In re ADVISORY OPINION (CHIEF JUSTICE).
No. 85-471-M.P.
Supreme Court of Rhode Island.
April 4, 1986.
507 A.2d 1316
Arlene Violet, Atty. Gen., Shiela Tobie Swan, Sp. Asst. Atty. Gen., Stephen J. Fortunato, McKinnon & Fortunato, for Grand Lodge R.I. Order Sons of Italy.
Richard M. Egbert, for Chief Justice Joseph A. Bevilacqua.
Michael P. DeFanti, Hinckley Allen Tobin & Silverstein, for R.I. Bar Ass‘n.
Patricia A. Hurst, D‘Amico Connor & Hurst, amicus curiae.
John A. MacFadyen, II, for American Civil Liberties Union.
In re Request for Advisory Opinion to the Governor and the Leaders of the House of Representatives and the Senate.
His Excellency, Edward D. DiPrete, Governor the State of Rhode Island, The Honorable Matthew J. Smith, Speaker of the Rhode Island House of Representatives, and the Honorable John C. Revens, Jr.,
We have received your request seeking the advice of the justices of this court in accordance with the provisions of section 2 of article XI of the amendments to the Rhode Island Constitution. The question posited is as follows:
“May a joint resolution such as 85-S16 entitled, ‘Joint Resolution Vacating the Judgeship of Chief Judge (sic) Joseph A. Bevilacqua,’ be acted upon if the 1985 General Assembly session is reconvened pursuant to Joint Resolution No. 85-S1064 in light of Section 4 of article X requiring that ‘such Resolution shall not be entertained at any other than the annual session for the election of public officers * * *?‘”
Before engaging in a discussion of this question, a review of the matters which occurred prior to your request is in order.
On January 1, 1985 Senator Robert T. Motherway introduced a resolution entitled, “Joint Resolution Vacating the Judgeship of Chief Justice Joseph A. Bevilacqua.” The resolution declares the office of Chief Justice Bevilacqua vacant. The Senate referred the resolution to the Senate Committee on Special Legislation.
Following the 1984 general elections in the State of Rhode Island, the newly elected Attorney General wrote to the chairman of the Rhode Island Commission on Judicial Tenure and Discipline requesting an investigation by the Commission into the conduct of Chief Justice Joseph A. Bevilacqua.
The Rhode Island Commission on Judicial Tenure and Discipline investigated and held hearings which resulted, on June 20, 1985, in the following disposition which was agreed to by Chief Justice Bevilacqua:
“1. The Commission and the respondent agreed that Chief Justice Joseph A. Bevilacqua, Sr., has engaged in conduct that violates Canons 4 and 29 of the Canons of Judicial Ethics and that such conduct has brought his judicial office into seri-
ous disrepute. He is hereby PUBLICLY CENSURED for those violations. “2. Chief Justice Bevilacqua acknowledges that it is essential for a judge to avoid the appearance of impropriety and to adhere strictly and scrupulously to the Canons of Judicial Ethics.
“3. After extensive investigation, including a review of the opinions of the Rhode Island Supreme Court during the tenure of Chief Justice Bevilacqua, the Commission has found no evidence, and has no reason to believe, that the conduct referred to in paragraph 1 has in any way affected any of his judicial decisions.
“4. The Commission and the respondent agree that Chief Justice Bevilacqua will abstain from performing the official duties of his office for a period of four (4) months, beginning on July 1, 1985 and ending on October 31, 1985.
“5. Chief Justice Bevilacqua agrees that he will forego all compensation during the four-month period referred to in paragraph 4 and will execute any and all documents necessary to effectuate this intent * * *”
“6. Chief Justice Bevilacqua acknowledges and accepts the authority of the Commission with respect to all proceedings herein and waives any challenge thereto.
“7. On execution of this Order of PUBLIC CENSURE, the proceedings herein are terminated.
“8. This Order is entered by the unanimous vote of the thirteen (13) Commissioners in attendance and with the approval of the Commission‘s Special Counsel, Arthur J. Goldberg.”
Subsequently, on June 21, 1985, the 1985 session of the General Assembly adjourned without the Senate Committee on Special Legislation acting on Resolution 85-S116. The Joint Resolution of Adjournment, No. 85-S1064, provided that each House of the General Assembly may be reconvened by the respective legislative leaders upon three days notice to continue the 1985 session.
On October 11, 1985, this court received the aforementioned request for an advisory opinion. On November 25, 1985, we responded to said request by stating that the question should be answered in the negative. This opinion sets forth the basis for our response, including a discussion of the propriety of the request.
I.
THE PROPRIETY OF THE REQUEST
Although the petitioners’ request involves a matter of the utmost importance, there are some preliminary procedural issues which we desire to put in context before we address the merits of this inquiry.1
One procedural deficiency arising from this particular request is that the petition was jointly made by the leaders of each House and the Governor. This court will not render an advisory opinion except upon the written request of the Governor or (not and) of either House of the General Assembly. Industrial National Bank of Rhode Island v. Isele, 101 R.I. 734, 737, 227 A.2d 203, 206 (1967). We are constitutionally obligated to give advisory opinions to either House of the General Assembly only when the questions propounded concern the constitutionality of pending legislation, and to the Governor only when the
Referring specifically to the request by the Speaker and the Senate Majority Leader, the following language from the Reply of The Supreme Court To A Communication From Certain Members of The House of Representatives in The General Assembly, 58 R.I. 51, 54, 191 A. 259, 271 (1937) is instructive:
“We are not unmindful of the generally accepted principle of the law of legislative assemblies that the house means a majority of the house. That principle is also the constitutional law of this state. (
art. IV, sec. 6 ). Generally, no business of any kind can legally be performed by any number less than a majority, except to adjourn or compel the attendance of absent members. In other words, majority rule is firmly imbedded in our fundamental law and governs the house of representatives.”
