Wendy v. v. Santiago ( 2015 )

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WENDY V.*
v. LUIS SANTIAGO
(SC 19502)
(SC 19514)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 15—officially released November 10, 2015
Linda Allard, with whom were Giovanna Shay and,
on the brief, Enelsa Diaz, for the appellant (plaintiff).
Seth J. S. Conant and Alexander J. Cuda filed a brief
for the Connecticut Bar Association as amicus curiae.
Opinion
ROGERS, C. J. This certified public interest appeal
raises the question of whether a trial court is required
to hold a hearing after the filing of an application for
a restraining order pursuant to General Statutes § 46b-
15.1 The trial court declined to order hearings on two
such applications filed by the plaintiff, Wendy V. The
plaintiff claims that the trial court improperly declined
to hold hearings after she filed her applications because
§ 46b-15 (b) provides that the court ‘‘shall’’ hold a hear-
ing within fourteen days upon receipt of the application.
Because we conclude that the plaintiff’s claim is moot,
we must dismiss the appeals for lack of subject mat-
ter jurisdiction.
The following facts and procedural background are
relevant to the plaintiff’s claim. On June 8, 2015, the
plaintiff filed the ex parte restraining order application
at issue in the present case against the defendant, Luis
Santiago.2 The trial court denied the plaintiff’s applica-
tion as well as her request for a full hearing on that
application. On June 16, 2015, the plaintiff, with the aid
of counsel, filed a motion for reconsideration of the
denial of the hearing on the application, however, the
court denied the motion. On June 19, 2015, the plaintiff
filed a second application for a restraining order. The
court denied this application without a hearing as well.
Subsequently, the plaintiff filed both an appeal with
the Appellate Court and an application for certification
to appeal pursuant to General Statues § 52-265a3 with
this court, claiming that she was entitled to a hearing
under § 46b-15. On June 26, 2015, upon the granting of
her § 52-265a application,4 this court directed the trial
court to prepare and file a memorandum of decision
explaining why it had denied the plaintiff’s applications
without first holding a hearing.5 The order granting cer-
tification was later revised to advise the plaintiff that
oral argument remained scheduled for July 7, 2015;
see footnote 4 of this opinion; unless the trial court
scheduled a hearing pursuant to § 46b-15 (b) to take
place on or before that date. The trial court then held
a hearing on the applications on July 7, 2015, at which
the applications were denied. Thereafter, on July 22,
2015, this court ordered the parties to address in their
briefs whether the plaintiff’s appeals were moot.6
On appeal, the plaintiff contends that her claim is not
moot based on the ‘‘capable of repetition, yet evading
review’’ exception to the mootness doctrine and that
the trial court was required to hold a hearing on the
applications based on the plain language of § 46b-15
(b). We conclude that the fact that the trial court has
held a hearing on the plaintiff’s applications has ren-
dered the plaintiff’s appeals moot.
Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
this court’s subject matter jurisdiction. State v. Boyle,
287 Conn. 478, 485, 949 A.2d 460 (2008). ‘‘[A]n actual
controversy must exist not only at the time the appeal
is taken, but also throughout the pendency of the
appeal. . . . When, during the pendency of an appeal,
events have occurred that preclude an appellate court
from granting any practical relief through its disposition
of the merits, a case has become moot.’’ (Internal quota-
tion marks omitted.) Id., 486. ‘‘In determining mootness,
the dispositive question is whether a successful appeal
would benefit the plaintiff or defendant in any way.’’
(Internal quotation marks omitted.) In re Jorden R.,
293 Conn. 539, 556, 979 A.2d 469 (2009).
The appeals here are moot because no practical relief
can be afforded to the plaintiff. Simply put, the relief the
plaintiff is requesting is a hearing and she has already
received that hearing. The plaintiff, however, claims
that in the context of family violence restraining orders,
the issue of the denial of an application without a hear-
ing falls within an exception to the mootness doctrine
because it is capable of repetition, yet evading review.
See State v. Boyle, supra, 287 Conn. 487 n.3 (‘‘an other-
wise moot question may qualify for [appellate] review
under the capable of repetition, yet evading review
exception [to the mootness doctrine]’’ [emphasis added;
internal quotation marks omitted]); see also Loisel v.
Rowe, 233 Conn. 370, 378–87, 660 A.2d 323 (1995) (moot-
ness doctrine and capable of repetition, yet evading
review exception, discussed). We disagree that the
exception is applicable here.
To qualify under the capable of repetition, yet evading
review exception, three requirements must be met.
