Settlement Memorandum 2

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF DESCHUTES

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Kasey Hughes and Joseph Patnode,

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Petitioners, v.

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RESPONDENT’S SETTLEMENT MEMORANDUM

Robert B. Foster,

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No. 10ST0027MS and 10ST0028MS

Respondent. INTRODUCTION: This case is submitted to mediation at the direction of the Court, because two stalking orders and a myriad of alleged incidents, three pending alleged stalking order violations, at least one pending criminal charge, postponement of requested hearings on the underlying temporary stalking orders have created a monstrosity which would create the necessity of many days if not weeks of hearings and trials. This attorney became involved only recently, before the third arrest. Timely hearing on the temporary restraining order would have alleviated much, if not all the present factual and legal mess. Following the third arrest, Petitioners’ position for resolution changed in that they apparently want a conviction as well as a continued stalking order. The only actual victim in this case is the Respondent. He is still willing (although he was the one wrongfully arrested) to let both sides walk away with complete resolution. HISTORY: Robert Foster established a hot tub sales and maintenance service Tubs Alive, based in Sunriver in 1992, and currently services over 500 homes in Sunriver. This causes he and his staff to be in Sunriver daily, including weekends. The city hall and police department are housed in ths same building complex. RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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Sunriver is constructed of a series of circular areas. Often times Robert Foster’s

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duties in maintaining and/or repairing hot tubs in the area required several trips back and

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forth to the same area in a single day.

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For 18 years, prior to the creation of the new service district, Sunriver P.D. had been

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in the practice of enforcing the entire Oregon Vehicle Code based on the understanding that

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the Sunriver roads were treated as highways open to the public. Only 12 provisions of the

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Oregon Vehicle Code are enforceable on roads classified as premises open to the public and

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only ½ are stoppable offenses. The Sunriver Police had been making regular stops and

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issuing citations on Sunriver citizens for years as though they were traveling on highways

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open to the public.

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Until the stalking order was issued, Robert Foster was openly, vocally and actively

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interested in and involved in the City Council meetings pertaining to limiting the Sunriver

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police officers ability to enforce traffic laws on Sunriver.

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This case arises because the Sunriver police have been offended by Bob Foster’s

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exercise of his First Amendment rights wherein, as a business owner in Sunriver, he has

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actively supported the citizens opposition to what has been characterized as overly zealous

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activities and patrolling outside their designated patrol area. No evidence or fact would

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support a proposition that Bob Foster has been armed or a threat to police safety. No report

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has ever shown that Bob Foster interfered with a police officer’s duties. If the police thought

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otherwise, statutory criminal provisions exist in Oregon to arrest persons who interfere with

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the official duties of a police officer. Rather, review of the facts suggest that police take

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offense to citizens’ outspoken opposition of some police conduct, and a citizens’ right to

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occasionally view police conduct without interfering with police procedures.

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PRESENT STATUS OF CASE:

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The history and status of the case are indexed in the supplied white binder. The white

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binder includes copies of the police reports and factual commentary pertaining to each alleged

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RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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incident, beginning July 28, 2001 as Index “A” through “W” (other items of interest). A

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synopsis of that information is as follows:

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1.

Index “A-N,” alleged facts/reports.

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2.

Index “O” references Feb. 20, 2010 at the Country Store parking lot, and March 5,

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2010 - First Stalking Petition filed by Patnode and Hughes, first hearing challenging

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temporary stalking order, postponed March 5, 2010.

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Note: It is significant that Judge Adler entered a temporary stalking protective order on

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March 19, 2010, when Petitioner’s attorney’s Addendum to Petition for Stalking Order.,

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dated March 5, 2010, in its concluding paragraph 9A queries:

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“Were any of the spoken or written contacts a threat that made you

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afraid that serous personal violence or physical harm would happen to

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you very soon?”

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“The Respondent’s expressive comments have not yet reached the point of

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being an imminent threat of serious personal violence or physical harm.”

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Also note that in ¶3 of Petitioners’ petition for stalking order in response to the

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question - Violent or Threatening Contacts; Petitioners assert the following alleged conduct:

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“On Nov. 28, 2005 (when the officers stopped Respondent’s son).