The court in that case declined to render an advisory opinion because the petition only constituted an attempt by some members of the house of representatives to secure the court‘s advice, and not a formal and collective action by the house as required by
As far as the Governor‘s request is concerned, there are a few principles regarding the rendering of advisory opinions which should be articulated. First, a question or questions propounded to the Supreme Court must have some relationship to the official duties of the coordinate branch propounding the questions. Opinion to the Governor, 109 R.I. 289, 284 A.2d 295 (1971). Second, this court should avoid giving advisory opinions in circumstances not constitutionally mandated; thus, giving such opinions in matters unconnected with the official function of the requesting coordinate branch would be gratuitous. Id. Third, we only advise the chief executive in those instances in which the questions propounded have a bearing upon a present constitutional duty awaiting performance by the Governor. In re Request for Advisory Opinion, 472 A.2d 301, 302 (R.I.1984). In light of these legal precepts and a review of the request before us, it is clearly evident that the Governor has no present constitutional duty awaiting performance in these circumstances. Furthermore, since according to
In spite of the procedural deficiencies inherent within the petition before us, and in view of the fact that either branch of the Legislature could independently, by majority vote, propound the same question to this court, we shall exercise our discretion and waive the defects so that we can address the profoundly important substantive issues raised by the petitioners’ request. We must reiterate that we shall not consider this action as a precedent indicating that in the future we shall render an advisory opinion when the requesting petition is improperly before this court or pro-
II
WHETHER THE GENERAL ASSEMBLY HAS THE POWER TO REMOVE A JUSTICE OF THE SUPREME COURT BY A JOINT RESOLUTION DECLARING THE OFFICE VACANT, IN THE LIGHT OF THE PROVISIONS OF ARTICLE X, SECTION 4 OF THE RHODE ISLAND CONSTITUTION WHICH STATES THAT “SUCH RESOLUTION SHALL NOT BE ENTERTAINED AT ANY OTHER THAN THE ANNUAL SESSION FOR THE ELECTION OF PUBLIC OFFICERS.”
For reasons fully set forth below, we are of the opinion that
On the matter of constitutional interpretation, the United States Supreme Court said in Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 723, 9 L.Ed. 1233 (1838) that “[i]n the construction of the constitution, we must look to the history of the times, and examine the state of things existing when it was framed and adopted * * *.” Therefore, an exposition of the changes in the structure of government in Rhode Island as it had evolved from the early years of the colony to the middle 1800s is helpful in appreciating the political climate in which article 10, section 4 was adopted into the 1842 Constitution.
Rhode Island, unlike most of its neighbors, was not founded as a controlled experiment under the authority of the King of England or his deputies.2 It was founded without official sanction by different groups of people who came from other colonies for reasons personal to them. They all purchased the land from the Indians who were living here rather than obtaining it by a grant from the King.
These different groups were made up of people who were quite average except for the fact that they were out of step with the prevailing rigid religious attitudes of the settlements that they had left voluntarily or from which they were expelled. They were Baptists, Antinomians,3 Arminians,4 Quakers, Catholics and Jews and all of them were highly individualistic and independent.
These groups established towns in Providence, Portsmouth, Newport and Warwick, and in the beginning, no statewide organization or colonial government existed. The first General Assembly was simply a gathering of men who were eligible to vote in the towns from which they came. It was the towns who called the central state government into being and the early acts of the general assembly had to be sent back to the different cities and towns for approval.
In 1663, the Charter of Charles II validated Rhode Island‘s right to exist. By that date, the people were electing a Governor and a Deputy Governor and ten assistants at large. Each of the towns also
By 1700 or shortly before, the ten assistants at large had evolved into an upper house that later became the Senate and the deputies from the towns had become a lower house that became the House of Representatives. The Governor and Deputy Governor were members of the upper house and had very little executive authority. Their offices were primarily ceremonial. The two houses sitting together in “Grand Committee” made all of the appointments to office and distributed patronage.
Frequency of election, limited executive powers, the legislative appointment of the judiciary were salient elements of the charter government. Freedom of religion, press, assembly and petition were a part of the Rhode Island tradition for nearly a century before they were written into the United States Constitution. Government was kept small in size and close to the people. This was fostered by having the legislative sessions move around the state. Until the middle of the 1800‘s, the legislators met at Newport, Bristol, Providence, East Greenwich and Kingston. From about 1850 to 1893, state government alternated between Newport and Providence. From 1893 on, legislative sessions were held in Providence only.
Our constitutional development involving the structure and operations of state government reflected this evolution. In particular, the constitutional framework establishing the timing and location of General Assembly sessions and the method by which public officers would be elected has been the subject of substantial amendment. These amendments are at the heart of the issue before us today.
Article IV, sec. 3 of the original constitution that was adopted in 1842 and became effective in 1843 provided that:
“There shall be two sessions of the general assembly holden annually: one at Newport, on the first Tuesday of May, for the purposes of election and other business; the other on the last Monday of October, which last session shall be holden at South Kingstown once in two years, and the intermediate years alternately at Bristol and East Greenwich; and an adjournment from the October session shall be holden annually at Providence.”
The election referred to in art. IV, sec. 3 was the annual session for the election of public officers. At that time, all general officers and all Rhode Island Senators and Representatives stood for popular election annually on the first Wednesday in April under the provisions of article VIII, section 1. Under article VIII, sections 7 and 10, any person who sought election to one of these offices was required to obtain a majority of the votes. If no person received a majority of the votes cast for a particular office, the Legislature, sitting in grand committee, would select one of the two top vote getters to fill that office. Because the terms of office began on the first Tuesday in May as provided in art. VIII, sec. 1, it was only logical that a vacancy in office created by the failure of any candidate to obtain a majority of the votes would be dealt with on the same day by the grand committee at the May session convened “for the purpose of election and other business“, as prescribed by art. IV, sec. 3. This is because that particular session also began on the first Tuesday in May, pursuant to art. IV, sec. 3.
Eleven years later, in 1854, art. IV, sec. 3 of the original constitution was superseded by article III of the amendments. It provided:
“There shall be one session of the General Assembly, holden annually, commencing on the last Tuesday in May, at Newport, and an adjournment from the same shall be holden annually at Providence.”
This article remained in effect until 1893 when article III of amendments was in turn superseded by article XI of the amendments. The new amendment contained several provisions regarding election and terms of office and it provided for one session of the General Assembly to be held in Providence, commencing on the first Tuesday in January of each year. The most important aspect of this constitutional evolution, for our purposes, was the enactment in 1893 of article X of the amendments which provides that all elections in the state should be by plurality not majority. This amendment divested the General Assembly of its former constitutional duty to hold elections in grand committee for the purpose of choosing between the two highest vote getters in an election in which neither had been able to capture the office by a majority of the votes.
In 1900, article XI, sec. 2 of the amendments changed the time on which the general election would be held but not the one year term of office. It provided for annual elections to be held on the Tuesday next after the first Monday in November. Finally, in 1912, article XVI, sec. 1 of the amendments, provided that, beginning with 1912, elections would be held biennially.
In approaching the issue before us today, we believe that “the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.” Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 536, 609, 10 L.Ed. 1060 (1842). Having followed this guidance given us by the United States Supreme Court, we conclude that the adoption of biennial elections, coupled with the change to plurality elections, consigned to history the “annual session for the election of public officers.” Because this session no longer takes place, we do not believe that the Legislature today retains the removal power contained in article X, section 4, of the Constitution. That section provides:
“Election and removal of supreme court judges * * * Impeachment. The judges of the supreme court shall be elected by the two houses in grand committee. Each judge shall hold his office until his place be declared vacant by a resolution of the general assembly to that effect; which resolution shall be voted for by a majority of all the members elected to the house in which it may originate, and be concurred in by the same majority of the other house. Such resolution shall not be entertained at any other than the annual session for the election of public officers; and in default of the passage thereof at said session, the judge shall hold his place as is herein provided. But a judge of any court shall be removed from office if, upon impeachment, he shall be found guilty of any official misdemeanor.” (Emphasis added).
