This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 08322 P.3d 728
IN THE
SUPREME COURT OF THE STATE OF UTAH
ROBERT A. BAIRD,
Petitioner and Appellee,
v.
GLORIA BAIRD,
Respondent and Appellant.
No. 20120488
Filed March 7, 2014
Third District, Tooele Dep’t
The Honorable Robert W. Adkins
No. 120300417
Attorneys:
Brandon Simmons, Salt Lake City, for appellee
Troy L. Booher, Clemens A. Landau, Salt Lake City, for appellant
JUSTICE PARRISH authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE LEE joined.
JUSTICE PARRISH, opinion of the Court:
INTRODUCTION
¶1 Robert Baird sought and obtained a stalking injunction
against his mother, Gloria Baird. The district court entered the threeyear injunction after determining that Gloria’s nearly daily phone
calls to Robert were causing him emotional distress. On appeal, we
are asked to determine whether the district court erred in entering
the injunction based solely on its finding that Gloria’s conduct was
causing Robert emotional distress, without considering whether her
conduct would have caused emotional distress to a reasonable
person in Robert’s circumstances. We are also asked to interpret the
definition of emotional distress contained in the 2008 amendment to
Utah Code section 76-5-106.5(2) (Stalking Statute) to determine
whether it departs from or encompasses the definition of emotional
distress previously recognized in Salt Lake City v. Lopez, 935 P.2d
1259 (Utah Ct. App. 1997).
BAIRD v. BAIRD
Opinion of the Court
¶ 2 We hold that the district court erred in applying a
subjective rather than an objective standard to the Stalking Statute’s
emotional distress element. We also clarify that the Stalking
Statute’s definition of emotional distress does not incorporate the
Lopez definition. We therefore vacate the stalking injunction and
remand this matter to the district court for further proceedings
consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND 1
¶ 3 Robert Baird is the adult son of Gloria Baird. Robert has a
seizure disorder and suffers from mental disabilities. Robert’s
seizure disorder is well managed with medications, but he still
struggles with personal hygiene and money management, needs
reminders to take his medications, and suffers from anxiety. While
Robert lived in Gloria’s home, he and Gloria were often in conflict.
As a result of the difficulties he was encountering at home, Robert
desired to gain independence. In October 2011, Robert moved out
of Gloria’s home and began living on his own. Robert is enrolled in
a program at Valley Mental Health to assist with his transition to
independent living.
¶ 4 After Robert moved out of Gloria’s home, Gloria contacted
him almost daily. She occasionally called late at night and called
repeatedly if he did not answer. During at least some of these phone
calls, she yelled at him and reportedly threatened to take away his
independence by seeking a guardianship and forcing him to return
to live with her or in a group home. Gloria also took Robert’s social
security income for two or three months and placed it in a separate
bank account.
¶ 5 Robert sought law enforcement assistance but was told that
he did not qualify for a protective order. On February 29, 2012,
Robert filed a request for a temporary civil stalking injunction
against Gloria. In his request, Robert stated that since he moved out
of Gloria’s home, Gloria “calls me continuously, screaming at me
and threatening me to sign papers in order to go into a group
home.” Robert included with his request several letters from Valley
Mental Health employees. Among the letter writers was Jodi
Rushton, a social worker with Valley Mental Health. Rushton wrote
that Robert had “repeatedly complained to [her] that his mother is
constantly calling him, coming over to his apartment uninvited, and
1
These facts are based upon evidence presented at the April 20,
2012 evidentiary hearing.
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Opinion of the Court
demanding that he sign papers to place him in a group home . . .
[and] threaten[ing] to take him to court if he does not sign the
papers.” Rushton further stated that Robert “wants his mother to
‘stop harassing him’ so that he can continue to concentrate on his
recovery, and the positive improvement he continues to make.” The
district court granted the injunction that same day. The injunction
was served on Gloria on March 2, 2012. Gloria immediately
requested a hearing to challenge the injunction pursuant to section
77-3a-101(6) of the Utah Code.2
¶ 6 On April 20, 2012, the district court held an evidentiary
hearing to determine whether Robert could satisfy his statutory
burden of proving “by a preponderance of the evidence that stalking
of the petitioner by the respondent has occurred.” UTAH CODE § 77-
3a-101(7). Both parties appeared at the hearing pro se, with the
district court judge asking many of the questions.
