Kristin Riley v. The Narragansett Pension Board

June 2, 2022

Supreme Court

No. 2020-272-Appeal.
(WC 19-445)

(Dissent begins on Page 23)

Kristin Riley et al. :

v. :

The Narragansett Pension Board. :

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. 2020-272-Appeal.
(WC 19-445)

(Dissent begins on Page 23)

Kristin Riley et al. :

v. :

The Narragansett Pension Board. :

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

OPINION

Justice Robinson, for the Court. The Narragansett Pension Board (the

Board) appeals from a September 28, 2020 judgment of the Washington County

Superior Court permanently reinstating plaintiff Matthew Riley’s pension.1 The

Board contends on appeal that Code of Ordinances, Town of Narragansett, Rhode

Island, Supp. No. 13, § 58-36 (Sept. 18, 2019) (the pension revocation ordinance),2

is not unconstitutionally vague; that “this matter should be remanded to the

1
The plaintiffs are Kristin and Matthew Riley; they are husband and wife. In
order to prevent any confusion, we shall refer to them by their first names. In so
doing, we intend no disrespect.
2
We note that Section 58-36 contains the same language in Supplement No.
12 of the Code of Ordinances, Town of Narragansett, Rhode Island (May 9, 2018).

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pension board for a rehearing with the newly enacted rules and procedures;” and

that, if the issue of the award of attorneys’ fees is considered to be ripe for this

Court’s consideration, the Superior Court’s award of attorneys’ fees should be

vacated.

For the reasons set forth in this opinion, we vacate in part the judgment of

the Superior Court.3

I

Facts and Travel

According to the amended verified complaint filed on January 30, 2020 (the

amended complaint), Matthew was a police officer with the Narragansett Police

Department for twenty-eight years prior to his retirement in June of 2017. The

amended complaint further provided that, on or about October 5, 2017, Matthew

was indicted by a federal grand jury for violation of 18 U.S.C. § 1470, which

criminalizes knowingly transferring “obscene matter to another individual who has

not attained the age of 16 years, knowing that such other individual has not

3
It is important to bear in mind that the Board has appealed only the
following portions of the Superior Court’s decision: (1) the ultimate determination
by the trial justice that the pension revocation ordinance is unconstitutionally
vague; (2) the trial justice’s failure to remand to the Board for rehearing; and
(3) her decision to award attorneys’ fees to plaintiffs pursuant to the Equal Access
to Justice for Small Businesses and Individuals Act, G.L. 1956 chapter 92 of title
42. The Board did not appeal with respect to any other portions of the judgment at
issue, particularly the finding that the Rileys’ procedural due process rights had
been violated.

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attained the age of 16 years * * *.” On or about March 15, 2019, he pled guilty to

that indictment.

The then-Acting Town Manager and Police Chief in the Town of

Narragansett (the Town), Sean Corrigan, sent a letter to Matthew informing him

that, at an upcoming meeting of the Board, the Town’s solicitor would “present a

request of the pension board to enact the provisions of Town Ordinance Sec. 58-36

entitled Benefits Forfeited * * *.” In due course, the Board ultimately held a

hearing on August 14, 2019 to determine whether or not to revoke Matthew’s

pension under the pension revocation ordinance. The pension revocation

ordinance provides, in pertinent part, as follows:

“Any member who, at or after retirement, is found guilty
by the pension board of misfeasance or malfeasance
during service with the town and who, but for retirement,
would have been discharged or removed from such
service therefore shall not be entitled to a retirement
allowance under this section.” Section 58-36.

As discussed in more depth infra, the trial justice found that numerous procedural

due process violations occurred during that August 14, 2019 hearing. The Board

ultimately voted at the close of the hearing to revoke Matthew’s pension benefits.4

4
It is of note that, during the course of the hearing, the Rileys’ counsel made
it clear that, in his opinion, Kristin was an innocent spouse and therefore was
“capable of receiving [the] pension under the law.”

