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.- 1

- Supreme Court No. 2010

- 369

- M.P. No. 2010

- 414

- M.P. (PC 10

- 1858)
Elizabeth Boyer et al. :

v. : Chief Judge Haiganush Bedrosian 1 et al. :

Present: Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ. O P I N I O N Justice Flaherty, for the Court. The plaintiffs include fifteen minor children and their parents 2 who participated in the Family Court’s Truancy Court Diversion Calendar Program. The Di version 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 Fami ly 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, Dento n 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., individual ly, an d 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.- 2

- 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 th e superintendents, in their official capacities, of the public school districts for the five municipalities. 5 The p laintiffs contended that their constitutional rights were being violated as a result of procedural errors occurring during th e 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, a dministrator of the Family Court, and Kevin Richard, director of j uvenile s ervices of the Family Court. 5 The p laintiffs 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 beha vior. 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 ci tizen 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 ta ken in such officer’ s- 3

- the Superior Court Rules of Civil Procedure, 7 and a motion to strike under Rule 12(f) , 8 and the ad ministrator defendants filed a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6), but the trial justice denied the motions. The a dministrator 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 Sup erior 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 Superi or Court’s order denying defendants’ motions to dismiss.

judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory rel ief 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 , entit led “ Defenses and o bjections

— When and how presented

— B y p leading or m otion

— Motion for j udgment on p leadings ,” 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 u pon 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 u pon 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. ”- 4

- 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 , N o. 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

m agistrates to conduct court sessions at schools with frequently truant children. 9 The Truancy Court was intended to facilitate collaboration between the Family Court, schools, and service providers to ensure that children and their parents 10 received guidance and appropriate services within their own neighborhoods, quickly, efficiently, and effectively. As set forth in the later

- issued Family Court Administrative Order 2010

- 2, discussed infra , Part I, section C, “[t]he purpose of the Rhode Island Family Court Truancy calendar [was] to reduce truancy statewide,” and “ensure that students not only attend[ed] school but also receive[d] the rehabilitative services and educational services that [would] help to assure school attendance and academic success.” To effectively carry out the purpose of the program, each child alleged to have been truant was given a choice between admitting to a truancy violation, thereby gain ing 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 o f reference.- 5

- 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 m agistrate’s order to the c hief j udge of the Family Court under a statutory right of appeal pursuant to G.L. 1956 § 8

- 10

- 3.1(d), 11 further amplified by Family Court Administrative Order
2008

- 1. 12 The children and parents also were imbued with a statutory right to file a declaratory judgment in the Family Court under G.L. 1956 § 9

- 30

- 1. 13 Finally, a child and parent could seek further review in this Court under G.L. 1956 § 8

- 1

- 2 14 or G.L. 1956 § 14

- 1

- 52(a). 15
B Superior Court Decision On March 29, 2010, plaintiffs initiated an action in the Superior Court by filing a proposed class action complaint 16 and civil rights lawsuit under 42 U.S.C. § 1983. The p laintiffs 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 th e same day,

11 General L aws 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 p roceedings on appeal from the g eneral m agistrate and any magistrate of the Rhode Island Family Court. Specif ically, the order states that, under the authority of the chief judge of the Family Cou rt 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 F amily Court shall be heard by the Chief Judge of the Rhode Island F amily Court.” 13 General L aws 1956 § 9

- 30

- 1 state s , in pertinent part , that “[t]he * * * [F]amil y [C] ourt * * * shall have power to declare rights, status, and other legal relation s whether or not further relief is or cou ld be claimed.” 14 General L aws 1956 § 8

- 1

- 2 provides, in pertinent part, that “[t]he [S]upreme [C] ourt shall have general supervisi on of all courts of inferior jurisdiction to correct and prevent errors and abuses therein when no oth er remedy is expressly provided * * *. ” 15 General L aws 1956 § 14

- 1

- 52(a) states, in pertinent part, that “[f]rom any final decree, judgment, order, deci sion, or verdict of the [F]amily [C] ourt, * * * there shall be an appeal to the [S]upreme [C] ourt * * * .” 16 The p laintiffs 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.- 6