When we interpret the constitution, we are guided by the same rules of construction that apply to the construction of statutes. City of Jacksonville v. Continental Can Co., 113 Fla. 168, 151 So. 488 (1933). See also Opinion to the Governor, 44 R.I. 275, 117 A. 97 (1922). The general rule is that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed, or the language used by the legislature, show that the designation of time was intended as a limitation of the power of the officer. In re the Census Superintendent, 15 R.I. 614, 616, 15 A. 205, 205 (1885) (citing People v. Allen, 6 Wendell 486 (1831)).
The language of art. X, sec. 4 expressly limits the removal power. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), Chief Justice Marshall stated that “[i]t cannot be presumed, that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.” Id. at 174, 2 L.Ed. at 72. We believe those words are appropriate to the situation at hand. In article X, section 4, the authors of the constitution made it absolutely clear that the Legislature could not consider the joint resolution for removal of a Supreme Court Justice “at any time other than the annual session for the election of public officers.” Their choice of the words “shall not be entertained,” coupled with the fact that no such limitation was placed on the legislature‘s power to impeach, in our opinion, renders this conclusion inescapable. Moreover, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary sense as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition.” United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 222, 75 L.Ed. 640, 644 (1931). See also The Pocket Veto Case, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929); Edwards v. Cuba R. R. Co., 268 U.S. 628, 45 S.Ct. 614, 69 L.Ed. 1124 (1925); Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906); Lake County v. Rollins, 130 U.S. 662, 9 S.Ct. 651, 32 L.Ed. 1060 (1889); Tennessee v. Whitworth, 117 U.S. 139, 6 S.Ct. 649, 29 L.Ed. 833 (1885); Craig v. Missouri, 29 U.S. (4 Pet.) 410, 9 L.Ed. 903 (1830); Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 6 L.Ed. 678 (1827); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824); Martin v. Hunter‘s Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816); Story, Commentaries on the Constitution § 451 (5th ed. 1891); Cooley‘s Constitutional Limitations, 61, 70 (2nd ed.).
While one might argue that the inadvertent repeal of a power is not lightly to be assumed, in this instance, between 1843 when the Constitution became effective and 1893, when the need for the elective function of the General Assembly was finally ended by article XI of the amendments, it is significant that half a century had passed without the removal of a single justice. Without question, those who adopted the amendment were eliminating the occasion for the exercise of a power that had fallen into complete disuse.
We are not unmindful of the fact that, in 1935, the Legislature momentarily attempted to resurrect the power to vacate and it arbitrarily selected the first day of the legislative session as appropriate for its exercise. Because the justices who were purportedly removed resigned their offices and accepted pensions that were paid to them for life, that action was never challenged and the question of whether the Legislature had the removal power after 1893 was never adjudicated in any forum. Consequently, that event does not serve as a persuasive precedent either historically or legally.
The language of article X, section 4 makes the time for the exercise of the power of removal vital to the power itself. With the elimination of the time and the occasion for the exercise of the power, it ceased to exist.
We believe that the logical interrelationship of the amendments in our Constitution‘s evolution compels only one conclusion. The power of the Legislature to remove Supreme Court justices by joint resolution was limited from the very beginning, conditioned specifically on the occurrence of a legislative session that met annually for the election of public officers. With the effective abolition of that session in 1854, and more certainly in 1893, there was and is no longer any constitutionally ordained forum in which this power can be exercised.
III
IN THE LIGHT OF THE CIRCUMSTANCES OF ITS INTRODUCTION, IS JOINT RESOLUTION 85-S16, WHICH PURPORTS TO VACATE THE POSITION OF CHIEF JUSTICE JOSEPH A. BEVILACQUA, VIOLATIVE OF THE PROHIBITION, CONTAINED IN ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE UNITED STATES, AGAINST THE PASSAGE BY ANY STATE OF A BILL OF ATTAINDER?
The court must take judicial notice of the well-known fact that at the time of the introduction of Joint Resolution 85-S16, untitled “Joint Resolution Vacating the Judgeship of Chief Judge [sic] Joseph A. Bevilacqua,” accusations of misconduct had been leveled against the Chief Justice because of his alleged association with persons of criminal background. These accusations resulted in consideration of possible disciplinary action against the Chief Justice by the Commission on Judicial Tenure and Discipline of this state. For purposes of this opinion, it is not necessary to consider the details of the hearings and consideration by the Commission on Judicial Tenure and Discipline since we have already noted that a resolution of the issues before the commission was reached by agreement of the commission and the Chief Justice upon recommendation of its counsel, former United States Supreme Court Justice Arthur Goldberg, and counsel for the Chief Justice as set forth in the first portion of this opinion. Under this agreement, the Chief Justice removed himself from office for a period of four months without pay. That abstention from judicial duties terminated November 1, 1985.
Although the joint resolution does not specify the reason for removal of the Chief Justice, it is clear beyond doubt that the basis for the resolution was a response to the charges of misconduct that were also considered by the commission.
The bill of attainder clause was designed by the framers to insure that the Legislature did not overstep its bounds in imposing punishment upon individuals without
“Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disenfranchisement, and banishments by act of the legislature.” The Federalist, No. 48, 383-84 (Hamilton ed. 1880).
It was a frequently expressed opinion, during the period succeeding the adoption of the Constitution, that the Legislature was not suited by its numbers and organization to try with coolness, caution and impartiality a criminal charge, especially in those cases in which popular feeling was strongly excited. See 1 Cooley, Constitutional Limitations, 536-37 (8th ed.1927). As early as the decision in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136, 3 L.Ed. 162, 178 (1810), it was stated in dictum that it was “the peculiar province of the legislature, to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.”
Following the Civil War, the Supreme Court of the United States considered two cases: Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1867), and Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867). In Cummings, the Court determined that a provision of the Missouri constitution which deprived a Catholic priest of his right to administer the sacraments of his church and to serve as a minister of his faith, without taking an oath that he had never engaged in acts constituting loyalty to the Confederacy, was a violation of the attainder clause. In Garland, the Court, for similar reasons, voided a requirement by the Congress that a person could not practice law without subscribing to a loyalty oath of equivalent import. In both cases the Court determined that the attainder clause was applicable to bills of pains and penalties as well as to the traditional death penalty of a bill of attainder. Garland, 71 U.S. (4 Wall.) at 377, 18 L.Ed. at 369-70; Cummings, 71 U.S. (4 Wall.) at 323, 18 L.Ed. at 363. In summary, the Court observed in Cummings:
“The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.” 71 U.S. (4 Wall.) at 325, 18 L.Ed. at 363.
