Ragsdale v. Fishler ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 56
IN THE
SUPREME COURT OF THE STATE OF UTAH
KRISTI RAGSDALE,
Appellant/Cross-appellee,
v.
GEORGE FISHLER,
Appellee/Cross-appellant.
No. 20180993
Heard April 10, 2020
Filed August 5, 2020
On Direct Appeal
Third District, Salt Lake
The Honorable Amber M. Mettler
No. 170903926
Attorneys:
Stacy J. McNeill, James C. Dunkelberger, Salt Lake City,
for appellant/cross-appellee
Karthik Nadesan, Salt Lake City, for appellee/cross-appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE,
JUSTICE PETERSEN, and JUDGE HAGEN joined.
Having recused himself, JUSTICE HIMONAS does not
participate herein;
COURT OF APPEALS JUDGE DIANA HAGEN sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Kristi Ragsdale runs Eva Carlton Academy (ECA), a
residential treatment program for young women, out of her home
in a Salt Lake City suburb. Her neighbor, George Fishler, strongly
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Opinion of the Court
objects to ECA’s presence in his neighborhood. He expresses this
objection by placing provocative signs in his yard, and by flipping
off and swearing at Ms. Ragsdale and others entering or exiting
ECA. In response to this behavior, Ms. Ragsdale sought a civil
stalking injunction against Mr. Fishler. The district court denied
both this injunction and Mr. Fishler’s request for attorney fees. Both
parties now appeal.
¶2 On appeal, Ms. Ragsdale raises three issues. First, she
claims the district court erred in concluding that Mr. Fishler did not
stalk her, because he directed his conduct toward ECA as a
business. We reverse and remand on this issue because, in ruling
that Mr. Fishler’s conduct was ultimately directed at ECA, the
district court misinterpreted the stalking statute.
¶3 Second, Ms. Ragsdale claims the district court erred in
concluding that Mr. Fishler did not stalk her based on its finding
that Mr. Fishler’s conduct would not cause a reasonable person to
suffer fear or emotional distress. We reverse and remand on this
issue as well. The district court failed to assess the impact of
Mr. Fishler’s conduct on a reasonable person in Ms. Ragsdale’s
circumstances.
¶4 Third, Ms. Ragsdale argues that the district court
improperly denied her injunction on the grounds that the First
Amendment protects Mr. Fishler’s conduct. We reverse and
remand here, too, because the district court applied an incorrect
First Amendment analysis.
¶5 Fourth, on cross-appeal, Mr. Fishler argues that the district
court erred in denying his attorney-fees request. Because our
reversal of the first three issues may affect the basis for the district
court’s attorney-fees decision, we vacate that decision and remand
for a new determination.
Background
¶6 Ms. Ragsdale is the founder and executive director of the
Eva Carlston Academy, an inpatient treatment facility for young
women recovering from severe depression and anxiety. She
operates ECA from her private residence, which is located at the
end of a cul-de-sac in a Salt Lake City suburb. When she launched
ECA in 2013, some neighbors feared it would increase noise and
traffic in the neighborhood. Several neighbors distributed flyers
and petitioned their local community council in an attempt to stop
ECA from opening. But they were ultimately unsuccessful.
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Opinion of the Court
¶7 George Fishler was one of these neighbors. He owns the
home directly south of ECA. After his initial efforts to stop ECA
failed, he began protesting the facility directly. To that end, he put
two sets of signs in his yard, one reading “TROUBLED TEEN
MONEY MACHINE BECOME DISABLED FOR ONLY
$10,000/MONTH” and the other reading “DELIVER US FROM
EVA.” He pointed one set toward the street and the other toward
ECA. He also began flipping off and swearing at employees, clients,
and anyone else involved with ECA.
¶8 This behavior continued for the next four years.
Throughout this period, Ms. Ragsdale claims Mr. Fishler would
flip her off whenever she left her home. She also claims that over
time, he became more assertive, coming out of his garage to say
things like “fuck you,” “fuck off,” or “go fuck yourself,” or waiting
in his car to accost Ms. Ragsdale as she left her home. Ms. Ragsdale
also claims Mr. Fishler would call her and the young women
staying at ECA “fucking bitches,” “little bitches,” “little assholes,”
and would tell them to “run away, little assholes.” Many of these
interactions happened when Ms. Ragsdale was the only person in
Mr. Fishler’s presence. And on several occasions, Mr. Fishler’s
conduct prompted Ms. Ragsdale to call the police.
¶9 In June 2017, Ms. Ragsdale sought a civil stalking
injunction against Mr. Fishler under Utah Code
section 77-3a-101(2) (2017). The district court issued an ex parte
1
injunction on June 19, 2017. Mr. Fishler then requested an
evidentiary hearing under Utah Code section 77-3a-101(6) (2017),
which the district court held on July 27 and August 2, 2017.
¶10 At this hearing, Ms. Ragsdale testified about Mr. Fishler’s
conduct and the emotional distress she experienced as a result. She
testified that she suffered anxiety, sleeplessness, and nausea, and
installed automatic locks on ECA’s doors out of fear of Mr. Fishler.
In response, Mr. Fishler argued that his conduct amounted to a
peaceful protest against ECA. This protest, he claimed, did not
meet the statutory definition of stalking and was protected by the
First Amendment.
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1 The Utah Legislature amended and renumbered this statute
during its 2020 general session. See H.B. 403, 63d Leg. 2020 Gen.
Sess. (Utah 2020); UTAH CODE § 78B-7-701. “We refer to the version
of the statute in effect at the time of the [events in question].” State
v. Bridgewaters, 2020 UT 32, ¶ 2 n.1, 466 P.3d 204.