¶ 7 Robert called three witnesses. The first was Robert’s case
manager at Valley Mental Health, Christine Hopkins. She testified
that Gloria called Robert “frequently in the evenings,” and if he did
not answer, Gloria would keep calling. After Gloria would talk with
him, Robert would call Hopkins and would be “quite upset.”
Hopkins also testified that Robert told her that he “finds it very
distressing when [Gloria] does contact him.” She stated that Robert
had “been trying very hard to get out on his own and become more
independent,” but that Gloria’s frequent contact was making his
transition difficult because he felt that Gloria did not have
“confidence that he [could] be independent.” She further testified
that, according to Robert, Gloria had been “trying to get him into a
group home.”
¶ 8 Next, Robert called his representative payee at Valley
Mental Health, Michael Neil. Neil testified that Valley Mental
Health encourages Robert “in any goals that he would like to make
for himself,” that Valley Mental Health would “continue to support”
Robert as he works on “becoming more independent,” and “[i]f
there is any interference” then as an adult, Robert “has rights to
pursue [his own] direction.” Neil also testified that Robert had
2
The stalking injunction provision allows a respondent
to“request, in writing, an evidentiary hearing on the civil stalking
injunction.” UTAH CODE § 77-3a-101(6). “At the [evidentiary]
hearing, the court may modify, revoke, or continue the injunction.”
Id. § 77-3a-101(7).
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Opinion of the Court
informed him that he would not like to have contact with his mother
because “he feels that she is interfering with his daily life.” Neil
stated that contact with Gloria made Robert feel “stressed” and
“invaded.” He further testified that Robert “seems to function well,”
but “when his mother is involved in his life he feels micromanaged
and feels like his freedoms are taken away, which causes him
stress.” Neil also described Robert as having “a lot of anxiety” in
general, related, not only to his mother, but also to “his financial
trouble” and his transition out of the Passages program at Valley
Mental Health.
¶ 9 Finally, Lynn Smith, an employee of the Tooele Police
Department, testified that when Robert sought the protective order
against Gloria, he was “upset,” and that it was “obvious that his
relationship with his mother was causing him a great deal of anxiety
and stress, and he indicated at the time that he was fearful.”
¶ 10 Robert also testified himself and stated that he sought a
civil stalking injunction because, although he loves his mother, he
would “just like to have [his] own space.” He testified that Gloria
contacted him “almost every day.” When asked whether he had
ever told Gloria not to contact him, Robert testified that he was “too
scared to say it to her” because of “some bad experiences” he
previously had with Gloria. Robert was also asked whether his
contact with Gloria caused him “stress or any anxiety,” to which he
responded, “Probably. Probably a little bit—a little bit of stress.” On
cross examination, Robert testified that when he was living with
Gloria, they “would get into fights” and “would argue.”
¶ 11 In response, Gloria called two witnesses and also testified
herself. She first called her friend Iris Call. Call testified that Gloria
would take Robert to his medical appointments, make sure his
seizure disorder was well managed, and drive him to work. She also
testified that in her opinion Gloria always “wish[es] the best for [her]
kids.”
¶ 12 Gloria next called Andrew Baird, another of her sons.
Andrew testified that Gloria would “get upset” when he and his
siblings would not do their chores or would not do what they are
supposed to do, “but, other than that, [Gloria] seem[ed] to be very
good.” Andrew also testified the family took responsibility for
Robert’s transportation and had helped him find a job, but in terms
of Robert’s relationship with his family, he “prefer[ed] just about
anybody over family.”
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Opinion of the Court
¶ 13 Gloria also testified and described herself as Robert’s
“main caregiver.” She stated that, in her opinion, “Robert needs a
lot of care,” which is why she had suggested he “go to a group
home.” She admitted that she “had some fights with Robert,
because of his tantrums,” but testified that her “main concern” was
for Robert’s health and safety.
