This otherwise-insignificant domestic dispute raises questions about mootness and, more importantly, about the role of the courts.

Soldo obtained an order of protection against Cardoso, his ex. Cardoso moved to dismiss it but the Superior Court (which heard the matter because there was also an ongoing child-support dispute) denied her motion. She appealed.

By the time the Court of Appeals considered her case a year had elapsed so the order had expired. The court admitted that the usual exceptions to mootness – capable of repetition yet evading review and issue of great public importance – don’t apply here. But it holds that expired orders of protection can be reviewed under the “collateral consequences” exception. That’s a criminal doctrine (even if the defendant has been released you review his conviction because it could affect his right to vote, etc.) that some courts in other states have agreed – and others have disagreed – can apply to orders of protection. The court says that an order of protection is something a trial court can consider in issuing another order of protection and in connection with a custody dispute; it does not explain why a party can’t just point out to the court that an appeal was filed but never heard on its merits. The court also says that orders of protection are sent to a central repository; how reversing an order on appeal would remove it from the depository, though, is unclear. Finally, the Court of Appeals tells us that an order of protection harms one’s reputation. But how does this distinguish it from many of the cases courts call moot? Is there now a “reputation” exception to mootness?

There are, we agree, reasonable arguments to be made in the court’s favor. What particularly bothers us about this opinion is that nobody made them. Both parties were pro se. Soldo didn’t file a brief. Cardoso’s made amateurish arguments on the merits that the court deals with almost summarily (it affirms the order of protection against her; she would have been better off with a dismissal for mootness); we can’t believe that it contained a mootness analysis. So, the court has published an opinion (without the mootness holding this would be a minor memo) for the sole purpose of announcing new law on an issue that was never briefed.

We have noted before that the Court of Appeals doesn’t always pay too much attention to the adversary system. It must be easier to write opinions when you’re not resolving parties’ conflicting arguments but instead just making things up in your own head. In the normal course the court should have called for supplemental briefs (assuming that both sides’ lawyers missed the mootness issue). Did it think of doing so here? Did it not do so because the parties were unrepresented? If so, how is it a good thing to announce that the court will fill in the gaps in pro se arguments, and even use them as excuses to make law of the court’s own desire?

(link to opinion)