Opinion
C. A. PC-2020-07596
02-02-2021
JOSEPH HANLEY, Plaintiff, v. STEVEN M. PARE, in his Capacity as Commissioner of Public Safety for the City of Providence, and HUGH T. CLEMENTS, JR., in his Capacity as Chief of Police for the City of Providence, Defendants.
For Plaintiff: Michael Colucci, Esq. For Defendant: Vincent F. Ragosta, Jr., Esq. D. Peter DeSimone, Esq.
For Plaintiff: Michael Colucci, Esq.
For Defendant: Vincent F. Ragosta, Jr., Esq. D. Peter DeSimone, Esq.
DECISION
GIBNEY, P.J.
Plaintiff Joseph Hanley brings this Petition for Injunctive Relief/Stay of Suspension Without Pay pursuant to G.L. 1956 § 42-28.6-13(d). Defendants Steven M. Pare (Pare) and Hugh T. Clements, Jr. (Clements) (collectively, Defendants or City) object. Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13 and 9-30-1.
Defendants contend that, because a suit against a municipal official in their official capacity is a suit against the municipality, the City of Providence is an unnamed party. (Defs.' Mem. 1, n.1.)
I
Facts and Travel
On April 23, 2020, Sergeant Joseph Hanley (Plaintiff or Hanley), a police officer employed by the City of Providence, was suspended with pay, pursuant to § 42-28.6-13(c), pending an investigation for actions that occurred during the April 19, 2020 arrest of Rishod Gore. (Pl.'s Pet. ¶¶ 2-3; Defs.' Answer ¶ 3; Pl.'s Mot. Stay 1; Defs.' Mem. Supp. Obj. (Defs.' Mem.) 1-2.) On May 19, 2020, Hanley was charged with one count of simple assault, pursuant to G.L. 1956 § 11-5-3, at an appearance before a justice of the peace. (Pl.'s Pet. ¶ 4; Defs.' Answer ¶ 4; Pl.'s Mot. Stay 1.) Hanley was not arraigned until July 7, 2020. (Pl.'s Pet. ¶¶ 5-7; Defs.' Answer ¶¶ 5, 7.) At arraignment, Hanley pled not guilty and his first pretrial conference was scheduled for September 16, 2020. See Pl.'s Pet. ¶ 7; Pl.'s Mot. Stay 1-2; Defs.' Answer ¶ 7 (stating Defendants are without knowledge as to whether the pretrial conference date was set at arraignment). On July 24, 2020, Hanley filed his motion for discovery and a preemptive motion for enlargement of time to examine the State's responses to that discovery. See Pl.'s Mot. Stay, Ex. 6. On September 2, 2020, Hanley filed a motion for a bill of particulars. See Pl.'s Mot. Stay, Ex. 7. At the first pretrial conference on September 16, 2020, the State objected to the motion for a bill of particulars and a hearing was scheduled for September 28, 2020. See Pl.'s Mot. Stay 2. On September 28, 2020, the court granted Plaintiffs motion and on October 23, 2020, the State provided its response. See id. On October 24, 2020, Hanley was notified by Defendants that his status had been changed to suspended without pay because, pursuant to § 42-28.6-13(d), after 180 days of suspension without disposition of his criminal charge, the town may convert his suspension to one without pay and benefits. (Pl.'s Pet. ¶ 12; Defs.' Answer ¶ 12.)
On October 29, 2020, Plaintiff filed his Petition for Injunctive Relief/Stay with this Court, arguing that he did not cause the delay in the disposition of the charges pending against him and that, under § 42-28.6-13(d), the stay he requests is mandatory when the delay was outside a law enforcer's control. (Pl.'s Pet. 2.) In support of this argument, Plaintiff subsequently filed an updated Motion to Stay on November 16, 2020. Plaintiff claims that the District Court's COVID-19 rules caused his arraignment date, which would have typically occurred within days of his being charged, to be scheduled in July. (Pl.'s Mot. Stay 1.) Plaintiff also claims that the Rules of Criminal Procedure dictate that discovery and motions cannot take place before arraignment. Id. at 3. Plaintiff then argues that the District Court's Administrative Order 2020-04 caused a delay in the scheduling of his first pretrial conference until September 16, 2020. Id. at 1-2. Plaintiff claims he acted efficiently in the intervening time by conducting discovery and motion practice. Id. at 3-4. Additionally, Plaintiff contends that the "true date" of the complaint in this matter should be when the bill of particulars was returned on October 23, 2020. Id. at 4. Therefore, Plaintiff requests that the Court stay Defendants' order to suspend him without pay, dated October 24, 2020, and that any salary or benefit withheld since be restored retroactively. (Pl.'s Pet. 2; Pl.'s Mot. Stay 1, 4.)
