Supreme Court

No. 2010-369-M.P.

No. 2010-414-M.P. 

(PC 10-1858)

Elizabeth Boyer et al. :

v. :

Chief Judge Haiganush Bedrosian et al. :

NOTICE: This opinion is subject to formal revision before publication in 

the Rhode Island Reporter. Readers are requested to notify the Opinion 

Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, 

Rhode Island 02903, at Tel. 222-3258 of any typographical or other 

formal errors in order that corrections may be made before the opinion is 

published.
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Supreme Court

No. 2010-369-M.P.

No. 2010-414-M.P.

(PC 10-1858)

Elizabeth Boyer et al. :

v. :

Chief Judge Haiganush Bedrosian1 et al. :

Present: Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.

O P I N I O N

Justice Flaherty, for the Court. The plaintiffs include fifteen minor children and their 

parents2 who participated in the Family Court’s Truancy Court Diversion Calendar Program. 

The Diversion Program, established in 1999, allows Family Court magistrates to conduct court 

sessions at public schools where truancy has become an issue. The stated goal of the Diversion 

 1 At the time plaintiffs filed the initial complaint, Jeremiah S. Jeremiah was the Chief Judge of 

the Family Court. After Chief Judge Jeremiah retired, plaintiffs amended the complaint to 

substitute the then-acting and now presiding chief judge of the Family Court, Chief Judge 

Haiganush R. Bedrosian.

2 The named plaintiffs include Elizabeth Boyer, individually, and by and for her minor son, 

Jeremy Bowen; Rozanna Thomasian, individually, and by and for her minor daughter, Chenoa 

T.; Bethany L., individually, and by and for her minor son, Alin N.; Debbie B., individually, and 

by and for her minor granddaughter and ward, Margarita S.; Alice F., individually, and by and 

for her minor son, Marcell B.; Malcolm S., individually, and by and for her minor sons, Denton 

S. and Mitch S.; David Hall, individually, and by and for his minor son, Dylan Hall; Dara S., 

individually, and by and for her minor daughter, Amy H.; Sherry Arias, individually, and by and 

for her minor daughter, Hannah-Lea Arias; Susanne R., individually, and by and for her minor 

son, Sam R.; Art S., individually, and by and for his minor son, David S.; Nancy H., 

individually, and by and for her minor daughter, Tina H.; Stephanie W., individually, and by and 

for her minor daughter, Karen W.; and Tamara Morgan, individually, and by and for her minor 

son, Henry Morgan-Massimo.
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Program is to ensure that children not only attend school, but also that they receive necessary 

rehabilitative and educational services to assist them in maintaining school attendance and 

achieving academic success.

However, in 2010, plaintiffs brought an action in the Superior Court against the chief 

judge and five magistrates of the Family Court who were sitting in the Truancy Court,3 in their 

official capacities (collectively, the judicial defendants); two Family Court administrators,4 in 

their official capacities (the administrator defendants); and five municipalities and the 

superintendents, in their official capacities, of the public school districts for the five 

municipalities.5

 The plaintiffs contended that their constitutional rights were being violated as a 

result of procedural errors occurring during the course of the administration of their cases in the 

Truancy Court, and they sought declaratory and injunctive relief, as well as relief under 42 

U.S.C. § 1983.6 The judicial defendants filed a motion to dismiss, pursuant to Rule 12(b)(1) of 

 3 The five Truancy Court magistrates included Magistrates Patricia Asquith, Colleen Hastings 

(now a District Court judge), Edward Newman, Angela Paulhus, and Thomas Wright.

4 The two administrators are Ronald Pagliarini, administrator of the Family Court, and Kevin 

Richard, director of juvenile services of the Family Court.

5 The plaintiffs initially filed suit against six municipalities, alleging that those communities 

failed to define “truancy” in a manner that provided children and parents adequate notice of 

wrongful behavior. Between May and November 2010, all of the municipal defendants, except 

the city of Providence, agreed to cease their participation in the Truancy Court. However, 

plaintiffs amended the complaint a second time to add four more municipal defendants—East 

Providence, Burrillville, Smithfield, and South Kingstown—as well as the superintendents of 

each of the municipalities’ public school systems.

6 42 U.S.C. § 1983, entitled “Civil action for deprivation of rights,” states that

“Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or the 

District of Columbia, subjects, or causes to be subjected, any 

citizen of the United States or other person within the jurisdiction 

thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or other proper 

proceeding for redress, except that in any action brought against a 

judicial officer for an act or omission taken in such officer’s 
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the Superior Court Rules of Civil Procedure,7 and a motion to strike under Rule 12(f),

8 and the 

administrator defendants filed a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6), but the 

trial justice denied the motions. The administrator defendants then petitioned this Court for a 

writ of certiorari, as the judicial defendants also did separately at a later date. On December 10, 

2010, we granted the petitions for writ of certiorari. Now before this Court are a number of 

arguments raised by defendants, including that the Superior Court lacks subject-matter 

jurisdiction, plaintiffs lack standing, plaintiffs’ claims are moot, and the case is barred by the 

doctrines of judicial immunity, comity, abstention, and res judicata. For the reasons set forth 

herein, we quash the Superior Court’s order denying defendants’ motions to dismiss.

 

judicial capacity, injunctive relief shall not be granted unless a 

declaratory decree was violated or declaratory relief was 

unavailable. For the purposes of this section, any Act of Congress 

applicable exclusively to the District of Columbia shall be 

considered to be a statute of the District of Columbia.”

7 Rule 12 of the Superior Court Rules of Civil Procedure, entitled “Defenses and objections—

When and how presented—By pleading or motion—Motion for judgment on pleadings,” states, 

in pertinent part,

“(b) How Presented. Every defense, in law or fact, to a claim for 

relief in any pleading, whether a claim, counterclaim, cross-claim, 

or third-party claim, shall be asserted in the responsive pleading 

thereto if one is required, except that the following defenses may at 

the option of the pleader be made by motion: (1) lack of 

jurisdiction over the subject matter, * * * [or] (6) failure to state a 

claim upon which relief can be granted * * *.”

8 Rule 12(f), entitled “Motion to Strike,” provides that

“Upon motion made by a party before responding to a pleading or, 

if no responsive pleading is permitted by these rules, upon motion 

made by a party within 20 days after the service of the pleading 

upon the party or upon the court’s own initiative at any time, the 

court may order stricken from any pleading any insufficient 

defense, or any redundant, immaterial, impertinent, or scandalous 

matter.”
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I

Facts and Travel

The factual background of this case is described at length in the thorough and accurate 

Superior Court decision denying defendants’ motion to dismiss—viz., Boyer v. Jeremiah, No. 

2010-1858, 2010 WL 4041812 (Super. Ct. Oct. 8, 2010). We shall summarize only the facts that 

are relevant to the issues raised in this matter.

A

Truancy Court Program

In September 1999, the Truancy Court program was established by former Family Court

Chief Judge Jeremiah. The program was a specialized calendar designed to allow Family Court 

magistrates to conduct court sessions at schools with frequently truant children.9 The Truancy 

Court was intended to facilitate collaboration between the Family Court, schools, and service 

providers to ensure that children and their parents10 received guidance and appropriate services 

within their own neighborhoods, quickly, efficiently, and effectively.

As set forth in the later-issued Family Court Administrative Order 2010-2, discussed 

infra, Part I, section C, “[t]he purpose of the Rhode Island Family Court Truancy calendar [was] 

to reduce truancy statewide,” and “ensure that students not only attend[ed] school but also 

receive[d] the rehabilitative services and educational services that [would] help to assure school 

attendance and academic success.” To effectively carry out the purpose of the program, each 

child alleged to have been truant was given a choice between admitting to a truancy violation, 

thereby gaining acceptance into the Truancy Court program, or having a full trial in the Family 

 9 A determination of truancy qualifies a child as “wayward.” G.L. 1956 § 14-1-3. Other acts 

that might lead to a determination that a youth is wayward include deserting the household, 

refusing to obey parents, being habitually absent from school, or failing to follow school rules. 

Id.

