Lewis v. Garrigan

#28706-dismissed-SRJ
2019 S.D. 38

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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DANIEL LEWIS on behalf of
minor child E.L., Petitioner,

v.

CHRISTOPHER GARRIGAN, Respondent and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE JANE WIPF PFEIFLE
Judge

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DANIEL LEWIS
Rapid City, South Dakota Pro Se Petitioner.

KIRSTEN K. AASEN
Rapid City, South Dakota

PATRICIA A. MEYERS
Rapid City, South Dakota Attorneys for Respondent
and Appellant.

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CONSIDERED ON BRIEFS ON
APRIL 29, 2019
OPINION FILED 07/02/19
#28706

JENSEN, Justice

[¶1.] Daniel Lewis, on behalf of his minor daughter E.L., sought a protection

order against Christopher Garrigan after learning that he was a registered sex

offender. At the time the petition was filed, Garrigan was in a romantic

relationship with Daniel’s ex-wife, Theresa. Daniel also requested his sons B.L. and

L.L. be included as additional protected persons in the protection order. The circuit

court entered a protection order against Garrigan on August 23, 2018. The order

prohibited Garrigan from coming within a distance of 100 yards of the children.

Garrigan appeals the stalking order, which expired by its own terms after six

months. We dismiss as moot.

Facts and Procedural History

[¶2.] Daniel and Theresa had three children during their marriage; E.L.,

B.L., and L.L. Theresa commenced a divorce against Daniel in March 2016. While

the divorce was pending, custody of the children alternated weekly between Daniel

and Theresa. In April 2018, Theresa and Garrigan began a relationship. Daniel

learned of the relationship from his children. The children told Daniel that

Garrigan would come to Theresa’s house after she got home from work, would stay

after they went to bed, and accompanied Theresa and the kids on road trips.

[¶3.] The divorce was finalized in July 2018. The parties agreed to continue

the shared custody arrangement. About the same time the divorce was concluded,

Daniel learned that Garrigan was previously convicted of felony sexual contact with

his own minor daughter. Daniel informed Theresa of his discovery by text message

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and asked that Theresa not allow Garrigan to be around their children. Theresa

did not respond to the text message.

[¶4.] The next day, Daniel filed a petition and affidavit for a protection order

on behalf of his children against Garrigan. The petition claimed stalking against

Garrigan because of his alleged contact with the children as a convicted child sex

offender. The affidavit in support of the petition alleged that on one occasion when

the children were dropped off following their time with Theresa, E.L. ran to Daniel

crying and asked to never go back to Theresa’s house, but she did not explain why

she was upset. The affidavit also alleged the children’s therapist, Tom Bosworth,

was concerned because E.L.’s “emotional and mental states [put her in] high risk of

being sexualy [sic] assaulted by a child predator.” Daniel indicated in the petition

that he had no knowledge of Garrigan harming the children but wanted the order to

ensure his children were safe.

[¶5.] A hearing on the petition was held on August 23, 2018. Daniel

appeared pro se and testified along with Bosworth. Dr. Dewey Ertz, a therapist

specializing in sex offender treatment, also testified. Garrigan did not testify.

Daniel admitted that he had not personally seen Garrigan around the children and

had no direct knowledge of Garrigan’s contact with the children.1 Bosworth

expressed general concerns about the children being around a registered sex

offender, but admitted his concerns were not based on any personal knowledge of

Garrigan’s case or situation. Bosworth testified that he had raised his concerns to

1. Daniel provided one photograph of Theresa and Garrigan with L.L. in the
background.

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Theresa and explained, “[d]uring that conversation [Theresa] related to me that

[Garrigan], when he was intoxicated, sexually offended his daughter by lifting her

shirt up and touching her breasts. And it was a one-time incident.”

[¶6.] Dr. Ertz testified that Garrigan was classified as a “low-level risk” re-

offender since he had been compliant with his parole plan. Dr. Ertz also testified

that he met with Garrigan and Theresa to counsel their relationship and discuss

Garrigan’s potential involvement with Theresa’s children. At the conclusion of Dr.

