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SJC-12314

COMMONWEALTH vs. ORBIN O., a juvenile.

Berkshire. November 7, 2017. - February 5, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

Delinquent Child. Probable Cause. Juvenile Court, Delinquent 

child. Practice, Criminal, Juvenile delinquency 

proceeding, Complaint, Show cause hearing, Dismissal.

Complaint received and sworn to in the Berkshire County 

Division of the Juvenile Court Department on April 14, 2016.

A motion to dismiss was heard by Judith A. Locke, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Kyle G. Christensen, Assistant District Attorney (Joseph A. 

Pieropan, Assistant District Attorney, also present) for the 

Commonwealth.

Afton M. Templin for the juvenile.

The following submitted briefs for amici curiae:

Miriam H. Ruttenberg, Jennifer Honig, & Phillip Kassel for 

Mental Health Legal Advisors Committee & others.

Ryan M. Schiff, Committee for Public Counsel Services, & 

Joseph N. Schneiderman for Youth Advocacy Division of the 

Committee for Public Counsel Services.

Daniel F. Conley, District Attorney for the Suffolk 

District, & John P. Zanini, Assistant District Attorney, for 
2

District Attorney for the Suffolk District.

GANTS, C.J. In Commonwealth v. Newton N., 478 Mass. , 

(2018), also decided today, in which a police officer applied 

for and obtained a delinquency complaint, we held that, "where a 

prosecutor exercises his or her discretion to proceed to 

arraignment on a delinquency complaint supported by probable 

cause, the judge may not dismiss the complaint before 

arraignment on the grounds that dismissal of the complaint is in 

the best interests of the child and in the interests of 

justice." We consider here whether that same limitation on 

judicial authority in deciding a motion to dismiss applies to a 

delinquency complaint brought by a private party under G. L. 

c. 218, § 35A, where a clerk-magistrate issued the complaint 

after finding probable cause. We conclude that this same 

limitation applies only where the prosecutor has affirmatively 

adopted the private party's complaint by moving for arraignment. 

In cases where the prosecutor has not so moved, a judge 

considering a juvenile's motion to dismiss prior to arraignment

may consider whether the clerk-magistrate abused his or her 

discretion in issuing the complaint and, in doing so, may 
3

consider whether dismissal is in the best interests of the child

and in the interests of justice.1

Background. On March 24, 2016, the vice-principal of the 

juvenile's charter school filed an application under G. L. 

c. 218, § 35A, for a delinquency complaint, alleging that the 

juvenile committed an assault and battery in the classroom 

against a paraprofessional instructor, in violation of G. L. 

c. 265, § 13A (a). Following a show cause hearing, the clerkmagistrate issued a delinquency complaint, along with a written 

summary of the testimony presented at the hearing. The juvenile 

then moved to dismiss the complaint before arraignment.

On May 5, 2016, a hearing was held on the motion to 

dismiss. The Juvenile Court judge, based on the documents 

attached to the application for the complaint and the relevant 

evidence presented at the show cause hearing, allowed the 

juvenile's motion to dismiss and subsequently issued written 

findings of fact and conclusions of law.

We summarize the judge's material findings, supplemented by 

other information in the record before the judge. On March 11, 

2016, the fourteen year old juvenile was in class at the charter 

 1 We acknowledge the amicus briefs submitted by the district 

attorney for the Suffolk district; by the youth advocacy 

division of the Committee for Public Counsel Services; and by 

the Mental Health Legal Advisors Committee, on behalf of the 

Center for Public Representation, Massachusetts Advocates for 

Children, Strategies for Youth, Citizens for Juvenile Justice, 

and the Center for Civil Rights Remedies.
4

school he attended. The juvenile became frustrated during a 

classroom interaction with the paraprofessional instructor

assigned to the class, prompting the instructor to tell the 

juvenile to take a break, which was in keeping with the 

juvenile's individualized education program (IEP) and an

accommodation granted to the juvenile at the school. The 

juvenile swore at the instructor, and when the instructor told 

the juvenile he needed to go to the office, the juvenile 

replied, "Fight me." The instructor told the other students to 

go into the hallway and then stood in front of the classroom 

door while the juvenile remained in the classroom. When the 

juvenile "shouldered" into the instructor in an attempt to leave 

the classroom, the instructor placed the juvenile in a "basket 

hold" for approximately thirty seconds as a safety maneuver. As 

the juvenile struggled against the basket hold, he elbowed the 

instructor in the face.

