Tarzia v. State

• Decision Date: 12 June 2012
• Docket Number: No. 2010–15–Appeal.,2010–15–Appeal.
• Citation: 44 A.3d 1245
• Parties: Nicola TARZIA v. STATE of Rhode Island et al.
• Court: Rhode Island Supreme Court

44 A.3d 1245

Nicola TARZIA

v.STATE of Rhode Island et al.

No. 2010–15–Appeal.

Supreme Court of Rhode Island.

June 12, 2012.

Robert J. Caron, Esq., for Plaintiff.

Michael W. Field, Esq., for Defendant, Newport District Court Clerk's Office and Department of Attorney General.

Kathleen M. Daniels, Esq., Providence, for Defendant, City of Newport, Police Chief McKenna, and Lt. William Fitzgerald.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

This case obliges this Court to examine what remedies may be available to an individual who is aggrieved because of the publication of his past criminal activity after the records of the individual's crime have been ordered sealed and destroyed. The plaintiff, Nicola Tarzia (Tarzia or plaintiff), appeals from judgments in favor of the State of Rhode Island, the Department of Attorney General, Attorney General Patrick Lynch, the Chief Clerk of the Rhode Island District Court, the Clerk for the Second Division District Court, the City of Newport, and Chief Charles Golden and Lieutenant William Fitzgerald of the Newport Police Department. For the reasons set forth in this opinion, we affirm the judgments of the Superior Court.

IFacts and Travel

In August 2002, Tarzia, a resident of Stamford, Connecticut, and an elected member of the Stamford Board of Education, was visiting friends in Newport, Rhode Island, when he was arrested and charged with possession of cocaine in violation of G.L.1956 § 21–28–4.01(c)(1). In an effort to resolve this criminal charge, the Attorney General accepted Tarzia into the Adult Diversion Program.¹ After successfully completing the diversion program in August 2003, the state dismissed the charge under Rule 48(a) of the Superior Court Rules of Criminal Procedure.²

In September 2003, Tarzia began a romantic relationship with Christine Mello (Ms. Mello), which lasted approximately four months. Sometime in fall 2003,³ Ms. Mello began to repeatedly ask Tarzia if he had ever been arrested.⁴ Initially, Tarzia consistently told her “no.” Sometime later, however, Ms. Mello confronted Tarzia and indicated that she was aware of his August 2002 arrest. Tarzia consequently acknowledged to her that he had indeed been arrested. Sometime after this admission, Ms. Mello recounted to Tarzia the specific details surrounding his arrest, of which she apparently was already aware.⁵ According to Tarzia, Ms. Mello also informed him that she knew all about the arrest from the time of her first inquiry.

On October 17, 2003, Tarzia's then-attorney filed a “Motion to Expunge” in regard to the August 2002 charge using a pre-printed form made available by the Rhode Island District Court clerk's office. On October 28, 2003, the District Court heard and granted Tarzia's motion. At the bottom of the pre-printed form were two empty boxes made available for the District Court judge to mark as a way to effectuate his or her order. The first box, which was “checked” by the judge, was associated with the following language:

“That the court records of the above matter are ordered sealed pursuant to R.I.G.L. § 12–1–12.1 and the police records of the above matter are ordered destroyed pursuant to § 12–1–12.”

The language associated with the second box, which was not “checked,” read:

“That all records of the above matter are ordered expunged pursuant to R.I.G.L. § 12–1.3–3(C).”

The attorney who filed the “Motion to Expunge” on Tarzia's behalf testified at trial that, after the District Court judge “checked” and signed the order, the attorney had certified copies of the order mailed to the Bureau of Criminal Identification of the Department of Attorney General, the Newport Police Department, and to Tarzia's Connecticut attorney.⁶

According to Tarzia, around Christmastime 2003, he ended his relationship with Ms. Mello. Soon thereafter, Ms. Mello began threatening that she was going to expose his arrest to the media.⁷

On the evening of February 8, 2004, Tarzia participated in a school board meeting. At the conclusion of the meeting, a reporter from a local newspaper, The Advocate, approached Tarzia and questioned him about his prior arrest in Newport. Although it is unclear whether Tarzia actually confirmed his arrest to the reporter, the record is clear that he responded to the reporter's question by stating at a minimum that “it was a bogus charge.”

