This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 56

IN THE

SUPREME COURT OF THE STATE OF UTAH

KRISTI RAGSDALE,

Appellant/Cross-appellee,

v.

GEORGE FISHLER,

Appellee/Cross-appellant.

No. 20180993

Heard April 10, 2020

Filed August 5, 2020

On Direct Appeal

Third District, Salt Lake

The Honorable Amber M. Mettler

No. 170903926

Attorneys:

Stacy J. McNeill, James C. Dunkelberger, Salt Lake City,

for appellant/cross-appellee

Karthik Nadesan, Salt Lake City, for appellee/cross-appellant

CHIEF JUSTICE DURRANT authored the opinion of the Court, in 

which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE,

JUSTICE PETERSEN, and JUDGE HAGEN joined.

Having recused himself, JUSTICE HIMONAS does not 

participate herein;

COURT OF APPEALS JUDGE DIANA HAGEN sat.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 Kristi Ragsdale runs Eva Carlton Academy (ECA), a 

residential treatment program for young women, out of her home 

in a Salt Lake City suburb. Her neighbor, George Fishler, strongly 
RAGSDALE v. FISHLER

Opinion of the Court 

2

objects to ECA’s presence in his neighborhood. He expresses this 

objection by placing provocative signs in his yard, and by flipping 

off and swearing at Ms. Ragsdale and others entering or exiting 

ECA. In response to this behavior, Ms. Ragsdale sought a civil 

stalking injunction against Mr. Fishler. The district court denied 

both this injunction and Mr. Fishler’s request for attorney fees. Both 

parties now appeal.

¶2 On appeal, Ms. Ragsdale raises three issues. First, she 

claims the district court erred in concluding that Mr. Fishler did not 

stalk her, because he directed his conduct toward ECA as a 

business. We reverse and remand on this issue because, in ruling 

that Mr. Fishler’s conduct was ultimately directed at ECA, the 

district court misinterpreted the stalking statute.

¶3 Second, Ms. Ragsdale claims the district court erred in 

concluding that Mr. Fishler did not stalk her based on its finding 

that Mr. Fishler’s conduct would not cause a reasonable person to 

suffer fear or emotional distress. We reverse and remand on this 

issue as well. The district court failed to assess the impact of 

Mr. Fishler’s conduct on a reasonable person in Ms. Ragsdale’s 

circumstances.

¶4 Third, Ms. Ragsdale argues that the district court 

improperly denied her injunction on the grounds that the First 

Amendment protects Mr. Fishler’s conduct. We reverse and 

remand here, too, because the district court applied an incorrect 

First Amendment analysis.

¶5 Fourth, on cross-appeal, Mr. Fishler argues that the district 

court erred in denying his attorney-fees request. Because our 

reversal of the first three issues may affect the basis for the district 

court’s attorney-fees decision, we vacate that decision and remand 

for a new determination.

Background

¶6 Ms. Ragsdale is the founder and executive director of the 

Eva Carlston Academy, an inpatient treatment facility for young 

women recovering from severe depression and anxiety. She 

operates ECA from her private residence, which is located at the 

end of a cul-de-sac in a Salt Lake City suburb. When she launched 

ECA in 2013, some neighbors feared it would increase noise and

traffic in the neighborhood. Several neighbors distributed flyers 

and petitioned their local community council in an attempt to stop 

ECA from opening. But they were ultimately unsuccessful.
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Opinion of the Court 

3

¶7 George Fishler was one of these neighbors. He owns the 

home directly south of ECA. After his initial efforts to stop ECA 

failed, he began protesting the facility directly. To that end, he put 

two sets of signs in his yard, one reading “TROUBLED TEEN 

MONEY MACHINE BECOME DISABLED FOR ONLY 

$10,000/MONTH” and the other reading “DELIVER US FROM 

EVA.” He pointed one set toward the street and the other toward 

ECA. He also began flipping off and swearing at employees, clients, 

and anyone else involved with ECA.

¶8 This behavior continued for the next four years. 

Throughout this period, Ms. Ragsdale claims Mr. Fishler would 

flip her off whenever she left her home. She also claims that over 

time, he became more assertive, coming out of his garage to say 

things like “fuck you,” “fuck off,” or “go fuck yourself,” or waiting 

in his car to accost Ms. Ragsdale as she left her home. Ms. Ragsdale 

also claims Mr. Fishler would call her and the young women 

staying at ECA “fucking bitches,” “little bitches,” “little assholes,” 

and would tell them to “run away, little assholes.” Many of these 

interactions happened when Ms. Ragsdale was the only person in 

Mr. Fishler’s presence. And on several occasions, Mr. Fishler’s 

conduct prompted Ms. Ragsdale to call the police.

¶9 In June 2017, Ms. Ragsdale sought a civil stalking 

injunction against Mr. Fishler under Utah Code 

section 77-3a-101(2) (2017).

1 The district court issued an ex parte 

injunction on June 19, 2017. Mr. Fishler then requested an 

evidentiary hearing under Utah Code section 77-3a-101(6) (2017), 

which the district court held on July 27 and August 2, 2017.

¶10 At this hearing, Ms. Ragsdale testified about Mr. Fishler’s 

conduct and the emotional distress she experienced as a result. She 

testified that she suffered anxiety, sleeplessness, and nausea, and 

installed automatic locks on ECA’s doors out of fear of Mr. Fishler. 

In response, Mr. Fishler argued that his conduct amounted to a 

peaceful protest against ECA. This protest, he claimed, did not 

meet the statutory definition of stalking and was protected by the 

First Amendment.

__________________________________________________________

1 The Utah Legislature amended and renumbered this statute 

during its 2020 general session. See H.B. 403, 63d Leg. 2020 Gen. 

