Thursday, October 16, 2008

Prejudice Pushes Aside Mootness Doctrine

Hamilton v. Lethem (HSC October 14, 2008)

Background.
Hamilton, the mother, filed a temporary restraining order on behalf of her daughter against Lethem, the father. At the hearing on the TRO, Lethem raised the parental justification defense, but the family court confirmed the TRO. Lethem appealed to the ICA and while it was pending, the TRO expired. The ICA concluded that the appeal was moot and no exception applied. A majority proceeded onto the merits of the appeal, reversed the family court, and ordered the family court to dismiss the case. Judge Foley dissented because he believed the appeal should have been dismissed for mootness.

The Mootness Doctrine. A case is moot "where events subsequent to the judgment of the trial court have so affected the relations between the parties that the two conditions for justiciability relevant on appeal--adverse interest and effective remedy--have been comprised." Lathrop v. Sakatani, 111 Hawai'i 307, 312-13, 141 P.3d 480, 485-86 (2007). In this case Lethem did not dispute the applicability of the mootness doctrine. When the TRO expired, there was neither an adverse interest nor effective remedy for the ICA to address. Lethem instead argued that at least one of the exceptions to the mootness doctrine applied.

The Capable-of-Repetition-yet-Evading-Review Exception. Under this exception, a court will hear the case despite its mootness when governmental action "evade[s] full review because the passage of time would prevent any single plaintiff from remaining subject to the restriction complained of." In re Thomas, 73 Haw. 223, 226-27, 832 P.2d 253, 255 (1992). A TRO expires after 90 days. HRS § 586-5. Given this short time-span, it is always going to evade review. McCabe Hamilton & Renny Co. v. Chung, 98 Hawai'i 107, 117, 43 P.3d 244, 254 (App. 2002). Thus, according to the HSC, the only question was whether these facts were "capable of repetition." Again the HSC looked to McCabe, and determined that in order to be capable of review, the record must demonstrate some "reasonable expectation that the alleged violation would recur." Id. at 119, 43 P.3d at 256. The HSC noted that the daughter in this case reached the majority age and would no longer be subject to her parents' custody dispute. Furthermore, there is nothing showing that another TRO would emerge.

A Two-Part test? At first glance, it appears that the standard for the entire exception is formulated in Thomas. But if that were so, then the exception would apply every time governmental action--in this case the continuance of the TRO--evades review because time prevented the plaintiff from complaining. This clearly explains the "evades review" part, but it does not account for the "capable of repetition" part. Perhaps that's where the "reasonable expectation" of repetition comes in. So is this a two-part test? Does this mean that to meet this exception, the governmental action must evade review ala Thomas and there must be a reasonable expectation that the challenged violation will continue? If that is the case, then it appears to be a two-part test more so than a single formulation under Thomas.

The Public-Interest Exception. Under this exception, the court must examine (1) the public or private nature of the question presented; (2) the desirability of an authoritative determination for future guidance of public officers; and (3) the likelihood of future recurrence of the question. Doe v. Doe, 116 Hawai'i 323, 327, 172 P.3d 1067, 1071 (2007). Here, the HSC agreed with the ICA that this dispute was private in nature and did not involve questions affecting the public interest. In doing so, it rejected Lethem's contention that his constitutional right to raise (and discipline) his children and the intrusive nature of the TRO process has on families. The HSC explained that this exception typically applies to cases that "focus[] largely on political or legislative issues that affect a significant number of Hawai'i residents." See, e.g., Id. at 327, 172 P.3d at 1071 (in the public interest to review a family court's ruling on a grandparent's constitutional challenge to restrictive visitation rights); Kaho'ohanohano v. State, 114 Hawai'i 302, 333, 162 P.3d 696, 727 (2007) (appeal would affect all state and county employees); Right to Know Committee v. City and County of Honolulu, 117 Hawai'i 1, 9, 175 P.3d 111, 119 (App. 2007) (whether county body had to conduct business in full public view and in compliance with Sunshine Law more public in nature than private). In contrast to those cases, the HSC held that this case was "of a purely personal nature" that did not involve political or legislative matters affecting a significant number of people. Thus, this exception did not apply either.

