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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 clerk-
magistrate 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 clerk-
magistrate 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 clerk-
magistrate 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.