- 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 t he United States Constitution, and article 1, section 2 of the Rhode Island Constitution, the Rhode Island General Laws, the Family Court Rules of Juvenile
Pro ceedings , 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 Tr uancy Court, * * * [and] “[5] fail[ed] to keep and provide to the Plaintiffs a verbatim record of all proceedings before the Truancy Court.” The p laintiffs 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 p laintiffs do not challenge their underlying adjudications or obligations to the Family Court.- 7

- “[2] fail[ed] to conduct a preliminary investigation to determine whether submitted petitions [were] legally sufficient on their face and whether further action [was] in the best interest of the public and the child * * * .” On May 24, 2010, the administrator defendants filed a motion to dismiss the complaint, alleging that the Superior Court lacked subject

- matter jurisdiction over plaintiffs’ claims and that plaintiffs had failed to state a claim upon which relief could be granted. See Rule 12(b )(1), (6). On May 25, 2010, the judicial defendants also moved to dismiss the complaint, pursuant to Rule 12(b)(1), 18 and moved to strike three of plaintiffs’ claims for injunctive relief 19 and plaintiffs’ request for attorneys’ fees under Rule 12(f). The trial justice heard oral arguments on defendants’ motion s to dismiss and motion to strike, but before he rendered a decision, Chief Judge Bedrosian 20 promulgated a dministrative o rder 2010

- 2 on September 10, 2010. C Administrative Order 2010
- 2 Chief Judge B edrosian’s a dministrative o rder set out written procedures that dramatically reformed the Truancy Court Diversion Calendar Program. With regard to the intake guidelines for truancy petitions, a dministrative o rder 2010

- 2 mandated that “all truancy petition s 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, th e j udicial d efendants sought to strike two of p laintiffs’ claims against the c hief j udge , which included allegations that the c hief j udge allow ed the Intake Department to file truancy petit ions prior to investigation and allow ed 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 ha d no jurisdiction. 20 Chief Judge Bedrosian was appointed to lead the Family Cour t after Chief Judge Jeremiah retired.- 8

- 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 ac tion,” which included referring the case to the truancy calendar or to the formal juvenile calendar. A dministrative

o rder 2010

- 2 also added a threshold requirement that a student must “[have] at least 10 days of absences and/or [the petition] state[d] tha t a student [was] habitually late or absent from school” before the Intake Department could refer a case to the t ruancy calendar. Under the terms of the o rder, 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 v alid 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
t ruancy calendar, o rder 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 requi ring 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.”- 9

- The a dministrative o rder 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 P rogram or proceed to an arraignment on the forma l juvenile calendar in Family Court. The o rder 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 Progra m, 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 wit h 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

a dministrative o rder dictated that a summons could be issued. If a child agreed to participate in the t ruancy program, o rder 2010

- 2 required that three documents be signed: (1) “Participant Guidelines,” (2) “Participant’s Forum Choice,” and (3) “Release of Confidential Information.” The o rder 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 whe n the family was unable to afford the services of counsel, the matter could be placed on the formal ju venile calendar and, if appropriate, the child would be referred to the services of the public defender or court

- appointed counsel. O rder 2010

- 2 added that “Magistrates will assess the need for interpreters” and “[a]ll Truancy Diversion Program hearings w ill be recorded.” Lastly, the o rder explained that after a- 1 0

- magistrate found the child had substantially complied with the p rogram’s requirements, he had the authority to dismiss the truancy petition. 22
D Superior Court Law Suit On October 8, 2010, the tr ial 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 heari ng. E Writ of Certiorari On October 25, 2010, in a preemptive strike before an evidentiary hearing was scheduled, the administrator defendants filed a pet ition for a writ of certiorari. The j udicial defendants filed a separate petition for a writ of cer tiorari 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 sub ject

- 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 a dministrative o rder 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; sub stitute then