Plaintiff cites no relevant caselaw or statute for this proposition.
On November 14, 2020, the Defendants filed their response, arguing that, to be entitled to a stay of his suspension without pay, Plaintiff must show the delay in his disposition was completely outside of his control and that nothing he did contributed or could have contributed to it. (Defs.' Mem. 3-4.) Defendants contend that Plaintiff could have moved for a bill of particulars prior to arraignment, that he filed his discovery motion late, and that he sought and received permission to go on vacation to New Hampshire. Id. at 4-5. Because they argue that all of these constitute contributions to the delay in Plaintiff's disposition, Defendants request that Plaintiff's petition for a stay of his suspension without pay and benefits be denied. Id. at 6.
Hearing in this matter was held remotely on December 10, 2020. At oral argument, Plaintiff noted that some of the delay related to his arraignment was caused by the fact that the State took over prosecution from the City, which did not occur until July 7, 2020. (Tr. 3:10-14 (Dec. 10, 2020).) Plaintiff stated that his motion for a bill of particulars was made before the first scheduled pretrial conference, see id. at 3:19-22, and a judge's recusal caused some delay, see id. at 4:15-5:2. Plaintiff argued that, if the Defendants' argument was accepted, it would constitute a forfeiture of a law enforcement officer's rights to basic defense procedures, which would be an absurd reading of the statute. Id. at 6:4-11. Plaintiff also claimed that his discovery was timely filed by mail and e-mail on July 22, 2020, stating that the State District Court on the criminal side does not have e-filing and "so the old-fashioned rules apply." Id. at 7:3-7. Plaintiff noted that seeking permission to leave the state at arraignment does not constitute a delay but was merely lawful conduct and that he did not file for any continuances. Id. at 7:9-18, 15:13-15. Finally, Plaintiff argued that there is no requirement that the delay be completely out of his control. Id. at 16:18-20.
At that same hearing, Defendants accepted the representation by Plaintiff's counsel about the delay in his motion for discovery but reiterated that he could have moved for the bill of particulars prior to arraignment. Id. at 10:21-24. Relying heavily on the court's prior ruling in Ferretti v. The Town of Coventry, No. PC 10-7312, 2011 WL 130249 (R.I. Super. Jan. 13, 2011), that an occurrence is outside of a party's control when it is an act of God or national emergency, Defendants argued that "outside the law enforcement officer's control" under the Law Enforcement Officers' Bill of Rights (LEOBOR) means "completely or in no way attributed to a choice made by a party." Id. at 9:2-16; see § 42-28.6-13(d). Therefore, Defendants argued that because Plaintiff knew he would lose the right to continued pay under the LEOBOR after six months and knew that the District Court was reducing but not eliminating the number of in-person hearings due to COVID-19, he had notice of the potential for delay and could have taken steps to hasten the process to get to trial. (Tr. 12:19-23, 13:18-25, 14:7-18 (Dec. 10, 2020).)
II
Standard of Review
A
Declaratory and Equitable Jurisdiction
The Superior Court is empowered to grant declaratory relief pursuant to the Uniform Declaratory Judgments Act (UDJA) and to grant equitable relief, including injunctions, as a court of general equitable jurisdiction. Sections 9-30-1 and 8-2-13; see Rhode Island Republican Party v. Daluz, 961 A.2d 287, 295 (R.I. 2008). This means that, under the UDJA, the Superior Court possesses the "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." Section 9-30-1; see also P.J.C. Realty, Inc. v. Barry, 811 A.2d 1202, 1207 (R.I. 2002) (quoting § 9-30-1). Section 9-30-2 of the UDJA provides as follows:
"Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder." Section 9-30-2 (emphasis added).
Thus, "the Superior Court has jurisdiction to construe the rights and responsibilities of any party arising from a statute pursuant to the powers conferred upon [it] by G.L. 1956 chapter 30 of title 9, the Uniform Declaratory Judgments Act." Canario v. Culhane, 752 A.2d 476, 478-79 (R.I. 2000). In such a declaratory judgment action, this Court must also "undertake[] a fact-finding function, without the assistance of a jury, [before] decid[ing] whether to grant or deny relief." Providence Lodge No. 3, Fraternal Order of Police v. Providence External Review Authority, 951 A.2d 497, 502 (R.I. 2008) (citing Casco Indemnity Co. v. O'Connor, 755 A.2d 779, 782 (R.I. 2000)).