-3-
On August 27, 2019, the Rileys filed a verified complaint (the initial

complaint) in the Superior Court. In that complaint, they sought review, pursuant

to G.L. 1956 § 36-10.1-5,5 of the decision of the Board to revoke Matthew’s

pension and to “deny Kristin’s right to all or a portion of Matthew’s pension as an

innocent spouse” (Count One). The initial complaint further included the

following counts: (1) a count alleging violation of the Rileys’ due process rights

(Count Two); (2) a count seeking a declaratory judgment to the effect that the

pension revocation ordinance required that any “misfeasance or malfeasance be in

connection with the individual’s job” and that Kristin was “entitled to all or a

portion of Matthew’s pension benefits as an innocent spouse” (Count Three); (3) a

count seeking injunctive relief (Count Four); and (4) a count seeking an award of

attorneys’ fees pursuant to the Equal Access to Justice for Small Businesses and

Individuals Act, G.L. 1956 chapter 92 of title 42 (EAJA) (Count Five). In their

initial complaint, the Rileys sought a temporary restraining order and further

sought preliminary and permanent injunctions “enjoin[ing] the defendant from

carrying forth its decision to revoke the Rileys’ pension benefits until such time

5
General Laws 1956 § 36-10.1-5 provides as follows:

“The superior court shall have jurisdiction to review any
decisions, appeals, or other proceedings initiated
pursuant to any municipal ordinance providing for the
revocation or reduction of the pension of any municipal
employee for circumstances constituting dishonorable
service as defined by municipal ordinances.”

-4-
that this court has an opportunity to review and decide the allegations set forth in

[the] complaint.”

A hearing with respect to the request for a preliminary injunction was held

before the trial justice on September 18, 2019. At the outset of the hearing,

plaintiffs suggested that, pursuant to Rule 65(a)(2) of the Superior Court Rules of

Civil Procedure,6 the hearing be consolidated with a trial on the merits. The trial

justice agreed with that suggestion, although she indicated that the attorneys’ fees

issue would be decided at a separate hearing, if necessary. It is also of note that at

that hearing, the Board stated that, if there were any “procedural defects” in the

proceeding before the Board, then the case should be remanded to the Board rather

than having the trial justice simply reverse the Board’s decision.

After that September 18 proceeding, on November 4, 2019, the trial justice

issued an initial bench decision, in which she granted the preliminary injunction.

She also directed both parties to provide her with supplemental memoranda

regarding the constitutionality of the pension revocation ordinance.

In due course, the parties submitted memoranda addressing the

constitutionality of the pension revocation ordinance; and, on January 30, 2020, the

Rileys filed the amended complaint, which added a count contending that the

6
Rule 65(a)(2) of the Superior Court Rules of Civil Procedure provides in
pertinent part that, “[b]efore or after the commencement of the hearing of an
application for a preliminary injunction, the court may order the trial of the action
on the merits to be advanced and consolidated with the hearing of the application.”

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pension revocation ordinance was unconstitutional and void for vagueness (Count

Six).

A

The Trial Justice’s Decision on Plaintiffs’ Procedural Due Process Claims and
on the Constitutionality of the Pension Revocation Ordinance

On June 10, 2020, the trial justice issued a lengthy written decision,

concluding that the Board had violated the Rileys’ due process rights in several

respects and declaring the pension revocation ordinance to be unconstitutionally

vague. Accordingly, she reversed the decision of the Board and ordered the

permanent reinstatement of Matthew’s pension.

With respect to the issue of procedural due process—i.e., whether or not

plaintiffs had been provided with notice and an opportunity to be heard—the trial

justice began by holding that Matthew had a protected property interest in his

pension. See Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (“The essence of due

process is the requirement that a person in jeopardy of serious loss [be given]

notice of the case against him and opportunity to meet it.”) (internal quotation

marks omitted). She then held that the letter sent to Matthew from the then-Acting

Town Manager and Police Chief was constitutionally insufficient notice because it

was not sent by the Board but by the then-Acting Town Manager and Police Chief,

who eventually appeared before the Board as a witness at the hearing concerning

the possible revocation of Matthew’s pension. The trial justice noted that the letter

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also failed to advise Matthew of the basis of the Town’s potential action or indeed

what the Town intended to do—viz., to seek to have his pension revoked. She

added that the letter did not specify what would be the burden of proof at the

hearing, which would enable the Rileys “to prepare an adequate defense.”

The trial justice then turned to whether or not plaintiffs had been given an

opportunity to be heard. See Mathews, 424 U.S. at 348. She stated that the Board

“was required to provide Plaintiffs with an impartial evidentiary hearing and an

opportunity to present their case and confront adverse witnesses before making its

determination;” and she then held that the Board had failed to do so. She stated

that, at the hearing before the Board, there was a “complete lack of procedure and

protocol” and that the record was “riddled with statements by Pension Board

members indicating their lack of knowledge of the nature and legal purpose of the

hearing and its protocol.” The trial justice also noted that the Board “denied Mrs.

Riley her opportunity to present evidence in support of her position” to the effect

that she was entitled to some portion of her husband’s pension as an innocent

spouse.