- a cting 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 c hief j udge of the Family Court, court administrators, and Truancy Court magistrates. The p laintiffs 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 n ot necessary to enable Supreme Court review).- 11

- Family Court has exclusive original jurisdiction. Alternatively, they con tend 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 plaintif fs’ 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 a dministrative o rder 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 Famil y 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 S tates 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 pend ing in the Truancy Court, and, therefore, according to them, standing is at issue. As

25 The judicial defendant s acknowledge that plaintiff s’ challenge to the ex parte communication s between the magistrates and school administrators was not specifically addressed in the a dministrative o rder; howe ver, they argue that Truancy Court proceedings are not adversarial and, therefore, the magistrates may properly communicate with school administrators to gather information.- 12

- 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, p laintiffs maintain that the case was brough t 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
p laintiffs also contend they have standin g because the case should be addressed in the context of the proposed class action. The p laintiffs argue that defendants have waived any claim of mootness, because they did not raise it before the Superior Court. Also, plaintiffs assert that their compla int is not moot because the a dministrative o rder does not address all of the constitutional challenges that they raised in their complaint. Finally, p laintiffs entreat this Court to hold that comity does not apply because they do not seek to collaterally attack any order of the Truancy Court m agistrates. 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 adju dicate 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 , 99 3 F. Supp. 45, 46 ( D.R.I. 1998))

. A- 13

- 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 fai ls to state a claim upon which relief can be granted. In reviewing a justi ce’ 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 unde r 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 overarchin g 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 plai ntiffs 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 Cour t’s subject

- matter jurisdiction )

.- 14

- 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 p laintiff’s stake in a case is not frozen at the moment th e 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, strippe d 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 p laintiffs 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., ind ividually, and by and for her minor daughter, Tina H.; Susanne R., individually, an d 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.; an d Tamara Morgan, individually, and by and for her minor son, Henry Morgan

- Massimo. The following p laintiffs did not have standing to bring suit, however, as they were either dismissed or transferred from the Truancy Court before the complaint was filed: E lizabeth 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, 13 76 (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. 9 5, 111 (1983) )

.- 15

- A Mootness The j udicial defendants argue that plaintiffs’ claims for declaratory and injunctive relief are moot because the prac tices in the Truancy Court about which they complained are no longer in effect since the a dministrative o rder was issued. On the other hand, plaintiffs contend that mootness was not raised at the time of the Superior Court hearing, and that, therefore, th e issue has been waived. Alternatively, plaintiffs maintain that the a dministrative o rde r 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 bef ore 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 declarato ry 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 fa il 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 i f the original complaint raised a justiciable controversy, but events occurring after the filing have deprived the litigant of a conti nuing stake in the controversy. ” State v. Medical Malpractice Joint Underwriting Association , 941 A.2d 219, 220 (R.I. 200 8) (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) (citin g 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 p rior 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 meaningf ul 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 a dministrative o rder 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 p laintiffs insist, however, that the a dmi nistrative o rder, 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 principa lly 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 Co urt Order Dated October 22, 2003 , 886 A.2d 342, 348 (R.I. 2005) (quoting Foster

- Glocester Regional Scho ol 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 t hus 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 intelligen t 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 Trua ncy Court procedures or under G.L. 1956 § § 16

- 19

- 1 29 and 16

- 19

- 6 30 as to the number of absences from school that were necessary to incur possible liability as a truant. However, the a dministrative o rder specifies a threshold number of ten days of absence be fore a child may be referred either to the Diversion Program or to the formal juvenile calendar. Indeed, a dministrative o rder 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 L aws 1956 § 16

- 19

- 1, entitled “Attendance required ,” provides that “[e]very child who has completed or will have comple ted 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 i n 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 himsel f 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 Diversi on Program. See Moreau , 15 A.3d
at 583 ( holding that a statute is not uncons titutionally vague if it gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly ).
A dministrative o rder 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 “writ ten 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 m eeting 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 a dministrative o rder, we hold that its specific a nd 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’ constituti onal challenge to the sufficiency of the notice requirement has been mooted by the a dministrative o rder.
2 Preliminary Investigation The judicial defendants further argue that the a dministrative o rder blunts plaintiffs’ complaint because it sets out a detailed procedure for a preliminary investigation. The p laintiffs- 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 forestal l 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 a dministrative o rder safeguards children from arbitrary bureaucratic action and that the Family Court, through its a dministrative o rder, has a dhered to the st atutory requirements. Indeed, o rder 2010

