900 A.2d 1256
(SC 17392) (SC 17396)Supreme Court of Connecticut
Sullivan, C. J., and Borden, Norcott, Katz and Vertefeuille, Js.[*]
Syllabus
Following the dissolution of the parties’ marriage, the plaintiff filed an application pursuant to statute (§ 46b-15) for relief from physical abuse against the defendant, requesting a domestic violence restraining order on behalf of herself and the parties three minor children and an order suspending his visitation rights with the children. The trial court issued an ex parte temporary restraining order and suspended the defendant’s visitation rights pending a scheduled hearing. Following the hearing, the court modified its order and restored the defendant’s visitation rights with the two younger children, but extended the order for six months with respect to the oldest child and the plaintiff. The court denied the defendant’s motions for reargument and for clarification, and the defendant appealed to the Appellate Court. Thereafter, the plaintiff filed a second application for relief from abuse pursuant to § 46b-15 with respect to the two younger children, and the trial court issued an ex parte restraining order granting the relief request and scheduled a hearing on the matter. Following the hearing, the trial court extended the initial order for six months. That court denied the defendant’s subsequent motions for reargument and for clarification, and the defendant appealed to the Appellate Court. Thereafter, the Appellate Court concluded that the expiration of the six month extension of the domestic violence restraining orders rendered the defendant’s appeals from those orders moot, and that court dismissed the defendant’s appeals. The defendant,
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on the granting of certification, appealed to this court. Held that the Appellate Court’s dismissal of the defendant’s appeals as moot was improper, and the cases were remanded for consideration of the merits of the appeals; the expiration of a domestic violence restraining order does not render an appeal from that order moot because it is reasonably possible that collateral consequences that are adverse to the person subject to the order may occur, such as the threat of harm to that person’s reputation as well as the prejudicial ramifications on the legal record of that person.
Argued April 11, 2006.
Officially released July 18, 2006.
Procedural History
Applications for, inter alia, relief from abuse and a temporary injunction, brought to the Superior Court in the judicial district of Tolland, where the court, Kaplan, J., granted the applications and ordered the suspension of the defendant’s visitation rights with the parties’ minor children over whom the plaintiff earlier had been granted sole custody; thereafter, following a hearing, the court modified and extended the restraining order as to the plaintiff and one of the parties’ minor children and denied the defendant’s motion to reargue, from which the defendant appealed to the Appellate Court; subsequently, the court, Klaczak, J., granted the application for a second ex parte restraining order filed by the plaintiff, ordered the suspension of the defendant’s visitation rights as to two of the parties’ minor children, and, following a hearing, extended the restraining order; subsequently, the court denied the defendant’s motion to reargue and the defendant appealed to the Appellate Court; subsequently, the Appellate Court dismissed as moot the defendant’s appeals and the defendant, on the granting of certification, appealed to this court, which granted the defendant’s motion to consolidate the appeals. Reversed; further proceedings.
Susan M. Phillips, for the appellant (defendant in both cases).
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Opinion
NORCOTT, J.
The sole issue in this consolidated certified appeal is whether the expiration of a six month domestic violence restraining order renders an appeal from that order moot. The defendant, Christopher Kennedy, appeals, following our grant of his petitions for certification, [1] from the judgments of the Appellate Court dismissing his appeals from the trial court’s grant of two separate applications by the plaintiff, Leanna Putman, [2] for domestic violence restraining orders pursuant to General Statutes § 46b-15.[3] We conclude that the expiration of a domestic violence restraining order
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does not render an appeal from that order moot because it is reasonably possible that there will be significant collateral consequences for the person subject to the order. Accordingly, we reverse the judgments of the Appellate Court and remand these cases for consideration of the merits of the defendant’s appeals.
The record reveals the following facts and procedural history. The plaintiff and the defendant were divorced in May, 2002, and have two daughters and a son, all of whom are minors. On January 7, 2004, the plaintiff filed an application pursuant to § 46b-15, for relief from abuse against the defendant, requesting that the court suspend his visitation with the children and order him not to restrain, threaten, harass, molest or attack the plaintiff or her boyfriend.[4] On January 8, 2004, the trial court, Kaplan, J., issued an ex parte domestic violence restraining order granting the relief requested and scheduled a hearing for January 20, 2004. See General Statutes § 46b-15 (b). After that hearing, the trial court extended the initial domestic violence restraining order for six months, but modified it to restore the defendant’s contact and visitation with his daughters only. The trial
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court then denied the defendant’s motions for reargument and for clarification. Thereafter, the defendant filed a timely appeal to the Appellate Court.
