City of Pawtucket v. Nichalas Laprade

Supreme Court
No. 2012-330-M.P.
(PC 11-7205)
City of Pawtucket :
v. :
Nichalas Laprade. :
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 Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2012-330-M.P.
(PC 11-7205)
(Dissent begins on Page 21)
City of Pawtucket :
v. :
Nichalas Laprade. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme Court pursuant to
a writ of certiorari filed by the petitioner, the City of Pawtucket (city or petitioner), seeking
review of a Superior Court judgment affirming a decision of a hearing committee that was
convened to adjudicate disciplinary charges against the respondent, Pawtucket police officer
Nichalas Laprade (Laprade or respondent). Before this Court, the petitioner argues (1) that the
hearing committee erred in denying the city’s request to reschedule the date of its first hearing
and that the Superior Court justice erred by affirming the hearing committee’s decision; (2) that
the Presiding Justice erred by denying the city’s request to convene its first hearing after the
originally scheduled date and that the Superior Court justice erred in failing to review this ruling;
and (3) that the hearing committee erred in failing to take judicial notice of the respondent’s
criminal conviction and that the Superior Court justice erred in affirming this decision. For the
reasons set forth in this opinion, we quash the judgment of the Superior Court, vacate the
decision of the hearing committee, and remand the case to the Superior Court.
-1-
Facts and Travel
On February 18, 2011, Pawtucket police officer Nichalas Laprade was convicted of
disorderly conduct by indecent exposure1 in Sixth Division District Court, a criminal conviction
stemming from an incident that occurred on November 9, 2010, during which two women
observed the off-duty Laprade masturbating and exposing himself while driving his personal
vehicle. On May 3, 2011, the City of Pawtucket and the Department’s Office of Professional
Standards/Internal Affairs charged Laprade in an eighteen-count complaint, alleging violations
of Department rules and regulations stemming from his indecent exposure conviction as well as
other incidents of alleged misconduct, including sleeping while on duty.2
After being notified of the disciplinary charges against him—as well as the city’s
recommendation that his employment be terminated—Laprade timely filed a written request for
a hearing in accordance with the Law Enforcement Officers’ Bill of Rights Act (LEOBOR), as
set forth in G.L. 1956 chapter 28.6 of title 42. In accordance with § 42-28.6-4, a three-person
hearing committee was then selected; it was composed of Patrolman Richard Ramirez
(Ramirez)—a Providence police officer selected by Laprade—and Major Bruce Moreau
(Moreau) from the Pawtucket Police Department, who was chosen by the city. On June 23,
1
Laprade was convicted of violating G.L. 1956 § 11-45-2, entitled “Indecent exposure —
Disorderly conduct,” which states that “[a] person commits indecent exposure/disorderly conduct
when for the purpose of sexual arousal, gratification or stimulation, such person intentionally,
knowingly, or recklessly * * * [e]xposes his or her genitals to the view of another under
circumstances in which his or her conduct is likely to cause affront, distress, or alarm to that
person.” Section 11-45-2(a)(1). Notably, Laprade did not appeal this conviction.
2
Specifically, Laprade was charged with one count of violating the code of ethics, five counts of
conduct unbecoming of an officer, one count of criminal conduct, two counts of failing to obey
orders, one count of failing to provide current contact information, one count of neglecting the
duty to obey, one count of insubordination, one count of exerting undue influence upon others,
one count of neglect of duty, one count of failing to maintain fitness for duty, one count of
incompetence, one count of failing to meet job description, and one count of untruthfulness.
-2-
2011, these two committee members selected Sergeant Arthur Lee (Lee) of the Providence
Police Department to serve as the third committee member and as the chairman of the
committee. Lee proceeded to contact the parties, who agreed to hold the first scheduled hearing
at 11:00 a.m. on Wednesday, July 20, 2011.
On July 11, 2011—nine days before the scheduled hearing and one day after the statutory
deadline set forth in § 42-28.6-5(c)—the city provided Laprade with a list of witnesses and
evidence that the city planned to present at the hearing.3 That same day, Moreau returned from
vacation and discovered that he had a conflict with the July 20 hearing date. Moreau also
learned that a medical issue had arisen with a family member of the city’s legal counsel that also
conflicted with the hearing date. Finally, Moreau was notified that the city’s delivery of the
witness and evidence list would not comply with LEOBOR unless the hearing date was
continued. Based on these circumstances, Moreau contacted the committee chair and requested
that the hearing date be continued “a day or two” to avoid any conflicts. Moreau further stated
that, if the hearing committee could not meet on one of those days, Lee should “consider drafting
3
The evidence and witness list was provided to respondent by a member of the city’s internal
affairs office who, the record discloses, did not have experience with LEOBOR proceedings. In
pertinent part, G.L. 1956 § 42-28.6-5 provides:
“(c) Not less than ten (10) days prior to the hearing date, the charging law
enforcement agency shall provide to the law enforcement officer:
“(i) A list of all witnesses, known to the agency at that time, to be called
by the agency to testify at the hearing;
“(ii) Copies of all written and/or recorded statements by such witnesses in
the possession of the agency; and
“(iii) A list of all documents and other items to be offered as evidence at
the hearing.
“* * *
“(e) Failure by either party to comply with the provisions of subsections
(c) and (d) of this section shall result in the exclusion from the record of the
hearing of testimony and/or evidence not timely disclosed in accordance with
those subsections.” (Emphasis added.)
-3-
a letter to the [Presiding Justice] requesting an extension of time.” Lee, however, responded that
legal counsel for Laprade had objected to changing the hearing date, but had offered to hold the
meeting on July 20 anytime between 6 a.m. and 9 p.m. As a result, Lee confirmed that, while the
timing was subject to change, the hearing would proceed on July 20 as originally scheduled.
On July 14, 2011, Moreau wrote to the Presiding Justice of the Superior Court,
explaining that, upon opposing counsel’s objection, the committee chair had denied the city’s
request for a continuance; he then asked that the statutory thirty-day timeframe for holding the
first LEOBOR hearing be extended pursuant to § 42-28.6-5(b).4 Upon receiving a copy of this
letter, counsel for Laprade telephoned the Presiding Justice and requested a hearing on the
matter. On July 18, 2011, a hearing took place before the Presiding Justice—although no
complaint or miscellaneous petition was filed in Superior Court—at which counsel for the city
submitted a memorandum of law in support of the requested continuance.5 Although it was
counsel for Laprade who requested the hearing, he nonetheless argued that Moreau’s letter to the
Presiding Justice was inappropriate, stating that “the Court at this point in the [LEOBOR]
proceedings really doesn’t have any jurisdiction to hear anything that is before it.” Counsel
explained that the letter had not come from the committee as whole, but rather from one member.
Counsel maintained that, when faced with Moreau’s request for a continuance, the committee
chair had adhered to the July 20 hearing date—which was within the thirty-day timeframe
4
Section 42-28.6-5(b) provides that a LEOBOR hearing shall commence within thirty days of
the selection of the hearing committee chair, that all proceedings shall be completed within sixty
days thereafter, and that the hearing committee must issue a written decision within thirty days of
the conclusion of the proceedings. Nevertheless, the time limits established in § 42-28.6-5(b)
“may be extended by the presiding justice of the superior court for good cause shown.”
