Ronan v. Gamache, 22-ST-00891

• Docket Nº: 22-ST-00891
• Citation: 2022 Vt Super 1013 05
• Case Date: October 13, 2022
• Court: Superior Court of Vermont

2022 Vt Super 1013 05

Lauren Ronan
v.
Justin Gamache

No. 22-ST-00891

Superior Court of Vermont, Civil Division, Benninnton Unit

October 13, 2022

FINDINGS AND ORDER

John W.Valente Superior Court Judge.

This is an action brought pursuant to the civil stalking statute.^[1]

Plaintiff seeks a protective order against Defendant. Plaintiff contends Defendant's actions constitute stalking pursuant to the statute.

Defendant opposes the petition. Defendant contends he did not "threaten" Plaintiff and any communication with Plaintiff is constitutionally protected speech.

Following a hearing, Plaintiffs complaint for protective relief is denied for the reasons set forth herein.

Facts

The following facts are found by a preponderance of evidence standard:^[2]

Plaintiff is a law enforcement officer. Defendant is a member of the public. Plaintiff had work contact with Defendant in 2013. Plaintiff and Defendant are not household members.

Defendant began to contact Plaintiff in writing in 2013. Defendant sent approximately 625 emails over the following nine-year period that were either directly to or copied Plaintiff. There were periods of time during those nine years when no emails were sent. There were periods of time where emails were sent frequently. The email communications indicated, among other things: Defendant was going to sue Plaintiff; Defendant believed Plaintiff to be a liar; Defendant alleged Plaintiff engaged in inappropriate conduct; Defendant was going to place a lien on Plaintiffs property; and Defendant blamed Plaintiff for his father's death. Defendant's communications did not contain any threat of physical violence. In a "YouTube" recording embedded in a recent communication Defendant made several statements in what was described as a rambling manner, including using profanity towards Plaintiff. Email communication escalated over the past several months prior to the petitions filing.

On August 11, 2022, between the hour of 11pm and midnight Defendant called the residence where Plaintiff resides. Defendant did not speak to Plaintiff but spoke to a person who answered the phone. The conversation was quick. Defendant did not physically threaten Plaintiff in the conversation.

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Defendant attempted to contact Plaintiff one other time by phone prior to August 11, 2022. Defendant did not speak with Plaintiff at that time.

Defendant sent a certified letter to Plaintiff at Plaintiff's residence regarding a civil lawsuit Defendant brought against Plaintiff.

In 2013 Plaintiff told Defendant the process for filing a complaint against her. That is the last time Plaintiff contacted Defendant. Plaintiff recently blocked Defendant's email. Defendant, to date, took no steps to otherwise contact Plaintiff through the blocked email.

Plaintiff is in fear for her physical safety.^[3] Plaintiff fears Defendant will come to her home. Plaintiff believes Defendant may appear at her family's home. Given the recent escalation of communication, Plaintiff wears a weapon while engaging in actions outside her home such as moving her lawn.

Analysis

In Vermont, if a defendant has stalked a plaintiff the court shall issue an order of protection. 12 V.S.A. § 5133(d).

Stalking in the civil stalking statute means "to engage purposefully in a course of conduct, [two or more acts over a period of time,] directed at a specific person that the person engaging in the conduct knows or should know would cause a reasonable person to: (A) fear for [their] safety or the safety of a family member; or (B) suffer substantial emotional distress ...." 12 V.S.A. § 5131(6); Beatty v. Keough, 2022 VT 41, ¶ 7; see also 12 V.S.A. § 5131(1)(A). A "[c]ourse of conduct" means "two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person's property." 12 V.S.A. § 5131(1)(A); Tarbell v. Tarbell, No. 2020-243, slip op. at 2 (Vt. Jan. 8, 2021)(unpublished mem). The definition applies to acts conducted "directly or indirectly" and "by any action, method, device, or means," but cannot include constitutionally protected activity. 12 V.S.A. § 5131(1)(A).

The determination of whether Defendant monitored, followed, or surveilled Plaintiff is straightforward on the facts of this case.

Following is an act of encountering another and proceeding after them for a distance. Tarbell v. Tarbell, No. 2020-243, slip op. at 2-3 (Vt. Jan. 8, 2021)(unpublished mem) (Three justice decision is not precedent but is instructive).

The facts do not support that Defendant followed Plaintiff.

Monitoring is the act of watching, or acting to "keep track of, or check usually for a special purpose." Hinkson v. Stevens, 2020 VT 69, ¶ 38 (quoting Monitor, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/monitor [https://perma.cc/6623-C45C]); State v. Elliott, 2010 ME 3, ¶ 36, 987 A.2d 513 ("[M]onitor ... means to watch, observe, or check esp. for a special

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purpose" (quotation omitted)). This definition is consistent with several of the definitions in the American Heritage College Dictionary: "[t]o keep track of systematically with a view to collecting information," "[t]o test or sample on a regular or ongoing basis," or "[t]o keep close watch over; supervise." Monitor, American Heritage College Dictionary 881 (3d. ed. 1993).

Monitoring, therefore, involves tracking or collecting some form of information about the person being monitored or their activities. Hinkson v. Stevens, 2020 VT 69, ¶ 39. (For example, calling a landline for the purpose of determining whether someone is home could constitute monitoring under 12 V.S.A. § 5131(1)(A). Hinkson v. Stevens, 2020 VT 69, ¶ 39(Monitoring can be achieved "by any action, method, device, or means" quoting 12 V.S.A. § 5131(1)(A)).

The facts support Defendant wrote letters and emails to Plaintiff and called the Plaintiff twice in recent months. However, the facts do not support these specific acts were monitoring.^[4]

Surveilling has a clear, plain meaning. Scheffler v. Harrington, 2020 VT 93, ¶ 10-11, (Honking a horn while unintentionally driving past plaintiff's house, not knowing if plaintiff was there, is not surveilling). The plain meaning of surveillance requires, at a minimum, the intent to closely watch or carefully observe a person or place. Surveillance is close watching or careful observation, not the sending of a message. Scheffler v. Harrington, 2020 VT 93, ¶ 12.^[5]

The facts do not support that Defendant surveilled Plaintiff.

While...