Present: IRELAND, C.J. SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
Architectural Access Board. Handicapped Persons. Administrative Law, Judicial review, Substantial evidence, Agency's interpretation of regulation. Statute, Construction. Zoning, Variance. Words, "Entrance."
CIVIL ACTION commenced in the Superior Court Department on June 25, 2010.
The case was heard by John C. Cratsley, J., on a motion for judgment on the pleadings.
Daniel P Dain for the plaintiff.
Richard M. Glassman, for Disability Law Center & others, amici curiae, submitted a brief.
entered, and used by persons with disabilities." 521 Code Mass. Regs. § 5.1. See G. L. c. 22, § 13A. [Note 6] Where compliance with the regulations is necessary, an owner or tenant may seek a variance if it believes "that full compliance with 521 [Code Mass. Regs.] is impracticable." [Note 7] 521 Code Mass. Regs. § 4.1 (2006).
2. Store design. The facts of this case are largely undisputed on appeal. Hollister is a clothing retailer that leases and operates a store at the Independence Mall in Kingston. When Hollister opened the store in 2005, it received a building permit to replace a fully accessible mall-grade interior entrance with a raised "porch" design common to many Hollister stores. [Note 8] This entryway through the porch is designed to look like a "California surf shack," consisting of two steps leading up to a roofed porch that extends outward from the wall of the store into the mall. Hollister, 83 Mass. App. Ct. at 514. The porch contains large plants, pictures, and other decorative items. [Note 9] At the back of the porch, a patron has two options: descend two steps to the left, through a doorway to the men's section ("Dudes"), or descend two steps to the right, through a doorway to the women's section ("Bettys").
location as if he or she had entered through the porch and descended the stairs to the left, whereas a patron who enters through the right accessible door will arrive in the same location as if he or she had descended the stairs to the right. See Hollister, 83 Mass. App. Ct. at 514. In other words, a patron entering through the porch has a choice of which section of the store to enter, whereas a patron using one of the side accessible doorways enters directly into a particular section.
3. Procedural history. In January, 2008, Jennifer Niles, a wheelchair user, filed a complaint with the board alleging that the Kingston store was not accessible. See 521 Code Mass. Regs. §§ 2.3.1, 4.2 (2006); note 11, supra. In June of that year, while the board was investigating the complaint, Hollister applied for a variance from its obligation to make all public entrances to the store handicapped accessible. See 521 Code Mass. Regs. § 4.1. The board denied the variance application because Hollister had failed to prove that it was impractical to make the store accessible. See id.
it considered each of the three doorways on the façade to be a separate entrance, such that the inaccessibility of the central porch doorway alone constituted a violation, or whether the noncompliance stemmed from the lack of functionality of the accessible doorway(s) adjacent to the central porch. The board further affirmed its denial of the variance, because Hollister had created the noncomplying condition itself, and it had failed to show that the cost of compliance would be excessive without substantial benefit to persons with disabilities. The board accordingly ordered Hollister to bring the store into compliance. See G. L. c. 22, § 13A; 521 Code Mass. Regs. §§ 1.00, 4.00, 26.00 (2006).
On remand, the board held an evidentiary hearing. It determined that the three separate doorways on the store's façade (the left accessible door, the central porch, and the right accessible door) constituted three separate entrances under the regulatory definition of "entrance" as an "access point," because each side doorway provided access to only one side of the store, whereas the central, raised doorway provided access to both sides of the store. See 521 Code Mass. Regs. §§ 5.1, 25.1. The board further concluded that a variance was not appropriate because modification was not impracticable. [Note 13] The board therefore denied Hollister's request for a variance and ordered the store again to bring its central porch entrance into compliance with 521 Code Mass. Regs. § 25.1.
irrelevant. See id. at 523-524, quoting Pyramid Co. of Hadley v. Architectural Barriers Bd., 403 Mass. 126 , 131 (1988). Given the board's finding of a substantial benefit, it was reasonable for it to deny the variance, regardless of the credibility and extent of the costs to Hollister. Hollister, 83 Mass. App. Ct. at 524. We granted Hollister's application for further appellate review on both issues.
Discussion. Like the courts below, we review the board's decision pursuant to G. L. c. 30A, § 14 (7), and will not disturb the decision unless it was made in excess of the board's statutory authority; is unsupported by substantial evidence; [Note 18] or is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Where, as here, the Legislature has granted broad authority to the board, and the board has interpreted a regulation that it has been tasked by the Legislature with promulgating, we afford "considerable deference" to the board's interpretation of both its enabling statute and its own regulation. Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222 , 228 (2010), quoting Warcewicz v. Department of Envtl. Protection, 410 Mass. 548 , 550 (1991). See Iodice v. Architectural Access Bd., 424 Mass. 370 , 373 (1997). This deference, however, is not without limit. Board of Appeals of Woburn v. Housing Appeals Comm., 451 Mass. 581 , 590 (2008), and cases cited. Hollister bears the burden of showing that the board's interpretation is "not rational." Ten Local Citizen Group, supra.
accessing the store. We are not persuaded by either claim in the circumstances of this case.
Hollister argues that multiple doorways on the same façade must be deemed a single entrance, and where two of the three doorways are accessible, it was inappropriate for the board to conduct further inquiry into the nature of the third doorway. Hollister points to the inclusion in the definition of "entrance" of "stairs, lifts, ramp or other vertical access" as supporting its contention that steps and other inaccessible design elements may be part of an accessible multi-door entrance. See 521 Code Mass. Regs. § 5.1. Hollister reads the regulations too narrowly. The board does not dispute that the regulations plainly enable it to consider multiple doors as a single entrance, including where some of the doorways contain inaccessible elements such as steps. But the board is not required to consider every combination of accessible and inaccessible doorways as a single entrance, particularly where they provide different use patterns, as the board found here. See Iodice, 424 Mass. at 375 ("Nothing in the wording or context of the access regulations supports the plaintiff's emphasis"). Mere proximity of an inaccessible doorway to an accessible one does not mean that the board must end its inquiry.
functionality-based assessment of public use). [Note 21] See also 521 Code Mass. Regs. § 5.1 (defining "use" as "[p]urpose for which the building is designed, used or intended to be used"). Where the term "access point" is not defined in the regulations, the board is entitled to exercise its authority through the decisional process to define it further. See generally Hastings v. Commissioner of Correction, 424 Mass. 46 , 49 (1997).
where entering through the central porch gives the patron the option of arriving at a place different from the one arrived at by entering through one of the accessible side doors, supports its reasonable determination that differences in use pattern between doorways may signal multiple entrances.
We are persuaded, as the Appeals Court was, that the board's interpretation of the meaning of "access point" is appropriately rooted in the legislative history of G. L. c. 22, § 13A, and the mandate of ensuring full accessibility. See Hollister, 83 Mass. App. Ct. at 521-523. Although Hollister's reading of the regulations is also a plausible one, it is not the only one, and we "may not displace [the] board's choice between two fairly conflicting views." Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n, 386 Mass. 414 , 420 (1982). To the extent that the board considered the use and function of each doorway in determining whether the three doorways constituted separate entrances, rather than merely concluding that the combination of an accessible and inaccessible doorway per se constituted a single accessible entrance, the board's interpretation of the scope of its authority was reasonable and not arbitrary or an abuse of discretion, given the significant differences between the three doorways, as discussed below. See Hollister, 83 Mass. App. Ct. at 520-521.
regulations, rendered each doorway a separate and discrete access point into the store. Most significantly, the board found, based on testimony, photographs, and architectural renderings, that entering through either of the side accessible doorways placed a patron in a location within the store different from the one the patron would be if he or she entered through the central porch. A patron entering through one of the accessible doors would find himself in one of the two clothing sections, with a fifty per cent chance of arriving in the desired section as a first-time visitor, whereas a patron entering through the central porch would be able to make an informed choice as to which section to enter. In this respect, patrons did not arrive in the same place through the various doorways, and therefore those doorways did not provide the same usage pattern. The porch design, the board reasoned, gave able-bodied patrons an advantage in being able to arrive in an optimal interior location. This finding alone is enough to constitute substantial evidence supporting the board's conclusion that each doorway represented a separate access point. See Seagram Distillers Co. v. Alcoholic Beverages Control Comm'n, 401 Mass. 713 , 721 (1988).