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¶11 Ms. Ragsdale also requested that the district court expand
its ex parte injunction. In so doing, she submitted a proposed
injunction with four distinct provisions. The first was a “Personal
Conduct Order” barring Mr. Fishler from conduct that meets the
legal definition of stalking. The second was a “No Contact Order”
preventing Mr. Fishler from contacting Ms. Ragsdale, her
coworkers, and her clients as they entered or exited ECA. The third
was a “Stay Away Order” directing Mr. Fishler to stay away from
ECA. And the fourth was a form of miscellaneous relief, titled
“Other Orders,” requiring Mr. Fishler to take down his derogatory
yard signs.
¶12 Following the hearing, the district court denied
Ms. Ragsdale’s request for a permanent injunction. It held that even
though Mr. Fishler’s conduct was “offensive, upsetting, rude[,]”
and “abhorrent,” it did not constitute stalking. According to the
district court, Mr. Fishler did not direct his conduct at Ms. Ragsdale
but toward ECA as a business. And even if he had, the district court
held, his conduct would not cause a reasonable person in
Ms. Ragsdale’s circumstances to suffer fear or emotional distress.
“In this day and age,” explained the district court, “exposure to
pejorative gestures and profanity should not cause the type of
significant mental or emotional distress envisioned by the
[stalking] statute.” The district court also denied Ms. Ragsdale’s
injunction on the grounds that Mr. Fishler’s conduct was protected
by the First Amendment.
¶13 Afterwards, Mr. Fishler moved for attorney fees under the
civil stalking statute. In between the evidentiary hearing and this
motion, the judge who denied Ms. Ragsdale’s injunction retired,
and a new judge was assigned to rule on Mr. Fishler’s fee request.
This new judge noted she was “at somewhat of a disadvantage” in
ruling on Mr. Fishler’s motion, because she did not preside over the
evidentiary hearing and was making her decision from a “cold
record.” After oral argument, the district court denied this request,
finding that the equities weighed in favor of denial because the case
had been “fact-sensitive,” “complicated,” and did not lack “all
merit.”
¶14 Both parties now appeal. We exercise jurisdiction under
Utah Code section 78A-3-102(3)(j).
Standards of Review
¶15 The parties raise four issues on appeal. First, we must
decide whether the district court erred in concluding that
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Mr. Fishler did not direct his conduct at Ms. Ragsdale. We review
this conclusion for correctness.2
¶16 Second, we must decide whether the district court erred in
finding that Mr. Fishler’s conduct would not cause a reasonable
person to suffer fear or emotional distress. Although this is a
question of fact that we review for clear error, we review the district
court’s interpretation of the underlying legal standard for
correctness.3
¶17 Third, we must determine whether the district court
incorrectly denied Ms. Ragsdale’s injunction on the grounds that
the First Amendment of the United States Constitution protects
Mr. Fishler’s conduct. We review the interpretation of the federal
constitution for correctness.4
¶18 Finally, we must decide if the district court erred in
denying Mr. Fishler’s motion for attorney fees. When a statute
“grants discretion to [district] courts to assess attorney fees, if
appropriate, after considering the facts of the case,” we review that
assessment for abuse of discretion.5
Analysis
¶19 This case presents four issues. Ms. Ragsdale raises three in
her direct appeal and Mr. Fishler raises one on cross-appeal.
¶20 First, Ms. Ragsdale claims the district court erred in
concluding that Mr. Fishler’s conduct was not “directed at” her, but
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2 Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (“The proper
interpretation and application of [the civil stalking] statute is a
question of law which we review for correctness.” (citation
omitted) (internal quotation marks omitted)).
3 See id. ¶¶ 22–32 (reversing the use of an incorrect standard on
this issue and remanding for application of the correct standard).
4 Buschco v. Utah State Tax Comm’n, 2009 UT 73, ¶ 8, 225 P.3d 153.
5 Paul deGroot Bldg. Servs., L.L.C. v. Gallacher, 2005 UT 20, ¶ 18,
112 P.3d 490; see also Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276
(“The decision of whether to award attorney fees pursuant to
section 30-3-3 of the Utah Code rests in the sound discretion of the
district court. As such, we review the district court’s award or
denial of fees for abuse of discretion.”).
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toward ECA as a business.6 We agree. The district court based its
conclusion on a misunderstanding of the stalking statute. So we
reverse and remand for application of the correct standard.
¶21 Second, Ms. Ragsdale claims the district court erred in
concluding that Mr. Fishler’s conduct would not cause a reasonable
person to suffer fear or emotional distress. Again, we agree. The
district court did not properly assess the impact of Mr. Fishler’s
conduct on a reasonable person in Ms. Ragsdale’s circumstances.
So we reverse and remand on this issue as well.
¶22 Third, Ms. Ragsdale claims the district court incorrectly
denied her injunction on the grounds that Mr. Fishler’s conduct is
“political speech” protected by the First Amendment. We reverse
here as well. Although Mr. Fishler is entitled to the protection of
the First Amendment, that protection does not exempt him from
being enjoined from conduct that meets the definition of stalking.
So we remand with instructions for the district court to conduct a
new First Amendment analysis consistent with this opinion.
¶23 Finally, Mr. Fishler argues that the district court erred in
denying his motion for attorney fees under the civil stalking
statute. Because we reverse on the other three issues, we vacate the
district court’s attorney-fees decision and remand for a new ruling.
In so doing, we clarify the standard for awarding fees under the
civil stalking statute.
