7
Submitted May 21, 2021, reversed March 2, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRYAN JOSEPH MERRITT,
Defendant-Appellant.
Josephine County Circuit Court
19CN02365, 19CN02595;
A172105 (Control), A172106
506 P3d 465
Defendant was found in contempt for violation of a restraining order. The
restraining order was issued by a California court, and defendant violated it by
calling the victim on the phone from Oregon. On appeal, he assigns error to the
trial court’s denial of his motion to dismiss for lack of subject matter jurisdiction.
In defendant’s view, ORS 24.190 (2011) restricts a court’s power to enforce foreign
restraining orders to three circumstances: when the protected party (1) arrives
in the enforcing state, (2) presents a true copy of the order to law enforcement,
or (3) files a certified copy of the order with a county clerk. See ORS 24.190(2)(a),
(3)(a), (6). Because there is no evidence that any of those actions took place, defendant argues that the court erred when it denied his motion to dismiss for lack of
subject matter jurisdiction. Held: The protected party never arrived in Oregon—
and could not have done so merely by answering a phone call that originated in
Oregon—and did not present a copy of the order to a county sheriff or a county
clerk. Under ORS 24.190, meeting at least one of those conditions was a prerequisite for the trial court to enforce the restraining order. Therefore, the trial court
erred in denying the motion to dismiss for failure to comply with ORS 24.190.
The Court of Appeals did not reach the question of whether compliance with the
statute was a matter of subject matter jurisdiction.
Reversed.
Pat Wolke, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Lagesen, Chief Judge,
and Aoyagi, Judge.
8 State v. Merritt
LAGESEN, C. J.
Reversed.
Cite as 318 Or App 7 (2022) 9
LAGESEN, C. J.
Defendant was found in contempt on 16 counts of violating a restraining order. The restraining order was issued
by a California court, and defendant violated it by calling
the victim on the phone from Oregon on 16 separate occasions. On appeal, he assigns error to the trial court’s denial
of his motion to dismiss for lack of subject matter jurisdiction.1 In defendant’s view, ORS 24.190 (2011)2 restricts a
court’s power to enforce foreign restraining orders to three
circumstances: when the protected party (1) arrives in the
enforcing state, (2) presents a true copy of the order to law
enforcement, or (3) files a certified copy of the order with
proof of service with a county clerk. See ORS 24.190(2)(a),
(3)(a), (6). Because there is no evidence that any of those
actions took place, defendant argues that the court erred
when it denied his motion to dismiss for lack of subject matter jurisdiction. For the reasons that follow, we conclude
that the trial court erred in denying the motion to dismiss
for failure to comply with ORS 24.190, although we do not
reach the question of whether compliance with the statute is
a matter of subject matter jurisdiction.
We review a court’s interpretation and application
of a statute for errors of law, first examining the statute’s
text and context, then any relevant legislative history. See
State v. Gaines, 346 Or 160, 171-73,
206 P3d 1042 (2009)
(outlining methodology).
The relevant facts are undisputed. A California
court issued a three-year “Criminal Protective Order -
Domestic Violence” in 2017. That order prohibited defendant from having any contact with J. Sometime later, but
while the restraining order was still in effect, defendant
was detained in the Josephine County Jail on an unrelated
matter. While in jail, he called J on multiple occasions. An
1
Defendant made the motion ahead of trial and renewed it later. Because the
fact that defendant raised the motion twice is immaterial to our resolution of this
appeal, for ease of reading, we treat the motion and renewal as one motion.
2
Amendments to ORS 24.190 came into effect January 1, 2022. For the purposes of this opinion, all references to that statute will refer to the 2011 version
that was in effect at the time of the relevant trial court proceedings. See Or Laws
2021, ch 326, § 2.
10 State v. Merritt
investigating detective monitoring those calls learned about
the restraining order. The jail blocked J’s number, but defendant evaded the blockade, successfully reaching J through
three-way calling. During the calls, defendant asked J to
“help [him] get [the restraining order] removed so [he] can
contact [her].” Without ever locating or contacting J,3 the
state brought the disputed contempt charges for 16 violations of the foreign restraining order under ORS 33.015 and
ORS 24.190.
Defendant moved to dismiss for “lack of jurisdiction, improper venue and, in the alternative, the accusatory instrument is statutorily insufficient.” He argued that
the court’s general authority to impose punitive contempt
sanctions under ORS 33.025 does not provide authority to
enforce the orders of other courts. The state countered that
the court had authority to enforce the order under ORS
24.190 and ORS 24.105 or, alternatively, under the court’s
inherent authority. The state attached a copy of the protective order to its response, which defendant later pointed out
was an uncertified copy transmitted by fax. The trial court
denied the motion.
