Anderson v. Lamm

• Docket Number: 20230301
• Decision Date: 28 December 2023
• Parties: Amanda R. Anderson, Petitioner v. Christopher James Lamm, Respondent and Appellant
• Court: North Dakota Supreme Court

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2023 ND 249

Amanda R. Anderson, Petitioner
v.
Christopher James Lamm, Respondent and Appellant

No. 20230301

Supreme Court of North Dakota

December 28, 2023

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Charles B. Neff, Judge.

Christopher J. Lamm, Williston, ND, respondent and appellant; submitted on brief.

CROTHERS, JUSTICE.

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[¶1] Christopher Lamm appeals from a disorderly conduct restraining order prohibiting him from having contact with Amanda Anderson. Although the restraining order expired while this appeal was pending, the appeal is not moot because a reasonable possibility exists that the district court's decision will have adverse collateral consequences for Lamm. We reverse the restraining order, concluding the evidence is insufficient to support the court's finding that Lamm engaged in disorderly conduct.

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[¶2] The parties are not married; they share a child. The child lives with Anderson, who resides in Bainville, Montana. Lamm lives in Williston. Anderson filed a petition for a disorderly conduct restraining order against Lamm. Anderson alleged Lamm made a false child abuse report against her; he has threatened to take the child; he has choked and bit Anderson; he carries a gun; he has made comments about shooting people; and he traveled to Bainville to use the post-office and also drove by Anderson's house and place of employment.

[¶3] The district court issued a temporary restraining order and held a hearing. Anderson, Lamm, and an employee of Family Bridges Visitation Center, where Lamm is allowed supervised visits with the child, all testified. The court heard testimony indicating the parties are litigating custody of the child in Montana. The court found Lamm engaged in disorderly conduct on August 7, 2023, when he traveled through Bainville and used the post-office. The court made no findings concerning what specific act or actions it considered disorderly conduct. The court issued a disorderly conduct restraining order on August 21, 2023, that prohibited Lamm from coming within 250 feet of Anderson and various addresses in Bainville. On September 9, 2023, Lamm filed a notice of appeal. The restraining order expired on October 5, 2023, before we received Lamm's appellate brief.

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II

[¶4] The threshold issue is whether Lamm's appeal from the expired restraining order is moot. We do not issue advisory opinions and will ordinarily dismiss a moot appeal. Interest of M.R., 2022 ND 68, ¶ 3, 972 N.W.2d 94. An appeal is moot when there is no actual controversy left to be determined because events have occurred that make it impossible for this Court to issue relief. Id. We have recognized exceptions to our rule against issuing advisory opinions. See In re G.K.S., 2012 ND 17, ¶ 4, 809 N.W.2d 335. We may decide issues "of great public interest" that involve the power and authority of public officials; questions that by their nature are "capable of repetition" yet evade review; and appeals from district court decisions that continue to have adverse "collateral consequences" for an appellant. Id.

[¶5] We have not addressed whether an appeal from an expired disorderly conduct restraining order is moot. Multiple jurisdictions have decided appeals from expired restraining orders because of the collateral consequences restraining orders entail. See Chretien v. Chretien, 170 A.3d 260, 262-63 (Me. 2017) (stating "a growing number of jurisdictions have observed that protective orders predictably generate collateral consequences affecting a party against whom the order was issued and, therefore, a presumption against mootness should apply to appeals from orders that have expired"); Putman v. Kennedy, 900 A.2d 1256, 1263-64 (Conn. 2006) (collecting cases deciding appeals from expired restraining orders). Other jurisdictions have analyzed the doctrine of collateral consequences in this context but determined the appellant failed to meet his or her burden of establishing it applied. See, e.g., Winkowski v. Winkowski, 989 N.W.2d 302, 309 (Minn. 2023) (holding appellant failed to demonstrate "real and substantial disabilities" attached to a restraining order). At least one jurisdiction has adopted a standard requiring a showing of "demonstrated legal collateral consequences," as opposed to a speculative "possibility of future collateral consequences." See Cyran v. Cyran, 97 N.E.3d 487, 489-90 (Ohio 2018).

[¶6] We have repeatedly acknowledged the "seriousness and social stigma associated with a restraining order." Rath v. Rath, 2016 ND 71, ¶ 9, 877 N.W.2d 298;

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see also Meier v. Said, 2007 ND 18, ¶ 24, 726 N.W.2d 852 (describing "grave consequences that a disorderly conduct restraining order may have for the respondent"). Nonetheless, our collateral consequences jurisprudence requires more than "remote and speculative" consequences to save an appeal from dismissal on mootness grounds. Interest of M.R., 2022 ND 68, ¶ 6. There must be "a reasonable possibility" that collateral consequences will occur. Id. at ¶ 13 (Crothers, J., specially concurring) (quoting Putman, 900 A.2d at 1261). Thus,...