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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robin Lee Mitchell v. John R. Mitchell (7/19/2019) sp-7388
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBIN LEE MITCHELL, )
) Supreme Court No. S-16877
Appellant, )
) Superior Court No. 3KN-17-00818 CI
v. )
) O P I N I O N
JOHN R. MITCHELL, )
) No. 7388 - July 19, 2019
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Jennifer K. Wells, Judge.
Appearances: Robin L. Mitchell, pro se, Eagle River,
Appellant. Joseph Raymond Skrha, Law Office of Joseph
Raymond Skrha, Kenai, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Ahusband wasgranteda20-daydomesticviolenceprotectiveorder against
his wife. During a brief extension of the 20-day order, the wife sent the husband a text
message about their dog. This text message, a violation of the 20-day order, formed the
basis of a long-term domestic violence protective order entered a few weeks later. The
long-term order was affirmed on appeal.
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A little over a year later, the husband was granted a new long-term
protective order based on the same texting incident. The wife again appealed, but while
the appeal was pending the superior court dissolved the second order as having been
unlawfully granted.
On this appeal the wife challenges both the first long-term order and the
second long-term order. We conclude that her challenges to the first order are barred by
res judicata and that her challenge to the second order is moot. We therefore dismiss the
appeal.
II. FACTS AND PROCEEDINGS
John and Robin Mitchell were married at the time of the events underlying
this appeal. On August 10, 2016, having recently returned to Alaska from New York,
Robin was at the family's Anchor Point cabins with John and their granddaughter.
Robin and John got into an argument, which, according to John, culminated with Robin
throwing a log at the windshield of his truck as he drove away. John requested a 20-day
domestic violence protective order, which was granted. The district court scheduled a
hearing for August 23 on John's petition for a long-term protective order.
Robin returned to New York. On August 15 John moved to continue the
hearing date on his petition for a long-term protective order and to extend the 20-day
protective order until the new hearing date. John's attorney titled this a "non-opposed
motion" and asserted that Robin had agreed to it by phone, although Robin disputes this.
In any event, the court granted the motion, moving the hearing date to September 16 and
extending the 20-day protective order through that date. Both the motion and the order
indicate service on Robin by mail at her residence in Riverhead, New York, but Robin
claims she never received either document and was therefore unaware that the 20-day
protective order had been extended.
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On September 5 Robin sent John a short text message about her dog
Smokey: "Palmer pound called. Why do they have smokey all weekend?" John replied
that Robin was violating the protective order, and a short text conversation followed.
The hearing on John's petition for a long-term protective order was
continued once more, then held on September 20. The court declined to find that Robin
had assaulted John at the cabin, but it granted the long-term protective order on grounds
that Robin's text messages violated the no-contact provision of the 20-day protective
order. Robin appealed the long-term order to the superior court, which affirmed it. She
then filed a petition for hearing with this court, but we declined to hear it.
The following year, on September 25, 2017, John asked the superior court
to extend the long-term protective order. The court noted that the year-long order had
already expired. On October 4, 2017, however, the court issued John a new long-term
protective order under a new case number. The court did not find any new instances of
domestic violence; it predicated the new long-term order on the same ground as the
expired 2016 order - Robin's September 2016 violation of the 20-day order by
texting - finding in addition that Robin was "hyper-focused on the details of [John's]
life."
Robin filed this appeal of the 2017 long-term protective order. In
August 2018, while this appeal was pending, Robin also filed a motion in superior court
to dissolve the 2017 order; the court granted her motion in part in September 2018. The
superior court dissolved the 2017 order, concluding that, in light of this court's recent
1 it was improper to base a second long-term order on only
opinion in Whalen v. Whalen ,
the same acts that formed the basis of an earlier long-term order. The court denied
Robin's request that all record of the dissolved order be expunged.
1 425 P.3d 150 (Alaska 2018).
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The Alaska Legislature reacted to Whalen by amending the statutes
2
governing the issuance of protective orders, effective September 8, 2019.
Among other
things, the amendments prohibit a court from denying a petition for a protective order
on grounds that (1) the alleged domestic violence was the basis for a previous protective
order; or (2) the court previously found the petitioner to be a victim of domestic violence
3 The
but did not order relief, if the petition alleges a change of circumstances.
amendments also allow a petitioner to file for an extension of a protective order "[w]ithin
30 days before, or within 60 days after," the order's expiration.4
III. STANDARD OF REVIEW
We review the superior court's decision to grant or deny a protective order
for abuse of discretion.5
We apply our independent judgment to questions of law,
6 7
including statutory interpretation and the application of the doctrines of mootness and
2 HouseBill (H.B.) 12, 31st Leg., 1st Sess. (2019); Minutes,SenateJudiciary
Comm. Hearing on H.B. 12, 31st Leg., 1st Sess. 6:01:06-6:02:55 (Apr. 23, 2019)
(statement of Rep. Chuck Kopp) (explaining that the bill is intended to clarify the statutes
in response to Whalen); Minutes, House State Affairs Standing Comm. Hearing on H.B.