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“During the stop the Respondent pulled up behind the officers’ vehicle, parked

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in front of his son’s truck. Respondent got out of his truck, visibly angry,

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almost lost his footing, and began swearing at the officers. he then grabbed a

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snow shovel from his son’s truck and began walking toward Officer Hughes.

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the officer yelled at him to stop and leave. Respondent eventually got back in

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his truck and yelled at the officers as he drove away.” (Emphasis supplied).

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Anyone reading the above statement (in the reasonable interpretation of the written

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English language) would assume that Respondent drove up to the scene where his son had

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been stopped, was angry, parked in front of his son’s truck, and then grabbed a snow shovel

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RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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and intentionally walked toward the officers in a threatening manner (with a shovel in his

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hand), and the only reason he finally stopped was that Officer Hughes “yelled at him to stop

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and leave.” That description of the events leaves no other possible interpretation for the

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judge other than that Respondent was exhibiting angry and threatening behavior with a

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weapon (to wit: a shovel) toward the police officers. In fact, by taking the information out of

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sequence and context the foregoing statement is a false representation of what actually

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occurred. See the white binder, Index B, Exhibit 12, Page 1 (Police report of the incident. It

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becomes obvious that the writer of the Petition has re-arranged the sequence of events while

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deleting important intervening sequences of events, thereby supplying the judge with a false

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story through omission. The police report provides and important, different sequence of

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events, in pertinent part:

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A.

“Foster got out of his truck, he walked to the rear entrance of the building and said

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you guys are fucking annoying.” (The report omits the fact that Bob Foster had come

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to his business to shovel snow away from the door and got a snow shovel out of his

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own pickup, did not know his son had been stopped until he turned the corner and saw

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him). See Petitioners’ detailed statement infra.

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B.

ice,” when he first got out of his truck, as falsely stated in the Petition.

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“Bob Foster walked back to his vehicle and lost his footing, almost falling on the

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In the police report, the officer (contrary to the petition) told Foster he “needed to

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leave,” after he walked from the building to “his own vehicle which was parked in

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front of his son’s vehicle” (police car parked behind son’s vehicle), “grabbing a snow

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shovel and walking toward them,” as falsely stated in the stalking order petition.

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In fact, only after first going to the building and after walking back to his own

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truck, did Respondent obtain the snow shovel, and in the process, “losing his footing,

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almost falling.” Thus, again the police report provides a different sequence of events

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RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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from those cited in the petition, clearly structured to present the impression

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that Respondent is behaving in a manner which is threatening to the safety of the

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police.

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D.

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The police report has Foster almost falling only after walking back to his own vehicle, not when he first gets out of his vehicle, as stated in the petition.

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The police report then states that after Foster walked back to his own truck and almost

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fell and was “asked to leave,” he then walked back to his son’s truck, “grabbed a

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snow shovel from the back of his son’s truck and walked back around toward me...”

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The officer claims he “gave the command to stop, turn around and leave...Foster

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stopped approximately twenty feet from me and said, you’re a public servant, I’m your

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boss, then walked back to the building.” “As I got back in my patrol car, I heard

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Foster say, now it’s your turn. Foster continued to say this as I drove away.” Again,

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these statements are a major departure from the petition which states: “Respondent

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got back in his truck and yelled at the officers as he drove away.” Also note that in

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the police report version, Foster obtained the snow shovel from the back of his son’s

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truck and walked “back toward me...stopped 20 feet from me and said, you’re a

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public servant...” The statements are obviously contradictory. How far could Foster

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have walked and still be twenty feet from the officer?

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In fact, Foster did obtain the snow shovel from his own truck and, as stated in

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the police report, “then walked back to the building as [Officer Hughes] got back into

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[his] patrol car and drove away.”

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F.

As another allegation for a claim of violent or threatening contact, the petition cites an

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alleged hearsay incident, which was not experienced by Officers Hughes or Patnode,

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and for which insufficient information existed to charge a crime. yet, the officers

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state that, “Respondent had allegedly been involved in a heated argument with a

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customer, pushed the customer against a door and threatened to hunt him down, kill

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RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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him, and burn his house down if he did anything. when the deputy arrived, the

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Respondent was uncooperative...the investigation was eventually dropped.