Sess. (Utah 2020); UTAH CODE § 78B-7-701. “We refer to the version 

of the statute in effect at the time of the [events in question].” State 

v. Bridgewaters, 2020 UT 32, ¶ 2 n.1, 466 P.3d 204.
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Opinion of the Court 

4

¶11 Ms. Ragsdale also requested that the district court expand 

its ex parte injunction. In so doing, she submitted a proposed 

injunction with four distinct provisions. The first was a “Personal 

Conduct Order” barring Mr. Fishler from conduct that meets the 

legal definition of stalking. The second was a “No Contact Order” 

preventing Mr. Fishler from contacting Ms. Ragsdale, her 

coworkers, and her clients as they entered or exited ECA. The third 

was a “Stay Away Order” directing Mr. Fishler to stay away from 

ECA. And the fourth was a form of miscellaneous relief, titled 

“Other Orders,” requiring Mr. Fishler to take down his derogatory 

yard signs.

¶12 Following the hearing, the district court denied 

Ms. Ragsdale’s request for a permanent injunction. It held that even 

though Mr. Fishler’s conduct was “offensive, upsetting, rude[,]”

and “abhorrent,” it did not constitute stalking. According to the 

district court, Mr. Fishler did not direct his conduct at Ms. Ragsdale

but toward ECA as a business. And even if he had, the district court 

held, his conduct would not cause a reasonable person in 

Ms. Ragsdale’s circumstances to suffer fear or emotional distress. 

“In this day and age,” explained the district court, “exposure to 

pejorative gestures and profanity should not cause the type of 

significant mental or emotional distress envisioned by the 

[stalking] statute.” The district court also denied Ms. Ragsdale’s 

injunction on the grounds that Mr. Fishler’s conduct was protected 

by the First Amendment.

¶13 Afterwards, Mr. Fishler moved for attorney fees under the 

civil stalking statute. In between the evidentiary hearing and this 

motion, the judge who denied Ms. Ragsdale’s injunction retired, 

and a new judge was assigned to rule on Mr. Fishler’s fee request. 

This new judge noted she was “at somewhat of a disadvantage” in 

ruling on Mr. Fishler’s motion, because she did not preside over the 

evidentiary hearing and was making her decision from a “cold 

record.” After oral argument, the district court denied this request, 

finding that the equities weighed in favor of denial because the case 

had been “fact-sensitive,” “complicated,” and did not lack “all 

merit.”

¶14 Both parties now appeal. We exercise jurisdiction under 

Utah Code section 78A-3-102(3)(j).

Standards of Review

¶15 The parties raise four issues on appeal. First, we must 

decide whether the district court erred in concluding that 
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Opinion of the Court 

5

Mr. Fishler did not direct his conduct at Ms. Ragsdale. We review 

this conclusion for correctness.2

¶16 Second, we must decide whether the district court erred in 

finding that Mr. Fishler’s conduct would not cause a reasonable 

person to suffer fear or emotional distress. Although this is a 

question of fact that we review for clear error, we review the district 

court’s interpretation of the underlying legal standard for 

correctness.3

¶17 Third, we must determine whether the district court 

incorrectly denied Ms. Ragsdale’s injunction on the grounds that 

the First Amendment of the United States Constitution protects 

Mr. Fishler’s conduct. We review the interpretation of the federal 

constitution for correctness.4

¶18 Finally, we must decide if the district court erred in 

denying Mr. Fishler’s motion for attorney fees. When a statute 

“grants discretion to [district] courts to assess attorney fees, if 

appropriate, after considering the facts of the case,” we review that 

assessment for abuse of discretion.5

Analysis

¶19 This case presents four issues. Ms. Ragsdale raises three in 

her direct appeal and Mr. Fishler raises one on cross-appeal.

¶20 First, Ms. Ragsdale claims the district court erred in 

concluding that Mr. Fishler’s conduct was not “directed at” her, but 

__________________________________________________________

2 Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (“The proper 

interpretation and application of [the civil stalking] statute is a 

question of law which we review for correctness.” (citation 

omitted) (internal quotation marks omitted)).

3 See id. ¶¶ 22–32 (reversing the use of an incorrect standard on 

this issue and remanding for application of the correct standard).

4 Buschco v. Utah State Tax Comm’n, 2009 UT 73, ¶ 8, 225 P.3d 153.

5 Paul deGroot Bldg. Servs., L.L.C. v. Gallacher, 2005 UT 20, ¶ 18, 

112 P.3d 490; see also Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276 

(“The decision of whether to award attorney fees pursuant to 

section 30-3-3 of the Utah Code rests in the sound discretion of the 

district court. As such, we review the district court’s award or 

denial of fees for abuse of discretion.”).
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Opinion of the Court 

6

toward ECA as a business.6 We agree. The district court based its 

conclusion on a misunderstanding of the stalking statute. So we 

reverse and remand for application of the correct standard.

¶21 Second, Ms. Ragsdale claims the district court erred in 

concluding that Mr. Fishler’s conduct would not cause a reasonable 

person to suffer fear or emotional distress. Again, we agree. The 

district court did not properly assess the impact of Mr. Fishler’s 

conduct on a reasonable person in Ms. Ragsdale’s circumstances. 

So we reverse and remand on this issue as well.

¶22 Third, Ms. Ragsdale claims the district court incorrectly 

denied her injunction on the grounds that Mr. Fishler’s conduct is 

“political speech” protected by the First Amendment. We reverse 

here as well. Although Mr. Fishler is entitled to the protection of 

the First Amendment, that protection does not exempt him from 

being enjoined from conduct that meets the definition of stalking. 

So we remand with instructions for the district court to conduct a 

new First Amendment analysis consistent with this opinion. 

¶23 Finally, Mr. Fishler argues that the district court erred in 

denying his motion for attorney fees under the civil stalking 

statute. Because we reverse on the other three issues, we vacate the 

district court’s attorney-fees decision and remand for a new ruling. 

In so doing, we clarify the standard for awarding fees under the 

civil stalking statute.

