Peter Montaquila v. Peter F. Neronha, in his official capacity as Attorney General of Rhode Island

March 2, 2023

Supreme Court

No. 2021-146-M.P.

(Dissent begins on Page 12)

Peter Montaquila :

v. :

Peter F. Neronha, in his official capacity :
as Attorney General of
Rhode Island, et al.

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2021-146-M.P.

(Dissent begins on Page 12)

Peter Montaquila :

v. :

Peter F. Neronha, in his official capacity :
as Attorney General of
Rhode Island, et al.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Long, for the Court. This case came before the Supreme Court after

we granted a request from the petitioner, Peter Montaquila, for a writ of certiorari.

Mr. Montaquila seeks review of a final decision by the respondent, the Rhode Island

Office of the Attorney General, that denied his application to renew his concealed

or open-carry license pursuant to G.L. 1956 § 11-47-18(a).1 This Court issued the

writ and ordered the parties to appear and show cause why the issues raised in this

1
The initiating case documents name Peter F. Neronha and Edward Troiano, in their
official capacities as the Attorney General of Rhode Island and the Chief of the
Bureau of Criminal Identification and Investigation respectively, as respondents.
The parties refer to the respondents jointly as “the Attorney General.” We do the
same.
-1-
appeal should not be summarily decided. After considering the parties’ written and

oral submissions and reviewing the record, we conclude that cause has not been

shown and that this case may be decided without further briefing or argument. For

the reasons set forth in this opinion, we set aside the Attorney General’s decision

and quash the Attorney General’s denial.

Facts and Procedural History

On October 28, 2020, Providence police officers arrested Mr. Montaquila for

misdemeanor simple assault after an incident involving his firearm at his place of

business. The Providence Police Department seized the firearm and three days later,

based on this charge, the Attorney General revoked his license to carry concealed

weapons. Eventually the government dismissed the charge against him.

On or after November 2, 2020, Mr. Montaquila applied to renew license

No. 9012031, his concealed-carry license which was scheduled to expire on

December 30, 2020. The application form questioned whether the applicant had

“ever been arrested or charged for any offense[.]” Mr. Montaquila marked both the

“yes” and “no” boxes and wrote “see letter attached.”

In the undated letter attached to his application, Mr. Montaquila explained the

incident as follows:

“[A] gentleman came into my business, which is a gas
station and auto detailing facility[,] and became
immediately combative and aggressive toward my staff
because they would not perform certain work for free. He
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was clearly under the influence of drugs at the time. He
began to throw items off the desk and act very threatening
in my store.

“I came out of my office at my employees’ request to
mediate the situation. I told the gentleman he would have
to leave the premises, and at that time he got very close to
my face and shoved me away. At that point, I put my arms
around his shoulders and walked him out the door. At no
point did I strike, hit, or assault this person.
“The man then called the Providence Police, falsely
reported that I assaulted him without reason, and I was
arrested.”
In closing his letter, he stated that the government had already dismissed the charge

and that his record was set to be sealed on January 6, 2021.

Mr. Montaquila authorized the Attorney General to investigate his

background and to disclose and review “all records and any other information

concerning [Mr. Montaquila] whether such records and other information are public,

private, privileged, or confidential.” The police report describing the

October 28, 2020 incident (incident report) included information that

Mr. Montaquila did not disclose in the undated letter attached to his application.

Specifically, the incident report stated that the man who called the police told them

that after Mr. Montaquila pulled him out of the store, Mr. Montaquila pulled a black

gun from his waistband and pointed it at the man’s head. When the police arrived

at the scene, they found Mr. Montaquila’s loaded black gun tucked into his

waistband. The incident report also noted that Mr. Montaquila stated that he

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brandished his firearm because he feared the other man was attempting to retrieve a

weapon from his car. Finally, the incident report stated that the allegation that Mr.

Montaquila pointed the gun at the other man was “still under investigation.”

