Hamilton Ex Rel. Lethem v. Lethem

193 P.3d 839 HAMILTON,

Lily E. on behalf of Amber LETHEM, minor, Respon

J.

dent/Plaintiff-Appellee. LETHEM,

Chris L. Petitioner/Defendant-

Appellant.

No. 27580.

Supreme Court of Hawai'i.

Oct. (of Key Leong H. Thomas Damon

Robert Hastert), Honolulu, petition- for Kupchak er/defendant-appellant. Hioki,

Stephen respondent/plaintiff- T. appellee, on the record. NAKAYAMA, LEVINSON,

MOON, C.J., ACOBA, DUFFY, JJ.; J., concurring separately.

2 MOON,

Opinion by unanimously that, of the Court C.J. ICA held because Father’s appeal any excep- did not fall within of the 23, 2008, September accepted On court doctrine, appeal tions timely application certiorari, á for a writ of ICA, majority however; moot. A was 2008, 14, August petitioner/defen- filed on proceeded TRO, family to vacate the (Father), dant-appellant L. Chris Lethem FOFs, COLs, remanding and the case with seeking review of the Intermediate Court of family instructions to the court to dismiss the (ICA) Appeals’ 23, judgment June 2008 on underlying disagreed, case. The dissent 16, appeal, pursuant May entered to its opining appeal that the should be dismissed. (SDO). summary disposition order See Lethem, 27580, argues application Hamilton v. No. Father on that the ICA 379, 756, (App. erred WL 2069780 when it determined his did not 2008) 16, J., May (Foley, dissenting). exceptions fall There- within to the moot- in, holding underly- such, the ICA—after ness doctrine. As Father contends ing appeal brought by Father moot— that in dismissing the ICA erred Family addressing vacated the Court of the Cir- without First the merits.3 1 (1) September parte cuit's 2005 ex tem- upon below, Based the discussion we hold (TRO) porary restraining order issued in failing the ICA erred to address the (2) Father; against October 2005 order We, therefore, merits of Father’s TRO; regarding the and March vacate the judgment ICA’s June on (FOFs) Findings of Fact and Conclusions of appeal and remand this case to the ICA with (COLs) [hereinafter, collectively, Law instructions to address the merits of Father’s TRO, FOFs, and and COLs] remanded the appeal, opinion. consistent with this ease to the court with instructions to dismiss the case. I. BACKGROUND Briefly stated, respondent/plaintiff-appel- Proceedings A. Family Court Before (Mother), Lily lee E. Hamilton on behalf of succinctly summarized the ICA: then-fifteen-year-old (Minor), daughter her against obtained a upon September 2005, [Mother], TRO Father based On on alleged physical psychological [Minor], and parte behalf of an petition filed ex hearing abuse of Minor. At the against show cause for a Father under [TRO] [HRS] TRO, (1993 unsuccessfully on § Father Supp.2004). asserted 586-3 & alleg- parental justification edly physically defense.2 Ultimate- had psychologically ly, prior confirmed the al- abused August on and [Minor] lowing it to remain in effect until December striking during her a argu- heated (the original ninety-day TRO’s ment assisting about the [Minor’s] friend term). expired during pen- The TRO obtaining product. birth control dency appeal. Consequently, [TRO], of Father’s granted September 23, 2005, Darryl Choy presided reasonably 1. The Honorable purpose Y.C. over related to the of safe- underlying proceedings. guarding promoting or the welfare of the minor, including prevention punish- or defense, misconduct; parental justification 2. The codified at ment of the minor's (HRS) (b) Hawai'i Revised Statutes designed The force used is not to cause (1993), Principles is contained in the "General causing or known to create a risk of substan- Justification” section of the Hawai'i Penal Code bodily injury, disfigurement, tial extreme provides part: in relevant distress, pain neurological or mental or dam- age. upon person The use of force or toward the justifiable following of another is under the ICA, 3.On direct before the Father essen- circumstances: tially argued chapter that: HRS parent guardian 586 uncon- The actor is the or stitutionally “infringes upon parent's right[] person similarly responsible other general for the minor, supervision and raise [his her] care and children without of a or a governmental person acting request parent, "parental at the interference” as disci- abuse”; guardian, responsible pline person, or other and: is not child or domestic (a) employed regard The force is with due court abused its discretion in age past for the and size of the minor and is acts of abuse had occurred. 22, particular application- expiration date of December relevance to the instant had following are the COLs: hearing on At a October allegations petition The material [f]amily justified found the TRO was [c]ourt proven. have been is the father [Father] 4] [ further that no action [ruled] statutory relationship blood [Minor] necessary. Regarding It its Order physi- has been established. did [Father] [TRO], day, [family] filed the same harm, cally injure[] or assault[] [Minor] court no further action declared would be by striking August her on 2005 and expire taken and that the TRO would on threatening physical her with further its own on December harm. (footnote omitted). SDO at parental discipline has raised [Father] 701-309(a) However, § under that [HRS ]. Additionally, hearing, at the close of the applies section to criminal not civil ac- that, argued pursuant Father’s counsel Moreover, appear tions. while would justification defense, parental suprn see note disciplined that was [Minor] [Father] transpired Father events between assisting obtaining her friend a with situation,” but, “an and Minor were not abuse product, discipline birth control is- over instead, [Mother], has sues morals lies with who really daughter a what we have is who’s physical custody. sole Assum- know, you trying way to find a not to ing additionally that struck [Mi- [Father] rules, trying follow the and dad who is her because of refusal discuss this nor] things enforce those rules. And the two during night, the issue late a school court conflict, just exactly are and that’s when prop- concludes that such an action is not appropriate discipline. it is to use discipline. parental er court, however, family rejected The Father’s court, therefore, The concludes that the orally ruling happened argument, that “what allegations support have [TRO] parental discipline. in this was not On [case] allowing prove[n] been and that the order grounds, compelled this court is those in full force and effect until the remain grant restraining you ... this order. expiration date of December set know, this be no further action. [sic] will requested by justified. is [Mother] believes that the restraint was [The c]ourt justified.” Appeal the ICA B. Before 3, 2005, timely On Father filed November se) (appearing chal family appeal, pro On his notice of from the court’s Thereafter, lenged family FOFs and COLs. 2005 order. on March October (1) 3, 2006, family request essentially argued that: HRS court—at the of Father pro chapter (governing domestic abuse Father—entered its FOFs and COLs. Of parties family ruling part party to whom it is directed from The court's was based in or 586-4(c) (2006), provides: upon threatening, abusing contacting, physically HRS which or judge may applicant's household members. issue the ex or orally, person being parte only binding upon if re- [TRO] The order shall not be present action, in court. The order shall probable strained is upon parties also their offi- but there cause to believe state that cers, servants, attorneys, agents, employees, or occurred, past have that a act or acts of abuse any persons partic- or in active concert probable or that threats of abuse make it enjoin ipation with them. The order shall may acts of abuse be imminent. The order respondent person to be restrained from or necessary [TRO] further shall state that the following performing any combination purposes preventing acts of abuse for the of: acts: preventing a recurrence of actual domestic or abuse; (1) Contacting, threatening, physically or ensuring separation period abusing protected party; parties involved. The order shall also de- threatening, Contacting, physically or scribe in reasonable detail the act or acts sought any residing protected abusing person necessary, Where to be restrained. residence; party’s or may require parties either or both of the order visiting protected party's Entering or premises during peri- involved to leave the residence. order, may od of the and also restrain orders) unconstitutionally “infringes Specifically, action. SDO at 5-6. tective that, majority light right[ and raise concluded upon parent’s ] McCabe, governmental children [his her] without “parental discipline interference” as is not September from the abuse”; child domestic (and orders) 2005 TRO the related [was] court abused its discretion in moot[,] and we do not reach the merits of Although past acts of abuse had occurred. Ing, points See Johnston expired,5 recognizing that the TRO had Fa 50 Haw. P.2d ther nevertheless contended that his (noting “appellate not con- courts will view, not moot. In his the TRO’s effect questions”). reaching sider moot ongoing on Mother’s and Father’s conclusion, we note he respect case to Minor—of which this case not the result of action judicial the ICA to take notice—“was asked taken Because are unable [F]ather. dramatic, unfair, wrong[,] significant.”6 claim, to reach the merits of Father’s that, Further, ap if argued Father even [fjamily vacate the orders so [c]ourt’s moot, peal exceptions it fell to was within they any preclusive will not have issue doctrine.7 mootness effect. contended, alia, response, In Mother inter Consequently, Id. at 5. the ICA remanded (1) appeal that: was moot because to the case court “with direction (2) 2005; 22, expired on the TRO December dismiss the action.” Id. at 6. Father did not and could not “demonstrate Contrary majority’s position, Associ ‘clearly [family] that the court's [FOFs were] dissent, Foley, Judge ate in his two-sentence (3) ”; erroneous’ Father’s contention that, appeal declared inasmuch as Father’s entry of the TRO erroneous was was moot, simply should have been dis without merit because Mother had sole 2, Dissenting Op. missed. 193 P.3d at 840. Minor, and, such, custody physical of as support position, of its the dissent cites to right determine the she had “sole Sakatani, Lathrop this court’s decision manner of of said minor.” 480, 307, Hawai'i P.3d requested Mother that the ICA dismiss Fa- (2006) (dismissing appeal as moot be appeal ther’s as moot. appellants stay on cause the failed to seek ICA, SDO, 16, 2008, May On in a 2-1 the execution of the circuit court’s order held that Father’s moot and that expunging property pendens the lis and the any exceptions it did not fall within party pending appeal). was sold to a third doctrine, fully discussed more in judgment The ICA entered its previously SDO at 2-4.