I. The District Court Erred In Concluding That Mr. Fishler 

Did Not Direct His Conduct At Ms. Ragsdale

¶24 Ms. Ragsdale claims the district court erred in concluding 

that Mr. Fishler’s conduct was not “directed at” her, but toward 

ECA as a business. We agree. The district court erred in concluding 

that because Mr. Fishler claimed to subjectively target only ECA, 

he did not direct his conduct at Ms. Ragsdale. So we reverse and 

remand. On remand, the district court must identify the alleged 

instances of conduct directed at Ms. Ragsdale and determine 

whether any, some, or all of those instances contributed to a course 

of conduct prohibited by the stalking statute.

¶25 Under Utah’s civil stalking statute, a person “who believes 

that he or she is the victim of stalking” may obtain an injunction 

__________________________________________________________

6 UTAH CODE § 76-5-106.5(2).
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Opinion of the Court 

7

against an alleged stalker.7 To do so, that person must prove by a 

preponderance of the evidence that “an offense of stalking has 

occurred.”8 The crime of stalking consists of two elements. First, a 

person must “intentionally or knowingly engage[] in a course of 

conduct directed at a specific person.”9 Second, that person must 

“know[] or should know that the course of conduct would cause a 

reasonable person” to “fear for the person’s own safety” or “suffer 

other emotional distress.”10 A district court may enjoin an alleged 

stalker only if both elements are met.11

¶26 According to the district court, Ms. Ragsdale did not prove 

that Mr. Fishler “engaged in a course of conduct directed 

specifically towards her.” Instead, the district court concluded that

Mr. Fishler’s conduct “was directed towards ECA as a business and 

therefore not targeted towards [Ms.] Ragsdale.” In other words, 

because Mr. Fishler’s conduct “was directed towards anyone he 

believed to be associated with ECA, including [Ms.] Ragsdale,” it 

was not specifically directed at Ms. Ragsdale.

¶27 Ms. Ragsdale disputes this conclusion. She argues that, 

under the plain meaning of the phrase “directed at,” Mr. Fishler 

directed his conduct at her by “repeatedly communicat[ing] 

obscenities to [her] individually—often when they were the only 

two around.” She also claims the district court “improperly 

considered” the fact that Mr. Fishler subjectively intended to direct 

his conduct at ECA.

¶28 In response, Mr. Fishler argues that the criminal stalking 

statute “unambiguously requires a petitioner to establish that the 

respondent . . . intentionally engaged in a course of conduct whose 

ultimate target was the petitioner.” According to Mr. Fishler, this is 

because “an act may be ‘directed’ at a specific person”—in this case, 

ECA—even if that person is “not the recipient [of] or directly 

exposed to the act.”

__________________________________________________________

7 UTAH CODE § 77-3a-101(2) (2017), amended by UTAH CODE

§ 78B-7-701.

8

Id. § 77-3a-101(7) (2017).

9

Id. § 76-5-106.5(2).

10 Id.

11 Ellison v. Stam, 2006 UT App 150, ¶ 20, 136 P.2d 1242.
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Opinion of the Court 

8

¶29 When interpreting a statute, our “primary goal” is to 

ascertain the legislature’s intent, the “best evidence” of which is 

“the plain language of the statute itself.”12 And when reading a 

statute’s plain language, we presume “the legislature used each 

term advisedly according to its ordinary and usually accepted 

meaning.”13 “Indeed, we will not infer substantive terms into the 

text that are not already there . . . and [we have] no power to 

rewrite the statute to conform to an intention not expressed.”14

¶30 To obtain a civil stalking injunction, a petitioner must first 

prove that the respondent “intentionally . . . engage[d] in a course 

of conduct directed at [the petitioner].”15 The statute defines 

“course of conduct” as “two or more acts directed at or toward a 

[petitioner].”16 The types of acts contemplated include those where 

“the [respondent] follows, monitors, observes, photographs, 

surveils, threatens, or communicates to or about” a petitioner, 

whether “directly, indirectly, or through any third party.”17 They 

also include instances where the respondent “approaches or 

confronts” a petitioner, appears at the petitioner’s workplace or 

residence, or contacts the petitioner’s employer or coworkers.18

¶31 But nothing in the statute defines the term “directed at.” 

Nor does it expressly indicate that the petitioner must be the 

“ultimate target” of a respondent’s course of conduct. To the 

contrary, under the statute’s plain language, a respondent directs 

conduct at a petitioner by engaging in behavior contemplated by 

the statute two or more times. In other words, if a respondent 

follows, threatens, or communicates to a petitioner only once, he or 

she has not engaged in a course of conduct. But if a respondent 

follows, threatens, or communicates to the petitioner on two or 

__________________________________________________________

12 State v. Badikyan, 2020 UT 3, ¶ 27, 459 P.3d 967 (citations

omitted).

13 Id. (citation omitted) (internal quotation marks omitted).

14 Assoc. Gen. Contractors v. Bd. of Oil, Gas and Mining, 2001 UT 

112, ¶ 30, 38 P.3d 291 (alteration in original) (citation omitted) 

(internal quotation marks omitted).

15 UTAH CODE § 76-5-106.5(2).

16 Id. § 76-5-106.5(1)(a).

17 Id. § 76-5-106.5(1)(a)(i).

18 Id. § 76-5-106.5(1)(a)(ii).
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Opinion of the Court 

9

more occasions, he or she engages in a course of conduct directed 

at the petitioner.

¶32 So, regardless of whether a petitioner is a respondent’s 

ultimate target, the fact that the respondent engaged in any act 

proscribed by the statute two or more times makes his or her 

conduct “directed at” the petitioner. To hold otherwise—and 

require that a petitioner be the respondent’s subjectively-intended 

ultimate target—would infer a substantive term into the statute not 

supported by its plain language.