On December 7, 2020, the case against Mr. Montaquila was dismissed

pursuant to Rule 48(a) of the District Court Rules of Criminal Procedure. The

Attorney General subsequently notified Mr. Montaquila that it required additional

information, including motions or orders of expungement. Additionally, on

December 26, 2020, the Attorney General asked then-Providence Police Chief Hugh

Clements if he knew of any reason why Mr. Montaquila’s application should be

denied.

On January 6, 2021, the District Court granted Mr. Montaquila’s motion to

seal his record, and Mr. Montaquila sent the order to the Attorney General.

Thereafter, on January 25, 2021, Chief Clements indicated that he knew of no reason

why the Attorney General should deny the application.

By letter dated March 4, 2021, the Attorney General denied Mr. Montaquila’s

application. The letter stated:

“It has been decided by this Office, in its broad discretion
to issue a permit to carry a pistol or revolver, to deny your
application [d]ue to the last incident report CCR# 2020-
89706 and arrest. In the police report you stated that
you pulled you[r] firearm from your back area and
brandished it. Your letter explaining the incident does
not include the brandishing of your firearm.”

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At Mr. Montaquila’s request, the Attorney General held an appeal conference by

telephone on April 14, 2021. During the conference, Mr. Montaquila’s counsel

acknowledged that the Attorney General’s initial revocation of Mr. Montaquila’s

license after his arrest was valid, but argued that the denial of his subsequent

application was not.2 The Attorney General concluded that Mr. Montaquila did not

“provide any additional information” and upheld its original decision.

Mr. Montaquila filed a timely petition for a writ of certiorari, presenting three

questions for our consideration: (1) whether the Attorney General intentionally

violated a court order by failing to destroy his sealed arrest record and relying on it

when denying his application; (2) whether the Attorney General violated a court

order “by offering to disseminate” the sealed record as part of a discovery package

in the absence of court approval; and (3) whether the Attorney General improperly

denied his application, such that this Court should reverse “the denial and order[ ]

the [Attorney General] to renew” his license. We granted the petition for the writ as

prayed and ordered the Attorney General to transmit the record of the underlying

proceedings. The Attorney General thereafter moved to file the certified record

under seal, and we granted the motion.

2
The record does not indicate that there was a challenge to or hearing regarding
the revocation of license No. 9012031.
-5-
Issues Presented

Mr. Montaquila argues that the Attorney General erred in denying his

application for a renewed concealed or open-carry license under the Firearms Act,

G.L. 1956 chapter 47 of title 11, because, according to the January 6, 2021 order of

the District Court, the Attorney General was obligated “to destroy all documents”

pursuant to G.L. 1956 § 12-1-12.3 The essence of his argument is that the Attorney

General improperly relied on a document that should have been destroyed, and that

the Attorney General otherwise lacked legally competent evidence to support the

denial of his application.

We consider Mr. Montaquila’s argument concerning the requirements of

§ 12-1-12 and whether the record contains legally competent evidence to support the

denial of his application under the Firearms Act.

Standard of Review

When a licensing authority denies a concealed-carry license application under

the Firearms Act, the applicant may seek review in this Court by petition for a writ

of certiorari. Mosby v. Devine, 851 A.2d 1031, 1051 (R.I. 2004). We limit our

3
Mr. Montaquila’s statement filed pursuant to Article I, Rule 12A of the Supreme
Court Rules of Appellate Procedure summarizes the issue presented as involving
G.L. 1956 § 15-15-1, but proceeds to discuss § 12-1-12. Moreover, Mr. Montaquila
also provides no analysis regarding whether the Attorney General’s offer to
disseminate the sealed record during the administrative appeal violated the terms of
the order of the District Court. We therefore deem the issue waived. State v. Chase,
9 A.3d 1248, 1256 (R.I. 2010).
-6-
review “to an examination of the record[.]” In re McBurney Law Services, Inc., 798

A.2d 877, 881 (R.I. 2002) (quoting Asadoorian v. Warwick School Committee, 691

A.2d 573, 577 (R.I. 1997)). “If legally competent evidence exists to support that

determination, we will affirm it unless one or more errors of law have so infected

the validity of the proceedings as to warrant reversal.” Smithfield Voters for

Responsible Development, Inc. v. LaGreca, 755 A.2d 126, 128 (R.I. 2000) (quoting

Kent County Water Authority v. State (Department of Health), 723 A.2d 1132, 1134

(R.I. 1999)).