10 Hereafter, “parent(s) and/or guardian(s)” will be collectively referred to as “parent(s)” for ease 

of reference.
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Court. Even if a child, with his or her parents, opted for the Truancy Court program, the child 

and parent could elect to transfer a case to the Family Court by requesting a trial or hearing 

before the Family Court at any time. Additionally, a child or parent could appeal a Truancy 

Court magistrate’s order to the chief judge of the Family Court under a statutory right of appeal 

pursuant to G.L. 1956 § 8-10-3.1(d),11 further amplified by Family Court Administrative Order 

2008-1.12 The children and parents also were imbued with a statutory right to file a declaratory 

judgment in the Family Court under G.L. 1956 § 9-30-1.13 Finally, a child and parent could seek 

further review in this Court under G.L. 1956 § 8-1-214 or G.L. 1956 § 14-1-52(a).15

B

Superior Court Decision

On March 29, 2010, plaintiffs initiated an action in the Superior Court by filing a 

proposed class action complaint16 and civil rights lawsuit under 42 U.S.C. § 1983. The plaintiffs 

demanded declaratory relief under § 9-30-1, injunctive relief under Rule 65 of the Superior Court 

Rules of Civil Procedure, and attorneys’ fees pursuant to 42 U.S.C. § 1988. On the same day, 

 11 General Laws 1956 § 8-10-3.1(d) provides that “[a] party aggrieved by an order entered by a 

magistrate shall be entitled to a review of the order by a justice of the [F]amily [C]ourt.”

12 Family Court Administrative Order 2008-1 governs the proceedings on appeal from the 

general magistrate and any magistrate of the Rhode Island Family Court. Specifically, the order 

states that, under the authority of the chief judge of the Family Court as head of the court under § 

8-10-14, “[a]n appeal permitted by law from the General Magistrate or Magistrate of the Rhode 

Island Family Court shall be heard by the Chief Judge of the Rhode Island Family Court.”

13 General Laws 1956 § 9-30-1 states, in pertinent part, that “[t]he * * * [F]amily [C]ourt * * * 

shall have power to declare rights, status, and other legal relations whether or not further relief is 

or could be claimed.”

14 General Laws 1956 § 8-1-2 provides, in pertinent part, that “[t]he [S]upreme [C]ourt shall 

have general supervision of all courts of inferior jurisdiction to correct and prevent errors and 

abuses therein when no other remedy is expressly provided * * *.” 

15 General Laws 1956 § 14-1-52(a) states, in pertinent part, that “[f]rom any final decree, 

judgment, order, decision, or verdict of the [F]amily [C]ourt, * * * there shall be an appeal to the 

[S]upreme [C]ourt * * *.”

16 The plaintiffs filed the lawsuit as a proposed class action on behalf of “all public school 

students [in five municipalities] * * * who have been, or in the future, will be the subject of a 

truancy petition submitted to the Family Court * * *.” The class has not yet been certified.
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plaintiffs filed separate motions: one for preliminary injunction and one for class certification 

pursuant to Rule 23 of the Superior Court Rules of Civil Procedure.17 In addition to bringing suit 

against the various judicial and administrator defendants, plaintiffs sued several municipalities 

that had participated in the Truancy Court program. They alleged that all defendants had 

administered and operated the Truancy Court in violation of the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution, and article 1, section 2 of the Rhode 

Island Constitution, the Rhode Island General Laws, the Family Court Rules of Juvenile 

Proceedings, and the Supreme Court Rules of Judicial Conduct.

The allegations in the second amended complaint include that all defendants

“[1] arraign[ed] and issue[d] orders against persons over whom the 

court has no [personal] jurisdiction * * *,

“[2] fail[ed] to provide adequate information regarding individual 

rights at the arraignment, * * *

“[3] permitt[ed] children members of the Plaintiff class to waive 

their right to counsel without first consulting with counsel, * * *

“[4] engag[ed] in ex parte determinations regarding whether 

Plaintiff children ha[d] violated the terms and conditions of 

Truancy Court, * * * [and]

“[5] fail[ed] to keep and provide to the Plaintiffs a verbatim record 

of all proceedings before the Truancy Court.”

The plaintiffs also specifically alleged that former Chief Judge Jeremiah, Administrator 

Pagliarini, and Director Richard 

“[1] fail[ed] to ensure that interpreters [were] available as 

necessary to individuals appearing before the Truancy Court, * * * 

[and]

 17 The plaintiffs do not challenge their underlying adjudications or obligations to the Family 

Court.
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“[2] fail[ed] to conduct a preliminary investigation to determine 

whether submitted petitions [were] legally sufficient on their face 

and whether further action [was] in the best interest of the public 

and the child * * *.”

On May 24, 2010, the administrator defendants filed a motion to dismiss the complaint, 

alleging that the Superior Court lacked subject-matter jurisdiction over plaintiffs’ claims and that 

plaintiffs had failed to state a claim upon which relief could be granted. See Rule 12(b)(1), (6). 

On May 25, 2010, the judicial defendants also moved to dismiss the complaint, pursuant to Rule 

12(b)(1),18 and moved to strike three of plaintiffs’ claims for injunctive relief19 and plaintiffs’ 

request for attorneys’ fees under Rule 12(f). The trial justice heard oral arguments on 

defendants’ motions to dismiss and motion to strike, but before he rendered a decision, Chief 

Judge Bedrosian20 promulgated administrative order 2010-2 on September 10, 2010.

C

Administrative Order 2010-2

Chief Judge Bedrosian’s administrative order set out written procedures that dramatically 

reformed the Truancy Court Diversion Calendar Program. With regard to the intake guidelines 

for truancy petitions, administrative order 2010-2 mandated that “all truancy petitions shall be 

referred to the RI Family Court Intake Department for a preliminary investigation.” If the Intake 

Department concluded that there was insufficient “evidence and/or documentation * * * to bring 

 18 In the judicial defendants’ memorandum supporting their petition for writ of certiorari, they 

clarified that they anticipated filing a motion to dismiss under Rule 12(b)(6) if the motion to 

dismiss under Rule 12(b)(1) was not successful.

19 Specifically, the judicial defendants sought to strike two of plaintiffs’ claims against the chief 

judge, which included allegations that the chief judge allowed the Intake Department to file 

truancy petitions prior to investigation and allowed Truancy Court proceedings that were not 

recorded, and one of the claims against the Family Court magistrates for allegedly issuing orders 

against individuals over whom they had no jurisdiction.

20 Chief Judge Bedrosian was appointed to lead the Family Court after Chief Judge Jeremiah 

retired.
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a student within the jurisdiction of the court, the Intake Department [would] not authorize the 

petition.”

If, on the other hand, a conclusion was reached after preliminary investigation that there 

existed sufficient evidence and documentation to assert the court’s jurisdiction, “the Intake 

Department [should] determine the most appropriate level of judicial action,” which included 

referring the case to the truancy calendar or to the formal juvenile calendar. Administrative 

order 2010-2 also added a threshold requirement that a student must “[have] at least 10 days of 

absences and/or [the petition] state[d] that a student [was] habitually late or absent from school” 

before the Intake Department could refer a case to the truancy calendar.

Under the terms of the order, if a petition was determined to be suitable for the truancy 

calendar, it was to be assigned to a school location, and written notice would be sent to the 

parents. That notice would inform the parent that the child had been referred to the Family Court 

on a “wayward status offense of truancy,” and that the parents would have the opportunity to 

give valid excuses for the absences at the hearing. The notice would also set the location, time, 

and date of an initial meeting with a magistrate. If the child or parent did not appear at the 

truancy calendar, order 2010-2 stated, “a summons may be issued for the child and 

parent/guardian to appear.” See § 14-1-16.21

 21 Section 14-1-16, entitled “Summons of child or adult in charge of child,” provides:

“Upon the filing of a petition, the justice, if satisfied that there is 

reasonable cause for the petition, may issue a summons requiring 

the child to appear before the court at a time and place named in it, 

and shall also cause a summons to be issued to at least one of the 

parents of the child if either of them is known to reside within the 

state, or if there is no parent, then to the guardian or other lawful 

custodian of the child, if there is one known to be so resident, and, 

if not, then to the person with whom the child resides, if known.”
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The administrative order further required that, at the initial meeting, the magistrate was to 

discuss with the child and parents the two options that were available: the child could either 

participate in the Diversion Calendar Program or proceed to an arraignment on the formal 

juvenile calendar in Family Court. The order required the magistrate to read the truancy petition 

to the child and parent and to explain Rhode Island’s compulsory school attendance laws, the 

requirements for participating in the Truancy Diversion Program, and the child’s right to trial. 

