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Sharon BELL, Appellant, v. Andrew BATTAGLIA, Appellee.
Sharon Bell appeals the entry of a final order on Andrew Battaglia's petition for dating violence injunction, which prohibited her from contacting Battaglia for six months. We reverse because Bell did not cyberstalk Battaglia by sending a single text message to Battaglia's wife.
Bell and Battaglia dated off and on for a number of months. Battaglia petitioned for a dating violence injunction against Bell following an incident he alleged occurred on December 11, 2018. He claimed that Bell struck and pulled on his arms in an attempt to prevent him from leaving with his things. He also included in his petition four prior incidents involving Bell that occurred at two Naples restaurants while he was with another female acquaintance. He indicated on his petition that he was in imminent danger of becoming the victim of dating violence because Bell had “stalked, harassed, and assaulted” Battaglia at various locations and because she had “made threats to harass [Bell], his family and friends personally and on social media.”
At the hearing, Battaglia testified that Bell sent the following text message to his wife:
You don't know me but I would like to tell you about your husband. You should know what he is doing. I have dated him for 4 months. Tonight he was abusive and hit me and threw me down because I wouldn't show him my phone. I had to go to the hospital for my wrist. He has a hidden account and uses money from that you don't know about. He pulls cash from it so you don't know where he is. He is terrified you will take his pension. I hope you do. He is a miserable person that deserves to be found out. Just thought you should know and I am sorry if this hurts you.
Bell admitted that she sent the text message because she was hurt and upset. Battaglia testified that Bell had threatened in the past to contact his wife for the purpose of making his divorce more financially painful to him.
Battaglia also testified about text messages that Bell had sent directly to him. And both Battaglia and Bell gave diverging accounts of an altercation that occurred after an evening of drinking. Battaglia admitted that he had thrown her phone on the floor. But he denied Bell's allegations that he had hurt her and thrown her to the floor, testifying instead that it was she who had attacked him in an attempt to prevent him from leaving before losing her grip and falling back. Battaglia repeatedly assured the court that he was in no fear of physical danger from Bell.
The court discounted the fracas, as well as the text messages Bell sent directly to Battaglia, as bases for granting the injunction: “It does not appear to me that there has been any tremendous violence against you․ [A]ll the other stuff, you know, while uncomfortable and obnoxious – I looked at all the texts you guys gave me. There's not any threats in those texts.”
What the court did find salient to Battaglia's petition was the communication between Bell and Battaglia's wife: “[T]he behavior with regard to your wife, that definitely does constitute stalking.” The trial court told Bell regarding her text to the wife, “[T]hat is stalking behavior” and “[t]here's no excuse for it.” The trial court explained to Battaglia, “I mean, if you don't want to talk to her, block her number. However, it does concern me that she did contact your wife, which seems a little out of the range of what's appropriate[.]”
The court entered a final judgment of injunction for protection against dating violence, which included the following:
After hearing the testimony of each party present and of any witnesses, ․ based on the specific facts of this case, that Petitioner is a victim of dating violence and/or Petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of an act of dating violence by Respondent, and that an immediate and present danger of dating violence exists to Petitioner or to a member of Petitioner's immediate family.
The court entered an order enjoining Bell for a period of six months from committing any violence against Battaglia, having any contact with him, and from going to a list of places in Naples that Battaglia frequently visits.
“Dating violence” is defined as “violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.” § 784.046(1)(d), Fla. Stat. (2018). To be entitled to an injunction for protection against such violence, one must either be “the victim of dating violence and ha[ve] reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence” or have “reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence.” § 784.046(2)(b).
“Violence” is defined as “assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(1)(a) (emphasis added). “Stalking occurs when a person ‘willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.’ ” Brungart v. Pullen, 296 So. 3d 973, 977 (Fla. 2d DCA 2020) (emphasis added) (quoting § 784.048(2)); see Whitlock v. Veltkamp, 296 So. 3d 528, 530 (Fla. 1st DCA 2020) (“[T]he statutory definition of ‘domestic violence’ includes a wide range of actions, including stalking in its three forms ․”). “ ‘Cyberstalk[ing]’ means,” inter alia, “to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.” § 784.048(1)(d) (emphasis added).
Here, the dating violence injunction was based upon a single text message to Battaglia's wife that the trial court deemed to be “cyberstalking.” This was error because the text message was sent to a third party, not Battaglia. See Scott v. Blum, 191 So. 3d 502, 504 (Fla. 2d DCA 2016) (“Mr. Scott did not communicate words, images, or language via email or electronic communication directly to Mr. Blum.”); see also Brungart, 296 So. 3d at 979 (concluding that the act of sending videos and communications to third parties did not constitute stalking). Cyberstalking requires that the communications be “directed at a specific person,” and that they cause “substantial emotional distress to that person.” § 784.048(1)(d); cf. § 784.046(1)(b) (providing that, unlike dating violence, “[r]epeat violence” can be committed by violence or stalking “directed against the petitioner or the petitioner's immediate family member” (emphasis added)). Although Battaglia was the subject of the text message that Bell admitted sending to his wife, he was not the recipient. See Scott, 191 So. 3d at 504–05 (concluding that emails sent to third parties did “not constitute words ‘directed at a specific person’ for purposes of the cyberstalking statute simply because they are about [the petitioner]”); cf. David v. Textor, 189 So. 3d 871, 875 (Fla. 4th DCA 2016) (“[W]here comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.”).
Additionally, the trial court's reliance on a single text message comes short of the repeated acts required to establish stalking. Cf. Packal v. Johnson, 226 So. 3d 337, 338 (Fla. 5th DCA 2017) (reversing entry of stalking injunction after “trial court expressly disregarded” an alleged “history of confrontations” and relied instead on a single altercation, which was insufficient to “support a finding of stalking, which requires evidence of repeat harassment”). “By its statutory definition, stalking requires proof of repeated acts.” Carter v. Malken, 207 So. 3d 891, 893–94 (Fla. 4th DCA 2017) (citing Laserinko v. Gerhardt, 154 So. 3d 520, 521 (Fla. 5th DCA 2015)) (“A minimum of two incidents of harassment are required to establish stalking.”); cf. Whitlock, 296 So. 3d at 530 n.2 (“If the stalking consists of harassing or cyberstalking, the petitioner must show ‘a course of conduct’ directed at the petitioner which causes the petitioner ‘substantial emotional distress ․ and serv[es] no legitimate purpose.’ ” (quoting § 784.048(1)(a), (c) & (d))).