“Legally competent evidence is defined as ‘such relevant evidence that a

reasonable mind might accept as adequate to support a conclusion, and means an

amount more than a scintilla but less than a preponderance.’” Beagan v. Rhode

Island Department of Labor and Training, 162 A.3d 619, 626 (R.I. 2017) (quoting

Rhode Island Temps, Inc. v. Department of Labor and Training, Board of Review,

749 A.2d 1121, 1125 (R.I. 2000)).

Legally Competent Evidence

The Firearms Act requires an individual to obtain a license to carry a visible

or concealed weapon, G.L. 1956 § 11-47-8(a), and identifies two licensing

authorities: municipalities, which may issue licenses to carry concealed weapons

pursuant to § 11-47-11; and the Attorney General, who may issue a license to carry

a visible or concealed firearm pursuant to § 11-47-18.

-7-
In delegating this licensing authority, the General Assembly assigned to state

and municipal officials the duty to investigate applicants and to make findings of

fact about whether applicants satisfy the licensing criteria. State v. Storms, 112 R.I.

121, 126, 308 A.2d 463, 466 (1973). The Attorney General has discretion in its fact-

finding endeavors, but it must meet “minimum procedural requirements” when

denying an application. Mosby, 851 A.2d at 1051. Upon completion of an

investigation, the Attorney General must disclose the evidence upon which it based

its decision “and the rationale for the denial.” Id. Moreover, while the Attorney

General enjoys discretion in its fact-finding role, that discretion is not boundless. See

New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2161-62

(2022) (Kavanaugh J., concurring) (cautioning states with constitutionally

permissible licensing regimes against operating so as to “grant open-ended

discretion to licensing officials”).

In this case the Attorney General relied on Mr. Montaquila’s sealed arrest

record in denying his license application. The denial letter explained that the

decision was “[d]ue to the last incident report[.]” The denial letter further

specified that Mr. Montaquila told the police “that [he] pulled [his] firearm * * *

and brandished it.” Mr. Montaquila asserts this reliance was error, because, he

argues, § 12-1-12 required the destruction of “all documents.”

Section 12-1-12 provides, in relevant part:

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“Any fingerprint, photograph, physical measurements, or
other record of identification, heretofore or hereafter taken
by or under the direction of the attorney general, the
superintendent of state police, the member or members of
the police department of any city or town, or any other
officer authorized by this chapter to take them, of a person
under arrest, prior to the final conviction of the person for
the offense then charged, shall be destroyed by all offices
or departments having the custody or possession within
sixty (60) days after there has been an acquittal, dismissal,
no true bill, no information, or the person has been
otherwise exonerated from the offense with which he or
she is charged, and the clerk of court where the
exoneration has taken place shall, consistent with § 12-1-
12.1, place under seal all records of the person in the case
including all records of the division of criminal
identification established by § 12-1-4.” Section 12-1-
12(a)(1).
When this Court construes a statute, we “interpret the statute literally and must give

the words of the statute their plain and ordinary meanings.” Waterman v. Caprio,

983 A.2d 841, 844 (R.I. 2009) (quoting Iselin v. Retirement Board of Employees’

Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008)). The clear,

unambiguous language of § 12-1-12 plainly does not mandate the destruction of all

records as Mr. Montaquila suggests. Mr. Montaquila provides no analytical basis

for such a broad reading, and we summarily reject his unsupported, conclusory

assertion.

Nevertheless, we must assess whether the incident report and stated rationale

suffice as adequate to support the denial.