The magistrate was also directed to inform the child that he or she could voluntarily leave the 

Truancy Diversion Program at any time or that he or she could be removed from the program, 

either for refusing to comply with its terms and conditions or if the child was charged with 

another offense. In the event that the child or parent did not appear at the initial meeting, the 

administrative order dictated that a summons could be issued.

If a child agreed to participate in the truancy program, order 2010-2 required that three 

documents be signed: (1) “Participant Guidelines,” (2) “Participant’s Forum Choice,” and (3) 

“Release of Confidential Information.” The order further elaborated that, at the initial meeting, 

the child and parent were to be advised of their right to hire an attorney at any time the child was 

enrolled in the Truancy Diversion Program. In those cases when the family was unable to afford 

the services of counsel, the matter could be placed on the formal juvenile calendar and, if 

appropriate, the child would be referred to the services of the public defender or court-appointed 

counsel. Order 2010-2 added that “Magistrates will assess the need for interpreters” and “[a]ll 

Truancy Diversion Program hearings will be recorded.” Lastly, the order explained that after a 
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magistrate found the child had substantially complied with the program’s requirements, he had 

the authority to dismiss the truancy petition.22

D

Superior Court Law Suit

On October 8, 2010, the trial justice denied defendants’ motions to dismiss, without 

prejudice; he did, however, grant the judicial defendants’ request for an evidentiary hearing on 

subject-matter jurisdiction, and he permitted the parties to engage in discovery prior to that 

hearing.

E

Writ of Certiorari

On October 25, 2010, in a preemptive strike before an evidentiary hearing was scheduled, 

the administrator defendants filed a petition for a writ of certiorari. The judicial defendants filed 

a separate petition for a writ of certiorari on November 26, 2010.23 After a review of both 

petitions, we granted certiorari on December 10, 2010.24 Before this Court, defendants make a 

number of arguments. Specifically, the judicial defendants argue that the Superior Court does 

not have subject-matter jurisdiction: they contend that the 42 U.S.C. § 1983 claim is, in essence, 

a veiled appeal of plaintiffs’ petitions regarding waywardness and delinquency, over which the 

 22 The administrative order also describes that a magistrate may review a truancy case for only

one year, unless there is just cause to extend this time.

23 On November 2, 2010, plaintiffs moved to amend the first amended complaint to add ten new 

plaintiffs and four new municipalities and the superintendents of their public schools as 

defendants; substitute then-acting Chief Judge Bedrosian for former Chief Judge Jeremiah; drop 

the defendant municipalities and superintendents with whom plaintiffs had settled; and clarify 

that plaintiffs sought a state-wide class certified against the acting chief judge of the Family 

Court, court administrators, and Truancy Court magistrates. The plaintiffs also filed an amended 

motion for class certification.

24 The petition for writ of certiorari was filed in this Court before an order reflecting the trial 

justice’s denial of the motion to dismiss was filed in the Superior Court. This case is ripe for 

decision, despite the fact that the Superior Court did not enter an order. See McKenna v. 

Williams, 874 A.2d 217, 224 n.6, 225 (R.I. 2005) (Superior Court order is not necessary to 

enable Supreme Court review).
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Family Court has exclusive original jurisdiction. Alternatively, they contend that if the matter 

involves error by the Family Court, the case should be heard by the Supreme Court, which has 

exclusive supervisory authority over inferior courts. The judicial defendants also challenge 

plaintiffs’ standing because some of plaintiffs’ cases were dismissed or transferred to the regular 

Family Court calendar before the initial complaint was filed, and the remaining plaintiffs’ cases 

have since been resolved. Therefore, they maintain, those plaintiffs do not face an imminent 

threat of injury nor do they seek real or articulable relief. Moreover, the judicial defendants 

argue that the case has become moot because the administrative order addresses each 

constitutional challenge raised in the complaint.25 Further, the judicial defendants aver that, even 

if the Superior Court is cloaked with subject-matter jurisdiction, the doctrines of comity and 

abstention demand that the superior court dismiss the case, so that it more properly may be heard 

in the Family Court. Finally, the judicial defendants assert that plaintiffs’ suit against the judicial 

officers is barred by sovereign immunity, qualified immunity, judicial immunity, legislative 

immunity, and is improper under the Eleventh Amendment to the United States Constitution.

The administrator defendants raise similar arguments; they insist that the substance of 

plaintiffs’ allegations involve core issues of the Family Court, and that, therefore, the case should 

be before that tribunal. In the alternative, they contend that the Supreme Court should hear this 

case because it has exclusive jurisdiction to oversee the Family Court’s actions and rulings. The 

administrator defendants also aver that they are uncertain whether any of plaintiffs’ claims 

remain pending in the Truancy Court, and, therefore, according to them, standing is at issue. As 

 25 The judicial defendants acknowledge that plaintiffs’ challenge to the ex parte communications

between the magistrates and school administrators was not specifically addressed in the 

administrative order; however, they argue that Truancy Court proceedings are not adversarial 

and, therefore, the magistrates may properly communicate with school administrators to gather 

information. 
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to comity, the administrator defendants assert that, out of respect, courts of coordinate 

jurisdictions hearing the same case should not overrule each other’s decision. Finally, the 

administrator defendants argue that the plain language of 42 U.S.C. § 1983 bars injunctive relief 

against judicial officers. This prohibition, they contend, applies to them, as well.

In response, plaintiffs maintain that the case was brought properly before the Superior 

Court, because that court has subject-matter jurisdiction under the Uniform Declaratory 

Judgments Act, G.L. 1956 chapter 30 of title 9, and is vested with equitable jurisdiction. The 

plaintiffs also contend they have standing because the case should be addressed in the context of 

the proposed class action. The plaintiffs argue that defendants have waived any claim of 

mootness, because they did not raise it before the Superior Court. Also, plaintiffs assert that 

their complaint is not moot because the administrative order does not address all of the 

constitutional challenges that they raised in their complaint. Finally, plaintiffs entreat this Court 

to hold that comity does not apply because they do not seek to collaterally attack any order of the 

Truancy Court magistrates. Finally, plaintiffs submit that judicial immunity does not bar 

declaratory relief against the judicial officers.

II

Standard of Review

A motion under Rule 12(b)(1) questions a court’s authority to adjudicate a particular 

controversy before it. This Court reviews such challenges de novo. Newman v. Valleywood 

Associates, Inc., 874 A.2d 1286, 1288 (R.I. 2005). “[I]n ruling on a Rule 12(b)(1) motion, a 

court is not limited to the face of the pleadings. A court may consider any evidence it deems 

necessary to settle the jurisdictional question.” Morey v. State of Rhode Island, 359 F. Supp. 2d 

71, 74 (D.R.I. 2005) (quoting Palazzolo v. Ruggiano, 993 F. Supp. 45, 46 (D.R.I. 1998)). A 
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challenge to subject-matter jurisdiction “may not be waived by any party and may be raised at 

any time in the proceedings.” Pine v. Clark, 636 A.2d 1319, 1321 (R.I. 1994). 

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint about whether 

it fails to state a claim upon which relief can be granted. In reviewing a justice’s decision on a 

Rule 12(b)(6) motion to dismiss, we apply the same standards as the motion justice. Tucker 

Estates Charlestown, LLC v. Town of Charlestown, 964 A.2d 1138, 1140 (R.I. 2009). “The 

standard for granting a motion to dismiss is a difficult one for the movant to meet.” Pellegrino v. 

Rhode Island Ethics Commission, 788 A.2d 1119, 1123 (R.I. 2002). “When this Court reviews a 

trial justice’s granting of a Rule 12(b)(6) motion, we assume that the allegations contained in the 

complaint are true, and examine the facts in the light most favorable to the nonmoving party.” 

Pellegrino, 788 A.2d at 1123 (quoting Estate of Sherman v. Almeida, 747 A.2d 470, 473 (R.I. 

2000)). If it “appears beyond a reasonable doubt that a plaintiff would not be entitled to relief 

under any conceivable set of facts,” the motion may be granted. Id. (quoting Estate of Sherman, 

747 A.2d at 473). This analysis requires a resolution of the overarching issue of justiciability: 

the court must have subject-matter jurisdiction over the issues raised in the complaint, plaintiffs 

must have standing, and the issues must not be moot.