The trial justice went on to state that the due process violations at the

hearing before the Board also consisted of the following: (1) Board members

“were provided potentially relevant documents for their review and consideration

before the pension revocation hearing;” (2) the Town failed to present its case at

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the hearing; (3) the Assistant Solicitor performed conflicting roles, acting as both

an advisor to the Board and as the presenter of the Town’s case to the Board;

(4) certain Board members and the Assistant Solicitor made remarks indicating

their bias against Mr. Riley; (5) the “pension revocation hearing was tainted from

the start” with a statement by a member of the Town Council (which body appoints

members of the Board), in which that member told the Board that the Town

Council had “already weighed in” and that the Board could not “supersede the

Town Council;” (6) plaintiffs were denied the opportunity to cross-examine that

member of the Town Council; and (7) the Board’s decision revoking Matthew’s

pension was “not supported by findings of fact and conclusions of law.”

The trial justice also specifically referenced the evidence before the Board,

stating that the Board relied upon inadmissible hearsay evidence in reaching its

decision. According to the trial justice’s decision, three exhibits were entered at

the hearing before the Board—“a memorandum by Major Fleming of the Rhode

Island [State] Police Department to Colonel Manni detailing the federal case

against Mr. Riley; a memorandum from Acting Town Manager and Police Chief

Sean Corrigan to the Pension Board regarding Mr. Riley’s conviction; and a print-

out from the federal PACER website offered as proof of Mr. Riley’s conviction.”

She noted that Major Fleming’s memorandum referenced reports made by other

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individuals and that neither Major Fleming nor the other individuals were made

available for plaintiffs to cross-examine.

The trial justice concluded the portion of her decision relating to procedural

due process by stating that the Board’s decision had been a “foregone conclusion”

and that the “Board was not impartial.”7

The trial justice faulted the Board for failing to make findings of fact or to

state conclusions of law supporting its decision. Nevertheless, she proceeded to

address the constitutionality of the pension revocation ordinance in spite of the

absence of such findings or conclusions. She stated that she would examine the

ordinance as applied to Matthew; but she then stated that, because the pension

revocation ordinance was penal in nature, she would “apply a heightened standard

7
We reiterate that the Board appealed only the following: (1) the ultimate
determination by the trial justice that the pension revocation ordinance is
unconstitutionally vague; (2) the trial justice’s failure to remand to the Board for
rehearing; and (3) the trial justice’s decision to award attorneys’ fees to plaintiffs
pursuant to the EAJA. The Board did not appeal from the trial justice’s
determination that plaintiffs’ procedural due process rights were violated.
Consequently, we provide only those details with respect to the litigation of the
procedural due process violations as are relevant to the contentions before us.
However, we take this opportunity to express our dismay and deep concern
with respect to how such profoundly unfair and blatant due process violations were
allowed to occur. It is a fundamental principle of constitutional jurisprudence that
every citizen being deprived of a property interest has the right to notice and an
opportunity to be heard; it is abundantly clear from the record before us that the
Board utterly failed to provide the Rileys with either. See Mathews v. Eldridge,
424 U.S. 319, 348 (1976) (“The essence of due process is the requirement that a
person in jeopardy of serious loss [be given] notice of the case against him [or her]
and opportunity to meet it.”) (internal quotation marks omitted).

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of review.” She ultimately held that the ordinance did not pass “constitutional

muster” because it was “unclear what conduct would prompt a pension revocation

hearing and subject a public servant to the revocation of his or her pension.”

The trial justice then specifically addressed the term “misfeasance or

malfeasance” in the pension revocation ordinance, holding that that language

would leave “an ordinary person wondering what kind of conduct—specifically,

job related or otherwise—could result in the revocation of his or her pension.”

Next, she addressed the “service with the town” language in the pension revocation

ordinance and determined that that language created “ambiguity concerning

whether the public servant’s act must be related to his employment or [be] an act

either unrelated to his service or independent of his employment.” Lastly, she

discussed the “discharged or removed from service” language in the pension

revocation ordinance. She stated that the pension revocation ordinance “lack[ed]

standards, or factors, that the Pension Board could objectively consider in

determining whether a public servant unfaithfully discharged his or her duties such

as to trigger a pension revocation” and that the “discharged or removed from

service” language led the Board to enforce the ordinance in an “arbitrary and

discriminatory manner * * *.”8

8
The trial justice also commented that the Board “should have allowed Mrs.
Riley an opportunity to present her case with respect to her interest in her

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Accordingly, the trial justice concluded that the Board had violated the

Rileys’ due process rights, and she declared the pension revocation ordinance to be

unconstitutionally vague. She reversed the decision of the Board and ordered the

permanent reinstatement of Matthew’s pension.