Justice Acoba's Concurrence. Justice Acoba agreed with the HSC majority in every respect but this one. Justice Acoba believed that when fundamental constitutional rights are at issue, the public-interest exception is applicable even if it did arise in a purely private dispute. Justice Acoba explained that reviewing and interpreting challenges based on a violation of constitutional rights "provided needed guidance on fundamental issues of public importance[.]" Justice Acoba applied the other two prongs to illustrate the importance in allowing the case to proceed. He believed that the family court would benefit from a decision examining whether the parental discipline defense is appropriate in TRO proceedings. He also believed that it "is highly likely, if not certain, that the fundamental question of a parent's right to discipline and participate in the raising of his or her child will arise" again. According to Justice Acoba, this case presented fundamental constitutional rights and that should have been weighty enough to get beyond the first prong.

And Introducing the Collateral-Consequences Exception! The HSC explicitly adopted another exception to the mootness doctrine thereby allowing a case should be heard when the effect of the decision would have "collateral consequences" on the party seeking relief. Specifically, the litigant must show "a reasonable possibility that prejudicial collateral consequences will occur." Putnam v. Kennedy, 900 A.2d 1256, 1261-62 (Conn. 2006). These consequences must be more than conjecture but can be less than preponderant evidence. Id.

What kind of Prejudice are we Talking About? While it is unclear how diverse the prejudice may be, the HSC here specifically addressed the prejudicial consequences to a person's reputation in being found guilty of a TRO based on abuse. In evaluating a harmed reputation, the HSC revisited State v. Bani, 97 Hawai'i 285, 36 P.3d 1255 (2001), where the HSC examined the detrimental effects of the sex-offender registry. In that case, the HSC concluded that the registry (1) implied that the litigant was potentially dangerous and thus undermined his reputation and standing in the community; (2) could result in potentially reluctant employers and landlords; (3) could adversely affect his personal and professional life, employability, and associations. Id. at 294-96, 36 P.3d at 1264-66. It also had the potential to expose the litigant to vigilantism and physical violence. Id. at 291-92, 36 P.3d at 1261-62. The HSC admitted that although TRO based on abuse is less serious than a conviction for a sex offense, it still has the stigma of making Lethem a potentially dangerous person which undermines his standing in the community, it could result in reluctant landlords and employers, and it could affect his personal and professional life. Thus, the HSC applied the new exception here.

The Parameters of this new Exception. This exception has the potential for expansive application. Putnam explains that "[t]he 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." Putnam v. Kennedy, 900 A.2d at 1261-62. Furthermore, the HSC pointed to two cases that applied the exception in two very different ways. See In re Doe, 81 Hawai'i 91, 912 P.2d 588 (App. 1996) (collateral consequences exception applied where divorce order awarding full custody to mother as it had a direct impact on father's right to visit his children); Carafas v. LaVallee, 391 U.S. 234 (1968) (although moot because defendant served sentence, the detrimental affect conviction bore on his ability to serve as a labor union official was a prejudicial collateral consequence). These two cases may serve as examples of this new-fangled exception in different contexts. It may also mean that the impact of a decision, while moot, need not be confined to harm of a party-litigant's reputation.

The clearest example may be an appeal from a conviction for a sex offense after the defendant served his or her sentence. Having to constantly register on the sex-offender registry is obviously a prejudicial collateral consequence. The same could be argued for a felon's inability to possess a firearm. The impact that has on a person's constitutional right to bear arms (like a parent's constitutional right to visit his or her children) is impacted. Then again, it is too early to say. Read narrowly, the collateral-consequences exception could be limited to just TROs based on abuse and the prejudice may be limited to harm to a person's reputation. We will have to just wait and see.

1 comment:

line of flight said...

Thanks for this. I somehow missed it last week!