III

Analysis

As a threshold matter, we will assume, without deciding, that the Superior Court has 

subject-matter jurisdiction.26 We also will assume, again without deciding, that the judicial 

defendants and the administrator defendants are not immune from suit. Further, we assume, 

without deciding, that at least one of the plaintiffs had standing to bring this suit at the time the 

 26 See generally Berberian v. O’Neil, 111 R.I. 354, 357-58, 302 A.2d 301, 303-04 (1973)

(discussing the interplay between the Family Court and the Superior Court’s subject-matter 

jurisdiction).
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initial complaint was filed.27 See Mangual v. Rotger–Sabat, 317 F.3d 45, 58 (1st Cir. 2003) 

(standing is based on the facts as they existed at the time the complaint was filed); see also

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 170 

(2000) (“The requisite personal interest that must exist at the commencement of the litigation 

(standing) must continue throughout its existence (mootness).”). 

Nonetheless, a plaintiff’s stake in a case is not frozen at the moment the lawsuit is filed. 

It is well settled that he or she must maintain a personal interest in the outcome throughout the 

course of the litigation or the controversy becomes moot and, therefore, stripped of justiciability, 

despite the court’s retention of subject-matter jurisdiction. See Matos v. Clinton School District,

367 F.3d 68, 71 (1st Cir. 2004) (a cognizable case or controversy must exist not only at the 

outset of the lawsuit, but at all stages of the litigation, including appeal). Accordingly, this Court 

will focus its analysis of this case on the issue of mootness.

 27 The plaintiffs allege the following individuals were still subject to the Truancy Court when the 

initial complaint was filed, and, therefore, may have standing: Debbie B., individually, and by 

and for her minor granddaughter and ward, Margarita S.; David Hall, individually, and by and 

for his minor son, Dylan Hall; Dara S., individually, and by and for her minor daughter, Amy H.; 

Nancy H., individually, and by and for her minor daughter, Tina H.; Susanne R., individually, 

and by and for her minor son, Sam R.; Art S., individually, and by and for his minor son, David 

S.; Stephanie W., individually, and by and for her minor daughter, Karen W.; and Tamara 

Morgan, individually, and by and for her minor son, Henry Morgan-Massimo. The following 

plaintiffs did not have standing to bring suit, however, as they were either dismissed or 

transferred from the Truancy Court before the complaint was filed: Elizabeth Boyer, 

individually, and by and for her minor son, Jeremy Bowen; Rozanna Thomasian, individually, 

and by and for her minor daughter, Chenoa T.; Bethany L., individually, and by and for her 

minor son, Alin N.; Alice F., individually, and by and for her minor son, Marcell B.; Malcolm S., 

individually, and by and for her minor sons, Denton S. and Mitch S.; and Sherry Arias, 

individually, and by and for her minor daughter, Hannah-Lea Arias. See American Postal 

Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992) (“[P]ast exposure to harm will not, 

in and of itself, confer standing upon a litigant to obtain equitable relief ‘[a]bsent a sufficient 

likelihood that he will again be wronged in a similar way.’” quoting Los Angeles v. Lyons, 461 

U.S. 95, 111 (1983)).
- 15 -

A

Mootness

The judicial defendants argue that plaintiffs’ claims for declaratory and injunctive relief 

are moot because the practices in the Truancy Court about which they complained are no longer 

in effect since the administrative order was issued. On the other hand, plaintiffs contend that 

mootness was not raised at the time of the Superior Court hearing, and that, therefore, the issue 

has been waived. Alternatively, plaintiffs maintain that the administrative order does not address 

all of the constitutional challenges raised in the complaint and, as a result, the case is not moot.

Although the parties did not raise mootness before the Superior Court, this Court 

nonetheless considers it as a threshold issue of justiciability. See City of Cranston v. Rhode 

Island Laborers’ District Council Local 1033, 960 A.2d 529, 533 (R.I. 2008) (“Although neither 

party directly has raised the issue, this Court first must address the threshold issue of 

justiciability before we may entertain the merits of the parties’ substantive arguments.”). We 

have held that the principle of mootness applies in actions for equitable relief, and that 

declaratory judgment will not be rendered on moot questions. See Town of Scituate v. Scituate 

Teachers’ Association, 110 R.I. 679, 684, 296 A.2d 466, 469 (1972).

A case is moot if there is no continuing stake in the controversy, or if the court’s 

judgment would fail to have any practical effect on the controversy. Lynch v. Rhode Island

Department of Environmental Management, 994 A.2d 64, 71 (R.I. 2010); H.V. Collins Co. v. 

Williams, 990 A.2d 845, 848 (R.I. 2010). We “ha[ve] consistently held that a case is moot if the 

original complaint raised a justiciable controversy, but events occurring after the filing have 

deprived the litigant of a continuing stake in the controversy.” State v. Medical Malpractice 

Joint Underwriting Association, 941 A.2d 219, 220 (R.I. 2008) (quoting Cicilline v. Almond,

809 A.2d 1101, 1105 (R.I. 2002)). For example, the passage of a new law or an amendment to 
- 16 -

an existing law may moot a case. Midwest Media Property, L.L.C. v. Symmes Township, Ohio,

503 F.3d 456, 460 (6th Cir. 2007) (citing Hall v. Beals, 396 U.S. 45, 48 (1969)).

Here, plaintiffs’ complaint alleges that defendants: (1) did not provide sufficient notice of 

conduct that would result in a child’s referral to Truancy Court; (2) deprived children of a 

preliminary investigation prior to the filing of the truancy petition; (3) failed to serve summonses 

and copies of truancy petitions; (4) failed to properly arraign children; (5) improperly permitted 

children to waive their constitutional rights; (6) deprived children of a right to counsel; (7) issued 

orders without personal jurisdiction; (8) did not transcribe or record the Truancy Court 

proceedings; (9) deprived children of a meaningful opportunity to be heard by not appointing 

interpreters; and (10) deprived children of a meaningful opportunity to be heard by engaging in 

ex parte communications with school officials. The issue of mootness as it pertains to each of 

plaintiffs’ ten alleged constitutional violations will be discussed in turn.28

1

Notice

The judicial defendants argue that the administrative order sets a minimum number of ten 

truancies, sufficient to give notice of the conduct that will result in a child’s eligibility for the 

Diversion Program. The plaintiffs insist, however, that the administrative order, while indicating 

that the Truancy Court participants will receive notice, nevertheless is vague because it does not 

specify how or when they will receive that notice.

“Vagueness challenges under the [D]ue [P]rocess [C]lause rest principally on lack of 

notice.” Moreau v. Flanders, 15 A.3d 565, 582 (R.I. 2011) (quoting State v. Russell, 890 A.2d 

 28 Nonetheless, “a determination of mootness may not end our judicial review.” In re Court 

Order Dated October 22, 2003, 886 A.2d 342, 348 (R.I. 2005) (quoting Foster-Glocester 

Regional School Committee v. Board of Review, 854 A.2d 1008, 1013 (R.I. 2004)). This Court

discusses, infra Part III, section B, whether an exception to mootness applies.
- 17 -

453, 460 (R.I. 2006)). “[I]t is well settled that a statute is unconstitutionally vague if it lacks 

explicit standards from its application and thus delegates power that enables enforcement 

officials to act arbitrarily with unchecked discretion.” Id. (quoting Fitzpatrick v. Pare, 568 A.2d 

1012, 1013 (R.I. 1990)). Further, “[a] statute is unconstitutionally vague if it compels ‘a person 

of average intelligence to guess and to resort to conjecture as to its meaning and/or as to its 

supposed mandated application.’” Id. at 583 (quoting Kaveny v. Town of Cumberland Zoning 

Board of Review, 875 A.2d 1, 10 (R.I. 2005)). Further, the fundamental requisite of due process 

is the opportunity to be heard at a meaningful time and in a meaningful manner; this certainly 

requires one to be forewarned about the subject matter of the hearing with sufficient detail so an 

intelligent explanation or rebuttal can be formulated. See Avanzo v. Rhode Island Department of 

Human Services, 625 A.2d 208, 210-11 (R.I. 1993) (citing Goldberg v. Kelly, 397 U.S. 254, 

268-69 (1970)).

