State Ex Rel. Webb v. Cianci

Floyd rel. of Rhode Island ex STATE III

Edmund WEBB CIANCI, A. Jr.

Vincent Eligibility of A.

In re Vincent

CIANCI, Jr. 90-555-M.P.,

Nos. 90-560-M.P. of Rhode Island.

Supreme Court

May Cass, Bucci, Jr., Frederick G.

Anthony J. Providence, Snow, petitioner. for Steven E. DelSesto, Conley, Patrick T. Ronald W. McGair, Dimitri, Jr., J. William A. William Providence, respondent. Pawtucket, Tabor, Deming E. Amy R. Sherman, Providence, Amicus Curiae. OPINION SHEA, Justice. Supreme are before the

These matters petition petitions, one a Court on two certiorari to re- the issuance of a writ of Island State a decision of the Rhode view peti- Elections and the other on Board of leave to file an information tion for re- The ultimate nature of warranto. preven- is the sought by petitions lief both H95 Cianci, Jr., mayor- A. noted need not decide whether tion Vincent that “[w]e (1981 elect, (in assuming mayor particular state Re- the office law G.L.1956 13-6-2) enactment) deny peti- prohibits Providence. both Cianci from We * * * holding public tions. office. con- law be a cerning respondent’s right to candi- The oral on argument court heard behalf general date for a in a election full new petitioners respondent carefully of issue, term not at and therefore need we par- examined the briefs the submitted it.” 482 A.2d at 1211 n. 6. address Following ties and by amicus curiae. con- thereon, 27,1990, ference filed his we issued an order on On June Cianci declara- petitions. candidacy tion denying mayor December both of election as of prior begin- That issued the city 583 A.2d 880. order was of Providence for the term opinion ning January 13,1990, this the July to release of because of 1991. Cian- On city ci papers obvious need of the of Providence for a filed his nomination with the city resolution of the Board issues before court of Canvassers of of Prov- (Board Canvassers). prior January to date on idence of July which mayor-elect was to the final scheduled be inau- was date under G.L.1956 (1988 Reenactment) gurated opinion into office. Our follows. 17-14-13 for the fil- ing to objections candidacy. Cianci’s No gave The peti- events that rise to these objections were filed. people tions are well known of this to April A. Eventually qualified state. On Vincent three Cian- candidates ci, (Cianci), mayor place Jr. who mayor was then on the ballot for the office of city Providence, plea city general entered of of the at the Providence Court, Superior nolo contendere election for state and local offices No- County felony charge of Providence to the vember Cianci declared was dangerous weapon. of assault with a plurality He received a of the votes cast. On adjudged guilty charge was and a Board Elec- November years sentence of five at the Adult tions determined Correc- conducted recount and plurality tional was imposed. Institutions That sen- that Cianci had fact received suspended tence day, was and defendant was cast. that same an votes On probation. placed years pro- objection on five filed Board That was with the of Can- bationary period extended until on or the certification of the vote. about vassers to April 23, days imposi- emergen- 1989. Two after the held an Board Canvassers sentence, tion of resigned cy hearing objection from the on the on November mayor hearing disqualification prior office of because of on 1990. Sometime however, original provisions objec- in the Home Rule objection, Charter of the city objection their re- mayor Providence. The office of tors withdrew were vacant, special placed the mat- was declared and a election the Vileno us, mayor objection. to elect a for the who their own was called unex- ter before filed pired hearing objection, the certifi- term. After on the cate of election was issued Cianci. his

Cianci declared intention become a An of Elections unexpired appeal for election to that to the State Board candidate timely by objectors filed to the decision of challenge term. A was to his was taken unexpired of Canvassers. The State Board eligibility to be elected to Board challenge ultimately to intervene term. That came be of Elections allowed Cianci It his proceedings. granted fore motion this court. We ruled Cianci was jurisdiction appeal but retained prohibited seeking election to serve as dismiss the mayor unexpired by over the matter order conduct for the term created hearing a record with evidentiary his to create forfeiture office. Gelch State Elections, (R.I. newly respect adopted state constitu- Board expected 1984). ruling upon provisions, sections tional which were based bearing upon the issues that would 202 and 206 of the Home Rule Charter of have opinion raised this court. of Providence. In that we before expressly recognized pre- due course the for an informa- That statute tion in the nature of a warranto to existence of the information in the nature may- Cianci’stitle to the office of Further, warranto. the statute con- Floyd was filed this court Edmund jurisdiction upon ferred the courts to em- (Webb). Later, III peti- Webb the Yileno ploy respect an information tioners filed a for the of a issuance political offices that were common-lawwrit of certiorari to review the specifically enumerated in the statute’s decision of the State Board of Elections. preamble. State, Brooks v. 26 Del. These matters were consolidated for hear- A. The information was ing before the court. used in all instances wherein the writ of quo previously warranto was maintained. We shall first address Webb’s re statute, quest for file in In the absence of a leave to an information informa- (information). quo nature of application country warranto This tion’s in this has been proceeding common-law is used to chal limited to in instances which the writ of lenge public an individual’s title to office quo granted warranto would have been to public oust the individual from the England. High, common law in Extraordi- office if the title is not well founded. (3d 1896). nary Legal at 552 Remedies ed. Cianci, 153, 162, 121 Fargnoli v. R.I. 397 in quo The information the nature of war- 68, (1979); Stiles, A.2d 73 Andrews v. 99 recognized jurisdic- ranto has been in this 546, 547-48, 210, (1965); R.I. 209 A.2d 211 perform tion to same functions as the 396-97, Ream, 391, State v. 17 R.I. 22 A. warranto, Brown, quo writ of 5 R.I. at see 1018, (1891); Lane, 1020 R.I. State v. 16 7, and also to lost all have its character as 620, 626, 1035, (1889); 18 A. 1037 see also proceeding everything a criminal in but Brown, (1857). State v. 5 R.I. 11 Ream, form. See 17 R.I. at 22 A. at origins of the directly information are linked to the quo ancient writ of warranto. pe- This court has entertained numerous high-prerogative That was a civil writ of titions for leave to file an information right in England, reserved for the use of Brown, quo the nature of warranto. by to authority Crown demand what an the court exercised its discretion to allow presumed public individual to hold office. Attorney General to file an information Annot. Right person not public right in vindication of a to claiming quo to maintain warran- acting major-general the title of the of the proceedings to to test title to or existence Division Rhode Island Militia. After public office, 51 A.L.R.2d 1309 of (1957); Am.Jur.2d, Quo reaching the merits of the and de- 65 2 Warranto § ciding major-general improperly that (1972); Quo 74 C.J.S. Warranto 1§ office, public held the court ousted him The writ England became obsolete in be imposed Brown, a nominal fine. 5 R.I. Revolutionary fore the War. The obso Later, Attorney at 11. General v. part lescence was said to have resulted (1899), 21 R.I. A. McCaughey, pro from the cumbersome nature of the again this court exercised its discretion to ceeding. supplant Id. The writ was later the Attorney allow General to file an infor- quo ed the “information in the nature of public right mation vindication of a warranto,” which was criminal in nature. challenge the title of several Pawtucket usurper It was used not fine the highway appointed by commissioners usurper but also to remove the from the case, local Board of Aldermen. In that public question. office in Id. These devel however, highway the court ruled that the opments legislative expression found in 1711, Anne, “public commissioners were not officers” English Statute of Anne in 20, which, and therefore reach the although ap ch. not declined to merits considered States, plicable quo because warranto was United is viewed as improper the ancestral basis for method which to seek the warranto many jurisdic statutes found American commissioners’ ouster. Id. at 43 A. today. tions Annot. 51 A.L.R.2d at 1309. at 649. mayor. ing title the office early demonstrate Cianci’s