fra. 23, 14, 2008, August on June 2008. On Fa- stated, ICA, relying on its decision in application ther filed his of certio- for writ Renny Chung, McCabe Hamilton & Co. v. response. rari. Mother did not file a 107, (App.2002) (holding 43 P.3d 244 Hawai'i imposition preclusion ap of issue where pellate by review has been frustrated moot II. STANDARD REVIEW OF unfair) obviously ness [hereinafter ], It is axiomatic that mootness is an McCabe vacated FOFs, COLs, remanding jurisdiction. the case to the issue of matter “Wheth possesses subject jurisdic to dismiss the er a court matter with instructions 19, 2006, opening May fully infra, has 5. Father filed his brief on 7.As discussed more this court 22, recognized exceptions two to the mootness doc expira- five months after the December exception; trine: interest tion the TRO. "capable repetition, yet evading review” Doe, exception. See Doe v. 116 Hawai'i that, although requested 6. We note Father (2007) (noting n. public 172 P.3d 1071 n. 4 judicial ICA take notice of the he "capable interest and the file(s) provide failed to the relevant with his repetition, yet evading exception are review” appeal. distinct”). "separate and question tion is a of law renewable de novo.” 327 n. 172 P.3d 1071 n. 4 wai‘i Serv., Dep’t Kaho'ohanohano v. Human (noting and CRER distinct”). exceptions “separate are Ad (citation quotation ditionally, and internal marks omit although explicitly adopted never ted). court, ICA, Doe, this in In re (App.1996), adopted 912 P.2d 588 applied exception—the another mootness