I. The District Court Erred In Concluding That Mr. Fishler
Did Not Direct His Conduct At Ms. Ragsdale
¶24 Ms. Ragsdale claims the district court erred in concluding
that Mr. Fishler’s conduct was not “directed at” her, but toward
ECA as a business. We agree. The district court erred in concluding
that because Mr. Fishler claimed to subjectively target only ECA,
he did not direct his conduct at Ms. Ragsdale. So we reverse and
remand. On remand, the district court must identify the alleged
instances of conduct directed at Ms. Ragsdale and determine
whether any, some, or all of those instances contributed to a course
of conduct prohibited by the stalking statute.
¶25 Under Utah’s civil stalking statute, a person “who believes
that he or she is the victim of stalking” may obtain an injunction
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6 UTAH CODE § 76-5-106.5(2).
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against an alleged stalker.7 To do so, that person must prove by a
preponderance of the evidence that “an offense of stalking has
occurred.”8 The crime of stalking consists of two elements. First, a
person must “intentionally or knowingly engage[] in a course of
conduct directed at a specific person.”9 Second, that person must
“know[] or should know that the course of conduct would cause a
reasonable person” to “fear for the person’s own safety” or “suffer
other emotional distress.”10 A district court may enjoin an alleged
stalker only if both elements are met.11
¶26 According to the district court, Ms. Ragsdale did not prove
that Mr. Fishler “engaged in a course of conduct directed
specifically towards her.” Instead, the district court concluded that
Mr. Fishler’s conduct “was directed towards ECA as a business and
therefore not targeted towards [Ms.] Ragsdale.” In other words,
because Mr. Fishler’s conduct “was directed towards anyone he
believed to be associated with ECA, including [Ms.] Ragsdale,” it
was not specifically directed at Ms. Ragsdale.
¶27 Ms. Ragsdale disputes this conclusion. She argues that,
under the plain meaning of the phrase “directed at,” Mr. Fishler
directed his conduct at her by “repeatedly communicat[ing]
obscenities to [her] individually—often when they were the only
two around.” She also claims the district court “improperly
considered” the fact that Mr. Fishler subjectively intended to direct
his conduct at ECA.
¶28 In response, Mr. Fishler argues that the criminal stalking
statute “unambiguously requires a petitioner to establish that the
respondent . . . intentionally engaged in a course of conduct whose
ultimate target was the petitioner.” According to Mr. Fishler, this is
because “an act may be ‘directed’ at a specific person”—in this case,
ECA—even if that person is “not the recipient [of] or directly
exposed to the act.”
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7 UTAH CODE § 77-3a-101(2) (2017), amended by UTAH CODE
§ 78B-7-701.
8 Id. § 77-3a-101(7) (2017).
9 Id. § 76-5-106.5(2).
10 Id.
11 Ellison v. Stam, 2006 UT App 150, ¶ 20, 136 P.2d 1242.
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¶29 When interpreting a statute, our “primary goal” is to
ascertain the legislature’s intent, the “best evidence” of which is
“the plain language of the statute itself.”12 And when reading a
statute’s plain language, we presume “the legislature used each
term advisedly according to its ordinary and usually accepted
meaning.”13 “Indeed, we will not infer substantive terms into the
text that are not already there . . . and [we have] no power to
rewrite the statute to conform to an intention not expressed.”14
¶30 To obtain a civil stalking injunction, a petitioner must first
prove that the respondent “intentionally . . . engage[d] in a course
of conduct directed at [the petitioner].”15 The statute defines
“course of conduct” as “two or more acts directed at or toward a
[petitioner].”16 The types of acts contemplated include those where
“the [respondent] follows, monitors, observes, photographs,
surveils, threatens, or communicates to or about” a petitioner,
whether “directly, indirectly, or through any third party.”17 They
also include instances where the respondent “approaches or
confronts” a petitioner, appears at the petitioner’s workplace or
residence, or contacts the petitioner’s employer or coworkers.18
¶31 But nothing in the statute defines the term “directed at.”
Nor does it expressly indicate that the petitioner must be the
“ultimate target” of a respondent’s course of conduct. To the
contrary, under the statute’s plain language, a respondent directs
conduct at a petitioner by engaging in behavior contemplated by
the statute two or more times. In other words, if a respondent
follows, threatens, or communicates to a petitioner only once, he or
she has not engaged in a course of conduct. But if a respondent
follows, threatens, or communicates to the petitioner on two or
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12 State v. Badikyan, 2020 UT 3, ¶ 27, 459 P.3d 967 (citations
omitted).
13 Id. (citation omitted) (internal quotation marks omitted).
14 Assoc. Gen. Contractors v. Bd. of Oil, Gas and Mining, 2001 UT
112, ¶ 30, 38 P.3d 291 (alteration in original) (citation omitted)
(internal quotation marks omitted).
15 UTAH CODE § 76-5-106.5(2).
16 Id. § 76-5-106.5(1)(a).
17 Id. § 76-5-106.5(1)(a)(i).
18 Id. § 76-5-106.5(1)(a)(ii).
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more occasions, he or she engages in a course of conduct directed
at the petitioner.
¶32 So, regardless of whether a petitioner is a respondent’s
ultimate target, the fact that the respondent engaged in any act
proscribed by the statute two or more times makes his or her
conduct “directed at” the petitioner. To hold otherwise—and
require that a petitioner be the respondent’s subjectively-intended
ultimate target—would infer a substantive term into the statute not
supported by its plain language.