On March 19, 2004, the plaintiff filed another application for relief from abuse pursuant to § 46b-15 against the defendant, requesting that the court suspend his visitation with his daughters and bar the defendant from entering the children’s respective school buildings.[5] On that same date, the trial court, Kaplan, J., issued an ex parte restraining order granting the relief requested and scheduled a hearing for March 29, 2004.[6] After the March 29 hearing, the trial court, Graziani, J., extended the initial order pending another hearing to be held on April 5, 2004. After the April 5 hearing, the trial court, Klaczak, J., extended that same order for six months, and then denied the defendant’s motion for dismissal on the grounds of a mistrial caused by judicial bias and misconduct. The trial court also denied the defendant’s subsequent motions for reargument, which challenged its factual findings, and for clarification of its findings of fact and conclusions of law. The defendant filed a timely appeal to the Appellate Court from the second domestic violence restraining order.
Thereafter, the Appellate Court, sua sponte, ordered the defendant to appear and show cause why his appeals should not be dismissed as moot pursuant to that court’s decision i In re Jeffrey C, 64 Conn. App. 55, 64-67, 779 A.2d 765
(2001), rev’d on other grounds, 261 Conn. 189, 802 A.2d 772
(2002).[7] Following that
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hearing, on November 17, 2004, the Appellate Court dismissed both appeals as moot, and denied the defendant’s motions for reconsideration en banc. Thereafter, we granted the defendant’s petitions for certification to appeal from both dismissals; see footnote 1 of this opinion; and subsequently consolidated both certified appeals for briefing and argument pursuant to Practice Book § 61-7.
The defendant claims that the Appellate Court improperly dismissed his appeals because domestic violence restraining orders present questions that are, by nature of their brief duration and the significant issues that they present, reviewable under the “capable of repetition, yet evading review” exception to the mootness doctrine. See generall Loisel v. Rowe, 233 Conn. 370, 382, 660 A.2d 323 (1995).[8] Although we agree that the Appellate Court improperly dismissed the defendant’s appeals from the domestic violence restraining orders, we conclude that the defendant’s appeals are rescued from mootness by the “collateral consequences” doctrine articulated in State v McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002), rather than by the more limited “capable of repetition, yet evading review” exception.[9] See footnotes 8 and 14 of this opinion.
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Our inquiry begins with some basic principles. “Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction . . . .” (Internal quotation marks omitted.) Wallingford v. Dept. of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003). The mootness doctrine “is founded on the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue. . . . [T]he standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Indeed, we note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . .
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“[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . However, under this court’s long-standing mootness jurisprudence . . . despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur. . . .
“[T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment, as in this case, the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future. State v McElveen, supra, 261 Conn. 208.” (Citations omitted; internal quotation marks omitted.) Wallingford v Dept. of Public Health, supra, 262 Conn. 767-68.
The array of collateral consequences that will preclude dismissal on mootness grounds is diverse, and includes harm to a defendant’s reputation as a result of the judgment at issue. See, e.g., Williams v. Ragaglia, 261 Conn. 219, 227-31, 802 A.2d 778 (2002) (appeal from revocation of plaintiff’s special study foster care license as consequence for violating foster care regulations was not rendered moot by grant to plaintiff of permanent
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custody of foster children at issue because of revocation’s effect on her reputation and fact that revocation could be used against her in future department of children and families proceedings if she wanted to become foster parent again) State v. McElveen, supra, 261 Conn. 212-16
(appeal from conviction of violation of probation was not rendered moot by defendant’s completion of his sentence because conviction could impact his reputation and ability to obtain employment or preconviction bail in future); see als Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 549-50, 858 A.2d 709 (2004) (appeal not rendered moot by investigative committee statement that it would not enforce subpoena directly “because of the collateral consequence of the potential for an article of impeachment on the basis, at least in part, of the governor’s noncompliance with the subpoena”); Wallingford v Dept. of Public Health, supra, 262 Conn. 769-70
(appeal not rendered moot by passage of special act addressing issue in case because administrative ruling that town is “water company” for purposes of possible construction of golf course on watershed land “potentially subjects” town to collateral consequences of department jurisdiction and other statutory obligations).