It is true that previously there was no guidance under the Truancy Court procedures or 

under G.L. 1956 §§ 16-19-129 and 16-19-630 as to the number of absences from school that were 

necessary to incur possible liability as a truant. However, the administrative order specifies a 

threshold number of ten days of absence before a child may be referred either to the Diversion 

Program or to the formal juvenile calendar. Indeed, administrative order 2010-2 states that “[t]he 

Intake Department may refer cases to the Truancy calendar if the petition: * * * [h]as at least 10 

days of absences and/or states that a student is habitually late or absent from school.” We are 

 29 General Laws 1956 § 16-19-1, entitled “Attendance required,” provides that “[e]very child 

who has completed or will have completed six (6) years of life on or before September 1 of any 

school year and has not completed eighteen (18) years of life shall regularly attend some public 

day school during all the days and hours that the public schools are in session in the city or town 

in which the child resides.”

30 Section 16-19-6, entitled “Proceedings against habitual truants and offenders,” provides that a 

“habitual truant” is “every child who is required under § 16-19-1 to attend school and who 

willfully and habitually absents himself or herself from attending school.”
- 18 -

confident that a person of average intelligence need neither guess nor speculate about the number 

of absences that will result in a referral to the Truancy Diversion Program. See Moreau, 15 A.3d 

at 583 (holding that a statute is not unconstitutionally vague if it gives a person of ordinary 

intelligence a reasonable opportunity to know what is prohibited, so that he may act 

accordingly).

Administrative order 2010-2 also details how notice will be delivered to the child and his 

or her parents. It states that if the Intake Department determines a petition is suitable for the 

Truancy calendar, the petition “will be assigned to the appropriate school location” and “written 

notice shall be sent to the parent/guardian.” The written notice informs the parents that the child 

“has been referred to the Family Court on a wayward status offense of truancy” and that the child 

“has been prescreened to enter the Truancy Diversion Program.” The notice explains that the 

parents will “ha[ve] the opportunity to provide valid excuses for absences, if any, at the hearing.” 

Finally, the notice briefly describes the Diversion Program and sets the location, time, and date 

of the initial meeting with a magistrate. See Avanzo, 625 A.2d at 210-11 (explaining that due 

process requires an opportunity to be heard at a meaningful time and in a meaningful manner). 

Accordingly, after reviewing the administrative order, we hold that its specific and clarified 

procedure affords children and parents sufficient notice of what conduct will subject them to a 

truancy proceeding and the manner in which the child and parents will receive notice of a 

truancy petition. In our opinion, plaintiffs’ constitutional challenge to the sufficiency of the 

notice requirement has been mooted by the administrative order.

2

Preliminary Investigation

The judicial defendants further argue that the administrative order blunts plaintiffs’ 

complaint because it sets out a detailed procedure for a preliminary investigation. The plaintiffs
- 19 -

contend that there is no record that the Intake Department investigates the truancy petitions that 

it receives from school officials.

It is worth mentioning that we have recognized previously that an intake investigation is 

not required as a step in an accusatory proceeding of delinquency or waywardness: the 

investigation by the Intake Department “serves primarily to shield the child from arbitrary 

bureaucratic action and to forestall the Family Court from assuming jurisdiction when such 

would ill serve the interests of the juvenile and the public.” In re Leon, 122 R.I. 548, 552, 410 

A.2d 121, 124 (1980) (citing In re Three Minor Children, 110 R.I. 11, 15, 289 A.2d 434, 436 

(1972)); see § 14-1-10.31 

After a review of the revision to the preliminary investigation procedure, we conclude 

that the administrative order safeguards children from arbitrary bureaucratic action and that the 

Family Court, through its administrative order, has adhered to the statutory requirements. 

Indeed, order 2010-2 provides that “all truancy petitions shall be referred to the RI Family Court 

Intake Department for a preliminary investigation.” The administrative order also clarifies how 

the Intake Department shall determine if sufficient evidence and documentation exists to bring a 

child within the jurisdiction of the court. Administrative order 2010-2 specifically cites to § 8-

10-22, entitled “Intake department—Duties,” which states that the duties of the Intake 

Department 

 31 Section 14-1-10, entitled “Preliminary investigation on information furnished to the court,” 

states, in pertinent part, that the preliminary investigation

“may include a preliminary investigation of the home and 

environmental situation of the child, his or her previous history, 

and the circumstances which were the subject of the information. 

To avoid duplication of effort and to take full advantage of all 

existing facilities, the report of any public agency, or of any private 

social agency licensed by the department of children, youth, and 

families, may be accepted by the court as sufficient evidence for 

the filing of a petition.”
- 20 -

“shall be to receive applications and complaints relative to juvenile 

matters presented to the court, to provide for a thorough 

investigation of the applications and complaints, * * * to report 

thereon to the court before formal petition is filed[,] * * * [and to] 

perform such other duties as shall be assigned to it by the court.” 

The administrative order also cites to Rule 3 of the Family Court Rules of Juvenile Proceedings, 

entitled “Intake procedure,” which requires that after a petition is submitted to the court, it is

“referred to the intake department for preliminary investigation to 

determine whether the facts are legally sufficient to bring the child 

within the jurisdiction of the court and, if so, to determine whether 

the interests of the public or of the child require that further action 

be taken.”

Rule 3 explains that preliminary investigation can include

“investigation of the home and environmental situation of the 

child, the child’s previous history and the circumstances which 

were the subject of the petition. The report of any public agency, 

or of any private social agency licensed by the department for 

children and their families, may be accepted by the court for its 

consideration.”

The administrative order then expounds that upon a determination that there is sufficient 

evidence to assert the court’s jurisdiction, the Intake Department “shall determine the most 

appropriate level of judicial action,” which could be an “[a]ssignment of truancy petition[] to an 

Intake worker for further investigation and monitoring,” an “[a]ssignment of [the] case[] to the 

Truancy calendar,” or an “[a]ssignment of [the] case[] to the formal juvenile calendar.” Based 

on our review of the administrative order, we are completely comfortable that a sufficient 

preliminary investigation procedure is now in place.

3

Summons

The judicial defendants aver that the administrative order informs that the Truancy Court 

program is voluntary in nature, and, therefore, a summons is not necessary. If the child and/or 
- 21 -

parent do not choose to participate on a voluntary basis, the truancy petition is referred to the 

formal juvenile calendar, where procedural protections, including the service of a summons, are 

enforced. The plaintiffs respond that formal summonses are required under Rule 6 of the Family 

Court Rules of Juvenile Proceedings and §§ 14-1-16 and 14-1-17, and that no requisite 

summonses were used. 

The administrative order directs that a child and parent may “choose” to participate in the 

Truancy Program. In Rhode Island, it is well established that a summons is not required when a 

defendant makes a voluntary appearance, and thus waives the right to personal service. See

Theta Properties v. Ronci Realty Co., 814 A.2d 907, 912-13 (R.I. 2003). Administrative order 

2010-2 elaborates that if the child or parent does not appear at the Truancy calendar, “a summons 

may be issued for the child and parent/guardian to appear.” If the child and parent appear at the 

Truancy calendar, but “the student and parent/guardian do not each agree to participate in the 

Truancy Diversionary Program, the case will be referred to the formal juvenile calendar.” It is 

important that when a case is referred to the juvenile calendar, a summons is then served based 

on §§ 14-1-16, 14-1-17, and Rule 6(e).32 Accordingly, it is our opinion that the administrative 

order, by essentially permitting the child and parents to choose either to participate voluntarily 

and waive service or to avail themselves of the juvenile calendar and its service requirements 

moot plaintiffs’ allegation that the Truancy Court does not properly serve notice upon the child 

and parents.

 32 Rule 6 of the Family Court Rules of Juvenile Proceedings, entitled “Summons,” provides, in 

pertinent part:

“(e) Form for Truancy Court: Upon the filing of a truancy petition 

the court shall issue a summons requiring the child and a parent, or 

guardian, or lawful custodian, or a person with whom the child 

resides to appear at a time and place as written therein for a 

hearing on the petition.”
- 22 -

4

Arraignment

The judicial defendants maintain that the administrative order also negates plaintiffs’ 

constitutional challenges that the magistrates did not arraign children properly. The plaintiffs

insist that their due process rights have been violated because defendants failed to provide 

adequate information regarding individual rights at the arraignment, as is required by Rule 9 of 

the Family Court Rules of Juvenile Proceedings.