B

The Award of Attorneys’ Fees

On July 13, 2020, plaintiffs moved for an award of attorneys’ fees and noted

in their motion that the parties had agreed that “if the Court should grant plaintiffs’

motion for attorneys’ fees, the fair and reasonable amount of said fees for the work

performed and the related expenses for services rendered through July 7, 2020,

total $27,135.42.” The Board objected to the motion for an award of attorneys’

fees. A hearing on the issue was held on September 1, 2020.

At the close of the September 1, 2020 hearing, the trial justice rendered a

bench decision with respect to attorneys’ fees. She held that, due to the procedural

due process violations at the hearing before the Board, plaintiffs were entitled to

attorneys’ fees under the EAJA. Specifically, she held that the Board was not

“substantially justified” in its conduct of the proceedings before it and that there

were no special circumstances that would make an award of attorneys’ fees unjust.

husband’s pension,” but she added that she did not consider it necessary to reach
the merits of that issue.

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On September 15, 2020, an order entered granting plaintiffs’ request for

attorneys’ fees in the amount of $27,135.42, with an additional $2,030 for the

prosecution of the motion for attorneys’ fees. On September 28, 2020, judgment

entered consistent with the trial justice’s written decision with respect to

procedural due process and the constitutionality of the pension revocation

ordinance as well as the court’s order concerning the award of attorneys’ fees. The

Board filed a timely notice of appeal on October 6, 2020.

II

Analysis

A

The Constitutionality of the Pension Revocation Ordinance

1. Standard of Review

We have stated that “[i]t is well settled that, with respect to the ultimate

decision by a trial justice to grant or deny declaratory relief, our standard of review

is deferential.” Bruce Brayman Builders, Inc. v. Lamphere, 109 A.3d 395, 397

(R.I. 2015) (internal quotation marks omitted). That being said, “a trial justice’s

discretion to grant or deny declaratory relief is not absolute and is subject to

appropriate appellate review.” Id. (internal quotation marks omitted); see also

Sullivan v. Chafee, 703 A.2d 748, 751 (R.I. 1997). “Accordingly, we review a trial

justice’s ruling in the declaratory judgment context with an eye to whether the

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court abused its discretion, misinterpreted the applicable law, overlooked material

facts, or otherwise exceeded its authority.” Bruce Brayman Builders, Inc., 109

A.3d at 397 (internal quotation marks omitted); see also Rhode Island Republican

Party v. Daluz, 961 A.2d 287, 294 (R.I. 2008).

To the extent that we need to interpret the pension revocation ordinance to

reach our ultimate conclusion, we bear in mind that “[w]hen interpreting an

ordinance, we employ the same rules of construction that we apply when

interpreting statutes,” and “it is a fundamental principle that this Court reviews

questions of statutory interpretation in a de novo manner.” State ex rel. City of

Providence v. Auger, 44 A.3d 1218, 1226 (R.I. 2012) (internal quotation marks

omitted). We begin our review of a challenge to an ordinance “with a presumption

that the enactment is constitutional.” Id.; see also State ex rel. Town of Westerly v.

Bradley, 877 A.2d 601, 605 (R.I. 2005). What is more, we “will attach every

reasonable intendment in favor of * * * constitutionality in order to preserve the

statute.” State v. Allen, 68 A.3d 512, 516 (R.I. 2013) (internal quotation marks

omitted); see also Gem Plumbing & Heating Co., Inc. v. Rossi, 867 A.2d 796, 808

(R.I. 2005). “When a party contests the constitutionality of a statute, that party has

the burden of proving beyond a reasonable doubt that the challenged enactment is

unconstitutional.” Allen, 68 A.3d at 516 (internal quotation marks omitted); see

also Bradley, 877 A.2d at 605.

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2. Discussion

The Board contends on appeal that the pension revocation ordinance should

be evaluated “as applied to the defendant’s specific alleged conduct * * *.” The

Board specifically states that the trial justice took into account only “abstract facts,

rather than focusing on Riley’s specific criminal conduct.”9 As before, the Board

seeks remand; it further posits that the case “should be remanded to

the * * * Board for a rehearing with the [Board’s] newly enacted rules and

procedures,” stating that “the appropriate due-process-violations’ remedy in this

matter should plainly have been remand rather than pension-reinstatement * * *.”

We have stated that “[i]t is a well-established principle of due process ‘that

an enactment is void for vagueness if its prohibitions are not clearly defined.’”