III. DISCUSSION consequences” exception—which “collateral stated, previously Father—arguing pro argues Father adopted should be this appli- se—contends the ICA erred in its here, Accordingly, court. the issue cation the mootness doctrine to the facts framed application, Father in his Specifically, argues his case. that his excep whether of the aforementioned excep- falls within at least one of the apply, thereby tions the mootness doctrine tions the mootness doctrine. requiring review of the merits of his It is that: well-settled We, therefore, review each turn. The mootness doctrine is said encom- regard exception, With to the first pass destroy circumstances court has stated: justiciability previously of a suit suitable phrase, “capable yet repetition, way, for determination. Put another review,” evading means that “a court will suit remain throughout must alive grounds not dismiss a case on the of moot- litigation course of to the moment of final challenged governmental ness where ac- appellate disposition. purpose Its chief is tion would full because evade review adversary system, to that the assure once passage prevent any single of time would operation, properly set in remains fueled. plaintiff remaining subject from to the re- appropriate The doctrine seems where complained period striction of for nee-' subsequent judgment events to the of the essary complete the lawsuit.” trial court have so affected the relations Thomas, 223, 226-27, In re 73 Haw. parties between that the two conditions (1992) (citation omitted). 253, 255 justiciability appeal—ad- relevant on Here, the ICA concluded that “there remedy—have verse interest and effective expectation pre no reasonable [was] compromised. been dispute cise factual situation this Lathrop, 111 at 141 P.3d at 485-86 likely and, therefore, facts in to recur (citations omitted) (format altered); see also capable repetition, yet this case not of [were] Children, 38, 57, In re Doe review, evading meaning within the of.the (stating P.3d that “the two recognized exception to mootness.” SDO at justiciability conditions for relevant on (citations omitted). 3-4. remedy”). adverse interest effective [are] argues by fail- Father that the ICA erred case, In this the TRO issued ing to hold fell that his within expired court on December two CRER because years and six months before the ICA issued (cid:127) challenged gov- the issue is ... a whether Thus, its SDO. the ICA that Fa believed action full ernmental would evade review expira ther’s moot because “the solely passage due to the Un- time[.] prevented tion of the TRO from ICA] doubtedly, [ninety-]day the issue of a providing remedy.” an effective SDO at 3 challenged governmental action TRO—the (citations omitted). However, court this has [(cid:127)— n ] expiration always result in an would explicitly recognized exceptions two prior appellate review. “capable repeti doctrine: mootness tion, yet Additionally, alleges evading review” that he continues [hereinaf ter, custody youngest exception]; parties’ CRER to seek Doe, Thus, exception. daughter.8 argues he that the same See Doe v. 116 Ha Although age younger daughter is not 8. The record reveals that Father and Mother record, parties daughter younger specifically have a who is than Minor. reflected in the both tion,” capable repetition speculationf “mere situation is inasmuch as because ]” person a “reasonable could conclude that Fa- nothing “there [was] record that dem- again onstrate,[d] ther has before and will move for expectation a ‘reasonable ” 9 [Minor-sister,] Mother, custody of with alleged violation recur.’ Id. [would] attorney, apply her will for anoth- added) without (emphases P.3d at parte er ... ex TRO on behalf of (citation omitted). [Minor- court, The McCabe there- prevent custody decision on the sister] fore, held that the did not fall case within the merits.” exception. CRER Conversely, Mother contended on direct Here, Minor, during pendency of this appeal that not fall Father’s case did within and, appeal, age majority reached the exceptions doc- mootness such, longer can no be the of Father’s trine inasmuch as custody dispute. and Mother’s SDO at 4. present all other TRO as with [t]he Minor, regard to there is no “rea- member[, involving cases abuse of a expectation” sonable the factual situa- based the facts of each case. The was] presented in tion this case could or would [family must decide on a case c]ourt Father, nevertheless, that, argues recur. be- alleged case basis whether the acts of an dispute there remains a cause between Moth- perpetrator arise such level that [sic] regarding custody er and Father of Mi- protection an order for should arise. Giv- nor-sister, presented the factual situation paucity appeal, en the of the record on capable repetition. there is no applying should refrain from [e]ourt said evidence in the record that Father “has exception to the doctrine. This again moved before and will move for custo- does not have all the facts before it [c]ourt dy [Minor-sister,] Mother, with or to make such a decision. attorney, apply without her for another will nature, very that a We believe its parte ... ex TRO on behalf of [Minor-sister] would, always will evade review because it prevent decision on the merits.” here, expire ninety- it did initial within the Although Father cites to the day (stating term. See HRS allegedly case involved Father’s and granted pursuant chapter that a TRO 586 Minor-sister, Mother’s over he has ninety days). shall not exceed The ICA part failed to include such case as of the seemingly agrees, having in held McCabe Thus, nothing record on “there in is “TROs, fundamentally because of their the record that demonstrates a ‘reasonable nature, fleeting will in most instances evade expectation alleged violation will re- 120, 98 at 43 P.3d at 257. review.” Hawai'i ” McCabe, 119, cur.’ 98 at 43 P.3d at Hawai'i Thus, the here issue is whether factual (citation omitted). Accordingly, we con- underlying “capable situation this case is pre- clude that Father’s “contention that the repetition.” dispute cise factual situation this McCabe, In the ICA determined that an ex likely conjectural appel- to recur is ‘too for ” paite against employee TRO entered one in (citation omitted). late review.’ Id. group employees, pursu- favor of a of other regard exception With to the second ant to Hawai'i Rules of Civil Procedure (HRCP) doctrine, to the mootness this court has re (governing Rule 65 the issu- TROs), cently analyzing public stated: ance of rendered moot due “When was exception, expiration. TRO’s interest [this court] look[s] 98 Hawai'i 43 P.3d public private question at 254. The McCabe court concluded that nature of the contention, i.e., appellants’ presented, desirability that the factu- of an authori presented “capable repeti- guidance al situation tative determination for future appear [hereinafter, agree currently pre- that she is a minor remanded the case for in order dismissal TRO, Minor-sister]. [was] vent the "which unreviewable be- mootness, spawning any legal cause of from con- 9. We note that the McCabe court did not address sequences.” 98 Hawai'i at 43 P.3d at 258 but, nevertheless, appellant’s appeal the merits of (citations omitted). quotation and internal marks vacated the TRO issued the circuit court and officers, public in the likelihood fu- council must conduct its business full view question.” public compliance ture recurrence of the Doe v. and in Doe, public 172 P.3d Sunshine more nature Law was (2007) (citations quotation private. and internal than at 119. In omitted). summarily provided marks The ICA con- the instant Father has not dispute any cluded that “the this case is of a in the evidence record issues private ques- presented appeal political nature and it does not involve in his involve public legislative signifi tions that affect the interest.” SDO at matters will affect a people. cant number of inasmuch as appeal purely personal Father’s is of a na argues that his falls within ture, prong it fails to meet the first public interest because the un- exception. Accordingly, derlying issues affect “the fundamental concluding ICA was correct in that Father’s rights many specifi- Hawai'i families ... questions “does not that af involve cally given parent the conflict between a fect the interest.” SDO at 3. applying [chapter] parte a HRS 586 ex minor, on behalf of a based on the turn next to the “collateral We conse parent exercising parental other rights their quences” exception to the mootness doctrine. discipline ... their child.” Father addi- Although explicitly adopted by never this tionally ap- contends that “the facts of this court, consequences” excep the “collateral peal significant proble- demonstrate the doctrine, previously tion to the mootness processes, matic abuses with such TRO indicated, adopted applied by negative harmful effect on families” and Doe, ICA in In re 912 P.2d 588 Hawai'i that, therefore, paren- the issue whether the Doe, (App.1996). the ICA