However, the administrative order elucidates that the term “arraignment,” although 

perhaps inelegantly employed, nonetheless refers to the initial meeting between the parent, child, 

and magistrate. That occurrence focuses on, and is limited to, describing the program, 

explaining the conditions for participating in the program, and giving the parent and child the 

option of entering the program. Specifically, administrative order 2010-2 states that, at the 

“arraignment,” 

“the Magistrate will read the truancy petition and will explain the 

Rhode Island compulsory school attendance laws as well as the 

requirements of the Truancy Diversion Program consistent with the 

document entitled Participant Guidelines. The Magistrate also will 

explain the child’s right to trial as well as the option for the 

Truancy Diversion program consistent with the form entitled 

Participant’s Forum Choice. The Magistrate will explain the 

Release of Confidential Information to the child and 

parent/guardian.”

In particular, the “Participant Guidelines” provide that “[p]arents/guardians may hire an 

attorney for their child at this proceeding,” and “[i]f a parent/guardian cannot afford an attorney, 

the Court may appoint the public defender or court[-]appointed counsel.” The “Participant 

Guidelines” also specify that the Truancy Court may mete out the following sanctions: “[s]chool 

detention”; “[h]ome curfew”; “[h]ome confinement”; “[c]ounseling”; “[e]ducational, psychiatric 

or psychological testing”; “[c]ommunity service”; “[r]eferral for drug testing and/or treatment or 
- 23 -

referral to the Drug Court calendar”; “DCYF Intervention, services and/or placement if 

necessary”; and “[a]ssignment of the truancy petition to the formal calendar.” Further, the 

“Participant’s Forum Choice” lists the rights of the child, including the “right to a trial by a 

[j]udge”; the “right to appeal to the Rhode Island Supreme Court from any decision or finding of 

waywardness”; the “right to have the petitioner prove each and every element of the offense(s) 

against [him or her] by evidence and by proof beyond a reasonable doubt”; the “right to the 

presumption of innocence”; the “privilege against self-incrimination”; the “right to confront and 

cross-examine the witnesses against [him or her]”; the “right to present evidence and witnesses 

on [his or her] behalf and to testify on [his or her] own defense if [he or she] choose[s] to do so”; 

and the “right to appeal to the Rhode Island Supreme Court from any sentence imposed.”

This procedure mirrors the arraignment procedure specified in Rule 9 of the Rules of 

Juvenile Proceedings, which also requires that the court explain the right to counsel and appoint 

counsel when necessary, as well as 

“(1) the nature of the charges against the child, (2) the maximum 

sentence that could be imposed, (3) the benefit of the presumption 

of innocence, (4) the right to remain silent, (5) the right to confront 

and cross-examine his or her accusers and the witnesses against 

him [or her], (6) the right to testify and to call witnesses in the 

child’s own defense, (7) the right to have the state prove the child’s 

guilt beyond a reasonable doubt, (8) the right to appeal any 

delinquency finding to the Rhode Island Supreme Court, and (9) 

the consequence of trial as an adult for all crimes if a child has 

been twice adjudicated as delinquent by reason of felonies.” Id.

Accordingly, we have no doubt that the administrative order sets out a procedure through which 

adequate information about individual rights, as mandated by Rule 9, is presented at the 

arraignment to the child and parents.
- 24 -

5

Waiver of Constitutional Rights

Before the administrative order was issued, each child was required to sign a “Waiver of 

Rights Form,” which waived “[his or her] right to a trial by a [j]udge and [his and her] right to 

appeal to the Supreme Court from any decision or finding of delinquency or waywardness” and 

“[his or her] right to appeal to the Rhode Island Supreme Court from any sentence imposed by 

the Court after the entry of [his or her] ADMISSION OF SUFFICIENT FACTS or 

ADMISSION.” This has been changed by the administrative order; a child now need only sign 

the “Participant Guidelines” form, which explains the expectations and requirements of both the 

child and parents who participate in the Truancy Court and includes a provision that the parents 

may hire their own attorney to represent their child and that the child or parent may request a 

trial with the formal juvenile calendar; the “Participant’s Forum Choice” form, which delineates 

the child’s various rights depending on whether he or she goes to trial or attends the Truancy 

Diversion Program; and the “Release of Confidential Information” form, which allows the court 

to access any information about any educational or medical issues of the child. If a child or 

parent is unwilling to voluntarily consent, the child is to be referred to the formal juvenile 

calendar and is afforded the substantive protection of the Rules of Juvenile Proceedings. See § 

14-1-16; Rule 6(e). There is no reference to the “Waiver of Rights Form” in administrative order

2010-2, and no child is required to sign such a form.

6

Right to Counsel

The judicial defendants submit that the administrative order moots plaintiffs’ 

constitutional challenge with respect to the right to counsel because the order directs that the 

child and parent will be advised of the right to hire an attorney and it further illuminates about 
- 25 -

how the child or parent might obtain the assistance of counsel. The plaintiffs assert that this is 

not enough; they contend that their due process rights have been violated because defendants 

permit children to waive their right to counsel without first consulting with counsel. They also 

maintain that children are insufficiently protected because the order indicates only that the child 

“may” be referred to the public defender or court-appointed counsel.

In Rhode Island, § 14-1-31, entitled “Services of public defender,” explicitly states that

“[p]rior to the commencement of any hearing, the justice shall 

advise the parent or guardian of any child, or the adult involved, as 

the case may be, that if he or she is financially unable to engage 

counsel, he or she is entitled to the services of the public 

defender.”

Further, it is recognized that a right guaranteed by a statute may be waived, regardless of the 

plain and unambiguous terms by which such right is expressed. Gallucci v. Brindamour, 477 

A.2d 617, 618 (R.I. 1984). Waiver in a criminal context must be voluntary, knowing, and 

intelligent, which a court determines by considering the totality of circumstances and facts 

surrounding a particular case. Wilkicki v. Brady, 882 F. Supp. 1227, 1231-32 (D.R.I. 1995). 

Although a juvenile hearing need not provide all the safeguards of a criminal trial, it “must 

measure up to the essentials of due process and fair treatment.” In re Gault, 387 U.S. 1, 30-31 

(1967) (quoting Kent v. United States, 383 U.S. 541, 562 (1966)); see also In re Fiske, 117 R.I. 

454, 457, 367 A.2d 1069, 1072 (1977).

Administrative order 2010-2 states:

“The parent/guardian and student will be advised that they have the 

right to hire an attorney for the child at any time during the 

Truancy Diversion Program or, if they cannot afford an attorney, 

the case will be scheduled on the formal juvenile calendar in the 

county where the student resides. If a parent/guardian is 

financially unable to engage counsel, the student may be referred 

to the services of the public defender or court[-]appointed 

counsel.”
- 26 -

We are satisfied that the administrative order meets the notice of the right to counsel requirement 

in juvenile proceedings. We are further satisfied that the administrative order properly addresses 

plaintiffs’ concern about the method used to inform the child and parents of the right to counsel, 

while delineating a procedure that facilitates a voluntary, knowing, and intelligent waiver.

7

Personal Jurisdiction

The judicial defendants argue that plaintiffs’ constitutional challenge for lack of personal 

jurisdiction is rendered moot because the administrative order is pointed and specific that 

participation in the Truancy Diversion Calendar is voluntary. They declare that the 

administrative order sufficiently explains that if the child or his or her parents contest 

jurisdiction, the matter will be referred to the formal juvenile calendar, which will issue a 

summons to the child and parent. The plaintiffs assert that the magistrates are required to ensure 

that a proper summons is issued before any order is entered against a child or parent, but that the 

magistrates have failed to comply with that obligation. 

