Elizabeth Boyer v. Chief Judge Haiganush Bedrosian , 2012 R.I. LEXIS 154 ( 2012 )

Supreme Court
No. 2010-369-M.P.
No. 2010-414-M.P.
(PC 10-1858)
Elizabeth Boyer et al. :
v. :
Chief Judge Haiganush Bedrosian et al. :
NOTICE: This opinion is subject to formal revision before publication in
the Rhode Island Reporter. Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Tel. 222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
Supreme Court
No. 2010-369-M.P.
No. 2010-414-M.P.
(PC 10-1858)
Elizabeth Boyer et al. :
v. :
Chief Judge Haiganush Bedrosian 1 et al. :
Present: Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. The plaintiffs include fifteen minor children and their
parents 2 who participated in the Family Court’s Truancy Court Diversion Calendar Program.
The Diversion Program, established in 1999, allows Family Court magistrates to conduct court
sessions at public schools where truancy has become an issue. The stated goal of the Diversion
1
At the time plaintiffs filed the initial complaint, Jeremiah S. Jeremiah was the Chief Judge of
the Family Court. After Chief Judge Jeremiah retired, plaintiffs amended the complaint to
substitute the then-acting and now presiding chief judge of the Family Court, Chief Judge
Haiganush R. Bedrosian.
2
The named plaintiffs include Elizabeth Boyer, individually, and by and for her minor son,
Jeremy Bowen; Rozanna Thomasian, individually, and by and for her minor daughter, Chenoa
T.; Bethany L., individually, and by and for her minor son, Alin N.; Debbie B., individually, and
by and for her minor granddaughter and ward, Margarita S.; Alice F., individually, and by and
for her minor son, Marcell B.; Malcolm S., individually, and by and for her minor sons, Denton
S. and Mitch S.; David Hall, individually, and by and for his minor son, Dylan Hall; Dara S.,
individually, and by and for her minor daughter, Amy H.; Sherry Arias, individually, and by and
for her minor daughter, Hannah-Lea Arias; Susanne R., individually, and by and for her minor
son, Sam R.; Art S., individually, and by and for his minor son, David S.; Nancy H.,
individually, and by and for her minor daughter, Tina H.; Stephanie W., individually, and by and
for her minor daughter, Karen W.; and Tamara Morgan, individually, and by and for her minor
son, Henry Morgan-Massimo.
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Program is to ensure that children not only attend school, but also that they receive necessary
rehabilitative and educational services to assist them in maintaining school attendance and
achieving academic success.
However, in 2010, plaintiffs brought an action in the Superior Court against the chief
judge and five magistrates of the Family Court who were sitting in the Truancy Court, 3 in their
official capacities (collectively, the judicial defendants); two Family Court administrators, 4 in
their official capacities (the administrator defendants); and five municipalities and the
superintendents, in their official capacities, of the public school districts for the five
municipalities. 5 The plaintiffs contended that their constitutional rights were being violated as a
result of procedural errors occurring during the course of the administration of their cases in the
Truancy Court, and they sought declaratory and injunctive relief, as well as relief under 42
U.S.C. § 1983. 6 The judicial defendants filed a motion to dismiss, pursuant to Rule 12(b)(1) of
3
The five Truancy Court magistrates included Magistrates Patricia Asquith, Colleen Hastings
(now a District Court judge), Edward Newman, Angela Paulhus, and Thomas Wright.
4
The two administrators are Ronald Pagliarini, administrator of the Family Court, and Kevin
Richard, director of juvenile services of the Family Court.
5
The plaintiffs initially filed suit against six municipalities, alleging that those communities
failed to define “truancy” in a manner that provided children and parents adequate notice of
wrongful behavior. Between May and November 2010, all of the municipal defendants, except
the city of Providence, agreed to cease their participation in the Truancy Court. However,
plaintiffs amended the complaint a second time to add four more municipal defendants—East
Providence, Burrillville, Smithfield, and South Kingstown—as well as the superintendents of
each of the municipalities’ public school systems.
6
42 U.S.C. § 1983, entitled “Civil action for deprivation of rights,” states that
“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
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the Superior Court Rules of Civil Procedure, 7 and a motion to strike under Rule 12(f), 8 and the
administrator defendants filed a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6), but the
trial justice denied the motions. The administrator defendants then petitioned this Court for a
writ of certiorari, as the judicial defendants also did separately at a later date. On December 10,
2010, we granted the petitions for writ of certiorari. Now before this Court are a number of
arguments raised by defendants, including that the Superior Court lacks subject-matter
jurisdiction, plaintiffs lack standing, plaintiffs’ claims are moot, and the case is barred by the
doctrines of judicial immunity, comity, abstention, and res judicata. For the reasons set forth
herein, we quash the Superior Court’s order denying defendants’ motions to dismiss.
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.”
7
Rule 12 of the Superior Court Rules of Civil Procedure, entitled “Defenses and objections—
When and how presented—By pleading or motion—Motion for judgment on pleadings,” states,
in pertinent part,
“(b) How Presented. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim,
or third-party claim, shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may at
the option of the pleader be made by motion: (1) lack of
jurisdiction over the subject matter, * * * [or] (6) failure to state a
claim upon which relief can be granted * * *.”
8
Rule 12(f), entitled “Motion to Strike,” provides that
“Upon motion made by a party before responding to a pleading or,
if no responsive pleading is permitted by these rules, upon motion
made by a party within 20 days after the service of the pleading
upon the party or upon the court’s own initiative at any time, the
court may order stricken from any pleading any insufficient
defense, or any redundant, immaterial, impertinent, or scandalous
matter.”
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I
Facts and Travel
The factual background of this case is described at length in the thorough and accurate
Superior Court decision denying defendants’ motion to dismiss—viz., Boyer v. Jeremiah, No.
2010-1858, 2010 WL 4041812 (Super. Ct. Oct. 8, 2010). We shall summarize only the facts that
are relevant to the issues raised in this matter.
A
Truancy Court Program
In September 1999, the Truancy Court program was established by former Family Court
Chief Judge Jeremiah. The program was a specialized calendar designed to allow Family Court
magistrates to conduct court sessions at schools with frequently truant children. 9 The Truancy
Court was intended to facilitate collaboration between the Family Court, schools, and service
providers to ensure that children and their parents 10 received guidance and appropriate services
within their own neighborhoods, quickly, efficiently, and effectively.
As set forth in the later-issued Family Court Administrative Order 2010-2, discussed
infra, Part I, section C, “[t]he purpose of the Rhode Island Family Court Truancy calendar [was]
to reduce truancy statewide,” and “ensure that students not only attend[ed] school but also
receive[d] the rehabilitative services and educational services that [would] help to assure school
attendance and academic success.” To effectively carry out the purpose of the program, each
child alleged to have been truant was given a choice between admitting to a truancy violation,
thereby gaining acceptance into the Truancy Court program, or having a full trial in the Family
9
A determination of truancy qualifies a child as “wayward.” G.L. 1956 § 14-1-3. Other acts
that might lead to a determination that a youth is wayward include deserting the household,
refusing to obey parents, being habitually absent from school, or failing to follow school rules.
Id.
10
Hereafter, “parent(s) and/or guardian(s)” will be collectively referred to as “parent(s)” for ease
of reference.
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Court. Even if a child, with his or her parents, opted for the Truancy Court program, the child
and parent could elect to transfer a case to the Family Court by requesting a trial or hearing
before the Family Court at any time. Additionally, a child or parent could appeal a Truancy
Court magistrate’s order to the chief judge of the Family Court under a statutory right of appeal
pursuant to G.L. 1956 § 8-10-3.1(d), 11 further amplified by Family Court Administrative Order
2008-1. 12 The children and parents also were imbued with a statutory right to file a declaratory
judgment in the Family Court under G.L. 1956 § 9-30-1. 13 Finally, a child and parent could seek
further review in this Court under G.L. 1956 § 8-1-2 14 or G.L. 1956 § 14-1-52(a). 15
B
Superior Court Decision
On March 29, 2010, plaintiffs initiated an action in the Superior Court by filing a
proposed class action complaint 16 and civil rights lawsuit under 42 U.S.C. § 1983. The plaintiffs
demanded declaratory relief under § 9-30-1, injunctive relief under Rule 65 of the Superior Court
Rules of Civil Procedure, and attorneys’ fees pursuant to 42 U.S.C. § 1988. On the same day,
11
General Laws 1956 § 8-10-3.1(d) provides that “[a] party aggrieved by an order entered by a
magistrate shall be entitled to a review of the order by a justice of the [F]amily [C]ourt.”
