Appeals from expired Orders of Protection may not be moot

Matter of Veronica P. v Radcliff A.,

___ NY3d ___, ___ NYS2d ___, 2015 NY Slip Op 01300 [February 12, 2015]

The Court of Appeals holds here that an order of protection from the Family Court, based on a finding of a family offense, is not rendered moot and unappealable solely because it has expired. The continuing consequences to the respondent, both in legal proceedings and to his reputation, require the availability of appellate review.

Even though the terms of the order do not contain an explicit finding of guilt, the issuance of the order itself implies a finding of a family offense, which may work against the respondent in future proceedings. The underlying oral decision, containing the explicit finding, is likely to come to light and have adverse consequences. The existence of the order may be used to impeach his credibility. The order remains in police databases, and increases the likelihood of his being arrested in the future. Moreover, the order carries with it the stigma of a family offender, and adversely affects the respondent both socially and in the job market.

Therefore, the Court reversed the order of the Appellate Division dismissing the appeal for mootness, and remitted for a consideration of the merits.

The Court noted that it was stopping short of a blanket holding that appeals from all expired orders of protection are not moot.

It should be recognized that the holding here is that the matter was not moot, and not that it falls within the exception to the mootness doctrine. When circumstances have overtaken a case, such that the rights of the parties are no longer at stake and there is no longer an actual controversy before the court, the usual rule is to dismiss the case as moot. Otherwise, the court would have to issue an impermissible advisory opinion. The well-recognized exception to that rule allows consideration of an otherwise moot case where there are

“three common factors: (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i. e., substantial and novel issues.” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-175)

That rule has been applied in the Court of Appeals in recent years to allow consideration of cases involving the permissibility of forced feeding of a hunger-striking inmate who had in fact given up his hunger strike (Matter of Bezio v Dorsey, 21 N.Y.3d 93 [2013]) and a question of due process in an agency’s failure to advise a claimant of benefits where she had begun receiving the benefits (Coleman v Daines, 19 N.Y.3d 1087 [2012]).

Here, by contrast, there remains a live controversy between the parties which has actual consequences for them. Therefore, it was not moot.