Auger, 44 A.3d at 1232 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108

(1972)). The jurisprudence that controls a void for vagueness analysis “emanates

from the due process requirements that a law must be defined ‘[1] with sufficient

definiteness that ordinary people can understand what conduct is prohibited and

[2] in a manner that does not encourage arbitrary and discriminatory

9
The Board makes further appellate arguments with respect to errors it
contends that the trial justice made in interpreting particular words in the pension
revocation ordinance. Specifically, it contends that she erred in her interpretation
of the following language: (1) “misfeasance or malfeasance;” (2) “during service
with the town;” and (3) “discharged or removed from service.” Given our holding
in this case (see infra), we need not elaborate upon those contentions.

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enforcement.’”10 Id. at 1233 (quoting Kolender v. Lawson, 461 U.S. 352, 357

(1983)); see Skilling v. United States, 561 U.S. 358, 412 (2010); see also Kaveny v.

Town of Cumberland Zoning Board of Review, 875 A.2d 1, 10 (R.I. 2005) (“A

statute is unconstitutionally vague if it compels a person of average intelligence to

guess and to resort to conjecture as to its meaning and/or as to its supposed

mandated application.”) (internal quotation marks omitted).

Indeed, “because we assume that man is free to steer between lawful and

unlawful conduct, we insist that laws give the person of ordinary intelligence a

reasonable opportunity to know what is prohibited, so that he [or she] may act

accordingly.” Grayned, 408 U.S. at 108; see also Auger, 44 A.3d at 1233. A

vague law “may trap the innocent by not providing fair warning.” Grayned, 408

U.S. at 108. What is more, “if arbitrary and discriminatory enforcement is to be

prevented, laws must provide explicit standards for those who apply them.” Id.

Significantly, we have also clearly held that “‘[v]agueness challenges to

statutes not threatening First Amendment interests are examined in light of the

10
We note that the United States Supreme Court has stated that “[t]he degree
of vagueness that the Constitution tolerates—as well as the relative importance of
fair notice and fair enforcement—depends in part on the nature of the enactment.”
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498
(1982); see also Fitzpatrick v. Pare, 568 A.2d 1012, 1013 (R.I. 1990).
Additionally, “[t]he [Supreme] Court has also expressed greater tolerance of
enactments with civil rather than criminal penalties because the consequences of
imprecision are qualitatively less severe.” Village of Hoffman Estates, 455 U.S. at
498-99; see also Fitzpatrick, 568 A.2d at 1013.

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facts of the case at hand; the statute is judged on an as-applied basis.’”11

Narragansett Indian Tribe v. State, 110 A.3d 1160, 1164 (R.I. 2015) (quoting

Maynard v. Cartwright, 486 U.S. 356, 361 (1988)); see United States v. Mazurie,

419 U.S. 544, 550 (1975) (“It is well established that vagueness challenges to

statutes which do not involve First Amendment freedoms must be examined in the

light of the facts of the case at hand.”).

After careful consideration of the trial justice’s decision in this case, we

reach the ineluctable conclusion that, despite the fact that the trial justice stated

that she would examine the pension revocation ordinance “as applied to Mr.

Riley,” that is simply not what she did. She did not address or discuss how the

language of the pension revocation ordinance would apply to Matthew’s particular

factual situation. Rather, she analyzed the ordinance in a considerably more

general and abstract manner, without focusing on the context of the instant case.

For that reason, we are obliged to vacate the trial justice’s judgment declaring that

the pension revocation ordinance was unconstitutionally vague.

However, we are unable, on the state of the record before us, to conduct the

requisite as-applied review of the pension revocation ordinance—nor, for the same

reason, do we believe that the trial justice would be able to do so on this record. It

is abundantly clear from even a cursory review of the record that, in addition to

11
We note that there are no issues raised in this case which implicate the First
Amendment.

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committing a myriad of other procedural due process violations, the Board most

unfortunately failed to make any findings of fact or conclusions of law to support

its decision in this case. Indeed, the trial justice ruled that the Board’s decision

was “void of any competent evidence.” What is more, the trial justice also ruled

that at least some portion of the evidence before the Board was inadmissible

hearsay and that the Board did not permit the Rileys to confront and cross-examine

adverse witnesses. Therefore, we are left with no competent factual findings on

which to base an as-applied analysis of the constitutionality of the pension

revocation ordinance.