In addition, although the board did not specifically reference the design of the doorways as a basis for its conclusion, the evidence it heard regarding the discrete aesthetic presentation of each doorway likely also informed its determination that the three doorways did not function as a single entrance. Although the regulations are indeed " 'use' rather than 'design' regulations," Iodice, 424 Mass. at 375, design may be a reasonable consideration to the extent that it signals and informs use. The central porch design "creates an aesthetic which is a valuable part of . . . Hollister's branding efforts" and is intended "to convey a certain ambiance and appearance that makes the store inviting as a whole." Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 835 F. Supp. 2d 1077, 1078, 1081 (D. Colo. 2011). But this "surf shack" design is not extended to the accessible side doorways, which instead are disguised as windows. See id. at 1082. The accessible doorways therefore present themselves as a less than fully participatory way to enter the store. Cf. Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 957 E Supp. 2d 1272, 1276, 1281 (D. Colo. 2013) ("visual impression is of a main, decorated, primary but inaccessible entrance in the center" that is "qualitatively different [from] or superior" to "smaller, inferior, undecorated accessible entrances to each side"); Colorado Cross-Disability Coalition, 835 F. Supp. 2d at 1082.
These design distinctions are exacerbated by the fact that the steps to the porch serve no functional purpose. Cf. Colorado Cross-Disability Coalition, 835 F. Supp. 2d at 1078 (steps leading to porch of Hollister store "are purely ornamental"). Especially where, as here, the inaccessible entryway is one of Hollister's own design, and not a function of any unique, preexisting feature of the site, there is no justification for having such a meaningfully different inaccessible entryway that visually and functionally signals lesser access to the store. Cf. id. at 1082.
Cross-Disability Coalition vs. Abercrombie & Fitch Co., U.S. Dist. Ct., No. 09-cv-02757, slip op. at 2 (D. Colo. Feb. 26, 2014) (central porch entryways of 231 Hollister stores violate ADA); Colorado Cross-Disability Coalition, 957 F. Supp. 2d at 12741275, 1281. Giving deference to the board's interpretation of its regulations, we conclude that the board was warranted in finding that each doorway constituted a separate access point. Even though "reasonable minds could accept" an alternative conclusion, such minds could similarly find the board's findings and conclusion plausible and adequately supported, and we therefore will not disturb them. See Iodice, 424 Mass. at 376.
2. Denial of variance. Hollister also challenges the board's denial of its request for a variance. It contends that the denial was not supported by substantial evidence because the limited testimony regarding the time savings a disabled patron would have if he or she were able to enter through the central porch and choose which section to enter, rather than entering the wrong section and having to travel to the correct one, did not rise to the level of articulating a "substantial benefit." We agree with the Superior Court judge that there was substantial evidence to support the board's finding.
Where compliance with the regulations is necessary, an owner or tenant may seek a variance if it believes "that full compliance with 521 [Code Mass. Regs.] is impracticable." 521 Code Mass. Regs. § 4.1. Compliance is impracticable where it would be "technologically unfeasible" or where compliance "would result in excessive and unreasonable costs without any substantial benefit to persons with disabilities." [Note 27] 521 Code Mass. Regs. § 5.1.
The board denied Hollister's request for a variance because it concluded that there would be a substantial benefit to persons with disabilities from access to the central porch. See 521 Code Mass. Regs. § 5.1. The board based this conclusion primarily on the testimony of a patron with disabilities who stated that the lack of access to both sections of the store from each accessible door made it more difficult for him to shop at Hollister. Specifically, he testified that if he entered through the men's side and wanted to get to the women's side, or vice versa, he would "probably just turn around and leave, or . . . go and see if there was another entrance on the other side [of the storefront]" to the section he wanted to access. He noted that other Hollister stores had accessible central entrances that preserved the "feel" of the porch entrance but allowed disabled patrons to have "the same experience as the general able-bodied public."
permissible inferences that may be made. See Medi-Cab of Mass. Bay, Inc. v. Rate Setting Comm'n, 401 Mass. 357 , 369 (1987). Given the board's determination that the patron was a credible witness, it was reasonable for it to rely on such testimony as sufficient support for its conclusion. See Quintal v. Commissioner of the Dep't of Employment & Training, 418 Mass. 855 , 860 (1994); Lycurgus v. Director of the Div. of Employment Sec., 391 Mass. 623 , 627-628 (1984). Cf. Pyramid Co. of Hadley, 403 Mass. at 130 (handicapped persons' testimony of desire to attend classes, parties, and community functions held on mezzanine level and to supervise children using spaces on that level constituted substantial evidence supporting board's determination that substantial benefit would be gained by providing elevator access to that level).
Although the board went on to consider the costs of compliance in its decision, the determination that a substantial benefit could be had by persons with disabilities by providing access through the central porch ends the inquiry into whether a variance may be granted. "A cost-benefit analysis is not relevant if [as in this case] the board determines that there would be substantial benefit. Only if there is no substantial benefit does the issue of the cost of complying with the regulation become important." See Hollister, 83 Mass. App. Ct. at 523-524, quoting Pyramid Co. of Hadley, 403 Mass. at 131. Accordingly, we need not address Hollister's claims, whether credible or not, of the excessive cost of modification. The board's denial of the variance was based on substantial evidence, and we therefore will not disturb it.
[Note 1] This includes persons in wheelchairs, or others "who experience substantial limitations in one or more major life activities, including . . . walking." 521 Code Mass. Regs. § 5.1 (2006). G. L. c. 22, § 13A.
[Note 2] According to J.M. Hollister, LLC (Hollister), the parties have agreed to stay enforcement of this order pending adjudication of this appeal.
[Note 3] We acknowledge the brief of amici curiae the Disability Law Center, Boston Center for Independent Living, Institute for Human Centered Design, and the American Association of People with Disabilities.
[Note 4] The applicable statute and regulations are enforced by local building inspectors and by the Architectural Access Board (board). G. L. c. 22, § 13A.
[Note 5] Prior to 1996, the regulations required only "primary public entrance(s)," and not "every public entrance(s)," to be accessible. See Iodice v. Architectural Access Bd., 424 Mass. 370 , 375 (1997); 521 Code Mass. Regs. § 26.1 (1986).
[Note 6] Any construction, remodeling, or alterations of or in public buildings must comply with these statutory and regulatory requirements. See G. L. c. 22, § 13A; 521 Code Mass. Regs. §§ 3.1, 3.2, 3.3 (2006).
[Note 7] Compliance is impracticable where it would be "technologically unfeasible" or where compliance "would result in excessive and unreasonable costs without any substantial benefit to persons with disabilities." 521 Code Mass. Regs. § 5.1.
[Note 8] Ten other stores in Massachusetts operated by Hollister use this raised porch design.