¶33 Mr. Fishler fails to cite any authority to the contrary. He
argues that two cases from our court of appeals support his
alternate reading of the statute. But neither case supports the
proposition that a petitioner must prove he or she was a
respondent’s “ultimate”—i.e., subjectively intended—target.
¶34 In the first case, State v. Miller, the court of appeals
considered whether a criminal defendant violated a stalking
injunction by sending disparaging emails about his victim to an
attorney representing the victim’s employer.19 Although the
defendant did not subjectively intend for these emails to reach the
victim, the court still held that his actions fell “squarely within” the
criminal stalking statute’s ambit.20 As the court explained, the
statute “does not require that the perpetrator intend for his [or her]
message to reach the victim.”21 Mr. Fishler argues that under Miller,
an act may be directed at a petitioner even if he or she is “not the
recipient or directly exposed to the act.” He claims that
Ms. Ragsdale is like the employer in Miller—someone who was
“exposed” to his conduct, but not the person to whom his conduct
was directed.
¶35 According to Mr. Fishler, the second case, Carson v.
Barnes,22 also supports his argument that a person “exposed” to a
respondent’s conduct is not always the respondent’s ultimate
target. There, a business owner sought an injunction after his
landlord pulled a gun on two of his consultants and followed him
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19 2019 UT App 46, ¶¶ 21, 24, 440 P.3d 868.
20 Id. ¶ 21.
21 Id. ¶ 20.
22 2016 UT App 214, 385 P.3d 744.
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in his car on two separate occasions.23 The landlord claimed that
pulling a gun on the consultants was not an act “directed at” the
business owner, because the owner was not present when it
happened.24 The court of appeals disagreed. It explained that to
constitute stalking, conduct “need not be direct, and it includes
situations in which the actor comes to the ‘person’s workplace’ or
‘contacts the person’s . . . coworkers,’ without requiring the
presence of the victim.”25
¶36 But neither Miller nor Carson stand for what Mr. Fishler
claims. It is true that under both cases, a respondent may direct his
or her conduct at someone indirectly or through a third person. But
this does not mean that a petitioner must prove that he or she was
a respondent’s ultimate target. According to the Miller court, the
fact that the defendant did not intend for his message to reach the
victim was irrelevant.26 Rather, the key inquiry was whether the
defendant engaged in statutorily prohibited conduct. Likewise,
Carson did not turn on whether the business owner or the
consultants were the landlord’s ultimate target. 27 What mattered
was that the landlord engaged in statutorily prohibited conduct on
multiple occasions.
¶37 So, to obtain a stalking injunction, a petitioner need not
prove that he or she was a respondent’s ultimate target. Rather,
under the plain language of the stalking statute, a petitioner must
instead prove that the respondent engaged in statutorily
proscribed conduct on two or more occasions. In other words, the
person toward whom a respondent’s behavior is “directed at” is
not necessarily determined by his or her subjective intent. Instead,
it is determined by an objective assessment of whether the
respondent engaged in conduct prohibited by the stalking statute.
And this is true even where a respondent directs his or her conduct
at a petitioner “indirectly or through [a] third party.”
¶38 In addition, accepting Mr. Fishler’s argument would risk
reading into the criminal stalking statute a defense that its plain
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23 Id. ¶¶ 5–9.
24 Id. ¶¶ 14, 18.
25 Id. ¶ 17 (quoting UTAH CODE § 76-5-106.5(1)(b)) (alteration in
original).
26 See Miller, 2019 UT App 46, ¶¶ 20–21.
27 See Carson, 2016 UT App 214, ¶¶ 17–18.
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language does not support. The statute does not allow a respondent
to escape the consequences of his or her actions by claiming that
the petitioner was merely an intermediary for conduct directed at
a third party. For example, assume the landlord in Carson
brandished his gun at the consultants on two separate occasions. If
the consultants sought an injunction against the landlord, the
landlord could not raise as a defense the fact that the business
owner was his ultimate target. Instead, both the consultants and the
business owner would have grounds to obtain an injunction
against the landlord.
¶39 The same is true here. The fact that ECA was allegedly
Mr. Fishler’s ultimate target does not shield him from the fact that
he flipped off and communicated obscenities directly to
Ms. Ragsdale on two or more occasions. It simply means ECA
could potentially obtain an injunction against him as well.28
¶40 Accordingly, when assessing whether a respondent has
engaged in stalking, district courts should determine if the
respondent objectively engaged in statutorily proscribed conduct,
rather than asking whether the petitioner was the respondent’s
subjectively intended target. This analysis requires a two-tiered
approach. First, district courts should identify each alleged instance
of conduct directed at the petitioner individually and then
determine whether it falls within the range of conduct prohibited
by the stalking statute. Second, if the respondent has allegedly
directed conduct at a petitioner indirectly or through a third party,
district courts should separately determine if the stalking statute
also prohibits that conduct.
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28 But this does not mean that every person flipped off and
sworn at two or more times by the same individual is entitled to a
stalking injunction. In such situations, stalking petitioners must
still prove that such behavior would cause a reasonable person in
their circumstances to fear for his or her safety or experience
“significant mental or psychological suffering.” UTAH CODE
§§ 76-5-106.5(2), -106.5(1)(b). In addition, on the issue of whether
ECA could obtain an injunction, we note that at least one court has
found its state’s civil stalking statute to “protect[] institutions as
well as people.” Bd. of Regents-UW System v. Decker, 850 N.W.2d
112, 121 (Wisc. 2014). That said, neither party has asked us to decide
whether the same is true of Utah’s statute, so we take no position
on this issue.
