T.M. v. M.Z.

916 N.W.2d 473, 501 Mich. 312
CourtMichigan Supreme Court
DecidedMay 18, 2018
DocketNo. 155398
StatusPublished
Cited by80 cases

This text of 916 N.W.2d 473 (T.M. v. M.Z.) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
T.M. v. M.Z., 916 N.W.2d 473, 501 Mich. 312 (Mich. 2018).

Opinion

MEMORANDUM OPINION

The issue in this case is whether an appeal taken from the entry of a personal protection order (PPO) is rendered moot solely due to the expiration of the PPO. We hold that the PPO's expiration alone does not render the appeal moot, and we remand to the Court of Appeals for further proceedings.

Petitioner TM and respondent MZ1 are neighbors. Petitioner sought a *474PPO against respondent under MCL 600.2950a(1), pointing to a variety of Facebook posts in which petitioner alleged that respondent was harassing petitioner. Petitioner asked the trial court to issue the order ex parte under MCL 600.2950a(12) and MCR 3.705(A), and the court granted this request.2 Respondent objected to the PPO, arguing that petitioner was simply annoyed by respondent's comments to others, that there were no allegations of any physical contact between the parties or threats of violence made by respondent against petitioner, and that petitioner's proper recourse was, if anything, a defamation action, not a PPO. The trial court denied respondent's request to terminate the PPO altogether, but the court did amend the order in August 20153 to prohibit only "posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s." Respondent promptly appealed in the Court of Appeals, but the case was not argued until nearly a year after the PPO had expired. Shortly after argument, the panel issued an unpublished opinion holding that the expiration of the PPO rendered the case moot.4 Respondent sought leave to appeal in this Court, and we directed the clerk to schedule oral argument on the application. TM v. MZ , 501 Mich. 901 (2017). "The applicability of a legal doctrine," such as mootness, "is a question of law," which "[t]his Court reviews ... de novo." James v. Alberts , 464 Mich. 12, 14, 626 N.W.2d 158 (2001).

Two different statutes, MCL 600.2950 and MCL 600.2950a, provide for three types of PPOs in Michigan. "The nature of the petitioner's relationship with the respondent and the respondent's acts govern which form of PPO is appropriate." Shiemke, Domestic Violence , in 2 Michigan Family Law (Kelly et al. eds., 7th ed., May 2017 update), § 19.5, p. 1167. Domestic-relationship PPOs under MCL 600.2950 require the presence of a domestic relationship as defined under the statute, while sexual-assault PPOs under MCL 600.2950a(2) require a sexual assault. Neither of these are implicated in this case; instead, we deal with a stalking-type PPO under MCL 600.2950a(1). To obtain a PPO under MCL 600.2950a(1), the petitioner must "allege[ ] facts that constitute stalking as defined in [ MCL 750.411h or MCL 750.411i ], or conduct that is prohibited under [ MCL 750.411s ]." The PPO here was premised on MCL 750.411s, sometimes called the "cyberstalking" statute. Domestic Violence , § 19.8.

Regardless of the type of PPO issued, when a court issues a PPO it must "designate the law enforcement agency that is responsible for entering the [PPO] into the L.E.I.N.[5 ]" MCL 600.2950a(10). See also MCL 600.2950(10) ; MCR 3.706(A)(6). The clerk of the court "shall ... [f]ile a true *475copy of the [PPO] with the law enforcement agency designated by the court in the [PPO]," which agency "shall immediately ... enter the [PPO] into the L.E.I.N." MCL 600.2950a(15)(a) and (17). See also MCL 600.2950(15)(a) and (17) ; MCR 3.706(A)(6). The clerk of the court also must advise law enforcement if "[t]he [PPO] is rescinded, modified, or extended by court order." MCL 600.2950a(19)(b). See also MCL 600.2950(19)(b) ; MCR 3.707(A)(3). The law enforcement agency "shall enter the [updated] information or cause the information to be entered into the L.E.I.N." MCL 600.2950a(20). See also MCL 600.2950(20).

Respondent argued in the Court of Appeals both that petitioner had failed to allege facts satisfying MCL 750.411s and that the PPO was an unconstitutional prior restraint on respondent's speech. The Court of Appeals never reached the merits of these arguments, concluding that the matter was moot because there was no longer a PPO to invalidate. In this Court, respondent challenges only the Court of Appeals' determination that this appeal is moot. It is uncontested that the PPO against respondent has expired. "[A]s a general rule, this Court will not entertain moot issues or decide moot cases." East Grand Rapids Sch. Dist. v. Kent Co. Tax Allocation Bd. , 415 Mich. 381, 390, 330 N.W.2d 7 (1982). A moot case presents "nothing but abstract questions of law which do not rest upon existing facts or rights." Gildemeister v. Lindsay , 212 Mich. 299, 302, 180 N.W. 633 (1920). It involves a case in which a judgment "cannot have any practical legal effect upon a then existing controversy." Anway v. Grand Rapids R. Co. , 211 Mich. 592, 610, 179 N.W. 350 (1920) (quotation marks and citation omitted).

Respondent argues that this appeal is not moot because there is practical legal relief he could receive: if the Court of Appeals were to conclude that the PPO should never have issued in the first place, it would be rescinded, and notice of the same would be entered into LEIN under MCL 600.2950a(19)(b) and (20). Because law enforcement performs background checks with LEIN, respondent argues, he has an interest in clearing the cloud of this allegedly erroneous PPO from his name. The Court of Appeals has confronted the argument that a PPO respondent has an interest in identifying an improperly issued PPO in LEIN as having been rescinded, with varying results.

One line of cases in the Court of Appeals has held that when a PPO expires during the pendency of an appeal, the appeal is necessarily moot.6 In another line of cases, the Court of Appeals has held that a case is not moot despite the expiration of a PPO if the respondent can show a presently existing collateral consequence, usually employment-related, of the PPO. For instance, in Hayford v. Hayford , 279 Mich. App 324, 325,

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Bluebook (online)
916 N.W.2d 473, 501 Mich. 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tm-v-mz-mich-2018.