As a general matter, "'a decision to grant or deny declaratory or injunctive relief is addressed to the sound discretion of the [hearing] justice[.]'" K & W Automotive, LLC v. Town of Barrington, 224 A.3d 833, 836 (R.I. 2020) (quoting La Gondola, Inc. v. City of Providence, 210 A.3d 1205, 1213 (R.I. 2019) (further citations omitted)). Furthermore, when sitting as a court of equity, this Court "appl[ies] the well-established principle long recognized in equity: equity regards as done that which ought to be done." Alix v. Alix, 497 A.2d 18, 22 (R.I. 1985) (citing Carpenter v. The Providence Washington Insurance Co., 45 U.S. (4 How.) 185, 223-24 (1846); Dobbs, Law of Remedies § 2.3 at 34, 44 n.24 (1973)).
B
LEOBOR
The LEOBOR "sets forth specific procedural rights for law enforcement officers who may be subject to an investigation of misconduct by a law enforcement agency." Providence Lodge No. 3, 951 A.2d at 502-03 (citing Town of North Kingstown v. Local 473, International Brotherhood of Police Officers, 819 A.2d 1274, 1276 (R.I. 2003)); see § 42-28.6-1 et seq. "Enacted in 1976, LEOBOR 'is the exclusive remedy for permanently appointed law-enforcement officers who are under investigation by a law-enforcement agency for any reason that could lead to disciplinary action, demotion, or dismissal.'" City of Pawtucket v. Laprade, 94 A.3d 503, 511 (R.I. 2014) (quoting In re Simoneau, 652 A.2d 457, 460 (R.I. 1995) (further citation omitted)); see also § 42-28.6-15 ("The remedies contained herein shall be the sole and exclusive remedies for all law enforcement officers subject to the provisions of this chapter.").
Additionally, the Rhode Island Supreme Court has "declared that LEOBOR 'is remedial in nature,' and 'was enacted to protect police officers from infringements of their rights in the course of investigations into their alleged improper conduct.'" Laprade, 94 A.3d at 511 (quoting Ims v. Town of Portsmouth, 32 A.3d 914, 925 (R.I. 2011) (further citation omitted)).
Section 42-28.6-13 provides, in pertinent part:
"(d) Suspension may be imposed by the chief or highest ranking sworn officer of the law enforcement agency when the law enforcement officer in [sic] under investigation for a misdemeanor criminal matter. Any such suspension shall consist of the law enforcement officer being relieved of duty, and he or she shall receive all ordinary pay and benefits as he or she would receive if he or she were not suspended. . . . If the disposition of the criminal matter does not take place within one hundred eighty (180) days of the commencement of such suspension, the law enforcement officer may be suspended without pay and benefits . . . . The law enforcement officer may petition the presiding justice of the superior court for a stay of the suspension without pay, and such stay shall be granted upon a showing that said delay in the criminal disposition was outside the law enforcement officer's control. In the event the law enforcement officer is acquitted of any misdemeanor related thereto, the officer shall be forthwith reinstated and reimbursed all salary and benefits that have not been paid during the suspension period." Sec. 42-28.6-13(d) (emphasis added).
While § 42-28.6-13(d) is silent as to what constitutes a delay outside the officer's control, the Rhode Island Supreme Court has "recognize[d] that LEOBOR's deadlines have historically been applied strictly by the Superior Court, regardless of the consequences." Laprade, 94 A.3d at 520 n.3 (citing Town of Westerly Police Department v. Burton, No. PC 06-2395, 2006 WL 2590094, at *1 n.1 (R.I. Super. Sept. 7, 2006)) (other citations omitted).
III
Analysis
This Court previously had occasion to interpret the delay language in § 42-28.6-13(d) in Ferretti, cited supra. Ferretti, 2011 WL 130249, at *3. In that case, the Court noted the LEOBOR's lack of a definition for a delay under the law enforcement officer's control and examined certain caselaw related to defining delay in other contexts. Id. In particular, the Court found useful the following language from Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993):
"At one end of the spectrum, a party may be prevented from complying by forces beyond its control, such as by an act of God or unforeseeable human intervention. At the other, a party simply may choose to flout a deadline. In between lie cases where a party may choose to miss a deadline although for a very good reason, such as to render first aid to an accident victim discovered on the way to the courthouse, as well as cases where a party misses a deadline through inadvertence, miscalculation, or negligence." Pioneer, 507 U.S. at 387-88.