As discussed above, § 14-1-1133 states that the filing of a truancy petition constitutes 

assumption of jurisdiction over the child, and § 14-1-16 dictates that a summons should be issued 

to the child and at least one parent. Administrative order 2010-2 is clear that participation in the 

program is voluntary; indeed, the order states that the magistrate must “explain the child’s right 

 33 Section 14-1-11(a), entitled “Authoring and filing petition” states,

“The filing of the petition constitutes assumption of jurisdiction 

over the child. Filing shall take place upon authorization by the 

intake department upon completion of its procedures pursuant to 

Rule 3 of the Rules of Juvenile Proceedings, upon authorization by 

a justice of the [F]amily [C]ourt pursuant to Rule 4 of the Rules of 

Juvenile Proceedings, or immediately upon appearance of the child 

before the court following emergency detention, unless the court 

otherwise orders.”
- 27 -

to trial as well as the option for the Truancy Diversion Program.” See Theta Properties, 814 

A.2d at 912-13; Lundgren v. Pawtucket Firefighters Association Local No. 1261, 595 A.2d 808, 

816 (R.I. 1991) (party who defends a claim without objecting to court’s lack of personal

jurisdiction waives that jurisdictional defense). It is apparent that since the issuance of the 

administrative order, a parent and child are free to choose to decline to participate in the 

Diversion Program. If they do, or if they contest jurisdiction, then the court will issue a 

summons to the child in accordance with § 14-1-16 and Rule 6, and to the parent pursuant to § 

14-1-16 and Rule 6(d)-(e). Indeed, administrative order 2010-2 specifically explains that “[i]f 

the student or parent does not appear at the Truancy calendar, a summons may be issued for the 

child and parent/guardian to appear.” It is, accordingly, our opinion that any shortcomings about 

the establishment of personal jurisdiction arising from the operation of the Truancy Court have 

been remedied by the administrative order.

8

Record of the Proceedings

Administrative order 2010-2 directs that “[a]ll Truancy Diversion Program hearings will 

be recorded.” As a result, the judicial defendants argue that plaintiffs’ complaints about the lack 

of a record have become moot. By contrast, plaintiffs insist that the administrative order does 

not moot the claim because the order does not state how the hearings will be recorded or whether 

the records will be verbatim. The plaintiffs argue that § 8-10-3(b)34 supports their contention 

that failing to provide a stenographic or other verbatim record of all proceedings before the 

Truancy Court is a violation of plaintiffs’ rights. However, the judicial defendants assert that 

stenographic recordings of the Truancy Court proceedings are not required, because appeals 

 34 Section 8-10-3(b) provides that “[t]he [F]amily [C]ourt shall be a court of record and shall 

have a seal which shall contain such words and devices as the court shall adopt.” 
- 28 -

from the Truancy Court go to the chief judge for a full hearing de novo, as was set forth in 

Family Court administrative order 2008-1, which describes the procedure to appeal a finding of a 

Family Court magistrate. 

It is now crystal clear that “[a]ll Truancy Diversion Program hearings will be recorded.” 

It is true that § 8-10-37, entitled “Report of trials—Transcripts,” states “[s]ubject to the 

provisions of § 8-10-21, court reporters shall report stenographically * * * the proceedings in the 

trial of every action or proceeding, civil or criminal, in the [F]amily [C]ourt.” It is also true, as 

plaintiffs’ allege, that no stenographic transcriptions or audio recordings took place in the 

truancy proceedings at the time the complaint was filed. However, the promulgation of the 

administrative order has cured that affliction because the administrative order specifically 

requires the hearings to be recorded. In our judgment, the fact that Truancy Court proceedings 

are audio recorded, and not stenographically recorded, is sufficient.

9

Interpreters

The judicial defendants contend that plaintiffs’ constitutional challenge to the 

appointment of interpreters has been rendered moot because the administrative order explains 

that the magistrates have discretion to determine when an interpreter should be made available 

for a child who is before the court and who may not be sufficiently fluent in English. The 

plaintiffs disagree; they say that the administrative order does not moot the claim, positing that 

interpreters should be provided to all individuals appearing before the Truancy Court, because 

the magistrates may not know whether a participant is in need of an interpreter without an 

interpreter.

Administrative order 2010-2 states that “Magistrates will assess the need for interpreters 

taking into account the participant’s desire for such services and ensure that interpreters be 
- 29 -

provided for each Court session if necessary. This may include referring a case to the formal 

juvenile calendar.” The plaintiffs contend that it is inappropriate for the magistrates to have 

discretion to assess the needs for an interpreter. An interpreter, they say, should be present and 

available to all who come before the court. This Court has held “that a trial justice is entrusted 

with the discretion to appoint an interpreter if he or she determines that a defendant is unable to 

understand the English language adequately * * *.” State v. Ibrahim, 862 A.2d 787, 798 (R.I.

2004). We have long held that a trial justice is granted a wide degree of discretion in the 

“selection, appointment, and retention of an interpreter.” State v. Lopez-Navor, 951 A.2d 508, 

513 (R.I. 2008) (quoting State v. Deslovers, 40 R.I. 89, 115, 100 A. 64, 73 (1917)). 

Accordingly, it is our opinion that the administrative order passes constitutional muster with 

respect to the accessibility and use of interpreters.

10

Ex Parte Communication

Even though the issue of ex parte communication was not directly addressed in the 

administrative order, defendants argue that doing so was not necessary because the Diversion 

Program was designed to provide a non-adversarial means for the resolution of truancy petitions. 

We agree that the administrative order does not directly address plaintiffs’ concerns with ex parte

communication. However, we fully expect that the judicial officers of the Family Court will be 

faithful to the law on ex parte communication, as set forth in Arnold v. Lebel, 941 A.2d 813, 

819-21 (R.I. 2007).35 We are confident that the Family Court will abide by this binding and well 

established law, and to the Code of Judicial Conduct, relating to ex parte communication.

 35 In Arnold v. Lebel, 941 A.2d 813, 819-21 (R.I. 2007), we held that, under the Administrative 

Procedures Act, Department of Human Services (DHS) hearing officers were prohibited from 

engaging in ex parte communications concerning adjudicatory facts with DHS staff members and 

outside resources about medical assistance applicants’ pending cases without giving applicants 
- 30 -

11

Conclusion on Mootness of Plaintiffs’ Claims

After a review of the ten constitutional challenges raised in plaintiffs’ complaint, we are 

satisfied that they have been obviated by the administrative order and by existing law. Further, 

plaintiffs do not argue that the administrative order has not been properly adopted or 

implemented by the Family Court. Thus, plaintiffs’ request that the Superior Court declare the 

previous procedures in the Truancy Court to be unconstitutional and enjoin the Family Court 

from enforcing the prior procedures has become moot. 

B

Mootness Exceptions

As an additional arrow in their quiver on the issue of mootness, plaintiffs maintain that 

the “extreme public importance capable of repetition yet evading review” exception to mootness 

applies here, because there can be no assurance that the Family Court will not revert to the earlier 

version of the administrative order when this litigation has come to an end. The defendants 

respond by arguing that the claims are not capable of repetition because the administrative order 

is binding. The defendants further argue that the claims will not evade review because, if the 

Truancy Court personnel do not comply with the administrative order, a litigant may pursue an 

appeal under §§ 14-1-52 or 8-1-2 to the Supreme Court or under § 8-10-3.1(d) and (e) or the 

Rhode Island Family Court Administrative Order 2008-1 to a judge of the Family Court and then 

to the Supreme Court.

We have held that “[t]his Court will review an otherwise moot case only when the issues 

are ‘of extreme public importance, which are capable of repetition but which evade review.’” 

 

an opportunity to challenge the information gleaned through such communications. We also 

recognized that ex parte communication is authorized for general or purely administrative 

matters pertaining to the discharge of a duty, such as procedural or timing matters. Id. at 821. 
- 31 -

Campbell v. Tiverton Zoning Board, 15 A.3d 1015, 1022 (R.I. 2011) (quoting H.V. Collins Co.,

990 A.2d at 848). “Issues of extreme public importance usually ‘implicate important 

constitutional rights, matters concerning a person’s livelihood, or matters concerning citizen 

voting rights.’” Id. (quoting H.V. Collins Co., 990 A.2d at 848). A case is “capable of repetition 

yet evading review” if there is a “reasonable expectation that the same complaining party would 

be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The 

“same action” generally refers to particular agency policies, regulations, guidelines, or recurrent 

or identical agency actions. Public Utilities Commission of California v. F.E.R.C., 236 F.3d 708, 

715 (D.C. Cir. 2001). We have cautioned, however, that this exception for issues of extreme 

public importance capable of repetition but evading review is “a narrow exception to the 

mootness doctrine.” Campbell, 15 A.3d at 1022 (quoting In re Westerly Hospital, 963 A.2d 636, 

638 (R.I. 2009) (mem.)). 

