Lawrence v. Gauthier

973 N.E.2d 145, 82 Mass. App. Ct. 904, 2012 WL 3326296, 2012 Mass. App. LEXIS 238

• Court: Massachusetts Appeals Court
• Decided: August 16, 2012
• Docket: Nos. 11-P-223, 11-P-742, 11-P-892, & 11-P-924
• Status: Published

Opinion

This court has held repeatedly that appeals involving abuse prevention orders issued pursuant to G. L. c. 209A are not necessarily moot, even when the underlying orders have expired. See Smith v. Jones, 61 Mass. App. Ct. 129, 133 (2006) (“Notwithstanding that both the ex parte and the extension orders have expired, the appeal is not moot. The defendant ‘could be adversely affected by [the orders] in the event of future applications for an order under G. L. c. 209A or in bail proceedings . . . [and] has a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record.’ Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998) (citation omitted).” See also Dollan v. Dollan, 55 Mass. App. Ct. 905, 905 n.2 (2002). Cf. Frizado v. Frizado, 420 Mass. 592, 593-594 (1995) (defendant’s contention “that the [vacated] abuse prevention orders could have an adverse effect on him in any future G. L. c. 209A proceeding and in certain future bail proceedings . . . has some merit”).

The record-keeping process for harassment prevention orders under G. L. c. 25 8E is similar to that created for abuse prevention orders under G. L. c. 209A.³ Arguably, a wrongfully issued harassment prevention order poses the same concerns for a defendant about collateral consequences as does a wrongfully issued abuse prevention order. In addition, it seems likely that these cases present factual situations that, while likely to arise again, will evade review as each one-year order expires. Nevertheless, the Supreme Judicial Court has reached a different conclusion about mootness in the context of harassment prevention orders. See O’Brien v. Borowski, 461 Mass. 415, 430 (2012) (“[T]he case is moot as a consequence of the expiration of the harassment prevention order”). Therefore, we are constrained to dismiss each of the cases as moot.

David R. Lucas for Marie A. Gauthier. James R. Tewhey for Tracy A. Lawrence. Alice L. Purple & Tracy D. Dudevoir for Michael Christopher. Michael Rompa, pro se. Kathleen M. McCarthy for Steven Mastalerz.

Appeals dismissed as moot.

The cases were submitted on briefs.

3 General Laws c. 258E, § 9, inserted by St. 2010, c. 23, provides that “[wjhenever the court orders that the defendant refrain from harassing the plaintiff or have no contact with the plaintiff. . . , the clerk or clerk-magistrate shall transmit: (1) to the office of the commissioner of probation information for filing in the court activity record information system or the statewide domestic violence record keeping system as provided in . . . chapter 188 of the acts of 1992 or in a recordkeeping system created by the commissioner of probation to record the issuance of, or violation of, prevention orders issued pursuant to this chapter .... The commissioner of probation may develop and implement a statewide harassment prevention order recordkeeping system.”