Eighty years later, the Supreme Court again considered the attainder clause in United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). In that case Congress had passed, after some resistance by the Senate, an appropriation bill cutting off the salaries of three named individuals, Lovett, Watson and Dodd, who were suspected by investigators of the Dies Committee of subversive activities and of association with “communist front organizations.” In striking down this act as violative of the Bill of Attainder clause, the Court reiterated the holding in Cummings v. Missouri, supra, that a bill of attainder is a legislative act that inflicts punishment without a judicial trial and that the bill of attainder includes a bill of pains and penalties. The Court went on to determine that the prohibition by Congressional act of federal employment by three named individuals with the concomitant stigma upon their reputations fell precisely within the bill of attainder prohibition. Justice Black, speaking for the Court, suggested:
“Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punish-
ment without trial by duly constituted courts.” United States v. Lovett, 328 U.S. at 317, 66 S.Ct. at 1079-80, 90 L.Ed. at 1260.
Finally, in United States v. Brown, supra, Chief Justice Warren, quoting Lovett, 328 U.S. at 315-16, 66 S.Ct. at 1079, 90 L.Ed. at 1259 with approval, reiterated that “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” United States v. Brown, 381 U.S. at 448-49, 85 S.Ct. at 1715, 14 L.Ed.2d at 492.
In Brown, the Court struck down a statute that made it a criminal offense for a person who had been a member of the Communist party to serve as an officer or (except in clerical or custodial positions) as an employee of a labor union. Although the persons were not specified by name, the Court held that the infliction of a deprivation upon one described as a member in the Communist party as opposed to specifically named individuals did not preclude its violation of the attainder clause. The Court stated that under our Constitution Congress possesses full legislative authority, but the task of adjudication must be left to other tribunals.
For bill of attainder purposes, a justice of the Supreme Court would have a fully protectible interest in his employment and the ancillary benefits incident thereto. When one considers that for a period of one hundred forty-four years a justice of the Supreme Court had a fully justified expectation of employment until retirement, resignation or death, with only one exception in 1935 (in which full retirement benefits were accorded the justices), it seems clear beyond doubt that a property interest has been established even for purposes of due process. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); VanAlstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439, 1457 (1968); Reich, The New Property, 73 Yale L.J. 733 (1964). Even such a case as Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), does not deprive a government employee of due process, but only allows the government agency to determine what process is due for purposes of a pre-termination or post-termination hearing. Arnett does not suggest that removal without any hearing at all would meet the requirements of due process. In any event, the analysis in the instant case is properly a bill of attainder rather than a due process question. We are of the opinion that the removal of a Supreme Court justice for misconduct, without an opportunity to be heard, by a majority of both Houses of the Legislature would not meet either safeguard.
It must be noted that in responding to the instant request for advisory opinion, we deal with a provision of the Constitution of the State of Rhode Island as the Supreme Court of the United States in Cummings v. Missouri, supra dealt with a provision of the Missouri Constitution. When the Constitution of Rhode Island was first adopted in 1842, Cummings v. Missouri, supra, and later cases expounding upon the attainder clause by the United States Supreme Court, had not yet been decided. Moreover, as indicated in earlier portions of our response to the request for advisory opinion, the purpose of article X, section 4, of the Constitution of Rhode Island, dealing with election and removal of the judges of the Supreme Court, did not, at least facially, relate necessarily to punitive actions by the Legislature in respect to the removal of a justice. Prior to the adoption of the Constitution of 1842, Supreme Court justices were elected annually. This provision was designed to increase the tenure of such judges to an indefinite term which might terminate by death, resignation, or removal, as well as by impeachment. Opinion to the Governor, Re The Election of Justices of the Supreme Court, 23 R.I. 635, 51 A. 221 (1902). The framers of the Rhode Island Constitution and the justices who rendered the advisory opinion in 1902 did not consider whether this provision relating to election and removal of judges would be subject to the limitations of the attainder clause of the Federal Constitution.
It is, of course, theoretically possible that a judge might have been removed from office without any suggestion of misconduct or stigma upon his reputation. Such a question, however, cannot be considered in a vacuum in light of the fact that no justice of the Supreme Court was removed from office from the adoption of our Constitution in 1842 until the attempted removal of all five justices in 1935 as a result of real or fancied shortcomings on the part of such justices. It is also a matter of historical fact that the removal of the justices in 1935 was not challenged because all of the justices voluntarily resigned when offered paid retirement for the rest of their lives.
Consequently, we are faced with a situation in which the provision allowing removal of justices has not been implemented in the face of a challenge for a period of one hundred forty-four years. As with removal by address in Connecticut, Maine and Massachusetts, the remedy is seldom exercised.5
It is not surprising that the framers of the Rhode Island Constitution were not particularly sensitive to the limitations of the Federal Constitution since in 1842 those limits were scarcely perceptible. The Bill of Rights at that time was a limitation solely upon federal as opposed to state power. See Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833). This doctrine was to be unchanged for many years. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873). Although the bill of attainder clause was a direct limitation upon state power, Cummings v. Missouri, supra, and In re Garland, supra, were not decided until twenty-five years after the Rhode Island Constitution was adopted.
In any event, the limitation of the attainder clause would, in our judgment, completely preclude the passage of any resolution purporting to remove the Chief Justice or any justice of this court in a context in which such removal would be construed as punishment for past misconduct by implementation of the provisions contained in article X, section 4, which provides for a majority vote of both Houses of the General Assembly.
However, this opinion should in no way be construed as indicating that the attainder clause would inhibit application of the provisions of article X, section 4, which states:
“But a judge of any court shall be removed from office if, upon impeachment, he shall be found guilty of any official misdemeanor.”
The latter provision refers to article XI of the Constitution which deals with impeachments. Such article provides in section 1 for impeachment by the House by a vote of two-thirds of all the members and for a trial of such impeachment by the Senate. The process of impeachment would in our opinion not transgress the bill of attainder clause because it gives to the party accused an opportunity to be heard and to present evidence in his own defense. In short, the impeachment proceeding allows for due process to be afforded to the accused. On the contrary, a justice who is removed by a majority vote of both houses of the General Assembly is not entitled to a hearing or to any of the procedural safeguards normally accorded to an accused person under the
We express no opinion on whether other methods of removal might be devised that would include a judicial hearing prior to such removal together with subsequent action by the Legislature. No such provision presently exists in the Rhode Island Constitution in respect to the justices of the Supreme Court, although such action may take place in respect to other judicial officers pursuant to the Judicial Tenure and Discipline Act,
For the reasons stated, we answer the question addressed to us by the Governor and the leaders of the Rhode Island House of Representatives and Senate in the negative.