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Petitioners are aware of this incident.”

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Furthermore, see Petition section in the outline under the heading Points of

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Law and Fact, Infra, for the legal requirement that a person who has not experienced

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an alleged threat to himself cannot use that information as a basis for a stalking order

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– proof of threat or violence. Factually, the petition in utilizing this alleged incident is

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incorrect again.

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3.

On October 12, 2010 an Amended Petition for Stalking Order was filed by Officer

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Patnode. again no hearing was held on the Temporary Stalking Order. Again, as set

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forth infra, under the heading of “Alleged Offenses Cited by Patnode and Hughes,”

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the alleged acts/conduct is twisted, taken out of context, and even as alleged, does not

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constitute a basis for a stalking order.

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4.

Respondent Foster suffered the following arrests ad pending charges: A.

Sept. 10, 2010 - first arrest ---- gas station. D.A. also charged as a crime. See

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Exhibit 17 in the white binder under Index “T”. The police reports are full of

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contradictions. Respondent was at the station to get fuel. Hughes was inside

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in plain clothes. Respondent did not intentionally, knowingly or recklessly

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violate the order.

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B.

September 12, 2010 - second arrest – alleged stalking order violation –

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Country Store. Hughes was inside the store in civilian clothes. Cameras show

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Hughes saw Respondent come in, then placed himself in a position with

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another officer where Respondent had no choice but to walk past them to get

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to his vehicle. Police claim this is untrue, but their report claimed Respondent

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parked his vehicle within 3 parking spaces of Hughes civilian vehicle.

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RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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C.

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May 5, 2011 - third arrest – Restaurant. See white binder for explanation and diagrams — Stalking Order

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POINTS OF LAW AND FACT REGARDING BASIS FOR A STALKING ORDER

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VIOLATION according to the forms provided by the court to qualify for a stalking

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protective order:

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The Respondent must have intentionally knowingly, or recklessly engaged in

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repeated and unwanted contact that alarmed (frightened) or coerced (forced)

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you or a member of your immediate family or household within the last two

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days.

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It is reasonable for you to feel alarmed or coerced.

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The contact made you reasonably fear for your physical safety or the safety of

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your household or family. No set of facts meet this criteria in the present case.

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The interpretation of due process and reasonable fear (alarm) regarding physical

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safety is not unlike similar provisions and requisites of a “family abuse,” imminent danger of

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abuse examination under ORS 107.7181.

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POINTS OF LAW AND FACTS ASSERTED BY DEFENDANT ARE AS FOLLOWS:

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A.

A question arises as to when and how a court obtains authority

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(jurisdiction) to issue a restraining order. For a restraining order and

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restrictions to lawfully issue, the Court must first receive credible evidence

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which makes a showing that

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(1) abuse occurred within 180 days (rather than two years stalking cited in

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present case), and

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(2) that the applicant is in “imminent danger of further abuse.” ORS

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107.718(1). Theses requirements harmonize Oregon law with Federal law

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which imposes criminal liability on a respondent who possesses or uses

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firearms or ammunition while subject to a protective restraining order

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RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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containing these necessary findings. 18 USC § 922(d)(8). No evidence

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adduced at hearing met this necessary requirement. Pursuant to ORS

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107.718(3) imminent danger includes but is not limited to situations in which

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the respondent has recently threatened the petition with additional bodily

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harm. To qualify for a restraining order (not unlike a stalking order) the

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petitioner must show that the respondent “represents a credible threat to the

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physical

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safety of the petitioner or petitioner’s child.”1 ORS 107.718(1). These provisions

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then require, prior to the Court exercising jurisdiction, a showing of a “credible threat of imminent danger within the past 180 days,” ORS 107.710(2).2

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B.

The showing provided at the original ex parte petition for stalking order hearing

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did not meet the standard of proof. No truthful allegation established a basis for

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petitioners to fear physical injury from Respondent. The only allegation of Petitioners

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that even remotely came close to rising to the level of qualifying for a stalking order

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was the incident with the snow shovel and that incident was not only presented

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differently in the stalking petition than in the police report, the incident was

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incorrectly described by petitioners in both the police report and the petition.

