Towner v. Ridgway

2008 UT 23
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Mark E. Towner, an individual, 	No. 20060677
Petitioner and Appellee,
v.
F I L E D
Michael Ridgway, an individual,
Respondent and Appellant. 	March 4, 2008
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Third District, Salt Lake
The Honorable Denise P. Lindberg
No. 060907552
Attorneys: 	Peter Stirba, Wayne K. Caldwell, Salt Lake City, for
petitioner
Brett P. Johnson, Troy L. Booher, Peter H. Donaldson,
Salt Lake City, for respondent
---
DURRANT, Justice:
INTRODUCTION
¶1 	This case concerns an appeal of an ex parte civil
stalking injunction. 	Michael Ridgway, the party against whom the
injunction was issued, argues that his conduct does not
constitute stalking under the relevant statute. 	He also argues
that the content of the injunction, specifically paragraph four,
is unauthorized by Utah law and unconstitutional under the First
Amendment to the United States Constitution. 	We do not reach
Mr. Ridgway’s first argument because the district court failed to
make findings on the elements of the statute defining stalking.
As to his second argument, we accept the concession of Mark
Towner that paragraph four merely repeats earlier paragraphs in
the injunction and, as a result, conclude that the content of the
injunction is neither unauthorized by Utah law nor
unconstitutional.

No. 20060677 	2
BACKGROUND
¶2 	On May 8, 2006, Mark Towner filed a petition for a
civil stalking injunction against Michael Ridgway. 	Mr. Towner
listed the following as support for his allegation of stalking:
“Virtually every Republican Event. [sic] 	Mr. Ridgway will make
comments to myself or my wife about past incidents where as
officers in the party we ruled against him on numerous issues. 	I
would say there has [sic] been 10-15 incedents [sic] since 2002.”
Mr. Towner requested an ex parte stalking injunction enjoining
Mr. Ridgway from stalking and directly or indirectly contacting
him and his family. 	Mr. Towner also requested that Mr. Ridgway
be enjoined from coming near him and his family at their
residence, places of work, the University of Utah, and
“Republican Events.” 	Specifically, Mr. Towner requested that Mr.
Ridgway be “[b]locked from Republican events such as conventions,
central commitee [sic] meetings, rallys [sic]” and that he be
“[b]locked from handing out flyers that are not fact based about
myself, my wife, or anyone else.”
¶3 	Mr. Towner submitted with his petition evidence
corroborating his allegation of stalking, including a letter to
the court describing the bases for his petition, copies of
articles published by the news media regarding Mr. Towner and
Mr. Ridgway, a copy of a letter authored by Mr. Ridgway regarding
Mr. Towner that Mr. Ridgway distributed to delegates at the 2006
Salt Lake County Republican Convention, and a copy of an email
sent by a third party to Mr. Ridgway. 	On the same day Mr. Towner
filed his petition, Judge Maughan issued an ex parte stalking
injunction against Mr. Ridgway.
¶4 	The injunction papers were served on Mr. Ridgway on May
11, 2006, two days before he was to attend and speak at the
Republican State Convention as a candidate for the United States
Senate. 	Mr. Ridgway immediately filed a motion to dissolve or
modify the injunction and requested an emergency hearing. 	Judge
Peuler heard arguments on the motion on May 12, 2006, and ordered
that the ex parte civil stalking injunction be modified to allow
Mr. Ridgway to appear at the convention provided that he not
communicate with the persons listed in the stalking injunction.
¶5 	On May 16, 2006, after appearing and speaking at the
convention without incident, Mr. Ridgway requested a hearing to
contest the stalking injunction. 	The hearing was held before
Judge Lindberg on June 16, 2006. 	Both Mr. Towner and his wife,
Carrie Towner, testified concerning a series of incidents that
led to Mr. Towner seeking the civil stalking injunction. 	First,
Mr. Towner testified that at a 2003 Republican Party central