[Note 9] Porches at other Hollister stores occasionally include chairs and magazines.
[Note 10] Some Hollister stores use the same theme of a "California surf shack" porch but have no stairs.
[Note 11] At the time of the complaint instigating the board's review of the store design, there was only one accessible doorway, to the left of the central porch. This doorway was nonfunctional on several occasions. To the right of the porch was an emergency exit door that was not used as an entrance. This lack of reliable functionality of the left door, which was the only accessible door at the time, informed the board's initial decision and was a partial basis for remand by the Superior Court judge. After the original complaint had been filed but before the board had held its first hearing after remand, Hollister altered the emergency exit door to the right of the porch so it could function as a second accessible door. Hollister also maintains that the problems with the left door have been resolved. On appeal, we assume that there are two functional accessible doors adjacent to the porch entrance and accordingly omit details regarding when one or both of the accessible doors were available, except where relevant. See J.M. Hollister, LLC v. Architectural Access Bd., 83 Mass. App. Ct. 513 , 514-516 (2013) (Hollister) (providing greater detail on functionality and availability).
[Note 12] Specifically, Hollister asserted that the multiple doorways on the store's façade were essentially one comprehensive entrance, and that the regulations permit an entrance to include inaccessible elements such as stairs, as long as an accessible doorway is also provided. Accordingly, it claimed that the only issue in the complaint was the functionality of the accessible doorway, which had been resolved.
[Note 13] The board determined that compliance was not technologically infeasible, as Hollister had constructed stores with the porch design but without steps in other locations, and that the substantial benefit to persons with disabilities outweighed the cost of compliance, particularly where Hollister had created the noncompliant condition. See G. L. c. 22, § 13A; 521 Code Mass. Regs. § 4.1 (2006). Further, the board was not persuaded that the high cost estimates Hollister had provided for modification were credible.
[Note 14] Specifically, the judge reasoned that the board's rejection of Hollister's analogy to revolving doors and turnstiles, and to other approved projects in Boston, was not arbitrary or capricious, because the board is empowered to "consider the distinct uses of each access point" in any given facade.
[Note 15] The judge reasoned that the board was entitled to rely on the testimony of a disabled patron to determine that there would be a substantial benefit to such patrons of having an accessible porch, and to use the knowledge and experience of its members to conclude that the cost estimates provided by Hollister were not credible.
[Note 16] The Appeals Court rejected Hollister's claim that the board erred and exceeded its statutory authority in considering "experiential factors." See Hollister, 83 Mass. App. Ct. at 523. It concluded that the board could appropriately consider grade, level, distance, and experience, and that, contrary to Hollister's assertion, the regulations provided "a concrete, bright line measure, [to] ensure[ accessibility." Id.
[Note 17] In dissent, one Appeals Court judge raised concerns that the board committed an error of law because there was insufficient support for its conclusion that each door framed within a single entryway constituted a separate entrance, and that the court's upholding of this decision could have far-reaching consequences for buildings throughout Massachusetts. See Hollister, 83 Mass. App. Ct. at 524, 526-527 (Berry, J., dissenting).
[Note 18] Substantial evidence is such evidence, "within the record developed before the administrative agency, ... as a reasonable mind might accept as adequate to support the agency's conclusion." Seagram Distillers Co. v. Alcoholic Beverages Control Comm'n, 401 Mass. 713 , 721 (1988), citing Labor Relations Comm'n v. University Hosp., Inc., 359 Mass. 516 , 520-521 (1971), and G. L. c. 30A, § 1 (6).
[Note 19] "Walk" is defined as "[a]n interior or exterior pathway with a prepared surface intended for pedestrian use, including but not limited to general pedestrian areas such as plazas, courts, and crosswalks." 521 Code Mass. Regs. § 5.1.
[Note 20] The regulations further require that "[e]ntrance(s) . . . have a level space on the interior and exterior of the entrance doors." 521 Code Mass. Regs. § 25.2 (2006). "Level" is defined as "[s]loped no more than 1:50 or 2%," and "space" is defined as "[a] definable area, e.g., room, . . . assembly area, entrance, . . . alcove, courtyard, or lobby." 521 Code Mass. Regs. § 5.1.
[Note 21] Although Iodice, 424 Mass. at 371, 376, involved an earlier version of the regulations, its general framework remains applicable.
[Note 22] Notably, revolving doors and turnstiles serve important, non-aesthetic purposes justifying their unique treatment, such as climate control, crowd control, and security measures. The raised porch, in contrast, serves no functional purpose. Cf. Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 835 F. Supp. 2d 1077, 1078, 1081 (D. Colo. 2011).
[Note 23] At the hearing before the board, Hollister presented several examples of locations in Boston where the board had approved entrances consisting of an inaccessible revolving door accompanied by at least one accessible doorway. Hollister argues on appeal that the board should have given these examples precedential value and viewed Hollister's porch design as analogous to these multi-door entrances. In rejecting Hollister's analogy of its raised porch design to a revolving door, however, the board reasonably determined that these examples were not persuasive, as each one of them contained a revolving door at grade level with an adjacent accessible door, compliant with the specific provisions of 521 Code Mass. Regs. § 26.2 (2006). Even if the board did find some merit in Hollister's analogy to revolving doors, the board was free to reach a different conclusion on the facts presented here, as long as it was not arbitrary or capricious. Here, the board was confronted with a unique design feature, and its decision not to rely on its prior approvals of dissimilar entrances was a reasonable one.
Similarly, we are unpersuaded by Hollister's assertion that the board should have given weight to the fact that ten other building inspectors in Massachusetts believed that this design complied with the regulations. "[T]he board [is] the ultimate arbiter of regulatory compliance." Iodice, 424 Mass. at 374. See G. L. c. 22, § 13A. It was therefore within the board's discretion to either credit or reject the inspectors' conclusions.
[Note 24] Hollister contends that this Federal litigation is not analogous because it involves different rules and legislative history. The Americans with Disabilities Act (ADA) design standard applicable to that litigation in fact closely resembles 521 Code Mass. Regs. §§ 5.1 and 25.1. See 28 C.F.R. § 36.406 Appendix A, 1991 Standard for Accessible Design 3.5 (defining "entrance" as "[a]ny access point to a building or portion of a building or facility used for the purpose of entering. . . . includ[ing] the approach walk, the vertical access leading to the entrance platform, the entrance platform itself, vestibules if provided, the entry door[s] or gate[s], and the hardware of the entry door[s] or gate[s]"). In that case, the parties presented nearly identical arguments for and against a finding of compliance with the ADA design standards as those presented here. Colorado Cross-Disability Coalition, 835 F. Supp. 2d at 1079-1081. Although we are not bound to follow the Federal court's reasoning and decision, we consider that litigation useful by way of analogy. The District Court judge concluded that 231 Hollister stores throughout the United States violated the ADA, and required Hollister "to remove, ramp, or close off all of the elevated entry doors by January 1, 2017, at a rate of at least 77 stores each year beginning on January 1, 2014." Colorado Cross-Disability Coalition vs. Abercrombie & Fitch Co., U.S. Dist. Ct., No. 09-cv-02757, slip op. at 2 (D. Colo. Feb. 26, 2014). That decision is currently on appeal to the United States Court of Appeals for the Tenth Circuit. If the plaintiffs prevail before the Tenth Circuit, Hollister will be required to modify its raised porch design in stores across the country, regardless of our decision.