The trial court erred by entering a dating violence injunction in favor of Battaglia and against Bell based upon a single text message sent by Bell to Battaglia's wife. However, the six-month injunction had already expired when Bell filed her initial brief in this case. Despite its expiration, Bell requested that this court set aside the final judgment. Respondent Battaglia did not file a brief or motion in this appeal, and the issue of mootness was not asserted by either party. Upon a divided vote of the panel, this court issued an order to show cause why the appeal should not be dismissed as moot because the injunction had expired by its terms. No response to the order was received.
Florida appellate courts have routinely decided appeals from expired domestic violence and stalking injunctions on the merits because of the “collateral consequences” that could result from the judgment. See Yaklin v. Yaklin, 296 So. 3d 531, 533 (Fla. 2d DCA 2020) (“Although the record indicates that the injunction has expired, we remand with instructions to vacate the injunction ‘because of the unintended collateral consequences that may result from such a judgment.’ ” (quoting Phillips v. Phillips, 151 So. 3d 58, 59 (Fla. 2d DCA 2014))); see also Stover v. Stover, 287 So. 3d 1277, 1278 n.2 (Fla. 2d DCA 2020) (concluding that the expiration of the domestic violence injunction did not render moot the issue of whether the evidence presented to the trial court warranted the injunction); Phillips, 151 So. 3d at 59 (reversing and remanding with instructions to vacate the injunction for protection against domestic violence “[a]lthough the injunction ha[d] expired ․ because of the unintended collateral consequences that may result from such a judgment” (citing Young v. Smith, 901 So. 2d 372, 373 (Fla. 2d DCA 2005))); Jones v. Jones, 32 So. 3d 772, 773–74, 774 n.1 (Fla. 2d DCA 2010) (“Presumably, this injunction has already expired and was not renewed. We do not treat the order on appeal as moot because we are concerned about the potential collateral effects of such an order on Mr. Jones.”); Young, 901 So. 2d at 373 (“[A] determination that a person had either victimized a domestic partner with an act of violence or placed that domestic partner in reasonable fear of imminent danger, is a serious finding of fact that can have many unintended collateral consequences.”); Stone v. McMillian, 270 So. 3d 510, 512 n.2 (Fla. 1st DCA 2019) (“Although the injunction is no longer in effect, this appeal is not moot.”); Paulson v. Rankart, 251 So. 3d 986, 988 n.1 (Fla. 1st DCA 2018) (“Although the injunction has now expired, the appeal is not moot.”); Mitchell v. Brogden, 249 So. 3d 781, 782 (Fla. 1st DCA 2018) (“The injunction has now expired on its own terms, so it no longer has effect. Nonetheless, we cannot dismiss the appeal as moot because ‘collateral legal consequences flowing from such an injunction outlast the injunction itself.’ ” (quoting Murphy v. Reynolds, 55 So. 3d 716, 716 (Fla. 1st DCA 2011))); Vaught v. Vaught, 189 So. 3d 332, 333 n.1 (Fla. 4th DCA 2016) (finding that appeal from domestic violence injunction that had expired was not moot “due to the collateral consequences such an injunction might cause” (quoting Selph v. Selph, 144 So. 3d 676, 679 (Fla. 4th DCA 2014))); Jacquot v. Jacquot, 183 So. 3d 1158, 1159 (Fla. 5th DCA 2015) (reversing trial court's denial of motion for relief from judgment of domestic violence injunction on mootness grounds “[b]ecause the expiration of an injunction for protection against domestic violence is one of the recognized exceptions to the dismissal of a moot case”); Selph, 144 So. 3d at 679 (“Although the injunction in this case has since expired, we reverse and remand the case to the trial court with instructions to vacate the injunction.”); Kunkel v. Stanford ex rel. C.S., 137 So. 3d 608, 609 (Fla. 4th DCA 2014) (reversing and remanding with instructions to vacate the expired injunction for protection against domestic violence “due to the collateral consequences such an injunction might cause” (quoting Stone v. Stone, 128 So. 3d 239, 242 (Fla. 4th DCA 2013))); Stone, 128 So. 3d at 242 (“Although the injunction has now expired, we reverse and remand with instructions to vacate the injunction due to the collateral consequences such an injunction might cause.”); Murphy, 55 So. 3d at 716 (concluding that expiration of the injunction did not render the appeal moot, “because collateral legal consequences flowing from [a final injunction for protection against repeat violence] outlast the injunction itself”); Rodman v. Rodman, 48 So. 3d 1022, 1022 (Fla. 1st DCA 2010) (noting that “injunctions for protection against domestic violence are an exception to the usual rules of mootness because of the collateral legal consequences that flow from such an injunction”).1 But see Molina v. Valenzuela, 252 So. 3d 772, 772–73 (Fla. 4th DCA 2018) (dismissing appeal as moot from stalking injunction that had expired because appellant failed to “argue that there may be collateral consequences relating to her ability to possess a firearm, or any other collateral consequences” after responding to an order to show cause by “request[ing] a ruling on the appropriateness of the court's actions and so the public records reflect that none of her actions violated Florida law”).
It can be safely inferred from the face of recorded opinions cited above that the appellate courts decided the issue of mootness without an inquiry into the specific facts and circumstances of the individual protective injunction case. The issue is typically dispatched in a perfunctory manner that suggests an order to show cause is unnecessary in light of the general acceptance of this issue as one excepted from the usual considerations of mootness. See, e.g., Jones, 32 So. 3d at 774, n.1 (“Presumably, this injunction has already expired and was not renewed. We do not treat the order on appeal as moot because we are concerned about the potential collateral effects of such an order on Mr. Jones.” (emphasis added)); Rodman, 48 So. 3d at 1022 (recognizing “injunctions for protection against domestic violence a[s] an exception to the usual rules of mootness”).
This inference is corroborated by a review of available appellate records, which reveals that in several cases this court has decided an appeal from an expired injunction without issuing an order to show cause, regardless of whether the parties had raised the issue. For example, in Phillips v. Phillips, our dissenting colleague explained that the potential for “unintended collateral consequences” supported this court's decision to review and reverse an expired domestic violence injunction, which this court did without issuing an order to show cause or soliciting argument from the parties, which did not themselves raise the issue of mootness. See Phillips, 151 So. 3d at 59 (“Although the injunction has expired, we reverse and remand with instructions to vacate the injunction because of the unintended collateral consequences that may result from such a judgment.” (emphasis added)); see also Yaklin, 296 So. 3d at 533 (same); Sinopoli v. Clark, 290 So. 3d 159, 160 n.1 (Fla. 2d DCA 2020) (same); Stover, 287 So. 3d at 1277, n.2 (same).
