Opinion
C. A. PC-2021-00314
01-20-2022
JOHN J. CULLEN; and BARBARA T. CULLEN, Plaintiffs, v. TOWN OF LINCOLN, Defendant.
For Plaintiffs: Timothy K. Baldwin, Esq. For Defendant: Anthony DeSisto, Esq.
For Plaintiffs: Timothy K. Baldwin, Esq.
For Defendant: Anthony DeSisto, Esq.
DECISION
STERN, J.
Before this Court are Plaintiffs John and Barbara Cullen's and Defendant Town of Lincoln's Cross-Motions for Summary Judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. Both parties filed timely objections. Jurisdiction is pursuant to Rule 56 of the Superior Court Rules of Civil Procedure.
I
Facts and Travel
Plaintiffs John J. Cullen and Barbara T. Cullen (the "Cullens") are residents of Lincoln, Rhode Island. (Agreed Statement of Facts ¶ 1.) Defendant Town of Lincoln (the "Town") is a municipal corporation organized under the laws of Rhode Island. Id. ¶ 2. Pursuant to this Court's September 8, 2021 Amended Scheduling Order, the parties have prepared and submitted an Agreed Statement of Facts for purposes of the parties' Cross-Motions for Summary Judgment. (Am. Scheduling Order ¶ 1, Sept. 8, 2021 (Stern, J.); Agreed Statement of Facts 1.)
The Cullens submitted "Additional Undisputed Facts" along with the Motion for Summary Judgment based on paragraph two of this Court's Amended Scheduling Order. (Pls.' Additional Undisputed Facts 1.) However, paragraph 2 of the Amended Scheduling Order provides that "[a]t the time of filing of a Motion for Summary Judgment, any party may file additional proposed facts in support of their Motion for Summary Judgment." (Am. Scheduling Order ¶ 2 (emphasis added).) Because the Cullens mischaracterized the additional facts, the Court will not incorporate them in this Decision.
This dispute arises out of a municipal school construction project for the Town's High School (Lincoln High School Project). See Agreed Statement of Facts 2. Municipal school construction is governed by a complex set of Rhode Island statutes and regulations. Id. ¶ 3. Specifically, Rhode Island law authorizes the Rhode Island Department of Education (RIDE) to promulgate rules and regulations for school construction, set the school construction aid funding ratio and amounts of aid, authorize bonds to create available funds, and set rules for reimbursement. Id. The State of Rhode Island, through RIDE, has the ability to provide significant financial assistance to municipalities engaged in school construction projects. Id. ¶ 5. Importantly, the Town received financial assistance from the State of Rhode Island for the Lincoln High School Project presently in question. Id. ¶ 6.
To assist in navigating the process for receiving state funding for school construction projects, RIDE published guidance that divided these projects into four distinct phases for municipalities engaged in such projects seeking state funding. Id. ¶ 7. In Phase I, municipalities must demonstrate the need for a new school, along with demographic projections and anticipated educational programs at the new school, and submit an application to RIDE which includes, among other things, a list of the school committee members and an asset protection plan. Id. ¶ 7(a).
Once RIDE issues a "Stage I" preliminary approval, under Phase II, "the school committee [will then] submit[] a Stage II application[.]" Id. ¶ 7(b). The Stage II application includes: "an architectural feasibility study, schematic design plans, a design and construction cost projection, and a financing and site purchase plan." Id. If RIDE approves the school committee's Stage II application, RIDE will enter into a "Memorandum of Agreement with the school committee that sets the budget for the project, and a requirement that the school committee must secure local approval for school funding within six months." Id.
If RIDE approves the school committee's Stage II application, then, under Phase III, the school committee will undertake a design review for projects over $500,000 which includes, among other things, detailed architectural designs, financial management, and other professional services. Id. ¶ 7(c). At this stage, all aspects of the new school are "designed down to each individual component and room-starting with a schematic design review . . . then a design development review (to further develop the project design), and concluding with a construction documents review that includes the actual construction drawings." Id. Once RIDE approves the construction documents, the design for the new school is ready for construction. Id. Finally, Phase IV involves obtaining approval for State funding from the State's Capital Fund or School Housing Aid reimbursement, followed by school construction. Id. ¶ 7(d).
Pursuant to the Rhode Island Municipal Contracts Act (Municipal Contracts Act), "contracts over $10,000 must be awarded by competitive bidding," unless the contract is for professional engineering or architectural services pursuant to G.L. 1956 § 45-55-8.1, and is determined in writing by the town that competitive bidding is not practicable. Id. ¶ 8; see § 45-55-5. If the contract is for architectural and engineering services, towns are required to follow the "qualification-based selection process" set forth in § 45-55-8.1. Agreed Statement of Facts ¶ 9; see § 45-55-8.1.