12
Family Court Administrative Order 2008-1 governs the proceedings on appeal from the
general magistrate and any magistrate of the Rhode Island Family Court. Specifically, the order
states that, under the authority of the chief judge of the Family Court as head of the court under §
8-10-14, “[a]n appeal permitted by law from the General Magistrate or Magistrate of the Rhode
Island Family Court shall be heard by the Chief Judge of the Rhode Island Family Court.”
13
General Laws 1956 § 9-30-1 states, in pertinent part, that “[t]he * * * [F]amily [C]ourt * * *
shall have power to declare rights, status, and other legal relations whether or not further relief is
or could be claimed.”
14
General Laws 1956 § 8-1-2 provides, in pertinent part, that “[t]he [S]upreme [C]ourt shall
have general supervision of all courts of inferior jurisdiction to correct and prevent errors and
abuses therein when no other remedy is expressly provided * * *.”
15
General Laws 1956 § 14-1-52(a) states, in pertinent part, that “[f]rom any final decree,
judgment, order, decision, or verdict of the [F]amily [C]ourt, * * * there shall be an appeal to the
[S]upreme [C]ourt * * *.”
16
The plaintiffs filed the lawsuit as a proposed class action on behalf of “all public school
students [in five municipalities] * * * who have been, or in the future, will be the subject of a
truancy petition submitted to the Family Court * * *.” The class has not yet been certified.
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plaintiffs filed separate motions: one for preliminary injunction and one for class certification
pursuant to Rule 23 of the Superior Court Rules of Civil Procedure. 17 In addition to bringing suit
against the various judicial and administrator defendants, plaintiffs sued several municipalities
that had participated in the Truancy Court program. They alleged that all defendants had
administered and operated the Truancy Court in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution, and article 1, section 2 of the Rhode
Island Constitution, the Rhode Island General Laws, the Family Court Rules of Juvenile
Proceedings, and the Supreme Court Rules of Judicial Conduct.
The allegations in the second amended complaint include that all defendants
“[1] arraign[ed] and issue[d] orders against persons over whom the
court has no [personal] jurisdiction * * *,
“[2] fail[ed] to provide adequate information regarding individual
rights at the arraignment, * * *
“[3] permitt[ed] children members of the Plaintiff class to waive
their right to counsel without first consulting with counsel, * * *
“[4] engag[ed] in ex parte determinations regarding whether
Plaintiff children ha[d] violated the terms and conditions of
Truancy Court, * * * [and]
“[5] fail[ed] to keep and provide to the Plaintiffs a verbatim record
of all proceedings before the Truancy Court.”
The plaintiffs also specifically alleged that former Chief Judge Jeremiah, Administrator
Pagliarini, and Director Richard
“[1] fail[ed] to ensure that interpreters [were] available as
necessary to individuals appearing before the Truancy Court, * * *
[and]
17
The plaintiffs do not challenge their underlying adjudications or obligations to the Family
Court.
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“[2] fail[ed] to conduct a preliminary investigation to determine
whether submitted petitions [were] legally sufficient on their face
and whether further action [was] in the best interest of the public
and the child * * *.”
On May 24, 2010, the administrator defendants filed a motion to dismiss the complaint,
alleging that the Superior Court lacked subject-matter jurisdiction over plaintiffs’ claims and that
plaintiffs had failed to state a claim upon which relief could be granted. See Rule 12(b)(1), (6).
On May 25, 2010, the judicial defendants also moved to dismiss the complaint, pursuant to Rule
12(b)(1), 18 and moved to strike three of plaintiffs’ claims for injunctive relief 19 and plaintiffs’
request for attorneys’ fees under Rule 12(f). The trial justice heard oral arguments on
defendants’ motions to dismiss and motion to strike, but before he rendered a decision, Chief
Judge Bedrosian 20 promulgated administrative order 2010-2 on September 10, 2010.
C
Administrative Order 2010-2
Chief Judge Bedrosian’s administrative order set out written procedures that dramatically
reformed the Truancy Court Diversion Calendar Program. With regard to the intake guidelines
for truancy petitions, administrative order 2010-2 mandated that “all truancy petitions shall be
referred to the RI Family Court Intake Department for a preliminary investigation.” If the Intake
Department concluded that there was insufficient “evidence and/or documentation * * * to bring
18
In the judicial defendants’ memorandum supporting their petition for writ of certiorari, they
clarified that they anticipated filing a motion to dismiss under Rule 12(b)(6) if the motion to
dismiss under Rule 12(b)(1) was not successful.
19
Specifically, the judicial defendants sought to strike two of plaintiffs’ claims against the chief
judge, which included allegations that the chief judge allowed the Intake Department to file
truancy petitions prior to investigation and allowed Truancy Court proceedings that were not
recorded, and one of the claims against the Family Court magistrates for allegedly issuing orders
against individuals over whom they had no jurisdiction.
20
Chief Judge Bedrosian was appointed to lead the Family Court after Chief Judge Jeremiah
retired.
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a student within the jurisdiction of the court, the Intake Department [would] not authorize the
petition.”
If, on the other hand, a conclusion was reached after preliminary investigation that there
existed sufficient evidence and documentation to assert the court’s jurisdiction, “the Intake
Department [should] determine the most appropriate level of judicial action,” which included
referring the case to the truancy calendar or to the formal juvenile calendar. Administrative
order 2010-2 also added a threshold requirement that a student must “[have] at least 10 days of
absences and/or [the petition] state[d] that a student [was] habitually late or absent from school”
before the Intake Department could refer a case to the truancy calendar.
Under the terms of the order, if a petition was determined to be suitable for the truancy
calendar, it was to be assigned to a school location, and written notice would be sent to the
parents. That notice would inform the parent that the child had been referred to the Family Court
on a “wayward status offense of truancy,” and that the parents would have the opportunity to
give valid excuses for the absences at the hearing. The notice would also set the location, time,
and date of an initial meeting with a magistrate. If the child or parent did not appear at the
truancy calendar, order 2010-2 stated, “a summons may be issued for the child and
parent/guardian to appear.” See § 14-1-16. 21
21
Section 14-1-16, entitled “Summons of child or adult in charge of child,” provides:
“Upon the filing of a petition, the justice, if satisfied that there is
reasonable cause for the petition, may issue a summons requiring
the child to appear before the court at a time and place named in it,
and shall also cause a summons to be issued to at least one of the
parents of the child if either of them is known to reside within the
state, or if there is no parent, then to the guardian or other lawful
custodian of the child, if there is one known to be so resident, and,
if not, then to the person with whom the child resides, if known.”
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The administrative order further required that, at the initial meeting, the magistrate was to
discuss with the child and parents the two options that were available: the child could either
participate in the Diversion Calendar Program or proceed to an arraignment on the formal
juvenile calendar in Family Court. The order required the magistrate to read the truancy petition
to the child and parent and to explain Rhode Island’s compulsory school attendance laws, the
requirements for participating in the Truancy Diversion Program, and the child’s right to trial.
The magistrate was also directed to inform the child that he or she could voluntarily leave the
Truancy Diversion Program at any time or that he or she could be removed from the program,
either for refusing to comply with its terms and conditions or if the child was charged with
another offense. In the event that the child or parent did not appear at the initial meeting, the
administrative order dictated that a summons could be issued.