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The Attorney General argues that it did not rely on the sealed incident report,

and states that in any case, the record reflects that Mr. Montaquila acknowledged the

circumstances surrounding his arrest, as well as the propriety of the revocation of

his prior license immediately following his arrest. The Attorney General further

argues that it had broad discretion to consider these facts and how they bear upon

whether Mr. Montaquila demonstrated that he had not, and would not, use his

firearm for any unlawful or improper purpose; or whether Mr. Montaquila engaged

in unlawful, dangerous, or violent conduct that justified denying his application.

We are unpersuaded by the arguments of the Attorney General regarding the

denial letter and the inferences drawn from the evidence in the record. First, the

denial letter, dated more than sixty days after the dismissal of the assault charge,

clearly relies on the incident report. Specifically, it notes that the incident report

included facts that Mr. Montaquila did not divulge in his license application and

bases the denial on Mr. Montaquila’s failure to state that he brandished the firearm.

However, the omission of the word “brandished” in describing the incident is not

legally competent evidence to support the denial.

Additionally, our examination of the record reveals no evidence to support the

denial of Mr. Montaquila’s license application. Nothing contained in the record

demonstrates any investigation of Mr. Montaquila’s fitness to carry beyond

contacting Chief Clements on December 26, 2020. Having received the District

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Court order that reflects dismissal of the assault charge pursuant to Rule 48(a), as

well as the January 25, 2021 notification from Chief Clements that he was not aware

of any basis for denying the application, nothing before the Attorney General

suggested that Mr. Montaquila acted in anything other than self-defense during the

incident. Without any other evidence or rationale justifying the denial, Mr.

Montaquila’s omission is, at best, mere scintilla. We therefore conclude that there

is no legally competent evidence to support the Attorney General’s decision.

Appropriate Remedy

The Attorney General argues that if this Court reverses its decision, we would

“run[ ] afoul of this Court’s precedent[.]” Citing our decision in Gadomski v.

Tavares, 113 A.3d 387 (R.I. 2015), the Attorney General notes that we previously

“remanded a matter to the permitting authority rather than ordering the permit to be

issued.” In Gadomski, the East Providence Police Chief denied the petitioner’s

application for a concealed-carry license pursuant to § 11-47-11. Gadomski, 113

A.3d at 387. It is distinguishable from the case at bar. See id. at 389-90

(distinguishing the licensing procedures in §§ 11-47-11 and 11-47-18). In

Gadomski, we remanded for further fact finding for two reasons: First, the licensing

authority applied the “incorrect standard” when reviewing the petitioner’s

application, and second, the denial letter in Gadomski provided only “bare, rote

conclusions” as the basis for the denial. Id. at 391, 392 (noting the licensing authority

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must make the “necessary [factual] findings to support the determination”) (quoting

Bernuth v. Zoning Board of Review of Town of New Shoreham, 770 A.2d 396, 401

(R.I. 2001)). In contrast, there is no indication that further fact-finding is needed in

this case. See Bernuth, 770 A.2d at 401 (remarking that a factfinder “is required to

make findings of fact and conclusions of law in support of its decisions in order that

such decisions may be susceptible of judicial review”) (quoting Cranston Print

Works Co. v. City of Cranston, 684 A.2d 689, 691 (R.I. 1996)). The Attorney

General provided a rationale for denying Mr. Montaquila’s application: His

description of the arrest did not match the police report in certain respects. The

Attorney General exercised its discretion on the basis of that description; and we

have examined the record accordingly. Remand is therefore unnecessary.

Conclusion

For the foregoing reasons, we conclude that the Attorney General’s decision

was not based on legally competent evidence. We set aside the Attorney General’s

decision and quash its denial of Mr. Montaquila’s application. This case is remanded

to the Attorney General with direction to renew the petitioner’s concealed-carry

permit.