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¶41 In this case, the district court erred by focusing on
Mr. Fishler’s alleged ultimate target. It found that Mr. Fishler’s
conduct “was directed towards anyone he believed to be associated
with ECA, including [Ms.] Ragsdale.” And it concluded that his
conduct “was directed towards ECA as a business and therefore
not targeted towards [Ms.] Ragsdale.” But rather than determine
whether Mr. Fishler subjectively targeted Ms. Ragsdale, the district
court should have analyzed whether he objectively engaged in
conduct proscribed by the stalking statute. So we reverse the
district court’s conclusion that Mr. Fishler’s conduct was not
“directed at” Ms. Ragsdale and remand for further proceedings.
¶42 On remand, the district court should assess whether
Mr. Fishler’s conduct objectively violated the criminal stalking
statute. It should identify the instances where Mr. Fishler directed
his conduct at Ms. Ragsdale individually and determine whether
the statute prohibits the conduct at issue in any, some, or all of
those instances. Then, it should identify those instances where
Mr. Fishler directed his conduct at others and determine whether
the statute prohibits that conduct as well. For example, in situations
where Mr. Fishler communicated obscenities to ECA’s staff or
clients, the district court should determine whether this behavior
amounts to communicating about Ms. Ragsdale29 or contacting her
coworkers.30
¶43 In sum, the district court erred in concluding that
Mr. Fishler did not direct his conduct at Ms. Ragsdale. This error
resulted from the mistaken understanding that Mr. Fishler could
direct his conduct only at the person he claims was his subjectively
intended target. Accordingly, we reverse this conclusion and
remand for an objective assessment of whether Mr. Fishler’s
conduct violated the stalking statute.31
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29 UTAH CODE § 76-5-106.5(1)(a)(i).
30 Id. § 76-5-106.5(1)(a)(ii)(B).
31 Mr. Fishler also argues that Ms. Ragsdale invited the district
court’s incorrect interpretation of the stalking statute. We reject this
argument. “[T]he invited error doctrine ensures that parties cannot
entice the court into committing an error and then reap the benefit
of objecting to that error on appeal.” State v. Moa, 2012 UT 28, ¶ 25,
282 P.3d 985. According to Mr. Fishler, Ms. Ragsdale invited the
district court’s conclusion that a respondent only directs conduct at
(Continued)
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II. The District Court Erred In Finding That Mr. Fishler’s
Conduct Would Not Cause a Reasonable Person
To Suffer Fear Or Emotional Distress
¶44 Ms. Ragsdale also claims the district court erred in
concluding that Mr. Fishler’s conduct would not cause a reasonable
person to suffer fear or emotional distress. We agree with
Ms. Ragsdale on this issue as well. Under the stalking statute, the
district court should have considered the impact of Mr. Fishler’s
conduct not just on a reasonable person, but a reasonable person in
Ms. Ragsdale’s specific circumstances. It did not do so. So we
reverse and remand for the district court to apply the correct
standard.
¶45 Under the second stalking element, a petitioner must show
that the respondent knew or should have known his or her conduct
“would cause a reasonable person” to “fear for the [petitioner’s]
own safety” or “suffer other emotional distress.”32 This is an
“objective standard” under which “the subjective effect of the
respondent’s conduct on the petitioner is irrelevant.”33 So a
petitioner need only show that the respondent’s conduct would
affect “a reasonable person in the petitioner’s circumstances.”34 In
applying this standard, courts “must consider the entire context
surrounding [a respondent’s] conduct.”35 They must consider the
conduct “cumulatively,” accounting for “the facts and
circumstances of the [individual] case.”36 In this context, “acts that
seem perfectly innocent or even well intentioned may constitute
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his or her subjectively intended target. In his view, she invited this
error by claiming that any profane comments or gestures made by
Mr. Fishler to other ECA employees were ultimately directed at
her. But these arguments merely reflect Ms. Ragsdale’s theory that
Mr. Fishler was engaging in conduct prohibited by the criminal
stalking statute, such as “communicating . . . about” Ms. Ragsdale
“indirectly, or through any third party” and contacting
Ms. Ragsdale’s coworkers. See UTAH CODE § 76-5-106.5(1). So
Ms. Ragsdale did not invite the district court’s error.
32 UTAH CODE § 76-5-106.5(2).
33 Baird v. Baird, 2014 UT 08, ¶ 25, 322 P.3d 728.
34 Id. (emphasis added).
35 Id. ¶ 26.
36 Ellison v. Stam, 2006 UT App 150, ¶ 38, 136 P.3d 1242.
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stalking.”37 “For example, conduct such as sending the victim a
dozen roses may seem benign and loving to the casual observer,
but could mean a very different thing when understood in the
context of the victim’s experience.”38
¶46 In this case, the district court failed to assess Mr. Fishler’s
conduct from the standpoint of a reasonable person in
Ms. Ragsdale’s circumstances. Instead of considering the
individual facts and circumstances of Ms. Ragsdale’s case, the
district court simply concluded that, “[i]n this day and age,
exposure to pejorative gestures and profanity should not cause the
type of . . . emotional distress envisioned by the [stalking] statute.”
¶47 This blanket conclusion does not reflect an assessment of
the entire context surrounding Mr. Fishler’s conduct. It does not
account for the cumulative impact of his behavior from 2013 to
2017. Nor does it suggest that the court considered the fact that
Mr. Fishler’s conduct occurred where Ms. Ragsdale both lived and
worked, nor the fact that he became more assertive over time.
