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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.
