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Michigan Supreme Court Holds Personal Protection Order Appeal Is Not Moot Even If It Expires Before Review

On May 18th, 2018, the Michigan Supreme Court released their decision in TM v MZ, ___ Mich ___; ___ NW2d ___ (2018)(Docket No. 155398) holding that an appeal taken from the entry of a personal protection order ("PPO") was not moot solely because it expired during the pendency of the appeal. The case was remanded back to the Michigan Court of Appeals for consideration on its merits.

Petitioner sought a PPO against Respondent under MCL 600.2950a(1) on the basis that Respondent posted Facebook messages that allegedly harassed Petitioner. The trial court rejected Respondent's motion to terminate the PPO in August 2015 and Respondent appealed to the Michigan Court of Appeals. However, the case did not get argued until nearly a year after the PPO expired and the Court of Appeals determined that the expiration rendered the case moot. A case becomes moot when a judgment cannot have any practical legal effect on an existing controversy. Since the PPO was no longer in effect, the appellate court determined that there was no relief they could grant that merited review of the case. Respondent then appealed this decision to the Michigan Supreme Court.

Respondent argues persuasively that this appeal is not moot because there is practical legal relief he could receive. If the Court of Appeals concluded that the PPO should have never issued in the first place, then it would be rescinded and notice would be entered into LEIN ("law enforcement information network") by the clerk of the court. Since law enforcement uses LEIN for background checks, Respondent therefore has an interest in identifying an improperly issued PPO and having it rescinded. The discovery of the erroneous PPO during background checks can affect employment opportunities, housing opportunities and eligibility to get firearm licenses.

The Michigan Supreme Court agreed and determined that having an improperly issued PPO rescinded from LEIN is a live controversy and not moot due to the collateral consequences. The fact that the PPO has expired while appellate review was pending does not create the mootness. The case is now returned to the Michigan Court of Appeals for a decision on the merits.

Personal Protection Orders tend to fall into a class of cases that have a high probability of evading appellate review because the PPO often expires beforehand. Frequently, many respondents elect to avoid the court of appeals after losing on a motion to modify or terminate the PPO for that very reason.  Chasing moot issues is a waste of time and money.  It is refreshing to see the Michigan Supreme Court recognize the stigma of PPOs even after they expired. If the PPO was improperly issued in the first place, it is only fair to allow the respondent the opportunity to fix this legal wrong.

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