Indeed, given that something as innocuous as sending flowers
could, in some cases, cause a reasonable person to suffer fear or
emotional distress, we find it hard to conclude that profane
gestures and comments categorically could not do so as well.
¶48 In defending the district court’s conclusion, Mr. Fishler
claims the district court did not err because its ruling expressly
refers to the reasonable-person standard. We disagree. In its ruling,
the district court held that Mr. Fishler’s conduct would not cause
“a reasonable person under the same circumstances as
[Ms.] Ragsdale” to suffer fear or emotional distress. Elaborating on
this conclusion, the district court said it was “not sure” that “a
reasonable person should suffer significant [emotional distress]
from expletives.” This alone does not satisfy its obligation to assess
Mr. Fishler’s conduct from the standpoint of a reasonable person in
Ms. Ragsdale’s circumstances. To properly apply the stalking
statute’s objective standard, the district court should have analyzed
his conduct in light of the specific facts and circumstances of
Ms. Ragsdale’s individual case.
¶49 Accordingly, the district court erred in concluding that
Mr. Fishler’s conduct would not cause a reasonable person to suffer
__________________________________________________________
37 Baird, 2014 UT 08, ¶ 26.
38 Id. (citation omitted) (internal quotation marks omitted).
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fear or emotional distress. It misapplied the stalking statute by
failing to assess the impact of his conduct on a reasonable person
in Ms. Ragsdale’s circumstances. So we reverse. And because this
issue is “a question of fact,” we remand so the district court can
apply the correct standard.39
III. The District Court Applied the Incorrect Legal Standard to
Mr. Fishler’s First Amendment Challenge
¶50 Next, Ms. Ragsdale claims the district court erred in
denying her injunction on the ground that the First Amendment
protects Mr. Fishler’s conduct. According to the district court, the
First Amendment protects Mr. Fishler’s “signs and conduct”
because they constitute “political speech.” It is true that the First
Amendment entitles Mr. Fishler to some protection in this regard.
But that protection does not necessarily shield him from a stalking
injunction. When appropriate, courts may enjoin conduct that
meets the definition of stalking even if it has a political objective.
So we reverse on this issue.
¶51 Although “[p]olitical speech enjoys the broadest
protection under the First Amendment,”40 in appropriate
circumstances, courts may still enjoin speech that meets the
definition of stalking even if it has a political objective. In Towner v.
Ridgway, for example, we analyzed a civil stalking injunction
against a candidate for the United States Senate who repeatedly
confronted a fellow party activist about their political
disagreements.41 We held that preventing the candidate from
“contacting [the petitioner], directly or indirectly, through any
form of communication . . . [did] not violate the First
Amendment.”42
__________________________________________________________
39 Id. ¶ 29. On remand, we suggest the district court consider the
factors we listed in Baird v. Baird, 2014 UT 08, ¶ 27, for assessing the
effect of a respondent’s conduct on a reasonable person in the
petitioner’s circumstances. These factors include, but are not
limited to, “the cumulative effect of the [respondent’s] repetitive
conduct,” the petitioner’s “background,” “knowledge of and
relationship with the [respondent],” and “any history of abuse
between the parties.” Id.
40 Jacob v. Bezzant, 2009 UT 37, ¶ 29, 212 P.3d 535.
41 2008 UT 23, ¶¶ 1–2, 7, 182 P.3d 347.
42 Id. ¶ 20.
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¶52 Courts may issue civil stalking injunctions under specific,
statutorily defined parameters.43 These parameters include
enjoining respondents “from committing stalking”44 and
restraining respondents “from coming near [a petitioner’s]
residence [or] place of employment.”45 They also include enjoining
respondents “from contacting, directly or indirectly,” the
petitioner, the petitioner’s “employers, employees, fellow workers,
[and] others with whom communication would be likely to cause
[the petitioner] annoyance or alarm.”46 In addition, courts may
grant “any other relief necessary or convenient for the protection of
the petitioner and other specifically designated persons under the
circumstances.”47
¶53 In Towner, we concluded that the proposed injunction did
not violate the First Amendment, because it fell within these
parameters. That injunction barred the respondent from “post[ing]
communications on electronic media” that were “designed to
harass or annoy” the petitioner and his family.48 But it let the
respondent continue posting “commentary on the substance of [the
petitioner’s] political positions.”49 The respondent argued that this
restraint fell outside the statute’s parameters and was “a
content-based restriction on his speech in violation of the First
Amendment.”50 We disagreed. Because the injunction precluded
“communications from [the respondent] to [the petitioner], not
communications by [the respondent] about [the petitioner] to
others,” we found it “well within the scope” of the stalking statute
and consistent with the First Amendment.51 So, under Towner, even
__________________________________________________________
43See UTAH CODE § 77-3a-101(5) (2017), amended by UTAH CODE
§ 78B-7-701.
44 Id. § 77-3a-101(5)(a)(i) (2017).
45 Id. § 77-3a-101(5)(a)(ii) (2017).
46 Id. § 77-3a-101(5)(a)(iii) (2017).
47 Id. § 77-3a-101(5)(a)(iv) (2017).
48 Towner, 2008 UT 23, ¶ 10.
49 Id.
50 Id. ¶ 19.
51 Id. ¶ 20.
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where speech has a political objective, courts may still enjoin it
under the confines set by the civil stalking statute.
