Actions and Suits in Particular Cases

ORS 30.866
Action for issuance or violation of stalking protective order

attorney fees

Text
Annotations 9

(1)

A petitioner may bring a civil action in a circuit court for a court’s stalking protective order or for damages, or both, against a respondent if:

(a)

The respondent intentionally, knowingly or recklessly engages in repeated and unwanted contact with the petitioner or a member of the petitioner’s immediate family or household thereby alarming or coercing the petitioner;

(b)

It is objectively reasonable for a person in the petitioner’s situation to have been alarmed or coerced by the contact; and

(c)

The repeated and unwanted contact causes the petitioner reasonable apprehension regarding the personal safety of the petitioner or a member of the petitioner’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 listed in ORS 163.730 (Definitions for ORS 30). 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 continue the hearing for up to 30 days or may proceed to enter a court’s stalking protective order and take other action as provided in ORS 163.738 (Effect of citation).

(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 as provided in ORS 133.110 (Issuance) in order to ensure the appearance of the respondent in court.

(4)

The petitioner may recover:

(a)

Both special and general damages, including damages for emotional distress;

(b)

Punitive damages; and

(c)

Reasonable attorney fees and costs.

(5)

The court may enter an order under this section against a minor respondent without appointment of a guardian ad litem.

(6)

An action under this section must be commenced within two years of the conduct giving rise to the claim.

(7)

Proof of the claim shall be by a preponderance of the evidence.

(8)

The remedy provided by this section is in addition to any other remedy, civil or criminal, provided by law for the conduct giving rise to the claim.

(9)

No filing fee, service fee or hearing fee may be charged for a proceeding under this section.

(10)

If the respondent was provided notice and an opportunity to be heard, the court shall also include in the order, when appropriate, terms and findings sufficient under 18 U.S.C. 922 (d)(8) and (g)(8) to affect the respondent’s ability to possess firearms and ammunition or engage in activities involving firearms.

(11)

ORS 163.741 (Service of stalking protective order) applies to protective orders issued under this section.

(12)

Except for purposes of impeachment, a statement made by the respondent at a hearing under this section may not be used as evidence in a prosecution for stalking as defined in ORS 163.732 (Stalking) or for violating a court’s stalking protective order as defined in ORS 163.750 (Violating a court’s stalking protective order). [1993 c.626 §9; 1995 c.353 §6; 1999 c.1052 §4; 2003 c.292 §3; 2015 c.89 §1; 2021 c.274 §1]

Note: Definitions for 30.866 (Action for issuance or violation of stalking protective order) are found in 163.730 (Definitions for ORS 30).

Notes of Decisions

Context of “personal safety” in statute and “danger” in ORS 163.730 definition of “alarm” clearly refers to concern over physical forms of harm and therefore terms are not vague. Delgado v. Souders, 146 Or App 580, 934 P2d 1132 (1997), aff’d 334 Or 122, 46 P3d 729 (2002)

Appellate review of protective order is de novo. Hanzo v. deParrie, 152 Or App 525, 953 P2d 1130 (1998), Sup Ct review denied

Where predicate contacts involve expression, order may issue only where expression or other associated conduct so unambiguously, unequivocally and specifically communicates determination to cause harm that objectively reasonable person in recipient’s situation would fear for personal safety or safety of household members. Hanzo v. deParrie, 152 Or App 525, 953 P2d 1130 (1998), Sup Ct review denied

“Contact” includes acts that, when learned of, give rise to unwanted relationship or association between petitioner and respondent. Boyd v. Essin, 170 Or App 509, 12 P3d 1003 (2000), Sup Ct review denied

“Intentionally,” “knowingly” and “recklessly” have meaning given those terms in Oregon Criminal Code. Delgado v. Souders, 334 Or 122, 46 P3d 729 (2002)

Procedure for issuance of stalking protective order is type historically exempted from right to jury trial and other constitutional safeguards for criminal prosecutions. Delgado v. Souders, 334 Or 122, 46 P3d 729 (2002)

Unless admitted by adverse party, factual allegations in petition do not constitute evidence in hearing for issuance of stalking protective order. Jones v. Lindsey, 193 Or App 674, 91 P3d 781 (2004)

Petitioner presented sufficient evidence to establish that petitioner’s subjective apprehension of physical safety was also objectively reasonable, when evidence showed that respondent was aware of substantial and unjustifiable risk that petitioner would not want respondent to make physical contact with petitioner and respondent chose to consciously and unreasonably disregard that risk. Retherford v. Wafula, 305 Or App 344, 471 P3d 786 (2020)

Law Review Citations

90 OLR 303 (2011)