5
This document—captioned “City of Pawtucket v. Officer Nich[a]las Laprade”—did not bear a
Superior Court filing number, and was entitled “City of Pawtucket’s petition and memorandum
in support thereof for the Honorable Presiding Justice to, among other things, extend the date
within which hearings must commence in the above-referenced matter.”
-4-
allowed under § 42-28.6-5. Therefore, counsel for Laprade argued that the Superior Court was
without jurisdiction to decide the issue, and maintained that the hearing should proceed on July
20 as planned subject only to subsequent review by the Superior Court in accordance with the
appeal process specified in § 42-28.6-12.
Conversely, the city maintained that, pursuant to § 42-28.6-5(b), the Presiding Justice had
jurisdiction to extend the time for the committee to hold its first hearing. Counsel for the city
argued that the hearing date should be continued because a family medical issue had arisen that
would be addressed on that date and also because Moreau had a commitment which conflicted
with the July 20 hearing. The city also noted that a violation of the statutory requirements for
presenting the witness and evidence list—mandating disclosure ten days prior to the hearing—
had not yet arisen, and would occur only if the hearing proceeded as scheduled; therefore, he
argued, the hearing should be continued to avoid potential procedural error. Faced with this
argument, counsel for Laprade replied that he would agree to a continuance, as long as the
hearing was treated for all purposes as if it was in fact being held on the original date of July 20.
On July 18, 2011, the Presiding Justice issued a written order stating that the city’s failure
to present the witness and evidence list ten days prior to the scheduled hearing date did not
present good cause to extend the hearing date under § 42-28.6-5(b). The order further indicated
that the Presiding Justice was, however, “sympathetic to Counsel’s family medical exigency,”
and ordered the parties “to agree upon another mutually convenient date for a hearing,”
specifying that “the date of the hearing will still be considered as July 20, 2011 for timing
purposes.”
The parties subsequently agreed to hold the first hearing on Friday, July 22, 2011. On
this date, the city again requested that the committee reconsider a continuance of the July 20
-5-
hearing date; however, this request was denied. The hearing committee then took judicial notice
of the Presiding Justice’s July 18, 2011 order, specifying that it would not be marked as
evidence. Significantly, the committee refused to accept any evidence that day, despite repeated
and vigorous attempts by Laprade’s counsel to introduce documents and place evidence on the
record. Nonetheless, the chairman was steadfast in his refusal to take any evidence on July 22,
2011. Instead, the proceeding concluded after the committee decided to petition the Presiding
Justice to appoint legal counsel to advise the committee—which was subsequently granted—and
scheduled the next meeting for September 8, 2011.
At the September 8 hearing, the city submitted its complaint against Laprade into
evidence, presented an opening statement, and attempted to call its first witness. Counsel for
Laprade6 objected to the witness being called, claiming that, pursuant to § 42-28.6-5(e), the city
was precluded from presenting witnesses or evidence because it had failed to provide the
evidence and witness list to Laprade at least ten days in advance of July 20. In response, the city
argued that the disclosure of the witness and evidence lists were in fact timely because the
July 22 proceeding—which, in accordance with the Presiding Justice’s July 18 order, was treated
as having taken place on July 20—did not constitute a hearing under LEOBOR because no
evidence was taken at the proceeding.7 Counsel for Laprade countered that the July 22
proceeding was a hearing under LEOBOR, and, in the alternative, if the committee found that it
was not a hearing, the committee would need to treat the September 8 hearing as having occurred
on July 20 in order to comply with the Presiding Justice’s order, which explicitly stated that “the
6
Laprade did not attend the September 8, 2011 hearing, or any other subsequent proceedings.
7
Under the statute, a “hearing” is defined as “any meeting in the course of an investigatory
proceeding, other than an interrogation at which no testimony is taken under oath, conducted by
a hearing committee for the purpose of taking or adducing testimony or receiving evidence.”
Section 42-28.6-1(3) (emphasis added).
-6-
date of the hearing will still be considered as July 20, 2011 for timing purposes.” (Emphasis
added.) After the parties’ arguments, the committee reserved decision on the issue and
adjourned.
At the next hearing, held on September 13, 2011, the parties were informed that the
committee had decided that the proceeding held on July 22 was in fact a hearing and that it
would be treated as if it had occurred on July 20 based on the July 18 order of the Presiding
Justice. As such, the parties were told that the committee had decided that Laprade’s motion to
prohibit the city from calling witnesses or introducing evidence was granted. The city responded
that, although the committee’s ruling made it impossible to prove a number of charges, the city
was still able to proceed on those charges in the complaint pertaining to Laprade’s conviction for
indecent exposure. To do so, the city requested that—as a substitute for introducing into
evidence the document reflecting the conviction—the committee take judicial notice of
Laprade’s conviction in accordance with § 42-28.6-10.8 The city—citing Lynch v. King, 120
R.I. 868, 878, 391 A.2d 117, 123 (1978)—also noted that, despite its own inability to introduce
witnesses and evidence, “the Legislature has endowed this Committee with very broad powers to
investigate allegations of police misconduct,” and “did not intend the Committee to be bound in
any way by the recommendation of a charging authority.” Accordingly, the city urged the
committee to subpoena Laprade—and other witnesses—and conduct an independent
examination of those witnesses.
In response, counsel for Laprade argued that the hearing committee could not—on its
own initiative and in the absence of the city’s evidence and witness list—subpoena witnesses
8
Pursuant to § 42-28.6-10, “[t]he hearing committee conducting the hearing may take notice of
judicially cognizable facts and, in addition, may take notice of general, technical, or scientific
facts within its specialized knowledge.”
-7-
and, in essence, transform itself into a prosecutorial body. Moreover, Laprade’s counsel argued
that, in order for the committee to take judicial notice of Laprade’s conviction, the city would
need to present documentation—presumably, the record of conviction from the District Court—
which it was barred from doing because of the committee’s ruling precluding the city from
presenting evidence. Faced with these arguments, the committee reserved decision and
requested that the parties provide further briefing on the issues raised.9
At the next hearing, held on November 18, 2011, the parties were informed that, the
committee had decided, by a two-to-one vote, to reject the city’s request to take judicial notice of
Laprade’s conviction for indecent exposure based on the advice of appointed legal counsel. The
committee also denied the city’s request to subpoena Laprade to testify, as well as the city’s
request that the hearing committee exercise its independent power to subpoena and examine
witnesses. The committee also denied the city’s request to call and question Laprade as an
adverse party despite the fact that Laprade was not listed on the city’s witness and evidence
disclosure list.
The committee issued a written decision on December 14, 2011, which recounted the
travel and rulings of the LEOBOR proceedings, and detailed the remaining charges against
Laprade. This was followed by a “Findings and Conclusions” section which stated that, upon a
two-to-one vote, the committee decided that due to the procedural error under § 42-28.6-5(c), the
city was unable to present any witnesses or submit any documentary evidence to the committee,
and was therefore unable to sustain its burden of proving the allegations. Chairman Lee noted
that he “would have been inclined” to take judicial notice of Laprade’s conviction if the
9
Because the timeline given to the parties to provide additional briefing on the issues raised at
the hearing brought the proceeding outside of the sixty days allowed to complete LEOBOR
proceedings under § 42-28.6-5(b), the committee petitioned for—and was granted—an extension
of time by the Presiding Justice.