The judge noted that the juvenile's IEP "specifically 

discouraged the school staff from engaging in power struggles 

with him and encouraged him to leave situations so as to 

deescalate them." She found that the instructor "caused the 

touching" by physically blocking the juvenile from leaving the 

classroom when "[the juvenile] was trying to deescalate a 

situation using steps the [school] incorporated into his [IEP]." 

The judge concluded that, under these circumstances, there was 
5

not probable cause to believe that the juvenile acted 

intentionally or recklessly "in an altercation in which there 

was physical contact between [him and the instructor]." The 

Commonwealth appealed, and we granted the juvenile's application 

for direct appellate review.

Discussion. The Commonwealth argues that the judge erred 

in granting the juvenile's prearraignment motion to dismiss 

because the evidence in the record before her established 

probable cause that the juvenile committed an assault and 

battery. The Commonwealth further claims that the judge erred 

by considering as part of the probable cause analysis an 

"affirmative defense," insofar as the argument that the juvenile

acted in conformance with his IEP by seeking to leave the 

classroom after the instructor blocked the exit could be 

construed as an affirmative defense.

"[A] motion to dismiss a complaint [for lack of probable 

cause] 'is decided from the four corners of the complaint 

application, without evidentiary hearing.'" Commonwealth

v. Humberto H., 466 Mass. 562, 565 (2013), quoting Commonwealth

v. Huggins, 84 Mass. App. Ct. 107, 111 (2013). "To establish 

probable cause, the complaint application must set forth 

'reasonably trustworthy information sufficient to warrant a 

reasonable or prudent person in believing that the defendant has 

committed the offense.'" Humberto H., supra, 
6

quoting Commonwealth v. Roman, 414 Mass. 642, 643 (1993). "The 

complaint application must include information to support 

probable cause as to each essential element of the 

offense." Humberto H., supra at 565-566. Probable cause 

requires "more than mere suspicion," id. at 565, 

quoting Roman, supra, but "considerably less than proof beyond a 

reasonable doubt, so evidence that is insufficient to support a 

guilty verdict might be more than sufficient to establish 

probable cause." Humberto H., supra. See Commonwealth

v. O'Dell, 392 Mass. 445, 451 (1984), quoting K.B. Smith, 

Criminal Practice and Procedure § 104 (1983) ("Probable cause 

does not require the same type of specific evidence of each 

element of the offense as would be needed to support a 

conviction"). Because the sufficiency of the evidence to 

establish probable cause is a question of law, we review the 

judge's probable cause determination de novo. See Humberto 

H., supra at 566.

Under the common law, an intentional assault and battery is 

"the intentional and unjustified use of force upon the person of 

another, however slight." Commonwealth v. Porro, 458 Mass. 526, 

529 (2010), quoting Commonwealth v. McCan, 277 Mass. 199, 203 

(1931).2 Here, the judge essentially found that the juvenile's 

 2 We do not address the second theory of assault and 

battery, reckless assault and battery, because it "is committed 
7

shouldering was an unconsented-to touching that was intended to 

push the instructor away from the classroom door so that the 

juvenile could leave the classroom. In finding that the 

juvenile intended to shoulder the instructor, but ultimately 

holding that there was insufficient evidence of intent, we 

understand the judge to have concluded that the juvenile's act 

of shouldering into the instructor was legally justified by the 

juvenile's desire to leave the classroom, which was permitted as 

a deescalation strategy in his IEP. We reject the notion that a 

child is justified in committing a battery against an instructor 

who is blocking his or her egress from a classroom because the 

child's IEP permits the child to leave the classroom when he or 

she becomes agitated. Cf. Commonwealth v. Moreira, 388 Mass. 

596, 601 (1983) ("in the absence of excessive or unnecessary 

force by an arresting officer, a person may not use force to 

resist an arrest by one who he knows or has good reason to 

believe is an authorized police officer, engaged in the 

performance of his duties, regardless of whether the arrest was 

unlawful in the circumstances"). Consequently, we conclude that 

the judge erred in finding that there was not probable cause to 

 

when an individual engages in reckless conduct that results in a 

touching producing physical injury to another person." 