On June 12, 2015, the Town released a Request for Proposals (RFP) for the Lincoln High School Project Stage I application to RIDE. (Agreed Statement of Facts ¶ 10; Agreed Statement of Facts Ex. 2.) The Town's RFP made clear that the Town did not expect the cost of the Lincoln High School Project Stage I to be "more than $40,000[.]" (Agreed Statement of Facts ¶ 11; Agreed Statement of Facts Ex. 2, at Addendum 1, 2.) The Town received two bids in connection with Stage I services and ultimately selected Symmes Maini & McKee Associates (SMMA) to perform the Stage I services for $40,000 (the "Stage I Contract"). (Agreed Statement of Facts ¶¶ 12-13; Agreed Statement of Facts Ex. 4, at 7.) Consequently, because the Stage I Contract totaled $40,000, the Town received financial assistance from the State of Rhode Island for the Lincoln High School Project. (Agreed Statement of Facts ¶ 6.)
Specifically, the RFP stated that:
"[t]he Lincoln Town Council . . . hereby invites your company . . . to submit a Proposal for the purpose of providing a comprehensive long-term master education and facilities plan Stage I . . . to be utilized by the Lincoln High School Renovation Committee . . . at the Lincoln High School." (Agreed Statement of Facts Ex. 2.)
SMMA was the only firm that submitted a bid at the Town's $40,000 budget. (Agreed Statement of Facts ¶ 13.)
After the Lincoln High School Project Stage I services were completed, the Town and SMMA began discussions for a contract to submit a Stage II application to RIDE (the "Stage II Contract"). Id. ¶ 16. Although the Stage I Contract was for Stage I services only, the Town described the Stage II Contract as an "addenda" to the Stage I Contract. Id. ¶ 17. Ultimately, the Town and SMMA entered into the Stage II Contract in August 2016. (Agreed Statement of Facts Ex. 6.)
The Stage I Contract did not contain language for a contract modification allowing for or precluding additional services nor provide notice that SMMA would provide services for Stages II, III, and IV in addition to Stage I. Id. ¶¶ 14-15. Unlike the Stage I Contract, the Stage II Contract stated that additional work "shall be requested" by SMMA in writing and in advance; and the Lincoln School Committee would review such request if school budget funds would be used to pay for additional work, or the Lincoln Town Council would review such request if municipal budget funds would be used to pay for the additional work. Id. ¶ 20.
The Town of Lincoln approved the Lincoln Stage II Contract price of $137,500 at a financial town meeting for the Lincoln High School Project Stage II submission to RIDE. Id. ¶ 19.
After RIDE approved Stage II of the Lincoln High School Project, the Town and SMMA began discussions for a contract for the Lincoln High School Project Stage III (the "Stage III Contract"). (Agreed Statement of Facts ¶ 21.) Importantly, the Town did not issue an RFP for Stage III services, engage in any competitive bidding process or a qualification-based selection process, nor identify any architectural or engineering firms other than SMMA for this submission. Id. ¶ 22. SMMA submitted a $4.25 million proposal for Stage III services and labeled this proposal as a "continuation" of the Town's Stage I Contract with SMMA. Id. ¶ 23. Ultimately, the Town's School Building Committee approved SMMA's proposal for Stage III services on October 28, 2017, and the Town and SMMA entered into the Stage III Contract in November 2017. Id. ¶¶ 25, 27; Agreed Statement of Facts Exs. 7-8.
SMMA labeled the $4.25 million proposal for the Stage III services as "a 'continuation' of the Town's Stage I contract with SMMA" on July 26, 2017; and, submitted a revised proposal on November 15, 2017. (Agreed Statement of Facts ¶¶ 23-24, 27.) Prior to SMMA submitting a revised Stage III services proposal, the Town of Lincoln's voters approved a $60 million bond "for the High School construction project" on November 7, 2017. Id. ¶ 26.
As evident from the foregoing, the Town did not publicly announce the availability of the Lincoln High School Project's Stages II and III Contracts, nor did the Town invite firms to compete for the Stage II and Stage III services. (Agreed Statement of Facts ¶ 28.) The Town also did not release an RFP for the Lincoln High School Project's Stage III services, adhere to the Rhode Island Municipal Contracts Act "qualification-based selection process" for Stage III, or identify any architectural or engineering firms other than SMMA for the Stage III submission. Id. ¶ 22.