Respectfully submitted,
Joseph R. Weisberger
Florence K. Murray
Donald F. Shea
KELLEHER, Justice, dissenting.
I share my colleagues’ concern at the propriety of responding to the inquiry now before us. However, recently in In re Advisory Opinion to the Governor Regarding Conflict of Interest, 504 A.2d 456 (R.I.1986), all four justices recognized that there could be instances in which the public interest would mandate a response to an inquiry even though the inquiry failed to satisfy the criteria usually employed in determining whether or not a response was required. Here the public interest in the General Assembly‘s ability or inability to remove a justice of this court from office by the passage of a resolution declaring the particular office vacant mandates a definitive response.
I reluctantly disagree with my colleagues’ implied repeal of a provision that
In determining whether the General Assembly continues to retain the power to remove the members of the Supreme Court from office by the passage of a resolution declaring a particular position or positions to be vacant, consideration of the longstanding historical relationship that has existed between the Legislature and this court is most appropriate.6 I begin by returning to the time of Roger Williams, who had traveled to England and on March 14, 1643, received from Oliver Cromwell and other members of Parliament a Parliamentary Patent which gave the inhabitants of Providence, Portsmouth, Newport, and later Warwick a “free and absolute Charter of Civil Incorporation to be known by the name of Incorporation of Providence Plantations, in the Narragansett Bay in New-England.”a
For reasons not readily apparent, the charter remained dormant until May of 1647. On the nineteenth, twentieth, and twenty-first of that month, a major part of the colony assembled in Portsmouth, where at a “General Court of Election” the charter was adopted and implementing legislation was enacted.b A General Court of Trials was established for the whole colony. The officers were to consist of one president, four assistants—“one for every town“—a recorder, a treasurer, and a sergeant. All officers were chosen annually by the freemen “in the grand committee and towards the latter end of that session.”c The court met twice a year, with the president as chief judge and the four assistants acting as associate justices, unless they were “necessarily” detained by other matters.d The charter also authorized the adoption of legislation relating to the replacement of a judicial officer who “goes without, beside, or beyond his commission.”
e The General Assembly was a court of last resort for those who were dissatisfied with the actions of the trial court, and relief might be obtained by petitioning the Assembly.f
It is obvious that those gathered at the first meeting of the General Assembly limited their deliberations to the formation of a judiciary. William R. Staples, who served as Chief Justice of this court from 1856 to 1866, in commenting on the 1647 legislation, observed: “It would seem that neither the president nor the assistants, in virtue of their offices, had any share in legislation. That power remained entire in the hands of the General Assembly of the whole people * * *.”g
Once the monarchy emerged triumphant from its struggle with Cromwell and his cohorts, the colonists thought the time was opportune for requesting a Royal Charter. In early July 1663, Charles II forwarded to “The English Colony of Rhode Island and Providence Plantations in New England in America” a document that has been described as the “Munificent Charter,”h one that bestowed a generous amount of autonomy on a colony that had not yet reached the age of twenty-one. The charter also called for the annual election from among the freemen of a governor, deputy governor, and ten assistants.i The annual election was to be held in Newport.j The General Assembly was authorized and directed to establish courts of jurisdiction for the hearing of civil matters and the imposition of criminal sanctions such as fines, imprisonments, and “other punishments, pecuniary and corporal” and again to “alter, revoke, annul, or pardon such fines, * * * imprisonments, sentences, judgments and condemnations as shall be thought fit * * *.”k Once again the General Assembly was authorized to act as a court of last resort. The charter was accepted by the freemen assembled in Newport in late November 1663. In the Royal Charter the terms “General Court” and “General Assembly” were used synonymously and interchangeably. Even to this date the Massachusetts
Subsequently, on May 1, 1666, the General Court of Trials and General Jail Delivery was created. Annual sessions were scheduled, with one to be held in Newport on the last Tuesday of March and a second on the first Tuesday of September. The court was to consist of the governor, the deputy governor, and assistants, with the governor or the deputy and three assistants comprising a quorum.n A litigant could take an appeal to the General Assembly, which was authorized to alter, amend, or reverse such judgments and give a new judgment thereupon “as to the said assembly shall appear to be agreeable in law and equity.”o
In the summer of 1719 the General Assembly became a bicameral legislature, with the governor, deputy governor, and assistants sitting as the “upper” house and the deputies of the several towns comprising the “lower” house. Appeals were to be considered by the upper and lower houses meeting in grand committee. Further appeals in certain cases could be made to His Majesty in council.p The court established in 1666 was renamed the Superior Court of Judicature, Court of Assize, and General Jail Delivery. The change in name did not result in the replacement of court personnel, and appeals were still to be taken to the General Assembly and from there to the King in council.q
In 1746 the General Assembly provided that the Superior Court of Judicature was to consist of one chief judge and four other judges to be chosen annually by the General Assembly. Three of the justices would constitute a quorum, and the court would have the same authority as exercised in His Majesty‘s kingdom by the Court of Common Pleas, King‘s Bench, or Exchequer.r
The right to vote was reserved to the freemen—white, male adults who owned or possessed an interest in their own right in real estate of a specific value that fluctuated with the passage of time. Up until the time of the Revolutionary War, this requirement was considered to be quite reasonable because 75 percent of the white, adult, male population satisfied the freehold requirement.t However, as the colony began to grow in the mid-1800s, there began a decline in the once favorable ratio of land to man. The growing urbanization of Providence was one of several factors that contributed to the disenfranchisement of many city dwellers and an increasingly malapportioned Legislature. For instance, Newport, with a population of just over 8,300, was represented by six legislators, whereas Providence, with a population in excess of 23,000, sent but four individuals to the General Assembly.u This state of events produced a growing agitation for the adoption of a Constitution which would replace Charles II‘s charter.
Several attempts at enacting a Constitution met with little success. A Constitution was framed in 1824 and submitted to the people, who rejected it. Time marched on and in 1834 another Constitutional Convention was assembled but dissolved for want of a quorum.v Later, in early October 1841, a “People‘s Convention,” convened under the leadership of Thomas W. Dorr, produced a Constitution which Dorr adherents claimed was ratified by a majority of the electorate when the votes were tallied in January 1842.w However, the legal “Charter” government refused to accept the Constitution and responded in February 1842 with a “Landholders‘” or “Freemen‘s” Constitution. This effort was no more successful than the previous undertakings.x Finally, after Dorr‘s Rebellion had been suppressed, a Constitution adopting many of the provisions of the Landholders’ Constitution and some of the People‘s Constitution was adopted by the General Assembly on November 5, 1842, and was ratified later that month. The Constitution became effective on May 4, 1843, and has since that date been the repository of Rhode Island‘s fundamental law.y
As adopted, the Constitution provided for distribution of governmental power “into three departments: the legislative, executive and judicial.” The franchise was expanded, the Legislature was reapportioned, and legislation providing for the direct election of general officers was adopted. Provisions calling for the election of Supreme Court justices by the grand committee and the holding of two sessions of the General Assembly—in May and October of each year—were retained.