If a child agreed to participate in the truancy program, order 2010-2 required that three
documents be signed: (1) “Participant Guidelines,” (2) “Participant’s Forum Choice,” and (3)
“Release of Confidential Information.” The order further elaborated that, at the initial meeting,
the child and parent were to be advised of their right to hire an attorney at any time the child was
enrolled in the Truancy Diversion Program. In those cases when the family was unable to afford
the services of counsel, the matter could be placed on the formal juvenile calendar and, if
appropriate, the child would be referred to the services of the public defender or court-appointed
counsel. Order 2010-2 added that “Magistrates will assess the need for interpreters” and “[a]ll
Truancy Diversion Program hearings will be recorded.” Lastly, the order explained that after a
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magistrate found the child had substantially complied with the program’s requirements, he had
the authority to dismiss the truancy petition. 22
D
Superior Court Law Suit
On October 8, 2010, the trial justice denied defendants’ motions to dismiss, without
prejudice; he did, however, grant the judicial defendants’ request for an evidentiary hearing on
subject-matter jurisdiction, and he permitted the parties to engage in discovery prior to that
hearing.
E
Writ of Certiorari
On October 25, 2010, in a preemptive strike before an evidentiary hearing was scheduled,
the administrator defendants filed a petition for a writ of certiorari. The judicial defendants filed
a separate petition for a writ of certiorari on November 26, 2010. 23 After a review of both
petitions, we granted certiorari on December 10, 2010. 24 Before this Court, defendants make a
number of arguments. Specifically, the judicial defendants argue that the Superior Court does
not have subject-matter jurisdiction: they contend that the 42 U.S.C. § 1983 claim is, in essence,
a veiled appeal of plaintiffs’ petitions regarding waywardness and delinquency, over which the
22
The administrative order also describes that a magistrate may review a truancy case for only
one year, unless there is just cause to extend this time.
23
On November 2, 2010, plaintiffs moved to amend the first amended complaint to add ten new
plaintiffs and four new municipalities and the superintendents of their public schools as
defendants; substitute then-acting Chief Judge Bedrosian for former Chief Judge Jeremiah; drop
the defendant municipalities and superintendents with whom plaintiffs had settled; and clarify
that plaintiffs sought a state-wide class certified against the acting chief judge of the Family
Court, court administrators, and Truancy Court magistrates. The plaintiffs also filed an amended
motion for class certification.
24
The petition for writ of certiorari was filed in this Court before an order reflecting the trial
justice’s denial of the motion to dismiss was filed in the Superior Court. This case is ripe for
decision, despite the fact that the Superior Court did not enter an order. See McKenna v.
Williams, 874 A.2d 217, 224 n.6, 225 (R.I. 2005) (Superior Court order is not necessary to
enable Supreme Court review).
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Family Court has exclusive original jurisdiction. Alternatively, they contend that if the matter
involves error by the Family Court, the case should be heard by the Supreme Court, which has
exclusive supervisory authority over inferior courts. The judicial defendants also challenge
plaintiffs’ standing because some of plaintiffs’ cases were dismissed or transferred to the regular
Family Court calendar before the initial complaint was filed, and the remaining plaintiffs’ cases
have since been resolved. Therefore, they maintain, those plaintiffs do not face an imminent
threat of injury nor do they seek real or articulable relief. Moreover, the judicial defendants
argue that the case has become moot because the administrative order addresses each
constitutional challenge raised in the complaint. 25 Further, the judicial defendants aver that, even
if the Superior Court is cloaked with subject-matter jurisdiction, the doctrines of comity and
abstention demand that the superior court dismiss the case, so that it more properly may be heard
in the Family Court. Finally, the judicial defendants assert that plaintiffs’ suit against the judicial
officers is barred by sovereign immunity, qualified immunity, judicial immunity, legislative
immunity, and is improper under the Eleventh Amendment to the United States Constitution.
The administrator defendants raise similar arguments; they insist that the substance of
plaintiffs’ allegations involve core issues of the Family Court, and that, therefore, the case should
be before that tribunal. In the alternative, they contend that the Supreme Court should hear this
case because it has exclusive jurisdiction to oversee the Family Court’s actions and rulings. The
administrator defendants also aver that they are uncertain whether any of plaintiffs’ claims
remain pending in the Truancy Court, and, therefore, according to them, standing is at issue. As
25
The judicial defendants acknowledge that plaintiffs’ challenge to the ex parte communications
between the magistrates and school administrators was not specifically addressed in the
administrative order; however, they argue that Truancy Court proceedings are not adversarial
and, therefore, the magistrates may properly communicate with school administrators to gather
information.
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to comity, the administrator defendants assert that, out of respect, courts of coordinate
jurisdictions hearing the same case should not overrule each other’s decision. Finally, the
administrator defendants argue that the plain language of 42 U.S.C. § 1983 bars injunctive relief
against judicial officers. This prohibition, they contend, applies to them, as well.
In response, plaintiffs maintain that the case was brought properly before the Superior
Court, because that court has subject-matter jurisdiction under the Uniform Declaratory
Judgments Act, G.L. 1956 chapter 30 of title 9, and is vested with equitable jurisdiction. The
plaintiffs also contend they have standing because the case should be addressed in the context of
the proposed class action. The plaintiffs argue that defendants have waived any claim of
mootness, because they did not raise it before the Superior Court. Also, plaintiffs assert that
their complaint is not moot because the administrative order does not address all of the
constitutional challenges that they raised in their complaint. Finally, plaintiffs entreat this Court
to hold that comity does not apply because they do not seek to collaterally attack any order of the
Truancy Court magistrates. Finally, plaintiffs submit that judicial immunity does not bar
declaratory relief against the judicial officers.
II
Standard of Review
A motion under Rule 12(b)(1) questions a court’s authority to adjudicate a particular
controversy before it. This Court reviews such challenges de novo. Newman v. Valleywood
Associates, Inc., 874 A.2d 1286, 1288 (R.I. 2005). “[I]n ruling on a Rule 12(b)(1) motion, a
court is not limited to the face of the pleadings. A court may consider any evidence it deems
necessary to settle the jurisdictional question.” Morey v. State of Rhode Island, 359 F. Supp. 2d
71, 74 (D.R.I. 2005) (quoting Palazzolo v. Ruggiano, 993 F. Supp. 45, 46 (D.R.I. 1998)). A
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challenge to subject-matter jurisdiction “may not be waived by any party and may be raised at
any time in the proceedings.” Pine v. Clark, 636 A.2d 1319, 1321 (R.I. 1994).
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint about whether
it fails to state a claim upon which relief can be granted. In reviewing a justice’s decision on a
Rule 12(b)(6) motion to dismiss, we apply the same standards as the motion justice. Tucker
Estates Charlestown, LLC v. Town of Charlestown, 964 A.2d 1138, 1140 (R.I. 2009). “The
standard for granting a motion to dismiss is a difficult one for the movant to meet.” Pellegrino v.
Rhode Island Ethics Commission, 788 A.2d 1119, 1123 (R.I. 2002). “When this Court reviews a
trial justice’s granting of a Rule 12(b)(6) motion, we assume that the allegations contained in the
complaint are true, and examine the facts in the light most favorable to the nonmoving party.”
Pellegrino, 788 A.2d at 1123 (quoting Estate of Sherman v. Almeida, 747 A.2d 470, 473 (R.I.
2000)). If it “appears beyond a reasonable doubt that a plaintiff would not be entitled to relief
under any conceivable set of facts,” the motion may be granted. Id. (quoting Estate of Sherman,
747 A.2d at 473). This analysis requires a resolution of the overarching issue of justiciability:
the court must have subject-matter jurisdiction over the issues raised in the complaint, plaintiffs
must have standing, and the issues must not be moot.