Here, as in Ferretti, the circumstances lay "in between" because, although the administrative consequences of the COVID-19 pandemic on the courts clearly constitute matters beyond Plaintiff's control, late filings and requests to extend time to respond do not. See Ferretti, 2011 WL 130249, at *3 ("For example, in the context of a right to a speedy trial dispute, matters outside the control of a party included 'the September 11th tragedy and the court's scheduling difficulties due to illness.'") (quoting United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003)).
In Ferretti, while arguments were made that the plaintiff's appeal and the inability to gain documents from a complaining witness were both direct causes of the delay in his proceedings, the court found that the plaintiff's choice to appeal was the primary cause of the lack of final disposition. See Ferretti, 2011 WL 130249, at *2. The court then addressed whether choosing to appeal in the context of a criminal case constituted choosing to miss the deadline under LEOBOR and was consequently considered within a party's control. Id. at *3. Similarly, here the Court must revisit the questions posed by § 42-28.6-13(d): under the LEOBOR, what kind of delay is prohibited and what kind of causation is contemplated?
A
Cause of Delay
To speak of a prohibited delay in this or any legal context raises both the relevant procedural rules and a normative question as to what a typical timeline for the proceeding looks like in a given jurisdiction. The United States Supreme Court has recognized that, even prior to the COVID-19 pandemic, "pretrial delay is often both inevitable and wholly justifiable." Doggett v. United States, 505 U.S. 647, 656 (1992). Yet the federal Speedy Trial Act attempts to mitigate such delay in the context of federal cases, providing that an information or indictment must be filed within thirty days of arrest and that trial should commence within seventy days of either that filing or the date defendant appeared before a judicial officer of the court, whichever occurs last. See 18 U.S.C.A. § 3161.
Rhode Island has likewise set certain bounds on the permissible delays in bringing criminal matters to trial. From September 1, 1972 until November 21, 1984, it did so through Rule 48(b) of the Superior Court Rules of Criminal Procedure. See In re Superior Court Rule of Criminal Procedure 48, 497 A.2d 24, 24-27 (R.I. 1985) (detailing Justice Kelleher's reservations regarding the repeal of Rule 48(b)). Rhode Island caselaw establishes that "the line that demarks the 'presumptively prejudicial' boundary may be drawn at twelve months" in the speedy trial analysis for defendants. State v. Powers, 643 A.2d 827, 831 (R.I. 1994) (citing State v. Tarvis, 465 A.2d 164, 175 (R.I. 1983)). Additionally, in 2005, as part of the Domestic Violence Prevention Act, Rhode Island codified a victim's right to a speedy trial. See G.L. 1956 § 12-29-4.1.
Because the pandemic has necessitated alteration of our processes for administering justice, it has also impacted the likely duration of proceedings. For context, in 2001, a prior District Court Administrative Order advised bail commissioners conducting special arraignments in misdemeanor cases as follows regarding the scheduling of pretrial conferences and trials:
"6. The Setting of Dates [Notice Form]-If a plea of not guilty is recorded . . ., the bail commissioner shall schedule pretrial conference and trial dates before the court. . . . The pre-trial conference date shall be two (2) weeks following arraignment; the trial date shall be six (6) weeks following arraignment[.]" City of Warwick v. Adams, 772 A.2d 476, 482 (R.I. 2001) (emphasis added).
There is no dispute that any once-typical process and preferred timeline for a proceeding in District Court have been altered by the pandemic. This forms the basis of Plaintiff's central argument here: Plaintiff claims that any delay in the disposition of the charges pending against him was caused by the pandemic, pointing to the District Court's COVID-19 rules, the Rules of Criminal Procedure, and the District Court's Administrative Orders. See Pl.'s Pet. 2; Pl.'s Mot. Stay 1-3. The Court will first address the delays Plaintiff alleges were truly outside of his control.
(i)
Delays Outside of the Plaintiff's Control
The first obvious delay in Plaintiff's criminal case relates to the length of time that elapsed between charging and arraignment. According to the Plaintiff, it was the District Court's COVID-19 rules that caused his arraignment date to be scheduled in July. (Pl.'s Mot. Stay 1.) The Criminal Complaint shows that the arraignment date was set for July 7, 2020 at his initial appearance on May 19, 2020. See Pl.'s Mot. Stay, Ex. 3 (Criminal Complaint). This constituted a delay of approximately a month and a half. Plaintiff has not complained of this delay, and Defendants do not contend that it was within Plaintiff's control. Consequently, the Court agrees with Plaintiff that this scheduling delay was outside of his control.
