Conforming Doctrine to Practice: Making Room for Collateral Consequences in the Missouri Mootness Analysis

By Howenstine, Zachary C. | Missouri Law Review, Summer 2008 | Go to article overview

Conforming Doctrine to Practice: Making Room for Collateral Consequences in the Missouri Mootness Analysis


Howenstine, Zachary C., Missouri Law Review


I. INTRODUCTION

As the collateral consequences of court judgments gain increased recognition, courts in many states have modified traditional doctrinal approaches to mootness in order to give due regard to these repercussions. Missouri has not formally joined these states, yet a survey of recent mootness analyses within the state indicates that courts are seeking to allow for consideration of such consequences in spite of the doctrinal constraints. This tension has been most evident in appellate review of expired orders of protection for domestic violence, and the result has been vast inconsistency both in how courts approach the issue and how it is ultimately resolved. This article will seek to identify the underlying concerns that have fostered this unpredictability in Missouri, while also examining the advantages and disadvantages of the approaches taken in jurisdictions recognizing a collateral consequences exception to the mootness doctrine. In conclusion, this article will propose a new doctrinal approach in Missouri that reflects judicial concerns about collateral consequences without frustrating the purpose of the mootness doctrine in an adversarial system.

II. LEGAL BACKGROUND

A. The Missouri Adult Abuse Act and Child Protection Orders Act

Each year, individuals subjected to abuse file tens of thousands of petitions in Missouri courts seeking orders of protection to shield them from abusive family members and stalkers. (1) In doing so, they turn to two acts of the Missouri legislature--the Missouri Adult Abuse Act (2) and the Child Protection Orders Act (3)--which were specifically adopted in order to protect adults and children from abusive relationships, many of which occur within the home.

The Adult Abuse Act, originally enacted in 1980, was the Missouri legislature's initial response to the problem of domestic violence. (4) Broadly speaking, the Act "authorizes and controls the issuance of protection orders by state courts, imposes criminal penalties for violations, and requires law enforcement to give domestic violence calls the same priority as any similar offense involving strangers." (5) The Missouri legislature, "[p]erceiving that abusive persons often behave no better toward children than adults," then passed the Child Protection Orders Act (CPOA) in 1987. (6) While substantially similar to the Adult Abuse Act in terms of procedure and remedies, the CPOA also allows third parties to bring actions on behalf of children and contains different definitions of certain terms. (7)

Under the Adult Abuse Act, any adult can petition for an order of protection (as the "petitioner") and the CPOA allows a parent, guardian or juvenile officer to do the same on behalf of a child. (8) Both Acts make such orders available to protect against abuse (9) or conduct within the statutory definition of stalking. (10) In cases of immediate danger, a petitioner may obtain an ex parte order. (11) Under the Adult Abuse Act, the petitioner then receives a hearing within fifteen days for a full order of protection, barring good cause for a continuance. (12) At the hearing, the court will grant a full order of protection for no less than 180 days and no longer than one year if the petitioner proves her allegations by a preponderance of the evidence. (13) The CPOA follows essentially the same procedure, but any grant of a full order of protection is discretionary, even if the court finds the petitioner met her burden of proof. (14)

The direct consequences of the issuance of a protective order against an individual pursuant to the Adult Abuse Act or the CPOA are wide-ranging. An order under the Adult Abuse Act may also prevent the respondent from entering the victim's dwelling, (15) which in many cases will be the respondent's home. (16) Additionally, upon issuing a full order of protection pursuant to the Adult Abuse Act, the court may also award custody of a minor child, award child support and maintenance, and require that the respondent continue to make rent or mortgage payments on the previously-shared residence or begin paying rent on a new residence. …

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