Settlement Memorandum 2

8/10/2019 Settlement Memorandum 2

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FOSTER A.GLASS ATTORNEY AT LAW

339 SW Century Drive, Suite 201 Bend, Oregon 97702Telephone (541) 317-0703 Fax (541) 317-0736 e-mail: [email protected]

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Page 1 - RESPONDENTS SETTLEMENT MEMORANDUM

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF DESCHUTES

Kasey Hughes and Joseph Patnode,

Petitioners,

v.

Robert B. Foster,

Respondent.

No. 10ST0027MS and 10ST0028MS

RESPONDENTS SETTLEMENTMEMORANDUM

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.


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Sunriver is constructed of a series of circular areas. Often times Robert Fosters

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

forth to the same area in a single day.

For 18 years, prior to the creation of the new service district, Sunriver P.D. had beenin the practice of enforcing the entire Oregon Vehicle Code based on the understanding that

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

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

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

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

open to the public.

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

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

police officers ability to enforce traffic laws on Sunriver.

This case arises because the Sunriver police have been offended by Bob Fosters

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

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

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

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

has ever shown that Bob Foster interfered with a police officers duties. If the police thought

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

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

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

occasionally view police conduct without interfering with police procedures.

PRESENT STATUS OF CASE:

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

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


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

synopsis of that information is as follows:

1. Index A-N, alleged facts/reports.

2. Index O references Feb. 20, 2010 at the Country Store parking lot, and March 5,2010 - First Stalking Petition filed by Patnode and Hughes, first hearing challenging

temporary stalking order, postponed March 5, 2010.

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

March 19, 2010, when Petitioners attorneys Addendum to Petition for Stalking Order.,

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

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

afraid that serous personal violence or physical harm would happen to

you very soon?

The Respondents expressive comments have not yet reached the point of

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

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

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

On Nov. 28, 2005 (when the officers stopped Respondents son).

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

in front of his sons truck. Respondent got out of his truck, visibly angry,

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

snow shovel from his sons truck and began walking toward Officer Hughes.

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

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

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

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

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


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

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

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

judge other than that Respondent was exhibiting angry and threatening behavior with aweapon (to wit: a shovel) toward the police officers. In fact, by taking the information out of

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

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

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

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

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

events, in pertinent part:

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

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

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

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

him). See Petitioners detailed statement infra.

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

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

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

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

front of his sons vehicle (police car parked behind sons vehicle), grabbing a snow

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

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

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

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


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

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

police.

D. 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.

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

fell and was asked to leave,he then walked back to his sons truck, grabbed a

snow shovel from the back of his sons truck and walked back around toward me...

The officer claimshe gave the command to stop, turn around and leave...Foster

stopped approximately twenty feet from me and said, youre a public servant, Im your

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

Foster say, now its your turn. Foster continued to say this as I drove away. Again,

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

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

the police report version, Foster obtained the snow shovel from the back of his sons

truck and walked back toward me...stopped 20 feet from me and said, youre a

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

have walked and still be twenty feet from the officer?

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

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

[his]patrol car and drove away.

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

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

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

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

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


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

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

Petitioners are aware of this incident.

Furthermore, see Petition section in the outline under the heading Points ofLaw and Fact, Infra, for the legal requirement that a person who has not experienced

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

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

incorrect again.

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

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

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

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

constitute a basis for a stalking order.

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

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

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

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

violate the order.

B. September 12, 2010 - second arrest alleged stalking order violation

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

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

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

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

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


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C. May 5, 2011 - third arrest Restaurant. See white binder for explanation and

diagrams Stalking Order

POINTS OF LAW AND FACT REGARDING BASIS FOR A STALKING ORDER

VIOLATION according to the forms provided by the court to qualify for a stalkingprotective order:

! The Respondent must have intentionally knowingly, or recklessly engaged in

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

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

days.

! It is reasonable for you to feel alarmed or coerced.

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

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

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

safetyis not unlike similar provisions and requisites of a family abuse, imminent danger of

abuse examination under ORS 107.7181.