-8-
committee’s legal counsel had so advised. The decision concluded with a dissent issued by
Moreau, who stated that the majority erred by refusing to take judicial notice of Laprade’s
conviction based on the requirement that the city—the party that was precluded from introducing
evidence—submit documentation of that conviction.
On December 21, 2011, the city timely appealed the committee’s decision to the Superior
Court under the Administrative Procedures Act (APA), G.L. 1956 § 42-35-15,10 claiming that the
committee’s decision was affected by error of law and abuse of discretion. Specifically, the city
argued that the committee abused its discretion by refusing to continue the initial July 20, 2011
hearing date. The city also argued that, pursuant to the July 18 order, the Presiding Justice erred
by ordering the parties to agree on another date, yet to treat the proceeding as if it had occurred
on July 20. Finally, the city argued that the committee’s refusal to take judicial notice of
Laprade’s conviction was based on the erroneous advice of appointed counsel and constituted an
abuse of discretion.
On October 17, 2012, a justice of the Superior Court issued a written decision finding
that the committee’s denial of the city’s request for a continuance of the July 20 hearing date
“was neither in excess of statutory authority nor an abuse of discretion.” The Superior Court
justice proceeded to address the specific provisions of LEOBOR that allow the Presiding Justice
to act at various points in the proceedings; notably, none of the provisions discussed by the
Superior Court justice relates to the precise issue before this Court—a requested continuance
during the initial thirty-day time period. Nonetheless, she determined that the aforementioned
provisions “demonstrate a legislative intent to streamline appealable questions of procedure
10
Under § 42-28.6-12(a) of LEOBOR, “[a]ppeals from all decisions rendered by the hearing
committee shall be to the superior court in accordance with [G.L. 1956] §§ 42-35-15 and 42-35-
15.1.”
-9-
during the adjudicative process so as to avoid prolonged and costly appeals on questions of
technicality.” The Superior Court justice therefore determined that, because the Presiding Justice
“has the statutory authority to grant the [c]ommittee relief from certain obligations with respect
to deadlines, as well as to order it to take certain actions,” the July 18 order of the Presiding
Justice was not appealable under the APA, and further noted that, as an interlocutory order, it
was not subject to review by another Superior Court justice under the law of the case doctrine.
On the issue of judicial notice, the Superior Court justice stated that under LEOBOR, the
committee is vested with the discretion to take judicial notice, and noted that judicial notice of a
prior conviction may be taken “despite a party’s failing to formally introduce evidence of the
conviction via a certified copy.” However, she did not indicate how this could be accomplished
when the party was precluded from introducing any evidence. Nonetheless, she determined that
the committee’s refusal to take judicial notice of Laprade’s conviction “was reasonable and did
not amount to an abuse of discretion” based on the circumstances of the LEOBOR proceedings,
and noted that, furthermore, there was “no manifest error of law in the written decision of the
[c]ommittee.” The Superior Court justice denied the city’s appeal, and a final judgment entered
on October 22, 2012. The city filed a petition for certiorari on November 9, 2012, which was
granted by this Court on January 10, 2013.
Standard of Review
As an initial matter, we are confronted with a discrepancy between the standards of
review, as advocated by each party, that apply to the issues presented in this case. The petitioner
argues that, pursuant to § 42-28.6-12, which governs appeals of decisions in LEOBOR
proceedings, the hearing committee is deemed an administrative agency and this Court’s review
is therefore governed by the APA. Alternatively, citing to City of Pawtucket, Police Division v.
- 10 -
Ricci, 692 A.2d 678, 682 (R.I. 1997), respondent argues that in LEOBOR cases, “this Court’s
review is limited to an examination of the record to determine whether there is some competent
evidence to support the committee’s findings.” Based on these apparent inconsistencies, we
deem it necessary to resolve this issue.
Enacted in 1976, LEOBOR “is the exclusive remedy for permanently appointed law-
enforcement officers who are under investigation by a law-enforcement agency for any reason
that could lead to disciplinary action, demotion, or dismissal.” In re Simoneau, 652 A.2d 457,
460 (R.I. 1995) (citing Lynch, 120 R.I. at 870 n.1, 391 A.2d at 119 n.1); § 42-28.6-15. This
Court has declared that LEOBOR “is remedial in nature,” and “was enacted to protect police
officers from infringements of their rights in the course of investigations into their alleged
improper conduct.” Ims v. Town of Portsmouth, 32 A.3d 914, 925 (R.I. 2011) (quoting In re
Denisewich, 643 A.2d 1194, 1196 (R.I. 1994)). Thus, although a LEOBOR proceeding is an
adjudicatory mechanism, it “is designed to protect the rights of the accused officer who,
according to the statute, is [designated as] ‘the aggrieved law enforcement officer.’” Id. (quoting
§ 42-28.6-1(2)(i)).
In accordance with § 42-28.6-4, a police officer who is the subject of a departmental
investigation or a disciplinary proceeding is entitled to a hearing before a hearing committee that
is convened and authorized to consider the complaint. International Brotherhood of Police
Officers, Local 569 v. City of East Providence, 989 A.2d 106, 109 (R.I. 2010). When convened
in accordance with the provisions of LEOBOR, a hearing committee is vested with “broad
powers to investigate allegations of police misconduct, hold hearings, and issue decisions that
affect the individual rights of permanently appointed law enforcement officers.” In re
Denisewich, 643 A.2d at 1197 (citing Lynch, 120 R.I. at 878, 391 A.2d at 123). However, the
- 11 -
statutory scheme “does not give the hearing committee the power summarily to dismiss charges
for procedural violations of the Law Enforcement Officers’ Bill of Rights.” In re Sabetta, 661
A.2d 80, 83 (R.I. 1995).
Prior to 1980, § 42-28.6-12 provided that a police officer who sought to appeal from a
decision rendered by a LEOBOR hearing committee could do so in accordance with G.L. 1956
§ 45-20-1.1, which provided that any police officer (and not the charging law enforcement
agency) who was aggrieved by a final decision of the hearing committee could appeal the
decision to the Superior Court for a trial de novo on the issues presented. However, the appeal
process outlined in § 42-28.6-12 and § 45-20-1.1 did not provide an officer or a charging law
enforcement agency with an avenue to appellate review before this Court. In Kurbiec v. Bastien,
120 R.I. 111, 113, 385 A.2d 667, 668 (1978) we held that, under what is now article 10, section 2
of the Rhode Island Constitution,11 this Court could review an appeal of a Superior Court
decision in a LEOBOR case by “exercising its final revisory and appellate jurisdiction pursuant
to its powers to issue prerogative writs, such as certiorari.” In 1980, the Legislature subsequently
amended § 42-28.6-12 to provide that, if a city or town sought review of a hearing committee’s
final decision, it could petition this Court by writ of certiorari for relief “on the grounds that said
decision was arbitrary or capricious or characterized by abuse of discretion or affected by error
of law.”12 P.L. 1980, ch. 272, § 1.