On March 6, 2004, The Advocate published a front-page article entitled “School board member is in web of legal issues” (the article). The article, admitted at trial as a full exhibit, included many details about Tarzia's arrest for cocaine possession in Newport in August 2002. The article noted that the day before publication, Tarzia himself “acknowledged he was arrested on a drug charge in August 2002 in Newport, R.I., but declined to discuss the case in detail.” The article also quoted Sergeant William Fitzgerald ⁸ (Sgt. Fitzgerald) of the Newport Police Department describing the circumstances of Tarzia's arrest. The article also referred to “[c]ourt records [that] indicate [d] the case was referred to a diversion program.” The Advocate subsequently published additional newspaper articles that pertained to Tarzia's arrest and his eventual resignation from the school board.

On March 2, 2006, Tarzia commenced this fifteen-count civil action in the Superior Court for Newport County, alleging unlawful dissemination of expunged records in violation of G.L.1956 § 12–1.3–4(d) by Sgt. Fitzgerald (count 1); negligence on Sgt. Fitzgerald's part (count 2); failure of the Attorney General's Office to notify law enforcement agencies, including the Newport Police Department, of the expungement order in violation of § 12–1.3–3(c) (count 3); supervisory liability on the part of former Attorney General Patrick Lynch for failing to properly train and supervise his subordinates in regard to the release of expunged records (count 4); unlawful dissemination of expunged records in violation of § 12–1.3–4(d) by Susan Calderone (Ms. Calderone), Clerk of the Second Division District Court (count 5); failure of Ms. Calderone to seal plaintiff's records in violation of G.L.1956 § 12–1–12.1(d) (count 6); supervisory liability on the part of Jerome Smith, Chief Clerk of the District Court, for failing to properly train and supervise his subordinates in regard to the sealing of records (count 7); supervisory liability on the part of Chief Charles Golden of the Newport Police Department for failing to properly train and supervise officers on procedures for responding to inquiries of arrest records (count 8); failure of the City of Newport to properly hire, train, and supervise officers “in the law of Rhode Island's Expungement statutes” (count 9); negligence by Sgt. Fitzgerald for releasing information without properly checking the file beforehand (count 10); negligence by Ms. Calderone for not sealing plaintiff's record (count 11); invasion of privacy by Sgt. Fitzgerald for releasing information ordered destroyed (count 12); invasion of privacy by Sgt. Fitzgerald by providing false and erroneous information to a reporter (count 13); ⁹ and unlawful dissemination of expunged records in violation of § 12–1.3–4(d) by John Doe and Jane Doe, working as clerks for the District Court (counts 14 and 15).¹⁰

Prior to trial on April 3, 2006, the Department of Attorney General and former Attorney General Patrick Lynch moved to dismiss counts 3 and 4 pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. After hearing arguments on the motion, a Superior Court justice dismissed both counts in a written order dated June 8, 2006. In granting the motion, the hearing justice found that § 12–1.3–3(c) did not place an affirmative duty on the Attorney General to distribute copies of the expungement order to respective law enforcement agencies.

Thereafter, over the course of six days in early February 2009, a jury trial transpired with a different justice presiding. At the close of Tarzia's presentation of evidence, both the state and city moved separately for judgments as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure.¹¹ These motions were granted as to all remaining counts. Tarzia's appeal to this Court followed.

Additional facts that are pertinent to the issues on appeal will be supplied in the following discussion.

IIIssues on Appeal

Tarzia advances numerous issues on appeal. First, he argues that the hearing justice erred in granting the state's Rule 12(b)(6) motion to dismiss based upon his ruling that the Attorney General did not have an affirmative duty to notify all relevant law enforcement agencies after a record has been formally expunged. Second, he maintains that the trial justice erred by not “harmonizing” §§ 12–1–12 and 12–1.3–4 in such a way as to allow him to invoke a remedy of civil liability in his case. Third, he contends that, in addition to the $100 fine explicitly available for violations of § 12–1–12, he is entitled to other causes of action based in common law. Fourth, he argues that the information Sgt. Fitzgerald allegedly provided to a reporter amounted to a violation of Rhode Island's right to privacy statute. Lastly, Tarzia contends that the trial justice erred when he determined that Ms. Calderone was sued in her official capacity only.

IIIStandards of Review

The solitary purpose of a Rule 12(b)(6) “motion to dismiss is to test the sufficiency of the complaint.” Narragansett Electric Co. v. Minardi, 21 A.3d 274, 277 (R.I.2011) (quoting Laurence v. Sollitto, 788 A.2d 455, 456 (R.I.2002)). When reviewing the grant of a Rule 12(b)(6) motion, “this Court applies the same standards as the trial justice” by assuming that the allegations contained in the complaint are true and examining the facts in the light most favorable to the plaintiff. Minardi, 21 A.3d at 278 (citing Barrette v. Yakavonis, 966 A.2d 1231, 1233 (R.I.2009)). “The grant...