These decisions fact, brief, urges continuously petitioner’s our The exercised we assert the granted standing public’s an information in the “be discretion hold raised that seeks of the issues adjudication to vindi to an nature of warranto [petitioner] brought cannot be states that public right cate a herein” and “[t]he * * * qualified to ade- the intervention of jurisdiction prepared without [is] Voccola, protect fairly interests quately Violet General.1 (R.I.1985); proceeding.” (Emphasis Black v. in this 710-11 Therefore, added.) 62 R.I. we conclude we Cummings, precedent deny peti- (1939); Whiteley, Ney are constrained also file A. see O’Brien tioner an information leave Pawtucket, so, doing we Aldermen nature of warranto. Board of (1892). In 113, 116-17, following long-established R.I. 25 A. doctrine agreement wherein forth in of this complete Fargnoli, set the earlier decisions we that “title to office should court. held an individu- put time acknowledge We that this court has Proceedings al fit to cast a cloud. sees to time exercised its discretion al- time way quo warranto or informations of challenge private citizens to an individ- low quo placed in nature of warranto must be inter- public title to office without the ual’s moving public responsible hands. A Attorney General. review vention attorney is the party on such occasions reveals, however, that these decisions of 6, at general.” 121 R.I. at 164 n. private challenges have been allowed these purpose this rule is to 74 n. 6. of proceedings were only in cases in which the protect pri- public from numerous officials equity brought in in the nature petitions as challenges public to their titles vate as (petition equity). in More quo warranto The rule is followed numerous officers. importantly, in those cases

jurisdictions issue. that have considered the public sought place to themselves Frizzell, v. rel. Newman United States ex Stiles, in 99 dispute. Andrews v. office 537, 881, 1446 238 35 S.Ct. 59 L.Ed. U.S. 546, (1965); v. R.I. 209 210 Gorham Tucson, (1915); Ariz. City v. 145 Crouch (1936); Robinson, 1, R.I. 186 A. 832 57 65, (1984); P.2d 699 1296 International 152, Ferretti, R.I. 184 A. 56 McGroarty v. Oakland, City v. Firefighters Ass’n. of Sullivan, (1936); 35 R.I. Horton v. 508 Cal.App.3d 174 256 Cal.Rptr. 220 Edwards, (1913); Hoxsie v. 86 A. 314 (1985); v. Espey, Butterworth 523 So.2d (1902); A. R.I. 128 see also 24 53 (Fla.Dist.Ct.App.1988); rel. State ex Black, 5 A.2d at 859. 62 R.I. Reardon, N.E. v. 161 Ind. Antrim (1903); Elwell, State Maine v. Black, peti a we reasoned (1960); rel. Me. 163 A.2d 342 State ex brought when equity in could be tion Thuet, 230 Minn. N.W.2d Burk v. is entitled petitioner is claimed that the Bachelder, (1950); 73 N.H. Meehan dispute. In this public in office to 113, A. 620 ex Inman rel. regard the court stated: Brock, (Tenn.1981). 622 S.W.2d 36 can also no proper “In a case there jurisdiction this court peti question of

Applying this rule to Webb’s discretion, entertain, petition in a tion, seeking to to find it clear that he we quo warran- equity in in nature public right a on behalf of all vindicate in his by private person a own brought the interven to citizens of Providence without the intervention by challeng- name and without Attorney tion of General clarify we will not exercise quent disagree decisions reliance on dicta We relator’s (1904), proceedings Ney Whiteley, to vindicate 59 A. to allow our discretion request proposition brought a inter- formal inter- public right without the Attorney General, satisfies vention General Attorney we affirm vention of the precedent necessary private to allow a condition continuing vitality rule. of this well-founded public right. subse- to vindicate a Our citizen added.) petitioner’s was null and void attorney general.” (Emphasis election Black, 62 R.I. at 5 A.2d at 859. public to hold the and that continued duly until elected his successor was purely statutory A petition equity is a merits, proceeding that was first authorized in an qualified. On the the court Fargnoli, 1891 statute.2 121 R.I. at 3, 1902 concluded that the contested June Although Superior A.2d at 73. election was valid and therefore ousted any proceed- jurisdiction Court has to hear replaced peti- him with the town clerk and ing upon quo by way a writ of warranto or Hoxsie, 24 R.I. at 53 A. at 132. tioner. of an information the nature Similarly, McGroarty, this court exer- (1985 by virtue of Reen- warranto G.L.1956 cised its discretion to allow citizen actment) 8-2-16, Supreme Court § petition equity without the bring jurisdiction exclusive under 10-14-1 to petitions equity in the nature entertain intervention of the petition equity warranto. Such a challenge an individual’s title to the office entirely rests on an different basis from city city auditor of the of Warwick. The petitioner’s petition for leave common-law argued acting city petitioner that the audi- to file an information in the nature of properly appointed tor was not and asked although warranto. And be- him, petitioner, as the court to confirm provisions fore us does not conform to the re- auditor reason of his 10-14-1, exer- we shall nevertheless main in the office until successor jurisdiction cise our exclusive and examine properly appointed. The chosen or brought equity deter- expressly petitioner found that court proper mine whether this is a case wherein personal interest had sufficient this court could exercise its discretion him dispute office in to allow petitioner allow Cianci without petition equity in the bring the without Attorney the intervention of the General. Attorney the General. intervention petitioner argues The that the mat Nevertheless, merits, the reaching on the proper case ter before us constitutes a acting court found that the auditor important because it raises state constitu de- properly appointed and therefore dispute. any tional issues and lacks factual petition. so, nied and dismissed the McGroar- doing misinterprets In the criteria in prior we have used decisions as a basis ty, 56 R.I. at 184 A. at 512. determining proper what constitutes a Later, Black, in this court exercised its Hoxsie, case. this court exercised deny private to citizens leave to discretion private peti discretion to citizen allow petition equity in without the inter- file a equity tion in without the intervention of Attorney the to chal- vention of General Attorney the General to an indi lenge individuals in the election several title to the clerk of vidual’s office of town peti- The the town of North Providence. alleged petitioner the town of Exeter. The sought tioners a new election. a well- duly the town clerk that he was elected prior examined reasoned decision the court pursuant to a valid election. The chal regard cases and offered this summation in clerk, lenged prior was the town individual grounds private may petition who defended his title on the to when citizen warranto, (1985 Reenactment) may present, quo the 2. At G.L.1956 the court determine provides Quo chapter petitioner 14 of title 10 Warranto as well as that title of the relator or part: relevant respondent; any proceed- of the and in Equity petition Supreme ing, claiming "10-14-1. any persons the same all or office, title, Court.—The title to to determine claiming office whatever different which the writ of warranto lies at the depending upon offices the same election or law, may brought question by be common may parties, appointment, and their be made supreme petition to the court. rights may respective de- be ascertained and proceed- "10-14-2. Issues determinable in termined; may consolidate for and the court ings nature warranto —Parties.—In healing adjudication purposes the [sic] warranto, any proceeding upon writ of brought proceedings separately." all such by petition information or in the nature of