In 1995, however, the Legislature dramatically revised the LEOBOR appellate process
outlined in § 42-28.6-12, declaring that “[a]ppeals from all decisions rendered by the hearing
11
At the time Kurbiec v. Bastien, 120 R.I. 111, 113, 385 A.2d 667, 668 (1978) was decided, this
Court based its holding on article 12, section 1, of the amendments to the Rhode Island
Constitution.
12
In such an instance, this Court, if it saw fit, would issue the writ of certiorari directly to the
hearing committee so that the record of the proceedings could be certified to the Supreme Court.
- 12 -
committee shall be to the superior court in accordance with sections 42-35-15 and 42-35-15.1” of
the APA.13 P.L. 1995, ch. 19, § 1. Moreover, the 1995 amendment specified that, “[f]or
purposes of this section, the hearing committee shall be deemed an administrative agency and its
final decision shall be deemed a final order in a contested case within the meaning of sections
42-35-15 and 42-35-15.1.” P.L. 1995, ch. 19, § 1.
Despite this amendment, however, this Court continued to adhere to the standard
customarily utilized when reviewing LEOBOR cases, namely “[w]hen undertaking a review of
the hearing committee’s decision rendered pursuant to § 42-28.6-11(b), this [C]ourt does not
weigh the evidence or engage in factfinding.” Ricci, 692 A.2d at 682 (citing Dionne v. Jalette,
641 A.2d 744, 745 (R.I. 1994)). Moreover, we specified that “[o]ur review is limited, rather, to
an examination of the record to determine whether some competent evidence exists to support
the committee’s findings.” Id. (citing Dionne, 641 A.2d at 745, City of East Providence v.
McLaughlin, 593 A.2d 1345, 1348 (R.I. 1991), Lantini v. Daniels, 104 R.I. 572, 574, 247 A.2d
298, 299 (1968), and Hooper v. Goldstein, 104 R.I. 32, 43, 241 A.2d 809, 814-15 (1968)); see
13
The appeal process contained in G.L. 1956 § 45-20-1.1 may still be utilized in certain
circumstances. Section 45-20-1.1 currently provides, in pertinent part:
“(a) Any police officer * * * aggrieved by any decision of the bureau of police
and fire, or any similar department, board, or bureau of a city or town having
control of the police department, or any other duly constituted authority within the
police department of the city or town, which decision orders the dismissal,
reduction in rank, suspension, fine, performance of extra hours of duty, loss of
seniority rights, transfer with or without a reduction in pay, or reprimand, and the
decision is based on charges involving moral turpitude or violation of
departmental regulations, may appeal the decision to the superior court * * *
provided, that no appeal is allowed unless all administrative remedies available
under the municipal charter have been exhausted * * *. Upon appeal, the police
officer * * * [is] entitled to a trial de novo before a justice of the superior court
without a jury.”
Notably, this method of appellate review is not “exclusive of any other remedy or procedure
otherwise available.” Section 45-20-3.
- 13 -
also Culhane v. Denisewich, 689 A.2d 1062, 1064 (R.I. 1997) (“The review by this [C]ourt of
the findings of a hearing committee convened pursuant to the Law Enforcement Officers’ Bill of
Rights is both limited and highly deferential.”).
Although the aforementioned standard is not incompatible with the standard under the
APA, we take this opportunity to clarify that the standard of review set forth in the APA, as
specified in § 42-28.6-12 of LEOBOR, is the correct standard of review in light of the 1995
amendment and we shall utilize it. Although this presents a modest change to our prior case law,
we do not deem the two standards to be inconsistent or incompatible with our prior holdings.
As such, it is well settled that, when this Court reviews a judgment of the Superior Court
rendered after an administrative proceeding, our review is confined to questions of law. Iselin v.
Retirement Board of Employees’ Retirement System of Rhode Island, 943 A.2d 1045, 1048 (R.I.
2008) (citing Rossi v. Employees’ Retirement System of Rhode Island, 895 A.2d 106, 110 (R.I.
2006)). Although this Court affords “the factual findings of an administrative agency great
deference, questions of law—including statutory interpretation—are reviewed de novo.” Id. at
1049 (quoting In re Advisory Opinion to the Governor, 732 A.2d 55, 60 (R.I. 1999)). Thus, “[i]f
legally competent evidence exists to support that determination, we will affirm it unless one or
more errors of law have so infected the validity of the proceedings as to warrant reversal.”
Murphy v. Zoning Board of Review of South Kingstown, 959 A.2d 535, 540 (R.I. 2008)
(quoting Kent County Water Authority v. State (Department of Health), 723 A.2d 1132, 1134
(R.I. 1999)). In addition, it is well settled that, as a matter of law, “[t]his Court reviews de novo
whether a court has subject-matter jurisdiction over a particular controversy.” Tyre v. Swain,
946 A.2d 1189, 1197 (R.I. 2008) (citing Newman v. Valleywood Associates, Inc., 874 A.2d
1286, 1288 (R.I. 2005)).
- 14 -
Analysis
Request for a Continuance
On appeal, the city contends that it was error for the hearing committee to deny the city’s
request for a continuance. The city also argues that the Superior Court justice erred in affirming
the hearing committee’s decision, and by refusing to review the Presiding Justice’s July 18 order.
Finally, the city assigns error directly to the Presiding Justice’s order, claiming that she erred by
requiring the parties to treat the hearing date as if it occurred on July 20, 2011.
As previously stated, because LEOBOR is a creature of statute, “[t]he rules of statutory
construction require us to give statutory provisions their customary and ordinary meaning in the
absence of legislative intent to the contrary.” In re Denisewich, 643 A.2d at 1197 (citing Lynch,
120 R.I. at 873, 391 A.2d at 120). Thus, “[i]f a statutory provision is unambiguous, there is no
room for statutory construction and we must apply the statute as written.” Id. (citing Exeter-
West Greenwich Regional School District v. Pontarelli, 460 A.2d 934, 936 (R.I. 1983)).
The comprehensive provisions of chapter 28.6 of title 42 govern LEOBOR proceedings
from inception to completion. Pursuant to § 42-28.6-5(b), a hearing—defined in § 42-28.6-1(3)
as “any meeting in the course of an investigatory proceeding * * * conducted by a hearing
committee for the purpose of taking or adducing testimony or receiving evidence”—must be
convened within thirty days after the chairperson of the hearing committee is selected. Once this
initial hearing occurs, the hearing committee must complete the proceedings within sixty days;
the hearing committee then has an additional thirty days thereafter to issue a written decision.
Section 42-28.6-5(b). This section also provides that “[t]he time limits established in this
subsection may be extended by the presiding justice of the superior court for good cause shown.”
Id.