determined applies tal pro- defense TRO appeal by that an a father from a ceedings “requires authoritative awarding physical court order full disagree. from We [this court].” custody of the father’s children and mother’s because, to the mother was not moot al Although Father contends that the TRO though an amended order had been divorce right affects his constitutional to raise his entered, appealed “the case substantial ha[d] children, right personal such to Father. continuing on the [fa such, question presented pri is of Specifi 912 P.2d at 596. ther].” Conversely, nature. vate the cases LaVallee, cally, ICA—citing Carafas jurisdiction applied that have in U.S. 88 S.Ct. L.Ed.2d largely po terest have focused on (1968)—held that, “in addition to legislative sig litical or issues affect life, impact may on have the result nificant number of residents. For impact a direct will have Doe, example, in we held that the in rights to children.” Id. visit his Howev exception applied terest because it “in was er, pro in the ICA’s decision Doe does not public’s the interest for this court to review guidance regard to vide much with what ruling the that Hawaii’s consequences” “collateral should be consid grandparent visitation statute uncon [was] determining excep ered whether this when stitutional on its face.” 116 applies. tion to the mootness doctrine Additionally, P.3d at in 1071. Kaho'oha State, Likewise, provides only limited nohano v. 114 Hawai'i Carafas (2007), subject this court held that the a court should as to what factors appeal applying of a nature because consider the “collateral conse- was the when county quences” exception the outcome would affect all state and mootness doctrine. Carafas, granted employees. Id. at 162 P.3d at 727. In the Court certiorari Likewise, expira- Right to Know v. determine the sole issue the Committee whether Honolulu, City County appellant’s he & tion of sentence while was (App.2007), awaiting appellate 175 P.3d 111 the ICA held that terminated federal review jurisdiction question presented of a na due to mootness. 391 U.S. Ultimately, City the Court ture because the issue whether 88 S.Ct. appeal in the can determined that the not moot due whether a decision ease afford litigant practical consequences” flowing to the “collateral from some relief appellant’s Id. at future. conviction. particular, pointed S.Ct. 1556. the Court array consequences of collateral not, appellant out that could as a result of his preclude dismissal on mootness will conviction, businesses, engage in certain diverse, grounds is and includes harm to a an official of a labor union for a serve as reputation as a result of the defendant’s time, election, period specified issue.[10] vote in judgment at juror. Id. as the or serve as Inasmuch added) (citations, (emphases Id. at 1261-62 appel- Court determined that Carafas marks, quotation original internal brack moot, lant’s was not it remanded the omitted). The Putman court reasoned ets ease for a decision on the merits. Id. at 241- that, it, in the case before “the threat of 42, 88 S.Ct. 1556. reputation[al] particularly signif harm [was] On direct in the instant Fa icant ... because domestic violence re- urged adopt reasoning stmining ther the ICA to orders not issue in the ab [do] Supreme showing the Connecticut Court Putman sence a threat violence added). Kennedy, (emphasis 279 Conn. 900 A.2d 1256 Id. at 1262 [.]” (2006). Therein, the Putman court was “being subject court concluded that of a faced with the sole issue prevent stop whether court order intended to do separate a former husband from two do may mestic violence well cause harm to the restraining mestic violence entered in orders reputation legal record of the defen against of former favor wife former hus concluding, dant.” Id. at 1263. In so During band was moot. 900 A.2d at 1258. jurisdictions court relied on cases from other pendency appeal, the TROs ex which have examined the collateral conse pired. Id. the Putman court con quences restraining of domestic violence or expiration cluded that “the of a domestic opined represent ders such cases restraining violence order does not render an majority appeals “that from domes view appeal from that because it order moot restraining tic violence orders are not ren reasonably possible signifi that there will be expiration.” dered moot their consequences person cant collateral for the Specifically, the 1263-64. Putman court Spe to the order.” Id. at 1258-59. agreed other courts that conclud have cifically,the Putman court held that: reputational ed that harm ais collateral con successfully sequence To invoke the collateral conse- of domestic violence TROs because doctrine, quences litigant “legitimate public contempt must show of the for abus possibility ers,” technology that there a reasonable “enhanced for information dissemination,” prejudicial consequences stigma” will oc- and the “social of a “protective granted Accordingly, litigant cur. must estab- order based on a (citations consequences by lish these more than mere in violence[.]” omitted). conjecture, quotation but need not demonstrate that ternal marks Addition probable ally, agreed these are more than the Putman court that a collat provides necessary consequence not. This standard eral also includes the justiciability underlying flowing limitations on ramifications from the issuance of domestic TROs because of their “ef mootness doctrine itself. Where there is violence practical proceedings, ... no direct relief available from the fect future bail future ease, judgment, presentence investigations, impeach reversal of the as in this in-court ments[,] consequences custody the collateral doctrine acts and child determina (citations omitted). surrogate, calling Aeeording as a for a determination tions.” Id. support proposition, restraining precluded 10. As for this the Putman lence orders that dismissal pointed of a case as moot. to a number of cases within its jurisdiction recognized reputa- that had harm to view, consequence support tion as a valid collateral in situa- In relied of its Putman court involving following tions other than those domestic vio- on the cases: ly, allegations involving the Putnam court held that the former the same fami- future ly, judge making husband’s case was not moot and remanded and a trial a future eusto-' the case “for consideration of the merits.” dy reasonably might determination also Id. at 1266. of a consider the issuance domestic vio- sen-, restraining making in lence order jurisdictions A number of other have Thus, sitive decision. in the sensitive and adopted consequences” “collateral as an ex explosively litigated context ception partic doctrine. Of often of fami- dissolution, ly dysfunction and there is a (due ular- relevance to the instant case to its possibility reasonable domestic vio- background) similar factual is a case from restmining prejudi- lence order will have Perna, Appeals, the Ohio Court of Wilder v. legal consequences (2007). cial collateral its App.3d Ohio 883 N.E.2d 1095 for subject, expiration. even its Accord- Wilder, In the court concluded that an after (cid:127) ingly, subject improperly of an ren- by restraining by a father from a order filed restraining mother, dered domestic violence order seeking protect parties’ likely child, to benefit from the vacatur of that minor was not rendered moot order, restraining and dismissal of his or her as expiration order’s “because it solely moot on the basis of that order’s reasonably possible that [was] adverse collat expiration improper. consequences may eral occur.” 883 N.E.2d Specifically, at 1099. the Wilder court— Putman, (quoting 900 A.2d at 1262- quoting Putman—held that: added) omitted). 63)(emphases (ellipses reputationfal] par- The threat harm is of words, court, the Wilder like the Put- ticularly significant in this context be- court, man determined that there was a rea- restraining cause domestic violence orders possibility expired sonable that an domestic will not issue in the absence the show- of restraining violence order would have collat- ing a threat violence. inas- of consequences appellants’ reputa- eral previously recognized much as we have legal tion and record “because domestic vio- importance reputation damage as a col- restraining lence orders will not issue contexts, consequence lateral in other we showing of a threat of vio- absence of the here, being see no reason not to so for do lence.” Id. Inasmuch as the Wilder court a court order intended to moot, determined that the not prevent stop may domestic violence well “proceed[ed] to address merits to, reputation legal cause harm appeal.” Id. record defendant. Moreover, foregoing, persuaded ... Based on the are domestic violence re- straining adopted orders other collateral the line of cases that have have filed, subjects. consequences exception to disabilities for their Once collateral they agencies investigating involving domes- are available to mootness doctrine eases Smith, (Ind. "stigma”); ...