The case proceeded to trial. At the close of the case,
defendant renewed his motion to dismiss. He pointed out
that the state had not proved that the protected person, J,
had “arrived” in Oregon, and argued that the state had not
demonstrate that the prerequisites for enforcing the order
under ORS 24.190 were satisfied. The court declined to
revisit the ruling and found defendant in contempt on each
count. Defendant appealed.
On appeal, defendant maintains that the trial court
erred when it did not dismiss. In particular, he contends
that the provisions of ORS 33.025 and ORS 24.190 mean
that the court lacked subject matter jurisdiction to hold him
in contempt for violating the California court’s restraining
order.
3
The state did not introduce any evidence as to J’s location at the time she
received the phone calls. The investigating detective testified that defendant’s
calls to J were directed to an out-of-state phone number and that she “presume[d]” J was “at her normal place of residency.” The detective testified further
that she had “no idea” if J had ever arrived in Oregon.
Cite as 318 Or App 7 (2022) 11
As for ORS 33.025, defendant argues that that statute only confers authority to a court to hold a party in contempt for violating its own judgments and orders because, as
defined in ORS 33.015(2)(b), “ ‘Contempt’ includes ‘[d]isobedience of, resistance to or obstruction of the court’s authority, process, orders or judgments.’ ” (Emphasis supplied by
defendant.) Thus, defendant reasons, ORS 33.025 does not,
of its own accord, authorize a state court to enforce the judgment of a foreign tribunal. We do not understand the state
to dispute that point; rather, as both parties appear to recognize, the main issue before us is the extent to which a
different statute, ORS 24.190, authorizes Oregon courts to
enforce restraining orders as if they were issued by Oregon
courts.
As defendant points out, ORS 24.190 provides
“several ways in which the protected person may render [a
foreign restraining] order enforceable in this state.” ORS
24.190 (2011), the version of the statute effective at the time
of the trial court’s proceedings, provided that such an order
is enforceable when at least one of three circumstances is
present: (1) upon “arrival” of the protected party in Oregon;
(2) upon presentation by the protected party of a true copy
of the order to the county sheriff; or, (3) upon the filing of a
certified copy of the order with proof of service in any circuit court of the state. See ORS 24.190(2)(a), (3)(a), (6). In the
absence of any of those three things occurring, defendant
argues, an Oregon court does not have subject matter jurisdiction to enforce a restraining order.
In response, the state argues that the protected
party arrived in Oregon by receiving defendant’s phone
calls, meaning that ORS 24.190 is satisfied. Alternatively,
the state argues that compliance with ORS 24.190 is not a
matter of subject matter jurisdiction. Finally, the state contends that even if the trial court did not have subject matter
jurisdiction under ORS 33.025 and ORS 24.190, a provision
of the federal Violence Against Women Act (VAWA), 18 USC
§ 2265(a), would have required the trial court to come to the
same conclusion, and thus was right for the wrong reason.
The state acknowledges it did not make its VAWA argument
below.
12 State v. Merritt
That framing gives us essentially three question to
address: (1) whether the ORS 24.190 prerequisites for enforcement of an out-of-state restraining order were met and, in
particular, whether the state is correct that J “arrived” in
Oregon by receiving phone calls initiated in Oregon; (2) if
the prerequisites were not met, whether defendant was entitled to dismissal; and (3) if dismissal was warranted under
ORS 24.190, whether the state has demonstrated that dismissal conflicts with VAWA.
We start with the first question. The relevant provisions of ORS 24.190 state:
“(2)(a) … [I]mmediately upon the arrival in this
state of a person protected by a foreign restraining order,
the foreign restraining order is enforceable as an Oregon
order without the necessity of filing and continues to be
enforceable as an Oregon order without any further action
by the protected person.
“…
“(3)(a) A person protected by a foreign restraining
order may present a true copy of the order to a county sheriff …. … The order is fully enforceable as an Oregon
order in any county or tribal land in this state.
“…
“(6) A person protected by a foreign restraining order
may file a certified copy of the order and proof of service in
the office of the clerk of any circuit court of any county of
this state. A judgment so filed has the same effect and is
subject to the same procedures, defenses and proceedings
for reopening, vacating or staying as a judgment of the circuit court in which the foreign judgment is filed, and may
be enforced or satisfied in like manner. ….”
It is undisputed that J did not present a true copy
of the order to a county sheriff and did not file a certified
copy of the order with a county clerk. What is at issue is
whether J “arrived” in Oregon for the purposes of ORS
24.190 by receiving phone calls originating in Oregon. As
noted, defendant argues that, because there is no evidence
that J ever physically came to Oregon, there is no basis to
infer that she ever arrived in Oregon for purposes of ORS
Cite as 318 Or App 7 (2022) 13
24.190. The state counters that “arrival in this state” can
be interpreted to mean answering a phone call that was initiated in Oregon, citing methods for “appearing” in court
for support. See, e.g., ORS 419C.025 (telephonic appearance
statute).
