City of Pawtucket v. Nichalas Laprade
City of Pawtucket v. Nichalas Laprade
Opinion of the Court
OPINION
This case came before the Supreme Court pursuant to a writ of certiorari filed
Facts and Travel
On February 18, 2011, Pawtucket police officer Nichalas Laprade was convicted of disorderly conduct by indecent exposure
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 Paw-tucket Police Department, who was chosen by the city. On June 23, 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 sched
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.
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).
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 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 state
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.
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 and, in essence, transform itself into a prosecutorial body. Moreover, La-prade’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,
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 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,
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 Jus
On the issue of judicial notice, the Superior Court justice stated that under LEO-BOR, 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 [cjommittee.” 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. 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)).
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 dedsion 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,
In 1995, however, the Legislature dramatically revised the LEOBOR appellate process outlined in § 42-28.6-12, declaring that “[ajppeals from all decisions rendered by the hearing committee shall be to the superior court in accordance with sections 42-35-15 and 42-35-15.1” of the APA.
Despite this amendment, however, this Court continued to adhere to the standard customarily utilized when reviewing LEO-13 OR 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 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)).
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.
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.
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 Superi- or 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 LEO-BOR proceeding will streamline the process, eliminate 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
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.
In the case at bar, after deciding that “the [cjity’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.
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 LEO-BOR 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 LEOBOR proceeding de novo. The papers in this case may be returned to the Superior Court with our decision endorsed thereon.
. 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 * * * [ejxposes 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.
. 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.
.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.
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"(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.)
. Section 42-28.6-5(b) provides that a LEO-BOR 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.”
. This document — captioned "City of Pawtucket v. Officer Nich[allas 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
. Laprade did not attend the September 8, 2011 hearing, or any other subsequent proceedings.
. 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).
.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.”
. 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.
. Under § 42-28.6-12(a) of LEOBOR, "[alp-peals 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."
. 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.
. 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.
. 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*513 all administrative remedies available under the municipal chatter 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.
. 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
. 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 "[alppeals 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 "[proceedings for review are instituted by filing a complaint in the superior court * * *.” (Emphasis added.)
. 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 — 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
Dissenting Opinion
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, “[ljetters, 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-l(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
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 committee would lead to untenable results and immeasurably complicate disciplinary matters under LEOBOR.
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 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 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
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 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, ie., excluding all the evidence the city wished to present as a consequence of missing the disclosure deadline by one day,
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 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 La-prade’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 pri- or 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.
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 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 [sjtate.” 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 La-prade’s conviction because “ § 42-28.6-5(c) prevented] the [cjommittee from examining proof of the alleged fact in any eviden-tiary 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 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 Sobering 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 no
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.
. 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.
. 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.
. 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. I (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.”).
. 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.
Reference
- Full Case Name
- CITY OF PAWTUCKET v. Nichalas LAPRADE
- Cited By
- 3 cases
- Status
- Published