- 15 -
In the case at bar, the appointment of the hearing committee chair occurred on June 23,
2011; thus, by operation of law, the parties had until July 23, 2011 to conduct the first hearing
according to the thirty-day mandate in § 42-28.6-5(b). When it became apparent that there were
multiple conflicts with the originally scheduled July 20 hearing date, a short continuance to
July 22 was requested, which, importantly, was made within the thirty-day time limit allowed
under § 42-28.6-5(b). However, when counsel for Laprade objected to the hearing date being
moved, the committee chair denied the request to change the date. This refusal prompted
committee member Moreau to write to the Presiding Justice, stating that “any further action to
extend the time limits or reschedule the first meeting must be extended by the presiding justice.”
Notably, LEOBOR is silent on whether—or under what circumstances—a hearing
committee may grant a continuance for an initial hearing that would fall within the thirty-day
limit outlined in § 42-28.6-5(b). The chapter does, however, state that the thirty-day time limit
for the initial hearing “may be extended by the presiding justice of the superior court for good
cause shown.” Id. Furthermore, § 42-28.6-5(b) does not set forth the method by which a request
to the presiding justice to extend the time limits may be made.14 Nonetheless, LEOBOR
proceedings are not exempt from the longstanding rule that the jurisdiction of the Superior Court
must first be invoked by the filing of a complaint or miscellaneous petition and may not be
invoked by letter—or telephone call—to the presiding justice. See DeWitt v. Wall, 796 A.2d
14
We note that the preceding section, § 42-28.6-4, similarly allows for the extension of various
initial time limits; however, it specifies that this be done “upon petition” to the presiding justice.
Section 42-28.6-4(c), (d), (e), (f). Although we read this language to require the filing of a
petition in Superior Court, we are also cognizant that other provisions exist within LEOBOR that
provide for judicial review without specifying that a complaint must first be filed. See, e.g., §
42-28.6-1(2) (allowing presiding justice to take action “[u]pon written application” of a
committee member, and upon “motion” of a party). We declare, however, that such provisions
within LEOBOR are not excluded from our holding in this case that first requires the filing of a
complaint or a miscellaneous petition in the Superior Court to properly invoke its jurisdiction.
- 16 -
470, 471 (R.I. 2002) (mem.) (despite statutory scheme allowing for review, “[l]etters, motions,
and other documents addressed or provided to justices of the Superior Court do not constitute
complaints under the applicable rules, nor is the jurisdiction of the Superior Court invoked by
letter or by communications that do not constitute a complaint under the applicable rules”). This
well settled requirement is consistent with our rules of procedure, as well as the appeal process
outlined in LEOBOR.15
Although the dissent suggests that—by adhering to our rules of procedure and the
appellate procedure outlined in LEOBOR—the requisite filing of a complaint or miscellaneous
petition in the Superior Court would lead to “untenable results and immeasurably complicate
disciplinary matters under LEOBOR,” we cannot agree. LEOBOR proceedings are statutory
proceedings that are strictly regulated; these proceedings are not ad hoc, informal avenues to
police discipline. The statute unequivocally anticipates the invocation of the jurisdiction of the
Superior Court at several stages of the proceedings. As such, the dissent’s suggestion that a
filing in the Superior Court should occur only at the end of the LEOBOR proceedings—when
seeking review pursuant to the APA—is without foundation and inconsistent with the plain
language of the statute. Rather, our requirement that a complaint be filed prior to the Superior
Court exercising its jurisdiction in a LEOBOR proceeding will streamline the process, eliminate
15
In the July 18 order, the Presiding Justice noted that “[a]ny evidentiary issues may properly
come before the Court on appeal from either party under § 42-28.6-12.” This authority,
however, is circumscribed. Section 42-28.6-12(a) of LEOBOR clearly states that “[a]ppeals
from all decisions rendered by the hearing committee shall be to the superior court in accordance
with §§ 42-35-15 and 42-35-15.1.” Section 42-35-15(a) allows that, under certain
circumstances, an initial ruling of a hearing committee may be subject to immediate review
because “[a]ny preliminary, procedural, or intermediate agency act or ruling is immediately
reviewable in any case in which review of the final agency order would not provide an adequate
remedy.” (Emphasis added.) To do so, however, § 42-35-15(b) clearly dictates that to properly
invoke the jurisdiction of the Superior Court, all such “[p]roceedings for review are instituted by
filing a complaint in the superior court * * * .” (Emphasis added.)
- 17 -
piecemeal appeals, and provide a clear record for appellate review.
Moreover, we are convinced that a judicial proceeding occurred in this case and that the
Presiding Justice was not acting in an administrative role. We are mindful that counsel for
Laprade requested a hearing before the Presiding Justice concerning an issue that was contested
between the parties. The Presiding Justice graciously accommodated this request and took the
bench, in open court, with a stenographer present, to hear argument. The Presiding Justice then
issued an order regarding a matter in which she was asked to exercise her judicial discretion.
Having done so, this order was issued with the force of law. Therefore, contrary to the dissent’s
belief, this was a judicial proceeding and not an administrative function.
As such, in the absence of a complaint or miscellaneous petition filed in the Superior
Court, it is clear that the letter sent to the Presiding Justice by Moreau—as well as the telephone
call made by Laprade’s counsel—were both inappropriate and insufficient means to properly
invoke the jurisdiction of the Superior Court in this case. We therefore conclude that the
Presiding Justice acted without jurisdiction.
Even if the Presiding Justice were authorized to proceed, we are of the opinion that she
exceeded her authority by ordering the parties to select a different date and then requiring that
they treat the initial hearing as if it occurred on July 20, 2011. The authority of the Presiding
Justice in this area is clearly limited. Section 42-28.6-5(b) precisely—and unambiguously—
states that “[t]he time limits established in this subsection may be extended by the presiding
justice of the superior court for good cause shown.” Thus, at this juncture, the Presiding Justice
may only become involved in the LEOBOR hearing process for the purpose of extending the
time limits enumerated in § 45-28.6-5(b) beyond the statutory deadlines and only upon a
showing of good cause.
- 18 -
In the case at bar, after deciding that “the [c]ity’s failure to present its witness and
evidence list ten days prior to the hearing does not represent good cause for an extension of the
hearing date”—a standard not required for a continuance within the initial thirty-day time limit—
the Presiding Justice stated that she was “sympathetic to Counsel’s family medical exigency,”
and directed the parties to “agree on a mutually convenient date for [the] hearing.” In so doing,
the Presiding Justice found good cause to extend the time limit beyond the thirty days set forth in
§ 42-28.6-5(b). However, by requiring that the date of the hearing “be considered as July 20,
2011 for timing purposes,” the Presiding Justice erred and exceeded her authority under the
unambiguous language of § 42-28.6-5(b), causing the proceedings to be fatally affected by this
error of law.
Although it is apparent to the Court that this error was the result of good intentions by a
sympathetic jurist, we are constrained to hold that the Presiding Justice had no authority to order
the parties to treat a hearing date as having taken place on a different date. This is a fiction in
which we decline to engage. See In re Sabetta, 661 A.2d at 83 (“[W]hen the language of a
statute is unambiguous and expresses a clear and sensible meaning, no room for statutory
construction or extension exists, and we are required to give the words of the statute their plain
and obvious meaning.”) (quoting Ellis v. Rhode Island Public Transit Authority, 586 A.2d 1055,
1057 (R.I. 1991)).