3 	No. 20060677
committee meeting, Mr. Ridgway “approached me and in a very
aggressive, derogatory way told me that I was a liar, I was a
back stabber, that I had defeated his purpose and why didn’t I
vote the way he wanted me to vote.” 	Mr. Towner next testified
that, following a 2004 Republican Party committee meeting in
which Mr. Towner voted contrary to the way Mr. Ridgway asked him
to vote, Mr. Towner began receiving, and received for
approximately two years thereafter, harassing e-mails and phone
calls from Mr. Ridgway accusing Mr. Towner of being a traitor,
liar, and backstabber.
¶6 	Mrs. Towner testified that, at a central committee
meeting sometime in 2003 or 2004, she made a comment to
Mr. Ridgway and that
he glared at me just, like in his eye just a
glare and he kind of tensed up and leaned
forward and took a couple of quick steps
towards me and then [Mr. Ridgway], just right
before he was like a foot and a half away
from me, he just kind of turned forcefully,
like turned himself and made himself leave
the room.
Both Mr. Towner and his wife testified that the next incident
with Mr. Ridgway took place at the Salt Lake County Republican
Convention in April 2006, but that between approximately 2004 and
the convention they had amicable contact with Mr. Ridgway, asked
him to support Mr. Towner’s candidacy for the Utah State Senate,
and invited him to a barbeque they were “throwing for political
support.”
¶7 	At the Salt Lake County Republican Convention in April
2006, during a caucus meeting in which delegates were selecting a
candidate for the Utah State Senate, Mr. Ridgway, in
contravention of the convention rules, passed out a letter
explaining why he did not support Mr. Towner’s candidacy for the
senate. 	Mr. Towner ultimately lost the election. 	Mr. Towner
testified that “Mr. Ridgway came up to me and in a very
derogatory way he said something to the effect of, I guess I
should apologize.” 	Mr. Towner testified that he said, “Cheap
shot, Mike,” to which Mr. Ridgway replied, “[I]t doesn’t stop
here.” 	Mrs. Towner testified that, at some point soon after this
conversation occurred, she was standing with her daughter when
Mr. Ridgway approached them and said, “I didn’t know the rules.”
Mrs. Towner testified that this

No. 20060677 	4
just really upset me and at that point I told
him never to talk to me again, to stay away
from me and he just continued talking to me
and moving forward towards me and we just
kept backing up out of the room and then my
daughter started saying something to him,
started yelling something to him and I just
grabbed, put my arms around her and put my
hand out to Mike and said, don’t talk to him
Leslie, he gets violent, and I turned around
and tried to get her out of the way.
The Towners then left the room. 	Mr. Towner testified that,
during this confrontation, he was afraid for his own safety and
that of his wife and daughter.
¶8 	Finally, Mr. Towner testified that he fears that Mr.
Ridgway could become violent or seek retaliation. 	Mrs. Towner
also testified that she feels threatened by Mr. Ridgway and fears
him.
¶9 	After hearing this testimony, Judge Lindberg stated as
follows:
I have testimony from Mr. Towner about a
personal confrontation in 2003. 	I have--
although Mr. Towner has also recounted some
kind of confrontation in 2004 but by Mr.
Towner’s own testimony, that confrontation
was really not between him and [Mr. Ridgway]
but rather between [Mr. Ridgway] and the
Chair but I also have testimony from Mr.
Towner that he then thereafter started
receiving harassing calls and e-mails and at
least one has been brought into evidence by
[Mr. Ridgway] in which there clearly appears
to be some harassment involved.
I also have testimony by Mrs. Towner of
having to put some distance between [Mr.
Ridgway] and herself and the fears that were
caused by the approach, one in the more
distant past and one more recently.
While it is somewhat probative that in
April of this year [the Towners] invited [Mr.
Ridgway] over to a barbeque, I am not
persuaded that that is determinate [sic] of
the issue. 	I believe that the requirement of
at least two or more occasions for purposes

5 	No. 20060677
of the definition of course of conduct has
been met . . . .
. . . I am persuaded that [the Towners]
have borne the burden by a preponderance of
the evidence of establishing that they have
had reasonable basis of fearing or being
placed in emotional distress by the
confrontations initiated by [Mr. Ridgway].
Accordingly, I am continuing the
injunction . . . .
¶10 	Judge Lindberg thereafter entered an amended civil
stalking injunction against Mr. Ridgway for a period of three
years. 	This injunction enjoined Mr. Ridgway from stalking and
contacting, “directly or indirectly through any form of
communication including written, oral, or electronic means,”
Mr. Towner and his family. 	It also enjoined Mr. Ridgway from
placing himself within twenty feet of Mr. Towner and his family
at their home, places of work, the University of Utah College of
Law, and Republican Party meetings. 	Finally, paragraph four of
the injunction stated as follows: 	“Michael Ridgway is free to
post communications on electronic media so long as the posting
represents commentary on the substance of political positions
taken by Mr. Towner, otherwise, Mr. Ridgway is enjoined from
making comments directed at [Mr. Towner] or his family that are
designed to harass or annoy.”
¶11 	Mr. Ridgway filed a timely appeal. 	We have
jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002).
ANALYSIS
¶12 	Mr. Ridgway argues that we should vacate the stalking
injunction for two reasons. 	First, he argues that his conduct
does not constitute the crime of stalking. 	Second, he argues
that the injunction restrains his political speech and that its
content is therefore unauthorized by Utah law and
unconstitutional under the First Amendment to the United States
Constitution. 	We address each of these arguments in turn.
I. 	THE DISTRICT COURT MUST ENTER FINDINGS OF FACT REGARDING EACH
ELEMENT OF THE STALKING STATUTE BEFORE APPELLATE REVIEW IS
APPROPRIATE
¶13 	Utah Code section 77-3a-101 authorizes district courts
to issue ex parte civil stalking injunctions and provides that
“‘stalking’ means the crime of stalking as defined in Section 76-