Despite a constitutional distribution of the power of government among the legislative, executive, and judicial departments, the General Assembly was reluctant to divest itself of the power it had exercised for so long over the judicial department. This was particularly true with respect to the Legislature‘s equitable powers and the Assembly‘s long-standing willingness to act as an appellate court.
Although the court might have been supreme in the exercise of judicial powers, Chief Justice Ames conceded that he and his colleagues had only a “comparatively stable tenure of office” under the Constitution because, as he obviously believed, the power to elect the justices of the Supreme Court, and conversely to declare their places vacant without a showing of cause, was a legislative function, still entrusted to the General Assembly.
In Gorham v. Robinson, 57 R.I. 1, 24-25, 186 A. 832, 844-45 (1936), the late Justice William A. Moss, in expressing the sentiments of the majority, wrote that if the framers of the constitution had intended to bestow upon the state judiciary the judicial independence enjoyed by our federal counterparts, they would have employed the language found in
My colleagues have already referred to the only occasion during the 140-plus years that have elapsed since the state‘s constitution became effective when the General Assembly invoked its power to remove a justice of this court. It occurred on Tuesday, January 1, the first day of the January 1935 session, with the passage of five joint resolutions, each of which vacated the positions of either the chief justice or the four associate justices of the Supreme Court. Each resolution contained a provision calling for the acceleration of pension benefits payable to members of this court pursuant to
No suggestion was made that any of the five former justices had been guilty of any malfeasance or dereliction of duty. They were simply removed by the General Assembly sitting in grand committee, the same body that had elected them to office, acting pursuant to
The constitutional power to remove a judge is not unique to Rhode Island. In fact, provision for legislative removal, either by acting alone or by way of address to the chief executive, is to be found in the constitutions of eight of the thirteen original colonies. They are Connecticut,9 Maryland,10 Massachusetts,11 New Hampshire,12 New York,13 North Carolina,14 South Carolina,15 and Rhode Island. In three of the
Having highlighted the centuries of complete indifference on the part of the Rhode Island electorate to affording any degree of job security to the members of this court
An informative and interesting insight as to what actually transpired in the legislative chambers before the turn of the nineteenth century can be gained from an examination of an advisory opinion given by five of our predecessors on February 6, 1902, to the then-Governor Charles Dean
“[T]he election of a judge of the Supreme Court for the full term of the office, * * * might be had at any time during the May session or any continuation or adjournment thereof. The election of general officers in grand committee seldom, if ever, occurred on the first day of the session; and what might be done on the second day might be done on any subsequent day of the same session, however long continued.” Opinion to the Governor, 23 R.I. 635, 641, 51 A. 221, 223 (1902).
The justices then went on to say:
“As we have seen * * * section 5 of article X of the constitution recognized the fact that there were then established two annual sessions of the General Assembly, one for the purposes, primarily, of election, the other for general business. At the first, a judge of the Su-
preme Court might be elected for the normal term; and at that session any judge might be removed; at the other session, if a vacancy occurred it could only be filled until the next election session. The new article [Article XI of the Amendments] abolishes the second session absolutely and leaves the single session, at which any regular election of general officers must take place. The single session, at Providence * * * takes the place of the May session at Newport formerly provided for, and an election of a judge at that session * * * is necessarily for the normal term.”
Therefore, the Governor was advised that justices elected in late May of 1900 were elected to hold office as provided in
Particularly pertinent to the question now before us are the observations by the justices that the elections of judges of this court and the general officers could, and often did, occur at times during the May session other than the first or second day. Of more significant interest is the justices’ conclusion that art. XI of the amendments abolished the second session absolutely and left a single session, and the single session in Providence took the place of the May session in Newport.
The November 1911 adoption of the sixteenth amendment, with its requirement for biennial elections, is totally irrelevant, in my opinion, to the current status of the Legislature‘s power to remove a Supreme Court justice. What is significant is the continued existence of the eleventh amendment‘s mandate that there shall be an annual session of the General Assembly at Providence beginning on the first Tuesday of January in each year. This session is the so-called Newport session referred to in the Constitution.
I would concede that art. X of amendments, with its provision for a victory by a plurality of votes, might have reduced the occasions when the legislators would be called upon to exercise their ability to elect general officers. However,
I see no irreconcilable repugnance within the amendments to the Constitution which would justify the implicit repeal of the grand committee‘s ability to remove a justice of this court, and in reaching this conclusion, I am of the opinion that the various amendments to the Constitution dealing with the length of the legislative session did nothing more than eradicate the second session and that the Newport or election session continues to be alive and well as a part of our Constitution. The power to remove as well as the power to elect the justices of the Supreme Court is still embodied within the Constitution to be employed when the occasion demands. Thus, I would hold that the justices of this court can be removed by the grand committee at any time during the regularly scheduled annual session.
Before going on to consider whether or not the Legislature‘s adoption of the Motherway resolution would constitute a bill of attainder, I wish to express my doubt as to the propriety of entertaining the issue of attainder which was raised by the Chief Justice‘s counsel in his brief submitted as amicus curiae. Our constitutional responsibility, of course, is to respond to the question posed. Whether or not we have a responsibility to respond to every issue that might be raised by an amicus is an open question. My doubt is further compounded when a consideration is given to the question of whether the claim of attainder is premature. When the question of the power of the Legislature to exercise its removal powers was argued before us on November 25, 1985, the members of this court had no assurance that the Motherway resolution could pass both legislative branches “by * * * a majority of all members elected to the house in which it may originate and be concurred in by the same majority of the other house.”
My colleagues maintain that proposed Resolution 85-S16 is, in light of the circumstances of its introduction, violative of the prohibition contained in
The term “bill of attainder” originally applied to legislative enactments which imposed death upon named or described persons or groups for high crimes, “attainting” the victims, and prohibiting inheritance of their property, without the benefit of a judicial trial. Nixon v. Administrator of General Services, 433 U.S. 425, 473-74, 97 S. Ct. 2777, 2805-06, 53 L.Ed.2d 867, 910 (1977); L.H. Tribe, American Constitutional Law 484 (1978). Acts imposing sanctions less drastic than death in the same manner were known as “bills of pains and penalties.” These sanctions were usually directed at persons considered disloyal to the Crown or the State. Id. Early on in the development of constitutional litigation in this area, the prohibition against attainder was held to apply to bills against pains and penalties as well. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356, 363 (1867). As Chief Justice Marshall observed, “[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L.Ed. 162 (1810).