- 2 provides that “all truancy petitions shall be referred to the RI Family Court Intake Department for a preliminary investigation.” The a dministrative o rder also clarifies how the Intake Department shall determine if sufficient evidence and documentation exists to bring a child within the jurisdiction of the court. A dministrative o rder 2010

- 2 specifically cites to § 8

- 10

- 22, entitled “Intake department

— Duties,” which states that the duties of the I ntake 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 o f 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 a dministrative o rder also cites to Rule 3 of the Family Court Rules of Juvenile Proceedings, entitled “Intake procedure,” which requires that after a pet ition 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 inter ests 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 w hich 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 a dministrative o rder then expound s 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 work er 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 a dministrative o rder, we are completely comfortable t hat a sufficient preliminary investigation procedure is now in place. 3 Summons The judicial defendants aver that the a dministrative o rder 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 p laintiffs respond that formal sum monses are required under Rule 6 of the Family
Court Rules of Juvenile Pr oceedings and §§ 14

- 1

- 16 and 14

- 1

- 17, and that no requisite summonses were used. The a dministrative o rder directs that a child and parent may “choose” to participate in the Truancy Progra m. 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). Adm inistrative o rder
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 pa rent/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 a dministrative

o rder, 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,” prov ides, 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 a dministrative o rder also negates plaintiffs’ constitutional challenges that the m agistrates did not arraign children properly. The p laintiffs insist that their due process rights have been violated because defendants failed to provide adequate information regarding indi vidual rights at the arraignment, as is required by Rule 9 of the Family Court Rules of Juvenile Proceedings. However, the a dministrative o rder elucidates that the term “arraignment,” although perhaps inelegantly employed, nonetheless refers to the initia l 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. Sp ecifically, administrative o rder 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 cons istent 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 p arent/guardian cannot afford an attorney, the Court may appoint the public defender or court [

- ] appointed counsel.” The “Participant Guidelines” also specif y 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

ne cessary”; and “[a]ssignment of the truancy petition to the formal calendar.” Further, the
“P articipant’s Forum Choice” list s 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 fro m 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 “privileg e 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 counse l 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 a nd 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 appe al 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 a dministrativ e o rder 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 a dministrative o rder 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 app eal 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 a dministrative o rder; a child now need only sign the “Participant Guidel ines” 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 juvenil e 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 a dministrative o rder
2010

- 2 , and no child is required to sign such a form. 6 Rig ht to Counsel The judicial defendants submit that the a dministrative o rder 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 p laintiffs assert that this is not enough; they contend that their due process rights have been violated because defendants permit children to waive thei r right to counsel without first consulting with counsel. They also maintain that children are insufficiently protected because the o rder 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. Gallucc i 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 , 88 2 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 I n re Fiske , 117 R.I. 454, 457, 367 A.2d 1069, 1072 (1977). Administrative o rder 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 i n 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 a dministrative o rder meets t he notice of the right to counsel requirement in juvenile proceedings. We are further satisfied that the a dministrative o rder properly addresses plaintiffs’ concern about the method used to inform the child and parents of the right to counsel, while delin eating 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 a dministrativ e o rder is pointed and specific that participation in the Truancy Diversion Calendar is voluntary. They declare that the

a dministrative o rder sufficiently explains that if the child or his or her parents contest jurisdiction, the matter will be referred t o the formal juvenile calendar, which will issue a summons to the child and parent. The p laintiffs 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 magis trates have failed to comply with that obligation. As discussed above, § 14

- 1

- 11 33 states that the filing of a truancy petition constitutes assumption of jurisdiction over the child, and § 14

