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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

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.  

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                       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.  


----------------------- Page 2-----------------------

                    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.  

                                                        



                                                               -2-                                                         7388
  


----------------------- Page 3-----------------------

                                                                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).  



                                                                                                                                                                                                       -3-                                                                                                                                                                                                               7388  


----------------------- Page 4-----------------------

                              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).  

                                                                                                                                                                                      



                                                                                               -4-                                                                                       7388
  


----------------------- Page 5-----------------------

                    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).  



                                                                      -5-	                                                             7388
  


----------------------- 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...)  



                                                                                                                          -6-                                                                                                                7388
  


----------------------- Page 7-----------------------

                                                                                                                                               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.  

                                                          



                                                                       -7-	                                                              7388
  


----------------------- Page 8-----------------------

                                                                                                                                    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)).  



                                                                        -8-	                                                                 7388
  


----------------------- Page 9-----------------------

                                                                                                                                                                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).  

                                                                                          



                                                                                              -9-                                                                                       7388
  


----------------------- 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.                               



                                                                                                                                                                     -10-                                                                                                                                                             7388
  

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