In fact, on May 21, 2018, Peter Skwirz, an attorney for the Town, confirmed that there were no competitive bidding documents for the Town's Stage III submission to RIDE and explained that under "chapter 55 of title 45, supplemental agreements and contract extensions are included within the original bid contract and do not require rebidding. Because the original contract . . . was competitively bid pursuant to the statute, the contract extension of an existing contract did not require further competitive bidding." Id. ¶ 29.
The attorney for the Town confirmed "there [were] no competitive bidding documents" for the Town's Stage III submission to RIDE and noted "[o]n November 21, 2017, the [Town] approved a contract extension with SMMA. This extension was approved as a continuation of the existing Master Educational and Facilities Plan Agreement, dated June 2l, 2015." Id. ¶ 29. The Master Educational Facilities Plan is the request for RFP for Stage I services. Id. ¶ 30.
On May 14, 2019, the Cullens sent a letter to the Rhode Island Attorney General requesting a meeting regarding Stage III of the Lincoln High School Project. Id. ¶ 37. Following an investigation by the Attorney General's office, the Attorney General sent the Cullens a letter on September 22, 2020, explaining that the Town's procurement for the Lincoln High School Project did not rise "to the level of corruption, bad faith or a palpable abuse of discretion on the part of procurement officials" and therefore, the Attorney General would not be taking any further action. (Agreed Statement of Facts ¶ 39; Agreed Statement of Facts Ex. 9, at 1-2.) As of January 2020, the Lincoln High School Project was approximately $1.5 to $2 million overbudget, and Lincoln taxpayers were asked to approve $1.03 million to cover the cost overruns. (Agreed Statement of Facts ¶ 36.)
Significantly, the Attorney General's letter stated:
"This Office shares your clients' interest in accountability and likewise believes that competitive bidding procedures generally yield the best results for residents of this state. However, it is not within the purview of this Office to determine whether the Town 'overpaid' for the Lincoln High School or whether it could have undertaken a better procurement process. Rather, when it comes to state procurement laws, this Office reserves its enforcement authority for those cases where there has been a clear violation of state law such as conduct that rises to the level of corruption, bad faith or a palpable abuse of discretion on the part of procurement officials. See La Gondola, Inc. v. City of Providence, by and through Lombardi, 210 A.3d 1205, 1216 (R.I. 2019)." (Agreed Statement of Facts Ex. 9, at 1-2.)
The Cullens responded by filing the instant lawsuit seeking "to rectify the lack of public competition for architectural and engineering design services for the Town of Lincoln's High School construction project." (Compl. 1.) The parties have now submitted Cross-Motions for Summary Judgment. See Def.'s Mot. for Summ. J. 1; Pls.' Mot. for Summ. J. 1. The Court's Decision follows.
II
Standard of Review
Summary judgment is an extreme remedy and should be "granted only when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as [a] matter of law.'" Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005) (quoting Wright v. Zielinski, 824 A.2d 494, 497 (R.I. 2003)). The Court views the admissible evidence "in the light most favorable to the nonmoving party[.]" National Refrigeration, Inc. v. Standen Contracting Company, Inc., 942 A.2d 968, 971 (R.I. 2008). A party opposing "'a motion for summary judgment carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.'" Id. (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996)).
In this context, "'material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). "[W]hen ruling on a motion for summary judgment, the court is not authorized to try issues. The purpose of summary judgment procedure is issue finding and not issue determination." Westinghouse Broadcasting Company, Inc. v. Dial Media, Inc., 122 R.I. 571, 581, 410 A.2d 986, 991-92 (1980). Generally, the judgment sought shall be "rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as [a] matter of law." Super. R. Civ. P. 56(c).
III
Analysis
In moving for summary judgment, the Cullens seek judgment as a matter of law that the Town: (1) violated the Municipal Contracts Act by failing to determine in writing that competitive bidding was not practicable for Stage II and III services; (2) violated the Municipal Contracts Act by not engaging competitive bidding or a qualification-based selection process in awarding Stage III services for the Lincoln High School Project; and (3) wrongfully entered into the Stage II services contract because the Stage II services contract was not a contract modification of the Stage I contract within the meaning of the Municipal Contracts Act. (Pls.' Mot. for Summ. J. 1-2.) The Town, however, argues that judgment should be entered in its favor because, among other reasons, the Cullens do not have standing in this case as the issue presented is not of substantial public interest and is moot. (Def.'s Resp. Mem. 10.)