¶33 Mr. Fishler fails to cite any authority to the contrary. He 

argues that two cases from our court of appeals support his 

alternate reading of the statute. But neither case supports the 

proposition that a petitioner must prove he or she was a 

respondent’s “ultimate”—i.e., subjectively intended—target.

¶34 In the first case, State v. Miller, the court of appeals 

considered whether a criminal defendant violated a stalking 

injunction by sending disparaging emails about his victim to an 

attorney representing the victim’s employer.19 Although the 

defendant did not subjectively intend for these emails to reach the 

victim, the court still held that his actions fell “squarely within” the 

criminal stalking statute’s ambit.20 As the court explained, the 

statute “does not require that the perpetrator intend for his [or her] 

message to reach the victim.”21 Mr. Fishler argues that under Miller, 

an act may be directed at a petitioner even if he or she is “not the 

recipient or directly exposed to the act.” He claims that 

Ms. Ragsdale is like the employer in Miller—someone who was 

“exposed” to his conduct, but not the person to whom his conduct 

was directed.

¶35 According to Mr. Fishler, the second case, Carson v. 

Barnes,

22 also supports his argument that a person “exposed” to a 

respondent’s conduct is not always the respondent’s ultimate 

target. There, a business owner sought an injunction after his 

landlord pulled a gun on two of his consultants and followed him 

__________________________________________________________

19 2019 UT App 46, ¶¶ 21, 24, 440 P.3d 868.

20 Id. ¶ 21.

21 Id. ¶ 20.

22 2016 UT App 214, 385 P.3d 744.
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Opinion of the Court 

10

in his car on two separate occasions.23 The landlord claimed that 

pulling a gun on the consultants was not an act “directed at” the 

business owner, because the owner was not present when it 

happened.24 The court of appeals disagreed. It explained that to 

constitute stalking, conduct “need not be direct, and it includes 

situations in which the actor comes to the ‘person’s workplace’ or 

‘contacts the person’s . . . coworkers,’ without requiring the 

presence of the victim.”25

¶36 But neither Miller nor Carson stand for what Mr. Fishler 

claims. It is true that under both cases, a respondent may direct his 

or her conduct at someone indirectly or through a third person. But 

this does not mean that a petitioner must prove that he or she was 

a respondent’s ultimate target. According to the Miller court, the 

fact that the defendant did not intend for his message to reach the 

victim was irrelevant.26 Rather, the key inquiry was whether the 

defendant engaged in statutorily prohibited conduct. Likewise, 

Carson did not turn on whether the business owner or the 

consultants were the landlord’s ultimate target.27 What mattered 

was that the landlord engaged in statutorily prohibited conduct on 

multiple occasions.

¶37 So, to obtain a stalking injunction, a petitioner need not 

prove that he or she was a respondent’s ultimate target. Rather, 

under the plain language of the stalking statute, a petitioner must 

instead prove that the respondent engaged in statutorily 

proscribed conduct on two or more occasions. In other words, the 

person toward whom a respondent’s behavior is “directed at” is 

not necessarily determined by his or her subjective intent. Instead, 

it is determined by an objective assessment of whether the 

respondent engaged in conduct prohibited by the stalking statute. 

And this is true even where a respondent directs his or her conduct 

at a petitioner “indirectly or through [a] third party.”

¶38 In addition, accepting Mr. Fishler’s argument would risk 

reading into the criminal stalking statute a defense that its plain 

__________________________________________________________

23 Id. ¶¶ 5–9.

24 Id. ¶¶ 14, 18.

25 Id. ¶ 17 (quoting UTAH CODE § 76-5-106.5(1)(b)) (alteration in 

original).

26 See Miller, 2019 UT App 46, ¶¶ 20–21.

27 See Carson, 2016 UT App 214, ¶¶ 17–18.
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Opinion of the Court 

11

language does not support. The statute does not allow a respondent 

to escape the consequences of his or her actions by claiming that 

the petitioner was merely an intermediary for conduct directed at 

a third party. For example, assume the landlord in Carson

brandished his gun at the consultants on two separate occasions. If 

the consultants sought an injunction against the landlord, the 

landlord could not raise as a defense the fact that the business 

owner was his ultimate target. Instead, both the consultants and the 

business owner would have grounds to obtain an injunction 

against the landlord.

¶39 The same is true here. The fact that ECA was allegedly 

Mr. Fishler’s ultimate target does not shield him from the fact that 

he flipped off and communicated obscenities directly to 

Ms. Ragsdale on two or more occasions. It simply means ECA 

could potentially obtain an injunction against him as well.28

¶40 Accordingly, when assessing whether a respondent has 

engaged in stalking, district courts should determine if the 

respondent objectively engaged in statutorily proscribed conduct, 

rather than asking whether the petitioner was the respondent’s 

subjectively intended target. This analysis requires a two-tiered 

approach. First, district courts should identify each alleged instance 

of conduct directed at the petitioner individually and then 

determine whether it falls within the range of conduct prohibited 

by the stalking statute. Second, if the respondent has allegedly 

directed conduct at a petitioner indirectly or through a third party, 

district courts should separately determine if the stalking statute 

also prohibits that conduct.

__________________________________________________________

28 But this does not mean that every person flipped off and 

sworn at two or more times by the same individual is entitled to a 

stalking injunction. In such situations, stalking petitioners must 

still prove that such behavior would cause a reasonable person in 

their circumstances to fear for his or her safety or experience 

“significant mental or psychological suffering.” UTAH CODE 

§§ 76-5-106.5(2), -106.5(1)(b). In addition, on the issue of whether 

ECA could obtain an injunction, we note that at least one court has 

found its state’s civil stalking statute to “protect[] institutions as 

well as people.” Bd. of Regents-UW System v. Decker, 850 N.W.2d 

112, 121 (Wisc. 2014). That said, neither party has asked us to decide 

whether the same is true of Utah’s statute, so we take no position 

on this issue.
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Opinion of the Court 

12

¶41 In this case, the district court erred by focusing on 

Mr. Fishler’s alleged ultimate target. It found that Mr. Fishler’s 

conduct “was directed towards anyone he believed to be associated 

with ECA, including [Ms.] Ragsdale.” And it concluded that his 

conduct “was directed towards ECA as a business and therefore 

not targeted towards [Ms.] Ragsdale.” But rather than determine 

whether Mr. Fishler subjectively targeted Ms. Ragsdale, the district 

court should have analyzed whether he objectively engaged in 

conduct proscribed by the stalking statute. So we reverse the 

district court’s conclusion that Mr. Fishler’s conduct was not 

“directed at” Ms. Ragsdale and remand for further proceedings.