¶ 14 At the end of the hearing, the district court concluded that
Gloria had stalked Robert, stating, “[Robert] does not want contact,
and at this point in his life [Gloria’s] contact is causing him stress
and emotional upset. I am satisfied that the elements for the stalking
injunction have been met, that it is not in his best interests at this
point to have that contact.” The court further stated, “[Robert] is
entitled to have his own life and make his decisions, and he has
chosen to live alone, and [Gloria’s] contact with him is causing him
emotional upset, emotional disturbance and distress that meets the
requirements for a stalking injunction.” Based on these findings, the
district court entered a civil stalking injunction against Gloria that
does not expire until March 2, 2015.
¶ 15 Gloria appeals. We have jurisdiction pursuant to section
78A-3-102(3)(k) of the Utah Code. Both parties are now represented
by counsel.
STANDARD OF REVIEW
¶ 16 “The proper interpretation and application of a statute is
a question of law which we review for correctness, affording no
deference to the district court’s legal conclusion.” Gutierrez v.
Medley, 972 P.2d 913, 914–15 (Utah 1998). When reviewing factual
determinations, this court will only rule as a matter of law “if the
evidence is so clear and persuasive that all reasonable minds would
find one way.” Hall v. Anderson,
562 P.2d 1250, 1251 (Utah 1977).
ANALYSIS
¶ 17 Gloria argues that the district court misinterpreted Utah’s
Stalking Statute because (1) it granted the injunction based on its
finding that Gloria’s conduct was causing Robert emotional distress
without finding that her conduct would have caused emotional
distress to a reasonable person in Robert’s circumstances and (2) it
failed to properly interpret the statutory definition of emotional
distress.
¶ 18 Robert argues that Gloria did not properly preserve her
objection to the district court’s interpretation of the Stalking Statute.
He further argues that the district court correctly ordered the
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injunction because it did find that Gloria’s conduct would cause a
reasonable person under the circumstances to suffer emotional
distress. Finally, Robert argues that Gloria’s challenges to the
district court’s factual findings should be rejected because Gloria
failed to marshal the evidence.
¶ 19 Before considering the merits of Gloria’s claim, we address
Robert’s preservation argument. Robert asserts that Gloria failed to
preserve the issue of whether the district court erred in finding that
Gloria had committed the offense of stalking. Gloria maintains she
preserved this issue in her cross-examinations of Robert’s witnesses,
her testimony, and the testimony of her witnesses. She further
argues that the issue was preserved when the district court
interpreted the Stalking Statute and ruled that “the elements for the
stalking injunction [had] been met.”
¶ 20 “We generally will not consider an issue unless it has been
preserved” in the court below. Patterson v. Patterson, 2011 UT 68,
¶ 12,
266 P.3d 828. Preservation turns on whether the district court
“has an opportunity to rule on [an] issue.” Pratt v. Nelson,
2007 UT
41, ¶ 15,
164 P.3d 366 (internal quotation marks omitted). Here, as
part of its decision to enter a stalking injunction against Gloria, the
district court was required to consider whether Robert had shown
by a preponderance of the evidence that Gloria had stalked him.
UTAH CODE § 77-3a-101(7). Thus, the district court necessarily had
to consider whether Robert had established each element of a
stalking offense. Because the district court considered and did in fact
rule that Robert had established each of the statutory requirements
for a stalking injunction, we conclude that the issue was adequately
preserved.