‘‘First, the challenged action, or the effect of the chal-
lenged action, by its very nature must be of a limited
duration so that there is a strong likelihood that the
substantial majority of cases raising a question about
its validity will become moot before appellate litigation
can be concluded. Second, there must be a reasonable
likelihood that the question presented in the pending
case will arise again in the future, and that it will affect
either the same complaining party or a reasonably iden-
tifiable group for whom that party can be said to act
as surrogate. Third, the question must have some public
importance. Unless all three requirements are met, the
appeal must be dismissed as moot.’’ (Internal quotation
marks omitted.) State v. Boyle, supra, 287 Conn. 487
n.3, quoting Sweeney v. Sweeney, 271 Conn. 193, 201–
202, 856 A.2d 997 (2004).
The first requirement of the foregoing test ‘‘reflects
the functionally insurmountable time constraints pre-
sent in certain types of disputes. . . . Paradigmatic
examples are abortion cases and other medical treat-
ment disputes.’’ (Internal quotation marks omitted.) In
re Emma F., 315 Conn. 414, 425, 107 A.3d 947 (2015).
‘‘The basis for the first requirement derives from the
nature of the exception. If an action or its effects is
not of inherently limited duration, the action can be
reviewed the next time it arises, when it will present
an ongoing live controversy. Moreover, if the question
presented is not strongly likely to become moot in the
substantial majority of cases in which it arises, the
urgency of deciding the pending case is significantly
reduced. Thus, there is no reason to reach out to decide
the issue as between parties who, by hypothesis, no
longer have any present interest in the outcome.’’ (Inter-
nal quotation marks omitted.) State v. Boyle, supra,
287 Conn. 487 n.3, quoting Loisel v. Rowe, supra, 233
Conn. 383–84.
The plaintiff’s case fails to meet the first prong and,
therefore, does not fall within the capable of repetition,
yet evading review exception. The effect of the chal-
lenged action, namely, the denial of a hearing after an
application under § 46b-15, is not, by its very nature, of
limited duration. Rather, the effects of a denied hearing
generally will persist indefinitely.7 Therefore, in cases
in which a hearing is denied, the case would not become
moot before appellate litigation that ensues can be con-
cluded. Anomalously, this case became moot only
because the trial court ultimately did provide the hear-
ing that the plaintiff had requested.8 Accordingly,
because the question presented will not evade review,
the first requirement is not met and the case does not
fall within the capable of repetition, yet evading
review exception.
Because we conclude that there is no practical relief
we can afford the plaintiff and this case does not meet
the capable of repetition, yet evading review exception
to the mootness doctrine, we dismiss the appeals for
lack of subject matter jurisdiction.
The appeals are dismissed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interest of the
applicant for a protective order, we decline to identify the applicant or
others through whom the applicant’s identity may be ascertained.
1
General Statutes § 46b-15 provides in relevant part: ‘‘(a) Any family or
household member, as defined in section 46b-38a, who has been subjected
to a continuous threat of present physical pain or physical injury, stalking
or a pattern of threatening, including, but not limited to, a pattern of threaten-
ing, as described in section 53a-62, by another family or household member
may make an application to the Superior Court for relief under this section.
‘‘(b) The application form shall allow the applicant, at the applicant’s
option, to indicate whether the respondent holds a permit to carry a pistol
or revolver or possesses one or more firearms or ammunition. The applica-
tion shall be accompanied by an affidavit made under oath which includes
a brief statement of the conditions from which relief is sought. Upon receipt
of the application the court shall order that a hearing on the application
be held not later than fourteen days from the date of the order. The court,
in its discretion, may make such orders as it deems appropriate for the
protection of the applicant and such dependent children or other persons
as the court sees fit. . . .’’ (Emphasis added.)
2
Approximately one year earlier, on June 30, 2014, the plaintiff received
ex parte relief on her application for a restraining order, but after a hearing
on July 10, 2014, the court denied the application. She then sought relief in
an August 4, 2014 application for a restraining order and she was granted
ex parte relief, but after a full hearing on August 14, 2014, her application
was again denied. On September 4, 2014, she filed a third application for a
restraining order and was granted ex parte relief, however, her request to
include her children in the ex parte relief was denied, and a hearing was
set for September 18, 2014. Finally, on September 11, 2014, the plaintiff filed
another application for a restraining order, which included her children as
protected persons. This application was denied and the matter was consoli-
dated for a hearing on September 18, 2014. On September 18, 2014, the
plaintiff’s September 4, 2014 restraining order application was granted, effec-
tive until December 19, 2014, her September 11, 2014 application was dis-
missed, and the court left in place the parties’ agreement permitting the
defendant to have access to the children and allowed the parties to communi-
cate via text messaging. The June 8, 2015 application in the present case
contained essentially the same claims included in the plaintiff’s 2014 applica-
tions, with one significant exception. The plaintiff included information she
received from a family services counselor stating that the defendant had
made some comments during a private interview regarding safety issues
that the counselor considered important enough to disclose to the plaintiff.