12, 31st Leg., 1st Sess. 3:15:55-3:20:13 (Feb. 28, 2019) (testimony of Ken Truit, Staff,
Rep. Chuck Kopp) (noting that proposed amendments were "very narrowly focused to
fix the Whalen issue").
3 Ch. 7, §§ 2 & 4, SLA 2019.
4 Ch. 7, §§ 3 & 5, SLA 2019.
5 Vince B. v. Sarah B., 425 P.3d 55, 60 (Alaska 2018).
6 Cooper v. Cooper, 144 P.3d 451, 454 (Alaska 2006).
7 Akpik v. State, Office of Mgmt. &Budget, 115 P.3d 532, 534 (Alaska 2005).
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8
res judicata.
IV. DISCUSSION
A. Robin's Challenges To The First Protective Order Are Barred By
Res Judicata.
Most of Robin's claims relate to the 2016 long-term protective order. She
argues that the order was improperly granted, that it violated her due process rights, and
that the court should have allowed her to present a necessity defense in opposing it. She
contends that these claims remain relevant in the context of her appeal of the second
long-term order because the orders were "explicitly and solely based upon exactly the
same conduct" and "[i]t necessarily follows that if the underlying conduct of Robin was
an invalid basis for" the first order, it was for the second as well.
Butwhether Robin's conductwas avalid basis for the2016 protectiveorder
has already been finally decided. She had a full opportunity to litigate that issue; the
superior court affirmed the issuance of the 2016 order on appeal, and we denied
discretionary review.
Res judicata will bar claims when there is "(1) a final judgment on the
merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same
9
parties . . . about the same cause of action." The 2016 long-term protective order was
8 Vince B. , 425 P.3d at 60.
9
Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010). We note that collateral
estoppel, or issue preclusion, would also likely bar consideration of Robin's arguments.
See Latham v. Palin, 251 P.3d 341, 344 (Alaska 2011).
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----------------------- Page 6-----------------------
10 11
a final judgment on the merits froma court of competent jurisdiction; it remained final
when the superior court affirmed it and this court declined to review it. The parties -
Robin as petitioner and John as respondent - are the same in both cases, and Robin
raises the same issues. We conclude that res judicata bars Robin's challenges to the 2016
long-term protective order.
B. Robin's Challenge To The 2017 Protective Order Is Moot.
Robin also challenges the 2017 long-term protective order, asking that we
reverse it. But because the superior court has already dissolved that order, the claim is
moot.
"A claim is moot if it is no longer a present, live controversy, and the party
12
bringing the action would not be entitled to relief, even if it prevails." We have noted
that "[i]n most cases, mootness is found because the party raising an appeal cannot be
13
given the remedy it seeks even if [the court agrees] with its legal position." Mootness
concerns are particularly acute in cases seeking a declaratory judgment, as we may only
grant declaratory relief where the controversy is "definite and concrete, . . . a real and
substantial controversy admitting of specific relief . . . as distinguished from an opinion
14 Typically, we will
advising what the law would be upon a hypothetical state of facts."
10 See Ruerup v. Ruerup , 408 P.3d 1203, 1206 (Alaska 2018) (observing that
long-term protective order "was a final, appealable order").
11 AS 22.15.100(9)(A) (giving magistrates power "to issue a protective order
in cases involving . . . domestic violence").
12 Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks, 48 P.3d
1165, 1167 (Alaska 2002).
13 Id . at 1168.
14 Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1195 (Alaska
(continued...)
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15
"refrain from deciding questions where events have rendered the legal issue moot."
But we may entertain moot claims under several exceptions, including the public interest
16
exception and the collateral consequences doctrine.
In this case, because the superior court already dissolved the 2017
protective order, there is no effective relief we can grant. Robin's challenge is therefore
moot unless one of these exceptions applies.
1. Robin's claims do not qualify for the public interest exception
to the mootness doctrine.
Robin argues that we should hear her challenge to the dissolved 2017
protective order under the public interest exception to the mootness doctrine. When
deciding whether to apply this exception, we consider three factors: "(1) whether the
disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied,
may cause review of the issues to be repeatedly circumvented, and (3) whether the issues
presented are so important to the public interest as to justify overriding the mootness
doctrine."17
Protective orders are common remedies, but we have already addressed the
legal merit of Robin's particular challenge: whether a court may issue a second long-
term protective order based solely on conduct that provided the basis for an earlier order.