Ertz’s testimony, the court briefly questioned him:

THE COURT: So, Dr. Ertz, was that your understanding
of what Mr. Garrigan was convicted of? Of lifting
up the blouse -- shirt of his daughter and looking at
her breasts?
DR. ERTZ: My information was that it was more than that.
THE COURT: And was it simply a one-time thing?
DR. ERTZ: It was not simply a one-time thing.

[¶7.] In its oral findings of fact, the court stated its concern for the safety of

the children. The court noted that Garrigan had been released from prison less

than a year for his sexual contact conviction and was still on parole. The court also

indicated its belief that Garrigan downplayed the seriousness of his prior offense to

Theresa. The court explained that it accepted the testimony of Daniel, Bosworth,

and the statements of the children to be true since Garrigan chose not to testify.

Based upon these findings, the court determined that it was not in the children’s

best interests to have contact with Garrigan, and that Garrigan had pursued a

knowing and willful course of conduct by bringing himself into the children’s home.

The court then explained:

The [c]ourt is going to enter the protection order for six months.
It is the expectation of the [c]ourt that this matter could also and

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should also be resolved in the custody side of it. And I anticipate
that six months is sufficient time for this to be resolved.
Obviously, we can always have a motion to modify. Mr.
Garrigan may not be within 100 yards of the children, may have
no contact directly or indirectly with the children.

(Emphasis added.) The court signed a six-month protection order that expired on

February 23, 2019. Garrigan appealed and filed his appeal brief on November 26,

2018. Daniel appears pro se on appeal and has not filed an appeal brief.2

[¶8.] The Odyssey© electronic court filing record in the divorce case between

Daniel and Theresa shows that just before the protection order expired, they

entered into a stipulated order, on February 11, 2019. The order required Theresa

to prevent Garrigan’s contact with the children or from visiting or remaining at

Theresa’s home when the children are present. The order also required Theresa to

ensure Garrigan does not participate in any electronic communication with the

children.

[¶9.] Garrigan raises two issues in this appeal:

1. Whether the appeal should be dismissed as moot because
the protection order has expired.

2. Whether the circuit court’s protection order was
supported by the record and within its discretion.

Analysis & Decision

1. Whether the appeal should be dismissed as moot because the
protection order has expired.

2. The “failure of the appellee to file a brief does not automatically translate to
victory for the appellant.” Brummer v. Stokebrand, 1999 S.D. 137, ¶ 6,
601 N.W.2d 619, 621 (quoting Hawkins v. Peterson, 474 N.W.2d 90, 92
(S.D. 1991)). We have stated that the “[a]ppellant still has the burden of
showing that the findings of fact are clearly erroneous or that the conclusions
of law are incorrect[.]” Id. Here, before addressing the merits, Garrigan
must initially show that the expired protection order is not moot.

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[¶10.] We have stated,

[t]his Court will only decide “actual controversies affecting
people’s rights . . . . Accordingly, an appeal will be dismissed as
moot where, before the appellate decision, there has been a
change of circumstances or the occurrence of an event by which
the actual controversy ceases and it becomes impossible for the
appellate court to grant effectual relief.”

Sullivan v. Sullivan, 2009 S.D. 27, ¶ 11, 764 N.W.2d 895, 899 (quoting In re

Woodruff, 1997 S.D. 95, ¶ 10, 567 N.W.2d 226, 228). Garrigan acknowledges that

the expiration of the protection order presents a potential bar to appellate review.

Nonetheless, he argues that the Court should review the expired order under one of

the exceptions to the mootness doctrine. See e.g., Larson v. Krebs, 2017 S.D. 39, ¶

14, 898 N.W.2d 10, 16 (explaining the “capable of repetition, yet evading review”

exception).