Our dissenting colleague attempts to draw a distinction between domestic violence injunctions and other types of violence injunctions—such as the one involved in this case, dating violence—but her explanation fails to identify a distinction of sufficient pertinence to justify the disparate treatment. She does suggest that litigants in domestic violence matters involve the same cast of characters “typically” involved in family law matters. And her assertion that expired domestic violence injunctions might have an effect on pending or future family law proceedings in which the parties are or could later become involved is well taken. Indeed, “[e]vidence of domestic violence” is an enumerated factor to be considered in determining whether a parenting plan is in the best interests of a child. See § 61.13(3)(m), Fla. Stat. (2019).
However, there is no reason to presume that dating violence injunctions (or injunctions against repeat violence or stalking) could not similarly work “to the advantage or disadvantage of the parties in any collateral proceedings in which they become involved.” Presuming that such advantage would be attained by besmirching the reputation of an opposing party or portraying her as incapable of responsibility, it is reasonable to believe that an expired stalking, repeat violence, or dating violence injunction would also have relevance to the court's assessment of that party's character or accountability. Cf., e.g., § 61.13(3)(t) (requiring the court to consider “[a]ny other factor that is relevant to the determination of a specific parenting plan”). And each of the various injunctions against violence would bear equally upon a litigant's propensity for violence because, as previously discussed, the respective statutes all share the same definition of “violence.” See footnote 1, supra.
We provide no commentary here regarding under what circumstances an expired injunction of any kind would be a proper consideration in ancillary or unrelated legal matters. Rather, we discuss the possibility to illustrate the ineffectiveness of our dissenting colleague's attempt to carve out expired domestic violence injunctions from her blanket pronouncements regarding all other expired injunctions against violence. We are unaware of anything peculiar to expired domestic violence injunctions that would explain how or why they are so uniquely susceptible to collateral consequences that the burden she would place on appellants in cases involving other types of expired injunctions should be relaxed for those involving domestic violence injunctions.
Our dissenting colleague misplaces reliance on Molina, 252 So. 3d 772, in support of her argument that domestic violence injunctions should receive special treatment. The dicta in the Fourth District's Molina opinion provided no explanation for the distinction it drew between expired stalking injunctions and expired domestic violence injunctions other than the inaccurate insinuation that the latter pose a unique “potential prohibition on owning a firearm” that exempts them from the mootness analysis. See id. at 772–73. Florida's prohibition on possession or control of a firearm applies equally to injunctions restraining a person “from committing acts of stalking or cyberstalking” as it does to those restraining a person “from committing acts of domestic violence.” See § 790.233(1), Fla. Stat. More importantly, both the Federal and Florida prohibitions on possession of a firearm are only effective during the time the violence injunction or restraining order is in force—making the firearm prohibition irrelevant to any discussion regarding the collateral consequences of expired injunctions. See § 790.233(1) (prohibiting possession of firearms or ammunition “if the person has been issued a final injunction that is currently in force or effect“ (emphasis added)); 18 U.S.C. § 922(g)(8)(B) (making it “unlawful for any person ․ who is subject to“ a court order restraining against “harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner” to “possess in or affecting commerce, any firearm or ammunition” (emphasis added)); see also, e.g., United States v. DuBose, 598 F.3d 726, 728 (11th Cir. 2010) (describing the crime of illegal possession of a firearm under § 922(g)(8) as “possessing a firearm while subject to a protective order” (emphasis added)).
Regardless of which variety of violence injunction is at issue, courts most often describe the collateral consequences of such expired injunctions as if they have not yet and may never occur, suggesting that to avoid dismissal for mootness it is not necessary to articulate presently apparent consequences of an expired injunction against violence. See, e.g., Jones, 32 So. 3d at 774, n.1 (expressing “concern[ ] about the potential collateral effects of such an order” (emphasis added)); Yaklin, 296 So. 3d at 534 (noting that consequences “may result from” an injunction judgment (emphasis added) (quoting Phillips, 151 So. 3d at 59)); Young, 901 So. 2d at 373 (recognizing that an injunction “can have many unintended collateral consequences” (emphasis added)); Vaught, 189 So. 3d at 333, n.1 (deciding an appeal from an expired injunction “due to the collateral consequences such an injunction might cause“ (emphasis added) (quoting Selph, 144 So. 3d at 679)); Phillips, 151 So. 3d at 59 (reversing an expired injunction “because of the unintended collateral consequences that may result from such a judgment.” (emphasis added)). Indeed, it makes little sense to require an appellant to prognosticate about what potential collateral effects may result in the future. To require such a showing—when relevant consequences could just as easily manifest themselves in the future as exist at the time of an order to show cause—would be a vain exercise that causes unwarranted delay and wastes the resources of the court, the parties, and their advocates. Worse, it deprives a litigant of the opportunity to rectify an erroneous adverse judgment, the future collateral consequences of which she may be unable to predict at the time she is required to respond.
While a protective injunction does not become a criminal matter until it is violated, a final judgment imposing such an injunction shares pertinent similarities with a criminal conviction—it involves an adjudication that the respondent's malicious mistreatment of another human being met the statutory definition of violence justifying the government's significant curtailment of the respondent's liberty. Cf. Casiano v. State, 310 So. 3d 910, 915 (Fla. 2021) (discussing the distinction between an appeal from an illegal sentence that has already been served and an appeal challenging the underlying conviction, the latter of which presents a “possibility of removing the stigma of a conviction” that constitutes “a significant practical purpose demonstrating the continuing viability of the appeal” (quoting Parks v. State, 96 So. 3d 474, 475 n.2 (Fla. 1st DCA 2012))). It is not unreasonable to surmise that such a scarlet letter might affect an individual in the future—whether the judgment is based on overt acts of violence, malicious and repeated communications, or merely actions that create an imminent threat. See, e.g., Young, 901 So. 2d at 373 (“[A] determination that a person had either victimized a domestic partner with an act of violence or placed that domestic partner in reasonable fear of imminent danger, is a serious finding of fact that can have many unintended collateral consequences.” (emphasis added)); see also § 784.048(1), (2) (requiring a course of “willful[ ]” conduct including “repeated[ ],” “malicious[ ]” acts); cf. M.L.J. v. State, 93 So. 3d 348, 349 n.1 (Fla. 2d DCA 2012) (rejecting the State's mootness argument after the appellant's probationary period had expired because “[t]here are also financial and social consequences of M.L.J.’s case even though he received a withhold of adjudication” and “a withhold of adjudication could be relevant to future dispositions if M.L.J. ever was rearrested or sought admission or employment in an area requiring disclosure of any trial record”).
