (upholding civil statute against vagueness challenge).
As noted, defendant’s challenge to
According to the Supreme Court, “[t]he degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement— depends in part on the nature of the enactment.” Hoffman Estates, 455 US at 498. For example, enactments with civil, rather than criminal, penalties, are subject to greater tolerance, “because the consequences of imprecision are qualitatively less severe.” Id. Compare Morales, 527 US at 56 (in invalidating ordinance preventing loitering and imposing criminal penalties, question was whether ordinance was “so vague and standardless” that it left public uncertain as to prohibited conduct), with Roberts v. United States Jaycees, 468 US 609, 629, 104 S Ct 3244, 82 L Ed 2d 462 (1984) (in upholding anti-discrimination statute, court focused upon whether statutory terms articulated with “reasonable degree of clarity’). Additionally, ,laws that threaten to inhibit the exercise of constitutionally affected rights, such as the right to free speech, demand a higher level of clarity. Hoffman Estates, 455 US at 499; see also Keyishian v. Board of Regents, 385 US 589, 603, 87 S Ct 675, 17 L Ed 2d 629 (1967) (“precision of regulation must be the touchstone in an area so closely touching our most precious freedoms,” such as freedom of speech (internal quotation marks and brackets omitted)).
It arguably might be appropriate in this case to apply a more tolerant vagueness standard under the Due Process Clause to
We note one additional matter before turning to the specifics of defendant’s challenge. Here, defendant challenges the terms “contact,” “alarm[ ],” and “personal safety” set out in
As noted, defendant first challenges the term “contact” in
Defendant next challenges the term “alarm,” which
We first note that, in
Rangel,
this court interpreted the term “alarm” in
That case law disposes, in part, of defendant’s complaint about the term “danger” in
Defendant also challenges the term “personal safety” in
Here, the term “personal safety’ has an identifiable meaning. The word “personal,” among other things, means:
“1: of or relating to a particular person * * * 3 : relating to the person or body: BODILY <~ appearance» <~ liberty» * *
“1: the condition of being safe: freedom of exposure to danger : exemption from hurt, injury, or loss * * * <ferried in - across the river» * *
Id. at 1998. Thus, the term “personal safety’ refers to the state of a particular individual being free from danger or harm, see id. at 573 (defining “danger,” in part, as “HARM, INJURY, DAMAGE” and “the state of being exposed to harm”), or from other hurt or loss. In short, despite its lack of a statutory definition, the term “personal safety” in this context carries an identifiable meaning that is understandable to a person of ordinary intelligence and, therefore, is not unconstitutionally vague.
Finally, defendant contends that,
“[i]n analyzing the stalking statute, all of the terms which are vague must be considered together. When the statute is read as a whole, the vagueness of each term compounds the vagueness of the others. Because so many of the terms used in the statute are vague, the citizens of Oregon cannot be sure if their conduct is prohibited under the statute, and consequently, the statute is unconstitutional.”
As can be seen from the foregoing, we disagree with defendant’s premise. The terms that he challenges are not vague by failing to identify the prohibited conduct for a person of ordinary intelligence; consequently, his argument that the statute itself is vague as a whole is without foundation. We reject defendant’s argument that
RIGHT TO TRAVEL
Defendant finally contends that, by allowing entry of an SPO,
As to the Oregon Constitution and the First Amendment, defendant cites cases that involved the right to use public areas for free expression, free association, and petitioning purposes. Defendant otherwise does not articulate with any clarity his rationale that
As to the Fourteenth Amendment, defendant primarily relies upon Morales, 527 US 41, which the United States Supreme Court decided after the Court of Appeals issued its decision in this case. In Morales, the Supreme Court invalidated a city “gang-congregation” ordinance upon vagueness grounds, holding that the prohibition in the ordinance against “loitering” by certain persons, defined as “remain [ing] in any one place with no apparent purpose,” id. at 47, specified no standard of conduct and, therefore, violated the Due Process Clause. Id. at 60. Before engaging in its vagueness analysis, the Court stated:
“* * * [T]he freedom to loiter for innocent purposes is part of the ‘liberty5 protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this right to move from one place to another according to inclination as an attribute of personal liberty protected by the Constitution. * * * Indeed, it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is a part of our heritage * * * or theright to move to whatsoever place one’s own inclination may direct * *
Id. at 53-54 (internal quotation marks, citations, and footnotes omitted). See also Kent v. Dulles, 357 US 116, 126, 78 S Ct 1113, 2 L Ed 2d 1204 (1958) (“Freedom of movement is basic in our scheme of values.”). Thus, the Court in Morales declared that the right to move about freely in a public place indeed is protected by the Due Process Clause; however, it did not have occasion to analyze the limitations of the ordinance at issue upon that right.