Also relevant to these early stages of the criminal proceeding is the timing of Plaintiff's motion for a bill of particulars. Defendants argue that Plaintiff could have moved for a bill of particulars prior to arraignment. See Defs.' Mem. 4; Tr. 10:21-22 (Dec. 10, 2020). Plaintiff contends that, "[u]nder the Rules of Criminal Procedure, none of the typical discovery and motion practices could take place before arraignment." (Pl.'s Mot. Stay 3.) However, Rule 6 of the Rhode Island District Court Rules of Criminal Procedure, governing "The Complaint," states in pertinent part that:
"(e) Bill of Particulars. Upon motion of a defendant the court shall direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires." Dist. R. Crim. P. 6 (emphasis added).
Consequently, because the complaint in Plaintiff's criminal proceeding detailing the charge against him was filed on May 20, 2020, Defendants are correct that nothing constrained him from making his motion for a bill of particulars before his delayed arraignment. See Case Summary (61-2020-04072). Thus, the timing of Plaintiff's filing of his bill of particulars was not outside of his control and will be discussed further below.
The next delay in this matter occurred between arraignment and the first pretrial conference. See J. Richard Radcliffe, Esq. & Jeffrey M. Biolchini, Esq., A Practical Guide to Superior Court Practice in Rhode Island (hereinafter Radcliffe & Biolchini, Practical Guide) § 15.8 ARRAIGNMENT (1st ed. Supp. 2018), 2015 WL 5706468 (noting that typically, at arraignment, "the court will set a date for a pretrial conference in the District Court for misdemeanor cases"). As a reminder, the once preferred timeline offered to bail commissioners via Administrative Order 88-18 provided for a "pre-trial conference date . . . two (2) weeks following arraignment[.]" Adams, 772 A.2d at 482. Here, Plaintiff argues that the District Court's Administrative Order 2020-04 caused the delay in the scheduling of his first pretrial conference until September 16, 2020. (Pl.'s Mot. Stay 1-2.)
Plaintiff states as fact that, at his July 7, 2020 arraignment, the court set his first pretrial conference for September 16, 2020, more than two months later. See Pl.'s Pet. ¶ 7; Pl.'s Mot. Stay 1-2; Defs.' Answer ¶ 7 (stating Defendants are without knowledge as to whether the pretrial conference date was set at arraignment). Defendants have not argued to the contrary. Administrative Order 2020-04 states, in no uncertain terms, that "No Pre-Trials and Trials are presently being scheduled in the Rhode Island District Court." Administrative Order 2020-04 (May 29, 2020) (referencing "the backlog of cases caused by the Covid-19 Pandemic"). Given the strong and unequivocal language used in this Administrative Order, which was in effect at the time of Plaintiff's arraignment, it is unlikely that the court would have allowed Plaintiff to request an earlier pretrial conference. Consequently, this delay in scheduling does not appear to have been within Plaintiff's control. See also Administrative Order 2020-05 (September 2, 2020) (stating that "[h]earings that have been scheduled after September 8, 2020 will remain on the calendars unless otherwise rescheduled by the Court" and noting sitting judge's mandate to schedule hearings "based on capacity available").
Subsequent delays in scheduling Plaintiff's trial also resulted from his motion for a bill of particulars, to which the State objected. See Pl.'s Mot. Stay 2. Trial was not scheduled at either the first or second pretrial conference while the court heard argument on the motion and ruled that the State provide a bill of particulars to Plaintiff. See id.; Radcliffe & Biolchini, Practical Guide § 15.9.6 Pretrial Conference, 2015 WL 5706474 (stating that, at pretrial conference, "[i]f no plea of guilty or nolo contendere is entered, the case will be 'passed for trial'"). For the reasons detailed below, the Court finds that these delays are attributable to the Plaintiff.
(ii)
Delays Attributable to the Plaintiff
The first delay Defendants attribute to Plaintiff relates to the filing of his bill of particulars. See Defs.' Mem. 4. Defendants state that Plaintiff "could have moved for a bill of particulars before his July 7, 2020 arraignment" but "chose not to do so until the beginning of September 2020." Id.; see Radcliffe & Biolchini, Practical Guide § 15.7.5 Bill of Particulars, 2015 WL 5706466 ("With respect to timing, a motion for a bill of particulars must be made before arraignment, or within ten days afterward in District Court, . . . or at such later times as the court[] may permit.").
