SALT LAKE CITY — Gov. Gary Herbert's son, Nathan Herbert, has gone to the Utah Court of Appeals to challenge a civil stalking injunction leveled against him in 2010.
Herbert's attorney, Michael Petro, told judges last week that Herbert's conduct was "insufficient" to warrant the stalking injunction. The injunction, requested by Aiona Butters, was granted by 4th District Judge James Taylor on Nov. 17, 2010, after two days of testimony. It prevents Herbert from going within 50 yards of the Orem woman, her home, work, Gold's Gym in Orem or Utah Valley University.
Herbert, 41, testified in a hearing in 2010 that he briefly dated Butters' older sister in 2004 while she was on medical release from her mission, but that he does not know Butters and has not contacted her in any way. Butters alleged, however, that Herbert stared at her multiple times at the gym, circled her vehicle parked at a grocery store and chased her from a library.
She testified that the numerous run-ins with Herbert left her "mortified" and feeling like he was "raping (her) with his eyes." Herbert said after the injunction was granted that he thought Butters was an attention-seeking "drama queen" who is from a family prone to "extreme paranoia and dishonesty."
Taylor said that while both Butters and Herbert had weaknesses in their testimonies, Butters was ultimately "more credible" than Herbert. Utah Court of Appeals Judge Gregory Orme said last week that he thought it was helpful that Taylor "went above and beyond the call of duty," when it came to issuing his 2010 decision.
This was reiterated by Butters' attorney, Stephen Quesenberry.
"There is sufficient evidence in the record to support the district court's finding," Quesenberry said. "We're not here to second guess. I do appreciate that Judge Taylor made a lot of findings about credibility, about what he witnessed. It was a very emotional case ..."
Quesenberry said Herbert's behavior abated during a three-year period after Butters' sister obtained a restraining order against him in 2006. But his actions escalated soon after it expired and clearly showed the "course of conduct" required by statute, he said.
"There are so many incidents, it's kind of a target rich environment," Quesenberry said. "This isn't a difficult case. ... This is like a TV movie. She got the restraining order — who knows where this escalation would have ended? It's a classic stalking case."
But Petro said the various incidents should be looked at in isolation, which would show that many of the incidents were "innocuous." Though Butters called police more than once, he said, she never wanted officers to do anything more than just document what had occurred.
"Each course of conduct has to contain within itself sufficient emotional distress," Petro argued. "What I'm indicating to the court is at the time of (one incident), she was not distressed to the point that she took any action ... protecting herself or investigating the matter."
But two judges questioned whether each incident has to cause emotional stress.
Petro argued that the law requires that each incident cause a reasonable person distress and shouldn't be combined with incidents that didn't elicit such a response. He also took issue with the fact that, in most instances, Herbert didn't know he was causing a problem.
"The thing that strikes me as being a problem with the ruling and a problem with the decision is that in virtually none of these incidents is Mr. Herbert advised he'd done anything wrong, that she was complaining, that he was causing her any kind of emotional distress," Petro said. "Nobody said anything to Mr. Herbert and these acts in and of themselves are not egregious to the point that they create a course of conduct and create emotional distress."
The judges took the matter under advisement. A ruling is expected in the coming months.
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