While arguing the “public importance” element of the “capable of repetition, yet evading review” test; see footnote 8 of this opinion; the defendant contends that his appeal presents an issue of public importance because of the effects of a domestic violence restraining order on the reputation and legal record of a person subject to that order. By themselves, however, these effects do not create a question of public importance. They are characterized more properly as collateral consequences of domestic violence restraining orders for the subject individual. Thus, the present case fits squarely within the bounds of our prior cases recognizing reputation harm and other potential legal disabilities
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as collateral consequences of otherwise moot court orders. The threat of reputation harm is particularly significant in this context because domestic violence restraining orders will not issue in the absence of the showing of a threat of violence, specifically a “continuous threat of present physical pain or physical injury” to the applicant. General Statutes § 46b-15 (a).[10] Indeed, the controlling statute also requires the dissemination of the orders to multiple law enforcement agencies. See General Statutes (Sup. 2006) § 46b-15 (e).[11] Thus,
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inasmuch as we previously have recognized the importance of reputation damage as a collateral consequence in other contexts, we see no reason not to do so here, for being the subject of a court order intended to prevent or stop domestic violence may well cause harm to the reputation and legal record of the defendant.
Moreover, as the defendant points out, domestic violence restraining orders have other collateral legal disabilities for their subjects. Once filed, they are available to agencies investigating future allegations involving the same family, and a trial judge making a future custody determination also reasonably might consider the issuance of a domestic violence restraining order in making that sensitive decision. See General Statutes § 46b-56 (b) (1) (“[i]n making or modifying any order with respect to custody or visitation, the court shall . . . be guided by the best interests of the child”); see also General Statutes § 46b-56b (“[i]n any dispute as to the custody of a minor child involving a parent and a non-parent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody” [emphasis added]). Thus, in the sensitive and often explosively litigated context of family dysfunction and dissolution, there is a reasonable possibility that a domestic violence restraining order will have prejudicial collateral legal consequences for its subject, even after its expiration. Accordingly, the subject of an improperly rendered domestic violence restraining order is likely to benefit from the vacatur of that order, and dismissal of his or her appeal as moot solely on the basis of that order’s expiration is improper.
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Indeed, the court’s independent research reveals that the majority of the other states that have considered this issue have concluded that appeals from domestic violence restraining orders are not rendered moot by their expiration. We agree with the six states that rely explicitly on the collateral consequences of domestic violence restraining orders.[12] Se Roark v. Roark, 551 N.E.2d 865, 868-69
(Ind. App. 1990) (noting “potentially
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devastating” collateral consequences for parent of expired “child in need of services” order, including impacts on future presentence investigations, in-court impeachments and child custody determinations); Piper v. Layman, 125 Md. App. 745, 753, 726 A.2d 887 (1999) (“expiration of the protective order does not automatically render the matter moot” because of “[heightened public awareness and sensitivity to the existence of domestic violence, as well as legitimate public contempt for abusers” and enhanced technology for information dissemination); Wooldridge v. Hickey, 45 Mass. App. 637, 638, 700 N.E.2d 296 (1998) (appeal from abuse prevention order not rendered moot by order’s expiration because of its collateral consequences, including effect in future bail proceedings and other “stigma”); Smith v Smith, 145 N.C. App. 434, 436-37, 549 S.E.2d 912
(2001) (expired domestic violence protective order not moot because of “`collateral legal consequences'” such as consideration in custody determination and “non-legal collateral consequences” such as reputation harm) James v. Hubbard, 21 S.W.3d 558, 560
(Tex. App. 2000) (“[a]lthough expired temporary protective orders and restraining orders have been considered moot, none of these cases has carried the same social stigma as a protective order granted based on a finding of family violence”); In re Interest of H.Q., 152 Wis. 2d 701, 707-708, 449 N.W.2d 75
(App. 1989) (expired child abuse protective order not moot because of possible effect on custody determination in impending divorce).[13]
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Accordingly, we conclude that it is reasonably possible that adverse collateral consequences of the domestic violence restraining orders may occur, and, therefore, the defendant’s appeals are not rendered moot by virtue of the expiration of the orders during the pendency of the appeals.[14] The Appellate Court,
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therefore, should have considered the merits of the defendant’s appeals, rather than dismissing them as moot.
The judgments of the Appellate Court are reversed and the cases are remanded to that court for consideration of the merits of the defendant’s appeals.