The Supreme Court, however, has explored the constitutionality of limitations upon the right to travel in other contexts. In Aptheker v. Secretary of State, 378 US 500, 84 S Ct 1659, 12 L Ed 2d 992 (1964), in analyzing the constitutionality of certain restrictions upon the ability of United States citizens to travel abroad, the Court applied the following “well-established principle[]” for testing “whether the restrictions * * * imposed are consistent with the liberty guaranteed” by constitutional due process protections:
“It is a familiar and basic principle, recently reaffirmed in NAACP v. Alabama, 377 US 288, 307 [, 84 S Ct 1302, 12 L Ed 2d 325 (1964)], that ‘a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ * * * In applying this principle the Court in NAACP v. Alabama, supra, referred to the criteria enunciated in Shelton v. Tucker, [364 US 479,] 488 [, 81 S Ct 247, 5 LEd 2d 231 (1960)]:
“ ‘[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose.’ ”
Id. at 508 (final brackets in original; citations omitted). The Court then examined the congressional purpose supporting the statute at issue, id. at 509, and concluded that the statute swept too broadly and, therefore, was unconstitutional on its face, id. at 514. See also Zemel v. Rusk, 381 US 1, 85 S Ct 1271, 14 L Ed 179 (1965) (affirming restrictions upon travel to Cuba, in light of national security justifications).
Here, the legislative purpose behind
“(2) At the time the petition [for a civil SPO] is filed, the court, upon a finding of probable cause based on the allegations in the petition, shall enter a temporary court’s stalking protective order that may include, but is not limited to, all contact listed inORS 163.730. The petition and the temporary order shall be served upon the respondent with an order requiring the respondent to personally appear before the court to show cause why the temporary order should not be continued for an indefinite period.
“(3)(a) At the [subsequent] hearing, * * * the court * * * may proceed to enter a court’s stalking protective order * *
See also
Defendant also cites as problematic the “unlimited duration” of an SPO entered under
CONCLUSION
In sum, we conclude that: (1) the trial court did not err in denying defendant’s motion to dismiss, based upon insufficient evidence; (2)
The decision of the Court of Appeals and the order of the circuit court are affirmed.
Notes
Although
The 2001 Legislature added the words “or electronic” to
The state contends that defendant neither preserved that particular issue at trial nor raised it on appeal, and, accordingly, that this court should not address it. However, defendant thoroughly argued to the trial court and raised on appeal the issue whether plaintiff had presented sufficient evidence respecting the elements required to obtain an SPO under
Although
As noted earlier, plaintiff also had noticed defendant outside her apartment building and inside the OSU library on a number of occasions earlier in the summer of 1995. However, according to plaintiffs testimony, nothing about defendant’s behavior at that time led her to think that those contacts were anything other than coincidental.
We note that, as to the remaining contact that occurred on December 1,1995, when plaintiff noticed defendant walking toward the School of Education building from a distance, nothing about defendant’s conduct on that occasion suggests that he was aware of any risk that he had come into plaintiffs visual presence.
Defendant also contends that entry of an SPO under
In Brown, this court concluded that the following factors are relevant to the determination whether an “ostensibly civil penalty proceeding,” 280 Or at 102, can be characterized as a “criminal prosecution! ]” under Article I, section 11: (1) the type of offense at issue; (2) the prescribed penalty for the offense; (3) the collateral consequences that flow from the offense; (4) the punitive significance of the offense; and (5) the applicability to the offense of pretrial practices ordinarily used in the enforcement of criminal laws. Id. at 102-09. Applying those factors, the court in Brown concluded that the offense of driving under the influence of intoxicants gave rise to a “criminal prosecution! ]” within the meaning of Article I, section 11. Id. at 109.
A “recognizance” was defined at the time as “[a]n obligation of record, entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law, which is therein specified.” IIBouvier’s Law Dictionary, 423 (14th ed 1874). A recognizance served to secure the presence of the defendant. Id.
Article I, section 8, of the Oregon Constitution, provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
The First Amendment to the United States Constitution provides, in part:
“Congress shall make no law * * * abridging the freedom of speech * * *.”