1 Utah Code Ann. § 77-3a-101(1) (2003).
2 Id. § 76-5-106.5(2).
3 Id. § 76-5-106.5(2)(a).
No. 20060677 	6
5-106.5.” 1 Section 76-5-106.5 (the “stalking statute”), in turn,
defines “stalking” as follows:
A person is guilty of stalking who:
(a) intentionally or knowingly
engages in a course of conduct directed
at a specific person that would cause a
reasonable person:
(i) to fear bodily injury to
himself or a member of his
immediate family; or
(ii) to suffer emotional
distress to himself or a member of
his immediate family;
(b) has knowledge or should have
knowledge that the specific person:
(i) will be placed in
reasonable fear of bodily injury to
himself or a member of his
immediate family; or
(ii) will suffer emotional
distress or a member of his
immediate family will suffer
emotional distress; and
(c) whose conduct:
(i) induces fear in the
specific person of bodily injury to
himself or a member of his
immediate family; or
(ii) causes emotional distress
in the specific person or a member
of his immediate family. 2
¶14 	A district court must find that all three elements of
this statute are met in order to enter a civil stalking
injunction. 	First, the court must find that the alleged stalker
“intentionally or knowingly engage[d] in a course of conduct”
that would cause a reasonable person to fear bodily injury or
suffer emotional distress. 3 	Mr. Ridgway argues that “[i]mplicit
in the course of conduct requirement is proximity in time between
alleged stalking incidents and the absence of normal relations
between the victim and the alleged stalker in the interim.” 	We

4 Id. § 76-5-106.5(1)(c).
5 Id. § 76-5-106.5(2)(b).
6 Id. § 76-5-106.5(2)(c).
7 	No. 20060677
disagree. 	Utah Code section 76-5-106.5(1)(a) defines “course of
conduct” as “repeatedly maintaining a visual or physical
proximity to a person or repeatedly conveying verbal or written
threats or threats implied by conduct or a combination thereof
directed at or toward a person.” 	And “repeatedly” is defined as
“on two or more occasions.” 4 	The stalking statute does not speak
to the timing of the incidents nor does it suggest, explicitly or
implicitly, that the parties must maintain an adversarial
relationship between incidents. 	Thus, the two or more events
that constitute a course of conduct need not be proximate in
time, and intervening conciliatory gestures will not preclude a
court from finding a course of conduct.
¶15 	Second, the court must find that the accused stalker
had or should have had knowledge that the victim of his stalking
would fear bodily injury or suffer emotional distress. 5 	And
finally, the court must find that the victim actually feared
bodily injury or suffered emotional distress as a result of the
accused stalker’s conduct. 6
¶16 	In this case, we are unable to review the question of
whether Mr. Ridgway’s conduct met the elements of the statute
because the district court failed to make specific findings with
respect to each element of the stalking statute. 	Although the
court properly concluded that Mr. Ridgway’s actions constituted a
“course of conduct” because there were two or more incidents and
the length of time between incidents and intervening amicable
relations were of no import, the court did not make a finding as
to whether Mr. Ridgway “intentionally or knowingly” engaged in
this conduct. 	Moreover, the court made no findings with respect
to whether Mr. Ridgway knew or should have known that the Towners
would fear bodily injury or suffer emotional distress. 	And
although the court concluded that the Towners had a reasonable
basis for fearing Mr. Ridgway, it made no finding that they in
fact feared bodily injury or suffered emotional distress. 	In
order for us to engage in a meaningful review of a civil stalking
injunction, we must have findings on each element of the stalking
statute to review. 	We therefore remand this case to the district
court for an entry of those findings.