Roark v. 551 N.E.2d Smith v. 549 S.E.2d Roark. App.1990) (noting "potentially devastating" 912[, ([N.C.Ct.App.]2001) (expired 914] do- parent expired collateral protective order not moot be- mestic violence ” " order, including "child in need of services” legal consequences’ cause of 'collateral impacts presentence investigations, on future impeachments custody determination such as consideration custody in-court and child de- consequences" "non-legal such terminations); Piper Layman, ... v. 726 A.2d Hubbard, harm); reputationfal] James v. 887[, ([Md.]1999) ("expiration pro- 891] (Tex.App.2000) ("[although S.W.3d automatically tective order does not render the expired temporary protective orders and re- "[h]eightened public matter moot" because of moot, straining considered orders have been sensitivity awareness and existence of same social none of these cases has carried the violence, legitimate public well as domestic stigma granted protective based on as a order contempt for abusers” and enhanced technolo- violence”); In re Interest dissemination); Wooldridge gy for information H.Q., 75[, ([Wis.Ct. 77-78] ... N.W.2d 296[, ([Mass. Hickey, ... 298] 700 N.E.2d App.]1989) (expired protective child abuse or- App.Ct.]1998) (appeal prevention from abuse possible effect on der not moot because of expiration order not rendered moot order's divorce). impending consequences, determination because of its collateral ing includ- Putman, (footnote omitted). proceedings in and other 900 A.2d at 1264 effect future bail 10 er, reputational