The First Amendment is made applicable to the states through the Fourteenth Amendment. New York Times Co. v. Sullivan, 376 US 254, 264 n 4, 84 S Ct 710, 11 LEd 2d 686 (1964).
“(1) A person commits the crime of stalking if:
“(a) The person knowingly alarms or coerces another person or a member of that person’s immediate family or household by engaging in repeated and unwanted contact with the other person;
“(b) It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and
“(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim’s immediate family or household.”
As with
In
Rangel,
this court construed
As can be seen, the elements set out in
We further note that defendant raises a separate challenge to
As noted, a vagueness challenge under Article I, section 21, concerns the argument that the particulars of a criminal law are determined after the fact. We note, however, that this court’s case law could be read to suggest that a vagueness challenge under Article I, section 21, can encompass a “fair notice” element — that is, that Article I, section 21, prohibits the enactment of a law that fails to inform those who are subject to it, in a sufficiently explicit manner, “ ‘what conduct on their part will render them liable to its penalties.’ ” State v. Plowman, 314 Or 157, 160, 838 P2d 558 (1992), cert den 508 US 974 (1993) (citing State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985)); see also State v. Chakerian, 325 Or 370, 382, 938 P2d 756 (1997) (in case involving vagueness challenge under Oregon Constitution, court explained that vagueness doctrine serves functions of providing reasonable notice of prohibited conduct and of preventing judge, jury, and enforcement officials from exercising uncontrolled discretion in punishing defendants).
Upon closer examination of the case law, however, it is apparent that such suggestions concern the nature of the vagueness doctrine generally, rather than articulating any “fair notice” requirement under Article I, section 21. See Graves, 299 Or at 195 (in discussing fair notice requirement, court cited State v. Hodges, 254 Or 21, 27, 457 P2d 491 (1969), which set out fair notice requirement under Due Process Clause); see also Chakerian, 325 Or at 382 (citing Graves for “fair notice” proposition); Plowman, 314 Or at 160 (same); Cornell /Pinnell, 304 Or at 29-30 (same).
We note that, in Davidson, 300 Or 415, this court suggested that a civil statute that imposed a forfeiture penalty was more likely to implicate vagueness protections under the state and federal constitutions than a civil statute that governed professional conduct. See id. at 425 (so suggesting). However, the court then characterized the vagueness issue as one involving due process under the federal constitution and ultimately concluded that the statute at issue was not vague in any event. Id.
Notwithstanding the discussion in Davidson, this court’s general pronouncements under Article I, section 21, as well as the court’s statement in Megdal, 288 Or at 298, that Article I, section 21, applies to vagueness challenges to only criminal laws, clarify that a vagueness challenge to a civil law — that is, for ex post facto purposes, a law that does not impose a “criminal” penalty — cannot stand under Article I, section 21.
As noted earlier,
In Anderson v. Peden, 284 Or 313, 326, 587 P2d 59 (1978), this court stated that a vagueness challenge to a civil law under Article I, section 20, “must show that in fact a policy unlawfully discriminating in favor of some persons against others either has been adopted or has been followed in practice.” However, that case involved a different type of complaint under Article I, section 20, namely, that discretionary administration of governmental policy resulted in discrimination against a group or class of persons.
We also note that this court has invalidated a civil law upon the ground that a disputed term was “too vague to convey a definite meaning capable of serving as a standard or guide in carrying that portion of the [statute] into effect,” resulting in the determination of compliance being left “to the unguided judgment” of those applying the statute. Vinton v. Hoskins, 174 Or 106, 116, 147 P2d 892 (1944). In that case, however, the court cited neither Article I, section 20, nor any other state or federal constitutional provision, as a basis for its decision.
The fact that certain types of “contact” delineated in
Defendant also challenges the terms “coerc[e]” and “following” in
The state relies, in part, upon the interpretation in
Moyle,
299 Or at 706, of the term “alarm” in a different statute —
Because Rangel involved an overbreadth challenge under Article I, section 8, it concerned only contacts that, like those at issue in Moyle, implicated speech or expression.
Article I, section 33, provides: “This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people.”
Indeed, in this case, the trial court’s order required plaintiff to notify the court if she moved more than 50 miles from Corvallis and, if so, that defendant may request dismissal; the order otherwise provided that defendant may request dismissal two years after the date of the order.
Defendant also contends in his petition for review that