Arizona Court of Appeals Division One Holds That the Collateral Consequence Exception to Mootness Applies when the Consequences of an Otherwise Moot Order Will Continue to Affect a Party.

In January 2011, Paul Soldo petitioned the Phoenix Municipal Court for an ex-parte order of protection against Maria Cardoso.  The municipal court issued the order of protection, which Soldo served on Cardoso in February 2011.  The municipal court later transferred the matter to the Maricopa County Superior Court.  Cardoso moved to revoke the order of protection and after holding an evidentiary hearing, the superior court denied Cardoso’s motion and instead continued the order of protection.  Cardoso timely appealed.

The Arizona Appeals Court affirmed.  The Court first held that the appeal was not moot even though the order of protection had expired in February 2012, see A.R.S. § 13-3602(K) (orders of protection expire one year after service).  Although the appeal did not present an issue of great public importance or one capable of repetition yet evading review, the court applied another exception – the collateral consequences exception.  Under that exception, an appellate court will review an otherwise moot order if the consequences of that order will continue to affect the party.  See generally Carafas v. Lavallee, 391 U.S. 234, 237-38 (1968).  The Court found that the exception applied in this case because orders of protection have ongoing collateral consequences: (1) they must be taken into consideration if another order of protection is later requested, see A.R.S. § 13-3602(C)(5); (2) they remain in a “central repository,” see A.R.S. § 13-3602(L); (3) they have ongoing significance in disputes over joint custody of a minor, see A.R.S. § 25-403.03; and (4) they impact a defendant’s reputation. 

After holding that the appeal was not moot, the Court addressed Cardoso’s arguments on the merits.  It affirmed the order of protection and rejected Cardoso’s arguments, finding that (1) Cardoso waived any objection to service of the order of protection, (2) the evidence was sufficient to support the order of protection, (3) Cardoso was afforded a reasonable opportunity to present her case, (4) the superior court was not biased, and (5) the superior court was not required to adopt the findings of fact and conclusions of law Cardoso proposed.

Presiding Judge Norris authored the opinion; Judges Swann and Portley concurred.