The law is well-settled that the Court must address the threshold issue of justiciability before considering the merits of the parties' arguments when confronted with a request for declaratory relief. Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 289 (R.I. 2012); Bowen v. Mollis, 945 A.2d 314, 317 (R.I. 2008); see City of Cranston v. Rhode Island Laborers' District Council, Local 1033, 960 A.2d 529, 533 (R.I. 2008). '"For a claim to be justiciable, two elemental components must be present: (1) a plaintiff with the requisite standing and (2) some legal hypothesis which will entitle the plaintiff to real and articulable relief."' Swain, 57 A.3d at 289 (quoting N & M Properties, LLC v. Town of West Warwick ex rel. Moore, 964 A.2d 1141, 1145 (R.I. 2009)) (internal quotations omitted).
The Court must resolve the fundamental preliminary question of whether this Court has been presented with a justiciable controversy; namely, whether the Cullens, as taxpayers, have standing to bring the instant suit and, even if the Cullens do have standing, whether the issue presented by the Cullens is moot. The Court will turn first to standing.
A
Taxpayer Standing
"'Standing is an access barrier that calls for the assessment of one's credentials to bring suit.'" Associated Builders & Contractors of Rhode Island, Inc. v. Department of Administration, 787 A.2d 1179, 1185 (R.I. 2002) (quoting Blackstone Valley Chamber of Commerce v. Public Utilities Commission, 452 A.2d 931, 932 (R.I. 1982)). Our Supreme Court, as well as the United States Supreme Court, has explained that standing is an "amorphous" concept that is satisfied when a complaining party alleges '"such a personal stake in the outcome of the controversy as to ensure concrete adverseness that sharpens the presentation of the issues . . . ."' Warfel v. Town of New Shoreham, 178 A.3d 988, 991 (R.I. 2018) (quoting 1112 Charles, L.P. v. Fornel Entertainment, Inc., 159 A.3d 619, 625 (R.I. 2017)) (further citation omitted); see also Thole v. U.S. Bank N.A., 140 S.Ct. 1615, 1620 (2020); Flast v. Cohen, 392 U.S. 83, 99 (1968); Baker v. Carr, 369 U.S. 186, 204 (1962). This means that the Court must focus on the party bringing the claim rather than on the issue the party seeks to have adjudicated and determine whether the challenged action caused the party to suffer an injury-in-fact, economic or otherwise. Bowen, 945 A.2d at 317 (citing Flast, 392 U.S. at 99).
In the context of taxpayer standing, the law is well settled that a taxpayer-plaintiff "must demonstrate an injury that is distinct from that of the public in general." Ianero v. Town of Johnston, 477 A.2d 619, 621 (R.I. 1984) (citing Berberian v. Solomon, 122 R.I. 259, 261, 405 A.2d 1178, 1180 (1979)). In other words, a taxpayer-plaintiff must "allege a personal stake in the controversy-[their] own injury in fact-before [the taxpayer-plaintiff can] assert the broader claims of the public at large." Burns v. Sundlun, 617 A.2d 114, 116 (R.I. 1992); see also Watson v. Fox, 44 A.3d 130, 136 (R.I. 2012) (opining that Rhode Island's long-standing jurisprudence does not recognize taxpayer standing when the taxpayer-plaintiff is unable to demonstrate a personal stake in the controversy); Flast, 392 U.S. at 101 (explaining that a taxpayer-plaintiff does not have standing unless the circumstances of the taxpayer's case demonstrate a personal stake in the outcome).
Here, similar to the plaintiff in Ianero v. Town of Johnston, cited supra, who did not allege any actual or concrete wrong beyond a general grievance common to all taxpayers, the Cullens have not asserted, or even attempt to assert, a personalized injury. See Ianero, 477 A.2d at 621; Compl. Rather, the Cullens, as residents of the Town, raise issues that affect the taxpayers of both the Town and Rhode Island generally. See Pls.' Mot. for Summ. J. 7. In fact, the Cullens claim that the "main interest in this litigation is to require public entities to follow proper and fair procurement procedures for school construction projects" as any additional costs for school construction projects will be borne by the Town and Rhode Island's taxpayers. (Pls.' Mot. for Summ. J. 7, 11; Pls.' Compl. ¶¶ 5-6.) Moreover, the Cullens are not a part of the RIDE process, being neither members of the Town's School Building Committee, nor owners of or investors in a construction, architectural, or engineering firm. See Pls.' Mot. for Summ. J. 13; see also Retirement Board of Employees' Retirement System of City of Providence v. City Council of Providence, 660 A.2d 721, 726 (R.I. 1995) (allowing taxpayer standing where the issue of investing retirement funds was of "substantial importance to the members of the retirement system and, indeed, to all the taxpayers of the city of Providence"). Clearly, the Cullens do not have a personal stake in the Town's procurement procedures for school construction projects and, thus, have not sustained a personalized injury.
