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SJC-12723

             COMMONWEALTH   vs.   ASHE A., a juvenile.


                        October 29, 2019.


Delinquent Child. Juvenile Court, Delinquent child,
     Jurisdiction. Jurisdiction, Delinquent child, Juvenile
     Court, Juvenile delinquency proceeding. Practice,
     Criminal, Juvenile delinquency proceeding. Statute,
     Retroactive application.


     On February 20, 2018, a complaint issued against the
juvenile charging him with disturbing a school assembly, in
violation of G. L. c. 272, § 40, as amended by St. 1969, c. 463,
§ 1. He was arraigned in the Juvenile Court on the same day.
At the time, § 40 provided that "[w]hoever wilfully interrupts
or disturbs a school . . . shall be punished." While the
juvenile's case was pending in the Juvenile Court, on April 13,
2018, the Legislature enacted "An Act relative to criminal
justice reform" (act). St. 2018, c. 69. As part of the act,
the Legislature struck the former statute in its entirety and
replaced it.1 The statute now provides:

     "Whoever willfully interrupts or disturbs an assembly of
     people meeting for a lawful purpose shall be punished by
     imprisonment for not more than [one] month or by a fine of
     not more than [fifty dollars]; provided, however, that an
     elementary or secondary student shall not be adjudged a
     delinquent child for an alleged violation of this section
     for such conduct within school buildings or on school
     grounds or in the course of school-related events."

     1 In these circumstances, we consider the amendment of the
statute to constitute an explicit repeal of the statute's
earlier provisions. See Lazlo L. v. Commonwealth, 482 Mass.
325, 329 n.9 (2019).
                                                                   2



G. L. c. 272, § 40, as appearing in St. 2018, c. 69, § 159. A
judge in the Juvenile Court declined to apply the amended
statute retroactively to the juvenile's conduct, and the
juvenile was adjudicated delinquent in October 2018. We granted
the juvenile's application for direct appellate review to
consider whether St. 2018, c. 69, § 159, should be applied
retroactively to cases pending on April 13, 2018.2 We conclude
that it should. We vacate the delinquency adjudication and
remand the matter to the Juvenile Court for dismissal of the
complaint.

     Background. On February 16, 2018, while sitting with other
boys at a school lunch table, the juvenile made "prank"
telephone calls to a help hotline and a television news station.
When he spoke to the news station, the juvenile said something
to the effect of: "I didn't get my lunch, I feel like killing
someone." The news station contacted the police and a brief
investigation identified the source of the calls as the
juvenile's telephone and a tablemate's telephone. By that time,
the juvenile had been released from school for an unrelated
reason. Because the juvenile was no longer inside the school,
the school administration ordered the students, faculty, and
staff to shelter in place, disrupting the school routine. The
order remained in effect for about an hour, until both boys were
located.

     Discussion. The applicable principles of statutory
construction were recently described in Lazlo L. v.
Commonwealth, 482 Mass. 325, 328-330 (2019), and need not be
repeated here. To summarize, in construing a "strictly penal"
statute,3 Commonwealth v. Dotson, 462 Mass. 96, 99 (2012), the

    2  We acknowledge the amicus brief submitted by the youth
advocacy division and the youth advocacy foundation of the
Committee for Public Counsel Services; American Civil Liberties
Union of Massachusetts, Inc.; Massachusetts Appleseed; Charles
Hamilton Houston Institute for Race and Justice at Harvard Law
School; Citizens for Juvenile Justice; GLBTQ Legal Advocates &
Defenders; Mental Health Legal Advisors Committee; Massachusetts
Association of Criminal Defense Lawyers; and Anti-Defamation
League.

    3  General Laws c. 272, § 40, is a penal statute. It is
"designed to enforce the law by punishing offenders." Lazlo L.,
482 Mass. at. 330 ("Where a statute affects whether a child can
                                                                   3


presumption is that "[t]he repeal of a statute shall not affect
any . . . proceeding pending at the time of the repeal for an
offence committed . . . under the statute repealed," unless that
construction would be "[(1)] inconsistent with the manifest
intent of the law-making body or [(2)] repugnant to the context
of the same statute." G. L. c. 4, § 6. Our analysis begins,
therefore, with the presumption that St. 2018, c. 69, § 159, is
prospective in application.