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

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

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

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

which makes a showing that

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

present case), and

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

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

which imposes criminal liability on a respondent who possesses or uses

firearms or ammunition while subject to a protective restraining order


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Officer Hughes asserts his wife was concerned for her safety after the officers1

(incorrectly) assumed Robert Foster was following him home. Note that the statute does notprovide for the protection for a wife or some third person who has not reasonably been subjectedto a credible threat of imminent danger within the past 180 days prior to the issuance of astalking order. In fact the clear language of the statute is that the mandatory arrest provisions ofORS 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 afinding which is in violation of Article 1 Sec. 9 of the Oregon Constitution and the 14 th

Amendment to the US Constitution, which mandates due process based upon provisions of law.

InBoldt v. Boldt, 155 OR App 244, 248, 963 P2d 719 (1998) the court required the2

petitioner to meet the burden of proof with clear and convincing evidence, which resulted in thelegislature modifying the statute to require a showing of a preponderance of evidence.


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

adduced at hearing met this necessary requirement. Pursuant to ORS

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

the respondent has recently threatened the petition with additional bodilyharm. To qualify for a restraining order (not unlike a stalking order) the

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

physical

safety of the petitioner or petitioners child. ORS 107.718(1). These provisions1

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

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

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

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

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

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

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

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

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

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


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Mediator: Wood v. WhiteandKlugh v. United States.

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

that the lower courts judgment was void and subject to attack by the

husband after the time for appeal had passed where the court exceeded itspower. See case notes 11 and 13 of Garner, supra.

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 actionthereof is void because of its want of jurisdiction, and consequently itsproceedings may be questioned collaterally as well as directly. They are ofno more value than as though they did not exist. But in cases where the courthas undoubted jurisdiction of the subject-matter and of the parties, the actionof the trial court, though involving an erroneous exercise of jurisdiction ifappealed from. It may not be called in question collaterally.Bank & TrustCo.v. Frederick, 271 Mich. 538, 544-45, 260 N.W. 908, 909 (1935).

The distinction in the present case is that the Court never acquired the facts

necessary to exercise jurisdiction.

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

Note [12, 13] states that:

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

In the present matter Respondent asserts that the Court, in entering the order

acted in a manner inconsistent with due process;and thereby issued a void

judgment by entering a restraining order without the requisite statutory

jurisdiction to do so - lack of a factual basis of proof of coercion or reasonable

basis for reasonable threat to physical safety, when the petitioner shows by a

preponderance of evidence that respondent represents a credible threat to the

physical safety of the petitioner or the petitioners family. Any basis for

entry of the order, based upon the petition, would be obtained only by false

statement. The actual police report does not establish a threat to physical


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safety.. As a result Defendants due process rights were violated under the

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

possess arms under the 2 Amendment to the US Constitution was violated asnd

he was made subject to criminal liability if he possessed a firearm orammunition while subject to the restraining order (18 USC 922 (d) (8), (g)

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

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

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

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

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

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

Respondents constitutional rights to due process.

ALLEGED OFFENSES CITED BY PATNODE AND HUGHES

See White Binder provided

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

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

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

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

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

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

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

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

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

Fosters license and was behaving in a threatening manner. He stated that he and

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

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


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threatened or touched Brock.

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

(Ex. 12 - police report).

!

Officers Patnode and Hughes conducted a traffic stop of Ben Foster, Robert Fostersson. The officers claimed that Robert Foster accelerated, parked in front of his sons

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

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

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

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

sons pickup and began walking toward Hughes. Hughes claims he yelled at Robert

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

comment to Hughes, (Youre a public servant, Im your boss), and then walked

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

Robert Foster yelled now its your turn.

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

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

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

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

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

said something back to Hughes like, Youre a smart ass punk. He asked his son-in-

law, Ian (who was the passenger in his sons pickup) Is this all under control? and

Ian responded, Yes. Robert Foster says he then got a snow shovel out of hispickup

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

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

say Now its your turn.

! This alleged incident has been discussed in detail above. There are many


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

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

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

threatened to strike or harm anyone. The petitioners perjured statements attempt tosuggest a basis of possible danger, and no statement of fear is made.

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

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

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

report any threatening conduct.

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

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

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

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

all, are occasioned by Respondents proximity to his business and the 500 houses his

company services in Sunriver.

DATED July 10, 2011.

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

Documents

Settlement Memorandum 2