Justice Robinson, dissenting. While I acknowledge the compelling

attractiveness of the straightforward prose with which the majority has organized

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and explained its analysis of the issues in this deceptively simple case, at the end of

the day I find myself unable to agree with that analysis. The truth is that I simply

view the facts before us and the applicable law in a perspective that differs radically

from that of the majority. Accordingly, I respectfully dissent. In my judgment, the

Attorney General’s decision to deny Mr. Montaquila’s application was the product

of the reasoned exercise of his broad discretion, and I am convinced that his decision

to deny the application should be upheld.

In the preceding paragraph, I characterized this case as being “deceptively

simple.” I used those words because, at first glance, it is understandable why it might

appear to some that the granting of Mr. Montaquila’s “motion to seal” on January 6,

2021 in effect barred the Attorney General from giving any weight to what the sealed

documents revealed about what had actually transpired on October 28, 2020 at

Finest Car Wash & Auto Repair (Mr. Montaquila’s place of business). In my view,

however, that “first-glance” impression as to how this case should be resolved is

fundamentally erroneous as being the product of a misunderstanding of what the

Attorney General was entitled to rely upon in considering Mr. Montaquila’s

application for a concealed-weapons permit.

As is so often the case when one is confronted with an apparently complex

situation, close attention to the chronology of events can be enlightening—and I

submit that the chronology of what happened in this case should lead to the

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conclusion that, keeping in mind the broad discretion with which the Attorney

General is vested in such matters, 1 it is my definite opinion that his decision to deny

Mr. Montaquila’s application should be affirmed.

The Relevant Chronology

It is uncontested that Mr. Montaquila was involved in an altercation with

another person at the above-referenced place of business on October 28, 2020. It is

further uncontested that that altercation resulted in Mr. Montaquila being arrested

and charged by the Providence Police with “simple assault or battery.” 2

Thereafter, on November 2, 2020, Mr. Montaquila applied for a new “License

to Carry a Concealable Weapon” (hereinafter “the LTC”).

In connection with his LTC application, Mr. Montaquila submitted an eight-

paragraph letter concerning the events that culminated in his arrest on October 28,

2020. That letter set forth Mr. Montaquila’s version of the events which took place

on that date, but it made absolutely no mention of his having brandished a firearm

in the course of those events. (The latter fact is noted in the incident report prepared

by the Providence Police, which I discuss infra.)

1
See Mosby v. Devine, 851 A.2d 1031, 1051 (R.I. 2004).
2
The incident which is at the center of this case took place on October 28, 2020.
Mr. Montaquila has not challenged the revocation of his then-active license that
occurred immediately thereafter. In fact, his attorney has expressly conceded that
that revocation was valid. It is Mr. Montaquila’s later application for a new license
and the eventual denial of that application that is the only focus of the majority’s
opinion and of this dissent.
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Also in connection with his LTC application, Mr. Montaquila signed and had

notarized a document entitled “Authorization for Release of Information.” Said

Authorization stated in pertinent part as follows:

“I, Peter P. Montaquila, Jr., hereby give the Office of
Attorney General the authority to conduct a
comprehensive investigation of my background including,
but not limited to, oral discussions with any person
concerning my background. I also authorize a review and
full disclosure of all records and any other information
concerning myself whether such records and other
information are public, private, privileged or
confidential.”

A police report concerning the October 28, 2020 incident was among the

records provided to the Attorney General. (The majority opinion refers to that

document as the “incident report,” and I shall do likewise.) As the majority opinion

correctly notes, the incident report “included information that Mr. Montaquila did

not disclose in the undated letter attached to his application.” The majority opinion

then goes on to accurately summarize what the incident report stated relative to the

information that Mr. Montaquila had chosen not to disclose—notably the fact that

Mr. Montaquila had stated to the police that “he brandished his firearm because he

feared the other man was attempting to retrieve a weapon from his car.”

On December 7, 2020, the charge against Mr. Montaquila was dismissed by

the Sixth Division District Court pursuant to Rule 48(a) of the District Court Rules

of Criminal Procedure.