It is undisputed that the first meeting of the hearing committee occurred on July 22, 2011,
thus satisfying § 42-28.6-5(c) by providing the respondent with at least ten days’ notice of the
evidence and witnesses against him in the LEOBOR proceeding.16 As such, we are of the
16
We note that, after careful review of the record, we are not convinced that the July 22, 2011
proceeding actually constituted a hearing under LEOBOR, based on the hearing committee’s
refusal to take any evidence despite the persistent attempts—and over the strenuous objection—
- 19 -
opinion that, from a very early stage in the LEOBOR proceedings, “one or more errors of law
have so infected the validity of the proceedings as to warrant reversal.” Murphy, 959 A.2d at
540 (quoting Kent County Water Authority, 723 A.2d at 1134). Police disciplinary proceedings
under LEOBOR are matters of great public concern, such that the parties and the public should
have confidence in the result. See Lynch, 120 R.I. at 874, 391 A.2d at 121 (noting that the
exception that this Court may review matters outside the record on certiorari is applicable in
LEOBOR proceedings, because the exception applies in “situations involving the public
interest,” and “[w]e believe that, because the police act to protect persons and property and to
ensure the public safety * * * the public has an interest in the validity of the mechanism whereby
allegations of improper conduct by police officers are adjudicated”). Therefore, based on the
errors of law committed and our holding in this case, we deem it unnecessary to reach the other
issues raised on appeal.
Conclusion
For the reasons stated in this opinion, the decision of the Superior Court is quashed and
the decision of the hearing committee is vacated. This matter may be remanded to the Superior
Court with further directions to remand this matter to the hearing committee to conduct
LEOBOR proceedings regarding the disciplinary charges filed against the respondent de novo
and in accordance with this opinion. The rehearing may be conducted before the same hearing
committee that was initially chosen to hear the charges—if the members thereof choose to
reconvene—or before a hearing committee newly selected for the purpose of conducting a
of Laprade’s counsel. Notably, a “hearing” is defined in § 42-28.6-1(3) as “any meeting in the
course of an investigatory proceeding * * * conducted by a hearing committee for the purpose of
taking or adducing testimony or receiving evidence.” (Emphasis added.) However, because we
vacate the hearing committee’s decision and direct that this case be heard de novo by the hearing
committee, we need not address this troubling issue.
- 20 -
LEOBOR proceeding de novo. The papers in this case may be returned to the Superior Court
with our decision endorsed thereon.
Flaherty, J. and Indeglia, J., dissenting. After much reflection, we must respectfully
dissent from the majority’s holding that the Presiding Justice acted without jurisdiction and
beyond her authority and that the trial justice erred in affirming that action. We further conclude
that the trial justice erred when she held that the hearing committee’s refusal to take judicial
notice of Laprade’s conviction was reasonable.
While we agree with the majority that ordinarily, “[l]etters, motions, and other documents
addressed or provided to justices of the Superior Court do not constitute complaints * * * nor is
the jurisdiction of the Superior Court invoked by letter or by communications that do not
constitute a complaint[,]” DeWitt v. Wall, 796 A.2d 470, 471 (R.I. 2002) (mem.), we note that
the Law Enforcement Officers’ Bill of Rights (LEOBOR) provides a unique statutory scheme for
disciplinary actions against law enforcement officers. In developing this statutory system, the
Legislature explicitly granted to the Presiding Justice certain administrative authority. See, e.g.,
G.L. 1956 § 42-28.6-1(2)(i) (stating that, if the two committee members selected by the officer
and the agency cannot agree upon a third member, “either member will make application to the
presiding justice * * * and the presiding justice shall appoint the third member” and further
providing that “[u]pon written application by a majority of the hearing committee, the presiding
justice, in his or her discretion, may also appoint legal counsel to assist the hearing committee”);
§ 42-28.6-1(2)(ii) (providing that “on motion made by either party, the presiding justice shall
have the authority to make a different disposition as to what each party is required to pay toward
the appointed legal counsel’s legal fee”); § 42-28.6-4(c) (stating that the Presiding Justice “upon
- 21 -
petition and for good cause shown” may permit the filing of an untimely hearing request by
either the officer or the agency). We are of the opinion that, when acting under these provisions
of LEOBOR, the Presiding Justice is acting in an administrative role and not exercising her
traditional judicial authority.
We contrast the provisions setting forth the Presiding Justice’s administrative role with
§ 42-28.6-13(d), which provides for suspension of a law enforcement officer when that officer is
charged with a misdemeanor and states that “[t]he law enforcement officer may petition the
presiding justice of the superior court for a stay of the suspension without pay, and such stay
shall be granted upon a showing that said delay in the criminal disposition was outside the law
enforcement officer’s control.” (Emphases added.) We believe the language in that section,
which sets forth the standard of review for the Presiding Justice in considering an officer’s
petition for a stay, indicates that such petitions should be made via an official filing with the
Superior Court. Compare § 42-28.6-1(2) (providing for the appointment of the third member of
the hearing committee by the Presiding Justice if the other two members cannot agree upon a
third member and either “make[s] application to the presiding justice”), with § 42-28.6-13
(stating that, if suspended without pay, the officer “may petition the presiding justice of the
superior court for a stay * * * and such stay shall be granted upon a showing that said delay in
the criminal disposition was outside the law enforcement officer’s control”). In determining
whether “said delay in the criminal disposition was outside the law enforcement officer’s
control,” the Presiding Justice would be exercising a judicial role, making a proper invocation of
the jurisdiction of the Superior Court a necessary prerequisite. Section 42-28.6-13(d).
It is our firm belief that requiring the filing of a complaint or miscellaneous petition in the
Superior Court for all matters concerning the conduct and procedures followed by the hearing
- 22 -
committee would lead to untenable results and immeasurably complicate disciplinary matters
under LEOBOR.1 We can envision a situation wherein the parties are unable to agree upon a
third committee member and must, according to the majority’s new rule, file an official
complaint in the Superior Court in order to have the Presiding Justice appoint that member.
Under the majority’s view, if the committee then later desires to request an extension of the time
limits set forth in § 42-28.6-5(b), it would need to amend the earlier complaint or file a new
complaint for the requested continuance. In the latter alternative, there would be two separate
and discrete matters docketed in the Superior Court, both regarding different procedural aspects
in the same disciplinary action. To us, this creates not only the possibility, but indeed the
probability, of uncertainty and confusion for the parties, as well as for the judicial system.2
Judicial economy alone would appear to dictate that such preliminary procedural matters arising
out of one disciplinary action against a particular officer should not be artificially divided into
separately docketed petitions at different stages in the LEOBOR process. Consequently, we
conclude that the filing of an official complaint or miscellaneous petition in the Superior Court is
not necessary in these preliminary procedural matters.