For that reason (and given the trial justice’s holding with respect to the

procedural due process violations by the Board, which holding has not been

contested before us), it is our view that, rather than reversing the Board’s decision

as the trial justice did, it would be more appropriate for this case to be remanded,

pursuant to G.L. 1956 § 42-35-15(g)12 as well as in the interests of justice, as

remand affords all parties the opportunity to have meaningful review. See, e.g.,

Kaveny, 875 A.2d at 9 (vacating the decision of a zoning board and remanding the

case for further proceedings because the zoning board had failed to make factual

12
The decision of the Board was appealed pursuant to G.L. 1956 § 36-10.1-5,
but the standard of review set forth in the Administrative Procedures Act—G.L.
1956 § 42-35-15(g)—is applicable. See Retirement Board of Employees’
Retirement System of City of Providence v. Corrente, 174 A.3d 1221, 1234 (R.I.
2017).

- 17 -
findings supporting its conclusions); cf. Kyros v. Rhode Island Department of

Health, 253 A.3d 879, 887-88 (R.I. 2021) (holding that a remand would not

“further the interest of justice” due to the length of the delay and the fact that a

remand would not “produce new information that could cure the deficiency of the

Board’s decision”); Easton’s Point Association, Inc. v. Coastal Resources

Management Council, 559 A.2d 633, 636 (R.I. 1989) (stating that the Court did not

“believe that a remand of [that] case would further the interests of

justice * * * [s]ince the facts and issues have been fully developed and clarified”

and further stating that “[i]t is now incumbent upon this Court to determine what

remedy will do justice in light of the substantial interests involved”). On remand,

it will be necessary for the Board to conduct a de novo hearing, after which it

should make findings of fact and determine, based on those factual findings,

whether or not Matthew falls within the scope of the pension revocation ordinance.

That hearing must comport with the new rules and procedures subsequently

promulgated by the Board as well as all of the recognized requirements of due

process.

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B

Attorneys’ Fees Pursuant to the EAJA

1. Standard of Review

We have stated that “[w]e review the trial justice’s [grant or] denial of the

motion for reasonable litigation expenses under the [EAJA], as a question of law,

de novo.” Rollingwood Acres, Inc. v. Rhode Island Department of Environmental

Management, 212 A.3d 1198, 1205-06 (R.I. 2019) (internal quotation marks

omitted). However, we do give deference to findings of fact that may be relevant

to a claim for an award of attorneys’ fees under the EAJA. See id. at 1206

(“Because the question of fee determination is necessarily intertwined with the

[underlying] agency decision[,] * * * we accord deference to the findings of fact in

the agency’s decision.”) (internal quotation marks omitted).

2. Discussion

The EAJA provides in pertinent part as follows:

“[I]n order to encourage individuals and small businesses
to contest unjust actions by the state and/or municipal
agencies, the legislature hereby declares that the financial
burden borne by these individuals and small businesses
should be, in all fairness, subject to state and/or
municipal reimbursement of reasonable litigation
expenses when the individual or small business prevails
in contesting an agency action, which was without

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substantial justification.” Section 42-92-1(b) (emphasis
added).13

On appeal, the Board contends that, despite the fact that it appealed the

award of attorneys’ fees in this case, that issue actually is not ripe for this Court to

consider. It contends that “if this Court agrees with the Pension Board, reverses

the Superior Court’s finding of unconstitutional vagueness, and remands this

matter for further consideration, the issue of attorney fees will be reset.” The

Board then proceeds to contend that, if the Court were to find that the attorneys’

fees issue is ripe, the award of attorneys’ fees should be vacated because “the

Town certainly was substantially justified in seeking to revoke Riley’s pension”

and an award of attorneys’ fees to the Rileys would be unjust.

With respect to the ripeness issue, the Rileys argue that the award of

attorneys’ fees is ripe for consideration, contending that, on the basis of the trial

justice’s determination that the Rileys’ due process rights were violated, they

should be entitled to attorneys’ fees “irrespective of a final determination” with

respect to the constitutionality of the pension revocation ordinance. They further

posit that the award of attorneys’ fees should be upheld because the Board was

without substantial justification for its actions at the hearing before the Board.

13
“‘Substantial justification’ means that the initial position of the agency, as
well as the agency’s position in the proceedings, has a reasonable basis in law and
fact.” Section 42-92-2(7).

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We have “long * * * recognized the need, apart from certain exceptional

circumstances, to confine judicial review only to those cases that present a ripe

case or controversy.” City of Cranston v. Rhode Island Laborers’ District Council,

Local 1033, 960 A.2d 529, 533 (R.I. 2008). Moreover, we have explained that

“[a]s a general rule, a claim is not ripe for adjudication if it rests upon ‘contingent

future events that may not occur as anticipated, or indeed may not occur at all.’”

State v. Gaylor, 971 A.2d 611, 614 (R.I. 2009) (quoting Thomas v. Union Carbide

Agricultural Products Co., 473 U.S. 568, 580-81 (1985)).