III
Analysis
As a threshold matter, we will assume, without deciding, that the Superior Court has
subject-matter jurisdiction. 26 We also will assume, again without deciding, that the judicial
defendants and the administrator defendants are not immune from suit. Further, we assume,
without deciding, that at least one of the plaintiffs had standing to bring this suit at the time the
26
See generally Berberian v. O’Neil, 111 R.I. 354, 357-58, 302 A.2d 301, 303-04 (1973)
(discussing the interplay between the Family Court and the Superior Court’s subject-matter
jurisdiction).
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initial complaint was filed. 27 See Mangual v. Rotger–Sabat, 317 F.3d 45, 58 (1st Cir. 2003)
(standing is based on the facts as they existed at the time the complaint was filed); see also
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 170
(2000) (“The requisite personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).”).
Nonetheless, a plaintiff’s stake in a case is not frozen at the moment the lawsuit is filed.
It is well settled that he or she must maintain a personal interest in the outcome throughout the
course of the litigation or the controversy becomes moot and, therefore, stripped of justiciability,
despite the court’s retention of subject-matter jurisdiction. See Matos v. Clinton School District,
367 F.3d 68, 71 (1st Cir. 2004) (a cognizable case or controversy must exist not only at the
outset of the lawsuit, but at all stages of the litigation, including appeal). Accordingly, this Court
will focus its analysis of this case on the issue of mootness.
27
The plaintiffs allege the following individuals were still subject to the Truancy Court when the
initial complaint was filed, and, therefore, may have standing: Debbie B., individually, and by
and for her minor granddaughter and ward, Margarita S.; David Hall, individually, and by and
for his minor son, Dylan Hall; Dara S., individually, and by and for her minor daughter, Amy H.;
Nancy H., individually, and by and for her minor daughter, Tina H.; Susanne R., individually,
and by and for her minor son, Sam R.; Art S., individually, and by and for his minor son, David
S.; Stephanie W., individually, and by and for her minor daughter, Karen W.; and Tamara
Morgan, individually, and by and for her minor son, Henry Morgan-Massimo. The following
plaintiffs did not have standing to bring suit, however, as they were either dismissed or
transferred from the Truancy Court before the complaint was filed: Elizabeth Boyer,
individually, and by and for her minor son, Jeremy Bowen; Rozanna Thomasian, individually,
and by and for her minor daughter, Chenoa T.; Bethany L., individually, and by and for her
minor son, Alin N.; Alice F., individually, and by and for her minor son, Marcell B.; Malcolm S.,
individually, and by and for her minor sons, Denton S. and Mitch S.; and Sherry Arias,
individually, and by and for her minor daughter, Hannah-Lea Arias. See American Postal
Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992) (“[P]ast exposure to harm will not,
in and of itself, confer standing upon a litigant to obtain equitable relief ‘[a]bsent a sufficient
likelihood that he will again be wronged in a similar way.’” quoting Los Angeles v. Lyons, 461
U.S. 95, 111 (1983)).
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A
Mootness
The judicial defendants argue that plaintiffs’ claims for declaratory and injunctive relief
are moot because the practices in the Truancy Court about which they complained are no longer
in effect since the administrative order was issued. On the other hand, plaintiffs contend that
mootness was not raised at the time of the Superior Court hearing, and that, therefore, the issue
has been waived. Alternatively, plaintiffs maintain that the administrative order does not address
all of the constitutional challenges raised in the complaint and, as a result, the case is not moot.
Although the parties did not raise mootness before the Superior Court, this Court
nonetheless considers it as a threshold issue of justiciability. See City of Cranston v. Rhode
Island Laborers’ District Council Local 1033, 960 A.2d 529, 533 (R.I. 2008) (“Although neither
party directly has raised the issue, this Court first must address the threshold issue of
justiciability before we may entertain the merits of the parties’ substantive arguments.”). We
have held that the principle of mootness applies in actions for equitable relief, and that
declaratory judgment will not be rendered on moot questions. See Town of Scituate v. Scituate
Teachers’ Association, 110 R.I. 679, 684, 296 A.2d 466, 469 (1972).
A case is moot if there is no continuing stake in the controversy, or if the court’s
judgment would fail to have any practical effect on the controversy. Lynch v. Rhode Island
Department of Environmental Management, 994 A.2d 64, 71 (R.I. 2010); H.V. Collins Co. v.
Williams, 990 A.2d 845, 848 (R.I. 2010). We “ha[ve] consistently held that a case is moot if the
original complaint raised a justiciable controversy, but events occurring after the filing have
deprived the litigant of a continuing stake in the controversy.” State v. Medical Malpractice
Joint Underwriting Association, 941 A.2d 219, 220 (R.I. 2008) (quoting Cicilline v. Almond,
809 A.2d 1101, 1105 (R.I. 2002)). For example, the passage of a new law or an amendment to
- 15 -
an existing law may moot a case. Midwest Media Property, L.L.C. v. Symmes Township, Ohio,
503 F.3d 456, 460 (6th Cir. 2007) (citing Hall v. Beals, 396 U.S. 45, 48 (1969)).
Here, plaintiffs’ complaint alleges that defendants: (1) did not provide sufficient notice of
conduct that would result in a child’s referral to Truancy Court; (2) deprived children of a
preliminary investigation prior to the filing of the truancy petition; (3) failed to serve summonses
and copies of truancy petitions; (4) failed to properly arraign children; (5) improperly permitted
children to waive their constitutional rights; (6) deprived children of a right to counsel; (7) issued
orders without personal jurisdiction; (8) did not transcribe or record the Truancy Court
proceedings; (9) deprived children of a meaningful opportunity to be heard by not appointing
interpreters; and (10) deprived children of a meaningful opportunity to be heard by engaging in
ex parte communications with school officials. The issue of mootness as it pertains to each of
plaintiffs’ ten alleged constitutional violations will be discussed in turn. 28
1
Notice
The judicial defendants argue that the administrative order sets a minimum number of ten
truancies, sufficient to give notice of the conduct that will result in a child’s eligibility for the
Diversion Program. The plaintiffs insist, however, that the administrative order, while indicating
that the Truancy Court participants will receive notice, nevertheless is vague because it does not
specify how or when they will receive that notice.
“Vagueness challenges under the [D]ue [P]rocess [C]lause rest principally on lack of
notice.” Moreau v. Flanders, 15 A.3d 565, 582 (R.I. 2011) (quoting State v. Russell, 890 A.2d
28Nonetheless, “a determination of mootness may not end our judicial review.” In re Court
Order Dated October 22, 2003, 886 A.2d 342, 348 (R.I. 2005) (quoting Foster-Glocester
Regional School Committee v. Board of Review, 854 A.2d 1008, 1013 (R.I. 2004)). This Court
discusses, infra Part III, section B, whether an exception to mootness applies.
- 16 -
453, 460 (R.I. 2006)). “[I]t is well settled that a statute is unconstitutionally vague if it lacks
explicit standards from its application and thus delegates power that enables enforcement
officials to act arbitrarily with unchecked discretion.” Id. (quoting Fitzpatrick v. Pare, 568 A.2d
1012, 1013 (R.I. 1990)). Further, “[a] statute is unconstitutionally vague if it compels ‘a person
of average intelligence to guess and to resort to conjecture as to its meaning and/or as to its
supposed mandated application.’” Id. at 583 (quoting Kaveny v. Town of Cumberland Zoning
Board of Review, 875 A.2d 1, 10 (R.I. 2005)). Further, the fundamental requisite of due process
is the opportunity to be heard at a meaningful time and in a meaningful manner; this certainly
requires one to be forewarned about the subject matter of the hearing with sufficient detail so an
intelligent explanation or rebuttal can be formulated. See Avanzo v. Rhode Island Department of
Human Services, 625 A.2d 208, 210-11 (R.I. 1993) (citing Goldberg v. Kelly, 397 U.S. 254,
268-69 (1970)).
