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PPO Appeal Not Moot Simply Because It Had Expired

Posted on Friday, June 1, 2018

An appeal involving the entry of a personal protection order (PPO) is not moot just because the PPO expired while the appeal was pending, the Michigan Supreme Court has ruled.

In TM v MZ (Docket No. 155398, decided 5/18/18), the Court of Appeals had concluded the appeal on the PPO was moot because the case was argued after the PPO had expired.

But the Supreme Court disagreed. “[A]n appeal challenging a PPO, with an eye toward determining whether a PPO should be updated in LEIN as rescinded, need not fall within an exception to the mootness doctrine to warrant appellate review; instead, such a dispute is simply not moot,” the Supreme Court said, reversing the Court of Appeals decision in the case.

Modified PPO

The petitioner, TM, and the respondent, MZ, were neighbors. They were both involved in local politics.

The petitioner requested a PPO, asserting the respondent had posted disparaging comments about the petitioner on Facebook and that it constituted harassment. The trial court granted the PPO request. The respondent then asked the trial court to terminate the PPO because there were no allegations of physical contact between the parties or any threats of violence. The trial court denied the request but modified the PPO to only prohibit the respondent from posting messages through any medium of communication, including the Internet, a computer or any electronic medium (MCL 750.411s).

The respondent appealed, claiming the petitioner had failed to allege facts satisfying MCL 750.411s and asserting the PPO was an attempt to restrict free speech. The matter was not argued before the Court of Appeals until nearly a year after the PPO had expired.

The Court of Appeals dismissed the appeal as moot because the PPO had expired, and the record did not show it had been renewed or extended. Because it held the appeal was moot, the Court of Appeals did not address the merits of the respondent’s arguments.

The respondent appealed to the Supreme Court, which granted leave and directed oral argument on whether an appeal from a PPO is rendered moot by the sole fact of its expiration.

Practical Legal Effect

The respondent argued to the Supreme Court that the appeal was not moot because there remained “practical legal relief” he could receive.

This “practical legal relief,” according to the respondent, was that if the Court of Appeals concluded the PPO should never have been entered, then the PPO would be rescinded and notice of this fact would be entered into the Law Enforcement Information Network (LEIN) pursuant to MCL 600.2950a(19)(b) and (20).

In other words, the respondent claimed that because law enforcement performs background checks using LEIN, he had an interest in “clearing the cloud of this allegedly erroneous PPO from his name.”

Addressing these arguments, the Supreme Court explained there are two lines of appellate cases involving PPOs and whether an appeal is moot. One line of cases, the Court said, has found that when a PPO expires while an appeal is pending, the appeal is moot. The second line of cases has held the case is not moot despite the PPO’s expiration, as long as the respondent can show a “presently existing collateral consequence of the PPO” (usually employment related).

Therefore, the question was whether a “presently existing collateral consequence” included the presence of the PPO against this respondent in the LEIN. According to the Supreme Court, several unpublished appellate opinions have held that cases were not moot because the respondent could identify a “presently existing collateral consequence” due to a PPO being entered in LEIN.

Meanwhile, other Court of Appeals opinions have indicated that a respondent’s interest in correcting LEIN is sufficient to prevent an appeal from becoming moot, the Supreme Court noted. These opinions suggest “either that the presence of the PPO in LEIN is itself a present collateral consequence, or that the issue is not moot because it is possible for the court to provide some remedy,” the Supreme Court said, citing Visser v Visser, 299 Mich App 12 (2012).

“We conclude that identifying an improperly issued PPO as rescinded is a live controversy and thus not moot,” the Supreme Court wrote. “A judgment here can have a ‘practical legal effect’ under Anway [v Grand Rapids R Co, 211 Mich 592 (1920)] because if the Court concludes that the trial court should never have issued the PPO, respondent would be entitled to have LEIN reflect that fact.”

Accordingly, an appeal challenging the entry of a PPO, with the goal of determining whether that PPO should be updated in LEIN as being terminated, involves a dispute that “is simply not moot,” the Supreme Court said. “Consequently, and contrary to the decision of the Court of Appeals, the mere fact that the instant PPO expired during the pendency of this appeal does not render this appeal moot.”

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