H99 petition the At- We next address Vileno equity without intervention the the of a common-law-writ of for the issuance torney General: discretionary re certiorari that seeks our “Certainly law in state is clear the this Board of Election’s deci view the State that, permission petitioner seeks where mayor-elect certify of the sion to Cianci as petition in the equity to file a under petitioners filed an city of The Providence. the statute without intervention of eligibility with objection to Cianci’s attorney general, primary issue must apparent after his Board of Elections petitioner to of- objec The victory general election. fice; petitioner petition in his and the disqualified pursu Cianci was tion asserted allege it, sup- must claim and facts III, Rhode section ant article claim, port heard. of his or he will (1981 Re and G.L.1956 Island Constitution proceeding can petitioner In such a enactment) of Can 13-6-2. Board only prevail strength of his own on objec hearing petitioners’ held a on vassers title and not on the weakness of that Thereafter, the Board of Canvass tions. Black, respondent.” 62 R.I. at 372- mayor-elect, ers certified Cianci as 73, 5 A.2d at 863. the State Board of petitioners appealed to appeal the State Board of Elections. On court ruled since that it was without au Elections asserted claim the offices held made no petitioners’ thority objections to rule on individuals, deny challenged it would eligibility petitioners’ because Cianci’s and decline to reach its merits. timely objection in properly to file failure Id. at 5 A.2d at 863-64. Thereafter, 17-14-13. accordance with § our These decisions demonstrate well-es- petition for the issuance of a writ of this justices rule tablished under which the to re filed with court certiorari was years this court over the have exercised Board of of the State view decision their discretion to allow a citizen to Elections. equity without intervention petitioners advance several The Vileno instances our discretion to reasons for us exercise petitioner wherein seeks vindicate They a writ of certiorari. advance as issue private right claiming title public importance reason the extreme one Stiles, dispute. office in See Andrews v. eligibility in objections of their to Cianci’s (1965); 99 R.I. 210 Gorham Ill, 2, disquali- they that art. sec. that claim Robinson, (1936); R.I. A. 832 They claim that the time fies also Cianci. Ferretti, McGroarty v. R.I. A. objections set forth in limitations for Sullivan, (1936); R.I. Horton peti- 17-14-13 are unconstitutional. § Edwards, 242, A. 314 Hoxsie suggest hearing on the that a tioners also That R.I. 53 A. 128 rule election may help decide similar merits consistently applied by court been in the fu- likely are to arise disputes that the 1891 since the enactment of statute urge the Finally petitioners mat- ture. authorizing petitions equity. use of in the order to on its merits in ter be heard election, finality general to the achieve petition in must reiterate that the We concerning dispelling any the doubt thus challenge title of- equity to Cianci’s to the mayor actions as of lawfulness of Cianei’s mayor city fice of of Providence city the Providence. of the without the intervention of purely public seeks to vindicate a petitioners response Cianci claims that right of the citizens of Prov- on behalf us.. He asserts mistake the issue before petitioner legal no idence. The makes claim us is the that the issue before right his procedure petitioners to vindicate a on sufficiency seeks claiming challenge eligibility. to the his He by own behalf title have chosen to Therefore, following to make their con- dispute. argues in that their failure objections to statutory his precedent, we conclude long-established stitutional with 17-14-13 eligibility in accordance equity must be denied. § that this community gone through had an entire requires that this court exercise its discre- deny process challenge, a writ of all con- tion to for election without agree. trary purpose certiorari. We the intent and petitioners’ 17-14-13. The failure to § provides Section 17-14-13 rele by is not excused comply with 17-14-13 § part: vant papers filing the candidate’s his nomination “Objections eligibility candidate It possible almost at the last moment. sufficiency papers. nomi- —When argued, petition- persuasively cannot be filed, papers duly have been nation attempt, three-day span they ers apparent conformity are objections had in which to file their renders 17-14-11, they conclusively shall be § 17-14-13 unconstitutional because valid, presumed to be unless written ob- public adequate statute fails to allow jections eligi- to the thereto made as object eligibility of a candi- time to sufficiency bility of the candidate or the date. In this case all material facts rele- papers signa- of the nomination application of art. vant to the objections tures thereon. All shall be the Rhode Island and 13-6-2 Constitution secretary filed office of eligibility by known to Cianci’s were well board, state or the local as the case by general public long be, (4:00) p.m. may o’clock on four papers. Cianci filed his nomination before day day the last the next business after presented by peti- The substantive issues papers in filing nomination fixed for present- tioners are not dissimilar those appropriate pro- office as heretofore Gelch, a writ of ed wherein we issued added.) (Emphasis vided.” challenge to certiorari to hear a Cianci’s many That statute is one of the statutes special election eligibility to run the 1984 Legislature enacted to establish date. In that advance of the election regulate orderly process electoral though challenge timely case was even Rhode Island. 17-14-13 establish- Section filed, required hearing the the time for place filing es the time and the challenge by the State Board of Elections eligibility objections all of candidates appeals process and the to this court neces- sufficiency pa- and the of their nomination ordering delay special sitated our pers. plain language of the statute Nevertheless, election itself. a decision on objections mandates that all must be filed possible before elec- Secretary in either the office of the Thus, chal- tion was held. while Gelch State or the local board of canvassers run sections lenged Cianci’s under four o’clock in the afternoon on the next 202 and 206 of the Home Rule Charter of day following day the last fixed business Providence, petitioner in filing papers. nomination The obvious case, motivated the same substantive purpose of the is to ensure that statute case, timely petition in this filed a issue as candidate objections eligibility to the of a 17-16-16.3 for relief in accordance with § will resolved before a candidate enters be campaign. into a formal persuaded by peti We are also not argument that should exercise petitioners objec- did not file their tioners’ we The certiorari period discretion to issue a writ of eligibility tions to Cianci’s within the our finality general to the by the Laws. The fact order to achieve established election, dispelling any doubt concern until after the thus petitioners is that waited as ing the lawfulness of Cianci’s actions general apparent election and Cianci’s vic- mayor of Providence. The tory objections. By file their the time filed, principle finality of of elections objections were all the candidates favor fact, effort, time, against petitioners. In actually considerable works expended had office, finality public policy supporting of quest in their for and the resources (1988 Reenactment) period prescribed by filed within the same 3. General Laws 1956 17-14-13, 17-16-16, objec- in the matter repealed, that the relevant statute § now mandated § eligibility of a candidate must be before us. tions to Although we have concluded very serious consid- is entitled elections petitions exercise upon we are the Webb the Vileno eration when called both certiorari procedural grounds, to issue a of our discretion writ denied on must be disputes. We elaborated proba in election-related concerning art. sec. will issue policy in Daam v. Di- public believe, on that Van We bly in future elections. arise (R.I.1989), Prete, wherein therefore, now would resolution we stated: public interest. re- policy this state public “The of III, 2, provides: Article section challenges of qualification quires that as a disqualified shall “An elector resolved office be candidates state appointive for elective or candidate possible as in order that quickly