It is true that previously there was no guidance under the Truancy Court procedures or
under G.L. 1956 §§ 16-19-1 29 and 16-19-6 30 as to the number of absences from school that were
necessary to incur possible liability as a truant. However, the administrative order specifies a
threshold number of ten days of absence before a child may be referred either to the Diversion
Program or to the formal juvenile calendar. Indeed, administrative order 2010-2 states that “[t]he
Intake Department may refer cases to the Truancy calendar if the petition: * * * [h]as at least 10
days of absences and/or states that a student is habitually late or absent from school.” We are
29
General Laws 1956 § 16-19-1, entitled “Attendance required,” provides that “[e]very child
who has completed or will have completed six (6) years of life on or before September 1 of any
school year and has not completed eighteen (18) years of life shall regularly attend some public
day school during all the days and hours that the public schools are in session in the city or town
in which the child resides.”
30
Section 16-19-6, entitled “Proceedings against habitual truants and offenders,” provides that a
“habitual truant” is “every child who is required under § 16-19-1 to attend school and who
willfully and habitually absents himself or herself from attending school.”
- 17 -
confident that a person of average intelligence need neither guess nor speculate about the number
of absences that will result in a referral to the Truancy Diversion Program. See Moreau, 15 A.3d
at 583 (holding that a statute is not unconstitutionally vague if it gives a person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly).
Administrative order 2010-2 also details how notice will be delivered to the child and his
or her parents. It states that if the Intake Department determines a petition is suitable for the
Truancy calendar, the petition “will be assigned to the appropriate school location” and “written
notice shall be sent to the parent/guardian.” The written notice informs the parents that the child
“has been referred to the Family Court on a wayward status offense of truancy” and that the child
“has been prescreened to enter the Truancy Diversion Program.” The notice explains that the
parents will “ha[ve] the opportunity to provide valid excuses for absences, if any, at the hearing.”
Finally, the notice briefly describes the Diversion Program and sets the location, time, and date
of the initial meeting with a magistrate. See Avanzo, 625 A.2d at 210-11 (explaining that due
process requires an opportunity to be heard at a meaningful time and in a meaningful manner).
Accordingly, after reviewing the administrative order, we hold that its specific and clarified
procedure affords children and parents sufficient notice of what conduct will subject them to a
truancy proceeding and the manner in which the child and parents will receive notice of a
truancy petition. In our opinion, plaintiffs’ constitutional challenge to the sufficiency of the
notice requirement has been mooted by the administrative order.
2
Preliminary Investigation
The judicial defendants further argue that the administrative order blunts plaintiffs’
complaint because it sets out a detailed procedure for a preliminary investigation. The plaintiffs
- 18 -
contend that there is no record that the Intake Department investigates the truancy petitions that
it receives from school officials.
It is worth mentioning that we have recognized previously that an intake investigation is
not required as a step in an accusatory proceeding of delinquency or waywardness: the
investigation by the Intake Department “serves primarily to shield the child from arbitrary
bureaucratic action and to forestall the Family Court from assuming jurisdiction when such
would ill serve the interests of the juvenile and the public.” In re Leon, 122 R.I. 548, 552, 410
A.2d 121, 124 (1980) (citing In re Three Minor Children, 110 R.I. 11, 15, 289 A.2d 434, 436
(1972)); see § 14-1-10. 31
After a review of the revision to the preliminary investigation procedure, we conclude
that the administrative order safeguards children from arbitrary bureaucratic action and that the
Family Court, through its administrative order, has adhered to the statutory requirements.
Indeed, order 2010-2 provides that “all truancy petitions shall be referred to the RI Family Court
Intake Department for a preliminary investigation.” The administrative order also clarifies how
the Intake Department shall determine if sufficient evidence and documentation exists to bring a
child within the jurisdiction of the court. Administrative order 2010-2 specifically cites to § 8-
10-22, entitled “Intake department—Duties,” which states that the duties of the Intake
Department
31
Section 14-1-10, entitled “Preliminary investigation on information furnished to the court,”
states, in pertinent part, that the preliminary investigation
“may include a preliminary investigation of the home and
environmental situation of the child, his or her previous history,
and the circumstances which were the subject of the information.
To avoid duplication of effort and to take full advantage of all
existing facilities, the report of any public agency, or of any private
social agency licensed by the department of children, youth, and
families, may be accepted by the court as sufficient evidence for
the filing of a petition.”
- 19 -
“shall be to receive applications and complaints relative to juvenile
matters presented to the court, to provide for a thorough
investigation of the applications and complaints, * * * to report
thereon to the court before formal petition is filed[,] * * * [and to]
perform such other duties as shall be assigned to it by the court.”
The administrative order also cites to Rule 3 of the Family Court Rules of Juvenile Proceedings,
entitled “Intake procedure,” which requires that after a petition is submitted to the court, it is
“referred to the intake department for preliminary investigation to
determine whether the facts are legally sufficient to bring the child
within the jurisdiction of the court and, if so, to determine whether
the interests of the public or of the child require that further action
be taken.”
Rule 3 explains that preliminary investigation can include
“investigation of the home and environmental situation of the
child, the child’s previous history and the circumstances which
were the subject of the petition. The report of any public agency,
or of any private social agency licensed by the department for
children and their families, may be accepted by the court for its
consideration.”
The administrative order then expounds that upon a determination that there is sufficient
evidence to assert the court’s jurisdiction, the Intake Department “shall determine the most
appropriate level of judicial action,” which could be an “[a]ssignment of truancy petition[] to an
Intake worker for further investigation and monitoring,” an “[a]ssignment of [the] case[] to the
Truancy calendar,” or an “[a]ssignment of [the] case[] to the formal juvenile calendar.” Based
on our review of the administrative order, we are completely comfortable that a sufficient
preliminary investigation procedure is now in place.
3
Summons
The judicial defendants aver that the administrative order informs that the Truancy Court
program is voluntary in nature, and, therefore, a summons is not necessary. If the child and/or
- 20 -
parent do not choose to participate on a voluntary basis, the truancy petition is referred to the
formal juvenile calendar, where procedural protections, including the service of a summons, are
enforced. The plaintiffs respond that formal summonses are required under Rule 6 of the Family
Court Rules of Juvenile Proceedings and §§ 14-1-16 and 14-1-17, and that no requisite
summonses were used.
The administrative order directs that a child and parent may “choose” to participate in the
Truancy Program. In Rhode Island, it is well established that a summons is not required when a
defendant makes a voluntary appearance, and thus waives the right to personal service. See
Theta Properties v. Ronci Realty Co., 814 A.2d 907, 912-13 (R.I. 2003). Administrative order
2010-2 elaborates that if the child or parent does not appear at the Truancy calendar, “a summons
may be issued for the child and parent/guardian to appear.” If the child and parent appear at the
Truancy calendar, but “the student and parent/guardian do not each agree to participate in the
Truancy Diversionary Program, the case will be referred to the formal juvenile calendar.” It is
important that when a case is referred to the juvenile calendar, a summons is then served based
on §§ 14-1-16, 14-1-17, and Rule 6(e). 32 Accordingly, it is our opinion that the administrative
order, by essentially permitting the child and parents to choose either to participate voluntarily
and waive service or to avail themselves of the juvenile calendar and its service requirements
moot plaintiffs’ allegation that the Truancy Court does not properly serve notice upon the child
and parents.
32
Rule 6 of the Family Court Rules of Juvenile Proceedings, entitled “Summons,” provides, in
pertinent part:
“(e) Form for Truancy Court: Upon the filing of a truancy petition
the court shall issue a summons requiring the child and a parent, or
guardian, or lawful custodian, or a person with whom the child
resides to appear at a time and place as written therein for a
hearing on the petition.”
- 21 -
4
Arraignment
The judicial defendants maintain that the administrative order also negates plaintiffs’
constitutional challenges that the magistrates did not arraign children properly. The plaintiffs
insist that their due process rights have been violated because defendants failed to provide
adequate information regarding individual rights at the arraignment, as is required by Rule 9 of
the Family Court Rules of Juvenile Proceedings.