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The Petition is void for lack of subject matter jurisdiction because it did not have

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the requisite evidence to enter a stalking order. Defendant references 2 cases for the

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Officer Hughes asserts his wife was concerned for her safety after the officers (incorrectly) assumed Robert Foster was following him home. Note that the statute does not provide for the protection for a wife or some third person who has not reasonably been subjected to a “credible threat of imminent danger within the past 180 days prior to the issuance of a stalking order. In fact the clear language of the statute is that the mandatory arrest provisions of ORS 133.055(2) do not apply to a “family or household member” or a person who has not ben the subject of the alleged threat. The court lacks jurisdiction under Oregon law to make such a finding which is in violation of Article 1 Sec. 9 of the Oregon Constitution and the 14th Amendment to the US Constitution, which mandates due process based upon provisions of law. 2

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In Boldt v. Boldt, 155 OR App 244, 248, 963 P2d 719 (1998) the court required the petitioner to meet the burden of proof with clear and convincing evidence, which resulted in the legislature modifying the statute to require a showing of a preponderance of evidence. RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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Mediator: Wood v. White and Klugh v. United States. A.

In Garner v. Williams, 182 Or 549 (1948) the Supreme Court of Oregon found

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that the lower court’s judgment “was void and subject to attack by the

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husband after the time for appeal had passed where the court exceeded its

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power.” See case notes 11 and 13 of Garner, supra.

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B.

Wood v. White, 28 Or App 175 (1977) at page 2 holds in pertinent part that: “When there is a want of jurisdiction over the parties, or the subject-matter, no matter what formalities may have been taken by the trial court, the action thereof is void because of its want of jurisdiction, and consequently its proceedings may be questioned collaterally as well as directly. They are of no more value than as though they did not exist. But in cases where the court has undoubted jurisdiction of the subject-matter and of the parties, the action of the trial court, though involving an erroneous exercise of jurisdiction if appealed from. It may not be called in question collaterally.” Bank & Trust Co. v. Frederick, 271 Mich. 538, 544-45, 260 N.W. 908, 909 (1935).

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The distinction in the present case is that the Court never acquired the facts 13 necessary to exercise jurisdiction. 14 C.

In Klugh v. United States, 620 F.Supp. 892 (D.C.S.C. 1985) the court at P. 901

15 Note [12, 13] states that: 16 17

“A judgment is void if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process. (Emphasis added).

18 In the present matter Respondent asserts that the Court, in entering the order 19 “acted in a manner inconsistent with due process;” and thereby issued a void 20 judgment by entering a restraining order without the requisite statutory 21 jurisdiction to do so - lack of a factual basis of proof of coercion or reasonable 22 basis for reasonable threat to physical safety, when the petitioner shows by a 23 preponderance of evidence that respondent “represents a credible threat to the 24 physical safety of the petitioner or the petitioner’s family.” Any basis for 25 entry of the order, based upon the petition, would be obtained only by false 26 statement. The actual police report does not establish a threat to physical Page 9 -

RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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safety.. As a result Defendant’s due process rights were violated under the

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Oregon statute (because it was not followed) and his constitutional right to

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possess arms under the 2nd Amendment to the US Constitution was violated as

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he was made subject to criminal liability if he possessed a firearm or

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ammunition while subject to the restraining order (18 USC § 922 (d) (8), (g)

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(8) and unlawfully subject to arrest (violation of Oregon Constitution Art. 1 §

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8 and 20, and 4th Amendment to the US Constitution) for a violation of a

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protective order. Rosto v. McVein, 207 Or App 700, 143 P3d 241 (2006)

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requires a showing of “imminent danger of abuse.” In the issuance of the

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restraining order in these matters, no truthful factual basis exists for such a

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finding. In filing their false affidavit, the Petitioners have violated

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Respondent’s constitutional rights to due process.

