Facts: Protester frequented an abortion clinic where she would try to speak with women entering the clinic, including the use of a “small amplifier” to share her beliefs. Counter Protesters also frequented the clinic to offer support to those entering the clinic.

Protester and Counter Protesters had several encounters that led Protester to petition for an order of protection prohibiting Counter Protesters from contacting her or interfering with her efforts to speak with women entering the clinic. She claimed Counter Protesters did things like stand directly in her face, shout through a bullhorn pointed directly at her face, said “Get away, bitch,” encroached into her personal space, made “sexual tongue gestures,” kicked her sign into the street, etc.

Protester submitted lengthy video evidence of her interactions with Counter Protesters for the trial court’s consideration.

The trial court denied Protester’s petition for an order of protection because there was no proof of emotional distress and the videotaped evidence did not support a claim of significant mental distress. Protester’s interactions did not reflect someone who had been terrorized, frightened, intimidated, threatened, harassed, or molested. The trial court observed that police were often present in the videos, along with many other people. It also found that Protester voluntarily continued to appear at the clinic and the presence of both parties at the clinic served a legitimate purpose.

Protester appealed.

On Appeal: The Court of Appeals unanimously affirmed the trial court’s decision but was divided on mootness.

Tennessee’s order of protection statute allows a stalking victim to obtain an order of protection.

“Stalking” means a willful course of conduct involving repeated or continuing harassment that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

Similarly, “harassment” means conduct directed toward a person that includes, but is not limited to, repeated or continued un-consented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the victim to suffer emotional distress. It does not include constitutionally protected activity or conduct that serves a legitimate purpose.

Emotional distress is defined as “significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.”

A unanimous Court agreed that the trial court properly dismissed the petition for an order of protection:

The matter before this court concerns the behavior between protesters from opposing sides that also involves a balancing act between the right to free speech and the right to be let alone. The parties each appear at the clinic voluntarily and with an entourage. They engage frequently enough to know each other on a first name basis. [Protester] defends herself, shares her opinion of the competing side openly and freely, and returns week after week. In return, [Counter Protesters] attempt to prevent [Protester] from interacting with patients at the clinic. At times, the police are also present and operate to separate the two opposing groups. Interactions between [Protester] and [Counter Protesters] are limited to the issue of their opposing viewpoints on abortion.

The trial court found that there was no medical proof of emotional distress and that the videotaped evidence did not support a claim of significant mental distress. The court explained that [Protester] was seen putting her hands on others and that her continued interactions did not reflect someone who had been terrorized, frightened, intimidated, threatened, harassed, or molested. The record confirms that [Protester] was able to calm herself from her time at the clinic with a glass of wine before bed. We agree with the trial court’s assessment that [Protester] established no proof of emotional distress to support her claims. The court further noted that the police were often present in the videos, along with many other people. The court provided that [Protester] voluntarily continued to appear at the clinic and that the presence of both parties at the clinic serves a legitimate purpose. The evidence does not preponderate against the trial court’s findings.

Counter Protesters also argued the matter is moot because, while the appeal was pending, the US Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization in which it held that the federal Constitution does not provide a right to abortion. The Tennessee clinic here was closed, but a similar clinic opened nearby in Virginia.

Courts limit their role to deciding legal controversies. A proceeding is considered a legal controversy when the disputed issue is real and existing, and not theoretical or abstract, and when the dispute is between parties with real and adverse interests. A moot case has lost its justiciability either by court decision, acts of the parties, or some other reason after the commencement of the case. When the question of mootness is raised, courts consider many factors, including the reason that the case is alleged to be moot, the stage of the proceeding, the importance of the issue to the public, and the probability that the issue will recur.

In a 2-1 decision, a majority of the Court made an alternative finding that the case is moot:

[Protester] is correct in her assertion that a protection order issued in this state would be afforded full faith and credit in Virginia. However, issuing such an order at this stage of the proceedings would operate as an advisory or theoretical opinion when the disputed issue between the parties is no longer real and existing in this state. Accordingly, we alternatively hold that this action has been rendered moot by the closure of the clinic.

Dissent: Judge Frierson dissented on mootness, writing:

[Counter Protester’s] argument that this appeal is moot because the clinic no longer exists ignores the purpose undergirding orders of protection. In Tennessee, orders of protection are intended to “protect the petitioner” from certain conduct by the respondent, such as “domestic abuse, stalking, or sexual assault.” … The efficacy of an order of protection is not tied to any particular location but is predicated upon unwanted and/or unconsented conduct sought to be prohibited.

*     *     *     *     *

Although the allegations in [Protester’s] order of protection arise from alleged actions occurring near the clinic, none of the requested relief is specific to that location. Instead, [Protester] sought a court order prohibiting [Counter Protester] from contacting her, coming near her home and workplace, and from damaging her personal property. This requested relief does not hinge on the existence of the clinic but instead seeks the court-ordered protection wherever [Protester] may encounter [Counter Protester]. That the protection is not location-specific is underscored by the fact that, as the majority pointed out, the protection order “would be afforded full faith and credit in Virginia” as well. For these reasons, I do not believe this appeal is rendered moot simply because the clinic where the conduct giving rise to this action occurred is no longer in operation.

*     *     *     *     *

A finding of mootness here, when no order of protection was ever granted and [Protester] continues to seek the same remedies on appeal, creates the potential for improper delay of the litigation and appellate process…. [Counter Protesters] should not be permitted to use the passage of time as a defense against an order of protection petition.

The mootness dispute is merely an academic issue because the Court unanimously agreed the trial court was correct to deny relief to Protester on the merits.

K.O.’s Comment: Protester sought an order of protection against four Counter Protesters. Thus, there were four cases in the trial court and four opinions on appeal. While this is just one of four appellate opinions, all four are nearly identical.

Source: Schanzenbach v. Skeen (Tennessee Court of Appeals, Eastern Section, March 28, 2024).

If you find this helpful, please share it using the buttons below.