In our last post, we discussed the pain of a dismissal after briefing and oral argument when the court determines the underlying judgment lacks a final appealable order. Less than three weeks later, the Supreme Court demonstrates another painful resolution — dismissing the appeal as moot and limiting the lower court’s decision as precedent only to the parties “inter se.”
Appeal dismissed due to moot TRO
seeking to require the plaintiff to drop the pseudonymous party status and identify themselves in open court. The appeal was dismissed because the appealed order — a temporary restraining order — had already expired by its own terms. At the end of the opinion, the court added the unusual order that the “court of appeals’ decision in this case  not be cited as precedent, except by the parties inter se.”
Part of the issue of this case involved the plaintiff’s attempt to proceed under a pseudonymous complaint. That issue resulted in an entirely separate Supreme Court case and opinion and a blog post from co-editor Brad Hughes detailing the resolution and the standard set for proceeding under a pseudonym.
Same case, different issues
In this M.R. case, the appellants were the defendants in the underlying lawsuit. A temporary restraining order had issued restraining the defendants from publishing the plaintiff’s personally-identifying information. The defendants appealed the temporary restraining order. Apparently, the parties conducted themselves as if the TRO remained in effect during the appeal to the First District Court of Appeals and the Ohio Supreme Court.
The First District Court of Appeals issued a decision that an appeal from a TRO did not constitute a final appealable order. The defendants further appealed to the Supreme Court, which accepted review of a proposition of law that asserted that a restraint of speech was subject to immediate appellate review. It did not accept the second proposition of law, which argued that an untimely temporary restraining order was effectively a preliminary injunction (this becomes relevant later).
The jurisdictional and the merits briefing attracted amici interest from law professors, news organizations and open government supporters.
None of the briefing addressed the issue of mootness, with even the appellee believing the appeal of the temporary restraining order left the TRO in effect.
The Supreme Court disagreed. It noted that the terms of Civ.R. 65 (governing injunctions) required that an order:
shall expire by its terms within such time after entry, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for one like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be set forth in the order of extension.
Essentially, the TRO in the M.R. case was not renewed until after it expired. Therefore, as a matter of law, it was expired when the notice of appeal was filed, rendering all of the subsequent appeals moot. The Supreme Court dismissed the appeal.
But as discussed above, the court did one more thing. It limited the First District’s opinion citation to the “parties inter se” (Latin for “between or among themselves”). This makes it non-precedential to anyone but the parties in this case.
Looking for practice pointers in M.R. v. Niesen
I use a lot of maxims when discussing theories of appellate practice. One of them is the easiest way to win as the appellee is to get the appeal dismissed. The appellee here attempted this — with their Memorandum in Opposition to Jurisdiction they filed a Motion to Dismiss. The Motion to Dismiss, however, only argued that the appealed order was not a final appealable order, not that it had expired in any event.
Another adage is that like electricity, appellate courts traditionally follow the path of least resistance. The Supreme Court only likes to address live controversies that will set the law for a relatively broad group of people. Once it was recognized that the appeal was from an ineffective TRO, the opinion drafting process was made much simpler.
Being on the lookout for mootness issues can help make sure the court is focused on the right thing and your time and your client’s money are only being spent on issues to be decided. Mootness comes in many forms: the underlying order could have expired (as here), the underlying judgment could have been satisfied (happens frequently when criminal sentences are served without a stay or when civil judgments are voluntarily paid) or the parties could have changed the factual underpinnings of the case in a way that resolves the underlying dispute.
The decision graveyard: The inter se designation
Every other year or so, the Supreme Court issues a decision that limits the precedential value of the underlying appeal to the parties in that case. Most of the time it occurs when the court has decided to dismiss an appeal as “improvidently accepted” (usually without an opinion), but there is something about the facts of the case or the underlying logic used in the appellate court that makes it appropriate to orphan the underlying precedent.
The fact that the court does this is one of the reasons all counsel need to make sure they are Shepardizing the case law they cite. The First District opinion in M.R. contains a discussion as to why the TRO is not a final appealable order that may be useful to other parties, but the Supreme Court has held it is not appropriate citation.