¶42 On remand, the district court should assess whether 

Mr. Fishler’s conduct objectively violated the criminal stalking 

statute. It should identify the instances where Mr. Fishler directed 

his conduct at Ms. Ragsdale individually and determine whether 

the statute prohibits the conduct at issue in any, some, or all of 

those instances. Then, it should identify those instances where 

Mr. Fishler directed his conduct at others and determine whether 

the statute prohibits that conduct as well. For example, in situations 

where Mr. Fishler communicated obscenities to ECA’s staff or 

clients, the district court should determine whether this behavior 

amounts to communicating about Ms. Ragsdale29 or contacting her 

coworkers.30

¶43 In sum, the district court erred in concluding that 

Mr. Fishler did not direct his conduct at Ms. Ragsdale. This error 

resulted from the mistaken understanding that Mr. Fishler could 

direct his conduct only at the person he claims was his subjectively 

intended target. Accordingly, we reverse this conclusion and 

remand for an objective assessment of whether Mr. Fishler’s 

conduct violated the stalking statute.31

__________________________________________________________

29 UTAH CODE § 76-5-106.5(1)(a)(i).

30 Id. § 76-5-106.5(1)(a)(ii)(B).

31 Mr. Fishler also argues that Ms. Ragsdale invited the district 

court’s incorrect interpretation of the stalking statute. We reject this 

argument. “[T]he invited error doctrine ensures that parties cannot 

entice the court into committing an error and then reap the benefit 

of objecting to that error on appeal.” State v. Moa, 2012 UT 28, ¶ 25, 

282 P.3d 985. According to Mr. Fishler, Ms. Ragsdale invited the 

district court’s conclusion that a respondent only directs conduct at 

(Continued)
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Opinion of the Court 

13

II. The District Court Erred In Finding That Mr. Fishler’s

Conduct Would Not Cause a Reasonable Person 

To Suffer Fear Or Emotional Distress

¶44 Ms. Ragsdale also claims the district court erred in 

concluding that Mr. Fishler’s conduct would not cause a reasonable 

person to suffer fear or emotional distress. We agree with 

Ms. Ragsdale on this issue as well. Under the stalking statute, the 

district court should have considered the impact of Mr. Fishler’s 

conduct not just on a reasonable person, but a reasonable person in 

Ms. Ragsdale’s specific circumstances. It did not do so. So we 

reverse and remand for the district court to apply the correct 

standard.

¶45 Under the second stalking element, a petitioner must show 

that the respondent knew or should have known his or her conduct 

“would cause a reasonable person” to “fear for the [petitioner’s] 

own safety” or “suffer other emotional distress.”32 This is an 

“objective standard” under which “the subjective effect of the 

respondent’s conduct on the petitioner is irrelevant.”33 So a 

petitioner need only show that the respondent’s conduct would 

affect “a reasonable person in the petitioner’s circumstances.”34 In 

applying this standard, courts “must consider the entire context 

surrounding [a respondent’s] conduct.”35 They must consider the 

conduct “cumulatively,” accounting for “the facts and 

circumstances of the [individual] case.”36 In this context, “acts that 

seem perfectly innocent or even well intentioned may constitute 

__________________________________________________________

his or her subjectively intended target. In his view, she invited this 

error by claiming that any profane comments or gestures made by 

Mr. Fishler to other ECA employees were ultimately directed at 

her. But these arguments merely reflect Ms. Ragsdale’s theory that 

Mr. Fishler was engaging in conduct prohibited by the criminal 

stalking statute, such as “communicating . . . about” Ms. Ragsdale 

“indirectly, or through any third party” and contacting 

Ms. Ragsdale’s coworkers. See UTAH CODE § 76-5-106.5(1). So 

Ms. Ragsdale did not invite the district court’s error.

32 UTAH CODE § 76-5-106.5(2).

33 Baird v. Baird, 2014 UT 08, ¶ 25, 322 P.3d 728.

34 Id. (emphasis added).

35 Id. ¶ 26.

36 Ellison v. Stam, 2006 UT App 150, ¶ 38, 136 P.3d 1242.
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Opinion of the Court 

14

stalking.”37 “For example, conduct such as sending the victim a 

dozen roses may seem benign and loving to the casual observer, 

but could mean a very different thing when understood in the 

context of the victim’s experience.”38

¶46 In this case, the district court failed to assess Mr. Fishler’s 

conduct from the standpoint of a reasonable person in 

Ms. Ragsdale’s circumstances. Instead of considering the 

individual facts and circumstances of Ms. Ragsdale’s case, the 

district court simply concluded that, “[i]n this day and age, 

exposure to pejorative gestures and profanity should not cause the 

type of . . . emotional distress envisioned by the [stalking] statute.”

¶47 This blanket conclusion does not reflect an assessment of 

the entire context surrounding Mr. Fishler’s conduct. It does not 

account for the cumulative impact of his behavior from 2013 to 

2017. Nor does it suggest that the court considered the fact that 

Mr. Fishler’s conduct occurred where Ms. Ragsdale both lived and 

worked, nor the fact that he became more assertive over time. 