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On January 6, 2021, the District Court granted Mr. Montaquila’s motion to

seal the records pertaining to the above-referenced criminal charge.

On March 4, 2021, the Attorney General denied Mr. Montaquila’s LTC

application.

Mr. Montaquila, assisted by counsel, appealed from the Attorney General’s

decision; and on April 14, 2021, a telephonic appeal conference was held.

A letter dated April 21, 2021 to Mr. Montaquila from Edward Troiano (the

Chief of the Attorney General’s Bureau of Criminal Identification and Investigation)

notified him that his appeal had been denied. That letter contains the following

important sentences:

“Mr. Saccoccio [Mr. Montaquila’s attorney] * * *
acknowledged that you submitted a letter with your
application specifically referencing the incident [of
October 28, 2020] and explaining your role, but leaving
out the fact that you removed a firearm from your
waistband and brandished it during the incident. The
arrest report related to the October 28, 2020 incident was
also available to and reviewed by this office at the time of
your application, prior to it being sealed by order of the
Court.” (Emphasis added.) 3

3
The sentence in Mr. Troiano’s letter that I have italicized is highly significant
because it states that the incident report was reviewed by an official in the Attorney
General’s office “prior to it being sealed by order of the Court.”
Although the document which summarized the facts about what transpired on
October 28, 2020 was eventually the subject of the sealing order, the facts
themselves which the document made known to the Attorney General’s office were
not thereby erased from human cognition and memory. Indeed, how could they be?
- 16 -
Discussion

This Court’s limited role in this case is to determine whether there was legally

competent evidence to support the Attorney General’s decision. See Preservation

Society of Newport County v. City Council of the City of Newport, 155 A.3d 688,

692 (R.I. 2017) (“Our task is to scour the record to discern whether any legally

competent evidence supports the lower tribunal’s decision and whether the decision-

maker committed any reversible errors of law in the matter under review.”) (internal

quotation marks omitted); see also Smithfield Voters for Responsible Development,

Inc. v. LaGreca, 755 A.2d 126, 128 (R.I. 2000). As the majority correctly notes,

legally competent evidence has been authoritatively defined as “such relevant

evidence that a reasonable mind might accept as adequate to support a conclusion,

and means an amount more than a scintilla but less than a preponderance.” Rhode

Island Temps, Inc. v. Department of Labor and Training, Board of Review, 749 A.2d

1121, 1125 (R.I. 2000) (internal quotation marks omitted); see also Beagan v. Rhode

Island Department of Labor and Training, 162 A.3d 619, 626 (R.I. 2017).

The Attorney General has broad discretion with respect to LTC applications.

See Mosby v. Devine, 851 A.2d 1031, 1051 (R.I. 2004).4 And, once the Court has

4
Although the Attorney General is vested with broad discretion in this domain,
it is certainly not boundless. See Mosby v. Devine, 851 A.2d 1031, 1050 (R.I. 2004)
(expressly stating that “decisions of the Attorney General in licensing matters are
not immune from judicial review”).

- 17 -
determined that the Attorney General did not abuse his discretion in a particular case,

whether the members of this Court might not have exercised their discretion to the

same effect is legally irrelevant. See, e.g., State v. Gillespie, 960 A.2d 969, 980 (R.I.

2008) (“[W]e may uphold a trial justice’s ruling even if we would have ruled

differently had we been in the trial justice’s position.”). 5

The fact that Mr. Montaquila’s letter omitted an important and material fact

relative to what occurred on October 28, 2020 is troubling in its own right. But the

fact that the incident report indicated that Mr. Montaquila had “brandished” his

firearm during the incident constituted, in my judgment, more than enough of a

reasonable basis upon which the Attorney General could make his discretionary

decision not to approve Mr. Montaquila’s application. That decision was based on

legally competent evidence, and the quantum of that evidence was far more than a

scintilla. See Rhode Island Temps, Inc., 749 A.2d at 1125.