It is not difficult to envision how an erroneously entered injunction could stymie future efforts to seek employment or opportunities for advancement in, for example, the fields of law enforcement, security, childcare, eldercare, or education. Positions in those fields and others are often susceptible to abuse by virtue of their access to sensitive information, authority over vulnerable individuals, or authorization to use physical force. It would not be surprising for public or private sector employers to take into consideration that a job applicant was subject to an injunction because he was adjudicated to have threatened or stalked a victim by physical or electronic means. Cf., e.g., Fla. Admin. Code R. 5N-1.114(1), (2), (3)(i) (requiring a person seeking a license to provide private investigative, private security, or repossession services to maintain “good moral character” and “standards of conduct” that include “respect for the rights and property of others” and including “stalking or cyber stalking related offense[s]” among those described as “directly relate[d] to the business for which the license is held or sought”).
It is also probable that knowledge of such an adjudication would affect a potential client's decision to hire an individual to perform work—such as maintenance, repair, or cleaning services—that requires the individual to have access to the client's home or other property. And the record and stigma of an erroneously entered injunction could likewise impede an appellant's participation in civic life. It is not unlikely that private organizations might take such a judgment into consideration when deciding whether to, for example, allow her to coach a little league team; mentor a girl scout troop; or serve in a parent-teacher association, a volunteer fire department, a homeowners’ association, or a board of a non-profit organization—perhaps one that advocates against domestic and dating violence. Participation in the political process as a candidate or campaign worker could likewise be complicated by the specter of an erroneously entered injunction easily transmissible from the public record to a widely available electronic forum.
To demand of an appellant the prescience to identify which ill effects will be encountered during a future over which such a Damoclean judgment will hang is to defy a common sense understanding of the human condition. It is perhaps for unarticulated reasons similar to those described above that courts have regularly and summarily disregarded the expiration of a protective injunction as grounds for dismissal of an appeal without requiring a detailed enumeration of existing or potential collateral consequences, much less those that are peculiar to an individual appellant's current circumstances. Consistent with this trend, this court finds that the erroneously entered injunction for protection in this case should be vacated even though it has already expired pursuant to its own terms.
Our dissenting colleague asserts that this amounts to the court improperly inserting itself into proceedings where it does not belong. But it was our dissenting colleague who inserted the issue of mootness into these proceedings sua sponte—neither party having raised mootness and the appealing party having filed her initial brief after the injunction had been expired for months (from which an eminently reasonable deduction is that the appellant was still interested in a resolution of the matter despite having already been freed from the injunction's constraints). And although our dissenting colleague accuses the majority of exercising judicial fiat, it is worth noting that the question before us is not one of jurisdiction. See, e.g., Merkle v. Guardianship of Jacoby, 912 So. 2d 593, 594 (Fla. 2d DCA 2005) (“[T]he issue of mootness does not raise a question about our jurisdiction to decide the case. The reluctance of the Florida courts to decide moot questions is based on policy reasons, not lack of jurisdiction.”); cf. In re Holder, 945 So. 2d 1130, 1134 (Fla. 2006) (“[W]e recognize that our jurisdiction, which is outlined in the Florida Constitution, is a threshold matter that must be addressed before we can decide the merits of a case.” (emphasis added)). Neither is this a scenario requiring circumspection regarding our judicial role lest we encroach on the authority of another branch or read into a legal text a meaning its language cannot bear. Cf. Schoeff v. R.J. Reynolds Tobacco Company, 232 So. 3d 294, 313 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part) (“[C]ourts of this state are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit[ ] its express terms or its reasonable and obvious implications [because to] do so would be an abrogation of legislative power.’ ”) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)).
Rather, the question before this court is whether to afford a litigant a plenary appeal from an order based on insufficiently substantiated accusations of willful, malicious conduct that has been deemed by the legislature as violence worthy of constraint through the injunctive power of state government. Our dissenting colleague is content to answer that question in the affirmative, without requiring an appellant to show cause, if the appeal is from an expired domestic violence injunction—but she insists that appellants in other cases involving expired injunctions against violence should not enjoy that presumption against mootness. We are unpersuaded that these litigants should be treated in such disparate fashion.
With very few exceptions in recorded caselaw, this court and other district courts have adjudicated appeals from expired injunctions against domestic violence, dating violence, stalking, and repeat violence without requiring the appealing party to show cause why presently articulable collateral consequences obviate dismissal based on mootness. We perceive no reason why we should not decide this appeal in conformity with that precedent. Reversed and remanded with instructions.
I concur with Judge Atkinson's majority opinion in full. I write separately to offer a broader perspective on the issue that has divided this panel. As should be clear from the depth and tone of the opinions, we have a profound disagreement over the application of mootness to plenary appeals. The majority and dissenting opinions thoughtfully delve into the case law addressing expired injunctions and whether appellate courts ought to review them. Unfortunately, the issue of an appeal's mootness raises a first-principle problem no synthesis of case holdings is likely to resolve. I don't presume to have a solution to that problem, but I believe it merits examination.
Mootness, our court has observed, “is based on policy reasons, not lack of jurisdiction.” See Merkle, 912 So. 2d at 594. Because we, as a district court of appeal, are constitutionally charged with deciding plenary appeals within our jurisdiction, see McFadden v. State, 177 So. 3d 562, 566 (Fla. 2015) (“Under the Florida Constitution, the district courts of appeal ‘shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts ․ not directly appealable to the supreme court or a circuit court.’ ” (quoting art. 5 § 4(b)(1), Fla. Const.)), and appellate mootness is nowhere mentioned in the text of our constitution or any state statute, Merkle provides an inarguable assessment of mootness's essentiality. Cf. Ex parte Cox, 44 Fla. 537, 33 So. 509, 539 (1902) (“In so organizing the judiciary of the state, it is evident that the framers of our constitution have undertaken to prescribe the powers of each of the courts so created ․”); Jesse v. State, Dep't of Rev. ex rel. Robinson, 711 So. 2d 1179, 1180 (Fla. 2d DCA 1998) (“Subject matter jurisdiction arises by virtue of law only; it is conferred by constitution or statute and cannot be created by waiver or acquiescence.”).
And yet, when an appellate court declines to review a case it deems moot, the effect of that decision is unquestionably jurisdictional. Cf. M.M. v. Wood, 152 So. 3d 1280, 1281 (Fla. 1st DCA 2015) (“We therefore decline to exercise our jurisdiction to address a question that has been rendered moot by petitioner's release from secure detention.”). We have an analytical conundrum, then, in that when we decide a case is moot, we are refusing to exercise jurisdiction for a patently nonjurisdictional reason. For as one commentator aptly summarized, “[c]ontrol of jurisdiction consists of two basic elements: the power to broaden and the power to restrict.” Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603, 615 (Jan. 1992).