¶ 21 We now turn to the merits. We hold that the district court
erred by focusing solely on whether Gloria’s conduct subjectively
caused Robert emotional distress. The proper inquiry under the
Stalking Statue is an objective inquiry into whether Gloria’s conduct
would have caused a reasonable person in Robert’s circumstances
emotional distress. We therefore remand the case to the district
court for an objective determination of whether Gloria’s conduct met
the statutory requirement. Because we remand to the district court
for this reason, we need not reach the claim that the district court
misinterpreted the statutory definition of emotional distress by
failing to consider the elements recognized in Salt Lake City v. Lopez,
935 P.2d 1259 (Utah Ct. App. 1997). However, because the district
court will need to determine the elements of emotional distress on
remand, we address that issue for the purpose of giving guidance to
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Opinion of the Court
the district court. In so doing, we hold that the Stalking Statute’s
definition of emotional distress does not incorporate the standard set
forth in Lopez.3
I. THE STALKING STATUTE REQUIRES A SOLELY OBJECTIVE
INQUIRY INTO WHETHER GLORIA’S CONDUCT WOULD
CAUSE A REASONABLE PERSON IN ROBERT’S
CIRCUMSTANCES EMOTIONAL DISTRESS
¶ 22 We first consider Gloria’s argument that the district court
erred in applying a subjective, rather than an objective, standard to
the Stalking Statute’s emotional distress requirement. Utah’s civil
stalking statute allows for the issuance of a temporary, ex parte
injunction upon a petitioner’s showing of a “reason to believe that
an offense of stalking has occurred.” UTAH CODE § 77-3a-101(5)(a).
It also provides for entry of a permanent injunction after a hearing
if the petitioner establishes “by a preponderance of the evidence that
stalking of the petitioner by the respondent has occurred.” Id. § 77-
3a-101(7). Thus, the essential statutory element is proof of
“stalking.”
¶ 23 Utah’s Stalking Statute defines the crime of stalking as
follows:
A person is guilty of stalking who intentionally or
knowingly engages in a course of conduct directed at
a specific person and knows or should know that the
course of conduct would cause a reasonable person: (a)
to fear for the person’s own safety or the safety of a
third person; or (b) to suffer other emotional distress.
Id. § 76-5-106.5(2) (emphasis added). The Stalking Statute defines
“reasonable person” as “a reasonable person in the victim’s
circumstances.” Id. § 76-5-106.5(1)(e).
¶ 24 The Model Stalking Code, upon which Utah’s Stalking
Statute is based,4 explains that the offense of stalking does not focus
3
Because we conclude that the district court incorrectly
interpreted the Stalking Statute and remand for proceedings
consistent with the standards clarified in this opinion, we need not
address Robert’s marshaling arguments.
4
House Floor Debate, H.B. 493, 57th Utah Leg., 2008 Gen. Sess.
(Feb. 29, 2008) (statement of Rep. Lorie D. Fowlke) (noting that the
proposed legislation conformed to model legislation designed to
(continued...)
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on the “particular emotional distress [a particular victim] suffers,”
but rather on how the defendant’s conduct “would affect a
‘reasonable’ person.” NAT’L CTR. FOR VICTIMS OF CRIME, THE MODEL
STALKING CODE REVISITED: RESPONDING TO THE NEW REALITIES OF
STALKING 37 (2007) (internal quotation marks omitted), available at
http://www.victimsofcrime.org/docs/src/modelstalking-code.pdf?sfvrsn=0. Thus, to qualify for an injunction under
the Model Stalking Code, a petitioner must meet an objective—not
subjective—standard. Utah’s Stalking Statute conforms to the Model
Stalking Code’s “solely objective” standard. Id. In this regard, the
Model Code and the Utah Stalking Statute differ from statutes of
other states that explicitly require both an objective and a subjective
analysis.5 The comments to the Model Code explain that the shift to
a solely objective standard was motivated by the fact that a
subjective standard “places an unnecessary burden on . . . victims,
. . . forcing the victim to have to justify his or her fear [or distress] in
the presence of the perpetrator.” Id. at 36. Furthermore, a subjective
standard “inappropriately punishes only those stalkers who have
‘successfully’ caused the victim fear [or distress].” Id.
¶ 25 Under the Stalking Statute’s solely objective standard, the
subjective effect of the respondent’s conduct on the petitioner is
irrelevant. Rather, the petitioner must establish only that the
respondent’s conduct would cause emotional distress to a
reasonable person in the petitioner’s circumstances.