We would further dispute the majority’s conclusion that the Presiding Justice exceeded
her authority when she required the parties to treat the newly agreed-upon hearing date as if it
1
We pause to note that footnote 9 of the majority opinion, wherein it stated that the committee
petitioned the Presiding Justice for an extension of the sixty-day limit in G.L. 1956 § 42-28.6-
5(b), which was granted, appears to be inconsistent with the majority’s holding. The majority
does not clarify whether the committee officially filed with the Superior Court in order to give
the Presiding Justice jurisdiction to grant that extension of time nor does the majority take issue
with the validity of that extension. The majority’s holding, however, would appear to indicate
that the Presiding Justice would have been acting without jurisdiction in granting the extension if
the petition was made directly to her.
2
We would also question by what means either the officer or the agency could later appeal the
final decision of the committee under § 42-28.6-12, which clearly requires filing a complaint in
the Superior Court as in any other administrative appeal under the Administrative Procedures
Act, G.L. 1956 chapter 42 of title 35.
- 23 -
had occurred on July 20, 2011, as originally scheduled by the committee. We disagree with the
majority’s characterization of the Presiding Justice’s order in concluding that she “found good
cause to extend the time limit beyond the thirty days set forth in § 42-28.6-5(b).” Indeed, the
Presiding Justice’s order explicitly stated that she did not find good cause to extend under § 42-
28.6-5(b). Accordingly, under the clear terms of the statute, the Presiding Justice could not then
grant a continuance beyond the thirty-day limit, and she rightly did not do so. The Presiding
Justice’s finding that good cause did not exist was in no way modified when she later stated that
a new hearing date would be treated as of July 20 for purposes of the disclosure deadline of § 42-
28.6-5(c).
The majority agrees with the city’s position that the hearing committee actually convened
on July 22, 2011 and that, as a result, the disclosure deadline was re-set for July 12, 2011, thus
permitting the city to enter all its documents into evidence before the committee. This
conclusion ignores the fundamental principle of statutory construction that “individual sections
[of a statute] must be considered in the context of the entire statutory scheme, not as if each
section were independent of all other sections.” Ryan v. City of Providence, 11 A.3d 68, 71 (R.I.
2011) (quoting Sorenson v. Colibri Corp., 650 A.2d 125, 128 (R.I. 1994)). The majority limits
its discussion to subsection (b) while passing over the disclosure deadline in subsection (c) of
§ 42-28.6-5 in a somewhat perfunctory fashion.
“We have consistently held that when the language of a statute is clear and unambiguous,
[we] must interpret the statute literally and must give the words of the statute their plain and
ordinary meanings.” Sisto v. America Condominium Association, Inc., 68 A.3d 603, 611 (R.I.
2013) (quoting In re Estate of Manchester, 66 A.3d 426, 430 (R.I. 2013)). Accordingly, “when
we examine an unambiguous statute, there is no room for statutory construction and we must
- 24 -
apply the statute as written.” Morel v. Napolitano, 64 A.3d 1176, 1179 (R.I. 2013) (quoting
Mutual Development Corp. v. Ward Fisher & Co., LLP, 47 A.3d 319, 328 (R.I. 2012)). In
applying these principles, we are of the opinion that the language of LEOBOR is clear and
unambiguous with regard to the disclosure deadline. Section 42-28.6-5(c) states that the city
“shall provide to the law enforcement officer” the evidence to be presented at the hearing “[n]ot
less than ten (10) days prior to the hearing date[.]” If the deadline is not complied with, the
statute is equally clear that the remedy is the exclusion of evidence not timely disclosed. See
§ 42-28.6-5(e). In the instant case, the July 10, 2011 disclosure date was based on the scheduling
of the hearing for July 20, 2011. Once the disclosure deadline had been reached and the error
made, granting a continuance of the hearing—and by extension, the disclosure deadline—would
transform the disclosure deadline into a rolling one that may be extended. Indeed, we emphasize
that this elasticity is the consequence of the majority’s holding in this case. However, such an
extension of the disclosure deadline is clearly not permitted in the statute. Because the city
failed to present its evidence by the disclosure deadline, the city could not circumvent the
application of the penalty laid out in § 42-28.6-5(e).
We emphasize that the subsections dealing with the time limits for disclosure of evidence
do not contain any provision by which those deadlines may be extended or altered. See § 42-
28.6-5(c) and (d). We contrast this with the provision establishing the time limits by which the
hearing must be convened and a written decision rendered after the hearing has been completed,
which explicitly provides that “[t]he time limits established in this subsection may be extended
by the presiding justice of the superior court for good cause shown.” Section 42-28.6-5(b)
(emphasis added). It is a well-established rule of statutory construction that, when the
Legislature uses a phrase in one provision of a statute but omits it in another, the omission “is
- 25 -
significant to show a different legislative intent for the two sections.” See 2A Sutherland
Statutory Construction § 46:6 at 263-66 (7th rev. ed. 2014). Clearly, if the Legislature had
intended that the ten-day disclosure deadline could be changed after it had been set and the
deadline had passed, the Legislature knew how to provide for it. It is not for us to rewrite the
statute to provide for an extension of the disclosure deadlines when the Legislature specifically
did not do so. We are not unsympathetic to the city’s position regarding this seemingly
draconian result, i.e., excluding all the evidence the city wished to present as a consequence of
missing the disclosure deadline by one day,3 and understand the majority’s wish to give the city
the full opportunity to present all its evidence. Our sympathy for the city’s plight, however, does
not permit us to step in, as the majority is apparently willing to do, to provide the city a second
bite of the apple after the disclosure deadline had been missed. See In re Rule Amendments to
Rules 5.4(a) & 7.2(c) of the Rules of Professional Conduct, 815 A.2d 47, 49 (R.I. 2002)
(“[Q]uestions of the wisdom, policy or expediency of a statute are for the legislature alone. * * *
If the statute is within the power of the legislature to enact, it is the duty of the court to sustain it,
3
While not binding upon us, we recognize that LEOBOR’s deadlines have historically been
applied strictly by the Superior Court, regardless of the consequences. In his papers to us,
Laprade cites a litany of cases from the Superior Court in which the court recognized that
LEOBOR was written in such a way that its rigid deadlines could not be avoided. See, e.g.,
Town of Westerly Police Department v. Burton, 2006 WL 2590094 at *1 n.1 (R.I. Super. Sept. 7,
2006) (in which a Superior Court justice agreed that, because the town had failed to furnish
documents in a timely fashion, the documents could not be introduced at the hearing and
affirmed the hearing committee’s decision finding the officer “[n]ot [g]uilty based upon lack of
evidence”); International Brotherhood of Police Officers Local 369 v. Town of Burrillville
Police Department (PC 06-379) (R.I. Super. Feb. 1, 2006) (in which an officer lost his job
without the benefit of a hearing because the officer had failed to notify the department of his
committee representative in a timely fashion); Petrella v. City of Providence (MP 05-3319) (R.I.
Super. June 29, 2005) (in which the then-Presiding Justice upheld the firing of an officer without
the benefit of a hearing due to the failure by the officer to follow one of LEOBOR’s deadlines,
noting that the “statutory mandate[s] * * * go[] both ways.”).
- 26 -
irrespective of its own opinion of the wisdom, reasonableness, or necessity for the statute.”)
(quoting Creditors’ Service Corp. v. Cummings, 57 R.I. 291, 298-99, 190 A. 2, 8 (1937)).