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ALLEGED OFFENSES CITED BY PATNODE AND HUGHES

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See White Binder provided

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A. July 28, 2001 - Index “A” from Petitioners’ Stalking Order and Police Report (Ex. 13)

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Officer Garibay investigated a complaint by Lester Brock wherein he claimed that

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when he went to Tubs Alive to complain about their service, an argument with Robert

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Foster ensued and Foster threatened and pushed Brock. Two employees and Robert

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Foster were interviewed. Foster was told that Off. Garibay was investigating a

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possible harassment charge against him (Foster). While both employees interviewed

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acknowledged they heard the two arguing, neither reported hearing Foster make any

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threats against Brock, nor did they see Foster touch Brock.

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Robert Foster explained that Brock did enter his business, was angry, was demanding

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Foster’s license and was behaving in a threatening manner. He stated that he and

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Brock had a heated argument. Brock owed him a great deal of money, was

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threatening to sue and Foster told Brock to go ahead and sue. Foster denied have

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RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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threatened or touched Brock.

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B. November 28, 2005: (Index “B”) – Petitioners’ Stalking Order Petition, P. 3 contradictions

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(Ex. 12 - police report).

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Officers Patnode and Hughes conducted a traffic stop of Ben Foster, Robert Foster’s

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son. The officers claimed that Robert Foster accelerated, parked in front of his son’s

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vehicle, angrily got out of his pickup, slipped and nearly lost his footing. Hughes

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claimed at the time he saw Foster slip on the ice he told Foster to be careful. He

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claims Robert Foster made a series of rude comments and was told by Hughes to

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leave. Hughes then claimed that Foster then grabbed a shovel out of the back of his

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son’s pickup and began walking toward Hughes. Hughes claims he yelled at Robert

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Foster to stop and that Foster stopped approximately 20 feet away and made another

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comment to Hughes, (“You’re a public servant, I’m your boss”), and then walked

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back to the building. Hughes stated in his report that as he drove past in his patrol car,

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Robert Foster yelled “now it’s your turn.”

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Robert Foster stated in his deposition that he was simply pulling into the parking lot to

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go to his office and did not realize his son had been stopped by the police until he

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rounded the corner. He pulled around the corner and parked his truck. As he exited

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his truck he slipped on the ice and nearly fell. He stated that when Officer Hughes

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saw him nearly fall, he remarked, “Be careful old man.” Foster admits he may have

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said something back to Hughes like, “You’re a smart ass punk.” He asked his son-in-

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law, Ian (who was the passenger in his son’s pickup) “Is this all under control?” and

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Ian responded, “Yes.” Robert Foster says he then got a snow shovel out of his pickup

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and began shoveling snow away from in front of his business. He does not recall

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whether he told the police they were public servants, but does recall that he did not

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say “Now it’s your turn.”

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This alleged incident has been discussed in detail above. There are many RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]

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contradictions between the petition and the police report which makes it evident that

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the perjured petition is not a basis for a stalking order. Even in the false version in the

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petition no statement is made by Petitioners that Respondent ever attempted or

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threatened to strike or harm anyone. The petitioners’ perjured statements attempt to

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suggest a basis of possible danger, and no statement of fear is made.

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C. March 20, 2006 (Index “C” Ex. 8 - contradicts petition). Respondent did not follow or

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yell at him. The stalking order petition states Respondent followed Petitioner to the police

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building. Exhibit 7 says Respondent followed Officer Hughes in his vehicle. They do not

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report any threatening conduct.

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D. July 6, 2007. See deposition of Robert Foster and Officer Hughes report (white binder).

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E.

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Respondent went in to make a purchase. See white binder for details - Index F-S. N

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July 14, 2007 (Ex 6) Country Store. This is the only grocery store in Sunriver.

None of the alleged incidents show a threat of danger. Most of the incidents, if not

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all, are occasioned by Respondent’s proximity to his business and the 500 houses his

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company services in Sunriver.

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DATED July 10, 2011.

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/s/ Foster A. Glass Foster A. Glass OSB No. 751334 Attorney for Respondent

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RESPONDENT’S SETTLEMENT MEMORANDUM FOSTER A. GLASS • A TTORNEY AT L AW 339 SW Century Drive, Suite 201 • Bend, Oregon 97702 Telephone (541) 317-0703 • Fax (541) 317-0736 • e-mail: [email protected]