14 (...continued)
1995) (quoting Jefferson v. Asplund, 458 P.2d 995, 999 (Alaska 1969)).
15 Gerstein v. Axtell , 960 P.2d 599, 601 (Alaska 1998) (quoting Kodiak, 900
P.2d at 1195).
16 See, e.g., Copeland v. Ballard, 210 P.3d 1197, 1201-03 (Alaska 2009);
Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 146 P.3d
991, 994-95 (Alaska 2006).
17 Kodiak, 900 P.2d at 1196.
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18
The superior court properly relied on our decision in Whalen v. Whalen when it
dissolved the 2017 order. The legislature has now clarified the law we addressed in
Whalen, and orders such as the 2017 order will be lawful as of the amendments' effective
19 We see little public interest in having us again address an issue that is now of
date.
largelyhistorical concern. We conclude that the public interest exception does not apply.
2. Robin's reputational interest does not satisfy the collateral
consequences exception to the mootness doctrine.
Robin also argues that her appeal is not moot "because the adverse
effects . . . of the wrongfully issued but now dissolved long[-]term protective order have
not magically disappeared." She asserts that her reputation is adversely affected by the
existing court record and that she "has a legitimate interest in clearing her name . . . . One
way to do this is to obtain a definitive statement from this court that the protective order
was wrongfully issued against her."
As explained above, courts generally avoid giving "definitive statements"
about parties' rights and responsibilities in the absence of "a real and substantial
controversy admitting of specific relief."20
The superior court granted Robin both
"specific relief" and "a definitive statement . . . that the protective order was wrongfully
issued against her," and no one has appealed from that order, which is final.
We further construe Robin's argument, however, as a request that we apply
the collateral consequences doctrine, which allows us to hear an otherwise moot appeal
if the judgment carries "indirect consequences" such as limiting employment
18 425 P.3d 150, 155-57 (Alaska 2018).
19 Ch. 7, §§ 1-6, SLA 2019.
20 Kodiak, 900 P.2d at 1195 (quoting Jefferson v. Asplund , 458 P.2d 995, 999
(Alaska 1969)).
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21
opportunities,creatingsocial stigma, or affecting other legal proceedings. Robin claims
that she experiences increased social stigma because of the two protective orders in the
public record, and she asks us - as she asked the superior court - to expunge her
record. The superior court denied the request, finding that Alaska Rule of
Administration 40(a)(9) "applies only to an ex parte petition," and that because the long-
term protective order at issue was not granted ex parte, the remedy of expungement was
22 but it still applies only in narrow
unavailable. Rule 40 has since been amended,
circumstances, and its express language does not authorize the expungement of the
record of this case.23 Hearing this moot appeal on the merits will therefore not resolve
Robin's reputational concerns to the extent they are based on public access to a court
record of the dissolved order.
21 See, e.g. , In re Hospitalization of Joan K. , 273 P.3d 594, 597 (Alaska
2012); Peter A. , 146 P.3d at 994-95.
22 Alaska Supreme Court Order No. 1937 (Sept. 19, 2018).
23 AdministrativeRule40(a)(9) requirespublicationofbasiccaseinformation
in domestic violence cases unless they are
(A) dismissed without an ex parte order when a petition is
filed under AS 18.66.110, or
(B) dismissed at or before the initial hearing when a petition
is filed under AS 18.66.100, the petitioner did not request an
ex parte order under AS 18.66.110, and the court did not hold
an ex parte hearing, if the case is dismissed because there is
not sufficient evidence that the petitioner is a victim of
domestic violence as defined by AS 18.66.990(3) or there is
not sufficient evidence that the petitioner is a household
member as defined by AS 18.66.990(5).
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----------------------- Page 10-----------------------
We recognize, however, that the language of Rule 40(a)(9) leaves a narrow
class of litigants, including Robin, in an anomalous position. Domestic violence
protective order cases that are dismissed for insufficiency of evidence are excluded from
the public version of the court system's case index, but the rule does not give the same
level of confidentiality to domestic violence protective order cases in which an order is
issued and then dissolved as unlawfully granted. We refer this matter to the Court Rules
Attorney for consideration whether the rule should be amended to provide for the limited
class of individuals who were subject to orders unlawfully issued before Whalen. Future
amendment of the rule may provide Robin a remedy; we express no view on whether it
should or will.
V. CONCLUSION
The appeal is DISMISSED.
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