However, the administrative order elucidates that the term “arraignment,” although
perhaps inelegantly employed, nonetheless refers to the initial meeting between the parent, child,
and magistrate. That occurrence focuses on, and is limited to, describing the program,
explaining the conditions for participating in the program, and giving the parent and child the
option of entering the program. Specifically, administrative order 2010-2 states that, at the
“arraignment,”
“the Magistrate will read the truancy petition and will explain the
Rhode Island compulsory school attendance laws as well as the
requirements of the Truancy Diversion Program consistent with the
document entitled Participant Guidelines. The Magistrate also will
explain the child’s right to trial as well as the option for the
Truancy Diversion program consistent with the form entitled
Participant’s Forum Choice. The Magistrate will explain the
Release of Confidential Information to the child and
parent/guardian.”
In particular, the “Participant Guidelines” provide that “[p]arents/guardians may hire an
attorney for their child at this proceeding,” and “[i]f a parent/guardian cannot afford an attorney,
the Court may appoint the public defender or court[-]appointed counsel.” The “Participant
Guidelines” also specify that the Truancy Court may mete out the following sanctions: “[s]chool
detention”; “[h]ome curfew”; “[h]ome confinement”; “[c]ounseling”; “[e]ducational, psychiatric
or psychological testing”; “[c]ommunity service”; “[r]eferral for drug testing and/or treatment or
- 22 -
referral to the Drug Court calendar”; “DCYF Intervention, services and/or placement if
necessary”; and “[a]ssignment of the truancy petition to the formal calendar.” Further, the
“Participant’s Forum Choice” lists the rights of the child, including the “right to a trial by a
[j]udge”; the “right to appeal to the Rhode Island Supreme Court from any decision or finding of
waywardness”; the “right to have the petitioner prove each and every element of the offense(s)
against [him or her] by evidence and by proof beyond a reasonable doubt”; the “right to the
presumption of innocence”; the “privilege against self-incrimination”; the “right to confront and
cross-examine the witnesses against [him or her]”; the “right to present evidence and witnesses
on [his or her] behalf and to testify on [his or her] own defense if [he or she] choose[s] to do so”;
and the “right to appeal to the Rhode Island Supreme Court from any sentence imposed.”
This procedure mirrors the arraignment procedure specified in Rule 9 of the Rules of
Juvenile Proceedings, which also requires that the court explain the right to counsel and appoint
counsel when necessary, as well as
“(1) the nature of the charges against the child, (2) the maximum
sentence that could be imposed, (3) the benefit of the presumption
of innocence, (4) the right to remain silent, (5) the right to confront
and cross-examine his or her accusers and the witnesses against
him [or her], (6) the right to testify and to call witnesses in the
child’s own defense, (7) the right to have the state prove the child’s
guilt beyond a reasonable doubt, (8) the right to appeal any
delinquency finding to the Rhode Island Supreme Court, and (9)
the consequence of trial as an adult for all crimes if a child has
been twice adjudicated as delinquent by reason of felonies.” Id.
Accordingly, we have no doubt that the administrative order sets out a procedure through which
adequate information about individual rights, as mandated by Rule 9, is presented at the
arraignment to the child and parents.
- 23 -
5
Waiver of Constitutional Rights
Before the administrative order was issued, each child was required to sign a “Waiver of
Rights Form,” which waived “[his or her] right to a trial by a [j]udge and [his and her] right to
appeal to the Supreme Court from any decision or finding of delinquency or waywardness” and
“[his or her] right to appeal to the Rhode Island Supreme Court from any sentence imposed by
the Court after the entry of [his or her] ADMISSION OF SUFFICIENT FACTS or
ADMISSION.” This has been changed by the administrative order; a child now need only sign
the “Participant Guidelines” form, which explains the expectations and requirements of both the
child and parents who participate in the Truancy Court and includes a provision that the parents
may hire their own attorney to represent their child and that the child or parent may request a
trial with the formal juvenile calendar; the “Participant’s Forum Choice” form, which delineates
the child’s various rights depending on whether he or she goes to trial or attends the Truancy
Diversion Program; and the “Release of Confidential Information” form, which allows the court
to access any information about any educational or medical issues of the child. If a child or
parent is unwilling to voluntarily consent, the child is to be referred to the formal juvenile
calendar and is afforded the substantive protection of the Rules of Juvenile Proceedings. See §
14-1-16; Rule 6(e). There is no reference to the “Waiver of Rights Form” in administrative order
2010-2, and no child is required to sign such a form.
6
Right to Counsel
The judicial defendants submit that the administrative order moots plaintiffs’
constitutional challenge with respect to the right to counsel because the order directs that the
child and parent will be advised of the right to hire an attorney and it further illuminates about
- 24 -
how the child or parent might obtain the assistance of counsel. The plaintiffs assert that this is
not enough; they contend that their due process rights have been violated because defendants
permit children to waive their right to counsel without first consulting with counsel. They also
maintain that children are insufficiently protected because the order indicates only that the child
“may” be referred to the public defender or court-appointed counsel.
In Rhode Island, § 14-1-31, entitled “Services of public defender,” explicitly states that
“[p]rior to the commencement of any hearing, the justice shall
advise the parent or guardian of any child, or the adult involved, as
the case may be, that if he or she is financially unable to engage
counsel, he or she is entitled to the services of the public
defender.”
Further, it is recognized that a right guaranteed by a statute may be waived, regardless of the
plain and unambiguous terms by which such right is expressed. Gallucci v. Brindamour, 477
A.2d 617, 618 (R.I. 1984). Waiver in a criminal context must be voluntary, knowing, and
intelligent, which a court determines by considering the totality of circumstances and facts
surrounding a particular case. Wilkicki v. Brady, 882 F. Supp. 1227, 1231-32 (D.R.I. 1995).
Although a juvenile hearing need not provide all the safeguards of a criminal trial, it “must
measure up to the essentials of due process and fair treatment.” In re Gault, 387 U.S. 1, 30-31
(1967) (quoting Kent v. United States, 383 U.S. 541, 562 (1966)); see also In re Fiske, 117 R.I.
454, 457, 367 A.2d 1069, 1072 (1977).
Administrative order 2010-2 states:
“The parent/guardian and student will be advised that they have the
right to hire an attorney for the child at any time during the
Truancy Diversion Program or, if they cannot afford an attorney,
the case will be scheduled on the formal juvenile calendar in the
county where the student resides. If a parent/guardian is
financially unable to engage counsel, the student may be referred
to the services of the public defender or court[-]appointed
counsel.”
- 25 -
We are satisfied that the administrative order meets the notice of the right to counsel requirement
in juvenile proceedings. We are further satisfied that the administrative order properly addresses
plaintiffs’ concern about the method used to inform the child and parents of the right to counsel,
while delineating a procedure that facilitates a voluntary, knowing, and intelligent waiver.
7
Personal Jurisdiction
The judicial defendants argue that plaintiffs’ constitutional challenge for lack of personal
jurisdiction is rendered moot because the administrative order is pointed and specific that
participation in the Truancy Diversion Calendar is voluntary. They declare that the
administrative order sufficiently explains that if the child or his or her parents contest
jurisdiction, the matter will be referred to the formal juvenile calendar, which will issue a
summons to the child and parent. The plaintiffs assert that the magistrates are required to ensure
that a proper summons is issued before any order is entered against a child or parent, but that the
magistrates have failed to comply with that obligation.
As discussed above, § 14-1-11 33 states that the filing of a truancy petition constitutes
assumption of jurisdiction over the child, and § 14-1-16 dictates that a summons should be issued
to the child and at least one parent. Administrative order 2010-2 is clear that participation in the
program is voluntary; indeed, the order states that the magistrate must “explain the child’s right
33
Section 14-1-11(a), entitled “Authoring and filing petition” states,
“The filing of the petition constitutes assumption of jurisdiction
over the child. Filing shall take place upon authorization by the
intake department upon completion of its procedures pursuant to
Rule 3 of the Rules of Juvenile Proceedings, upon authorization by
a justice of the [F]amily [C]ourt pursuant to Rule 4 of the Rules of
Juvenile Proceedings, or immediately upon appearance of the child
before the court following emergency detention, unless the court
otherwise orders.”
