Conforming doctrine to practice: making room for collateral consequences in the Missouri mootness analysis.

• Author: Howenstine, Zachary C.

1. INTRODUCTION

   As the collateral consequences of court judgments gain increased recognition, courts in many states have modified traditional doctrinal approaches to mootness in order to give due regard to these repercussions. Missouri has not formally joined these states, yet a survey of recent mootness analyses within the state indicates that courts are seeking to allow for consideration of such consequences in spite of the doctrinal constraints. This tension has been most evident in appellate review of expired orders of protection for domestic violence, and the result has been vast inconsistency both in how courts approach the issue and how it is ultimately resolved. This article will seek to identify the underlying concerns that have fostered this unpredictability in Missouri, while also examining the advantages and disadvantages of the approaches taken in jurisdictions recognizing a collateral consequences exception to the mootness doctrine. In conclusion, this article will propose a new doctrinal approach in Missouri that reflects judicial concerns about collateral consequences without frustrating the purpose of the mootness doctrine in an adversarial system.

2. LEGAL BACKGROUND

   1. The Missouri Adult Abuse Act and Child Protection Orders Act

      Each year, individuals subjected to abuse file tens of thousands of petitions in Missouri courts seeking orders of protection to shield them from abusive family members and stalkers. (1) In doing so, they turn to two acts of the Missouri legislature--the Missouri Adult Abuse Act (2) and the Child Protection Orders Act (3)--which were specifically adopted in order to protect adults and children from abusive relationships, many of which occur within the home.

      The Adult Abuse Act, originally enacted in 1980, was the Missouri legislature's initial response to the problem of domestic violence. (4) Broadly speaking, the Act "authorizes and controls the issuance of protection orders by state courts, imposes criminal penalties for violations, and requires law enforcement to give domestic violence calls the same priority as any similar offense involving strangers." (5) The Missouri legislature, "[p]erceiving that abusive persons often behave no better toward children than adults," then passed the Child Protection Orders Act (CPOA) in 1987. (6) While substantially similar to the Adult Abuse Act in terms of procedure and remedies, the CPOA also allows third parties to bring actions on behalf of children and contains different definitions of certain terms. (7)

      Under the Adult Abuse Act, any adult can petition for an order of protection (as the "petitioner") and the CPOA allows a parent, guardian or juvenile officer to do the same on behalf of a child. (8) Both Acts make such orders available to protect against abuse (9) or conduct within the statutory definition of stalking. (10) In cases of immediate danger, a petitioner may obtain an ex parte order. (11) Under the Adult Abuse Act, the petitioner then receives a hearing within fifteen days for a full order of protection, barring good cause for a continuance. (12) At the hearing, the court will grant a full order of protection for no less than 180 days and no longer than one year if the petitioner proves her allegations by a preponderance of the evidence. (13) The CPOA follows essentially the same procedure, but any grant of a full order of protection is discretionary, even if the court finds the petitioner met her burden of proof. (14)

      The direct consequences of the issuance of a protective order against an individual pursuant to the Adult Abuse Act or the CPOA are wide-ranging. An order under the Adult Abuse Act may also prevent the respondent from entering the victim's dwelling, (15) which in many cases will be the respondent's home. (16) Additionally, upon issuing a full order of protection pursuant to the Adult Abuse Act, the court may also award custody of a minor child, award child support and maintenance, and require that the respondent continue to make rent or mortgage payments on the previously-shared residence or begin paying rent on a new residence. (17) Once an order is issued, whether ex parte or full, a violation of its terms is a class A misdemeanor and becomes a class D felony if the respondent has violated another order within the preceding five years. (18) Due to these potentially harsh consequences, the CPOA, which allows for discretionary orders with essentially the same requirements, (19) "has become a favored vehicle for litigation of child custody questions." (20)

      The collateral consequences of a full order of protection may also be significant. Missouri courts have noted the impact of the general "stigma" of having a court determine that, for example, an individual is a "stalker." (21) Additionally, the repercussions of a full order of protection may manifest themselves in connection with certain statutory licensing procedures, (22) and employers may require disclosure of protective orders by individuals seeking employment.