Here, to the extent that the issues in this case were once of extreme public importance, 

the chief judge of the Family Court has addressed them by establishing the proper procedures for 

the Truancy Court via the administrative order. See Cicilline, 809 A.2d at 1106. 

As to the issue of whether the matter is capable of repetition, it is well recognized that 

“[a] defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to 

moot a case.” Friends of the Earth, Inc., 528 U.S. at 174. Indeed, there may be an exception if 

there is a “substantial likelihood that the challenged statutory language will be reenacted,” or

where the statute is replaced by a statute with narrower but still similar language. Coral Springs 

Street Systems, Inc. v. City of Sunrise, 371 F.3d 1320, 1329-30 (11th Cir. 2004). This likelihood 

exists when, for example, a defendant has signaled an intention to reenact the challenged 
- 32 -

statutory language, or where it has already been replaced by “another constitutionally suspect 

law.” Id. at 1330.

However, defendants have not signaled any intention to, or made any threat to, reenact a 

suspect administrative order; therefore, injunctive and declaratory relief are mooted. See Bench 

Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012) (citing City of Mesquite v. 

Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982), Kentucky Right to Life, Inc. v. Terry, 108 F.3d 

637, 644 (6th Cir. 1997), and Brandywine, Inc. v. City of Richmond, Kentucky, 359 F.3d 830, 

836 (6th Cir. 2004)). Further, “‘cessation of the allegedly illegal conduct by government 

officials has been treated with more solicitude by the courts than similar action by private 

parties,’ and * * * ‘such self-correction provides a secure foundation for a dismissal based on 

mootness so long as it appears genuine.’” Bench Billboard Co., 675 F.3d at 981 (quoting Mosley 

v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990)). Thus, “[a] declaratory judgment on the validity 

of a repealed ordinance is a textbook example of ‘advising what the law would be upon a 

hypothetical state of facts.’” National Advertising Co. v. City and County of Denver, 912 F.2d 

405, 412 (10th Cir. 1990) (quoting Blinder, Robinson & Co. v. United States Securities and 

Exchange Commission, 748 F.2d 1415, 1418 (10th Cir. 1984)).

In the dispute before us, there is no argument offered that there is any indication 

whatsoever that the Family Court has any intention of reinstating the previous practices about 

which plaintiffs’ complained. See, e.g., Covenant Christian Ministries, Inc. v. City of Marietta, 

Georgia, 654 F.3d 1231, 1239 (11th Cir. 2011) (“When a party challenges an ordinance and 

seeks injunctive relief, a superseding ordinance moots the claim for injunctive relief.”); National 

Advertising Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (“[T]he Supreme Court 

ha[s] repeatedly held that the repeal or amendment of an allegedly unconstitutional statute moots
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legal challenges to the legitimacy of the repealed legislation.”). The general assumption that an 

agency will be faithful to its own regulations, therefore, stands. See Friends of the Earth, Inc. v. 

Environmental Protection Agency, 446 F.3d 140, 148 (D.C. Cir. 2006). 

Further, it is significant that this case does not involve a short-term administrative order,

the subject of which might be an issue that is “capable of repetition, yet evading review.” 

Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 179 (1968) (quoting 

Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (1910)). 

The plaintiffs offer no reason to expect that the Family Court will repeat the alleged 

constitutional violations that were superseded by the administrative order. It is speculative, at 

best, whether any unconstitutional procedures may recur in the future. See Cicilline, 809 A.2d at 

1106. This Court also must presume that the Family Court forthrightly will abide by its 

administrative order and properly consider the full impact of any future administrative orders.

Finally, even if the matter is capable of repetition, it would not evade review; there are 

many avenues for a plaintiff to appeal. Determinations by Truancy Court magistrates are 

reviewable by statute, and thus hardly evade review. See § 8-10-3.1(d), (e) (“A party aggrieved 

by an order entered by a magistrate shall be entitled to a review of the order by a justice of the 

[F]amily [C]ourt. * * * Final orders of the [F]amily [C]ourt entered in a proceeding to review an 

order of a magistrate may be appealed to the [S]upreme [C]ourt.”); see also Family Court 

Administrative Order 2008-1 (clarifying the right to appeal Truancy Court determinations to a 

justice of the Family Court). Further review is also available in the Supreme Court, under § 14-

1-52(a), which states that “[f]rom any final decree, judgment, order, decision, or verdict of the 

[F]amily [C]ourt * * * there shall be an appeal to the [S]upreme [C]ourt,” and § 8-1-2, which 

provides that “[t]he [S]upreme [C]ourt shall have general supervision of all courts of inferior 
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jurisdiction to correct and prevent errors and abuses therein when no other remedy is expressly 

provided * * *.” Accordingly, plaintiffs have not met the difficult burden of showing that the 

circumstances which gave rise to the controversy in this case, although moot, are of extreme

public importance capable of repetition yet evading review, rendering this case unreviewable. 

Thus, there is no exception to the mootness doctrine that would justify our deciding this case on 

its merits.

We hold that there are no ongoing truancy petitions that continue to be affected by the 

earlier Truancy Court procedures; this Court finds no ongoing controversy in which the plaintiffs 

have an articulable stake. See H.V. Collins, 990 A.2d at 848 (requiring articulable stake in 

outcome). Granting the plaintiffs’ requested relief would not have any significant effect. See

Lynch, 994 A.2d at 71 (explaining that a question is moot if judgment would have no practical 

effect on the controversy). Accordingly, we hold that the plaintiffs’ claims have become moot, 

and because we so hold, we need not, and do not, reach the other issues raised in this case.

36

 36 We pause to acknowledge, however, that, although we decide this case on grounds of 

mootness, it is our belief based on the existing record that the Family Court would have been the 

more appropriate forum to review the challenges raised in plaintiffs’ complaint. Comity permits, 

but does not require, a court to stay a pending proceeding if a case involving the same parties and 

subject matter is pending in another court with overlapping jurisdiction. See Halliwell v. Lippitt 

Realty Co., 120 R.I. 927, 927, 394 A.2d 708, 709 (1978). Comity is a flexible doctrine that rests 

on several principles, including “foster[ing] cooperation, promot[ing] harmony, and build[ing] 

goodwill” among co-equal courts. 16 Am. Jur. 2d Conflict of Law § 11 at 25 (2009). It serves

as “a necessary expedient to preserve the delicate balance of power and harmonious relations 

among the various courts.” Id.; see United States v. Nippon Paper Industries Co., 109 F.3d 1, 8 

(1st Cir. 1997) (“Comity is more an aspiration than a fixed rule, more a matter of grace than a 

matter of obligation.”). We further acknowledge that the trial justice may well have come to the 

same conclusions in this case as did this Court. However, the case was reviewed by this Court at 

an early stage pursuant to our issuance of a writ of certiorari.

Here, the Superior Court was asked to make a ruling that could have found prior 

proceedings in the Family Court to have been invalid. In our opinion, and although we do not 

decide the matter on that basis, this cuts against the grain of the effective administration of 

justice and the principle of respect among the various courts of concomitant jurisdiction. 
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Conclusion

For the reasons set forth in this opinion, we quash the order of the Superior Court and 

remand the record to that tribunal, with our decision endorsed thereon and with directions to 

enter a final judgment dismissing the plaintiffs’ civil action as moot.

Justice Goldberg did not participate.
RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet 

TITLE OF CASE: Elizabeth Boyer et al. v. Chief Judge Haiganush Bedrosian et al. 

 

CASE NO: No. 2010-369-M.P. 

 No. 2010-414-M.P. 

 (PC 10-1858) 

 

COURT: Supreme Court 

DATE OPINION FILED: December 12, 2012 

JUSTICES: Suttell, C.J., Flaherty, Robinson, and Indeglia JJ. 

WRITTEN BY: Associate Justice Francis X. Flaherty 

SOURCE OF APPEAL: Providence County Superior Court 

JUDGE FROM LOWER COURT: 

 Associate Justice William E. Carnes, Jr. 

ATTORNEYS ON APPEAL: 

 For Plaintiffs: Thomas W. Lyons, Esq. 

For Defendants: 

 Michael B. Forte, Esq. 

 James R. Lee, Department of Attorney General