In anticipation of this Court's finding that the Cullens, as taxpayers, do not have standing under general standing principles, however, the Cullens have urged this Court to overlook the general standing requirement by invoking our Supreme Court's so-called "substantial public interest" exception. See Pls.' Mot. Summ. J. 7-16. Therefore, the Court will now turn to consideration of the "substantial public interest" exception to determine whether the exception applies to the instant case.
1
Substantial Public Interest Exception
The law is well-settled that our Supreme Court will overlook the standing requirement on rare occasions to determine the merits of a case of substantial public interest. In re 38 Studios Grand Jury, 225 A.3d 224, 234 (R.I. 2020); Watson, 44 A.3d at 138; Burns, 617 A.2d at 116; see also Morse v. Minardi, 208 A.3d 1151, 1157 n.7 (R.I. 2019); Warfel, 178 A.3d at 991-92 (recognizing that the court will overlook the standing requirement on rare occasions to determine the merits of a case of substantial public interest but declining to apply substantial public interest exception); Retirement Board of Employees' Retirement System, 660 A.2d at 726 (overlooking standing requirements when merits of case were of substantial public importance).
As mentioned above, the Cullens ask this Court to overlook the standing requirements because the merits of the instant suit, according to the Cullens, are of substantial public interest. (Pls.' Mot. for Summ. J. 13.) To support this argument, the Cullens argue that "issues of school construction and public education are matters of substantial public interest" and that there have been "numerous news articles" which have "appeared over the years" highlighting the "design and cost issues associated with the Lincoln High School construction project." Id. at 8-10. The Town, however, argues that the Cullens have not raised an issue of substantial public interest because the news coverage relied on by the Cullens is not only hearsay but, more importantly, does not rise to the level of a substantial public interest like that in, for example, In re 38 Studios Grand Jury, cited supra. (Def.'s Resp. Mem. 4-5.) Moreover, the Town argues that the cases relied on by the Cullens "invoke[d] constitutional issues and statutory conflicts[, ]" issues that are not presently before this Court. Id. at 5. The Cullens contend, however, that "[r]egardless of the truth of the statements in these articles," the articles demonstrate that the Lincoln High School construction project "was and continues to be an issue of substantial public interest." (Pls.' Mot. for Summ. J. 11.)
The Cullens rely on several cases where our Supreme Court overlooked the standing requirement in light of an issue of substantial public interest. Id. at 10, 13. For example, the Cullens rely on In re 38 Studios Grand Jury. Id. at 8, 10-11. In In re 38 Studios Grand Jury, our Supreme Court overlooked the traditional standing requirement to determine whether the Superior Court had the inherent authority to release grand jury materials outside of Rule 6(e) of the Superior Court Rules of Criminal Procedure as well as whether the Governor presented special or exceptional circumstances. In re 38 Studios Grand Jury, 225 A.3d at 232-35, 240. In that case, the Economic Development Corporation, a quasi-public corporation created by the Rhode Island General Assembly, "issued $75 million in bonds to guarantee loans for 38 Studios, a video game company," which 38 Studios failed to repay, leaving Rhode Island taxpayers to "foot an $88 million bill." Id. at 226. A statewide grand jury was convened to investigate the potential criminality in connection with the 38 Studios deal, and the Attorney General and State Police announced that no "provable criminal violations of the Rhode Island General [L]aws" in connection with the 38 Studios deal existed. Id.
An independent state civil litigation ensued regarding the 38 Studios deal which resulted in a $61 million settlement for taxpayers and "hundreds of thousands of documents produced during the course of litigation were made public." Id. Governor Raimondo petitioned the Rhode Island Supreme Court, in her official capacity, to review the Superior Court's refusal to release all of 38 Studios Grand Jury records. Id. The Supreme Court reasoned the Governor had raised an issue of substantial public interest because, as a matter of first impression, the issue of whether the Superior Court possesses the inherent authority to disclose grand jury materials beyond the parameters set in Rule 6(e) "concerns an institution that plays a critical role in our criminal justice system." Id. at 227. The Supreme Court noted that the Governor framed and capably demonstrated that the issue was "of immense public interest," using the Governor's words that "[e]ven six years after the company closed its doors, the 38 Studios transaction and its consequences still makes front-page news." Id. at 234. Moreover, the Supreme Court emphasized that the case contained "an element of the 'concrete adverseness'" that the "Court relies upon to 'sharpen [] the presentation of issues[.]'" Id. at 234-35. Thus, because the Governor sufficiently demonstrated that the issue was of substantial public interest, the Rhode Island Supreme Court overlooked the standing requirement. Id.