Indeed, given that something as innocuous as sending flowers 

could, in some cases, cause a reasonable person to suffer fear or 

emotional distress, we find it hard to conclude that profane 

gestures and comments categorically could not do so as well.

¶48 In defending the district court’s conclusion, Mr. Fishler 

claims the district court did not err because its ruling expressly 

refers to the reasonable-person standard. We disagree. In its ruling, 

the district court held that Mr. Fishler’s conduct would not cause 

“a reasonable person under the same circumstances as 

[Ms.] Ragsdale” to suffer fear or emotional distress. Elaborating on 

this conclusion, the district court said it was “not sure” that “a 

reasonable person should suffer significant [emotional distress] 

from expletives.” This alone does not satisfy its obligation to assess 

Mr. Fishler’s conduct from the standpoint of a reasonable person in 

Ms. Ragsdale’s circumstances. To properly apply the stalking 

statute’s objective standard, the district court should have analyzed 

his conduct in light of the specific facts and circumstances of 

Ms. Ragsdale’s individual case.

¶49 Accordingly, the district court erred in concluding that 

Mr. Fishler’s conduct would not cause a reasonable person to suffer 

__________________________________________________________

37 Baird, 2014 UT 08, ¶ 26.

38 Id. (citation omitted) (internal quotation marks omitted).
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Opinion of the Court 

15

fear or emotional distress. It misapplied the stalking statute by 

failing to assess the impact of his conduct on a reasonable person 

in Ms. Ragsdale’s circumstances. So we reverse. And because this 

issue is “a question of fact,” we remand so the district court can 

apply the correct standard.

39

III. The District Court Applied the Incorrect Legal Standard to 

Mr. Fishler’s First Amendment Challenge

¶50 Next, Ms. Ragsdale claims the district court erred in 

denying her injunction on the ground that the First Amendment 

protects Mr. Fishler’s conduct. According to the district court, the 

First Amendment protects Mr. Fishler’s “signs and conduct” 

because they constitute “political speech.” It is true that the First 

Amendment entitles Mr. Fishler to some protection in this regard.

But that protection does not necessarily shield him from a stalking 

injunction. When appropriate, courts may enjoin conduct that 

meets the definition of stalking even if it has a political objective. 

So we reverse on this issue.

¶51 Although “[p]olitical speech enjoys the broadest 

protection under the First Amendment,”

40 in appropriate 

circumstances, courts may still enjoin speech that meets the 

definition of stalking even if it has a political objective. In Towner v. 

Ridgway, for example, we analyzed a civil stalking injunction 

against a candidate for the United States Senate who repeatedly 

confronted a fellow party activist about their political 

disagreements.41 We held that preventing the candidate from 

“contacting [the petitioner], directly or indirectly, through any 

form of communication . . . [did] not violate the First 

Amendment.”42

__________________________________________________________

39 Id. ¶ 29. On remand, we suggest the district court consider the 

factors we listed in Baird v. Baird, 2014 UT 08, ¶ 27, for assessing the 

effect of a respondent’s conduct on a reasonable person in the 

petitioner’s circumstances. These factors include, but are not 

limited to, “the cumulative effect of the [respondent’s] repetitive 

conduct,” the petitioner’s “background,” “knowledge of and 

relationship with the [respondent],” and “any history of abuse 

between the parties.” Id.

40 Jacob v. Bezzant, 2009 UT 37, ¶ 29, 212 P.3d 535.

41 2008 UT 23, ¶¶ 1–2, 7, 182 P.3d 347.

42 Id. ¶ 20.
RAGSDALE v. FISHLER

Opinion of the Court 

16

¶52 Courts may issue civil stalking injunctions under specific, 

statutorily defined parameters.43 These parameters include 

enjoining respondents “from committing stalking”44 and 

restraining respondents “from coming near [a petitioner’s] 

residence [or] place of employment.”45 They also include enjoining 

respondents “from contacting, directly or indirectly,” the 

petitioner, the petitioner’s “employers, employees, fellow workers, 

[and] others with whom communication would be likely to cause 

[the petitioner] annoyance or alarm.”46 In addition, courts may 

grant “any other relief necessary or convenient for the protection of 

the petitioner and other specifically designated persons under the 

circumstances.”47

¶53 In Towner, we concluded that the proposed injunction did 

not violate the First Amendment, because it fell within these 

parameters. That injunction barred the respondent from “post[ing] 

communications on electronic media” that were “designed to 

harass or annoy” the petitioner and his family.48 But it let the 

respondent continue posting “commentary on the substance of [the 

petitioner’s] political positions.”49 The respondent argued that this 

restraint fell outside the statute’s parameters and was “a 

content-based restriction on his speech in violation of the First 

Amendment.”50 We disagreed. Because the injunction precluded 

“communications from [the respondent] to [the petitioner], not 

communications by [the respondent] about [the petitioner] to 

others,” we found it “well within the scope” of the stalking statute 

and consistent with the First Amendment.51 So, under Towner, even 

__________________________________________________________

43 See UTAH CODE § 77-3a-101(5) (2017), amended by UTAH CODE

§ 78B-7-701.

44 Id. § 77-3a-101(5)(a)(i) (2017).

45 Id. § 77-3a-101(5)(a)(ii) (2017).

46 Id. § 77-3a-101(5)(a)(iii) (2017).

47 Id. § 77-3a-101(5)(a)(iv) (2017).

48 Towner, 2008 UT 23, ¶ 10.

49 Id.

50 Id. ¶ 19.

51 Id. ¶ 20.
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Opinion of the Court 

17

where speech has a political objective, courts may still enjoin it 

under the confines set by the civil stalking statute.