[Note 25] Assessment of the physical location at which a given access point places a patron is an objective consideration not entirely dependent on the content of the surroundings once inside. To the extent that the board concluded that a patron entering through the left accessible door, the central porch, and the right accessible door arrived inside the door at distinctly different locations, this consideration was not unreasonable or in error.
[Note 26] Were experience a primary or perhaps exclusive factor in the board's analysis, we would share the concern of Hollister and the dissenting justice of the Appeals Court that inquiries into adequate accessibility would be overly subjective and present challenges for architectural planning and design. See Hollister, 83 Mass. App. Ct. at 526-527 (Berry, J., dissenting). However, experience did not play such a significant role in the board's analysis here as to render the board's action an abuse of discretion.
[Note 27] Hollister concedes that modification is not technologically infeasible, given that it has numerous other locations with grade-level, accessible "porch" entrances.


DOUGLAS L. PLOUFFE, Plaintiff and Appellant, v. DENNIS SIMPSON, ARNE LEFDAHL, VIC LEFDAHL and JOHN DOES 1 through 10, Defendants and Appellees.
¶2 Douglas L. Plouffe (Plouffe) appeals from the dismissal of his complaint, related to the Hot Springs near Saco, Montana, for failure to state a claim, by the Seventeenth Judicial District, Phillips County.1 Plouffe, proceeding pro se, filed a Complaint against Appellees, individuals who are serviced by a water system that Plouffe alleged he owned. While the Complaint is difficult to understand, Plouffe generally asserts criminal conduct by the Appellees, citing to Title 45, MCA, including theft, burglary, criminal trespass, and criminal mischief. Plouffe also alleged misconduct by several county officials not named in the Complaint, including failure to prosecute the Appellees. In the prayer, Plouffe demanded criminal prosecution of the Appellees as well as damages.
¶3 The Appellees, also proceeding pro se, filed several motions to dismiss in the District Court. Their motions, supported with affidavits and other documents, argued that Plouffe is not the owner of the water system.
¶4 The District Court granted the motion to dismiss, holding that, taking the allegations of the Complaint “as true, even though they are less than well-pleaded, and viewed in the light most favorable to Plouffe, ‘it appears beyond doubt that the plaintiff can prove no set of [f]acts in support of his claim which would entitle him to relief.’ ” (citations omitted). The District Court analyzed only the allegations of the Complaint, and did not reference any of the outside information included with Appellees' motion to dismiss. Plouffe appeals, and while his briefing is difficult to understand, we discern two issues: first, that the District Court erred by failing to convert the motion to dismiss to a motion for summary judgment, given the additional information regarding ownership of the water system presented by the motion to dismiss; and second, that the District Court erred by concluding that Plouffe's Complaint failed to state a claim upon which relief could be granted.
¶5 We review a district court's ruling on a M. R. Civ. P. 12(b)(6) motion to dismiss de novo. Plouffe v. State I, ¶ 8 (citations omitted).
¶6 When presented with a Rule 12(b)(6) motion to dismiss, the district court has discretion to consider information outside the complaint. Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 16, 337 Mont. 339, 160 P.3d 552. However, if the district court elects to do so, it must treat the motion as one for summary judgment, allowing the other party opportunity to respond. M. R. Civ. P. 12(d); see also Meagher, ¶ 16 (citations omitted).2 If the district court does not convert the Rule 12(b)(6) motion into one for summary judgment, its review is limited to the contents of the complaint. Plouffe v. State I, ¶ 13 (citations omitted). “[A] motion to dismiss under [M. R. Civ. P. 12(b)(6)] allows the District Court to only examine whether ‘a claim has been adequately stated in the complaint.’ ” Plouffe v. State I, ¶ 13 (citations omitted).
¶7 Plouffe argues “it's reasonable to believe that the District Court relied on the allegations of fact contained in the parties briefs and/or material outside the pleadings[,]” and thus the matter should have been converted into a motion for summary judgment, giving him an opportunity to respond to Appellees' factual contentions. Plouffe cites to nothing in the record to demonstrate that the District Court relied on any material outside of the Complaint, and the order of dismissal confirms that the District Court considered only the contents of the Complaint. Absent indication otherwise, “[w]e accept at face value the court's order that it was ruling on motions to dismiss and that the court's order was based upon the allegations in the complaint ․” Cowan v. Cowan, 2004 MT 97, ¶ 13, 321 Mont. 13, 89 P.3d 6 (citations omitted). While Plouffe correctly notes that Appellees presented outside evidence with their motions, the District Court exercised its discretion to ignore that information, and decided the issue on the basis of the Complaint alone. Therefore, the District Court did not err by not converting the motion into one for summary judgment.
¶8 A motion to dismiss must be granted if the complaint fails “to state a claim upon which relief can be granted ․” M. R. Civ. P. 12(b)(6). The complaint is construed in the light most favorable to the plaintiff, and all well pleaded allegations of fact contained therein are taken as true. Plouffe v. State I, ¶ 8 (citations omitted). However, the court need not accept as true any legal conclusions stated in the complaint. Cowan, ¶ 14 (citations omitted). A complaint must put a defendant on notice of the facts the plaintiff intends to prove, and such facts must disclose the elements necessary to make the claim. Kunst v. Pass, 1998 MT 71, ¶ 35, 288 Mont. 264, 957 P.2d 1 (citations omitted). We follow liberal rules of pleading to allow for compliance with the spirit and intent of the law, rather than a rigid adherence to formula or specific words. McKinnon v. W. Sugar Coop. Corp., 2010 MT 24, ¶ 17, 355 Mont. 120, 225 P.3d 1221 (citations omitted). However, liberal application of the rules does not excuse omission of facts necessary to entitle relief. Mysse v. Martens, 279 Mont. 253, 266, 926 P.2d 765, 773 (1996) (citations omitted). “[T]he pleading must contain something more ․ than ․ a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure - Civil § 1216 (3d ed., 2004).
¶9 Plouffe argues that he pleaded wrongful acts committed by the Appellees, citing specific provisions of the criminal code. However, Plouffe proceeds under a fundamental misunderstanding of the division between the criminal and civil law. Crimes are wrongful acts against the public that are prosecuted by the State to protect the safety and order of society as a whole.3 A crime victim does not have a civil cause of action based merely on the violation of a criminal statute, although there are civil causes of action that are similar to criminal offenses, such as the tort of wrongful death and the crime of homicide.
¶10 Plouffe's Complaint largely contains allegations regarding non-defendants. The allegations regarding the Appellees are primarily legal conclusions to the effect that the Appellees committed specified crimes. There are few purely factual allegations, and they are generally not “well pleaded.” The factual allegations in the Complaint were not sufficient to put the defendants on notice about what Plouffe intended to prove and did not include all elements of a valid claim for relief. The Complaint provides nothing more than a mere suspicion that Plouffe may have a claim for conversion or trespass. Thus, the District Court did not err in dismissing the Complaint for failure to state a claim upon which relief could be granted pursuant to M. R. Civ. P. 12(b)(6).
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law. The District Court's interpretation and application of the law were correct.
1. This is our seventh opinion involving Plouffe and the Sleeping Buffalo Resort. See Plouffe v. Mont. Dep't of Pub. Health & Human Servs., 2002 MT 64, 309 Mont. 184, 45 P.3d 10; Plouffe v. State I, 2003 MT 62, 314 Mont. 413, 66 P.3d 316; Plouffe v. State II, No. 04-199, 2004 MT 201N, 2004 Mont. LEXIS 380; Plouffe v. Mont. Dep't of Pub. Health &Human Servs. II, No. 03-476, 2004 MT 282N, 2004 Mont. LEXIS 522; Plouffe v. Sec. of State, Dep't of Labor & Indus., No. DA 08-0188, 2009 MT 85N, 2009 Mont. LEXIS 92; Plouffe v. Knudson, No. DA 14-0291, 2014 MT 341N, 2014 Mont. LEXIS 736.