as office holding or from such or local office may upon take the dates place election has if elector been convicted As- ordained the General previously felony or nolo contendere to a plead in- compelling sembly. state has a plead convicted or such elector been finality validity terest result- contendere a misdemeanor nolo all of- election of candidates to months or ing jail in a sentence of six fices, particularly to the office but more, suspended served. either or to be Only prompt chief executive. chal- convicted, not, shall so elector once lenges presented in accordance Such until three may any be con- or return to statutory and case law attain added.) (Emphasis completion years sidered.” after date of pa- probation such sentence fi- petitioners present It is ironic role.” peti- nality of elections as for their a basis raised they tion for relief when could have III, section the amended Article eligibility well in Cianci’s clearly civil restores full Constitution general by filing advance of election passage after of three rights to felons timely objection in accordance with sen- following completion of their years 17-14-13. However, the probation. period tence or petitioners as Vileno also assert is am- provision of the article effective-date issuing for our of certiorari a reason a writ it not resolve biguous because does remedy absence of other available question is the court. That question before Board of to review the decision of the State article as Cianci applies, whether support, refer to petitioners Elections. claims, only to convictions that occurred 42-35-18, (1988 Reenactment) G.L.1956 date on which after the November statutory ap specifically which excludes ap- ratification occurred. Or whether peal from decisions of Board of the State assert, to all convic- as plies, Daam, Elections, and our decision Van election pleas, long as the tions and we stated that decisions wherein 5, 1986. place after November itself takes “final and State Board Elections are review

subject only constitutions, our construing in this A.2d at certiorari filed court.” 560 effect intent of give to the task is House Opinion In re framers. See A. 868 Representatives, acknowledge petitioners’ We so, for us (1923). doing appropriate it is point remedy at this is to for a writ avail what extrinsic sources However, to consult to this we of certiorari court. the Con proceedings able: that it important overlook fact cannot legis also itself but stitutional Convention timely make a was their own failure to provi relating to the constitutional lation in accord- challenge eligibility to Cianci’s time adopted at the same provisions that sion of 17-14-13 ance with subse constitutional amendment predicament. It that as the them in this was put Governor, Opinion In re quently. led the State of Elections to fact that Board 166, A. see also rule on their to Cianci. 35 R.I. decline to 1, apply all Robinson, upon approval voter and shall 57 R.I. 186 A. 832 Gorham v. (1936). ap- crimes after such persons convicted of proval.” That amendment to the resolution more than one construction of a When already passed by the Convention was provision possible, is “one of constitutional for consideration at placed on its calendar which would diminish or restrict a funda- 3, meeting. April We understand its right people mental and the other of procedural problems, pro- owing so, the latter must which would not do explained or posed amendment was never adopted.” In re the Constitutional Con- by Testimony debated the full Convention. vention, 56, 73, 441-42 178 A. Ethics indi- of the Committee on members that a Also it is well established cated, however, that the failure consider provision presumed ap- constitutional intent ply prospectively only, way unless the to the resolution in no the amendment give it effect is clear either retroactive unani- changed the fact that the Committee through explicit language by necessary mously Ill, art. sec. to be understood Ada, F.2d implication. Nelson v. prospective in effect. (9th Cir.1989); see also Lawrence petitioners argued that the failure of Anheuser-Busch, Inc., 523 A.2d adopt April the Convention on (R.I.1987). Ill, proposed the amendment to the art. transcript and exhibits com repudiation sec. indicates a of the intent piled during evidentiary hearing con on Ethics authored Committee which Elections, we ducted the State Board original reject resolution. We must parts jour have been able to review question that argument. There is no nal of the We have also re Convention. already the amendment to the article testimony viewed the of the chairman and offered passed on the Convention was eight on members Committee only make the on Ethics’s Committee giv Ethics of the Constitutional Convention original concerning application its intention during evidentiary hearing. en specific. more We believe would All those witnesses were unanimous anything wrong to read into failure intent their assertion that their was to that amend- adopt the amendment because disqualification article that would draft a explained ment was never to or debated prospective application only. During full The Convention’s Convention. meetings, than one oc- committee on more Ill, originally adoption of art. casion, reference made to the status of proposed by the on Ethics Committee individual Cianci and the status of another would indicate to us that Convention federal who had served a sentence contrary to that never harbored intent prison during term in office as a coun- his on Ethics when it first of the Committee community. cilman in another Each time Ill, proposed art. sec. 2. drafted given proposed assurance was was ratified After the new Constitution disqualify amendment would not the indi- voters, Assembly seeking adop- by the General viduals from office after 1987, chapter passed tion. Public Law which, things, repealed among other later proposed resolution that be- 13-6-2. That was the section of Gen- adopted by the came art. sec. was permanently eral Laws that barred April on March 1985. On Convention all voting from election to again dis- the Committee on Ethics prison of more persons on whom sentences In or- disqualification cussed the article. year imposed. had been Under than one prospective its intent about der to make only way an individu- that section the application specific, more the Committee on to run regain to vote or al could wording the effec- adopted Ethics new office was an act of for elective provision tive-date of the resolution. provid- Assembly. Section 13-6-2 “This reso- General language new was as follows: Ill, effect ed: sec. shall take lution [art. 2] passed though they are and shall be sentenced to another even

