Towner v. Ridgway
272 P.3d 765
Utah Ct. App.
2012
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Mark E. TOWNER, Petitioner and Appellee, v. Michael RIDGWAY, Respondent and Appellant.

No. 20100208-CA

Court of Appeals of Utah.

Feb. 9, 2012

2012 UT App 35

Board also concluded that Swenson “was not required to file his appeal via the Internet. He could have faxed his appeal or sent it by ‘regular’ mail provided it was postmarked by July 8, 2010.” Swenson did not produce evidence to suggest that he was precluded from timely filing his appeal through one of the other methods that was available to him. Thus, it is irrelevant to our decision that the Department‘s faulty computer program precluded Swenson from filing his appeal by his preferred method before the deadline. See (per curiam) (affirming the ALJ‘s determination that the claimant had not established good cause for her untimely appeal because even though the claimant was uncomfortable filing her appeal online, she was not prevented from filing a timely appeal by mail or fax).

11 Furthermore, according to Swenson‘s testimony, he was aware before the filing deadline that there was a problem with filing his appeal online. And although he was aware of this problem with the Department‘s website, Swenson did not demonstrate that he was also unable to file his appeal by fax or by mail. Therefore, we affirm the Board‘s determination that it lacked jurisdiction to hear Swenson‘s appeal because he did not establish good cause for filing an untimely appeal. See id.; see also (per curiam) (determining that even if the claimant could not file his appeal online without assistance, he “had several alternatives for filing an appeal, including mail, hand-delivery, or by facsimile,” and thus, his problems associated with filing online did not establish good cause for his untimely appeal); cf. (mem.) (per curiam) (affirming the Board‘s decision that the claimant did not have good cause for the untimely filing of her appeal even though she contended that “she was given the wrong fax number by department personnel” because she knew the first attempt to fax the appeal failed and she did nothing to obtain the cor5rect fax number or otherwise timely file her appeal).

CONCLUSION

112 We affirm the Board‘s decision that Swenson did not establish good cause for filing his untimely appeal and that it, therefore, lacked jurisdiction.

113 WE CONCUR: J. FREDERIC VOROS JR., Judge and PAMELA T. GREENWOOD, Senior Judge.

Michael Ridgway, Salt Lake City, Appellant Pro Se.

Mark E. Towner, Salt Lake City, Appellee Pro Se.

Before Judges McHUGH, VOROS, and ORME.

MEMORANDUM DECISION

VOROS, Associate Presiding Judge:

11 Michael Ridgway appeals the trial court‘s order of dismissal. We dismiss this appeal as moot.1

12 Mark E. Towner obtained a civil stalking injunction against Ridgway in 2006.2 Ridgway appealed the injunction, arguing in part that his conduct did not constitute stalking. See , superseded by statute with regard to the definition of “stalking” as stated in . In March 2008, the supreme court remanded the case for entry of findings, stating that it could not decide the issue absent specific findings as to each element of the stalking statute. See . However, the trial court never entered findings. On July 9, 2009, Ridgway filed a motion asking the trial court to dismiss the case and vacate the injunction. The court granted the motion to dismiss on the ground that the injunction had expired.3 But the court refused to retroactively vacate the injunction, reasoning that because the injunction was no longer in force, the dispute was moot.

13 Ridgway challenges the trial court‘s refusal to vacate the injunction, yet he does not address the question of mootness in his opening brief. This omission would normally doom his appeal. See (“Because Appellants have not addressed the actual basis for the district court‘s ruling, they have failed to persuade us that the district court‘s ruling constituted error ....“), cert. denied 262 P.3d 1187 (Utah 2011). He does address mootness in his reply brief. This effort does not rescue Ridgway, though, because “[i]t is well settled that issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court,” (citation and internal quotation marks omitted).

14 However, Ridgway argues that we should vacate the injunction on the ground that the trial court never had subject matter jurisdiction to enter it. Towner‘s petition for the stalking injunction was not signed or notarized. See Utah Code Ann. § 77-3a-101(2) (2008) (requiring a verified petition).4 Furthermore, the petition allegedly lacked the specificity required by statute. See id. § 77-3a-101(4)(c) (requiring the petition to list “specific events and dates of the actions constituting the alleged stalking“). Ridgway argues that these defects are jurisdictional and that the stalking injunction was therefore invalid.

15 “Because subject matter jurisdiction goes to the heart of a court‘s authority to hear a case, it is not subject to waiver and may be raised at any time....” (citation omitted). However, the issue of subject matter jurisdiction may itself be moot. In , the supreme court held that, where any determination an appellate court might make regarding a lower court‘s jurisdiction “will not affect the rights of the parties in relation to any issues other than those ... already declared moot,” “the issue of jurisdiction is also moot.” See ; see also (declining to adjudicate question of subject matter jurisdiction where the issue could not “affect the rights of the litigants” and thus was “essentially moot“); (stating that claim of lack of subject matter jurisdiction might be moot); (noting that “because we dismiss this appeal as moot, we do not reach the issue of whether we also lack jurisdiction“). Under this rule, whether a court has jurisdiction to consider a moot question is itself a moot question. Therefore, before we address the merits of Ridgway‘s jurisdictional argument, we consider whether the underlying issue is moot.