So mootness is a nonjurisdictional doctrine with jurisdictional repercussions. Nevertheless, mooting appeals has a long pedigree in the common law. Historically, it was justified for a variety of reasons, all of which seemed to revolve around the same impetus. “The demands of actual, practical litigation are too pressing to permit the examination or discussion of academic questions,” the New York Court of Appeals once observed. See In re Manning, 34 N.E. 931, 139 N.Y. 446, 448 (N.Y. 1893). The North Dakota Supreme Court dismissed “an abstract question” in an insolvency proceeding because “judicial tribunals are not organized for the purpose of rendering decisions which can be of no possible advantage to the parties to the litigation.” See In re Kaeppler, 7 N.D. 307, 75 N.W. 253, 253 (1898). The Supreme Court, in Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895), opined that courts have a “duty” to “decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” In essence, courts shouldn't spend their time deciding cases that may not matter.2
Except when they should. Because there are, of course, exceptions to the rule that “[a] moot case generally will be dismissed.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992). Even when a “controversy has been so fully resolved that a judicial determination can have no actual effect,” the Florida Supreme Court has identified “at least three instances” of exceptions to mootness. Id. In fact, these “instances” are quite broad. Appeals that raise questions of great “public importance,” or “are likely to recur,” or have “collateral legal consequences that affect the rights of a party” should not be dismissed as moot. Id. In Godwin, the court concluded that an appeal of a Baker Act commitment after the appellant had been released from custody was not moot “because section 402.22(8) allows for the imposition of a lien for unpaid fees flowing from an involuntary commitment, and HRS has not indicated a waiver of its right to impose a lien.” Id. at 214.
But if the proximity of the potential collateral consequence in Godwin marked one point of a boundary, the Florida Supreme Court marked it elsewhere in Casiano, 310 So. 3d at 913 (“[W]e write only to address Casiano's argument that the general rule of mootness should not be applied to his fully served sentence due to the possibility of a future sentencing enhancement as a [prison release reoffender].”). There the court noted that a future PRR designation would require Mr. Casiano “to commit or attempt to commit one of the offenses enumerated in the statute within three years of his release.” Id. at 914. And since Mr. Casiano was not challenging his conviction, the court concluded his appeal was properly dismissed as moot. Note, however, the Casiano court kept its holding narrowed to the facts before it, and it refrained from announcing any reformulation of Godwin’s precedent.3
When one reads the Godwin and Casiano opinions together, and the disparate conclusions they reached, it becomes readily apparent that mootness is a highly contextual inquiry and its exceptions leave a considerable amount of room for judicial discretion.4 The Florida Supreme Court said as much in Pino v. Bank of New York, 76 So. 3d 927, 927-28 (Fla. 2011), where the court rejected a stipulated dismissal under Florida Rule of Appellate Procedure 9.350 and retained its discretionary jurisdiction to consider a question of great public importance. “[M]ootness,” Pino explained, “does not defeat appellate jurisdiction, and a reviewing court has the discretion to retain jurisdiction over a case to decide the merits notwithstanding a notice of dismissal filed by the parties denoting a settlement of their dispute.” Id. at 930 (emphasis added). Wherever the doctrinal boundaries of mootness may lie, they are contextual, not immutable.
In that light, consider the case at bar. Ms. Bell has a constitutional right of access to Florida's courts, including this one. See Robbins v. Cipes, 181 So. 2d 521, 522 (Fla. 1966) (“Appeals to ․ the District Courts of Appeal are constitutionally guaranteed rights in this State.”). She has a right to a plenary appeal. See McFadden, 177 So. 3d at 566. Ms. Bell properly invoked the jurisdiction of this court and sought review of an injunction that all the judges on this panel agree was improvidently entered. Without question, if this court entertains her appeal, this appellant is entitled to relief.
And yet we find ourselves in conflict over whether Ms. Bell “really” needs the appellate relief she has asked for and is lawfully entitled to. And that conflict only arose because our court inserted the issue into her case.5 The majority opinion describes at length the collateral consequences Ms. Bell's wrongly issued injunction could yield. I agree with all of them (and suspect still more could be stated). More than that, though, I think the question ought to be turned around when an appellate court sua sponte raises mootness to deprive litigants of their right to plenary review. In those circumstances, we should ask why this particular appeal should be deemed moot and what policy would it serve to deprive this particular litigant of their right to a plenary appeal. Those are contextual questions that suit this contextual inquiry.
All I am suggesting is that judges should perhaps be circumspect when we wield a judicial power provided under the common law to deprive a party of a court provided by the People. While I recognize the utility of mootness as a prudential restraint on judicial gallivanting and a conservation of judicial resources, I think when, as in the case at bar, mootness is raised on the court's own volition, when it would deprive a litigant who has properly invoked our jurisdiction of relief to which that litigant is entitled, when there is no issue concerning separation of powers and no concern that the parties presenting arguments are truly adversarial, and when there are, as the majority opinion describes, extensive collateral legal consequences to the erroneous order before us, we would do a disservice to the litigants and the public by declining to do our job.
This appeal is moot and should have been dismissed. Accordingly, I dissent. The final judgment of injunction from which Bell appeals expired before she filed her brief. Bell's brief is silent on the question of whether the injunction's expiration mooted her appeal and Battaglia, the appellee, did not file a brief. Accordingly, this court issued an order to show cause to give Bell an opportunity to argue her appeal should not be dismissed as moot, but Bell did not respond. There being no indication from the record or argument from Bell that the appeal was not moot, this court should have dismissed it.
Instead, the majority inserted itself into the proceedings and embarked on a judicial quest to manufacture an argument on Bell's behalf.6 The resulting opinion is not the product of an ongoing adversarial process, it is the product of judicial overreach in disregard of the constraints under which appellate courts are supposed to operate. See D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888-89 (Fla. 2018) (Canady, C.J., dissenting) (“[I]t is not the role of the appellate court to act as standby counsel for the parties.” (citing Polyglycoat Corp. v. Hirsch Distrib., Inc., 442 So. 2d 958 (Fla. 4th DCA 1983))); Polyglycoat, 442 So. 2d at 960 (explaining that it is not the function of the court “to become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.”). When Bell failed to argue her appeal was not moot, the majority stepped in and supplied an argument for her. In fact, not only did it supply an argument for her, it went further and absolved her and others in her position from any responsibility to demonstrate to this court that our decision will have some actual effect.