- 26 -
to trial as well as the option for the Truancy Diversion Program.” See Theta Properties, 814
A.2d at 912-13; Lundgren v. Pawtucket Firefighters Association Local No. 1261, 595 A.2d 808,
816 (R.I. 1991) (party who defends a claim without objecting to court’s lack of personal
jurisdiction waives that jurisdictional defense). It is apparent that since the issuance of the
administrative order, a parent and child are free to choose to decline to participate in the
Diversion Program. If they do, or if they contest jurisdiction, then the court will issue a
summons to the child in accordance with § 14-1-16 and Rule 6, and to the parent pursuant to §
14-1-16 and Rule 6(d)-(e). Indeed, administrative order 2010-2 specifically explains that “[i]f
the student or parent does not appear at the Truancy calendar, a summons may be issued for the
child and parent/guardian to appear.” It is, accordingly, our opinion that any shortcomings about
the establishment of personal jurisdiction arising from the operation of the Truancy Court have
been remedied by the administrative order.
8
Record of the Proceedings
Administrative order 2010-2 directs that “[a]ll Truancy Diversion Program hearings will
be recorded.” As a result, the judicial defendants argue that plaintiffs’ complaints about the lack
of a record have become moot. By contrast, plaintiffs insist that the administrative order does
not moot the claim because the order does not state how the hearings will be recorded or whether
the records will be verbatim. The plaintiffs argue that § 8-10-3(b) 34 supports their contention
that failing to provide a stenographic or other verbatim record of all proceedings before the
Truancy Court is a violation of plaintiffs’ rights. However, the judicial defendants assert that
stenographic recordings of the Truancy Court proceedings are not required, because appeals
34
Section 8-10-3(b) provides that “[t]he [F]amily [C]ourt shall be a court of record and shall
have a seal which shall contain such words and devices as the court shall adopt.”
- 27 -
from the Truancy Court go to the chief judge for a full hearing de novo, as was set forth in
Family Court administrative order 2008-1, which describes the procedure to appeal a finding of a
Family Court magistrate.
It is now crystal clear that “[a]ll Truancy Diversion Program hearings will be recorded.”
It is true that § 8-10-37, entitled “Report of trials—Transcripts,” states “[s]ubject to the
provisions of § 8-10-21, court reporters shall report stenographically * * * the proceedings in the
trial of every action or proceeding, civil or criminal, in the [F]amily [C]ourt.” It is also true, as
plaintiffs’ allege, that no stenographic transcriptions or audio recordings took place in the
truancy proceedings at the time the complaint was filed. However, the promulgation of the
administrative order has cured that affliction because the administrative order specifically
requires the hearings to be recorded. In our judgment, the fact that Truancy Court proceedings
are audio recorded, and not stenographically recorded, is sufficient.
9
Interpreters
The judicial defendants contend that plaintiffs’ constitutional challenge to the
appointment of interpreters has been rendered moot because the administrative order explains
that the magistrates have discretion to determine when an interpreter should be made available
for a child who is before the court and who may not be sufficiently fluent in English. The
plaintiffs disagree; they say that the administrative order does not moot the claim, positing that
interpreters should be provided to all individuals appearing before the Truancy Court, because
the magistrates may not know whether a participant is in need of an interpreter without an
interpreter.
Administrative order 2010-2 states that “Magistrates will assess the need for interpreters
taking into account the participant’s desire for such services and ensure that interpreters be
- 28 -
provided for each Court session if necessary. This may include referring a case to the formal
juvenile calendar.” The plaintiffs contend that it is inappropriate for the magistrates to have
discretion to assess the needs for an interpreter. An interpreter, they say, should be present and
available to all who come before the court. This Court has held “that a trial justice is entrusted
with the discretion to appoint an interpreter if he or she determines that a defendant is unable to
understand the English language adequately * * *.” State v. Ibrahim, 862 A.2d 787, 798 (R.I.
2004). We have long held that a trial justice is granted a wide degree of discretion in the
“selection, appointment, and retention of an interpreter.” State v. Lopez-Navor, 951 A.2d 508,
513 (R.I. 2008) (quoting State v. Deslovers, 40 R.I. 89, 115, 100 A. 64, 73 (1917)).
Accordingly, it is our opinion that the administrative order passes constitutional muster with
respect to the accessibility and use of interpreters.
10
Ex Parte Communication
Even though the issue of ex parte communication was not directly addressed in the
administrative order, defendants argue that doing so was not necessary because the Diversion
Program was designed to provide a non-adversarial means for the resolution of truancy petitions.
We agree that the administrative order does not directly address plaintiffs’ concerns with ex parte
communication. However, we fully expect that the judicial officers of the Family Court will be
faithful to the law on ex parte communication, as set forth in Arnold v. Lebel, 941 A.2d 813,
819-21 (R.I. 2007). 35 We are confident that the Family Court will abide by this binding and well
established law, and to the Code of Judicial Conduct, relating to ex parte communication.
35
In Arnold v. Lebel, 941 A.2d 813, 819-21 (R.I. 2007), we held that, under the Administrative
Procedures Act, Department of Human Services (DHS) hearing officers were prohibited from
engaging in ex parte communications concerning adjudicatory facts with DHS staff members and
outside resources about medical assistance applicants’ pending cases without giving applicants
- 29 -
11
Conclusion on Mootness of Plaintiffs’ Claims
After a review of the ten constitutional challenges raised in plaintiffs’ complaint, we are
satisfied that they have been obviated by the administrative order and by existing law. Further,
plaintiffs do not argue that the administrative order has not been properly adopted or
implemented by the Family Court. Thus, plaintiffs’ request that the Superior Court declare the
previous procedures in the Truancy Court to be unconstitutional and enjoin the Family Court
from enforcing the prior procedures has become moot.
B
Mootness Exceptions
As an additional arrow in their quiver on the issue of mootness, plaintiffs maintain that
the “extreme public importance capable of repetition yet evading review” exception to mootness
applies here, because there can be no assurance that the Family Court will not revert to the earlier
version of the administrative order when this litigation has come to an end. The defendants
respond by arguing that the claims are not capable of repetition because the administrative order
is binding. The defendants further argue that the claims will not evade review because, if the
Truancy Court personnel do not comply with the administrative order, a litigant may pursue an
appeal under §§ 14-1-52 or 8-1-2 to the Supreme Court or under § 8-10-3.1(d) and (e) or the
Rhode Island Family Court Administrative Order 2008-1 to a judge of the Family Court and then
to the Supreme Court.
We have held that “[t]his Court will review an otherwise moot case only when the issues
are ‘of extreme public importance, which are capable of repetition but which evade review.’”
an opportunity to challenge the information gleaned through such communications. We also
recognized that ex parte communication is authorized for general or purely administrative
matters pertaining to the discharge of a duty, such as procedural or timing matters. Id. at 821.
- 30 -
Campbell v. Tiverton Zoning Board, 15 A.3d 1015, 1022 (R.I. 2011) (quoting H.V. Collins Co.,
990 A.2d at 848). “Issues of extreme public importance usually ‘implicate important
constitutional rights, matters concerning a person’s livelihood, or matters concerning citizen
voting rights.’” Id. (quoting H.V. Collins Co., 990 A.2d at 848). A case is “capable of repetition
yet evading review” if there is a “reasonable expectation that the same complaining party would
be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The
“same action” generally refers to particular agency policies, regulations, guidelines, or recurrent
or identical agency actions. Public Utilities Commission of California v. F.E.R.C., 236 F.3d 708,
715 (D.C. Cir. 2001). We have cautioned, however, that this exception for issues of extreme
public importance capable of repetition but evading review is “a narrow exception to the
mootness doctrine.” Campbell, 15 A.3d at 1022 (quoting In re Westerly Hospital, 963 A.2d 636,
638 (R.I. 2009) (mem.)).