In this opinion the other justices concurred.
In appeal Docket No. SC 17396, we granted the defendant’s petition for certification to appeal limited to the following issue: “Whether the Appellate Court properly dismissed this appeal on the ground that the appeal was moot?” Putman
v. Kennedy, 273 Conn. 915, 870 A.2d 1083 (2005).
“(b) The application form shall allow the applicant, at the applicant’s option, to indicate whether the respondent holds a permit to carry a pistol or revolver or possesses one or more firearms. The application shall be accompanied by an affidavit made under oath which includes a brief statement of the conditions from which relief is sought. Upon receipt of the application the court shall order that a hearing on the application be held not later than fourteen days from the date of the order. The court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit. Such order may include temporary child custody or visitation rights and such relief may include but is not limited to an order enjoining the respondent from (1) imposing any restraint upon the person or liberty of the applicant; (2) threatening, harassing, assaulting, molesting, sexually assaulting or attacking the applicant; or (3) entering the family dwelling or the dwelling of the applicant. If an applicant alleges an immediate and present physical danger to the applicant, the court may issue an ex parte order granting such relief as it deems appropriate. If a postponement of a hearing on the application is requested by either party and granted, the order shall not be continued except upon agreement of the parties or by order of the court for good cause shown. . . .
“(h) An action under this section shall not preclude the applicant from seeking any other civil or criminal relief.”
n. 6, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578
(2004), that a § 46b-15 domestic violence restraining order is an appealable final judgment. Because of the potentially irreparable effects of § 46b-15 restraining orders on relationships within the family unit, the Appellate Court’s conclusion in Hartney is consistent with our decisions applying State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), with respect to the appealability of other temporary orders in the domestic context. See, e.g. Madigan v. Madigan, 224 Conn. 749, 757, 620 A.2d 1276 (1993) (“temporary custody orders are immediately appealable because an immediate appeal is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected”); see als Sweeney v. Sweeney, 271 Conn. 193, 210-11, 856 A.2d 997 (2004) (pendente lite order that child attend parochial school is appealable final judgment because “consequences of the enrollment of a minor child in an educational institution that a joint legal custodian believes to be academically inadequate and religiously objectionable are irreparable”); State v. Curcio, supra, 31 (“[a]n otherwise interlocutory order is appealable in two circumstances: [1] where the order or action terminates a separate and distinct proceeding, or [2] where the order or action so concludes the rights of the parties that further proceedings cannot affect them”).
v. Ellibee, 121 Idaho 501, 503, 826 P.2d 462 (1992) (capable of repetition, yet evading review exception applied in case raising first impression issues with respect to applicant’s burden of proof and statute’s applicability in cases of alleged child abuse); Hedrick-Koroll v Bagley, 352 Ill. App. 3d 590, 592, 816 N.E.2d 849
(2004) (addressing expired order under “public interest” exception to mootness doctrine in case wherein trial court failed to make statutorily required factual findings) Smith v. Martens, 279 Kan. 242, 245, 106 P.3d 28 (2005) (using “capable of repetition” exception to address vagueness constitutional challenge to civil enforcement provision, but rejecting other case specific claims as moot) Burkstrand v. Burkstrand, 632 N.W.2d 206, 208
n. 2 (Minn. 2001) (issue of whether trial court’s failure to comply with statutory time frame for holding hearing deprived it of subject matter jurisdiction reviewed as issue “capable of repetition, yet evading judicial review”); Gemstein v Allen, 10 Neb. App. 214, 219-20, 630 N.W.2d 672 (2001) (rejecting collateral consequences argument of reputation harm because case did not involve criminal conviction, but finding appeal not moot under “capable of repetition” exception because of due process issues presented, specifically scope of required hearing); Marquette v. Marquette, 686 P.2d 990, 992-93 (Okla. App. 1984) (protective order appeal not moot under either “`capable of repetition'” or “public interest” tests because of order’s short duration and “wide-ranging ramifications” of domestic violence); Snyder v Snyder, 427 Pa. Super. 494, 500 n. 1, 629 A.2d 977
(1993) (rejecting claim that expired order would have collateral consequences of “impact on the way a trial court views the equities in a divorce or child custody proceeding,” but holding appeal not moot under “capable of repetition” standard based on important issues of required quantum of evidence to justify relief); cf. Strollo v Strollo, 828 P.2d 532, 533-34 (Utah App. 1992) (denial of protective order mooted when party obtained order from different judge, but court addressed case under “capable of repetition” standard because of public interest in first impression question of whether applicant needed to be in “immediate peril”).