In support of the Governor's standing, the Governor argued that she suffered a unique injury because of the need to allocate funds to pay off the remainder of the 38 Studios debt when putting together the annual budget proposal for the state each year. In re 38 Studios Grand Jury, 225 A.3d at 233. Although Governor Raimondo argued her unique injury as Governor and chairperson of the Rhode Island Commerce Corporation, she acknowledged that she also alleged a general public injury "that is[] the public's inability to secure full transparency with respect to the series of events culminating in 38 Studios' bankruptcy and the ensuing litigation." Id.
The Cullens similarly rely on Retirement Board of Employees' Retirement System of City of Providence v. City Council of Providence, cited supra. (Pls.' Mot. for Summ. J. 13.) In Retirement Board of Employees' Retirement System, the Rhode Island Supreme Court overlooked the standing requirement where members of the Retirement Board of the Employees' Retirement System (the "Retirement Board") of the City of Providence filed a civil action to seek declaratory judgment and injunctive relief, claiming that a City Council ordinance that transferred the authority to invest pension funds from the Retirement Board to the Board of Investment Commissioners required a city-wide referendum. Retirement Board of Employees' Retirement System, 660 A.2d at 723. In overlooking the standing requirement, the Supreme Court reasoned that "these consolidated cases address issues of substantial importance to the members of the retirement system and indeed, to all the taxpayers of the city of Providence[.]" Id. at 726. Specifically, the Supreme Court noted that the issue was "whether the city council [had] the power to transfer from the retirement board to the Board of Investment Commissioners the authority to invest the funds of the retirement system," and that to adequately address this issue, the Supreme Court was required to "review this authority by tracing the legislative history of the Employees' Retirement System of the City of Providence." Id. at 724. Thus, the Rhode Island Supreme Court overlooked the "individual plaintiffs' lack of standing" because the issues were "of substantial importance[.]" Id. at 726.
While In re 38 Studios Grand Jury and Retirement Board of Employees' Retirement System illustrate times where our Supreme Court overlooked the standing requirement to address the merits of the issues presented, these cases are indeed the "rare occasions" when standing is overlooked. There are several cases where the Supreme Court has refused to overlook the standing requirement when a party attempts to invoke the substantial public interest exception. See, e.g., Watson, 44 A.3d at 138-39 (refusing to overlook the standing requirement where taxpayers brought a constitutional suit regarding legislative grant funding); In re Review of Proposed Town of New Shoreham Project, 19 A.3d 1226, 1229 (R.I. 2011) (declining to overlook the standing requirement for a petitioner due to the concerns raised implicated "questions of policy more appropriately addressed in the political arena"); Bowen, 945 A.2d at 317 (refusing to overlook the standing requirement due to the plaintiff's "putative interests [being] indistinguishable from the interests of the general public, and [failing] to allege a particularized injury or demonstrate that he has a stake in the outcome that distinguishes his claims from the claims of the public at large").
For example, in Watson v. Fox, cited supra, our Supreme Court refused to overlook the standing requirement where Rhode Island taxpayers brought suit for declaratory relief seeking a ruling that the process the General Assembly used to allocate state funds for legislative grants to nonprofit entities violated the Rhode Island State Constitution. Watson, 44 A.3d at 130, 134. In that case, the plaintiff argued that "the legislative grant program . . . unconstitutionally usurped the role of the executive branch because no member of the executive branch had any involvement or decision-making authority with respect to the recipients of the legislative grants." Id. at 134. The plaintiff also argued that the grants were unconstitutional appropriations because "the failure to include the grants as a line-item appropriation deprived legislators of information to such a degree that the members could not have understood that they were voting to allot $2.3 million of public funds for local and/or private purposes." Id. The Supreme Court, however, refused to overlook the standing requirement, explaining that the Court was not persuaded by the plaintiff to "vault over the required showing of a particularized injury, economic or otherwise, when faced with questions of constitutional import that bear on the authority and duties of a coordinate branch of state government." Id. at 138. Moreover, the Supreme Court explained that "the fact that the plaintiff essentially is seeking an advisory opinion disguised as a request for a declaratory judgment leads us to refrain from exercising our discretion by overlooking the issue of standing." Id. Thus, because the merits of the case did not involve a matter of substantial public interest, the Rhode Island Supreme Court refused to overlook the standing requirement and dismissed the case. Id. at 138-39.