2. The requirement to convert a motion to dismiss for failure to state a claim to summary judgment when matters outside the pleading are presented, was found in M. R. Civ. P. 12(b) prior to 2011, and is now stated in M. R. Civ. P. 12(d).
3. See, e.g., People v. Flores, 92 Cal. Rptr. 3d 582, 588-89 (Cal. App. 4th 2009) (“Civil actions arise from, and are meant to remedy wrongs relating to, contractual or legal obligations and injuries to the person or to property ․ A civil action is prosecuted by one party against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong ․ criminal actions are defined in the Penal Code ․ A criminal action is a proceeding by which a party charged with a public offense is accused and brought to trial and punishment ․ and is prosecuted in the name of [the State] ․”) (internal quotation and citation omitted).


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The Law Firmcontinues the cooperation began in 2006 by Anna-Maria Niżankowska-Horodecka within the “Strategic Litigation Program”, with the Helsinki Foundation for Human Rights.
Persons represented by the Law Firm under this cooperation include Ms. Zofia Szychowska Ph.D. before the Constitutional Tribunal in a case of her constitutional complaint, requesting the examination of the compliancy of certain provisions of the Act on the medicine chambers, further specified in the Medical Ethics Code, in relation to the content of the doctor’s oath to the extent in which those regulations limit a constitutional principle of the freedom of speech and the right to criticize. That case (run under case file No. SK 16/07) ended with the verdict issued by the Constitutional Tribunal on April 23, 2008, pursuant to which it adjudicated that Art. 52.2 of the Medical Ethics Code in conjunction with 15.1, Art. 41 and Art. 42. 1 of the Act of 17 May 1989 on Medical Chambers, do not comply with Art. 54.1 in conjunction with Art. 31.3 and Art. 17.1 of the Constitution of the Republic of Poland, to the extend it prohibits the expression of public opinion on the professional activity of another doctor, which would be true and justified by the protection of public interests.
On June 10, 2008, the conclusion of an agreement ended the case before the District Court in Warszawa, which was brought against Telewizja Polska S.A. by Ms. Agnieszka Arnold, represented by Anna-Maria Niżankowska-Horodecka, attorney, within which, the plaintiff - a well known director of documentary films - claimed compensation and apologies for infringing her personal interests by the TVP Ethics Council.
In May 2009, Anna-Maria Niżankowska-Horodecka, attorney-at-law, partner in the Niżankowska, Szumielewicz – Adwokaci i Radcowie Prawni law firm, was honoured with a distinction in the 2008 Pro Bono Lawyer of the Year contest. The contest is held by the Legal Clinics Foundation and Rzeczpospolita daily under the auspices of the Polish Bar Council and the National Council of Legal Advisers. The aim of the contest – already in its 6th edition in 2008 – is awarding the title of Pro Bono Lawyer to individuals whose activity, involvement, and contributions to promoting the noble idea of lawyers’ Pro Bono Publico work deserves special recognition.
This autumn, on 3 October 2009, the Pro Bono Lawyers project (“Adwokaci Pro Bono”) took place the second time. Our company’s team actively participated in the project, and for six hours (9:00 am to 3:00) provided legal advice on several dozen issues in civil, commercial, labour as well as copyrights laws.
Since spring 2010, attorney Anna-Maria Niżankowska-Horodecka, LLD, has been representing, on a pro-bono basis, under the Precedential Cases Program of the Helsinki Foundation for Human Rights, Ms Zuzanna Niemier and Mr Tomasz Chabinka in their personal rights protection lawsuit against Prof. Ryszard Legutko. On 3 November 2009, the European Court of Human Rights in Strasbourg settled the Lautsi v. Italy case, ruling that Italy has acted in violation of Article 2 of Protocol 1 in conjunction with Article 9 of the European Convention on Human Rights by placing crucifixes in classrooms, thereby limiting the rights of parents to educate their children in line with their own beliefs as well as the children’s freedom of religion, and, moreover, contradicting the principle of the state’s neutrality in performing public functions. Following a discussion of that ruling at High School No. 14 in Wroclaw, several students, including Zuzanna Niemier and Tomasz Chabinka, drafted a petition to the school’s principal, wherein they asked “kindly for the removal of religious symbols from school premises”, referring to the arguments posed in the ruling of the ECHR, and pointing out that an individual’s world view is the individual’s private matter. The issue was covered by Polska Gazeta Wrocławska and Gazeta Wyborcza, and commented upon – also in those newspapers – by a Member of the European Parliament, on behalf of the Polish Prawo i Sprawiedliwość [Law and Justice] party, Prof. Ryszard Legutko, who called the petition “infantile”, “sly, cynical and ideological ruckus”, and referred to the petitioners themselves as “unruly brats spoiled by their parents”. On 2 March 2010, the Law Firm, on behalf of Zuzanna Niemier and Tomasz Chabinka, filed a suit against Prof. Ryszard Legutko, requesting that he remedies the infringement of personal rights by apologising to the plaintiffs and payment of an appropriate monetary amount to the Stowarzyszenie Młody Wrocław association. In response to the suit, Prof. Ryszard Legutko has excused himself with the MEP immunity, stating that his comments were made as part of his professional duties of a Member of the European Parliament and that the words he used were not insulting. By the judgment of 17 April 2012 the District Court in Kraków ordered Prof. Ryszard Legutko to publish an apology to the plaintiffs in Gazeta Wrocławska and Gazeta Wyborcza, as well as to pay the requested sum for the benefit of the association. The judgment was upheld by the Court of Appeal in Kraków and is final and binding form 26 October 2012.
As a result of lodging a cassation complaint by Professor Ryszard Legutko against a judgement of the Court of Appeal in Kraków, the case was recognised by the Supreme Court which, on 22 January 2014, dismissed the complaint, finally closing proceedings in the case in question.

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There are insinuations in some quarters that the Nigerian Bar Association (NBA) is in support of the embattled CJN, Hon Justice WSN Onnoghen in his trial at the Code of Conduct Tribunal (CCT) on charges related to non-declaration or late declaration of his assets as required by the Code of Conduct for Public Officers contained in the 5th Schedule to the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended). Those who hold this view are quick to suggest that NBA’s support is a deliberate attempt at derailing the “war against corruption” in Nigeria. It is my humble view that neither the NBA leadership nor the NBA as a body is in support of CJN Onnoghen as a person. All I think the NBA and its leadership have been doing is merely to demand and insist on decorum and observance of due process of law, as opposed to arbitrary desecration of the Constitution. NBA’s stand is made more rational when one recalls the famous declaration in a 1998 book titled, Lex, Rex, or the Law and the Prince: A Dispute for the Just Prerogative of King and People written by Samuel Rutherford whose view I would paraphrase or re-phrase to read, “arbitrary application of laws has no alliance with God.” Besides, one must not forget that, by the very peculiar nature of their office, judicial officers are not ordinarily able to speak out for themselves in matters such as this. The Bar serves as the mouth piece of the Bench, in deserving situations, because the Bar and the Bench are like Siamese twins — conjoined and inseparable in the attainment of justice. Let me pause to quickly reiterate that the Nigerian Bar Association (NBA) and its leadership would lose my sympathy the day it chooses to overtly or covertly support, encourage or condone acts of corruption – whether against public funds or against rule of law. I shall now proceed to lay out the legal foundations for this humble opinion of mine in the hope that this would enflame further dialogues on whether the role being played by NBA is reasonably justifiable or justified in the circumstances.