Here, to the extent that the issues in this case were once of extreme public importance,
the chief judge of the Family Court has addressed them by establishing the proper procedures for
the Truancy Court via the administrative order. See Cicilline, 809 A.2d at 1106.
As to the issue of whether the matter is capable of repetition, it is well recognized that
“[a] defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to
moot a case.” Friends of the Earth, Inc., 528 U.S. at 174. Indeed, there may be an exception if
there is a “substantial likelihood that the challenged statutory language will be reenacted,” or
where the statute is replaced by a statute with narrower but still similar language. Coral Springs
Street Systems, Inc. v. City of Sunrise, 371 F.3d 1320, 1329-30 (11th Cir. 2004). This likelihood
exists when, for example, a defendant has signaled an intention to reenact the challenged
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statutory language, or where it has already been replaced by “another constitutionally suspect
law.” Id. at 1330.
However, defendants have not signaled any intention to, or made any threat to, reenact a
suspect administrative order; therefore, injunctive and declaratory relief are mooted. See Bench
Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012) (citing City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982), Kentucky Right to Life, Inc. v. Terry, 108 F.3d
637, 644 (6th Cir. 1997), and Brandywine, Inc. v. City of Richmond, Kentucky, 359 F.3d 830,
836 (6th Cir. 2004)). Further, “‘cessation of the allegedly illegal conduct by government
officials has been treated with more solicitude by the courts than similar action by private
parties,’ and * * * ‘such self-correction provides a secure foundation for a dismissal based on
mootness so long as it appears genuine.’” Bench Billboard Co., 675 F.3d at 981 (quoting Mosley
v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990)). Thus, “[a] declaratory judgment on the validity
of a repealed ordinance is a textbook example of ‘advising what the law would be upon a
hypothetical state of facts.’” National Advertising Co. v. City and County of Denver, 912 F.2d
405, 412 (10th Cir. 1990) (quoting Blinder, Robinson & Co. v. United States Securities and
Exchange Commission, 748 F.2d 1415, 1418 (10th Cir. 1984)).
In the dispute before us, there is no argument offered that there is any indication
whatsoever that the Family Court has any intention of reinstating the previous practices about
which plaintiffs’ complained. See, e.g., Covenant Christian Ministries, Inc. v. City of Marietta,
Georgia, 654 F.3d 1231, 1239 (11th Cir. 2011) (“When a party challenges an ordinance and
seeks injunctive relief, a superseding ordinance moots the claim for injunctive relief.”); National
Advertising Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (“[T]he Supreme Court
ha[s] repeatedly held that the repeal or amendment of an allegedly unconstitutional statute moots
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legal challenges to the legitimacy of the repealed legislation.”). The general assumption that an
agency will be faithful to its own regulations, therefore, stands. See Friends of the Earth, Inc. v.
Environmental Protection Agency, 446 F.3d 140, 148 (D.C. Cir. 2006).
Further, it is significant that this case does not involve a short-term administrative order,
the subject of which might be an issue that is “capable of repetition, yet evading review.”
Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 179 (1968) (quoting
Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (1910)).
The plaintiffs offer no reason to expect that the Family Court will repeat the alleged
constitutional violations that were superseded by the administrative order. It is speculative, at
best, whether any unconstitutional procedures may recur in the future. See Cicilline, 809 A.2d at
1106. This Court also must presume that the Family Court forthrightly will abide by its
administrative order and properly consider the full impact of any future administrative orders.
Finally, even if the matter is capable of repetition, it would not evade review; there are
many avenues for a plaintiff to appeal. Determinations by Truancy Court magistrates are
reviewable by statute, and thus hardly evade review. See § 8-10-3.1(d), (e) (“A party aggrieved
by an order entered by a magistrate shall be entitled to a review of the order by a justice of the
[F]amily [C]ourt. * * * Final orders of the [F]amily [C]ourt entered in a proceeding to review an
order of a magistrate may be appealed to the [S]upreme [C]ourt.”); see also Family Court
Administrative Order 2008-1 (clarifying the right to appeal Truancy Court determinations to a
justice of the Family Court). Further review is also available in the Supreme Court, under § 14-
1-52(a), which states that “[f]rom any final decree, judgment, order, decision, or verdict of the
[F]amily [C]ourt * * * there shall be an appeal to the [S]upreme [C]ourt,” and § 8-1-2, which
provides that “[t]he [S]upreme [C]ourt shall have general supervision of all courts of inferior
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jurisdiction to correct and prevent errors and abuses therein when no other remedy is expressly
provided * * *.” Accordingly, plaintiffs have not met the difficult burden of showing that the
circumstances which gave rise to the controversy in this case, although moot, are of extreme
public importance capable of repetition yet evading review, rendering this case unreviewable.
Thus, there is no exception to the mootness doctrine that would justify our deciding this case on
its merits.
We hold that there are no ongoing truancy petitions that continue to be affected by the
earlier Truancy Court procedures; this Court finds no ongoing controversy in which the plaintiffs
have an articulable stake. See H.V. Collins, 990 A.2d at 848 (requiring articulable stake in
outcome). Granting the plaintiffs’ requested relief would not have any significant effect. See
Lynch, 994 A.2d at 71 (explaining that a question is moot if judgment would have no practical
effect on the controversy). Accordingly, we hold that the plaintiffs’ claims have become moot,
and because we so hold, we need not, and do not, reach the other issues raised in this case. 36
36
We pause to acknowledge, however, that, although we decide this case on grounds of
mootness, it is our belief based on the existing record that the Family Court would have been the
more appropriate forum to review the challenges raised in plaintiffs’ complaint. Comity permits,
but does not require, a court to stay a pending proceeding if a case involving the same parties and
subject matter is pending in another court with overlapping jurisdiction. See Halliwell v. Lippitt
Realty Co., 120 R.I. 927, 927, 394 A.2d 708, 709 (1978). Comity is a flexible doctrine that rests
on several principles, including “foster[ing] cooperation, promot[ing] harmony, and build[ing]
goodwill” among co-equal courts. 16 Am. Jur. 2d Conflict of Law § 11 at 25 (2009). It serves
as “a necessary expedient to preserve the delicate balance of power and harmonious relations
among the various courts.” Id.; see United States v. Nippon Paper Industries Co., 109 F.3d 1, 8
(1st Cir. 1997) (“Comity is more an aspiration than a fixed rule, more a matter of grace than a
matter of obligation.”). We further acknowledge that the trial justice may well have come to the
same conclusions in this case as did this Court. However, the case was reviewed by this Court at
an early stage pursuant to our issuance of a writ of certiorari.
Here, the Superior Court was asked to make a ruling that could have found prior
proceedings in the Family Court to have been invalid. In our opinion, and although we do not
decide the matter on that basis, this cuts against the grain of the effective administration of
justice and the principle of respect among the various courts of concomitant jurisdiction.
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Conclusion
For the reasons set forth in this opinion, we quash the order of the Superior Court and
remand the record to that tribunal, with our decision endorsed thereon and with directions to
enter a final judgment dismissing the plaintiffs’ civil action as moot.
Justice Goldberg did not participate.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Elizabeth Boyer et al. v. Chief Judge Haiganush Bedrosian et al.
CASE NO: No. 2010-369-M.P.
No. 2010-414-M.P.
(PC 10-1858)
COURT: Supreme Court
DATE OPINION FILED: December 12, 2012
JUSTICES: Suttell, C.J., Flaherty, Robinson, and Indeglia JJ.
WRITTEN BY: Associate Justice Francis X. Flaherty
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice William E. Carnes, Jr.
ATTORNEYS ON APPEAL:
For Plaintiffs: Thomas W. Lyons, Esq.
For Defendants:
Michael B. Forte, Esq.
James R. Lee, Department of Attorney General