¶54 Here, when addressing Mr. Fishler’s First Amendment 

challenge, the district court did not examine whether 

Ms. Ragsdale’s proposed injunction fell within the stalking 

statute’s parameters. Instead, it denied Ms. Ragsdale’s injunction 

on the ground that Mr. Fishler’s conduct constituted “political 

speech.” In so doing, it explained that “[p]eople have a right to 

exercise their political speech” and “they can direct [that] right at 

the individuals” with whom they disagree. While we agree with 

the sentiment behind this statement, we find it an inadequate basis 

for denying Ms. Ragsdale’s injunction. Like the candidate in 

Towner, Mr. Fishler cannot escape the ambit of the stalking statute 

just because his conduct allegedly had a political objective. And by 

concluding otherwise, the district court erred.

¶55 Accordingly, we reverse on this issue. But because the 

district court did not actually issue an injunction, we hesitate to 

opine any further on the precise standard for evaluating a civil 

stalking injunction under the First Amendment. We note, however, 

that the acknowledgement of a respondent’s right to free speech is 

just the starting point in assessing whether part of that right must 

yield to the governmental interests underlying the stalking statute. 

This assessment also requires district courts to, at a minimum, 

determine whether each provision of a proposed injunction is 

content-based or content-neutral, and evaluate each provision

under the corresponding level of scrutiny.52

¶56 In sum, by refusing to enjoin Mr. Fishler’s conduct on the 

ground that it was political speech, the district court erred. 

Although the First Amendment protects Mr. Fishler, it does not 

automatically exempt him from being enjoined from conduct that 

meets the definition of stalking.

IV. We Vacate the District Court’s Denial of Mr. Fishler’s 

Request For Attorney Fees and Remand For A New 

Determination Under Our Clarified Standard

¶57 Finally, Mr. Fishler cross-appeals the denial of his motion 

for attorney fees. He argues that the district court erred in denying 

his fee request because it applied the “incorrect” legal standard. 

__________________________________________________________

52 See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 163–68 (2015)

(describing the framework for evaluating speech restrictions under 

the First Amendment).
RAGSDALE v. FISHLER

Opinion of the Court 

18

Given that our ruling on the issues raised by Ms. Ragsdale may 

have affected the basis for the district court’s decision, we vacate 

that decision and remand for a new attorney fees determination.53

In so doing, we clarify the standard for awarding attorney fees 

under the civil stalking statute.

¶58 At issue is the civil stalking statute’s attorney-fees 

provision. This provision states, in its entirety, that: “[a]fter a 

hearing with notice to the affected party, the court may enter an 

order requiring any party to pay the costs of the action, including 

reasonable attorney fees.”54 As both the parties and district court 

have pointed out, this language gives “almost no direction” on 

when to award fees. So we take this opportunity to clarify when a 

district court should award fees under this provision.

¶59 Significantly, the statute says that a court “may enter” an 

attorney-fee award.55 We have previously explained that the 

legislature’s use of the word “may” in a fee provision “clearly 

signal[s] an intention to yield discretion to courts over whether to 

award attorney fees.”56 This is especially true when the term “may”

is “coupled with the absence of any guiding or limiting standard,” 

as it is here.57 When addressing similarly-worded statutes, we have 

“attempted to offer cautious direction regarding the exercise” of 

this “broad, discretionary authority over attorney fee awards.”58

We now do the same here.

¶60 In Shurtleff v. United Effort Plan Trust, we confronted a 

similar statute that vested courts “with discretion in assessing 

__________________________________________________________

53 See Brady v. Park, 2019 UT 16, ¶ 112, 445 P.3d 395.

54 UTAH CODE § 77-3a-101(16) (2017), amended by UTAH CODE

§ 78B-7-701.

55 Id.

56 Paul deGroot Bldg. Servs., L.L.C. v. Gallacher, 2005 UT 20, ¶ 22, 

112 P.3d 490.

57 Id. ¶ 24.

58 Id. ¶¶ 20–24; see also Buzas Baseball, Inc. v. Salt Lake Trappers, 

Inc., 925 P.2d 941, 952–953 (Utah 1996) (providing guidance on how 

district courts should exercise the “discretion bestowed by the 

‘may’ language of the Utah Arbitration Act[‘s]” attorney-fees 

provision).
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Opinion of the Court 

19

whether to award” attorney fees.59 This statute, which was part of 

Utah’s Uniform Probate Code, provided that courts “may, as justice 

and equity may require, award . . . reasonable attorney’s fees[] to 

any party.”60 In instructing district courts on how to use the 

discretion granted to them by this language, we articulated several 

“nonexclusive” factors they should look to when making fee 

awards.61 These factors include:

(a) [the] reasonableness of the parties’ claims, 

contentions, or defenses; (b) unnecessarily 

prolonging litigation; (c) relative ability to bear the 

financial burden; (d) result obtained by the 

litigation and prevailing party concepts; and 

(e) whether a party has acted in bad faith, 

vexatiously, wantonly, or for oppressive reasons in 

the bringing or conduct of the litigation.62

¶61 Given the similarities between the civil stalking statute 

and the Shurtleff statute, we find it appropriate to adopt these 

factors here as well. Through their use of the word “may,” both 

statutes provide courts with marked discretion in awarding fees. 

But neither statute provides “specific guidelines or criteria” for 

district courts to use in making these awards.63 By establishing 

uniform guidelines for fee decisions based on “general criteria 

drawn from other [attorney-fees] cases,” the Shurtleff factors 

mitigate this problem.64 So we hold that district courts should 

apply these factors when evaluating fee requests under the civil 

stalking statute, as well as any other statute that provides the 

discretion to award fees but no guidance on how to do so.65

__________________________________________________________

59 2012 UT 47, ¶ 22, 289 P.3d 408.

60 UTAH CODE § 75-7-1004(1).

61 Shurtleff, 2012 UT 47, ¶ 23 (citation omitted).

62 Id. (quoting Atwood v. Atwood, 25 P.3d 936, 947 (Okla. Civ. 

App. 2001)).