“Every person who Ahmadjian, imprisonment in the adult at different times. State correctional (R.I.1981); one see also Herald institutions for a term more than offense, (1) Press, year, any Norberg, one shall forev- Inc. for incapable being ques er elect- can be no thereafter be A.2d 1171 There honor, trust, profit tion, then, repealed ed to office of or as 13-6-2 § acting and of as an elector legislative this state effort liberal part of broad therein, person expressly such rights qualifica unless and voting ize and extend privilege such restored to act candidacy elective office to tion for for general assembly.” successfully had convicted felons who completed their their served sentences with the keeping amended constitu- probations. provisions, as repealed tional 13-6-2 was § part package legislation of remedial Nevertheless, the posi- take bring in to enacted to the General Laws in force remains tion 13-6-2 conformity with the revised Constitution. who regard effect to individuals were part package This of bills was of an overall repealed. section was convicted before that scheme reinstate the franchise to all carry argument cannot To agree. We period expiration felons at the of a of three logical would mean that a to its conclusion years punishment their was served. after relatively minor person of a felo- convicted 5, 1986, for which a repealing ny before November 1987 Act 13-6-2 also 17-14-1, 17-9-6, very imposed, would minor sentence was amended 8-15-8. §§ prior statutory provi- permanently In each instance the remain disenfranchised. And disqualified person sion had exfelons. The amend- at the same convicted of a time provided disquali- ment in for felony each instance committed after No- more serious persons felony fication convicted of her right have his or vember would 5, 1986, only committed after November run for office reinstated to vote and to sentence, including probation completion whose or years after automatically three parole, completed had not been at least result or her Such a would of his sentence. years person sought three before the to be unreasonable. candidacy

vote or of- to declare Conven- Even without the benefit fice. proceedings- and deliberations we tion Each brought particular amendment reach conclusion about would the same section the General Laws conformi- Ill, by applying sec. applicability of art. ty with art. revised Con- interpretation of usual for the rules explanation stitution. The to the attached generally. All statutes and constitutions bill, prepared by Legisla- the office of the presumed provisions constitutional leg- tive for the information Council They given should be apply prospectively. islators acted on Public who Laws only if such intent retroactive effect chapter 293, read: permits no matter subject clear or “This act conforms election laws with Ada, other construction. Nelson respect registration to the and candida- (9th Cir.1989). “If statute F.2d [a] [or cies convicted felons who have suc- pro- or provision] is remedial constitutional sentence, pro- cessfully completed their cedural, enlarges nor is, ‘neither if it bation, etc., required the constitu- prescribes rights but impairs substantive adopted in tional amendment 1986.” enforcing procedures the methods and * * * may be construed to rights’ principle statutory It is a well-settled Lawrence, 523 A.2d retroactively.” apply relating statutes construction that Paolino, 113 R.I. (quoting Norton v. at 869 should be subject same matter considered (1974)). “If together they [a so that will harmonize with creates, provision] statute constitutional each and be consistent. Such stat- other defines, legal regulates substantive pari utes to be materia are considered operate construed rights, it must be they even contain no reference to one when Lawrence, provides any person impris- is prospectively.” 523 A.2d at “that who 869; Burke, Narragansett year Electric Co. v. oned for more than at Adult 13, 821, (1979), 25, any 122 R.I. 404 A.2d Correctional Institutions for offense denied, 1079, 1031, 444 U.S. S.Ct. incapable being any cert. elected to shall be honor, 62 L.Ed.2d profit and shall trust and privileges be unable to vote unless these argue Webb and Yileno are restored him act of the expressly Ill, application that the of art. sec. added.) In general assembly.” (Emphasis disqualify on what occurred Cianci based Vaccaro, Bogosian v. adopted was would be a retro- before (R.I.1980), interpret- n. 1 we noted that we application they it as a active because view applying “any felon ed 13-6-2 as who § Ill, application art. prospective sec. at the imprisoned Adult Correctional adoption “elections which after occur Baronian, Bailey In Institutions.” persons not to in Mr. Cianci’s situa- article court, (1978), this R.I. 394 A.2d 1338 reject argument pri- that tion.” We must thorough after examination of our recent marily language because of used provisions and earlier constitutional article, disqualified “an be elector shall * * states, following: those of sister said very specifically dis- *.” article “persons” “Thus, qualifies persons who committed hold otherwise we disqualification qualified felonies. Since the occurs to vote who are convicted prison as a result acts committed before and have time in felonies served (federal effective date of art. there can jurisdiction or application no state) voting that its to Cianci disqualified are application. would be retroactive of Amendment XXXVIII reason Constitution, unless Rhode Island statutory It is a basic construc tenet Assembly until restores that the General pre will Legislature tion that not be added.) right.” at (Emphasis Id. to have to enact sumed intended laws 394 A.2d at 1344. absurd, unjust, are or unreasonable. Co State, 764, 263 letta v. 106 R.I. A.2d 681 points out these his brief Harrington, 104 R.I. Wilkinson interpretations of are consistent 13-6-2 § (1968); Deignan 243 A.2d 745 v. Cow ruling by the Court of with a United States Corp., an Plastic Products R.I. Circuit, had Appeals, which occa- Second 534, (1965). A.2d To continue disenfran language sion identical to construe person law-abiding chise a has been a who deportation with an statute connection many extending years citizen for while suspended alien had received a sen- who persons to vote and to hold office to Hand, writing Judge Learned tence. criminal recent court, whose offenses more stated: * * * in our opinion and more serious would considering “We are therefore absurd, unjust, and unreasonable. We relator ‘sentenced to whether the petitioners’ reject argument must on this year imprisonment for a term of one repeal issue and we hold that more.’ applies equally to all 13-6-2 former crim § was; he Formally indeed the sentence inal offenders. was, Actually he because so read. never unless imprisoned to be he was not highly it is Furthermore doubtful of his sus- defaulted [conditions 13-6-2 to Cianci at all. Al applied § was ab- pended The sentence sentence]. though we had occasion to ad have not solute; imprisonment was condition- directly dress the issue of whether al. applied on persons 13-6-2 whom sus § Therefore, to close our unless we are pended imposed, sentences were we have merely on eyes go the substance and required other contexts ruled that 13-6-2 form, is con- imprisonment applicable. a sentence whose execution actual to be Rezendes, ditionally suspended is not a sentence to all; (1969), imprisonment more than it is no we held that 13-6-2