¶ 26 The parties in this case disagree as to what the district
court may consider in applying this objective standard. By including
“in the victim’s circumstances” as part of the “reasonable person”
definition, the Stalking Statute provides for an individualized
4
(...continued)
update stalking statutes to reflect the current stalking practices
including cyber stalking); Senate Floor Debate, H.B. 493, 57th Utah
Leg., 2008 Gen. Sess. (Mar. 5, 2008) (statement of Sen. Curtis B.
Bramble) (same).
5
See, e.g., NEV. REV. STAT. § 200.575(1) (“A person who . . .
engages in a course of conduct that would cause a reasonable person to
feel terrorized, frightened, intimidated, harassed or fearful for the
immediate safety of a family or household member, and that actually
causes the victim to feel terrorized, frightened, intimidated, harassed
or fearful for the immediate safety of a family or household member,
commits the crime of stalking.” (emphasis added)).
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objective standard. See Cooper v. Cooper, 144 P.3d 451, 456 (Alaska
2006) (explaining that the “objective standard [applied to stalking
cases] is individualized”). Under this standard, a court must
consider the entire context surrounding defendant’s conduct. Ellison
v. Stam,
2006 UT App 150, ¶ 27,
136 P.3d 1242. When considering
the context surrounding the respondent’s conduct, acts that seem
perfectly innocent or even well intentioned may constitute stalking.
NAT’L CTR. FOR VICTIMS OF CRIME, supra at 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.”
Id.
¶ 27 Courts applying this individualized objective standard
have considered such factors as the victim’s background,6 the
victim’s knowledge of and relationship with the defendant,7 any
history of abuse between the parties,8 the location of the alleged
stalking and its proximity to the victim’s children, if any,9 and the
cumulative effect of defendant’s repetitive conduct.10 Furthermore,
under an individualized objective standard, a court may consider
whether the defendant “ha[d] knowledge of a particular
vulnerability of the victim and then act[ed] with full knowledge of
the victim’s vulnerability.” State v. Phelps, 967 P.2d 304, 311 (Kan.
1998). When assessing these and other relevant factors, however,
courts must avoid succumbing to a purely subjective analysis, which
is inconsistent with the objective standard’s intent to “protect[]
against criminalizing conduct that only an unreasonably sensitive or
paranoid victim would find harassing” so as to reduce the risk of “a
truly innocent defendant falling within the ambit of [a stalking
statute].” State v. Orsello,
554 N.W.2d 70, 79 (Minn. 1996) (Stringer,
J., dissenting).
6
H.E.S. v. J.C.S., 815 A.2d 405, 417 (N.J. 2003).
7
State v. Hinchliffe, 987 A.2d 988, 997 (Vt. 2009).
8
Cesare v. Cesare, 713 A.2d 390, 394 (N.J. 1998) (“[A] court should
regard any past history of abuse by a defendant as part of a
plaintiff’s individual circumstances and, in turn, factor that history
into its reasonable person determination.”).
9
Roper v. Shovan, 2013 UT App 124, ¶ 5,
302 P.3d 483.
10
Coombs v. Dietrich, 2011 UT App 136, ¶ 13,
253 P.3d 1121.
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¶ 28 In considering Robert’s request for an injunction, the
district court repeatedly focused on the fact that Gloria’s conduct
was subjectively “causing [Robert] emotional upset and distress,”
which the court found sufficient to “meet[] the requirements for a
stalking injunction.” In so doing, the district court applied the
incorrect legal standard. The court failed to determine, based on
inferences drawn from the evidence, whether Gloria’s conduct
would cause a reasonable person in Robert’s circumstances to suffer
emotional distress. We therefore remand this case to the district
court for consideration under the appropriate objective standard.