We are of the decided opinion, after considering the contentions of the

parties and the record before us, that the award of attorneys’ fees is not ripe for

review given our holding that this case must be remanded to the Board for a new

hearing which comports with due process. This case is not over; events may ensue

on remand which affect the attorneys’ fees issue. For that reason, the issue of

attorneys’ fees is not ripe for review in the context of this case, and we shall not

address it at this juncture.14

14
We note that this Court ordered the parties to address in their briefs “whether
the award of attorneys’ fees is properly before this Court on appeal in light of this
Court’s decision in Tarbox v. Zoning Board of Review of the Town of Jamestown,
142 A.3d 191 (R.I. 2016).” The Board and the Rileys have set forth arguments in
their respective briefs as to whether the award of attorneys’ fees should be
reviewed on appeal or whether a writ of certiorari should have been sought. Given
the concession of the Board in its brief that the attorneys’ fees issue is not ripe and
our agreement with that position, we need not address the appropriate avenue
through which the Board should have sought review of the award of attorneys’ fees

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C

The Innocent Spouse Issue

In its brief before this Court, the Board discusses why, in its view, it is not

vested with the power to award pension benefits to an innocent spouse. The

Rileys, in response, contend that the issue is not properly before this Court.

The trial justice declined to declare that Kristin was entitled to innocent

spouse benefits due to the fact that she had decided to order reinstatement of

Matthew’s pension in its entirety. Given our holding that this case should be

remanded to the Board for a new hearing, it is clear that the issue of Kristin’s

possible entitlement to innocent spouse pension benefits remains an open question,

not ripe for this Court’s review. See Gaylor, 971 A.2d at 614.

III

Conclusion

For the reasons set forth in this opinion, we vacate in part the judgment of

the Superior Court and remand the case to the Superior Court with instructions that

it remand the case to the Board for a new hearing in accordance with this opinion.

The record may be returned to the Superior Court.

under the EAJA in this case. See Grady v. Narragansett Electric Co., 962 A.2d 34,
42 n.4 (R.I. 2009) (referencing “our usual policy of not opining with respect to
issues about which we need not opine”). In addition, we note that we have recently
decided a substantially similar legal issue in a separate case. See Preston v. Town
of Hopkinton, 269 A.3d 761, 762-63 (R.I. 2022) (mem.).

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Justice Goldberg did not participate.

Justice Lynch Prata, dissenting. I respectfully dissent from that portion of

the majority’s opinion in which it remands this matter to the Narragansett Pension

Board (the board) for a new hearing. The trial justice appropriately found that the

plaintiffs’ rights were substantially prejudiced by the board and, utilizing her

discretion, reversed the board’s decision.

As recognized by the majority, the Superior Court’s review of an

administrative decision is governed by the Administrative Procedures Act, G.L.

1956 chapter 35 of title 42 (the APA). Section 42-35-15(g) confers upon the

Superior Court the authority to (1) affirm the decision of the agency; (2) remand

the case for further proceedings; or (3) “reverse or modify the decision if

substantial rights of the appellant have been prejudiced[.]” McAninch v. State of

Rhode Island Department of Labor and Training, 64 A.3d 84, 87 (R.I. 2013)

(quoting § 42-35-15(g)). Although the APA provides the Superior Court with “a

broad grant of power * * * to remand,” Champlin’s Realty Associates v. Tikoian,

989 A.2d 427, 449 (R.I. 2010) (quoting Lemoine v. Department of Mental Health,

Retardation and Hospitals, 113 R.I. 285, 290, 320 A.2d 611, 614 (1974)), it in no

way mandates that a trial justice remand a matter to the administrative agency.

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Rather, the plain and unambiguous language of the APA provides the trial justice

with the discretion to choose among remedies, and this Court will affirm that

decision if “the trial justice was legally justified in * * * reversing the agency’s

order.” Kyros v. Rhode Island Department of Health, 253 A.3d 879, 885 (R.I.

2021) (quoting Endoscopy Associates, Inc. v. Rhode Island Department of Health,

183 A.3d 528, 532 (R.I. 2018)).

The legal justifications for reversal are expressly delineated in the APA, and

reversal is warranted if the administrative findings, inferences, conclusions, or

decisions are

“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error of law;
“(5) Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or
“(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.”
Section 42-35-15(g).

Here, it is undisputed that the board violated plaintiffs’ constitutional right to due

process. The trial justice specifically found that the board’s decision “was a

foregone conclusion” because the board was not impartial, and that the “biased and

haphazard proceeding” implemented by the board deprived plaintiffs of

constitutionally guaranteed procedural safeguards.