And having a “live controversy” whose determination will have an “actual effect” on a party is the heart of the mootness doctrine. Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992) (“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. A case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” (citations omitted)). The supreme court recently reiterated the significance of the mootness doctrine in Casiano v. State, 310 So. 3d 910 (Fla. 2021):
Article I, section 1 of the Florida Constitution vests “[t]he judicial power” in Florida's courts, and Florida's courts, including appellate courts, reserve the exercise of judicial power for cases involving actual controversies. Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist., 80 So. 2d 335, 336 (Fla. 1955); see Dep't of Revenue v. Kuhnlein, 646 So. 2d 717, 720-21 (Fla. 1994) (explaining that the only exception to the general requirement that cases must involve a real controversy is where the Florida Constitution otherwise authorizes advisory opinions). This limitation on the exercise of judicial power to justiciable controversies is rooted in judicial adherence to the doctrine of separation of powers. See Ervin v. City of N. Mia. Beach, 66 So. 2d 235, 236 (Fla. 1953) (“Judicial adherence to the doctrine of separation of powers preserves the courts for the decision of issues between litigants capable of effective determination.”)
Id. at 913 (citations omitted). “The mootness doctrine is ‘a corollary to the limitation on the exercise of judicial power to the decision of justiciable controversies.’ ” Id. (quoting Merkle v. Guardianship of Jacoby, 912 So. 2d 595, 600 (Fla. 2d DCA 2005)). “A moot case generally will be dismissed.” Godwin, 593 So. 2d at 211.
Nevertheless, as Godwin explains, “Florida courts recognize three instances in which an otherwise moot case will not be dismissed.” 593 So. 2d at 212. Pertinent here, a case will not be dismissed as moot when “collateral legal consequences that affect the rights of a party flow from the issue to be determined.” Id.; Casiano, 310 So. 3d at 913. The majority claims this is such a case but fails to specify what legal consequence flows to Bell from this now expired injunction. Compare this to cases such as Wyandt v. Voccio, 148 So. 3d 543, 544 n.3 (Fla. 2d DCA 2014), in which this court recognized that the pendency of criminal contempt proceedings based on an alleged violation of a stalking injunction was a collateral legal consequence that was an exception to the rule that moot cases should be dismissed. Or to Boyles v. Tiefenthaler, 810 So. 2d 1041, 1041 (Fla. 2d DCA 2002), where we recognized that even though the injunction had expired, under federal law its issuance prevented the appellant, who was in law enforcement, from carrying a gun.
Contrary to what the majority would like you to believe, this court routinely considers whether an appeal, including an appeal from a final judgment of injunction, has become moot, and if we cannot discern an answer from the briefs or the record, we will issue a show cause order. See, e.g., Sinopoli v. Clark, 290 So. 3d 159, 160 n.1 (Fla. 2d DCA 2020) (explaining that factual developments may have mooted an appeal from a stalking injunction but for the fact the injunction was still in effect); Stover v. Stover, 287 So. 3d 1277, 1278 (Fla. 2d DCA 2020) (examining the record and concluding that a challenged provision of the injunction had expired and therefore the appeal was moot as to that provision); Wilson v. State, 268 So. 3d 820, 820-21 (Fla. 2d DCA 2019) (issuing a show cause order where events transpiring after the appeal was filed may have rendered it moot and then dismissing the appeal because the appellant's response amounted to “pessimistic speculation” regarding possible future consequences of the challenged order); Wyandt, 148 So. 3d at 544 n.3 (explaining that although the injunction had expired while the appeal was pending, the case was not moot because of a pending criminal investigation based on an alleged violation of the injunction); Bevan v. Wolfson, 638 So. 2d 527, 527 (Fla. 2d DCA 1994) (dismissing an appeal from an expired repeat violence injunction as moot where neither the record nor the appellant's response to a show cause order demonstrated one of the exceptions to the rule that a moot case should be dismissed). We are not unique. See, e.g., Araguel v. Bryan, 315 So.3d 1241, 1242 (Fla. 1st DCA 2021) (dismissing as moot the appeal of an expired protective injunction where the potential collateral legal consequences the appellant asserted were too speculative to justify applying the exception to his case); Molina v. Valenzuela, 252 So. 3d 772, 772-73 (Fla. 4th DCA 2018) (dismissing an appeal from an expired stalking injunction as moot after the appellant's response to a show cause order did not demonstrate any collateral legal consequence flowed from the injunction); Wellings Auto., LLC v. Dennis P. Saviano Tr. dated 5/18/1993, 183 So. 3d 412, 412 (Fla. 3d DCA 2014) (dismissing an appeal from an expired injunction after neither party's response to an order to show cause convinced the court the case was not moot).
As is evident from the litany of cases the majority cites, appeals involving domestic violence injunctions issued pursuant to section 741.30, Florida Statutes, employ a presumption that collateral consequences exist based on the nature of domestic violence injunctions. Conversely, it reveals that the presumption is rarely afforded to injunctions issued under sections 784.046 and 784.0485, Florida Statutes, which authorize injunctions for stalking or for repeat, sexual or dating violence. Of the sixteen cases the majority cites, only four—none of which are from this court—apply the presumption in appeals from injunctions that were not issued under section 741.30.
The earliest of those cases, Murphy v. Reynolds, 55 So. 3d 716 (Fla. 1st DCA 2011), applied the presumption to an expired repeat violence injunction. In finding the case was not moot, it simply cited two other cases. Id. at 716-17. One, Rodman v. Rodman, 48 So. 3d 1022 (Fla. 1st DCA 2010), involved a domestic violence injunction. The second case was this court's decision in Boyles, 810 So. 2d 1041, which involved a repeat violence injunction. However, in Boyles this court did not apply a presumption—we looked at the fact the injunction would have precluded the appellant from carrying a gun thus affecting her career in law enforcement. Boyles, 810 So. 2d at 1041. The next two cases the majority cites, Paulson v. Rankart, 251 So. 3d 986 (Fla. 1st DCA 2018), and Mitchell v. Brogden, 249 So. 3d 781 (Fla. 1st DCA 2018), simply cite Murphy and conclude the appeals are not moot. See Paulson, 251 So. 3d at 988 n.1; Mitchell, 249 So. 3d at 782. Finally, Stone v. McMillian, 270 So. 3d 510 (Fla. 1st DCA 2019), simply cites Paulson. See id. at 512. The use of the presumption in these opinions appears as ipse dixit, much as it does in the majority's opinion, and it undermines their value as precedent.
And regardless of their value as precedent, or lack thereof, those cases conflict with how our court has treated these cases. See, e.g., Wyandt, 148 So. 3d at 544 n.3; Bevan, 638 So. 2d at 527. Similarly, in Molina, 252 So. 3d at 772, the Fourth District did not apply the presumption afforded to domestic violence injunctions, instead issuing a show cause order where the stalking injunction the appellant had asked the court to review had expired. The appellant responded that the court should hear the appeal “so the public records reflect that none of her actions violated Florida law.” Id. The court found the appeal was moot. Id. at 773. Further, the court explained, “to prevent confusion we note that the [collateral consequences] exception applies when the injunction is for the protection against domestic violence.” Id. (emphasis added). The court concluded by stating that not only was the injunction at issue not an injunction for the protection against domestic violence, which might preclude ownership of a firearm, but also that Molina had not argued “that there may be collateral consequences relating to her ability to possess a firearm, or any other collateral consequences.” Id.
