Putman v. Kennedy, No. 17392.

• Decision Date: 18 July 2006
• Docket Number: No. 17392.,No. 17396.
• Citation: 900 A.2d 1256,279 Conn. 162
• Court: Connecticut Supreme Court
• Parties: Leanna PUTMAN v. Christopher KENNEDY.

900 A.2d 1256

279 Conn. 162

Leanna PUTMAN v. Christopher KENNEDY.

No. 17392.

No. 17396.

Supreme Court of Connecticut.

Argued April 11, 2006.

Decided July 18, 2006.

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Susan Phillips, for the appellant (defendant in both cases).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ and VERTEFEUILLE, Js.^*

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 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 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 in 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 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 generally 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.

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....

"[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. at 208, 802 A.2d 74." (Citations omitted; internal quotation marks omitted.) Id., at 767-68, 817 A.2d 644

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 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. at 212-16, 802 A.2d 74 (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 also 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. at 769-70, 817 A.2d 644 (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 as collateral consequences of otherwise moot court orders. The threat of reputation harm is...