By its plain text, ORS 24.190(2)(a) provides that a
foreign restraining order becomes enforceable immediately
upon the “arrival” of the person protected by the order “in”
the state of Oregon. To accept the state’s argument that
receiving a phone call from defendant equated to J’s “arrival”
in Oregon would require us to infer that the legislature used
the word “arrival” in a highly unusual way to mean that a
person need not be in Oregon physically to have arrived in
the state. Taking that approach would be at odds with our
methodology for construing statutes, under which we give
ordinary words their ordinary meanings. State v. Jones, 286
Or App 562, 566-67,
401 P3d 271 (2017).
The state’s interpretation of “arrival” could be
rejected based on a common sense understanding of the
word, without resort to a dictionary. But the dictionary adds
to the reasons to reject the state’s argument. To “arrive” is
most relevantly defined as “to reach a destination : come
to the end of a journey” or “to make an appearance : come
upon the scene.” Webster’s Third New Int’l Dictionary 121
(unabridged ed 2002). Similarly, “arrival” commonly means
“the act of reaching a destination or of coming to an end of a
journey,” or “the act of making an appearance or of coming
upon the scene.” Id. None of those definitions suggests that
a person who receives a phone call originating in Oregon
is a person who has experienced an “arrival” in Oregon. A
person who receives a phone call does not “come upon the
scene” in Oregon by virtue of the receipt of the phone call;
they remain where they are. We are also unpersuaded that,
because it is possible to “appear” by telephone in an Oregon
court, a person “arrives” in Oregon merely by accepting a
phone call originating in Oregon.
As noted, it is not disputed that a true copy of the
restraining order was not presented to a county sheriff, and
it is not disputed that a certified copy of the restraining
order was not filed in circuit court. Accordingly, none of the
14 State v. Merritt
statutory prerequisites to enforcement of a foreign restraining order have been met.
In view of that, the next question is whether the
trial court erred in enforcing the order. We conclude that it
did. Although the terms of ORS 24.190 do not address the
consequences of noncompliance expressly, if the legislature
intended that foreign restraining orders generally would
be enforceable notwithstanding the absence of any of the
prerequisites of ORS 24.190, the statute, as written, would
serve no meaningful purpose. In particular, with respect to
the facts here, there would be no purpose served by specifying that a foreign restraining order is enforceable upon
the arrival of a protected person, without the formality of
presentation to a sheriff or filing in court, if the legislature
intended for the order to be enforceable without those formalities when the protected party had never entered the
state. From the fact that the legislature made arrival of
the protected party a prerequisite to the enforcement of a
foreign restraining order that has not been presented to a
sheriff or filed in the circuit court, we infer that the legislature intended that such an order would not be enforceable
absent arrival.
We note that this conclusion does not mean that the
restraining order in this case was not enforceable; presumably, the order remained enforceable in the issuing court in
California, where the protected party apparently remained.
Our conclusion means simply that the state did not demonstrate that the legislature intended for the Oregon courts to
enforce a foreign restraining order where the protected party’s connections to the state are limited to receiving phone
calls originating in this state, there is no evidence that the
protected party ever came to this state, and there is no evidence that the protected party ever sought to invoke this
state’s assistance in enforcing the order by delivering it to a
sheriff or filing it with a court.
In concluding that the requirements of ORS 24.190
ordinarily must be satisfied for an Oregon court to enforce
a foreign restraining order, we do not determine—because
we need not do so in this case—whether the requirements
are one of subject matter jurisdiction or, instead, are
Cite as 318 Or App 7 (2022) 15
requirements that may be waived by the party subject to
the enforcement action. See, e.g., Domus, Inc. v. Signature
Bldg. Sys. of PA, LLC, 252 A3d 628 (Pa 2021) (concluding
that compliance with provisions of the Uniform Enforcement
of Foreign Judgments Act was not a matter of subject matter jurisdiction and that party could waive right to enforce
compliance). In this instance, defendant consistently has
asserted that the case should be dismissed for noncompliance with ORS 24.190, so has not waived the right to enforce
its provisions.
One loose end remains. As an alternative basis for
affirmance, the state argues that if ORS 24.190 is construed
to require a protected party to have arrived in Oregon as
a prerequisite to enforcing a restraining order where, as
here, the order has not been registered or presented to a
sheriff, then the statute conflicts with a provision of VAWA,
18 USC § 2265(a), which requires that a “protection order,”
as defined in that act, be enforced regardless of compliance
with any registration requirements. Defendant responds
that the state did not make that argument below and, further, had it done so, defendant might have been able to
develop a different factual record as to whether the order
was enforceable under VAWA. Defendant also argues that
the state’s VAWA argument on appeal is underdeveloped
because it is not framed in terms of preemption principles.
Both of those arguments are well-taken, and, for that reason, we decline to consider the state’s proposed alternative
basis for affirmance.
Reversed.