¶ 29 We note that remand is appropriate in this case because
“whether the defendant engaged in a course of conduct . . . that
would cause a reasonable person” emotional distress “is a question
of fact.” State v. Gubitosi, 886 A.2d 1029, 1037–38 (N.H. 2005). When
confronted with questions of fact, this court will only rule as a
matter of law “if the evidence is so clear and persuasive that all
reasonable minds would find one way.” Hall v. Anderson,
562 P.2d
1250, 1251 (Utah 1977); see also Glew v. Ohio Sav. Bank,
2007 UT 56,
¶ 18,
181 P.3d 791 (“[When] the trial court's findings include
inferences drawn from the evidence, we will not take issue with
those inferences unless the logic upon which their extrapolation
from the evidence is based is so flawed as to render the inference
clearly erroneous.”).
¶ 30 From our review of the record, we conclude that the
evidence is such that reasonable minds could disagree on the issue
of whether Gloria’s conduct would cause emotional distress to a
reasonable person in Robert’s circumstances. And because a
determination of reasonableness is highly fact dependant,
remanding supports our presumption that “the trial judge, having
personally observed the quality of the evidence, the tenor of the
proceedings, and the demeanor of the parties, is in a better position
to perceive the subtleties at issue than we can looking only at the
cold record.” State v. Calliham, 2002 UT 86, ¶ 23,
55 P.3d 573. This is
particularly true in a case like this one where the record consists
almost entirely of evidence presented at an evidentiary hearing.
¶ 31 We further note for purposes of guidance on remand that,
under the Stalking Statute, “it is not a defense” that the alleged
stalker “was not given actual notice that the course of conduct was
unwanted.” UTAH CODE § 76-5-106.5(4)(a). Permitting such a
defense would require a victim to “confront or try to reason with the
[stalker],” which could be “dangerous and may unnecessarily
increase the victim’s risk of harm.” NAT’L CTR. FOR VICTIMS OF CRIME,
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supra at 52. In this case, Robert testified that he never asked Gloria
to stop contacting him because he was “too scared to say it to her.”
But evidence that Gloria lacked actual notice that her conduct was
unwanted is irrelevant to a determination of whether she stalked
Robert.
¶ 32 In summary, we reverse and remand to the district court
with directions to apply the appropriate objective standard to its
emotional distress determination. This standard permits the district
court to look at the context surrounding Gloria’s conduct, including
such factors as Robert’s history and relationship with Gloria, Gloria’s
knowledge of Robert’s vulnerabilities, and any other objective
factors relating to Robert’s disability. But we stress that, on remand,
the district court must avoid assessment of purely subjective factors.
II. THE STALKING STATUTE’S DEFINITION OF EMOTIONAL
DISTRESS DOES NOT INCORPORATE THE DEFINITION
RECOGNIZED IN SALT LAKE CITY v. LOPEZ
¶ 33 Gloria also argues that the district court misinterpreted the
statutory definition of “emotional distress” when it found that her
conduct met the requirements of a stalking injunction. In response,
Robert argues that the evidence was sufficient to find that Gloria’s
conduct would cause a reasonable person emotional distress,
regardless of which definition the district court applied. The record
does not reflect the definition of emotional distress applied by the
district court. Nevertheless, because the definition will be at issue
on remand, we address it here. See State v. James, 819 P.2d 781, 795
(Utah 1991) (“Issues that are fully briefed on appeal and are likely to
be presented on remand should be addressed by this court.”).
¶ 34 Prior to 2008, the Stalking Statute did not explicitly define
emotional distress. Utah courts interpreting the Stalking Statute
relied on a 1997 court of appeals decision, Salt Lake City v. Lopez,
which extended the tort definition of emotional distress to the
stalking context. 935 P.2d 1259, 1264 (Utah Ct. App. 1997). Lopez
held that emotional distress under the Stalking Statute “results from
conduct that is outrageous and intolerable in that it offends the
generally accepted standards of decency and morality.” Id.(internal
quotation marks omitted). Thus, the critical inquiry under the Lopez
standard was whether the respondent’s conduct rose to the level of
“outrageous and intolerable.”