Commonwealth v. Porro, 458 Mass. 526, 529 (2010). There was no 

evidence in the record before the judge that the instructor 

sustained any physical injury.
8

believe that the juvenile acted intentionally in shouldering 

into his instructor.

In Newton N., 478 Mass. at , where a police officer 

applied for and obtained a delinquency complaint, and where the 

complaint was supported by probable cause, we held that the

Juvenile Court judge could not dismiss the complaint before 

arraignment on the grounds that dismissal of the complaint was

in the best interests of the child and in the interests of 

justice. Here, however, the complainant was a civilian, not a 

police officer, and the civilian obtained the delinquency 

complaint after a show cause hearing under G. L. c. 218, § 35A.

The Legislature's enactment of G. L. c. 218, § 35A, "has 

allowed private parties to seek criminal complaints in the case 

of misdemeanors." Bradford v. Knights, 427 Mass. 748, 751 

(1998). See Mass. R. Crim. P. 4 (b), 378 Mass. 849 (1979) ("An 

application for issuance of [criminal complaints] may be 

subscribed by . . . a private person"). Section 35A provides 

that, if a complaint is received by a "district court," which 

includes the Juvenile Court Department, against a person who is 

not under arrest, the court shall notify the person against whom 

the complaint was made and give the person an opportunity to be 

heard, and "may upon consideration of the evidence, obtained by 

hearing or otherwise, cause process to be issued[,] unless there 

is no probable cause to believe that the person who is the 
9

object of the complaint has committed the offense charged."

When a person who is not a police officer applies for a 

misdemeanor criminal or delinquency complaint, a judge or clerkmagistrate conducts a "show cause" hearing to determine whether

probable cause exists for the commencement of criminal 

proceedings. See Matter of Powers, 465 Mass. 63, 66 (2013). 

"[A] show cause hearing . . . will often be used by a clerkmagistrate in an effort to bring about an informal settlement of 

grievances, typically relating to minor matters involving 'the 

frictions and altercations of daily life.'" Commonwealth

v. Clerk–Magistrate of the W. Roxbury Div. of the Dist. Court 

Dep't, 439 Mass. 352, 356 (2003), quoting Bradford, supra.

While a judge or clerk-magistrate may issue a criminal or 

delinquency complaint under § 35A only where the complaint is 

supported by probable cause, it is within his or her prerogative

to decline to issue a complaint, even where there is probable 

cause. Victory Distribs., Inc. v. Ayer Div. of the Dist. Court 

Dep't, 435 Mass. 136, 142 (2001). "General Laws c. 218, § 35A, 

provides that the District Court, or an officer thereof, 'may

upon consideration of the evidence cause [a complaint] to be 

issued' (emphasis added). Use of the word 'may' is recognition 

that circumstances will exist when, notwithstanding the 

existence of probable cause, a complaint should not issue and 

that, in such circumstances, a clerk-magistrate has discretion
10

to refuse to issue complaints." Id. Where a clerk-magistrate 

declines to issue a complaint, the civilian may seek a rehearing 

before a judge, see Bradford, 427 Mass. at 752, or may request 

that the Attorney General or a district attorney prosecute the 

matter. See Victory Distribs., Inc., supra at 143. "Should one 

of these authorities decide to prosecute, neither a judge of the 

District Court nor a clerk-magistrate may bar the prosecution, 

as long as the complaint is legally valid." Id.

Where a clerk-magistrate, as here, finds probable cause and 

issues a delinquency complaint against a juvenile, the juvenile 

may not seek a second show cause hearing before a judge; "the 

[juvenile's] remedy is a motion to dismiss the 

complaint." Commonwealth v. DiBennadetto, 436 Mass. 310, 313

(2002). "After the issuance of a complaint, a motion to dismiss 

will lie for a failure to present sufficient evidence to the 

clerk-magistrate (or judge), . . . for a violation of the 

integrity of the proceeding . . . , or for any other challenge 

to the validity of the complaint." Id.

The scope of a Juvenile Court judge's authority to dismiss 

a delinquency complaint at a motion to dismiss hearing, however, 

depends on whether the prosecutor has affirmatively adopted the 

complaint as a matter that he or she wishes to prosecute by 

moving for an arraignment, or whether the prosecutor simply 

appears at the scheduled arraignment. Where a prosecutor 
11

exercises his or her prosecutorial discretion by moving to 

arraign the juvenile, the separation of powers doctrine in art. 

