HSC finds many exceptions to mootness, declines legislating from the bench.

Doe v. Doe (HSC December 13, 2007)

A six-year-old child’s parents divorced. Sole custody went to the mother, who lived on the Big Island. Dad lived in California. The grandparents petitioned for visitation rights of the child on the grounds that it would be in the best interests of the child if they had reasonable visitation rights. Mom challenged the petition arguing that the statute allowing grandparental visitation rights, HRS § 571-46.3 was unconstitutional on its face in light of Troxell v. Granville, 530 U.S. 57 (2000). The family court agreed with Mom and dismissed the grandparents’ petition. About five months after the grandparents appealed, Dad took custody and the child moved to California. The State filed a “Notice As To Possible Mootness” arguing that the issue might be, well, moot. The HSC ordered a show cause as to why it should not be moot. Mother did so.

Mootness Was the Case. A case is moot when “events have so affected the relations between the parties that the two conditions for justiciability relevant on appeal—adverse interest and effective remedy—have been compromised.” Okada Trucking Co. Ltd. v. Bd. of Water Supply, 99 Hawai’i 191, 195-96, 53 P.3d 799, 803-04 (2002). In other words, “a case is moot if the reviewing court can no longer grant effective relief.” Kahoohanohano v. State, 114 Hawai’i 302, 332, 162 P.3d 696, 726 (2007). The HSC held that this case was moot when custody went to Dad. The grandparents’ petition sought visitation rights from Mother, who no longer has custody. The fact that Mom doesn’t have custody, according to the HSC, means that there is no effective remedy. If that is the reason why it’s moot, then it begs the question: would it have been different if the petition sought visitation rights regardless of the custody provider? Which leads to another question—are the grandparents being punished for being specific? Probably not. The grandparents expressly stated that they didn’t object to dismissal of the appeal based on mootness.

Not Just One, Not Just Two, But “Several.” In spite of the mootness, the case falls w/in the public-interest exception. The HSC clarified, for the 2d time this year, see Kahoohanohano, that the public-interest exception is “separate and distinct” from the capable-of-evading-review exception. Over the years, these two merged into a two-step analysis. This is inaccurate. In fact, the HSC, w/o naming them, stated there were “several” exceptions to mootness.

When analyzing the public-int. exception, the court looks at (1) the public or private nature of the question; (2) the desirability of an authoritative determination for future guidance of public officers; and (3) the likelihood of future recurrence of the question. The HSC held that b/c the family court invalidated the statute on its face, the fact that so many families could be affected was a public concern. Secondly, the ruling casts a shadow over the legitimacy of the statue thereby calling for an authoritative determination. Finally, the issue could arise where any parent seeks to challenge a petition under HRS § 571-46.3. Thus, the exception was met.

Harm to Rather than Best Interests of. Upon examining the issue, the HSC held that the family court did in fact err in relying on Troxel, a plurality opinion, to invalidate the statute. Nevertheless, Troxel does not address the question of whether there must be a finding of harm to the child for allowing non-parental visitation rights rather than the best interests of the child standard. The HSC determined that a parent’s raising of a child is a “fundamental liberty interest” and a statute that infringes on it calls for strict scrutiny. The HSC adopted those jurisdictions that have held a custom-made formulation of “strict scrutiny”: non-parental petitioner must show that child will suffer “significant harm” w/o visitation before the family court can consider whether the visit is in the best int. of the child. The HSC held that because HRS § 571-46.3 merely states that visitation must be in the best interests of the child and does not require a showing that the child would be significantly harmed w/o the visitation goes beyond interpretation into the taboo of judicial legislation and affirmed the family court.

Add this one to the Legislature’s To-Do List next session.


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