1205 compel analysis.4 the offender to a course continue to believe the hold- device to We ings support of conduct deemed desirable.” in those eases the conclusions United Day, majority. ex rel. Robinson v. 51 F.2d States of the (2nd Cir.1931). 1023 Furthermore, it that the is unfortunate adop- conclude that even We without the dissenting opinion ignores repeated tion of art. it would be our holdings of this court that 13-6-2 was opinion that Cianci was not barred applicable only persons actually impris provisions running 13-6-2 from Vaccaro, 422 Bogosian oned. A.2d 1253 mayor election to the office of of the (R.I.1980); Baronian, Bailey v. Providence in November 1990. (1978); 1338 State v. Rez endes, (1969). R.I. 253 A.2d 233 light dissenting of the Chief Justice’s majority strongly feels that the court opinion, we believe would be well to principles depart must not from settled thoughts remind ourselves of ex- statutory and constitutional construction in pressed by great jurist Oliver Wendell disqualification from order to achieve the dissenting opinion Holmes his in North- particular person, mat office of no States, ern Securities Co. v. United notoriety may ter how much surround that 197, 400-01, U.S. S.Ct. 48 L.Ed. person litigation involving or the him. For these reasons the “Great cases like hard cases make bad for leave to file in the great great, law. For cases are an information nature of called denied, importance not reason of their in warranto is for certio- real denied, future, previously shaping the rari is the writ issued is law of the but be- quashed, the decision of the State Board of cause of some accident of immediate affirmed, overwhelming papers Elections is and the appeals interest which feelings case are remanded to the State Board of judgment. distorts the These Elections with our decision endorsed there- immediate interests exercise a on. hydraulic pressure kind of which makes doubtful, previously

what was clear seem FAY, Justice, dissenting. Chief princi- and before which even well settled ples of law will bend.” respect- For the reasons stated below I fully disagree majority. my It is with the “great case” now before the court only firm conviction not that this court has persuade should not be allowed us to grant standing the discretion to principle abandon the well-established Floyd III petitioners, Edmund Webb guided Attorney our discretion that the Jr., (Vile- (Webb) Vileno, Joseph et al. only General—and General— no), appeal empowered bring but to file an information in the exercised. The language nature of warranto. The discretion should have been quoted dissenting opinion grievous has fallen into error from ignores holding inapposite precedents Cummings, rigidly applying Black v. holding unique that case. The was: circumstances of factual case at I shall demonstrate that bar. therefore, indisputable, pro- “It is provisions, reading careful of constitutional ceeding in the nature of warranto to cases, statutes, per- Island prior Rhode brought enforce cannot be jurisdictions precedents suasive from other in this state without the intervention of opposite result. inexorably to an attorney general.” would lead 62 R.I. at A.2d at 861. my ques- Initially I turn attention standing. Webb does not seek attempt feel that tion of We also himself, mayor for nor does he distinguish office of dissent to several the cases sought authority allege any does survive entitlement to it. Webb we have cited (1950); Thuet, Minn. 41 N.W.2d 585 4. Those cases are International Ass’n. Fire Brock, Oakland, Fighters City Cal.App.3d 622 S.W.2d 36 State ex rel. Inman (Tenn.1981). Cal.Rptr. State ex Burk v. rel. court other court nature of redress in this leave to file an information agree attempt in this cannot with such quo warranto to block state. assuming that it was well then-mayor-elect result. I believe not city discretionary powers of of Providence. of this mayor office of the within the court, request Prior before this to file an infor- grant to Webb’s court to Webb leave Attorney of requested quo he had the General warranto but mation in the nature of either to file the information granted. Rhode Island been that such leave should have initiate the himself or to authorize Webb to past pro- court’s I am of this aware Attorney proceedings in the name standing of a regarding the nouncements requests Both were refused. General. in to file an information private individual past In this has defined several the court in- quo absent the the nature of warranto proceed- of types quo different warranto Attorney the At the tervention of General. Cianci, R.I. ings. Fargnoli v. 121 See time, however, equally cogni- I am same (1979). three 72 re- prior zant of this court’s statements as fol- quo various warranto actions are discretionary nature of stand- garding the writs, in informations quo lows: warranto of this fun- ing application and our liberal warranto, quo petitions the nature of and An of requirement. examination damental quo in in the of warranto. equity nature past of these issues this court’s treatment quo at 397 at 72. The war- Id. A.2d disagree majority’s the compels me to with na- ranto and the information in the writ opinion. of'quo ture warranto direct “an individual number of cases majority cites a by to show what warrant holds allegedly demonstrating “our well-estab if enjoyment oust him from its office and to the na lished that an information in rule claim not well is founded.” Id. vindi quo ture of warranto which seeks to quo 397 A.2d at 72. The writ warranto brought be public right cate a cannot essentially and re- been abandoned jurisdiction without intervention placed by the nature of information by attorney general.” The cases cited quo warranto. Id. In event the writ are as follows: Violet v. Voc quo information in the nature of cola, (R.I.1985); v. Fargnoli 497 A.2d 709 perform the same function. Id. warranto Cianci, (1979); R.I. 68 quo equity A in the nature of 361, A.2d Cummings, v. R.I. Black warranto, however, only the re- “not ousts (1939); Ney Whiteley, v. spondent from also office but declares curiam); (1904) (per v. A. 400 O’Brien petitioner rightful is the holder of Pawtucket, 18 R.I. Board Aldermen A.2d at dispute.” office in Id. at Kearn, (1892); 25 A. 914 State curiam); (1891) (per R.I. 22 A. distinguishing fea- apply When these we Lane, 16 18 A. 1035 R.I. hand, it becomes clear tures to the case at Brown, 5 R.I. 1 and State proceeded could not have Webb particulars of Because I that the believe nature of way equity of a distinguished be each of the cited cases can claiming he was quo warranto because facts, I shall address each present from to, to, the office nor was he entitled separately. one mayor. The means available only easily distinguished case The O’Brien right of sit Webb to us. O’Brien from the case before Providence, mayor there- file an did not seek leave to fore, way information of an warranto, information nature According to the nature of warranto. they sought of mandamus. rather writ court, however, such an majority of this petitions Fargnoli involved Both Black by the brought can be information equity that reason distin- brought Attorney and cannot General facts. The re- Attorney guishable present by private party. Because the did involve infor- has, reason, mainder the cited cases refused whatever General information, warranto. without mations in nature bring an Webb is case, however, sig- apprehend, all the discretion which Each contains elements we can, do, nificantly propriety, or dissimilar to those we are now courts of law Kearn, Lane, Violet, exercise, authority facing. and all that cases filed, all justify. Brown the informations were filed the information is When Attorney The courts in each discretionary power General. all the of the court is of these cases were not faced with expended; and the issues of law or fact Attorney question of what to do pleadings must tried and raised bring law, General refused to the information. decided, man- under the the same any allega- Finally Ney there was never ner, strictness, the same as in and with refused tion that the case, criminal.” any other civil or file the informa- file or was ever asked to Brown, 5 R.I. at 6. tion. This court has addressed the issue of cases, distinguishable These however standing of times in other con- a number hand, totally from the case at are not with- Elec- texts. Gelch v. State Board of helping out merit resolve the issues be- tions, (R.I.1984), we 482 A.2d are, fact, They supportive fore us. expressly stated that we would confer argument proffer court “standing liberally when matters of sub- could, discretion, grant to a its leave public interest are involved.” In stantial private individual to file an information in occasions, addition, we have “on rare over- the nature of warranto absent the in- standing pro- looked the and Attorney despite tervention of the General of a case ceeded to determine the merits petitioner asserting the fact that the is public interest because of substantial “public right.” In Black this court reit- having a matter resolved.” Blackstone previously erated what we had set forth in Valley Commerce v. Public Chamber of Co., Turnpike