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My review of the record similarly reveals that the proceedings before the

board were nothing more than a pretense, replete with violations of plaintiffs’

constitutional rights, not the least of which occurred at the inception of the hearing

when a town council member made a statement to the board before the board had

received any evidence. The town council member, in not-so-veiled terms, directed

the board to revoke Matthew Riley’s pension by telling the board members that the

town council “appoint[s] you,” and “expect[s] you to follow the law * * *.” The

town council member proceeded to inform the board that the town council had

“already weighed in on this[,]” and that the decision was “a black and white

decision; there is no gray.” When counsel for plaintiffs requested to cross-examine

the town council member regarding her statement, his request was flatly refused.

Because of the egregious violations that took place before the board, the trial

justice ultimately adjudged that the board “violated the due process rights of the

plaintiffs.” As the majority states, the board did not appeal that finding. Thus, it is

undisputed that the board violated plaintiffs’ procedural due process rights and

reversal is warranted because the administrative findings are “[i]n violation of

constitutional * * * provisions[.]” Section 42-35-15(g)(1).

The majority itself concludes that the board committed “a myriad of * * *

procedural due process violations[.]” In light of this damning finding, I am hard-

pressed to see how the majority can proceed to conclude that the trial justice’s

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decision to reverse the board’s determination was not supported by legally

competent evidence. The record reveals that a member of the board stated that he

spent “[t]hree minutes of Googling” that led him to “have issues with the due

process of” the proceedings. Nevertheless, the board proceeded with the hearing

and the acting chairman stated, “We’re not a court of law.” The board certainly

proved that to be the case by the numerous evidentiary and due process violations

it committed. In my opinion, remand is futile. See Kyros, 253 A.3d at 886 (holding

that remand to the administrative agency would be futile where the trial justice

found that the record was devoid of any competent evidence to support the

agency’s decision that a doctor was not clinically competent).

Indeed, this is not a case where the only error committed by the board was

deficiencies in the record. See Banki v. Fine, 224 A.3d 88, 99 (R.I. 2020) (noting

that “remand to the agency is the appropriate remedy for curing deficiencies in the

record”). That is not to say that the record before this Court is not deficient, given

the majority’s conclusion that the board “failed to make any findings of fact or

conclusions of law to support its decision * * *.” (Emphasis added.) However,

beyond that, grave constitutional violations were committed by the board. The

APA grants to the trial justice the authority to reverse an agency’s decision upon a

finding that certain violations occurred, and that is exactly what the trial justice did

in this case. She found that the board’s decision “was void of any competent

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evidence, was based on unlawful procedure, was arbitrary and capricious, and

violated the due process rights of the plaintiffs.” Each of these findings is a

specifically enumerated reason that warrants reversal of the board’s decision under

the APA. See § 42-35-15(g).

In light of this, I do not believe that remand will further the interests of

justice. See Kyros, 253 A.3d at 887 (affirming the trial justice’s decision not to

remand a matter for further proceedings because “[a]llowing defendants to

continue to stonewall Dr. Kyros’ return to the practice of medicine will not further

the interests of justice”); Easton’s Point Association, Inc. v. Coastal Resources

Management Council, 559 A.2d 633, 636 (R.I. 1989) (holding that remand would

not “further the interests of justice” because to allow remand would “prejudice the

right of petitioners to a final adjudication of their petition within a reasonable

period”). Although I recognize the severity of Matthew’s crime, he cannot be

deprived of “property without due process of law[.]” R.I. Const., art. 1, § 2. As

such, Matthew was unequivocally entitled to “the safeguard of due process” in the

proceedings before the board. Smith v. Retirement Board of Employees’ Retirement

System of State of Rhode Island, 656 A.2d 186, 190 (R.I. 1995).

For these reasons, it is clear that the APA gives the trial justice discretion to

reverse the board’s decision upon certain findings. Given the distressing due

process violations and other errors committed by the board, this is certainly not the

- 27 -
case in which we should deprive the trial justice of that discretion. Therefore, I

respectfully dissent.

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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

Kristin Riley et al. v. The Narragansett Pension
Title of Case
Board.
No. 2020-272-Appeal.
Case Number
(WC 19-445)

Date Opinion Filed June 2, 2022

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

Written By Associate Justice William P. Robinson III

Source of Appeal Washington County Superior Court

Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter

For Plaintiffs:

Joseph F. Penza, Jr., Esq.
Attorney(s) on Appeal
For Defendant:

Aaron L. Weisman, Esq.

SU-CMS-02A (revised June 2020)