     Lazlo L. provides the framework for discussion. In that
case, we considered whether either exception to the presumption
of prospectivity applied to a different section of the same act.
See St. 2018, c. 69, § 72. That section amended the definition
of "delinquent child" to, among other things, provide that a
child who commits a first offense of a misdemeanor "for which
the punishment is a fine, imprisonment in a jail or house of
correction for not more than [six] months or both" may not be
adjudicated a "delinquent child." Id. With respect to the
first exception, we concluded that there was "inadequate
evidence of the Legislature's manifest intent to apply § 72
retroactively to overcome the presumption of prospective
application." Lazlo L., 482 Mass. at 331-332. For the same
reasons we explained in Lazlo L., we conclude that the first
exception to the presumption of prospectivity does not apply to
St. 2018, c. 69, § 159. Neither the Legislature clearly
established that the amendment "would apply retroactively to
pending cases . . . [n]or are there any other provisions in the
act that would make prospective application of [§ 159]
'anomalous, if not absurd.'" Lazlo L., supra at 332, quoting
Commonwealth v. Bradley, 466 Mass. 551, 554 (2013).

     The second exception applies where "prospective application
would be 'repugnant to the context' of the statutory amendment."
Lazlo L., 482 Mass. at 332, quoting G. L. c. 4, § 6. We
consider in this context whether "it would be contrary to the
purpose of the statute to delay the accomplishment of that
purpose." Lazlo L., supra, quoting Bradley, 466 Mass. at 555-
556. We described the legislative history of the act in Lazlo
L., supra at 333, observing that "the Legislature understood
that children who enter the juvenile justice system have a
higher risk of reoffending for the remainder of their lives, and
. . . their risk of recidivism is greater the earlier they enter
the system." In § 72, the Legislature narrowed the definition
of "delinquent child" to "reduce the number of children who


be adjudicated delinquent . . . , an amendment to that statute
necessarily implicates the potential for punishment").
                                                                   4


enter the juvenile justice system." Lazlo L., supra. See
Wallace W. v. Commonwealth, 482 Mass. 789, 795 (2019). In
§ 159, the Legislature furthered the same purpose by
specifically removing certain school-based offenses from the
sphere of infractions for which juveniles may be adjudicated
delinquent. As we said in Lazlo L., supra at 334, "[w]e see no
reason to delay the application of an amendment aimed at
combatting the negative effects of Juvenile Court involvement on
children and their communities."

     Our conclusion that § 159 has retroactive application to
cases pending on April 13, 2018, is further buttressed by the
jurisdictional nature of the amendment. See Lazlo L., 482 Mass.
at 335. As of April 13, 2018, "the Juvenile Court no longer has
jurisdiction to adjudicate as a 'delinquent child,'" id., a
juvenile who "interrupts or disturbs an assembly of people"
within "school buildings or on school grounds or in the course
of school-related events," G. L. c. 272, § 40, as appearing in
St. 2018, c. 69, § 159. See G. L. c. 119, § 58. "Because
jurisdiction is a threshold requirement for a court to decide
any case, it would have been logical for the Legislature to
expect that Juvenile Court proceedings against children" for
violation of the school assembly statute "would cease and the
cases would be dismissed on the day" that § 159 became effective
and school-based adjudications of delinquency were removed from
the statute. Lazlo L., supra, citing Commonwealth v.
Mogelinski, 466 Mass. 627, 645 (2013) ("Juvenile Court is a
court of limited jurisdiction, which has no authority in the
absence of a specific statutory authorization" [quotation,
citation, and alteration omitted]).

     Conclusion. We need go no further.4 Because prospective
application of St. 2018, c. 69, § 159, would be repugnant to the
purpose of the Legislature's amendment of the school assembly
statute, the statute applies retroactively to cases that were
pending as of April 13, 2018. We vacate the adjudication of
delinquency, and we remand the matter to the Juvenile Court for
dismissal.


    4  Because we conclude that St. 2018, c. 69, § 159, applies
retroactively to cases pending on April 13, 2018, we do not
address the Commonwealth's claim that the Juvenile Court had
jurisdiction to adjudicate the juvenile a "delinquent child,"
for purposes of St. 2018, c. 69, § 72; or whether the evidence
was sufficient to support the adjudication of delinquency under
G. L. c. 272, § 40, as in effect prior to April 13, 2018.
                                                                5


                                   So ordered.


     Eva G. Jellison for the juvenile.
     Laurie Yeshulas, Assistant District Attorney, for the
Commonwealth.
     Melissa Allen Celli, for youth advocacy division of the
Committee for Public Counsel Services & others, amici curiae,
submitted a brief.