      Protective orders may have consequences in civil suits seeking damages as well. One commentator has remarked that while protective orders "are not meant as a tool for obtaining civil damages, they may be helpful to a victim in that respect as well." (23) A protective order may also support a key element in negligence actions based on police inaction in the face of domestic violence, as it is evidence of a "special relationship" based on direct contact between the police and the alleged victim, which then gives rise to a reasonableness standard in assessing the police failure to act. (24)

   2. Critiques and Criticisms

      The Adult Abuse Act and the CPOA are largely regarded as effective and important tools in protecting victims of domestic violence, but that is not to say that there has been no criticism. (25) In general, critiques have focused on the potential for misuse of protective orders and the corresponding effect on persons against whom orders have been issued.

      For example, Judge David Dunlap of Missouri (26) has noted that the Adult Abuse Act poses different problems with regard to two distinct classes: "traditional" litigants--persons seeking relief against another in a present domestic relationship; and "nontraditional" litigants, or everyone else. (27) For "traditional" litigants, the issue is that in practice the Adult Abuse Act is often employed "as an adjunct to (or among the very poor, a surrogate for) dissolution of marriage proceedings." (28) The Act's provisions allow parties to appear pro se, without court costs, and have the court determine issues such as asset allocation, child custody, and spousal support. (29) This has been problematic for many courts, as "[j]udges are understandably loath to address such issues in a primitive setting lacking discovery, formal pleadings or participation of counsel; but the law says they must." (30) On the other hand, according to Dunlap, the "nontraditional" cases primarily consist of "[c]omplaints ... of small outrages long considered beneath the threshold of judicial involvement," and judges routinely grant the requested relief based mostly on a desire to end the proceeding without a courtroom conflict. (31) The use of protective orders for these "small outrages," such as disputes between neighbors, is clearly an unintended result of the Adult Abuse Act, yet the practical concerns voiced by Dunlap make it easy to understand how this practice has persisted.

      These effects may also raise concerns regarding the constitutional rights of an individual against whom an order of protection is granted. In 1982, the Missouri Supreme Court entertained an early challenge to the Adult Abuse Act on procedural due process grounds in the case of State ex rel. Williams v. Marsh. (32) Analyzing the Act's allowance of ex parte orders depriving an individual of a property interest in his home and a liberty interest in child custody, the court in that case found that these interests were outweighed by the governmental interest in protecting abuse victims and preventing further abuse. (33) The court also held that the existing procedural safeguards were adequate to protect against erroneous deprivation of the respondent's constitutionally-protected rights. (34) At the time of the litigation in Williams, however, the Adult Abuse Act was in its pre-amendment form and now is significantly broader in scope. (35) This has led one commentator to note with surprise that the Missouri Supreme Court has not reconsidered the constitutionality of these "astonishing liberalizations, notwithstanding the fact that they far outrun the original legislative rationale so carefully upheld in Williams." (36)

   3. Mootness & Collateral Consequences in Missouri

      Given the issues outlined in the preceding sections, it is not surprising that certain individuals seek appellate review of protective orders issued against them. The problem, however, is that full orders of protection, limited to a one-year duration in Missouri, (37) often expire before an appellate court has the opportunity to consider the case. (38) The following section will first examine court approaches to this issue in Missouri, and will then explore how other jurisdictions seek to address the tension between mootness and lingering collateral consequences.

      Under Missouri law, an issue is moot and will not be considered on appeal "[w]hen an event occurs that makes a court's decision unnecessary or makes the court's granting of relief impossible." (39) Missouri courts, however, recognize two distinct exceptions to this doctrine. (40) The first occurs when the event in question occurs after the case has been submitted and argued. (41) The second is commonly known as the "public interest" exception. (42) Missouri courts consistently refer to this exception as a narrow one, and it is only available if the issue is not likely to be "present in a future live controversy practically capable of review." (43)...