Whenever a breach of judicial oath occurs, it is a misconduct itself, then the NJC is the appropriate body to investigate such breaches by the judicial officer and if found to be so, such judicial officer shall face disciplinary action and the NJC may recommend the removal of such a judicial officer to the appropriate authority which is either the President in the case of a Federal Judicial Officer or the Governor of the State in the case of a State Judicial Officer and/or take other actions appropriately. When this is done and accepted by the appropriate authority in compliance with the provisions of the Constitution, then the relevant law enforcement Agent or Agency is at liberty to make the said judicial officer face the wrath of the law. Any act done by the law enforcement Agent or Agency in violation of the above is tantamount to denying the NJC its powers to discipline Judges in accordance with the provisions of Section 153(1) and Paragraph 21 Part 1 of the Third Schedule of the 1999 Constitution (as amended). See Paragraph 21 (a) & (b) of the Third Schedule, Part 1 of the 1999 Constitution (as amended) respectively. Whenever there is an allegation of official misconduct against a judicial officer and the above stated process is not adhered to, it amounts to jumping the gun and ipso facto a direct violation of the Constitution. Recourse to the National Judicial Council is a condition precedent as clearly set out by the Constitution, and any attempt by any Agency of Government to by-pass the Council will amount to failure to observe condition precedent thereby leading to flagrant violation of the Constitution.
In view of this decision, can anyone say straight from the shoulder that CJN Onnoghen could validly be arraigned and tried by the CCT at a time when the National Judicial Council (NJC) is yet to sit and give a determination over the same case? As noted by Nonso Attoh in the work cited above, the Ngajiwa judgment remains the law for what it decided until it is either set aside or overruled.
The stance of the CCT in CJN Onnoghen’s case becomes more curious when one recalls the judgment of the same CCT in FRN V. SYLVESTER NGWUTA, another Justice of the Supreme Court. The CCT had in that judgment, delivered on 15 May 2018, discharged Hon Justice Ngwuta over false assets declaration charges brought against him by the Federal Government. Hon Justice William A. Atedzeb (a member of the CCT who delivered the judgment of the CCT) had held that as a serving judicial officer, Hon Justice Ngwuta was under the management, control and discipline of the National Judicial Council (NJC) and also that the NJC is a body whose independence of external control or interference is constitutionally provided for in section 158 (1) of the 1999 Constitution (as amended). The judge then accepted and upheld the decision in HYELADZIRA NGAJIWA V. FRN (supra) as constituting the guiding precedent, and quashed all charges preferred against Hon Justice Ngwuta, noting that “any allegation of official misconduct against a judicial officer would first have to be referred to the NJC to the exclusion of any other body, court or tribunal.” (See https://guardian.ng/news/cct-discharges-ngwuta-over-false-assets-declaration/ accessed on 17 February 2019). Why then the summersault in Onnoghen’s case? Is sauce for the goose not sauce for the gander? Or, are there things we are not being told?
A judicial officer shall not be removed from his office or appointment before his age of retirement except … by the President of the FRN acting on an address supported by two-thirds majority of the Senate, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct; and in any other case, by the President … acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.
Under no circumstance may a judicial officer be removed without the recommendation of the NJC (National Judicial Council) or a prior resolution of the Senate of the FRN. Accordingly, the suspension of the CJN without first complying with this provision is a violation of the constitution.
In a statement published on February 01, 2019 on www.legalnaija.com, celebrated constitutional lawyer and Senior Advocate of Nigeria (SAN), Professor Ben Nwabueze, had submitted that “It is clear from paragraph 18 that: (a) only the CCT itself can order vacation of or suspension from office; the President is not empowered to do so, and cannot be ordered or directed by the CCT to do so; (b) more importantly, the CCT cannot make an order vacating an office or suspending a person from office until the trial before it is completed and the accused person is found “guilty of contravention of any of the provisions of this Code”; the trial in this case is only just commencing.” The learned professor of constitutional law had then gone ahead to conclude that this applies to a judicial officer in Nigeria, thus ascribing to the CCT a unilateral power to remove a serving judicial officer, albeit upon conviction of such judicial officer. With the greatest respect to the revered learned Professor-Silk, I strongly disagree with any suggestion that the CCT can unilaterally remove or suspend a serving judicial officer without the mandatory participation of both (A) the President/Governor and (B) the NJC/Senate/House of Assembly, as the case may, in line with section 292, CFRN. I will explain.
Paragraph 18 (2) (a) of Part I of the 5th Schedule of the CFRN, 1999 is a GENERAL provision relating to all public officers and as such does not and cannot override the provisions of section 292 (1) of the same CFRN, 1999 which is a SPECIFIC provision relating exclusively to (only) judicial officers. Section 292(1) clearly states that “a judicial officer SHALL NOT be removed from office or appointment before his age of retirement except in the following circumstances.” There are only two such circumstances in section 292 — the first is on the request made vide a resolution supported by two-third majority vote of the Senate of the Federal Republic or the House of Assembly of the affected State, as the case may be; the second is on the recommendation of the NJC. And in each instance, removal may only be made by the President or the Governor (as the case may be).
I accordingly respectfully submit that although the CCT may, upon convicting a public officer, unilaterally give an order that the “public officer” should immediately vacate his or her office, the CCT does not have similar powers with respect to a “judicial officer.” The guiding principle is the Latin legal maxim and canon of statutory interpretation, “generalia specialibus non derogant.” The maxim states that “general provisions in a statute must yield to special or specific provisions in the same statute.” See DORE V. VERDOM  2 SCR 862. Thus, when a matter falls under any specific provision, then it must be governed by that provision and not by any later general provision in the same statute. General provisions in a law must admit or submit to specific provisions in the same law, on the same subject. This is why, in my opinion, section 292 (1) of the CFRN (a special provision made for judicial officers) must necessarily prevail over para 18 (2) (a) of Part I of the 5th Schedule of the CFRN (which is a general provision made for all public officers).
On the maxim of generalia specialibus non derogant,’ the position of an earlier Special Act will not be affected by that of a later general Act although inconsistent with the earlier particular Act and although they deal with the same subject matter.
I therefore suggest that the proper approach where a judicial officer is found guilty by the CCT of breach of the Code of Conduct is to make an order recommending vacation of office of the affected judicial officer, which order could or would then be a ground for the action of the NJC or the Senate/House of Assembly of a State, as provided for in section 292 (1), as the case may be. On the clear provisions of section 292 (1) CFRN, 1999, the ground upon which the NJC or the Senate/House of Assembly of a State may recommend the removal [or suspension] of a judicial officer include “his inability to discharge the functions of his office or appointment…, or for misconduct or contravention of the Code of Conduct.” Accordingly, issues relating to Code of Conduct are well within matter that the NJC has powers to look into in respect of a judicial officer. Any removal or suspension of the CJN pursuant only to a purported court order is improper in law as such amounts to a disregard of the condition precedent put in place in section 292(1) CFRN which makes participation of the Senate/NJC a sine-qua-non.
As the Charge was being read to the Defendant, the CCT Chairman suddenly stopped the Clerk from continuing with reading of the charge. This was after the Clerk had read only count one. The Chairman then asked the Defence team whether it (the Defence) would prefer that pending interlocutory applications be taken first. The Defence team answered that since the Defendant was already present in the tribunal, the Defendant’s plea should be taken first.