¶ 35 In 2008, the Legislature added a definition of emotional
distress to the Stalking Statute. That definition, which closely
resembles the Model Stalking Code’s definition, provides,
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“‘Emotional distress’ means significant mental or psychological
suffering, whether or not medical or other professional treatment or
counseling is required.” UTAH CODE § 76-5-106.5(1)(d); see also
MODEL STALKING CODE FOR THE STATES § 3(b) (defining emotional
distress as “significant mental suffering or distress that may, but
does not necessarily, require medical or other professional treatment
or counseling”). We have yet to address whether this statutory
definition of emotional distress incorporates the common-law
standard set forth in Lopez.11 In addressing this issue, it bears
emphasizing that this court owes no deference to the court of
appeals’ Lopez decision, and because this court has never interpreted
the amended Stalking Statute, this issue presents a matter of first
impression.
¶ 36 When interpreting statutes, we first give effect to the plain
meaning of the statutory language. Weber Cnty. v. Ogden Trece, 2013
UT 62, ¶ 35, ___ P.3d ___ . Where the plain language is clear and
unambiguous, the inquiry is complete and “ we do not look to other
interpretive tools.” T-Mobile USA, Inc. v. Utah State Tax Comm’n,
2011
UT 28, ¶ 21,
254 P.3d 752. We therefore begin by looking to the
Stalking Statute’s plain language.
¶ 37 As amended in 2008, the Stalking Statute includes a
comprehensive list of defined terms, including, as mentioned above,
“emotional distress.” UTAH CODE § 76-5-106.5(1)(d). While the Lopez
emotional distress standard focuses on the severity of the
respondent’s conduct, the statutory definition of emotional distress
looks solely to the nature of the claimant’s injury —that is, the injury
must amount to “significant mental or psychological suffering.” Id.
§ 76-5-106.5(1)(d). The statute limits the type of conduct that
11
Several recent court of appeals cases have recognized the need
for clarification on this issue. Coombs v. Dietrich, 2011 UT App 136,
¶ 11 n.2,
253 P.3d 1121 (“[D]ue to recent amendments to the Stalking
Statute, the emotional distress requirement may have changed. . . .
But . . . we do not reach that issue.”); Bott v. Osburn,
2011 UT App
139, ¶ 18,
257 P.3d 1022 (“The Utah appellate courts have not yet had
occasion to decide whether Lopez is still relevant in light of the
legislature’s subsequent adoption of a statutory definition of
emotional distress.”); Allen v. Anger,
2011 UT App 19, ¶ 16 n.4,
248
P.3d 1001 (“Whether [the 2008 Stalking Statute’s emotional distress]
definition is intended to overrule the outrageousness requirement
imposed by [Lopez] . . . [is] beyond the scope of today’s decision.”).
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constitutes stalking separately through its definition of “course of
conduct.” Id. § 76-5-106.5(1)(b). The statute defines “course of
conduct” as “two or more acts directed at or toward a specific
person,” which include:
(i) acts in which the actor follows, monitors, observes,
photographs, surveils, threatens, or communicates to
or about a person, or interferes with a person’s
property: (A) directly, indirectly, or through any third
party; and (B) by any action, method, device, or
means; or
(ii) when the actor engages in any of the following acts
or causes someone else to engage in any of these acts:
(A) approaches or confronts a person; (B) appears at
the person’s workplace or contacts the person’s
employer or coworkers; (C) appears at a person’s
residence or contacts a person’s neighbors, or enters
property owned, leased, or occupied by a person;
(D) sends material by any means to the person or for
the purpose of obtaining or disseminating information
about or communicating with the person to a member
of the person’s family or household, employer,
coworker, friend, or associate of the person; (E) places
an object on or delivers an object to property owned,
leased, or occupied by a person, or to the person’s
place of employment with the intent that the object be
delivered to the person; or (F) uses a computer, the
Internet, text messaging, or any other electronic means
to commit an act that is a part of the course of conduct.
Id.12
¶ 38 This extensive list of prohibited conduct leaves no room for
the common-law standard adopted by Lopez. Were we to read into
the statute the Lopez definition of emotional distress, we would
effectively be amending the statutory standard to require proof of
12
Gloria has not argued that her conduct falls outside the scope
of this definition; indeed, by “communicat[ing] to or about” Robert
on several occasions, Gloria has engaged in acts that fit squarely
within the list of explicitly covered conduct. UTAH CODE § 76-5-
106.5(1)(b). Therefore, her defense rests solely on the claim that her
conduct would not cause a reasonable person in Robert’s
circumstances to suffer emotional distress.