tie violence TROs where there “is a reason- will cause or other harm to possibility prejudicial that Father. able collateral con- sequences entry will occur” as a result of the entry The issue whether the of a We, therefore, explicitly adopt— of the TRO. against an TRO individual harms that consequences as has the ICA—the collateral person’s reputation issue of first im- exception to the mootness doctrine in this pression jurisdiction; however, in this our

jurisdiction. Accordingly, we now examine its Bani, in decision State v. 97 Hawai'i application in the context of this case. (2001), provides P.3d 1255 some in determining reputational what constitutes The ICA reviewed collateral con Bani, harm.12 In were faced we with the sequences exception light of the facts of registra- issue whether Hawaii’s sex offender the case at bar and held: tion and notification statute was constitution- generally proceedings Father claims that holding al. Id. at at In P.3d 1256. related to and visitation [Minor] unconstitutional, the statute the Bani court may be affected the issued TRO. He reasoned that the statute’s notification reputational also harm claims from the provisions “likely irreparable were to cause findings. TRO and the related At this reputation professional harm to Bani’s point, longer is no a minor and [Minor] life, employment opportunities, association negative Father’s claims that he will suffer neighbors, housing.” and choice of consequences speculative collateral are too Specifically, at 36 P.3d 1266. held that he show will suffer substantial con- that provi- statute’s notification tinuing from the (1) implied potentially sions: that Bani “was September 2005 TRO. dangerous, thereby undermining reputa- generally challenges SDO at 4. Father (2) standing community”; tion and in the holding, contending ICA’s the ICA’s “[potential employers could result “remedy regarding preclusion issue and va- foreseeably be[ing] landlords ... reluctant to cating meaningful the TRO orders is not employ they or rent to Bani once learn of his enough because the fact remains the TRO offender’”; status aas ‘sex could vacating orders were issued and the not adversely “personal profes- affect Bani’s done on the merits.” life, employability, sional associations with Hawai'i, neighbors, In court TRO cannot housing.” be choice of [and] (citations 294-96, past entered without a “that a act or 36 P.3d at 1264-66 omit- ted). occurred, Additionally, acts of abuse have or that “public threats we reasoned that probable may encourage vigilantism abuse make that acts of abuse disclosure 586-4(c). may be imminent.” may expose possible physical HRS More- the offender to over, court’s issuance of the TRO violence.” Id. at 36 P.3d at 1261-62 (footnote omitted). accompanied the instant case was reasoning, so re-we COLs, alia, stated, County, “[Fa- which inter lied on Bohn v. Dakota 772 F.2d harm, (8th Cir.1985), physically injure[] did analogous propo- ther] as- for the added.) (Emphasis protectable sault[] [Minor].” Ac- sition that there “awas cordingly, inquiry in reputation stigma being relevant this case is where iden- ” “reasonably possible whether it is pro- tified as a child abuser was tied to the findings and privacy autonomy unreviewed conclusions tectable interest in e., family court, Bani, family relationships.” i. that Father ais child abus- 97 Hawai'i 149, 171, previously recognized impor Corp., 12. We have Motor 58 P.3d contexts, reputational damage (recognizing tance of in that the tort of defama See, Abastillas, e.g., protects reputation). as well. Kekona v. 113 Ha tion the interest of See also 174, 181, Davis, (holding wai'i Paul v. U.S. 96 S.Ct. proper proof (holding standard of for a civil 47 L.Ed.2d 405 harm proceeding reputation coupled tangible fraudulent transfer convincing was the clear and with some more in proof standard of a find inasmuch as terest is sufficient to invoke the Due Process Clause). ing liability produces for a fraudulent transfer reputational harm that should not be inflicted Bohn, degree proof); According absent that Gonsalves Nissan to the court in Mr. Bohn Bohn, Father, against upon (citing at 1266 772 F.2d at TRO which was based 4). findings conclusions that Father 1436 n. its and cause to Fa- daughter, his will harm abused Although against the TRO issued reputation. Consequently, con- ther’s we is, admittedly, less than Bani’s con serious that the clude Father’s falls within offender, as a sex the TRO was issued viction to the upon express court its the based We, therefore, mootness doctrine. vacate harm, ruling physically did “[Father] judgment the ICA’s and remand injure[] ruling or Such [Minor].” assault[] of the this ease to the ICA for consideration is, implies that Father is a child abuser and of merits Father’s therefore, “potentially dangerous, thereby undermining standing reputation are, indeed, cognizant doing so We community.” at 36 P.3d at the 1264. as may be to detriment inasmuch Father’s Bani, Additionally, unlike the issuance of the TRO, FOFs, and COLs will be “reinstat- against require him TRO Father did not to not be ed” and that the case will database; however, in a register by the previously dismissed instructed TRO, issued, part once became such, pursues custody of ICA. As if Father such, possi there is a reasonable record. will, he insists he it is reason- Minor-sister as bility “[potential employers and land TRO, FOFs, ably possible that the and COLs [might employ be] lords reluctant rent preju- that Father abused Minor could have they once learn of his status as a to [Father] legal consequences to Conse- dicial Father. P.3d at abuser’].” Id. at 1265. [‘child quently, allowing the ICA’s to stand decision Indeed, pursuant chapter to HRS beneficial, part, at least in to Fa- be would chapter under TRO issued such must be and dismissal ther inasmuch as vacation copied appropriate enforcement law effectively nullify legal effects of would (2006), reported § agency, HRS 586-10 FOFs, and COLs. department of human services for underlying ac- ICA’s solution dismiss (2006). Thus, investigation, §HRS 586-10.5 prevent tion so as to documents adversely of the TRO could also the issuance spawning any legal consequences,” “from “personal professional affect (citation quotation at 5 and internal SDO life, employability, neigh associations omitted), fails to take into account marks Bani, bors, housing.” choice of [and] re- fact that documents themselves will 296, 36 1266. P.3d at ease file and continue main the court’s HRS