State v. Pawtuxet Commission, 452 A.2d Utilities “ (1867), 523-24 information ‘[a]n (R.I.1982). that “we This court has said the nature of warranto cannot be shall exercise our discretion and waive leave, * * * by private filed individual without * * * defects so that we can address discretion, may, which the court at its ei- profoundly important issues.” substantive ” Black, grant ther or refuse.’ R.I. Justice), Advisory Opinion (Chief In re addition, 5 A.2d at 860. In this court (R.I.1986). Our exer- following stated the in Brown: solely cise of discretion in such matters “is very “It is true that in cases in which a public attributable to the constitutional and moves, may, relator he as to be importance question propounded permitted to use name of the state at 1320. this court.” Id. purpose inquiring by for the what question of whether the constitution The warrant an individual holds and exercises assuming disqualifies an individual from office, subject the motion is city of position mayor capital regulated discretion of the court. profoundly important indeed a this state is necessity, policy, making The public interest. and one of substantial issue inquiry, position even the and mo- in- a situation that I cannot conceive of it, in proposing tives of the relator are all presents greater public interest or volves court, matters considered important constitutional issue than a more granting exercise of their discretion peti- faced with in these the one we are motion; justice such a a court of since have exercised tions. I believe we should will not allow the the state to name of leave to and allowed Webb our discretion used, occupied, own time to be file the information. improperly unnecessarily, merely exception Perhaps I would not take such grudge has no feed of a relator who decision if the majority’s to the inquiry, interest matter of discretionary recognized the had at least public peace. disturbance of the The dis- Webb, grant this court to leave filing power cretion to allow such a case Attorney character, is, Gener- despite the absence of the of an information of this assumed, person other now although no to exercise this al, simply refused and then Conn, however, chose at 482. majority, claims it.” discretion. court discretionary power this ignore Anderson, 212 Ga. case of In the Huff instead, holding, effec- through its has (1955), the court 90 S.E.2d ability discretionary tively abolished taxpayer” has that “a citizen stated century possessed for over a has this court right into the inquire “the circumstances. grant standing hold a office.” respondent imagine a number context I can In this Martinez, 545 So.2d in Martinez v. court scenarios; the most disturb- unsettling (Fla.1989), quo war- noted that “[i]n is Attorney ing one in which seeking the enforcement proceedings ranto exam- holder. For unqualified office real people are the public right of a and subse- is elected to ple, an individual person bringing and the party to the action assumes the office quently real or show that ‘need not suit ” thereafter General. Sometime Id. (quot- at 1339 in it.’ personal interest eligibili- regarding the individual’s is made Wester, Fla. Pooser v. ex rel. ing Certainly the in said office. ty to serve (1936)). Additional- 170 So. situa- hypothetical in Attorney General this Hunt, 6 N.J. 600, v. in ly the court Goff quo warranto tion would not commence 104, (1951), 605, 106 wrote 80 A.2d “[a] herself. The At- against himself or action city or coun- inhabitant of the taxpayer and majori- this could then cite torney General municipal government is to its ty subject argument opinion support in of an ty’s offi- of its in the due selection interested It bring an action. else could such no one interpose by infor- and he is entitled cers clear, therefore, it is so why should quo warranto in nature of mation its dis- court maintain imperative that this illegally se- have been when such officers petition- grant private cretionary ability to providing additional For cases lected.” in nature leave to file informations ers v. Civil view, see Carleton support of this Attorney Gener- when the quo warranto Bridgeport, 10 Commission Service Webb, a resi- I as refuses. believe al 216-17, A.2d 828 Conn.App. 522 city qualified elector of dent and a in standing proceed (1987) (taxpayer has bring proper individual to Providence was a Clark, 245 v. Highsmith warranto); quo asserting in I am not alone this action. (1980) (citizen 158, 158, 1 264 S.E.2d Ga. point of view. such a quo warran- standing has taxpayer and Pekrul, v. Commission Civil Service In Nelson, 417, 417, 99 to); 213 Ga. Kidd 302, 308, 719 Conn.Supp. 41 (1957) (citizen taxpayer and 124 S.E.2d stated, “By (1989), established the court warranto); Demoura standing quo has * * * taxpay- law, petitioner] as case [the Newark, Super. 74 N.J. quo er, standing bring the warranto has quo (1962) (citizen standing City rel. Water- In State ex action.” Barlow v. ex rel. warranto); State Martin, (1878), cited bury v. 46 Conn. 663, 664, 58 S.E.2d Benfield, 231 N.C. court, the court authority by the Pekrul as voters, (residents, qualified (1950) 637-38 it stated that standing in war- taxpayers have determine, or even con- “unnecessary to ranto). city in its sider, whether private indi- allowing a reasons for writ; for this corporate capacity can sue nature in the file an information vidual to co-relator, alleg- petitioner] is a for [the Attorney Gener- when the warranto city. As taxpayer is a ing that he Highsmith persuasive. al refuses having the duties he is interested such Walker, quoting from Churchill court, offices rec- public to the several annexed following (1882), posed 68 Ga. performed by city charter ognized by the questions: thereto, and is legally elected persons munici- citizens of a not resident “Are deter- proceeding to a upon this entitled through offices pality interested respon- mination as to city is government of the civil which which he has the office dent to exercise either removed or they Are not interested that individual should be administered? filled, having legally place. offices honest- taking the first barred ly impartially administered? These qualifications cannot be con- Constitutional by law for the benefit offices are created upon unqualified individual sim- ferred citizens, and convenience of the of votes in an ply by gaining plurality duties, their any usurper should assume juris- that because suggest election. only through can had a con- redress be statutory provision allowing diction lacks a think We not.” Hi- testant claimant? bring an informa- individuals 158, 264 at S.E.2d at 1. ghsmith, Ga. when tion in the nature of warranto stated, “A Finally, the court Carleton refuses, then is of standing taxpayer qualifies for because importance for this court to retain utmost having such he is interested the duties discretionary power grant essential recog- annexed to the several offices standing. performed by nized charter by jurisdic dispute I do the fact persons legally appointed elected or thereto differing conclusions tions come person another claims the whether or not A when faced like situations. review Carleton, Conn.App. office.” cited of some the cases addition, 522 A.2d at 828. the Carleton however, yields jurisdictions, from other court stated: ex interesting some results. rel. legality of a office is not “The Brock, (Tenn.), Inman v. 622 S.W.2d tempo- or established