Here, the Cullens primarily rely on a number of articles that have appeared over the years concerning the design and cost issues associated with the Lincoln High School construction project, including a report that the project cost was $10 million more than the initial $60 million bond. (Pls.' Mot. for Summ. J. 10.) The Town argues, however, that the Cullens "can hardly argue" that the articles relied on "constitute the same amount of public interest that the 38 Studios transactions received." (Def.'s Resp. Mem. 4.) The Court agrees with the Town. The "numerous articles" relied on by the Cullens are in stark contrast to the news coverage received by the In re 38 Studios Grand Jury matter. This is because, unlike In re 38 Studios Grand Jury, the Lincoln High School Project was not front page news and did not receive the extensive coverage over a period of years. See In re 38 Studios Grand Jury, 225 A.3d at 234-35. In fact, as pointed out by the Town, there were only four Valley Breeze articles over a two year period that directly concerned the Lincoln High School Project. (Def.'s Resp. Mem. 4.) Cleary, the news coverage concerning the Lincoln High School Project is easily distinguishable from that seen in the In re 38 Studios Grand Jury matter.
Aside from the news articles relied upon by the Cullens, the Cullens have not demonstrated that the discretion utilized by the Town as to the procurement procedure went beyond the parameters of the Municipal Contracts Act that would warrant clarification of the Town's authority pursuant to the Act. See In re 38 Studios Grand Jury, 225 A.3d at 232-35, 240. Moreover, this is not a situation where the Town's voters were left to foot a $88 million bill like in In re 38 Studios Grand Jury. Id. at 226. In fact, the Town's voters approved a $60 million bond for the Lincoln High School Project. See Agreed Statement of Facts ¶ 26.
The Court specifically stated:
"This case raises a weighty question of first impression in this jurisdiction. That is, whether the Superior Court has inherent authority to disclose grand jury materials beyond the parameters of the permitted disclosures that are set forth in Rule 6(e) of the Superior Court Rules of Criminal Procedure. This question is of grave importance because it concerns an institution that plays a critical role in our criminal justice system." In re 38 Studios Grand Jury, 225 A.3d at 227.
Furthermore, the Cullens' status as Town and Rhode Island taxpayers is not analogous "to all members of the retirement system . . . and to the City's taxpayers" in Retirement Board of Employees' Retirement System because the Cullens are not attempting to clarify the Town's authority nor discretion in following the Municipal Contracts Act. Retirement Board of Employees' Retirement System, 660 A.2d at 726. Rather, the Cullens are merely seeking a declaration that the Town violated the Municipal Contracts Act. (Pls.' Mot. for Summ. J. 13.)
The Cullens' allegations are, if anything, most similar to those of the taxpayer-plaintiff in Watson. As mentioned above, the Cullens seek judgment as a matter of law that the Town: (1) violated the Municipal Contracts Act by failing to determine in writing that competitive bidding was not practicable for Stage II and III services; (2) violated the Municipal Contracts Act by not engaging competitive bidding or a qualification-based selection process in awarding Stage III services for the Lincoln High School Project; and (3) wrongfully entered into the Stage II services contract because it was not a contract modification of the Stage I contract within the meaning of the Municipal Contracts Act. (Pls.' Mot. for Summ. J. 1-2.) This is quite similar to the taxpayer-plaintiff in Watson who, as the Rhode Island Supreme Court explained, was "essentially [] seeking an advisory opinion disguised as a request for a declaratory judgment . . . ." Watson, 44 A.3d at 138. This is precisely what the Cullens are effectively seeking in the instant case. Thus, like in Watson, the Court here is not persuaded to "vault over" the standing requirement in an instance where the Cullens are seeking an advisory opinion disguised as judicial decision. See id.
Therefore, the Cullens have failed to establish that the merits of the allegations are of substantial public interest and this Court refuses to overlook the standing requirement and apply the substantial public interest exception.
B
Mootness
As mentioned above, the Cullens seek a declaratory judgment that the Town violated the Municipal Contracts Act with respect to two contracts-the Stage II and Stage III services contracts-executed in August 2016 and November 2017, respectively. (Agreed Statement of Facts ¶¶ 18-20, 27; Id., Exs. 6, 8.) The Town, however, argues that the issues presented to this Court are moot. (Def.'s Resp. Mem. 5.) Specifically, the Town argues that the building renovations and contracts in question have been fully completed, and thus, the Cullens have "long missed their opportunity to enjoin the action." Id.