As noted by my colleagues, the Attainder Clause was intended to implement the doctrine of the separation of powers—to act as “a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.” United States v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 1711-12, 14 L.Ed.2d 484, 488 (1965). The clause “reflected the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthi-
Current cases decided by the United States Supreme Court provide a framework for the analysis of a possible bill of attainder. It has most recently been defined as “‘a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.‘” Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, -, 104 S.Ct. 3348, 3353, 82 L.Ed.2d 632, 640 (1984). There are thus three elements of a bill of attainder—(1) specification of the affected persons, (2) punishment, and (3) lack of judicial trial. Id.
There is no question that Resolution 85-S16 refers to the Chief Justice by name. It does not, however, automatically offend the Bill of Attainder Clause thereby. An examination of Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L. Ed.2d 867 (1977), is instructive in this regard.
At issue in Nixon was the Presidential Recordings and Materials Preservation Act (act), title I of which in essence provided that the Administrator of General Services should take custody of former President Nixon‘s papers and tape recordings, subject to screening of the materials by government archivists and the return of his private papers to him. Attacking the act as an invalid bill of attainder, Mr. Nixon faulted the legislation for singling him out as opposed to all other Presidents or members of the government for disfavored treatment.
The Supreme Court noted that although title I dealt exclusively with Nixon‘s papers, title II of the act cast a “wider net” by establishing a special commission to study and recommend appropriate legislation regarding the preservation of the records of future Presidents and all other federal officials. 433 U.S. at 472, 97 S.Ct. at 2805, 53 L.Ed.2d at 909. The Court stated that Congress‘s action in preserving only Nixon‘s papers was easily explained by the fact that at the time of the act‘s passage, only his materials required immediate attention, the presidential papers of other former Presidents having already been housed in functioning presidential libraries and Nixon alone having entered into an agreement which by its terms called for the destruction of certain of his materials. On this basis, the Court held that Nixon constituted a “legitimate class of one.” Id.
The Chief Justice similarly constitutes a “legitimate class of one” in Resolution 85-S16 in relation to
The Legislature‘s use of this power once before in 1935, a proposition disputed by my colleagues but which I maintain is true, makes any question as to the validity of the resolution because of its specificity even more inappropriate. Unlike President Nixon in the case of the Presidential Papers Act, the Chief Justice would not be the only one of his “class” to have felt the effect of
A severe sanction does not ipso facto become punishment. Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 1375, 4 L.Ed.2d 1435, 1447 (1960). Burdensome consequences imposed by an act are not necessarily punishment:
“The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation.” Selective Service System, 468 U.S. at —, 104 S.Ct. at 3355 n.8, 82 L.Ed.2d at 643 n.8, (quoting United States v. Lovett, 328 U.S. 303, 324, 66 S.Ct. 1073, 1083, 90 L.Ed. 1252, 1264 (1946) (Frankfurter, J., concurring)).18
“The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact.” (Emphasis added.) Cummings v. Missouri, 71 U.S. (4 Wall.) at 320, 18 L.Ed. at 362. Thus, the “‘highly particularized context‘” of each case must be examined to determine if attainder-type punishment exists. Selective Service System, 468 U.S. at --, 104 S.Ct. at 3355, 82 L.Ed.2d at 643.
In examining the context of a case to decide if an enactment constitutes punishment, three inquiries are in order: (1) whether the deprivation in question falls within a category historically held to be proscribed by the Bill of Attainder Clause;
(2) whether the enactment can be said to further a nonpunitive purpose; and (3) whether the legislative record “evinces a congressional intent to punish.” Nixon v. Administrator of General Services, 433 U.S. at 473, 475-76, 478, 97 S. Ct. at 2805, 2806-07, 2808, 53 L.Ed.2d at 910, 911-12, 913.
Legislation barring individuals or groups from participation in specific employment or professions has historically been held to constitute punishment. Thus, the United States Supreme Court struck down a Missouri constitutional provision barring clergymen from the ministry unless they subscribed to an oath that they had not participated in the Confederacy, Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L. Ed. 356 (1867); a congressional enactment barring attorneys from practice for similar reasons, Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867); a federal statute which prohibited the payment of compensation to three named government employees who had been charged with subversive activities and investigated by the House Unamerican Activities Committee, United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946); and an Act of Congress making it a crime for a member of the Communist Party to serve as an officer of a labor union except in a clerical or custodial capacity. United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L. Ed.2d 484 (1965). However, in each of these cases, the “circumstances attending and the causes of deprivation” differ substantially from the Chief Justice‘s situation so as to distinguish the deprivation here from punishment.
First, it must be noted that in none of the cases cited did the Legislature have the right the General Assembly has here, as appointing body, to remove the persons involved from office for any or no cause at
No mention is made, either in art. X, sec. 4, or in Resolution 85-S16, of particular activities at which the vacation of office is directed.21 No offense is named, and no declaration of guilt is made. There is thus no overt evidence of “the substitution of a legislative for a judicial determination of guilt,” a distinguishing feature of a bill of
In Lovett, the legislative enactment more closely resembles the one here. A congressional subcommittee had found that three particular federal employees were guilty of having engaged in subversive activities, and Congress subsequently enacted legislation denying them compensation, without specific mention of the activity in question. Nonetheless, this denial operated, according to the Court, as a “‘legislative decree of perpetual exclusion’ from a chosen vocation,” and therefore inflicted punishment. United States v. Lovett, 328 U.S. at 316, 66 S.Ct. at 1079, 90 L.Ed. at 1260.
Admittedly, here, comparable to Lovett, proposed Resolution 85-S16 was revivified subsequent to an investigation which resulted in the entry of an order on June 20, 1985, in which the Chief Justice agreed that he had engaged in conduct violating Canons 4 and 29 of the Canons of Judicial Ethics and that such conduct had brought his judicial office into serious disrepute. My colleagues contend that under these circumstances any positive action upon the resolution by the General Assembly would have to be construed as punishment.22
However, in the more recently decided Nixon v. Administrator of General Services, President Nixon similarly argued that the act denying him custody over his tapes should be construed as punishment given the social and political reality of the times. The Court recognized that these realities existed, but held that it was
“not free to invalidate Acts of Congress based upon inferences that we may be asked to draw from our personalized reading of the contemporary scene or recent history. In judging the constitutionality of the Act, we may only look to its terms, to the intent expressed by Members of Congress who voted its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect.” Nixon, 433 U.S. at 484, 97 S.Ct. at 2811, 53 L. Ed. 2d at 916-17.