¶54 Here, when addressing Mr. Fishler’s First Amendment
challenge, the district court did not examine whether
Ms. Ragsdale’s proposed injunction fell within the stalking
statute’s parameters. Instead, it denied Ms. Ragsdale’s injunction
on the ground that Mr. Fishler’s conduct constituted “political
speech.” In so doing, it explained that “[p]eople have a right to
exercise their political speech” and “they can direct [that] right at
the individuals” with whom they disagree. While we agree with
the sentiment behind this statement, we find it an inadequate basis
for denying Ms. Ragsdale’s injunction. Like the candidate in
Towner, Mr. Fishler cannot escape the ambit of the stalking statute
just because his conduct allegedly had a political objective. And by
concluding otherwise, the district court erred.
¶55 Accordingly, we reverse on this issue. But because the
district court did not actually issue an injunction, we hesitate to
opine any further on the precise standard for evaluating a civil
stalking injunction under the First Amendment. We note, however,
that the acknowledgement of a respondent’s right to free speech is
just the starting point in assessing whether part of that right must
yield to the governmental interests underlying the stalking statute.
This assessment also requires district courts to, at a minimum,
determine whether each provision of a proposed injunction is
content-based or content-neutral, and evaluate each provision
under the corresponding level of scrutiny.52
¶56 In sum, by refusing to enjoin Mr. Fishler’s conduct on the
ground that it was political speech, the district court erred.
Although the First Amendment protects Mr. Fishler, it does not
automatically exempt him from being enjoined from conduct that
meets the definition of stalking.
IV. We Vacate the District Court’s Denial of Mr. Fishler’s
Request For Attorney Fees and Remand For A New
Determination Under Our Clarified Standard
¶57 Finally, Mr. Fishler cross-appeals the denial of his motion
for attorney fees. He argues that the district court erred in denying
his fee request because it applied the “incorrect” legal standard.
__________________________________________________________
52 See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 163–68 (2015)
(describing the framework for evaluating speech restrictions under
the First Amendment).
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Opinion of the Court
Given that our ruling on the issues raised by Ms. Ragsdale may
have affected the basis for the district court’s decision, we vacate
that decision and remand for a new attorney fees determination.53
In so doing, we clarify the standard for awarding attorney fees
under the civil stalking statute.
¶58 At issue is the civil stalking statute’s attorney-fees
provision. This provision states, in its entirety, that: “[a]fter a
hearing with notice to the affected party, the court may enter an
order requiring any party to pay the costs of the action, including
reasonable attorney fees.”54 As both the parties and district court
have pointed out, this language gives “almost no direction” on
when to award fees. So we take this opportunity to clarify when a
district court should award fees under this provision.
¶59 Significantly, the statute says that a court “may enter” an
attorney-fee award.55 We have previously explained that the
legislature’s use of the word “may” in a fee provision “clearly
signal[s] an intention to yield discretion to courts over whether to
award attorney fees.”56 This is especially true when the term “may”
is “coupled with the absence of any guiding or limiting standard,”
as it is here.57 When addressing similarly-worded statutes, we have
“attempted to offer cautious direction regarding the exercise” of
this “broad, discretionary authority over attorney fee awards.”58
We now do the same here.
¶60 In Shurtleff v. United Effort Plan Trust, we confronted a
similar statute that vested courts “with discretion in assessing
__________________________________________________________
53 See Brady v. Park, 2019 UT 16, ¶ 112, 445 P.3d 395.
54 UTAH CODE § 77-3a-101(16) (2017), amended by UTAH CODE
§ 78B-7-701.
55 Id.
56Paul deGroot Bldg. Servs., L.L.C. v. Gallacher, 2005 UT 20, ¶ 22,
112 P.3d 490.
57 Id. ¶ 24.
58 Id. ¶¶ 20–24; see also Buzas Baseball, Inc. v. Salt Lake Trappers,
Inc., 925 P.2d 941, 952–953 (Utah 1996) (providing guidance on how
district courts should exercise the “discretion bestowed by the
‘may’ language of the Utah Arbitration Act[‘s]” attorney-fees
provision).
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Opinion of the Court
whether to award” attorney fees.59 This statute, which was part of
Utah’s Uniform Probate Code, provided that courts “may, as justice
and equity may require, award . . . reasonable attorney’s fees[] to
any party.”60 In instructing district courts on how to use the
discretion granted to them by this language, we articulated several
“nonexclusive” factors they should look to when making fee
awards.61 These factors include:
(a) [the] reasonableness of the parties’ claims,
contentions, or defenses; (b) unnecessarily
prolonging litigation; (c) relative ability to bear the
financial burden; (d) result obtained by the
litigation and prevailing party concepts; and
(e) whether a party has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons in
the bringing or conduct of the litigation.62
¶61 Given the similarities between the civil stalking statute
and the Shurtleff statute, we find it appropriate to adopt these
factors here as well. Through their use of the word “may,” both
statutes provide courts with marked discretion in awarding fees.
But neither statute provides “specific guidelines or criteria” for
district courts to use in making these awards.63 By establishing
uniform guidelines for fee decisions based on “general criteria
drawn from other [attorney-fees] cases,” the Shurtleff factors
mitigate this problem.64 So we hold that district courts should
apply these factors when evaluating fee requests under the civil
stalking statute, as well as any other statute that provides the
discretion to award fees but no guidance on how to do so.65
__________________________________________________________
59 2012 UT 47, ¶ 22, 289 P.3d 408.
60 UTAH CODE § 75-7-1004(1).
61 Shurtleff, 2012 UT 47, ¶ 23 (citation omitted).
62Id. (quoting Atwood v. Atwood, 25 P.3d 936, 947 (Okla. Civ.
App. 2001)).