We reiterate that the statute does not cloak the Presiding Justice with the authority to
extend the disclosure deadline, for good cause or otherwise. Consequently, the Presiding Justice,
when faced with the request for a continuance, could not have changed the disclosure deadline
even if she had chosen to continue the hearing date. We note that the Presiding Justice was
essentially caught between Scylla and Charybdis—bound, on the one hand, by the clear language
of the statute and the set disclosure deadline, and on the other hand, understandably wishing to
be accommodating to the parties in dealing with “Counsel’s family medical exigency.” Under
the circumstances, we believe the Presiding Justice did the only thing she could in attempting to
accommodate the parties without violating the statute or unduly prejudicing the rights of either
side. As such, we do not discern any error in the Presiding Justice’s order. We agree with
Laprade’s suggestion that the order merely formalized a compromise between the parties “as a
courtesy to the City’s counsel.” We also believe that the trial justice was correct in affirming the
Presiding Justice’s order.
While we part company with the majority on the strictness of the disclosure deadline, we
hasten to add that the city’s failure to comply with that deadline should not prohibit the city from
attempting to make its case by other means. Although this issue was not reached by the majority
in this case, the city sought to do so by a request that the committee take judicial notice of
Laprade’s conviction in the District Court; a conviction that was not appealed. We firmly
believe that the committee should have taken judicial notice of that conviction.
Section 42-28.6-10 says, “The hearing committee conducting the hearing may take notice
of judicially cognizable facts * * * .” The LEOBOR does not define “judicially cognizable
- 27 -
facts”; however, we are in agreement with the trial justice that “[t]he taking of ‘judicial notice,’
which according to Black’s [Law Dictionary] is synonymous with judicial cognizance, is
governed by Rule 201 of the Rhode Island Rules of Evidence.” As the trial justice did, we look
to Rule 201, which is entitled “Judicial notice of adjudicative facts,” to inform the term
“judicially cognizable fact.” Rule 201(b) says, “A judicially noticed fact must be one not subject
to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”
The city argues that the committee should have taken judicial notice of Laprade’s
conviction because the accuracy of the District Court conviction could not reasonably have been
questioned. “[T]he decision to take judicial notice of prior judgments is well supported.” In re
Victoria L., 950 A.2d 1168, 1175 n.5 (R.I. 2008); see also In re Shawn B., 864 A.2d 621, 624
(R.I. 2005) (noting that the trial justice had taken judicial notice of the defendant’s prior
conviction). On the federal level, “[i]t is well-accepted that federal courts may take judicial
notice of proceedings in other courts if those proceedings have relevance to the matters at hand.”
Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990). In E.I. Du Pont de Nemours & Co. v.
Cullen, 791 F.2d 5, 7 (1st Cir. 1986), the First Circuit took judicial notice of a complaint filed in
a state action after concluding that it had adequate legal power to do so. See St. Louis Baptist
Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate
circumstances, may take notice of proceedings in other courts, both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.”).
As the trial justice astutely observed, a decision to take judicial notice of a judicially
cognizable fact falls within the discretion of the committee because § 42-28.6-10 says that the
- 28 -
committee “may take notice of judicially cognizable facts.” We also agree with the trial justice,
and the city, that “Laprade’s conviction is a judicially cognizable fact because it is capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned, namely the publicly-available records of this [s]tate.” We nevertheless depart from
the trial justice’s rationale and conclude that she committed legal error when she determined that
the committee’s decision to decline to take judicial notice of the conviction was a proper exercise
of its discretion. In doing so, we necessarily conclude that the committee made an error of law
when it declined to take judicial notice.
In her decision, the trial justice determined that LEOBOR prohibited the city from
introducing any evidence at the hearing because the city had failed to present its witness and
evidence list ten days before the hearing. Therefore, she ruled, it would have been inappropriate
for the committee to take judicial notice of Laprade’s conviction because “§ 42-28.6-5(c)
prevent[ed] the [c]ommittee from examining proof of the alleged fact in any evidentiary
capacity.” Section 42-28.6-5(c)(iii) requires disclosure of, inter alia, “[a] list of all documents
and other items to be offered as evidence at the hearing.” (Emphasis added.) Moreover, the
failure to comply with that provision requires “the exclusion from the record of the hearing * * *
evidence not timely disclosed * * * .” Section 42-28.6-5(e). Although we agree that the city
could not introduce evidence after the presiding justice ruled that it had failed to meet the
disclosure requirements under § 42-28.6-5(c), that did not preclude the committee from taking
judicial notice of the conviction because that doctrine provides an alternative vehicle for
providing information to the decision maker without the necessity of evidence.
“Judicial notice of facts serves as a substitute for testimonial, documentary, or real
evidence and relieves a proponent from formally proving certain facts that reasonable persons
- 29 -
would not dispute.” United States v. Harper, 32 M.J. 620, 622 (A.C.M.R. 1991); see also York
v. American Telephone & Telegraph Co., 95 F.3d 948, 958 (10th Cir. 1996) (“Judicial notice is
an adjudicative device that alleviates the parties’ evidentiary duties at trial, serving as a substitute
for the conventional method of taking evidence to establish facts.”) (quoting Grand Opera Co. v.
Twentieth Century-Fox Film Corp., 235 F.2d 303, 307 (7th Cir. 1956)); Wesley-Jessen Division
of Schering Corp. v. Bausch & Lomb Inc., 698 F.2d 862, 865 (7th Cir. 1983) (“Judicial notice, in
essence, is a substitute for evidence.”). It is our view that the committee should have taken
judicial notice of the conviction because, even though the certified copy of the conviction could
not have been offered in an evidentiary fashion, it nevertheless remained eligible to be reviewed
for the purposes of judicial notice.4 To the extent that the committee determined that § 42-28.6-
5(e) precluded it from taking judicial notice, we conclude that that determination was an error of
law. It is therefore our opinion that the trial justice erred when she concluded that the committee
acted reasonably in declining to take notice of the conviction because nothing in § 42-28.6-5
prevented the committee from doing so.
Conclusion
Therefore, we dissent from the majority’s holding that the Presiding Justice acted without
jurisdiction and in excess of her authority in ordering the parties to treat the new hearing date as
if it occurred on July 20, 2011. Accordingly, we also dissent from the majority’s mandate that
the hearing be conducted de novo; rather, we conclude that the matter should be remanded for
the committee to take judicial notice of Laprade’s conviction in District Court and issue a new
written decision.
4
We note that judicial notice of the conviction for “disorderly conduct/indecent exposure” may
not persuade the committee to sustain the charges against Laprade. We take no position on what
impact the record of conviction should have had on the committee’s decision.
- 30 -
RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: City of Pawtucket v. Nichalas Laprade.
CASE NO: No. 2013-330-M.P.
(PC 11-7205)
COURT: Supreme Court
DATE OPINION FILED: July 2, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Maureen McKenna Goldberg
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Presiding Justice Alice B. Gibney
Associate Justice Sarah Taft-Carter
ATTORNEYS ON APPEAL:
For Petitioner: Vincent F. Ragosta, Jr., Esq.
For Respondent: Joseph F. Penza, Jr., Esq.