A bill of particulars is not a mandatory filing, and its purpose is to provide a criminal defendant with factual detail omitted from an ambiguous complaint or indictment, to avoid judicial surprise at trial and ensure adequate constitutional notice to a defendant of the charges against him. See State v. Hunt, 137 A.3d 689, 693 (R.I. 2016); State v. Gregson, 113 A.3d 393, 397 (R.I. 2015) ("[T]he function of a bill of particulars is to apprise a defendant of the evidentiary details establishing the facts of the offense when such facts have not been included in the indictment or information.") (further citations omitted). The relevant procedural rule regarding the timely filing of a bill of particulars in District Court explicitly provides a window from charging to ten days after arraignment. See Dist. R. Crim. P. 6(e). The rule also provides that a motion for a bill of particulars can be made at "such later time as the court may permit[, ]" acknowledging the court's discretionary power to allow untimely motions of this kind in the interests of justice. Id.
Here, the end of the period provided under the rule, ten days after arraignment, would have occurred on July 17, 2020. Plaintiff filed his motion on September 2, 2020, after a delay of a month and a half. Any misunderstanding of the relevant procedural law would provide no excuse here and Plaintiff's contention that his motion for a bill of particulars was made before the first scheduled pretrial conference is equally unavailing. See Tr. 3:19-22 (Dec. 10, 2020); Laprade, 94 A.3d at 520 n.3. This delay in filing an optional motion is permissible and even warranted in the context of Plaintiff's criminal proceeding but not for the purposes of the current inquiry. See Section III.C, below. The Rhode Island Supreme Court's decision in State v. Oliveira, 127 A.3d 65 (R.I. 2015), is instructive, where the Supreme Court evaluated a defendant's claim that his right to a speedy trial had been violated, noting that "delay caused by the defense, whether the result of action or inaction, is attributable to the defendant in the speedy-trial analysis." Oliveira, 127 A.3d at 74. Likewise, the issue here is whether any action taken by the Plaintiff constituted a delay of his proceedings. Therefore, the Court finds that the month and a half of delay following the end of the filing period contemplated by Rule 6(e) is attributable to the Plaintiff.
Second, Defendants question the timeliness of Plaintiff's discovery motion. See Defs.' Mem. 4-5. Defendants note that Plaintiff's discovery motion was filed late along with a Rule 45(b) motion for an enlargement of time. Id. at 4. See Radcliffe & Biolchini, Practical Guide § 15.9.1
Discovery, 2015 WL 5706469 (noting that "in the District Court rule, discovery is by motion, and must be made within fifteen days after arraignment, or such reasonable later time as the court may allow"). Plaintiff is correct that Rule 16, governing "Discovery and Inspection," states that:
"(f) Time of Motions. A motion under this rule may be made only within 15 days after arraignment or at such reasonable later time as the court may permit. The motion shall include all relief sought under this rule. A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice." Dist. R. Crim. P. 16 (emphasis added).
However, fifteen days after arraignment in this case would have been on July 22, 2020, and Plaintiff filed his discovery motion on July 24, 2020. See Case Summary (61-2020-04072). Nevertheless, Plaintiff claimed at oral argument that his discovery was timely filed by mail and e- mail on July 22, 2020, and that the District Court on the criminal side does not have e-filing and "so the old-fashioned rules apply." (Tr. 7:3-7 (Dec. 10, 2020).)
Examining the record, the Court finds that Hanley's discovery motion was stamped as filed with the District Court's Sixth Division clerk at 2:33 pm on July 24, 2020. See Pl.'s Mot. Stay, Ex. 6. The certification on the discovery motion claimed that it was served "via regular mail and electronic mail" to Attorney McCabe at the Department of the Attorney General on July 22, 2020. See id. At oral argument, Defendants' counsel accepted Plaintiff's representation regarding the inability to e-file in criminal matters in District Court and the timely mail and e-mail service to opposing counsel. (Tr. 10:21-24 (Dec. 10, 2020).) No evidence of the timing of the e-mail service to Attorney McCabe was otherwise submitted.