Accordingly, possi- a record. See there is a “reasonable be matter and Rule 6 the Rules bility” that the court’s issuance of the fight Although forcibly up 1434. the Bohn a amendment.” Id. at interceded to break between sons, ultimately then ran his two neighbor's one of whom to a the Bohns re- court determined that The house a result. incident process, due it first addressed ceived sufficient prompted investigation the Dakota protectable liberty in- whether Bohns had a County Department [herein- Services of Social trigger process so as to a due terest stake after, Department], which concluded that analysis. Specifically, the Bohn Id. at 1435-36. evidence” child there “substantial court noted that: Although the Bohns dis- abuse Bohns. reported stigma Bohn suffers as a Mr. conclusion, Department puted this as- undoubtedly fami- child has eroded the abuser protection signed child worker to the case ly’s internally impaired solidarity the fami- with the ... and the social worker met Bohns community. ly's ability in the to function repeatedly attempt in an and their children remedy light of clear adverse effects on familial these presumed stemming problems integrity stability, find that Mr. Bohn’s alleged child abuse. from reputation protectible Be- interest. [sic] is a Bohns, through F.2d at 1434-35. The directly stigma strikes so at the cause this avenues, "attempted variety political vitality family, reputation we find the charges, the[] clear the record of but their clearly distinguishable to be at stake generally efforts were ineffective.” 1435. petty [other the] from cases in which record in federal the Bohns filed an action district protectible [sic] alia, crimes tied to no arguing, inter "deficient adminis- contesting appealing interest. procedures for trative Bohn, at 1436 n. child the fourteenth F.2d abuse violate Circuit Court of the Estates, State of Hawai'i Wailea Ranch 91 Hawai'i (RCCH). 1045, 985 P.2d 1053 (remanding ease to the ICA for light reconsideration in of this 606-4, § Under HRS the “clerks of the holding). court’s supreme, court, appellate intermediate cir cuit, and custody district courts shall have

all ... pertaining respective records to their Concurring Opinion ACOBA, by J. records, courts.” As the custodian of all agree I with Chief court Justice Moon that by 6, clerks are bound RCCH Rule judgment of the Ap- Intermediate promulgated by which Court of supreme court (ICA) peals should be pursuant vacated and the responsibility delegated to the ease to it 602—5.5(b) remanded to the ICA § under with instructions to (Supp.2007).14 HRS The petition address the merits of the rule of Petition- part states that relevant clerk “[t]he er/Defendant-Appellant Chris L. pemit shall Lethem pleading paper no to be (Father). majority 11, [i.e., opinion See taken 193 his removed from from P.3d at I agreement am also in that the except ... record] as ordered added.) consequences judge.” exception (Emphasis although accurately applied doctrine is subject to documents have been ordered 6-11, the facts of this case. See vacated id. at 193 and the case dismissed ICA, P.3d at 844-49. physical file limitations will not be de majority that opinion stroyed purports place and to will remain available and public on the exception interest inspection Indeed, to to the moot- copying. and as this 6-7, ness doctrine are of concern. See has id. at Camp observed In re Estate of bell, 193 P.3d 453, at 844-45. Our (2005), 106 cases Hawai'i 106 P.3d have not 1096 exception indicated that the public should generally “the be inter- right, has the estab preted narrowly, and, therefore, so law, lished I write inspect common separately point out copy judicial may ... this ease records.” Id. at properly fall (citation, public under the excep- P.3d at interest quotation internal tion, marks, brackets, consequences well as the collateral original ellipsis omit ted). exception, to the mootness doctrine. apparent It from Father’s briefs and application that the ramifications of the I.

TRO case and related documents are not the focus of his clearly seeking He is public interest was first rec appeal, review the merits of hoping his ognized jurisprudence this court’s in John firmly “clear his name” as he (1968). believes he did Ing, ston v. 50 Haw. 441 P.2d 138 Minor, not Johnston, abuse but simply attempting the court outlined three criteria child he believes is his relevant to the determination of whether a right parent. constitutional as a particular case falls under exception: public private “the question nature of the IV. CONCLUSION presented”; desirability “the of an au Based on foregoing, adopt the col- thoritative determination for future lateral officers”; public moot- of “the likelihood of jurisdiction ness doctrine in this and hold future question.” recurrence of the Id. at that, because there is a possibility reasonable 441 P.2d at public 140. The interest court’s issuance of the TRO exception has applied continued to be in sub against Father will cause harm cases, to Father’s sequent sometimes melded with the reputation, we vacate the ICA’s June likely observation similar cases were judgment and remand the thereby review, become moot escaping case to the ICA with instructions to address recently, See, more exception. as a distinct the merits of Father’s case. See Pelosi v. e.g., State, Kaho'ohanohano v. 602-5.5(b) provides 14. HRS part custody, fiscal, disposition relevant judiciary of all care, supreme that "the court shall determine the and administrative records." 302, 333-34, (2007); prong interest 162 P.3d 727-28 meet first Co., exception”; Trucking thereby Ltd. Bd. Water affirms ICA’s Okada Supply, ‘does not determination “Father’s (2002); Burns, questions Land v. inter involve affect Life of ” (1978). 7, 193 (quoting Haw. 580 P.2d 405 Because the est.’ P.3d at SDO 3). self-imposed, pruden mootness doctrine is a powers,