[¶11.] Garrigan initially argues we should review the expired order because

the matter is “capable of repetition, yet evading review.” Id. We may apply this

exception when “(1) the challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party would be subjected to the same action

again.” Skjonsberg v. Menard, Inc., 2019 S.D. 6, ¶ 15, 922 N.W.2d 784, 789 (quoting

Larson, 2017 S.D. 39, ¶ 14, 898 N.W.2d at 16). Even if we assume the first prong is

satisfied, the stipulated order in the divorce between Daniel and Theresa

diminishes the likelihood that Daniel will file a future protection order against

Garrigan. Thus, we decline to review the order under this exception.

[¶12.] Garrigan also argues that we should review the order as a matter of

public importance. This exception is a variation on the first exception, but

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considers both the public importance of the issue and the likelihood of repetition.3

We have stated that we “possess discretion to ‘determine a moot question of public

importance if we feel that the value of its determination as a precedent is sufficient

to overcome the rule against considering moot questions.’” Larson, 2017 S.D. 39,

¶ 16, 898 N.W.2d at 16-17 (quoting Cummings v. Mickelson, 495 N.W.2d 493, 496

(S.D. 1993)). In exercising this discretion, we will consider the “general public

importance, probable future recurrence, and probable future mootness.” Larson,

2017 S.D. 39, ¶ 16, 898 N.W.2d at 17 (quoting Sedlacek v. S.D. Teener Baseball

Program, 437 N.W.2d 866, 868 (S.D. 1989)). Garrigan suggests we apply this

exception because appellate review of short-term protection orders appealed by an

aggrieved party is a matter of public importance. Garrigan cites Seney v. Morhy,

3 N.E.3d 577 (Mass. 2014), where that court denied a request to dismiss the appeal

of an expired protection order, stating “[i]n such circumstances, we do not hesitate

to reach the merits of cases that no longer involve a live dispute so as to further the

public interest.”4 Id. at 581 (quoting Anime v. Commonwealth, 611 N.E.2d 204

3. In Woodruff, we stated, “[The capable of repetition, yet evading review
exception] is also known as the public interest exception.” 1997 S.D. 95, ¶ 15,
567 N.W.2d 226, 229. In Larson, we revisited this concept and indicated in
dicta that the exceptions may be separate, but “we decline[d] to address the
relationship between the exceptions.” 2017 S.D. 39, ¶ 14 n.3, 898 N.W.2d 10,
16 n.3. Since Larson, our decision in Skjonsberg, 2019 S.D. 6, ¶ 15 n.5,
922 N.W.2d at 789 n.5, discussed the “capable of repetition, but evading
review” exception, while State v. Bolton, 2017 S.D. 94, ¶ 5, 906 N.W.2d 365,
366 discussed the “public interest exception,” but neither addressed whether
these exceptions are distinct. In discussing the public interest exception
here, we assume these are separate exceptions.

4. Seney did not apply the public importance exception, but rather reviewed an
expired protection order for harassment under the collateral consequences
(continued . . .)
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(1993)). Under Garrigan’s view, appellate review of a short-term protection order or

other restraining order that a party claims was erroneously entered may serve some

public interest. But the same could be said of every expired order that a party

claims was erroneously entered. Applying the exception this broadly would

effectively eviscerate our mootness rule. Given the private nature of the dispute

between these parties, and the apparent resolution of the issue of Garrigan’s

contact with the children, we decline to review the case under the public importance

exception.

[¶13.] Garrigan also argues the expired protection order may be reviewed

under the collateral consequences exception to the mootness doctrine. In Woodruff,

we considered the applicability of the collateral consequences exception to an

expired involuntary mental health commitment order. 1997 S.D. 95, ¶ 14,

567 N.W.2d at 229. Woodruff noted that a determination that a person lacks

mental competency may have an effect on a person’s “voting rights, restrictions on

the right to serve on a federal jury, restrictions on the ability to obtain a license to

drive, limitations on gun permit access, a rebuttable presumption of continued

incompetency, the right to dispose of property, and the right to execute contracts[.]”