See also United States v. Lovett, 328 U.S. at 326, 66 S.Ct. at 1084, 90 L.Ed. at 1265 (Frankfurter, J., concurring) (“for purposes of characterizing the deprivation of [a] statute as punishment * * * presumed motive cannot supplant expressed legislative judgment“).
Furthermore, even if it is conceded that any effort in late 1985 to bring Resolution 85-S16 before the Legislature for a vote was in direct response to the actions of the Judicial Tenure Commission, that does not necessarily mean that the purpose of such action was punishment. Other legitimate explanations exist:
“The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession.” De Veau v. Braisted, 363 U.S. at 160, 80 S. Ct. at 1155, 4 L.Ed.2d at 1120.
In Cummings v. Missouri, the Court distinguished between establishing qualifications for a particular job and exacting punishment for conduct perceived as a threat, noting that qualifications relate to the fitness or capacity of a party for a pursuit or profession. The Court stated that whether or not a clergyman sympathized with the Confederacy bore no relation to his fitness for the ministry; the newly adopted constitutional provision barring him from practice unless he took an oath that he had not participated “by act or
Here, as contrasted with Cummings, the laws violated by the Chief Justice—the Canons of Judicial Ethics—were in effect before the Chief Justice took office in April 1976, and are by specific admission of the Chief Justice himself, in his agreement accepting the Judicial Tenure Commission‘s censure, related to his qualification for office.23 If it is agreed that his proposed removal is connected to his prior conduct, since his conduct relates to his “calling,” it can legitimately be claimed that the purpose of his proposed removal is not to punish the person, but to regulate the judicial profession—to maintain the integrity of, and the public confidence in, the state‘s judiciary.24
No one can dispute that a significant purpose of judicial-removal statutes is the preservation of the public confidence in the credibility and integrity of the judicial system. See Matter of Coruzzi, 95 N.J. 557, 472 A.2d 546, 553 (1984), and cases cited therein. The purpose of judicial discipline in general is not to punish individual judges, but to maintain the high standards of the judiciary and the proper administra-
In Matter of Coruzzi, the respondent charged that an amendment to the removal statute, authorizing the indefinite suspension of his pay during a removal proceeding was an ex post facto law and a bill of attainder. In discussing the requirement of punishment for purposes of both ex post facto and bill of attainder analysis, the New Jersey Supreme Court distinguished clearly between the purpose of a statute and its effect upon an individual:
“One does not have a constitutional right not to be subject to a law if its effect might be called punitive * * *. The appropriate focus is not simply the effect on the individual challenging the statute, but also other potential or intended objects of the law‘s operation to determine if the challenged restriction serves a valid regulatory purpose.” Matter of Coruzzi, 472 A.2d at 557.
The court concluded that the amendment served the valid purpose of preserving confidence in the judiciary; that plus the lack of express punitive purpose defeated the respondent‘s bill of attainder claim. Id. at 558.
Furthermore, given the circumstances surrounding this controversy, removal was the least burdensome alternative by which the General Assembly could have achieved its legitimate objective, a factor to be considered in determining whether a Legisla-
The legislatively prescribed procedure for handling alleged judicial misconduct was somewhat skirted by the Judicial Tenure Commission when it struck an agreement with the Chief Justice arriving at a disposition of the matter without certifying the commission‘s recommendation to this court for possible affirmation, modification, or rejection.
Left with a choice between removal and impeachment to accomplish its purpose, the General Assembly undoubtedly chose the least burdensome alternative. It may well have chosen removal to protect the Chief Justice from the far more intrusive and punitive inquiry into his conduct required by the impeachment process. See Nixon, 433 U.S. at 483, 97 S.Ct. at 2810-11, 53 L.Ed.2d at 916. Moreover, the removal process is not as burdensome to the public as is the cumbersome, costly, and lengthy impeachment process. See generally In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L.Ed.2d 297 (1979).
To conclude, proposed Resolution 85-S16 contains no express mention of conduct at which vacation is directed. On its face it cannot be construed as punishment. Additionally, it furthers a valid nonpunitive pur-
It cannot, therefore, be held that the vacation proposed in this instance was intended as punishment; as such the critical element of a bill of attainder is missing. Nor, as we have seen, is the specificity of the resolution problematic.26 I therefore hold that proposed Resolution 85-S16 is not violative of the Bill of Attainder Clause of the United States Constitution, article I, section 10.
Since I am of the belief that the General Assembly retains the power to remove a justice of this court and that the proposed removal of the Chief Justice, if effectuated, would not constitute a bill of attainder, I respond to the question asked of us in the affirmative.
Appendix
- W.R. Staples, Proceedings of the First General Assembly, pp. VIII, IX, (1847).
- J.R. Bartlett, Secretary of State, 1 Rhode Island Colonial Records 147 (1st ed. 1856).
- Id. at 191-92.
- Id. at 194-95.
- Id. at 204.
Id. at 205. - W.R. Staples, Proceedings of the First General Assembly 62 (1847).
- P.T. Conley, Democracy in Decline 21 (1977).
- Rhode Island Manual (1983-84) 119.
- Id. at 122.
- Id. at 121.
- Carroll, History of Rhode Island 741 (1930).
- Rhode Island Manual (1983-84) 122-23.
- Public Laws 1730, 8.
- Id. at 29.
- Id. at 106.
- Id. at 191-92.
- Public Laws 1745-1752.
- Public Laws 1798 140-46.
- P.T. Conley, Democracy in Decline 49 (1977).
- 1 Field, State of Rhode Island and Providence Plantations -- A History 355 n. 1.
- W.G. Goddard, “An Address to the People of Rhode Island Delivered in Newport on Washington, May 3, 1843, in the Presence of the General Assembly on the Occasion of the Change in Civil Government of Rhode Island”
- P.T. Conley, Democracy in Decline 314-15 (1977).
- Id. at 323.
- Id. at 351-372.
January 1, 1935.
I, Edmund W. Flynn, do solemnly swear that I will support the Constitution of the United States and the Constitution and the laws of this state; that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties incumbent on me as chief justice of the supreme court according to the best of my abilities, agreeably to law; so help me God.
Edmund W. Flynn
/s/ Edmund W. Flynn
Subscribed and sworn to before me this first day of January, A.D.1935.
Notary Public
The Supreme Court
Providence, January 2, 1935.
To the Honorable Secretary of State of the State of Rhode Island and Providence Plantations.
I, Charles F. Stearns, hereby file with you notice that I have turned over my office as Chief Justice of the supreme Court and the official papers connected therewith to my successor without having in the meantime performed any of the functions of my said office as provided in the joint resolution entitled “Joint Resolution declaring vacant the places of the Chief Justice and Associate Justices of the Supreme Court” passed by the General Assembly and approved by the Governor on the first day of January, A.D., 1935.
Charles F. Stearns
/s/ Charles F. Stearns