Pursuant to Rhode Island common law, judicial review is confined to cases '"that present a ripe case or controversy."' Lynch v. Rhode Island Department of Environmental Management, 994 A.2d 64, 71 (R.I. 2010) (quoting City of Cranston, 960 A.2d at 533). '"[A] case is moot if the original complaint raised a justiciable controversy, but events occurring after the filing have deprived the litigant of a continuing stake in the controversy."' Unistrut Corp. v. State Department of Labor and Training, 922 A.2d 93, 99 (R.I. 2007) (quoting School Committee of Town of Johnston v. Santilli, 912 A.2d 941, 942 (R.I. 2007)). "A question is moot if a court's 'judgment would fail to have a practical effect on the existing controversy.'" Lynch, 94 A.2d at 71 (internal citations omitted).
It is important to note, however, that Rhode Island's mootness rule "is not absolute" and that "an exception to the mootness doctrine lies when the issue or question presented, 'while technically moot or deficient in some other respect, involves issues 'of extreme public importance, which are capable of repetition but which evade review.'" H.V. Collins Co. v. Williams, 990 A.2d 845, 847 (R.I. 2010) (quoting In re Stephanie B., 826 A.2d 985, 989 (R.I. 2003)). "Issues of extreme public importance usually implicate 'important constitutional rights, matters concerning a person's livelihood, or matters concerning citizen voting rights.'" Id. at 848 (quoting In re New England Gas Co., 842 A.2d 545, 554 (R.I. 2004)).
Here, the Cullens allege that the Town violated the Municipal Contracts Act by procuring and executing contracts with SMMA to complete Stages II and III of the Lincoln High School Project, resulting in a "lack of public competition for architectural and engineering design services." (Pls.' Mot. for Summ. J. 1-2.) The Cullens admit that they are not "seeking a reversal of the Town's contracts with SMMA" but rather "a legal ruling" that the Town violated the Municipal Contracts Act by failing to engage in any form of competition or determine in writing that competitive bidding was not practicable. (Pls.' Obj. to Def.'s Mot. Summ. J. 3.)
What is fatal to the Cullens' case is the undisputed fact that SMMA has already fully performed both the Stage II and Stage III contracts and has even completed the Lincoln High School Project. See Lynch, 994 A.2d at 71; Unistrut Corp., 922 A.2d at 99; see also Associated Builders & Contractors of Rhode Island, Inc. v. City of Providence, 754 A.2d 89, 91 (R.I. 2000) (holding that the claims presented were moot because the "project has been completed, and plaintiffs are not seeking to undo what has been done"). The Cullens are therefore, as mentioned above, essentially asking this Court to issue an advisory opinion about contracts that have long since been performed and concluded. See National Education Association Rhode Island v. Town of Middletown, by and through Dible, 210 A.3d 421, 427 (R.I. 2019) (finding that there was no justiciable controversy because the plaintiff was seeking an advisory opinion about the scope of contract negotiations that were long since concluded). As the Town correctly points out, the Cullens have long missed their opportunity to enjoin the action taken by the Town in connection with the Lincoln High School Project. (Def.'s Resp. Mem. 5.)
Moreover, while the issues presented by the Cullens are, at least theoretically, capable of repetition, the issues are extremely unlikely to consistently evade review. This is because a suit may be properly filed immediately following a municipal corporation's awarding of a school construction project and an injunction can be entered preventing the proposed project from continuing. For example, had the Cullens filed suit back in 2016 or 2017 when the Town awarded the Stage II and Stage III contracts to SMMA, the Cullens could have attempted to obtain an injunction to cease any construction from beginning (or continuing), and the issue of whether the Town violated the Municipal Contracts Act would have presented a live controversy. However, when the suit comes years after the contracts in question have been executed and fully performed, there is no longer a live controversy for the Court to adjudicate. The Court recognizes that, in theory, there may be more public school construction projects which may raise taxpayer concern regarding the cost of such projects. However, suits challenging the actions taken with respect to such projects must be taken at the proper time. Thus, the Cullens' claims are moot.
IV
Conclusion
Based on the foregoing, the Cullens' Motion for Summary Judgment is denied, the Town's Motion for Summary Judgment is granted, and consequently, the Cullens' Complaint seeking declaratory judgment is dismissed. Counsel shall prepare and submit the appropriate order for entry.