- 1

- 16 dictates that a summons should be issued to the c hild and at least one parent. Administrative o rder 2010

- 2 is clear that participation in the program is voluntary; indeed, the o rder 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 aut horization by a justice of the [F]amily [C] ourt pursuant to Rule 4 of the Rules of Juvenile Proceedings, or immediately upon appeara nce 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

a dministrative o rder, 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, a dministrative o rder 2010

- 2 specifically explains that “[i]f the student or parent does not appear at the Truancy calendar, a summons may be issue d 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 a dministrative o rder. 8 Record of the Proceedings Administrative o rder 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, p laintiffs insist that the a dministrative o rder 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 p laintiffs argue that § 8

- 10

- 3(b) 34 supports their contention that failin g 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 t he court shall adopt.”- 28

- from the Truancy Court go to the c hief j udge for a full hearing de novo , as was set forth in Family Court a dministrative o rder 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

a dministrative o rder has cured that affliction because the a dministrative o rder specifically requires the hearings to be recorded. In our judgment, the fact that Truancy Court proceedings are aud io 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 a dministrative o rder explains th at the magistrates have discretion to determine when an interpreter should be made available for a child who is before the c ourt and who may not be sufficiently fluent in English. The
p laintiffs disagree; they say that the a dministrative o rder does not mo ot 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.
A dministrative o rder 2010

- 2 s tates 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 juve nile calendar.” The p laintiffs 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 hel d “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 a dministrative o rder 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

a dministrative o rder, 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 th e a dministrative o rder 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. Leb el , 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, 8 19

- 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 a dministrative o rder and by existing law. Further, plaintiffs do not argue that the a dministrative o rder 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 a dministrative o rder when this litigation has come to an end. The d efendants respond by arguing that the claims are not capable of repetition because the a dministrative o rder is binding. The d efendants further argue that the claims will not evade review because, if the Truancy Court personnel do not comply with the a dministrative o rder, a litigant may pursue an appeal under §§ 14

- 1

- 52 or 8

- 1

- 2 to the Supreme Court or under § 8

- 1 0

- 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 impor tance, which are capable of repetition but which evade review.’”
an opportunity to challenge the information gleaned through such communications. We also recognized tha t 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 constitution al rights, matters concerning a person’s livelihood, or matters co ncerning 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. Pub lic Utilities Commissio n 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 rep etition 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 on c e of extreme public importance, the c hief j udge of the Family Court has addressed the m by establishing the proper procedures for the Truancy Court via the a dministrative o rder. 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 Sy stem s , 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 signal ed 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. Aladd in’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 co nduct 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.’” Benc h 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, th ere 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, Georgi a , 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- 33

- legal challenges to the legitimacy of the repealed legislation.”). The general assumption that an agency will be faithful to its own regu lations, 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 b e an issue that is “capable of repetition , yet evading review.” Carroll v. President and Commissioners of Princess Anne , 393 U.S. 175, 1 79 (1968) (quoting Southern Pacific Terminal Co. v. Interstate Commerce Commission , 219 U.S. 498, 515 (1910)). The p laintiffs offer no reason to expect that the Family Court will repeat the alleged constitutional violations that were superseded by the a dministrative o rder. It is speculative, at best, whether any unconstitutional procedures may recur in the future. See Cicilline , 809 A.2d at 1106. This Court a lso must presume that the Family Court forthrightly will abide by its

a dministrative o rder and properly consider the full impact of any future a dministrative o rders. Finally, even if the matter is capable of repe tition, it would not evade review; there are many avenues for a plaintiff to appeal. Determinations by Truancy Court m agistrates 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 C ourt 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, judgmen t, 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- 34

- 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 i n 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 plai ntiffs’ 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’ comp laint. 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, 3 94 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 b y 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 ou r 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.- 35

- 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 p laintiffs’ civil action as moot.
J ustice Goldberg did not participate.

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### Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Elizabeth Boyer et al. v. Chief J udge 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, Depa rtment of Attorney General