30 of the Massachusetts Declaration of Rights bars a judge, in 

the absence of statutory authority, from dismissing a valid 

delinquency complaint -- even where the judge believes that 

dismissal of the complaint is in the best interests of the child 

and in the interests of justice. See Newton N., 478 Mass. 

at . But where a prosecutor has not affirmatively moved for 

arraignment and simply appears at the scheduled arraignment, the 

delinquency complaint remains a complaint brought by a private 

party and the separation of powers doctrine does not apply. 

See Victory Distribs., Inc., 435 Mass. at 142 ("the right to 

pursue a criminal prosecution belongs not to a private party but 

to the Commonwealth"); Whitley v. Commonwealth, 369 Mass. 961, 

962 (1975) (rights to pursue criminal prosecution "are not 

private but are in fact lodged in the Commonwealth as it may 

proceed to enforce its laws").

We recognize that prosecutors have the authority to nol 

pros a complaint issued under G. L. c. 218, § 35A, before 

arraignment. See Carroll, petitioner, 453 Mass. 1006, 1006

(2009) (district attorney's authority to nol pros criminal 

complaint may be exercised before arraignment). However, we 

will not construe the mere failure to nol pros a delinquency 

complaint prior to arraignment to signify the affirmative 
12

adoption by a prosecutor of a private party's complaint. As to 

these § 35A delinquency complaints, we require the affirmative 

step of moving for arraignment to ensure that prosecutorial 

judgment has been exercised in deciding whether to proceed. By 

requiring prosecutors to affirmatively decide whether to move 

for arraignment in these cases, we give prosecutors the 

opportunity to decide whether a juvenile is eligible for (and 

appropriate for) a diversion program prior to arraignment as an 

alternative to prosecution. We note that the vast majority of 

district attorneys have established such juvenile pretrial 

diversion programs. See Newton N., 478 Mass. at n.6 

(describing district attorneys' efforts to provide pretrial 

diversion programs to juvenile defendants).

We have noted that "[t]he right of a citizen to obtain a 

criminal complaint is itself something of an anomaly, because in 

modern times[,] the formal initiation and prosecution of 

criminal offenses is usually the domain of public officials. 

Accordingly, even where the Legislature has given a private 

party the opportunity to seek a criminal complaint, we have 

uniformly held that the denial of a complaint creates no 

judicially cognizable wrong." Bradford, 427 Mass. at 751. 

See Victory Distribs., Inc., 435 Mass. at 142 ("a private party 

suffers no judicially cognizable wrong when its application for 

a criminal complaint is denied"); Taylor v. Newton Div. of the 
13

Dist. Court Dep't, 416 Mass. 1006, 1006 (1993) ("it is settled 

beyond cavil that a private citizen has no judicially cognizable 

interest in the prosecution of another"). Because a private 

party has no right to the issuance of a criminal complaint where 

there is probable cause, and because the issuance of such a 

complaint is within the sound discretion of the clerk-magistrate 

following a show cause hearing, a judge deciding a motion to 

dismiss a civilian complaint issued pursuant to § 35A may 

consider whether the clerk-magistrate abused his or her 

discretion in issuing the complaint, and, in doing so, may 

consider whether dismissal of the complaint is in the best 

interests of the child and in the interests of justice. This 

does not extend the reach of a motion to dismiss beyond a 

determination of the validity of the complaint. We simply 

recognize that, where a complaint was initiated by a private 

party and has not been adopted by the prosecutor, the validity 

of the complaint must include a review of the clerk-magistrate's 

exercise of discretion.

The wise exercise of discretion is especially important in 

private delinquency complaints, where sound judgment must be 

applied in deciding whether a child's misbehavior that is 

legally within the ambit of the criminal law is so serious that 

it should be treated as a delinquency complaint in Juvenile 

Court, rather than as a disciplinary matter that is best 
14

resolved within a school, family, or clinical mental health 

setting. Where a prosecutor has not made an affirmative

discretionary decision to bring such a complaint to arraignment, 

a Juvenile Court judge may review whether the clerk-magistrate 

appropriately exercised sound discretion, as opposed to simply

having issued the complaint because it was supported by probable 

cause.

Conclusion. We vacate the order of dismissal of the 

delinquency complaint and remand the matter to the Juvenile 

Court for proceedings consistent with this opinion.

So ordered.