(Iowa App. June 19, 2002) (order of protection moot because of expiration); Young v. Young, 810 A.2d 418, 422-23 (Me. 2002) (rejecting collateral consequences argument, and stating that case did not satisfy “public importance” element of “capable of repetition” test because of unique factual record); Reay v. Philips, 169 S.W.3d 896, 897 (Mo. App. 2005) (rejecting collateral consequences argument based on “blemish” to subject’s record, and stating that specific case presented no issues to satisfy “general public interest” exception); Lucero v. Pino, 124 N.M. 28, 31-32, 946 P.2d 232 (App.) (rejecting collateral consequences argument because order would have no legal impact on pending adoption or custody proceedings), cert. denied, 123 N.M. 626, 944 P.2d 274 (1997); Noor v. Noor, 15 App. Div. 3d 788, 790 N.Y.S.2d 299 (2005) (“this appellate challenge to the issuance of the orders of protection is moot as any determination herein will not directly affect the rights of the parties”); State v. Mott, 166 Vt. 188, 197-98, 692 A.2d 360 (1997) (declining to address civil claim regarding propriety of issuance of expired order because resolution in defendant’s favor would have no bearing on related criminal case). We disagree with these courts because a conclusion that the expiration of a domestic violence restraining order renders an appeal from that order moot ignores the gravity of these orders for the individuals involved, and is, therefore, inconsistent with our developing collateral consequences jurisprudence.
“By contrast, the capable of repetition, yet evading review rule reflects the functionally insurmountable time constraints present in certain types of disputes. . . . Paradigmatic examples are abortion cases and other medical treatment disputes. . . . Thus, this exception to the mootness doctrine is rooted in a determination that, when its requirements are met, public policy requires that we decide the question, despite the fact that our decision will have no direct consequences in the case before us.” (Citations omitted; internal quotation marks omitted.) Wallingford v Dept. of Public Health, supra, 262 Conn. 770-71 n. 12.
In our view, correct application of the “public interest” element in the domestic violence restraining order context is illustrated by those sister state cases that have relied on the “capable of repetition, yet evading review” analysis after identifying questions of statutory construction or constitutional dimension that would have a broad public impact beyond the resolution of that specific case. Se Ellibee v. Ellibee, 121 Idaho 501, 503, 826 P.2d 462 (1992) (first impression issues with respect to applicant’s burden of proof and statute’s applicability in cases of alleged child abuse); Smith v Martens, 279 Kan. 242, 245, 106 P.3d 28 (2005) (civil enforcement provision of domestic violence order statute challenged as unconstitutionally vague); Burkstrand v Burkstrand, 632 N.W.2d 206, 208 n. 2 (Minn. 2001) (whether statutory time frame in domestic violence statute is subject matter jurisdictional); Gernstein v Allen, 10 Neb. App. 214, 219-20, 630 N.W.2d 672 (2001) (due process issues regarding scope of hearing required) Snyder v. Snyder, 427 Pa. Super. 494, 500
n. 1, 629 A.2d 977 (1993) (issue regarding quantum of evidence required to justify relief); cf. Strollo v Strollo, 828 P.2d 532, 533-34 (Utah App. 1992) (denial of protective order case raising first impression question of whether applicant needs to be in “immediate peril”).
In this consolidated appeal, the defendant’s claim fails under the “public interest” element of the “capable of repetition, yet evading review” test; see footnote 8 of this opinion; because, as demonstrated by his appellant’s brief filed in the Appellate Court, his claims, although undeniably important to him personally, are by their very nature limited to these cases. Specifically, although the defendant claims numerous due process and statutory violations, his pro se brief filed before the Appellate Court indicates that they all are rooted in the trial court’s exercise of its discretion with respect to the facts of these particular cases, and his brief to this court, filed by counsel, does not indicate otherwise. Thus, although the “capable of repetition, yet evading review” exception might well be applicable in a domestic violence restraining order case raising broader issues than those presented here, the Appellate Court properly concluded that the exception did not apply to this appeal. It, therefore, appropriately relied on its decision in In re Jeffrey
C, supra, 64 Conn. App. 66-67, in which it rejected application of the “capable of repetition, yet evading review” exception to a case that also was limited to record specific claims.
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