3
General Statutes § 52-265a provides in relevant part: ‘‘(a) Notwithstand-
ing the provisions of sections 52-264 and 52-265, any party to an action who
is aggrieved by an order or decision of the Superior Court in an action
which involves a matter of substantial public interest and in which delay
may work a substantial injustice, may appeal under this section from the
order or decision to the Supreme Court within two weeks from the date of
the issuance of the order or decision. The appeal shall state the question
of law on which it is based.
‘‘(b) The Chief Justice shall, within one week of receipt of the appeal,
rule whether the issue involves a substantial public interest and whether
delay may work a substantial injustice. . . .’’
4
Because Chief Justice Rogers was unavailable at the time, Justice Rob-
inson, the next most senior associate justice available, considered and
granted the plaintiff’s application in Docket No. SC 19502. See Practice Book
§ 83-4. The parties were ordered to file briefs by July 2, 2015, and oral
argument was scheduled for July 7, 2015.
5
On August 4, 2015, the trial court provided a memorandum of decision
explaining its reasons for denying the applications without a hearing. The
memorandum detailed the numerous applications the plaintiff previously
had submitted before the denials at issue here.
6
On July 22, 2015, pursuant to Practice Book § 65-1, this court transferred
the appeal to the Appellate Court to itself and assigned it Docket No. SC
19514. On July 31, 2015, pursuant to Practice Book § 61-7, this court granted
the plaintiff’s motion to consolidate Docket No. SC 19514 with Docket No.
SC 19502, the certified public interest appeal.
Additionally, on July 23, 2015, we requested that the Family Law Section
of the Connecticut Bar Association submit an amicus brief. The Connecticut
Bar Association thereafter submitted a brief in support, in part, of the
position advocated by the plaintiff.
7
The plaintiff cites Kennedy v. Putnam, 97 Conn. App. 815, 820, 905 A.2d
1280 (2006), for the proposition that the denial of a hearing is, by its very
nature, of limited duration. In that case, the Appellate Court reasoned that
because ‘‘[a] temporary restraining order, by its very nature, is of limited
duration and subject to expiration prior [to the conclusion of] any appellate
litigation that ensues,’’ it follows that the validity of a denial of an application
also is of limited duration. Id. Unlike the effect of an order granting a
restraining order, however, which generally expires after one year, the effect
of the denial of such an order continues indefinitely. See General Statutes
§ 46b-15 (f) (‘‘[n]o order of the court shall exceed one year, except that an
order may be extended by the court upon motion of the applicant for such
additional time as the court deems necessary’’). For this reason, we disagree
with the Appellate Court’s analysis and note that it was dicta that did not
impact the court’s final determination.
Additionally, the fact that the hearing must occur within fourteen days
of the receipt of the application does not impact our analysis, as the amicus
curiae in the present case suggests it should. Although a plaintiff is denied
an immediate hearing, the effects of the denial of a hearing continue after
the fourteen day period.
8
Given the clear statutory directive that a hearing ‘‘shall’’ occur, we are
perplexed as to why the trial court did not allow a hearing and do not
consider the reasons provided by the court persuasive. ‘‘Definitive words,
such as must or shall, ordinarily express legislative mandates of nondirectory
nature.’’ (Internal quotation marks omitted.) Butts v. Bysiewicz, 298 Conn.
665, 676, 5 A.3d 932 (2010). In addition, we note that within § 46b-15 (b)
the legislature chose to use the words ‘‘shall’’ and ‘‘may,’’ which indicates
their awareness of the difference in their ordinary meanings. See Lostritto
v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20, 848
A.2d 418 (2004) (‘‘[t]herefore, when the legislature opts to use the words
‘shall’ and ‘may’ in the same statute, they ‘must then be assumed to have
been used with discrimination and a full awareness of the difference in their
ordinary meanings’ ’’). Moreover, we note that in contrast General Statutes
§ 46b-16a (b) provides that ‘‘if the allegations set forth in the affidavit meet
the requirements’’ of subsection (a) of that statute, then the trial court shall
schedule a hearing. There is currently no such limiting language in § 46b-
15 (b); see footnote 1 of this opinion; and it would be the role of the
legislature to make such a change.