The language of Rule 16(f) refers to the conduct required for a timely motion for discovery using the word "made." Dist. R. Crim. P. 16(f). Under pre-pandemic practice norms, when such a motion is made in District Court, "the District Court typically will not even address the defendant's motion, but simply direct counsel to give it to the prosecutor." Radcliffe & Biolchini, Practical Guide § 15.9.1 Discovery, 2015 WL 5706469. Consequently, Plaintiff's e-mail service to Attorney McCabe on July 22, 2020 would likely be sufficient and timely under the relevant rule and practice of the District Court. Furthermore, the subsequent filing of the motion within two days of e-mail service would likely constitute a "reasonable time" after such service under Rule 49(d). See Rule 49(d) of the District Court Rules of Criminal Procedure (stating that "[a]ll papers required to be served shall be filed with the court either before service or within a reasonable time thereafter" and "[n]o further proof of service is required unless an adverse party raises a question of notice").
However, the Rule 45(b) motion for an enlargement of time is essentially part and parcel of Plaintiff's delay in filing his motion for a bill of particulars. Rule 45(b) reads, in pertinent part:
"(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect[.]" Dist. R. Crim. P. 45(b).
Here, Plaintiff's motion for enlargement of time, like his discovery motion, was filed on July 24, 2020. See Pl.'s Mot. Stay, Ex. 6. In particular, Plaintiff's motion sought enlargement of time for his subsequent filings related to State's responses to discovery, an arguably broad category of unspecified future filings. See id. This was an anticipatory motion, potentially an attempt to ensure that any filings strategically necessary for Plaintiff's case would be considered timely after Plaintiff's receipt of the State's responses. In fact, the only filing made by Plaintiff after receiving the State's discovery responses and before his suspension was changed to one without pay was the motion for a bill of particulars. See Pl.'s Mot. Stay 2. Again, the delay associated with Plaintiff's filing of his motion for a bill of particulars is attributable to him in this LEOBOR matter, despite any discretionary rulings of the District Court, rendering its timing proper in the criminal proceeding. See Section III.C, below.
Finally, Defendants question the Plaintiff's request, at arraignment, for permission from the court to go on vacation. See Defs.' Mem. 5. As Plaintiff noted at oral argument, seeking permission to leave the state at arraignment does not constitute a delay, but is merely lawful conduct. See Tr. 7:9-18, 15:13-15 (Dec. 10, 2020). The Court finds Plaintiff's argument here, that such a request to travel is typical and lawful, persuasive. No evidence has been offered to show that Plaintiff's request caused any delay to his subsequent filings or proceedings. A lawful request from the courts cannot be deemed per se dilatory. See Radcliffe & Biolchini, Practical Guide § 15.8 ARRAIGNMENT, 2015 WL 5706468 (stating that "[t]ypical bail conditions require that the defendant agree to . . . not leave the state without court permission" and advising practitioners to "ask your client beforehand whether he or she must leave the state for work or education, and, if so, request permission to leave the state"). Consequently, the only delay that Plaintiff can properly be deemed responsible for is that related to his motion for a bill of particulars.
B
Causation
Next, the Court must determine what kind of causation is contemplated by § 42-28.6-13(d). Defendants contend that, to be entitled to a stay of his suspension without pay, Plaintiff must show the delay in his disposition was completely outside of his control and that nothing he did contributed or could have contributed to that delay. (Defs.' Mem. 3-4.) Defendants argue that the District Court's COVID-19 orders should not constitute a "free pass" entitling Plaintiff to continued pay and benefits despite his contributions to the delay of his disposition. Id. at 5.
Initially, the Court notes that Defendants seem to be articulating a "clean hands" argument. The Rhode Island Supreme Court has held that "the doctrine of unclean hands 'becomes operative only when a complainant must depend on his own improper conduct to establish his rights[.]'" Rodriques v. Santos, 466 A.2d 306, 311 (R.I. 1983) (quoting School Committee of Pawtucket v. Pawtucket Teachers Alliance, Local No. 930, 101 R.I. 243, 257, 221 A.2d 806, 815 (1966)). Essentially, Defendants interpret the statutory language requiring that any delay be "outside the law enforcement officer's control" to mean that it would be inequitable for this Court to grant Plaintiff a stay when he has engaged in conduct that "could have delayed" the proceedings were it not for the actual delay caused by the pandemic. See Defs.' Mem. 4-5. At oral argument, Defendants stated that Plaintiff knew he would lose the right to continued pay under the LEOBOR after six months and knew that the District Court was reducing but not eliminating the number of in-person hearings due to COVID-19, and thus could have taken steps to hasten the process to get to trial. See Tr. 12:19-23, 13:18-25, 14:7-18 (Dec. 10, 2020).