16 “A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants.” (declining to address challenge to state‘s compliance with statutory sworn statement requirement for revoking a driver license because the revocation had expired). “Where collateral legal consequences may result from an adverse decision, courts have generally held an issue not moot and rendered a decision on the merits.” .

17 “The doctrine of collateral legal consequences is chiefly applied in criminal cases....” Id.; see also (assuming without deciding that the collateral consequences doctrine applied to a civil case). Unless a party is challenging a criminal conviction, “we will not presume that such collateral consequences exist.” See (citing ). Rather, “a litigant must show that the collateral consequences complained of are not merely hypothetical or possible but that they are probable and represent actual and adverse consequences.” ; see also . Furthermore, the consequences must be “imposed by law” as a direct result of the challenged action. See (finding increased insurance premiums insufficient and relicensing fee too indirect to qualify as collateral legal consequences of a revoked, but later reinstated, driver license); see also (looking to statute to determine the continuing legal effect of a prison disciplinary record).

18 “Such collateral legal consequences may include the use of the conviction to impeach the petitioner‘s character or as a factor in determining a sentence in a future trial, as well as the petitioner‘s inability to vote, engage in certain businesses, or serve on a jury.” ; see also (stating that civil psychiatric commitment may be used “as character or credibility evidence, or in future civil commitment proceedings“); (mem.) (noting that adjudication of child as dependent may be used in future adjudications involving parents and parents may be liable for retroactive support payments even after child reaches age of majority). But see (holding that collateral consequences from juvenile court‘s adjudication of abuse are not established by “simply list[ing] potential legal impairments that generally impact a person” in similar situations).

19 Ridgway points to no actual, adverse legal consequences of denying his motion to vacate the underlying proceeding. He discusses some specific consequences of the injunction itself—alleging, for example, that he was arrested for violating it—but these consequences relate to the effects of the injunction before it expired. Other specific consequences Ridgway identifies—such as harm to his reputation, family relationships, and employment prospects—are not “imposed by law.” See . And although Ridgway invites the court “to imagine, hypothetically speaking,” the harms he has suffered as a result of “persistent and very public allegations of criminal behavior,” he does not identify any legal harms that vacating the injunction for lack of jurisdiction—as opposed to dismissing the case as moot—would cure.

110 Ridgway further states that “in Utah, and in many other states, the imposition of a civil stalking injunction takes away a respondent‘s right to carry a firearm, thus quashing a right vouchsafed in the Second Amendment of the United States Constitution.” However, Ridgway offers no support for this assertion, which does not appear to correctly state the law in Utah. See Monica Maio, Note, Stalkers and Firearms: A Dangerous Mix, Utah‘s Civil Stalking Injunction Statute, 7 J.L. & Fam. Stud. 263, 274 (2005) (stating that under state and federal law in Utah, “a non-cohabitant stalker who engages in the same dangerous behavior as the cohabitant stalker may lawfully possess a firearm, even while subject to a civil stalking injunction“). Nor does it address the key question here, which is the effect of an expired civil stalking injunction on Ridgway‘s rights.

111 Absent actual, adverse legal consequences flowing from the expired injunction, any determination we might make regarding the trial court‘s jurisdiction will not affect the rights of the parties. “Therefore, the issue of jurisdiction is moot.” . We accordingly dismiss this appeal. See (“Because the issue raised is moot, we dismiss the appeal for lack of jurisdiction.“).

112 WE CONCUR: CAROLYN B. MCHUGH, Presiding Judge and GREGORY K. ORME, Judge.

Notes

1
We have determined that “the decisional process would not be significantly aided by oral argument.” See Utah R.App. P. 29(a)(3).
2
The history of this dispute is recounted more fully in .
3
The court reached this conclusion based on its reading of the amended civil stalking injunction issued against Ridgway, which was effective “for a period of no less than three years,” and the civil stalking injunction statute, which provides that “for enforcement purposes, a certified copy of an ex parte civil stalking injunction or civil stalking injunction is presumed to be a valid existing order of the court for a period of three years from the date of service of the ex parte civil stalking injunction on the respondent,” Utah Code Ann. § 77-3a-101(11)(a) (2008). In this case, the ex parte civil stalking injunction was served on Ridgway on May 11, 2006. The injunction therefore expired on May 11, 2009—nearly two months before Ridgway filed his motion to dismiss and vacate.
4
This section was amended after the instant case arose, but the relevant portions have not changed. See Utah Code Ann. § 77-3a-101(2) amend. notes (2008). We cite to the current version of the statute for the reader‘s convenience.
5
This finding was also consistent with the ALJ‘s finding that Swenson had alternative methods for filing his appeal. Ridgway also argues that the injunction was jurisdictionally defective because Towner‘s petition did not include corroborating evidence of the allegations. However, the record clearly demonstrates that Towner submitted corroborating evidence with his petition. As the supreme court noted on Ridgway‘s first appeal,

Mr. Towner submitted with his petition evidence corroborating his allegation of stalking, including a letter to the court describing the bases for his petition, copies of articles published by the news media regarding Mr. Towner and Mr. Ridgway, a copy of a letter authored by Mr. Ridgway regarding Mr. Towner that Mr. Ridgway distributed to delegates at the 2006 Salt Lake County Republican Convention, and a copy of an email sent by a third party to Mr. Ridgway.

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