1997 S.D. 95, ¶ 12, 567 N.W.2d at 228. However, in the context of an involuntary

mental commitment, the Court noted that “[Woodruff’s] basic rights remain

________________________
(. . . continued)
exception. Because of a Massachusetts statute providing for expunging the
public record of any protection order vacated on appeal, the court stated that
“[t]he defendant here still has a stake in the outcome of the appeal, including
removing any stigma from her name through the destruction of the order.”
Seney, 3 N.E.3d at 582.

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unaffected by their temporary [involuntary mental health] commitment” under

SDCL 27A-12-1.2. Id. Woodruff rejected the application of the collateral

consequences exception to the expired order, determining that the potential

consequences, including possible stigma arising from the order, did not “rise to the

level of collateral legal consequences[.]” Id. ¶ 14, 567 N.W.2d at 229 (quoting

Godwin v. State, 593 So.2d 211, 214 (Fla. 1992)) (emphasis added).

[¶14.] Similarly, Garrigan has failed to show any collateral legal

consequences arising from the expired protection order. Initially, he cites the

possible impact the protection order could have on his parole status and compliance

with the terms of his parole agreement. However, Garrigan fails to make any

showing that the protection order had an actual impact on his parole while it was in

effect, or that the expired order will impact his future parole status. Garrigan also

points to the stigma arising from a prior judicial finding that he has stalked

children and the requirement that a protection order be provided to law

enforcement under SDCL 22-19A-15.5 While SDCL 22-19A-15 may create a

“record,” Garrigan has failed to show that this “record” of the expired protection

order will have any collateral legal consequence.

5. SDCL 22-19A-15 provides,

The petitioner may deliver an order for protection granted pursuant to
§§ 22-19A-8 to 22-19A-16, inclusive, within twenty-four hours to the
local law enforcement agency having jurisdiction over the residence of
the petitioner. Each appropriate law enforcement agency shall make
available to other law enforcement officers information as to the
existence and status of any order for protection issued pursuant to
§§ 22-19A-8 to 22-19A-16, inclusive.

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[¶15.] Garrigan cites cases from other jurisdictions applying the collateral

consequences exception to expired protection orders. However, all except one of

these cases involve an expired domestic violence protection order.6 See Seney,

3 N.E.3d at 581; but see Cardoso v. Soldo, 277 P.3d 811, 815 (Az. Ct. App. 2012);

Piper v. Layman, 726 A.2d 887, 889--91 (Md. Ct. Spec. App. 1999); Chretien v.

Chretien,170 A.3d 260, 262-63 (Me. 2017); E.C.O. v. Compton, 984 N.E.2d 787, 791

n.12 (Mass. 2013); Hamilton ex rel. Lethem v. Lethem, 193 P.3d 839, 843-48 (Haw.

2008); Putman v. Kennedy, 900 A.2d 1256, 1261-65 (Conn. 2006). In applying the

collateral consequences exception to expired domestic violence protection orders,

these courts have required that there be “a reasonable possibility that prejudicial

collateral consequences will occur,” and “the litigant must establish these

consequences by more than mere conjecture.” Putman, 900 A.2d at 1261. These

courts have noted particular collateral consequences may arise from an expired

domestic violence protection order. See, e.g., Hamilton ex rel. Lethem, 193 P.3d

at 846 (explaining “legal ramifications flowing from” a finding of domestic violence

may include future bail proceedings and child custody determinations.).

[¶16.] Here, because Garrigan only hypothesizes about collateral

consequences arising from this stalking protection order, we deny his request to

apply the exception to this order. The protection order expired on February 19,

2019. The exceptions to mootness argued by Garrigan are applied at the Court’s

6. Garrigan also cites one recent decision holding that the “possibility of future
collateral consequences” was insufficient to preserve the appeal of an expired
domestic violence protection order. Cyran v. Cyran, 97 N.E.3d 487, 490
(Ohio 2018).

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discretion. On this record, we are not convinced that any of the exceptions should

be applied to review the expired order appealed by Garrigan. Therefore, we dismiss

the case as moot.

[¶17.] GILBERTSON, Chief Justice, and SALTER, Justice, and WILBUR,

Retired Justice, concur.

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