The granting of the motion to seal resulted in the documents referenced in said

motion being sealed. However, the facts recounted in those documents (of which

5
See Harodite Industries, Inc. v. Warren Electric Corporation, 24 A.3d 514,
533 (R.I. 2011); State v. Gongoleski, 14 A.3d 218, 222 (R.I. 2011); North
Providence School Committee v. North Providence Federation of Teachers, Local
920, American Federation of Teachers, 945 A.2d 339, 345 n.10 (R.I. 2008); see also
National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642
(1976) (per curiam) (“The question, of course, is not whether this Court, or whether
the Court of Appeals, would as an original matter have dismissed the action; it is
whether the District Court abused its discretion in so doing.”)

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the Attorney General was aware prior to the granting of the motion to seal) were not

somehow nullified—nor could they be. The sealing statute brings about the sealing

of records; it does not mandate the erasure from consciousness of factual knowledge

concerning events that took place and were known prior to the issuance of the sealing

order. 6

An important decision of the United States Court of Appeals for the Second

Circuit involved an analogous situation and merits careful attention. Martin v.

Hearst Corporation, 777 F.3d 546 (2d Cir. 2015). In that case, the federal appellate

court unanimously affirmed the grant of summary judgment in favor of the

defendants (various media outlets). See id. at 553. The plaintiff, one Lorraine

Martin, had sued those defendants alleging, inter alia, libel and invasion of privacy

against the defendants because they had refused to remove from their respective

websites the fact that she had been arrested for various drug offenses in August of

2010 but had never been prosecuted and had had her arrest records erased in January

of 2011 pursuant to Connecticut’s “Erasure Statute.” Id. at 549. Ms. Martin

contended that “even though she [had been] arrested, once erasure occurred in

January 2011, it became false and defamatory to publish statements regarding that

6
Since it is my view that the Attorney General’s decision should be upheld, I
need not and therefore shall not express an opinion as to the majority’s decision
about the appropriate remedy—i.e., its decision not to remand this case to the
Attorney General for further fact-finding.
- 19 -
arrest.” Id. The Second Circuit rejected that contention, and it wrote as follows:

“Here, the uncontroverted fact is that Martin was arrested on August 20, 2010, and

that the reports of her arrest were true at the time they were published. Neither the

Erasure Statute nor any amount of wishing can undo that historical truth. The

Moving Finger has written, and moved on.” Id. at 551-52; 7 see also G.D. v. Kenny,

15 A.3d 300, 315-16 (N.J. 2011) (“[T]he expungement statute does not transmute a

once-true fact into a falsehood. * * * It is not intended to create an Orwellian scheme

whereby previously public information * * * now becomes beyond the reach of

public discourse * * *.”).

For these reasons, I heartily disagree with the majority’s conclusion that

“there is no legally competent evidence to support the Attorney General’s decision.”

Therefore, I respectfully dissent.

7
The “Moving Finger” metaphor alluded to by the Second Circuit in the Martin
case is derived from the famous “Rubáiyát of Omar Khayyam,” a Persian poem that
was translated into English by the poet Edward Fitzgerald in 1859. The Moving
Finger refers to the fact that time moves relentlessly forward and that, once an event
has taken place, nothing will be able to “lure it back to cancel half a [l]ine.” See
Martin v. Hearst Corporation, 777 F.3d 546, 552 n.7 (2d Cir. 2015) (quoting the
relevant lines from the English translation of the poem).
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Peter Montaquila v. Peter F. Neronha, in his official
Title of Case
capacity as Attorney General of Rhode Island, et al.

Case Number No. 2021-146-M.P.

Date Opinion Filed March 2, 2023

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Melissa A. Long

Source of Appeal Attorney General Administrative Appeal

Judicial Officer from Lower Court N/A

For Petitioner:

Frank R. Saccoccio, Esq.
Attorney(s) on Appeal For Respondent:

Andrea M. Shea
Department of Attorney General

SU-CMS-02A (revised November 2022)