63 Id. (citation omitted).

64 Id. (citation omitted).

65 We have sometimes “observed that the policies underlying” 

a statute “serve as useful guideposts” for exercising the discretion 

granted by these types of attorney-fees provisions. Paul deGroot 

(Continued)
RAGSDALE v. FISHLER

Opinion of the Court 

20

¶62 When applying the Shurtleff factors, it may be appropriate 

for a district court to award fees to a petitioner when it would 

indemnify them from the “costly, complicated, and discretionary 

process” of obtaining a civil stalking injunction.66 But awarding 

fees to a petitioner may not be appropriate if it imposes financial 

hardship on a respondent or would be otherwise inequitable. In 

addition, although it may be appropriate to indemnify a 

respondent forced to defend a frivolous petition, courts should 

pause before awarding a respondent fees when a petition has some 

merit. This may chill future petitions—an outcome that strikes us 

as contrary to the statute’s purpose.

¶63 In this case, we vacate the district court’s denial of 

Mr. Fishler’s attorney-fees motion and instruct it to make a new 

determination if the parties’ seek attorney fees following the 

district court’s final judgment on remand. We do so “[b]ecause our 

rulings on the other issues in this case may have upended the basis 

for the court’s attorney fees decision.”67 The district court did not 

apply the Shurtleff factors when it denied Mr. Fishler’s fee request. 

Instead, because the statute gave it “almost no direction” on when 

to award fees, the district court concluded that it must make “some 

sort of equitable determination.” The district court also noted that 

it was “at somewhat of a disadvantage” because, having not 

__________________________________________________________

Bldg. Servs., 2005 UT 20, ¶ 22; see also Bilanzich v. Lonetti, 2007 UT 

26, ¶¶ 17–20, 160 P.3d 1041; Buzas Baseball, 925 P.2d at 953. This may 

be true for statutes like the reciprocal attorney-fee statute, UTAH 

CODE § 78B-5-826, or the Utah Arbitration Act, UTAH CODE

§ 78B-11-126, whose policies are well-established in our case law. 

See Bilanzich, 2007 UT 26, ¶ 18 (explaining that the policy behind 

the reciprocal attorney-fee statute is to “creat[e] a level playing field 

for parties to a contractual dispute” (alteration in original) (citation 

omitted) (internal quotation marks omitted)); Buzas Baseball, 925 

P.2d at 953 (noting that the policies underlying the Utah Arbitration 

Act “favor the enforceability of arbitration awards and discourage 

relitigation of valid awards”). But statutes often advance 

multiple—sometimes conflicting—policies. So we believe the 

Shurtleff factors offer a more transparent and consistent approach 

to awarding fees under statutes that otherwise provide little 

guidance.

66 State v. Kropf, 2015 UT App 223, ¶ 18, 360 P.3d 1.

67 Brady, 2019 UT 16, ¶ 112.
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Opinion of the Court 

21

presided over the evidentiary hearing, it was making its decision 

from a “cold record.” Nevertheless, after weighing the parties 

arguments, the district court held that the equities weighed in favor 

of denying Mr. Fishler’s motion because the case had been 

“fact-sensitive,” “complicated,” and did not lack “all merit.”

¶64 Our ruling may disturb this decision for several reasons. 

First, we are remanding for new determinations on every issue 

raised by Ms. Ragsdale. So although this case will undoubtedly 

continue to be fact-sensitive and complicated, the outcome on 

remand may change. This may, in turn, affect whether one of the 

parties should receive fees following the district court’s new 

ruling—particularly in light of the clarified attorney-fees standard 

we announce today. In addition, as we discuss below, the district 

court will need to decide whether to conduct a new evidentiary 

hearing on remand. If it does, it will no longer be at the 

“disadvantage” of having to rule on a renewed attorney-fees 

motion from a cold record. It can instead make a fresh 

determination based on the observations it gleans from the new 

evidentiary hearing.

¶65 For these reasons, we vacate the district court’s denial of

Mr. Fishler’s fee request and note that either party may make a new 

fee request following the district court’s final judgment on remand. 

The district court should apply the standard announced here when 

determining whether to award fees to either party. 

V. On Remand, We Instruct the District Court to Determine 

Whether This Case Requires a New Evidentiary Hearing

¶66 Our decision to remand each issue raised by the parties 

prompts the question of whether this case requires a new 

evidentiary hearing. The judge who presided over the original 

hearing and denied Ms. Ragsdale’s injunction has since retired. The 

current judge, who ruled on Mr. Fishler’s fee request, did so based 

on the record. On remand, this judge will need to rule anew on 

whether Mr. Fishler directed his conduct at Ms. Ragsdale, whether 

his conduct would cause a reasonable person in Ms. Ragsdale’s 

circumstances fear or emotional distress, and whether 

Ms. Ragsdale’s injunction burdens more speech than necessary.

¶67 As the district court recognized in denying Mr. Fishler’s 

fee request, these are “complicated” and “fact-intensive” issues.

They may be difficult to address solely from the record. 

Accordingly, on remand, the district court should decide whether 

to conduct a new evidentiary hearing. And in making this decision, 

it should allow the parties to weigh in and brief this issue.
RAGSDALE v. FISHLER

Opinion of the Court 

22

Conclusion

¶68 We reverse on each issue raised by Ms. Ragsdale. The 

district court erred in concluding that Mr. Fishler’s conduct was 

directed only at ECA, which he claims was his subjectively 

intended target. It erred by failing to determine whether 

Mr. Fishler’s conduct would cause a reasonable person in 

Ms. Ragsdale’s circumstances to suffer fear or emotional distress. 

And it erred by denying Ms. Ragsdale’s injunction on the ground 

that the First Amendment protects Mr. Fishler’s conduct. So we 

reverse on each of these issues and remand for proceedings 

consistent with this opinion. In so doing, we also vacate the district 

court’s ruling on Mr. Fishler’s fee request and remand for a new 

attorney-fees determination.