The LEOBOR is "a creature of statute" and "'[t]he rules of statutory construction require [courts] to give statutory provisions their customary and ordinary meaning in the absence of legislative intent to the contrary.'" Laprade, 94 A.3d at 514 (quoting In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994) (further citation omitted)). This means that "'[i]f a statutory provision is unambiguous, there is no room for statutory construction and we must apply the statute as written.'" Id. (quoting In re Denisewich, 643 A.2d at 1197). The plain and unambiguous language of the relevant provision of the LEOBOR requires that delays be "outside the law enforcement officer's control." Sec. 42-28.6-13(d). While Rhode Island's speedy trial jurisprudence is instructive on the concept of what constitutes an excusable delay, the same cases are less useful when the question is what type of causation is dispositive under LEOBOR. See, e.g., Oliveira, 127 A.3d at 74 (finding that "the controlling reason for the delay" in that case "was that the defense was not ready for trial"). Here, as in Ferretti, there were at least two direct causes of the delays in Plaintiff's criminal proceeding: the pandemic and his late filing of a motion for a bill of particulars. See Ferretti, 2011 WL 130249, at *2. While the delays caused by the pandemic were obviously "outside the law enforcement officer's control," the late filing of the motion for a bill of particulars was not.
Unlike the plaintiff in Ferretti, Plaintiff's conduct here is not the primary cause of the lack of disposition. See Ferretti, 2011 WL 130249, at *2. However, it need not be: the LEOBOR flatly precludes the Plaintiff from entitlement to a stay where the delay in his proceedings is within his control. Consequently, Plaintiff's failure to make reasonable efforts to expediently resolve his criminal proceedings, as evidenced by his preemptive request for expanded time to file motions and the delay in filing his motion for a bill of particulars, precludes him from entitlement to a stay of his suspension without pay under the LEOBOR. See § 42-28.6-13(d); Alix, 497 A.2d at 22 (construing property settlement against wife where her actions delayed the final divorce decree, because "equity regards as done that which ought to be done").
C
Rights of Criminal Defendants
As a final matter, at oral argument Plaintiff maintained that Defendants' interpretation of the causation required to preclude entitlement to a stay under § 42-28.6-13(d) of the LEOBOR would constitute a forfeiture of a law enforcement officer's rights to basic defense procedures. See Tr. 6:4-11 (Dec. 10, 2020). Plaintiff's argument here seems to be that, because criminal defendants are accorded certain protections as a group, any holding that Plaintiff was required to make expedience the sole determination in formulating his defense might infringe on those constitutional protections. See, e.g., California v. Trombetta, 467 U.S. 479, 485 (1984) ("Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness . . . requir[ing] that criminal defendants be afforded a meaningful opportunity to present a complete defense.").
Plaintiff is entitled to certain constitutional protections as a criminal defendant. See Trombetta, 467 U.S. at 485 (defining "the area of constitutionally guaranteed access to evidence" under the Due Process Clause); State v. Coelho, 454 A.2d 241, 244 (R.I. 1982) ("Rhode Island has continuously amended its [pretrial discovery] rule so that it now has one of the most liberal discovery mechanisms in the United States.") (citing State v. Darcy, 442 A.2d 900, 902 (R.I. 1982); State v. McParlin, 422 A.2d 742, 745 (R.I. 1980)). He is not entitled to continuing pay while he enjoys them beyond the statutory period. After all, as this Court held in Ferretti, "providing officers with job protection while they are awaiting the disposition of a criminal matter is 'an act of grace created by state legislation'; a town that follows the statute by converting suspensions to those without pay, is not interfering with any" constitutionally protected rights. See Ferretti, 2011 WL 130249, at *5 (holding that LEOBOR's 180 day suspension with pay is a statutory privilege, not a constitutional right). Plaintiff had notice of the potential consequences of his strategic choices throughout his criminal proceedings. The Court has found delay caused by Plaintiff and that is sufficient. See Laprade, 94 A.3d at 520 n.3 (recognizing that "LEOBOR's deadlines have historically been applied strictly by the Superior Court, regardless of the consequences").
IV
Conclusion
Consequently, this Court denies Plaintiff's petition for stay of suspension without pay because he contributed to the delay in his criminal proceedings by filing his motion for a bill of particulars outside of the period outlined in Rule 6(e) of the District Court Rules of Criminal Procedure and by preemptively requesting extended time to review the State's discovery. Such delays, while constitutionally permitted, end his entitlement to continued pay under the LEOBOR. Order to enter.