The majority posits a multitude of circumstances it apparently assumes qualify as collateral consequences, but not a single case it cites holds that any of those circumstances provide the basis for employing a presumption in domestic violence cases. On the contrary, Godwin seems to rule out at least some of them, which may explain why the majority avoids addressing Godwin's explication of the type of collateral consequences that provide an exception to the mootness doctrine. Importantly, Godwin speaks of “collateral legal consequences” that “affect the rights of a party.” 593 So. 2d at 212 (emphasis supplied) (“[A]n otherwise moot case will not be dismissed if collateral legal consequences that affect the rights of a party flow from the issue to be determined.”). The majority dispenses with those limiting modifiers and opens the door wide to any possible negative consequence that could conceivably flow from an injunction.
Godwin expressly rejects such an expansive view. Godwin had challenged her involuntary civil commitment but was discharged before the district court could decide her appeal. 593 So. 2d at 212. The State moved to dismiss the appeal saying it was moot and the district court, expressing some reservations, agreed but certified the question of whether discharge rendered the appeal of a Baker Act commitment moot. Id.
In answering the question, the court first found that collateral legal consequences could flow from an involuntary civil commitment: “The imposition of a lien under section 402.33(8), [Florida Statutes (1989),] on the property of an involuntarily committed person is a collateral legal consequence.” Id. at 213. Next, the court looked specifically to Godwin's individual situation and concluded that because section 402.33(8) allows for the imposition of a lien and the Department of Health and Human Services had not waived its right to impose the lien on Godwin, her case was not moot. The court then went on to explain that
[w]e recognize that other consequences may follow an involuntary commitment ․, such as the stigma that society may attach, as well as some restrictions on a person's privileges and opportunities․ While we recognize these consequences are significant, we hold that they do not rise to the level of collateral legal consequences.
Id. at 214 (emphasis added) (citations omitted). One need only read the dissent to see the court was unpersuaded that a host of other possible legal and nonlegal consequences were sufficient to prevent a case from being dismissed as moot. Id. at 217-18.
If we are to take the supreme court at its word, neither stigma, nor the possible loss of privileges and opportunities constitute collateral legal consequences sufficient to save an appeal from being dismissed as moot. Yet, those are the types of consequences the majority relies on in support of its position that no appeal from an expired stalking or repeat violence injunction is ever moot. It is not clear to me whether the majority staked out that position because it believes the things it lists provide the rationale for applying a presumption in domestic violence cases, or whether they are listed to justify applying a presumption in cases involving other types of protective injunctions.
If it is the later, the majority opinion is devoid of any analysis explaining how what it proposes is consistent with Godwin's specification of legal consequences. Nor does the majority reconcile its expansive view of collateral consequences with the case law rejecting speculative consequences or societal stigma or reputational harm as sufficient to prevent a case from being moot. See, e.g., Casiano, 310 So. 3d at 913-14 (holding that a defendant's potential future PRR designation was too speculative to constitute a collateral legal consequence); Araguel, 315 So.3d at 1242 (dismissing as moot the appeal of an expired protective injunction where the potential collateral legal consequences were too speculative to justify applying the exception to his case); Kendall Healthcare Grp., Ltd. v. Pub. Health Tr. of Miami-Dade Cnty., 296 So. 3d 533, 535-36 (Fla. 1st DCA 2020) (holding that the appellants’ speculative claim to attorneys’ fees was insufficient to be deemed a collateral legal consequence that would allow the court to rule on the merits of the claim, despite its mootness); Molina, 252 So. 3d at 772-73 (rejecting the appellant's request to decide her appeal so that “the public records reflect that none of her actions violated Florida law”); Wilson, 268 So. 3d at 821 (dismissing an appeal as moot because the appellant's response to the court's show cause order amounted to “pessimistic speculation” regarding possible future consequences of the challenged order); Lund v. Dep't of Health, 708 So. 2d 645, 647 (Fla. 1st DCA 1998) (“[T]he possibility of an attorney's fee award ․ is not a collateral legal consequence which would preclude dismissal when the death of a party renders the appeal moot.”); Westlake v. State, 440 So. 2d 74, 75 (Fla. 5th DCA 1983) (distinguishing collateral social consequences from collateral legal consequences (e.g., restriction of voting rights, jury service, driver's licenses or gun licenses) in rejecting the argument that the case should not be considered as moot because of the stigma attached to an involuntary commitment for a mental disability).
If it is the former, the majority misunderstands the rationale for resorting to a presumption in cases involving domestic violence injunctions. Domestic violence injunctions involve a limited universe of individuals—family or household members, which includes
spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family, or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same dwelling unit.
§ 741.28(3), Fla. Stat. (2019). Because of these relationships, the parties seeking an injunction under section 741.30 are typically embroiled in collateral legal proceedings such as dissolution actions, post-dissolution modification proceedings, child custody proceedings, paternity proceedings, or other similar domestic litigation. As a result, the findings made in connection with the issuance of a domestic violence injunction can and do work to the advantage or disadvantage of the parties in any collateral proceedings in which they become involved.7 Recognizing this, courts have presumed that even where a domestic violence injunction has expired, it can have collateral legal consequences. See, e.g., Pryor v. Pryor, 141 So. 3d 1279, 1280 (Fla. 1st DCA 2014) (vacating an expired domestic violence injunction to avoid collateral consequences and “clear[ ] the path for future relitigation [sic] of the issues between the parties and eliminate[ ] a judgment, the review of which was prevented through happenstance” (quoting Garces v. Legarda, 86 So. 3d 602, 607 (Fla. 1st DCA 2012) (citations omitted)); Oettmeier v. Oettmeier, 960 So. 2d 902, 904 (Fla. 2d DCA 2007) (reversing an injunction and explaining that “the denial of a domestic violence injunction does not preclude the petitioner from seeking alternate remedies in the domestic relations court” in a case where the trial court had granted the wife an injunction without the requisite findings and then advised the husband the court would be open if he wanted to “roll this into the divorce”); Young v. Smith, 901 So. 2d 372, 373 (Fla. 2d DCA 2005) (referring to the parties’ pending paternity action and explaining that the factual findings made in connection with the domestic violence injunction were “serious” and could have “many unintended collateral consequences”).8
The Florida Supreme Court has specifically limited the collateral consequence exception to mootness to “collateral legal consequences” that “affect the rights of a party.” 593 So. 2d at 212 (emphasis supplied). Those consequences cannot be entirely speculative. 310 So. 3d at 913-14. The majority opinion ignores these constraints on the exercise of our judicial power and mandates review of every final judgment of injunction in stalking or repeat violence cases. This undermines the purpose of the mootness doctrine. To accomplish this feat, the majority borrows the presumption courts have applied in appeals from expired domestic violence injunctions, but the opinion offers no indication the majority understands the rationale justifying the use of a presumption in those cases, much less a basis to conclude that those concerns should apply to cases such as Bell's. Finally, in yet another act of unrestrained judicial power, the majority achieves its desired result not at the behest of the appellant through the argument of counsel but by judicial fiat. Accordingly, I dissent.