63 Id. (citation omitted).
64 Id. (citation omitted).
65 We have sometimes “observed that the policies underlying”
a statute “serve as useful guideposts” for exercising the discretion
granted by these types of attorney-fees provisions. Paul deGroot
(Continued)
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Opinion of the Court
¶62 When applying the Shurtleff factors, it may be appropriate
for a district court to award fees to a petitioner when it would
indemnify them from the “costly, complicated, and discretionary
process” of obtaining a civil stalking injunction.66 But awarding
fees to a petitioner may not be appropriate if it imposes financial
hardship on a respondent or would be otherwise inequitable. In
addition, although it may be appropriate to indemnify a
respondent forced to defend a frivolous petition, courts should
pause before awarding a respondent fees when a petition has some
merit. This may chill future petitions—an outcome that strikes us
as contrary to the statute’s purpose.
¶63 In this case, we vacate the district court’s denial of
Mr. Fishler’s attorney-fees motion and instruct it to make a new
determination if the parties’ seek attorney fees following the
district court’s final judgment on remand. We do so “[b]ecause our
rulings on the other issues in this case may have upended the basis
for the court’s attorney fees decision.”67 The district court did not
apply the Shurtleff factors when it denied Mr. Fishler’s fee request.
Instead, because the statute gave it “almost no direction” on when
to award fees, the district court concluded that it must make “some
sort of equitable determination.” The district court also noted that
it was “at somewhat of a disadvantage” because, having not
__________________________________________________________
Bldg. Servs., 2005 UT 20, ¶ 22; see also Bilanzich v. Lonetti, 2007 UT
26, ¶¶ 17–20, 160 P.3d 1041; Buzas Baseball, 925 P.2d at 953. This may
be true for statutes like the reciprocal attorney-fee statute, UTAH
CODE § 78B-5-826, or the Utah Arbitration Act, UTAH CODE
§ 78B-11-126, whose policies are well-established in our case law.
See Bilanzich, 2007 UT 26, ¶ 18 (explaining that the policy behind
the reciprocal attorney-fee statute is to “creat[e] a level playing field
for parties to a contractual dispute” (alteration in original) (citation
omitted) (internal quotation marks omitted)); Buzas Baseball, 925
P.2d at 953 (noting that the policies underlying the Utah Arbitration
Act “favor the enforceability of arbitration awards and discourage
relitigation of valid awards”). But statutes often advance
multiple—sometimes conflicting—policies. So we believe the
Shurtleff factors offer a more transparent and consistent approach
to awarding fees under statutes that otherwise provide little
guidance.
66 State v. Kropf, 2015 UT App 223, ¶ 18, 360 P.3d 1.
67 Brady, 2019 UT 16, ¶ 112.
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Opinion of the Court
presided over the evidentiary hearing, it was making its decision
from a “cold record.” Nevertheless, after weighing the parties
arguments, the district court held that the equities weighed in favor
of denying Mr. Fishler’s motion because the case had been
“fact-sensitive,” “complicated,” and did not lack “all merit.”
¶64 Our ruling may disturb this decision for several reasons.
First, we are remanding for new determinations on every issue
raised by Ms. Ragsdale. So although this case will undoubtedly
continue to be fact-sensitive and complicated, the outcome on
remand may change. This may, in turn, affect whether one of the
parties should receive fees following the district court’s new
ruling—particularly in light of the clarified attorney-fees standard
we announce today. In addition, as we discuss below, the district
court will need to decide whether to conduct a new evidentiary
hearing on remand. If it does, it will no longer be at the
“disadvantage” of having to rule on a renewed attorney-fees
motion from a cold record. It can instead make a fresh
determination based on the observations it gleans from the new
evidentiary hearing.
¶65 For these reasons, we vacate the district court’s denial of
Mr. Fishler’s fee request and note that either party may make a new
fee request following the district court’s final judgment on remand.
The district court should apply the standard announced here when
determining whether to award fees to either party.
V. On Remand, We Instruct the District Court to Determine
Whether This Case Requires a New Evidentiary Hearing
¶66 Our decision to remand each issue raised by the parties
prompts the question of whether this case requires a new
evidentiary hearing. The judge who presided over the original
hearing and denied Ms. Ragsdale’s injunction has since retired. The
current judge, who ruled on Mr. Fishler’s fee request, did so based
on the record. On remand, this judge will need to rule anew on
whether Mr. Fishler directed his conduct at Ms. Ragsdale, whether
his conduct would cause a reasonable person in Ms. Ragsdale’s
circumstances fear or emotional distress, and whether
Ms. Ragsdale’s injunction burdens more speech than necessary.
¶67 As the district court recognized in denying Mr. Fishler’s
fee request, these are “complicated” and “fact-intensive” issues.
They may be difficult to address solely from the record.
Accordingly, on remand, the district court should decide whether
to conduct a new evidentiary hearing. And in making this decision,
it should allow the parties to weigh in and brief this issue.
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Opinion of the Court
Conclusion
¶68 We reverse on each issue raised by Ms. Ragsdale. The
district court erred in concluding that Mr. Fishler’s conduct was
directed only at ECA, which he claims was his subjectively
intended target. It erred by failing to determine whether
Mr. Fishler’s conduct would cause a reasonable person in
Ms. Ragsdale’s circumstances to suffer fear or emotional distress.
And it erred by denying Ms. Ragsdale’s injunction on the ground
that the First Amendment protects Mr. Fishler’s conduct. So we
reverse on each of these issues and remand for proceedings
consistent with this opinion. In so doing, we also vacate the district
court’s ruling on Mr. Fishler’s fee request and remand for a new
attorney-fees determination.
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