… determination of jurisdictional issues come before trial and since the presence of the accused is only required when the High Court is ready to commence trial then when jurisdictional issues are yet to be determined, accused’s presence in court is not mandatory.
Section 266 (b) Administration of Criminal Justice Act (ACJA), 2015 provides that the presence of the accused person is mandatory throughout his trial “unless at the hearing of an interlocutory application.” See also EZEZE v. STATE (2004) LPELR-CA/L/370/2003; (2004)14 NWLR (Pt.894)491; and B.B APUGO v. F R N (2017) LPELR-41643(CA). Issues relating to a court’s jurisdiction are fundamental and lack of jurisdiction is fatal as emphasized in OTUKPO v. JOHN (2000) 8 NWLR (669) 507; BRONIK MOTORS v. WEMA BANK (1983)6 S.C. 158; and OMOKHAFE v. MILITARYT ADMINISTRATOR (2005) 2 MJSC 173. These and more are what the NBA and its Leadership are worried about, and which inform its principled stance in favour of due process, no matter what the outcome would be. Honestly, to me, it really does not matter if CJN Onoghen is in jail or is removed from office, provided due process of law is strictly complied with in either case.
The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. and if he does sit, his decision cannot stand”. It is irrelevant whether he was in fact biased, because “justice is rooted in [public] confidence.
The principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow the English decisions.
It is therefore distressing that the CCT Chairman had insisted that CJN Onnoghen must appear before the CCT in spite of the pending application praying that he (CCT Chairman) should recuse (himself) from the case on grounds of breach of nemo judex in causa sua. So, one should not be frightened nor discombobulated that NBA and its Leadership are seriously worried, vigorously complaining and persistently protesting. The protest or complaint is not about the person of Onnoghen himself. NBA knows that CJN Onnoghen is not above the law. NBA’s position, I believe, is that if you must punish CJN Onnoghen or indeed anyone for violation of any extant law, the procedure and processes for meting out such punishment must be in strict compliance with due process of law. NBA’s apprehensions are therefore over the aforesaid, which NBA feels constitute a grave threat to due preservation of the rule of law, separation of powers, constitutionalism, and the independence of the judiciary. Further, as can be gleaned from NBA’s published stand, rule of law and an independent judiciary (free from external influence or unnecessary harassments) are necessary to checkmate abuse of political powers and stop Nigeria from degenerating into a tyrannical State headed by totalitarian leaders evocative of Thomas Hobbes’ Leviathan (the Monster-like leaders), whose personal whims and caprices hold sway as opposed to separation of governmental powers, rule of law and preservation of individual liberty of citizens.
The fifth issue for consideration is that the Code of Conduct Bureau (CCB) itself is in gross breach of due process of law when it proceeded to file the current charges against CJN Onnoghen notwithstanding the latter’s written admission in response to the allegations made against him as they relate to late-declaration and non-declaration of some aspects of his assets. A close look at section 3 of the Code of Conduct Bureau & Tribunal Act (CCB&T Act), Cap C15 relating to functions of the CCB would help us appreciate this position.
Provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the [Code of Conduct] Tribunal shall be necessary.
The singular question arising from the proviso to section 3 of the CCB&T Act is as to why the CCB, after having received CJN Onnoghen’s written admission in respect of his asset declaration, still proceeded to file charges against the CJN at the CCT. Are there no other processes and procedures put in place for dealing with a situation in which the affected public officer tenders a written admission, as his Lordship, Hon Justice Onnoghen, had done in this instance, since the CCB&T Act leaves no one in doubt in its command that no reference to the [Code of Conduct] Tribunal shall be necessary where the person concerned makes a written admission of such breach or non-compliance (proviso to section 3)? With the greatest respect, it leaves much to be desired and gives some justification to the feeling in some quarters that there might be more to all this drama than meets the ordinary eye. One could then understand why the NBA feels bothered.
The time to act is now, before it’s too late. Indeed, there is power in numbers, but if those numbers will not unite and rise up against their oppressors, there can be no resistance. You can’t have it both ways. You can’t live in a constitutional republic if you allow the government to act like a police state. You can’t claim to value freedom if you allow the government to operate like a dictatorship. You can’t expect to have your rights respected if you allow the government to treat whomever it pleases with disrespect and an utter disregard for the rule of law.
Civilized existence is one which respects the law, both wise and good laws as well as bad laws, whose constitutional basis is the will of the people. When one does not like a particular law, the remedy resides in modifying it or revoking it by the procedures established for that very purpose. That methodology is the sole means of guaranteeing that popular will cannot be seized and held captive by… with… extreme interpretations.
I rest my case here. May God help Nigeria, my country! Amen!

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This page provides links to Case Law regarding sealing and expungements and the basis for plea modification, withdrawing a plea, or modifying sentence to obtain relief.
The disposition of a case – what the court did after a plea or finding of guilt – can affect whether a person qualifies to have their record sealed or expunged. It is important to know if such a modification will help or hurt your cause.
There are many ways to modify a plea. These can occur before or after a plea has been entered. Below are listed some of these methods of modification along with case law.
State v. Cousins, 62 So.3d 677 (Fla. 5th DCA 2011): The trial court lacked subject matter jurisdiction to modify Cousins’ completed sentence to reflect a withhold of adjudication. As a general matter, a trial court loses jurisdiction to modify or change a sentence 60 days after the sentence is imposed or becomes final. Certainly, a trial court lacks jurisdiction to modify a legal sentence several years after it has been completed by the defendant. The State’s petition for a writ of certiorari is granted and the order of the trial court modifying Cousins’ judgment and sentence is quashed.
Blackmon v. State, 7 So.3d 650 (Fla. 3d DCA 2009): Ms. Blackman wrote to the trial judge, requesting that the judgment in her case be vacated. The trial court treated the letter as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and denied it as untimely. As Ms. Blackman claims actual innocence, her only avenue of relief from the conviction would be by application to the Pardon Board. She wishes to have her criminal record sealed. In order to pursue that relief, Ms. Blackman must submit a petition to seal or expunge on the appropriate forms contained in Florida Rule of Criminal Procedure 3.989, and follow the requirements of Rule 3.692. The requirements include obtaining a certificate of eligibility from the Florida Department of Law Enforcement. It is impossible to determine from Ms. Blackman’s letter whether she is, or is not, eligible for sealing or expunction. No useful purpose would be served by a remand for the trial court to consider this issue, because the claim has not been properly pled.
State v. Dempsey, 916 So.2d 856 (Fla. 2d DCA 2005): Dempsey and the State entered into a PTI agreement under which Dempsey agreed to pay restitution to the victim and participate in the PTI program for twelve months. In exchange, the State agreed that upon full payment of restitution and her successful completion of twelve months in the PTI program, it would dismiss the charges. The written agreement also stated that the case and charges against her would not be subject to expunction pursuant to section 943.0585, Florida Statutes (1992), but could be sealed pursuant to section 943.059. The trial court thereafter ratified the agreement. Dempsey moved to set aside the PTI agreement, vacate the dismissal, and reinstate the charges against her. Her motion alleged that following the dismissal of the charges against her, she had pursued and completed a course of education to become certified as a school teacher, but she had been rejected for employment by several school districts. In particular, the Pinellas County School Board considered her participation in the PTI program an admission of guilt, thereby making her ineligible for employment within that district. She claimed she misunderstood her contract with the State, there was no meeting of the minds, and the dismissal of her charges was ambiguous and should be deemed void because third parties, particularly the Pinellas County School Board, do not recognize the dismissal. Absent a legal basis to do so, the trial court erred when it set aside the contract that Dempsey and the State entered into in 1998 and reinstated the criminal proceedings against her. In essence, Ms. Dempsey has tried to set aside an agreement that was extremely advantageous to her in 1998 but less so now in her present circumstances, based on the actions of a non-party to that agreement.