13
BAIRD v. BAIRD
Opinion of the Court
outrageous and intolerable stalking. We acknowledge that stalking
laws and tort law overlap in their use of the term “emotional
distress” to describe the kind of injury to a claimant that is
vindicated or protected against. But the overlap ends there. The
Stalking Statute and the common law prescribe distinct standards for
the kind of conduct that triggers liability for such injury, and the
clear and unambiguous statutory language preempts
supplementation by the common law. The statute leaves no room
for a requirement of proof of “outrageous and intolerable” conduct.13
¶ 39 Accordingly, we hold that the 2008 amendment to the
Stalking Statute supplants the Lopez decision insofar as Lopez held
that emotional distress in the stalking context “results from conduct
that is outrageous and intolerable in that it offends the generally
accepted standards of decency and morality.” 935 P.2d at 1264
(internal quotation marks omitted). Instead, a petitioner seeking a
civil stalking injunction must show by a preponderance of the
evidence that a reasonable person in the petitioner’s circumstances
would have experienced “significant mental or psychological
suffering” as a result of the respondent’s alleged course of conduct.
UTAH CODE § 76-5-106.5(1)(d).
¶ 40 In this case, it is unclear which definition of emotional
distress the district court invoked. In its analysis, the court merely
13
Gloria argues that the Model Stalking Code “suggests that
section 76-5-106.5 codified the Lopez definition” of emotional distress
because the drafters “recognized with approval” case law that, like
Lopez, imported the definition of emotional distress from tort law.
However, the comments to the model code express approval of
stalking case law that, unlike Lopez, relied on section 46 of the
Restatement (Second) of Torts to define emotional distress. NAT’L
CTR. FOR VICTIMS OF CRIME, THE MODEL STALKING CODE REVISITED:
RESPONDING TO THE NEW REALITIES OF STALKING 49 (2007). Section
46 defines emotional distress as including “all highly unpleasant
mental reactions, such as fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, worry, and
nausea.” RESTATEMENT (SECOND) OF TORTS § 46 cmt. j (1965); see also
Wallace v. Van Pelt, 969 S.W.2d 380, 386 (Mo. Ct. App. 1998)
(applying section 46’s definition of emotional distress to Missouri’s
stalking laws). Neither the Model Stalking Code nor the cases it cites
suggest that emotional distress includes an “outrageous and
intolerable” conduct requirement.
14
Cite as: 2014 UT 08
Opinion of the Court
stated that Robert did not want contact with Gloria and that “at this
point in Robert’s life [Gloria’s] contact is causing him stress and
emotional upset.” The district court similarly stated that “Robert is
entitled to have his own life and make his own decisions” and that
Gloria’s “contact with him is causing him emotional upset,
emotional disturbance and distress that meets the requirements for
a stalking injunction.” Missing from this analysis is any discussion
of whether Gloria’s conduct would cause a reasonable person in
Robert’s circumstances significant mental or psychological suffering.
We therefore direct the district court on remand to apply the
statutory definition of emotional distress to determine whether
Robert has established the elements of stalking by a preponderance
of the evidence.
CONCLUSION
¶ 41 The district court erred when it concluded that Robert had
satisfied the statutory elements for a stalking injunction based solely
on the subjective determination that Gloria’s conduct was causing
Robert emotional distress. The Stalking Statute requires that the
district court determine whether Gloria’s conduct would cause a
reasonable person in Robert’s circumstances emotional distress.
And the Stalking Statute’s definition of emotional distress
supersedes the definition recognized in Lopez. Under the statutory
definition, emotional distress means significant mental or
psychological suffering. There is no requirement that the emotional
distress arise from outrageous and intolerable conduct by the
respondent. We therefore vacate the stalking injunction and remand
for further proceedings consistent with this opinion.
15