No. 20060677 	8
II. 	WE ACCEPT MR. TOWNER’S NARROW READING OF THE CIVIL STALKING
INJUNCTION AND CONSEQUENTLY CONCLUDE THAT IT DOES NOT RESTRAIN
MR. RIDGWAY’S POLITICAL SPEECH
¶17 	Mr. Ridgway also argues that we should vacate the
injunction because its content is unauthorized under Utah law and
violates the First Amendment to the United States Constitution.
Mr. Towner argues for a narrow interpretation of paragraph four
of the injunction and essentially concedes that the paragraph at
issue merely repeats another paragraph of the injunction. 	We
accept Mr. Towner’s concession.
¶18 	Utah Code section 77-3a-101(5) authorizes courts to
issue civil stalking injunctions with certain parameters. 	That
section reads as follows:
If the court determines that there is
reason to believe that an offense of stalking
has occurred, an ex parte civil stalking
injunction may be issued by the court that
includes any of the following:
(a) respondent may be enjoined from
committing stalking;
(b) respondent may be restrained from
coming near the residence, place of
employment, or school of the other party or
specifically designated locations or persons;
(c) respondent may be restrained from
contacting, directly or indirectly, the other
party, including personal, written or
telephone contact with the other party, the
other party’s employers, employees, fellow
workers or others with whom communication
would be likely to cause annoyance or alarm
to the other party; or
(d) any other relief necessary or
convenient for the protection of the
petitioner and other specifically designated
persons under the circumstances.
¶19 	Mr. Ridgway argues that the content of the fourth
paragraph of the civil stalking injunction does not fall within
the parameters authorized by this section. 	Paragraph four of the
stalking injunction reads as follows: 	“Michael Ridgway is free
to post communications on electronic media so long as the posting
represents commentary on the substance of political positions
taken by Mr. Towner, otherwise, Mr. Ridgway is enjoined from
making comments directed at [Mr. Towner] or his family that are

9 	No. 20060677
designed to harass or annoy.” 	Mr. Ridgway argues that section
77-3a-101(5) authorizes courts to enjoin stalkers from speaking
to certain people but does not authorize courts to enjoin them
from speaking on certain topics. 	But the injunction, he says,
prohibits him from making public comments on the Internet with
content that will “annoy” the Towners unless the comments are
made in response to political positions taken by Mr. Towner. 	In
addition, Mr. Ridgway argues that paragraph four is a content-
based restriction on his speech in violation of the First
Amendment to the United States Constitution. 	It does not
withstand strict scrutiny, he says, because the injunction does
not serve a compelling state interest and it is unclear what
constitutes “annoying” speech.
¶20 	Mr. Towner argues that Mr. Ridgway misconstrues the
injunction. 	Mr. Towner explains paragraph four as follows:
[T]his provision only enjoins Mr.
Ridgway from making comments to the Towners
or making comments that are directed to the
Towners, that are designed to “harass or
annoy” the Towners. 	The injunction does not
make it a criminal offense for Mr. Ridgway to
make comments about the Towners to other
people, unless the comments are designed to
reach the Towners because the comments are
directed to the Towners, causing further
harassment.
We view Mr. Towner’s explanation as a concession that paragraph
four merely repeats paragraph three of the injunction, which
enjoins Mr. Ridgway “from contacting [Mr.] Towner, directly or
indirectly through any form of communication including written,
oral, or electronic means” and restrains him from contacting Mr.
Towner’s family members through any of these means. 	Both
paragraphs three and four therefore preclude communications from
Mr. Ridgway to the Towners, not communications by Mr. Ridgway
about the Towners to others. 	These restrictions are well within
the scope of Utah Code section 77-3a-101(5) and do not violate
the First Amendment.
CONCLUSION
¶21 	We remand this case to the district court for an entry
of factual findings on each element of the stalking statute.
While we accept Mr. Towner’s narrow reading of the fourth
paragraph of the injunction and therefore find that the content
of the injunction is authorized by Utah law and does not violate

No. 20060677 	10
the First Amendment to the United States Constitution, we cannot,
without the requisite findings by the district court, engage in a
meaningful review of whether Mr. Ridgway’s conduct constituted
stalking and whether the injunction was appropriate.
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¶22 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.