State v. Phillip, 20 Fla. L. Weekly Supp. 783a (17th Jud. Cir., May 20, 2013): In the instant case, the trial court did not err in granting the motion to vacate involuntary plea. The trial court found that the motion was not time barred [past 30-days but before 2-years] because Phillip did not know, and could not have discovered with the exercise of due diligence, that he was being adjudicated guilty. In fact, the original disposition issued by the trial court fails to indicate that Phillip was being adjudicated guilty. [T]he portion of the disposition form which contains a place for “Adj. Guilty” to be checked . . . remained unchecked. [T]he trial court found that the first time Phillip realized he was adjudicated guilty was when he was advised by FDLE that his request to expunge was denied. The State has not demonstrated that this factual finding was erroneous. Because his motion to vacate was filed within two years of discovering those facts, the trial court did not err in granting his motion under the very limited and unique facts of this case.
State v. Gebhard, 18 Fla. L. Weekly Supp. 705a (18th Jud. Cir., February 18, 2011): The State appeals the trial court’s order allowing Appellee . . . to withdraw her plea to a misdemeanor charge. In 1996, Appellee entered a plea to one count of worthless check; adjudication was withheld. In 2010, she filed a Motion to Seal or Expunge or in the Alternative to Reconsider Judgment. [T]he trial court held a hearing on this motion. [The court] orally announced that it would conform Appellee’s pleadings to the oral arguments and it granted the oral request made by counsel to withdraw Appellee’s plea. [C]ourts can only act within the limits set by law. There are a limited number of avenues available to a defendant seeking to set aside a criminal conviction[.] Rule 3.170(1), Fla R Crim P, allows a motion to withdraw a plea after judgment is entered . . . within 30 days of sentencing. Another . . . means of relief [is] a post-conviction motion filed under Rule 3.850, Fla R Crim P. This rule allows the court to consider a motion to vacate judgment, including a request to withdraw plea, up to two years after the judgment becomes final. Appellee’s motion in this case is untimely by many years and would be cognizable by the trial court only if she met the pleading requirements of Rule 3.850(b) with regard to newly discovered evidence and due diligence. The issue of whether Appellee has legally sufficient grounds for relief under Rule 3.850(b), however, is not actually before the Court because Appellee never filed such a motion. . . . In the absence of this motion, the trial court had no jurisdiction to vacate the judgment.
Lang v. State, 15 Fla. L. Weekly Supp. 688b (6th Jud. Cir., Apr 18, 2008):[Defendant] appeal[ed] from an order denying his motion to withdraw his plea[.] The defendant entered a no contest plea to a stalking charge. He claims that he would never have entered the plea if he had known, contrary to the assertions of his trial counsel, that he was ineligible to have his record expunged. After an evidentiary hearing, the trial court denied the defendant’s motion. In Phillips v. State, 960 So.2d 29 (Fla. 4th DCA 2007), the appellate court held that a claim that trial counsel erroneously told the defendant that his guilty pleas would never be used against him and would be expunged after he completed probation was insufficient to allow him to withdraw his plea, even though he claimed he would not have entered the plea if he knew he could not expunge his record. Inasmuch as courts within the Second District Court of Appeal must obey controlling precedent from other districts, see e.g. Chapman v. State, 423 So.2d 578 (Fla. 2d DCA 1982), this Court must similarly find that the defendant’s claim is not grounds for withdrawing his plea. The trial court properly denied the defendant’s motion to withdraw his plea.
Baldwin v. State, 10 F.L.W. Supp 758a (9th Jud. Cir., July 14, 2003): Defendant entered a plea of nolo contendere to the charge of battery (domestic violence). On February 22, 2002, Defendant filed a Motion to Withdraw Plea of No Contest, and a hearing was held. The public defender stated to the court that Defendant entered his plea specifically relying on her representation to him that he would be able to have this record expunged. After Defendant entered his plea, the public defender researched expungement and discovered that charges related to domestic violence cannot be expunged. She then contacted Defendant and informed him that she had given him incorrect information. The trial court concluded that there was an insufficient legal basis to withdraw the plea, and denied the motion. The facts at the hearing were undisputed. Defendant entered into this plea in reliance on counsel’s statement that he would have the opportunity to have this offense expunged from his record. Counsel was wrong. Thus, Defendant’s plea was rendered involuntary by counsel’s misadvice, and Defendant should have been allowed to withdraw his plea.
The best place to try and correct an act, such as a misunderstood plea, is before it happens. The judicial system has plenty of built in methods to correct errors, especially in the criminal justice system. However, there is a legitimate need for finality and the courts recognize this.
Plea agreements should be thoroughly explained before you enter into it. Always have your attorney explain all aspects of the plea agreements and how this will affect your ability to seal or expunge your record.
The effect of plea agreements is why you need to make sure you are making the right decision in court every single time. It goes without saying that the only way to do this is by hiring competent legal representation to handle all your legal matters.
Do you have questions, would you like to suggest additional case law, or are you seeking to have your record sealed or expunged? Please feel free to contact us.

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Ms. Wright joined the firm in 2000 and became a partner in 2006. Ms. Wright represents public agencies and private applicants in a variety of land use and environmental law matters. Ms. Wright handles all phases of the land use entitlement and permitting processes, including administrative approvals and litigation. Her practice covers the California Environmental Quality Act (CEQA), the State Planning and Zoning Law, the Subdivision Map Act, the Williamson Act, the California Endangered Species Act, the National Environmental Policy Act (NEPA), the federal Endangered Species Act, and the federal Clean Water Act provisions associated with wetlands permitting.
Ms. Wright teaches several land use and environmental law continuing education classes and seminars each year for professional organizations such as the Association of Environmental Professionals and Law Seminars International. She also regularly speaks at conferences and meetings, such as conferences for the California Chapter of the American Planning Association, the California Association of Environmental Professionals, the League of California Cities, the County Counsels’ Association of California and the American Public Transportation Association.
Outside counsel to the Los Angeles County Metropolitan Transportation Authority for CEQA review of several transit and transportation projects and in litigation challenging the approval of the Crenshaw/LAX transit line, the Regional Connector transit line, and the Westside Subway transit line.
Outside counsel to the Port of Los Angeles for CEQA review of various projects to implement the Port’s Master Plan.
Representing Richland Communities for several large specific plan projects, including the Lincoln Village 5 Specific Plan, a 4,943-acre mixed-use development in western Placer County.
Counsel to Friant Ranch, LP in litigation over the adequacy of Fresno County’s EIR for the Friant Ranch Specific Plan, decided by the California Supreme Court on December 24, 2018.
Outside counsel to Calaveras County and Tuolumne County in the updates of their general plans.
Sierra Club v. County of Fresno (2018) __ Cal.5th ___ (Supreme Court Case No. S219783).
Japanese Village, LLC v. Federal Transit Administration, 843 F.3d 445 (9th Cir. 2016).
Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627.
South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316.
Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association of Governments (2009) 179 Cal.App.4th 113.
St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989.
CalBeach Advocates v. City of Solana Beach (2002) 103 Cal.App.4th 529.

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