FOOTNOTES
1. A majority of these cases deal with domestic violence injunctions. Others concern injunctions for protection against stalking and acts of repeat violence. In this case, the trial court entered an injunction for protection against dating violence based on stalking, supported by allegations of cyberstalking. However, both the statutory provisions pertaining to domestic violence and those pertaining to dating violence and repeat violence contain the same definition of violence. Compare § 741.30(5)(a), Fla. Stat. (2018) (“If it appears to the court that an immediate and present danger of domestic violence exists, the court may grant a temporary injunction ․” (emphasis added)) and § 741.28, Fla. Stat. (2018) (defining domestic violence as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death”), with § 784.046(2)(b) (“[A]ny person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence ․ has standing in the circuit court to file a sworn petition for an injunction for protection against dating violence.” (emphasis added)) and § 784.046(1)(a), (d) (defining violence as it pertains to dating violence as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person”). In other words, a putative victim could establish entitlement to a protective injunction in identical fashion, but the type of injunction varies depending upon his or her relationship with the respondent alleged to have committed the violence. Compare § 741.30(5)(a) (defining domestic violence as that committed on “one family or household member by another family or household member”), with § 784.046(1)(d) (defining dating violence as violence “between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature”).
2. In the federal system, mootness has come to be treated as an aspect of federal jurisdiction, when, in 1964, the Supreme Court remarked in a footnote that it lacked jurisdiction to review moot cases because of “the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” See Liner v. Jafco, Inc., 375 U.S. 301, 394 n.3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964). Exceptions to the federal application of mootness developed over time—exceptions that, in many respects, mirror those we have crafted in Florida law—and the result in the federal system has been frequently criticized for its incoherence. See, e.g., Honig v. Doe, 484 U.S. 305, 330, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (Rehnquist, C.J., concurring) (“If our mootness doctrine were forced upon us by the case or controversy requirement of Art. III itself, we would have no more power to decide lawsuits which are ‘moot’ but which also raise questions which are capable of repetition but evading review that we would to decide cases which are ‘moot’ but raise no such questions.”); Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562, 621-22 (Apr. 2009) (“The conventional understanding of mootness as a constitutional bar to federal court jurisdiction is a doctrine at war with itself. The judicially developed exceptions to the mootness doctrine cannot be reconciled with the constitutional account of mootness, and case law reveals that courts regularly apply mootness, not as a mandatory bar on jurisdiction, but as a prudential doctrine.”); Lee, 105 Harv. L. Rev. at 625 (“Put simply, the Supreme Court's insistence that some mootness considerations are grounded in Article III has led to confusion.”).
3. The Casiano court observed that the conferral of “[t]he judicial power” under article V section 1 of the Florida Constitution should be reserved for “cases involving actual controversies,” 310 So. 3d at 913 (citing Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist., 80 So. 2d 335, 336 (Fla. 1955)), although, unlike article III, section 2, clause 1 of the federal Constitution, our state constitution does not include a “case or controversy” limitation. Casiano also ascribed mootness to judicial adherence to the separation of powers between the branches of the government. Id. This latter notion traces its origin to a treatise on declaratory judgment actions, id. (citing Walter H. Anderson, Actions for Declaratory Judgments 66 (2d ed. 1951)), (a treatise that, ironically, was once criticized for its “rote recitation of loose language” on this very point, see George W. Pugh, Actions for Declaratory Judgments (2d ed.). By Walter H. Anderson. Atlanta: The Harrison Co., 1951. PP. 2171 (3 Vols.). $60.00, 62 Yale L. J. 1026, 1027 (May 1953)). I read these observations in Casiano as the court taking hold of what was at hand to fashion mootness into a more grounded analytical framework, one which can guide the exercise of judicial discretion. Our judicial power should be understood as a limited grant of governmental power, and mootness perhaps offers one way of discerning one of the limits of that grant. And since the judiciary is essentially construing its own power, as it does whenever a question of jurisdiction is raised, the court should be mindful of its limited role in our government when the issue of mootness arises.
4. Indeed, there appears to be something of an open question as to what (or whether a) standard of review applies to a lower court's determination that a case is moot. Cf. L.B. v. State, 819 So. 2d 922, 922 (Fla. 3d DCA 2002) (observing that “[u]nder most standards of review this case would be moot,” but nevertheless reversing a Baker Act commitment order).
5. The dissent posits a “guess” that our decision to proceed with jurisdiction over this case was simply because the issue of mootness arose “after the majority had begun circulating an opinion.” I will state my motivations for joining the majority opinion plainly: Ms. Bell is entitled to relief; and I am of the opinion that the People expect their judges to issue rulings in the cases the People have authorized us to decide.The dissent makes a laudable attempt to lay hold of a distinction between domestic violence injunctions and stalking injunctions (the former, she would allow, have “a presumption” of attendant collateral consequences, while the latter should not), but without a broader rationale for mooting an appeal, that distinction strikes me as more didactic than compelling.
6. The issue of whether the appeal was moot arose after the majority had begun circulating an opinion. My guess is that after having come that far, the majority simply did not want to entertain the prospect that case might be moot. Having been in that position once or twice myself, I understand the frustration. That is not, however, a reason to take up the appellant's case and prosecute the appeal for her.
7. In fact, domestic violence injunctions are often sought for that very reason.
8. Appeals from criminal convictions in which a defendant has completed his sentence enjoy a similar presumption. See Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (explaining the evolution of the mootness inquiry in cases where a defendant has appealed his conviction but has finished serving his sentence and noting the Court had over time “acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse legal consequences”).
ATKINSON, Judge.
LUCAS, J., Concurs separately. KELLY, J., Dissents with opinion.
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Docket No: No. 2D19-280
Decided: January 12, 2022
Court: District Court of Appeal of Florida, Second District.
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