tial limitation on This restrictive view of the significant public exception interest in that exception purposes overlooks the behind the permits important it this court resolve to exception, disregards particular and in our questions other constitutional matters of opinion dispute recent in Doe. involved a Doe interest, public and to establish clear rules of grandparents between a child’s and mother in conduct such matters. See United Pub. rights pursuant visitation to HRS over 46, 60-61, Yogi, 62 Workers Doe, 327, 172 § 571-46.3. 116 at P.3d Hawai'i J., 189, (Acoba, P.3d 203-04 concur underly at 1071. that “the While we found Paoi, ring); see also Avis K. Hawaii’s Justi are, bottom, ing proceedings private a at Doctrine, 537, ciability 26 U. Haw. L.Rev. Grandparents battle between Mother and 551-52, (advocating a 572-74 flexible Grandparents’ over whether access to Child approach to in order justiciability to allow interest,” recognized inis Child’s best justice to the access and to allow court to family the court’s invalidation matters). guidance important public give on presented statute a matter of visitation wide- appeared There for a time to be confusion public concern “the because public exception as to whether the interest ruling rights stands to affect fundamental the repetition, “capable distinct from the many Hawai'i families.” yet evading exception. Yogi, See 101 review” Similarly, in facts 58-62, (Acoba, at Hawai'i at 62 P.3d 201-05 dispute Respondent/Plain- aof civil between J., Paoi, concurring); see also Hawaii’s Jus- tiff-Appellee Lily E. Hamilton Doctrine, ticiability 26 U. Haw. L.Rev. at discipline par- right and to over (recognizing 549-52 that “Hawai'i cases have children, ticipate in raising of his involve application not settled on a of these concrete 2, opinion at private majority a matter. See ]”). However, exceptions! this court re two 2-3, 840, 41. 193 P.3d at 840- cently confirmed that interest ex presented appeal is whether central issue ception, the three which embodies elements discipline parent right parental has a Johnston, separate in outlined exists Restraining Temporary Order defense repetition, yet apart “capable from the (TRO) 3, proceedings. 193 P.3d at See id. See, evading e.g., Doe v. exception. review” merely “personal question This is not Doe, 116 172 P.3d Hawai'i contends, Father,” majority id. at as the Kaho'ohanohano, (2007); Hawai'i implicates P.3d at but the broader 333, 162 P.3d at 727. children, right to raise one’s constitutional manifestly public concern to Ha- a matter of

II. Doe, See, e.g., In re and its families. wai'i 532-34, majority recognizes pub properly The Hawai'i distinct, analyzes (affirming parents’ “substantive liber- exception lic interest however, care, custody, and control Respectfully, major ty interest it as such. process ity their the due adopts a far too narrow definition of of children” under constitution). ar- applying prong first clause the Hawai'i “public” Father, implicates “the gued test. ma this issue three-pronged public interest See many families rights of jority opinion at P.3d at 844-45. fundamental question specifically given conflict between majority pre “the ... finds that [chapter] applying 586 ex private parent for a HRS is of a nature.” sented minor, Therefore, based on applica parte on behalf of a P.3d at 845. eschews exercising pa- exception parent [his her] to Fa tion ... rights discipline her] ground [his that “it fails to rental ther’s on the rationale, tain, question par- majority’s that the fundamental of a child.” But under the right participate in ent’s falling outside the case could be dismissed raising of or her child arise in the will exception the facts of public interest because proceedings.1 context of future TRO Just as parties personal make it case court Doe found the grandpar- fundamental constitutional involved. Where unconstitutional, ent statute to be visitation issue, however, rights public inter- are at thereby affecting rights of other families entirely appropriate apply est proceedings, in similar future here the purpose recognizing such inasmuch as the parental discipline court found that a defense provide needed is to appropriate proceedings, pre- is not in TRO importance, on fundamental issues defendants, cluding its use future though arising pri- in the context of a even thereby affecting parental rights of fu- dispute. vate litigants. ture A limitation TRO is a serious rights, parent’s on a fundamental and future majority disposed of this issue Because the parties, counsel and our must courts have prong exception, on the first based direction as to the circumstances that war- remaining opinion not address the two does imposition rant the of such a sanction. The prongs. Application prongs of those public exception interest to the mootness further illustrates the im- facts of this case doctrine, accordingly, germane is also to this portance allowing exception case. public doctrine as in the interest in desirability to “the of an au-

this case. As for future

thoritative determination officers,” our courts would

undoubtedly benefit from a decision on the parental discipline

merits as to whether a appropriate proceedings.

defense is TRO “the likelihood of future recurrence likely, question,” highly it is if not cer- mentioned, Although, previously absent an such interest capable exception. majority opinion is distinct from See 193 P.3d at nature, ("We repetition, evading exception, very review but believe that its would, likely compounded always problem of a recurrence is will evade review because it as it here, usually expire ninety-day did here the fact that TROs are too short within the initial review, term.”). capable appellate in duration to be

Case Details

Case Name: Hamilton Ex Rel. Lethem v. Lethem

Court Name: Hawaii Supreme Court

Date Published: Oct 14, 2008

Citation: 193 P.3d 839

Docket Number: 27580

Court Abbreviation: Haw.