determined denied, 941, 102 rary S.Ct. permanent nature of the incum- cert. 454 U.S. appointment, legality (1981), bent’s and its court stated the L.Ed.2d challenge by quo subject citizen, to warranto general private rule a as “that during period incumbency. of the entire such, complain action cannot maintain an public’s Because of the interest in its ing wrongful public officials un of acts of officers, government by legal public private special less such citizen avers inter quo no of there can be waiver warranto special common to the injury est or a by pas- inaction during entitlement the public The Brock court fur generally.” 216-17, sage at at of time.” Id. stated, however, exception ther that an to 828. general in rule is found Bennett v. Island, people Rhode Because the of (Tenn.1975). Stutts, 521 S.W.2d people more the of specifically the of follows: court in stated as Stutts Providence, government entitled to a requirement recognize “We the by constitutionally qualified run individu- quo that suits in the nature of a warran- als, I that Webb should have been believe public seeking to redress to and those granted leave to file an information in the District wrongs brought Attor- nature of warranto. Common sense ney can create insurmountable conclusion, people such a of dictates problems. spirited citizens should Public result, such a justice this state deserve stopped in their search not be or stifled it. demands public wrongs and official for solution to I in jurisdic- am aware that some * * * misconduct. above, tions I referred to which have General, Attorney “If the District individuals to file informa- private this, act arbitran-' matters such as should tions in the nature of warranto is stat- guilty should be ly capriciously or or however, espouse, utory.1 The rationale I in de- of his discretion palpable abuse allowing petition in this in- Webb’s action, clining bring to an or such analogous to the rationale behind stance is institution, courts authorizing will its of the statutes. If an indi- enactment relation of a office, jurisdiction upon the take unqualified vidual to hold chapter 66 of title generally chapter title 9 N.J.Stat.Ann. Conn.Gen.Stat.Ann. See (West 1976); 1960); (West article 41 of chapter 2A N.C.Gen.Stat. Fla.Stat.Ann. title 52 1987); (West chapter 1 Ga.Code 4 of title 6 Ann. article citizen, extraordinary exceptional circumstances the State or the name of * * * those before us now. than of Tennessee. brought briefly I shall address issue rectify a citizens sue to “When regarding ina- majority out Webb’s circumstances, wrong, these a under proceed by way petition to bility copy complaint be served shall I in the equity nature warranto. It upon Attorney District General. majority’s pronouncement agree with duty shall of the trial court forth- be the to proper is not a individual that Webb hearing de- limine to conduct petition equity. bring a As stated signed permit to determine whether earlier, place seeks petition such a If plaintiffs proceed. it be determined removing the re- petitioner office while re- General’s the District not seek spondent. does Webb action, bring fusal to authorize or mayor of Providence. institution, name in use of his speaks length Although improper unjustified, plain- or inability to file about Webb’s meritorious, prima tiffs case is facie equity, it fails to confront the pro- permit trial court shall the action is, follows, prop- naturally which who could ceed.” Id. at 577. erly brought Fire Association International potential Only possibil- case? three instant Oakland, City Fighters v. Cal. (Annaldo), exist: Annaldo ities Andrew (1985), Cal.Rptr. anoth App.3d Pao- Lippitt (Lippitt), Joseph Frederick majority, er case the court cited (Paolino). lino stated: Lippitt, I shall first look at Annaldo and excep- held that in an has also been “[I]t Cianci defeated the two candidates may tional the court in its own case extremely ques- November It is election. private person discretion authorize Annaldo, third-place tionable whether attorney proceed notwithstanding mayor, three-person in a race finisher general’s proceedings refusal to institute seriously argue that is entitled could another, their institution consent to prohibited the office were of court and that under statute or rule position. equally It is assuming the general is attorney the discretion of the Lippitt claim a questionable whether could he arbitrary, contrary not that on but the mayor right to the office of because file subject order of the court to percent of approximately received in the nature of war- information the total votes cast. ranto action in if the court deems such Paolino, final hypothetical The involves on refusal of interest, mayor of at the time of the Providence citi- attorney general private to act Again question must be election. bring proceedings where may zen asked, could Paolino assert to right what right.” vindicate the essential voluntarily for- the office when he himself Cal.Rptr. (quoting Id. at at 263 by seeking reelection feited the office Quo (1952)). Warranto § 74 C.J.S. instead chose to seek the office suggest, I there- governor of this state? Thuet, ex in State rel. Burk Finally, fore, indi- that none of the above-mentioned (1950), also 230 Minn. N.W.2d 585 properly could filed viduals stated, majority, the court cited warranto equity nature general in this state is “The rule law rightfully not one of them could because except right, citizen has no mayor to the office of claim entitlement extraordinary or circum- exceptional under disqualification. upon Cianci’s stances, to test to the use warranto public of- my the title an incumbent of a I turn attention the Vileno now 365-66, deny fice.” Id. majority’s at 586. I and the decision N.W.2d discretionary review of requested that I conceive of a again state once cannot Board Elections this faced such decision the State situation in which court has sense, especially certify mayor-elect city as the of the sion makes no when the majority’s alleg- decision was result is that an individual who was of Providence. premised upon edly disqualified that the ob- the constitution is al- conclusion mayor jection eligibility to Cianci’s was made too lowed to remain office of grounded upon challenge. of Providence free from late. This conclusion was (1988 language of G.L.1956 Reen- Although majority pe- concludes that actment) 17-14-13, which states that “ob- § action, standing bring titioners lack jections shall be filed in the they go address the on to merits of board, secretary of state or of the local disagree majority’s case. I with the inter- be, (4:00) may p.m. the case four o’clock pretation application of both G.L.1956 day day on the next the last business after (1981 Reenactment) 13-6-2 and article § filing papers fixed for nomination III, section of the Rhode Island Constitu- appropriate office.” concerning when tion Cianci. five-year Cianci received a sentence for as- objec- I concur with the that the dangerous weapon, sault 13-6-2 tion made the Vileno came applicable regarding dis- statute following expiration of time forth in set qualifying electors and candidates for elec- disagree, however, 17-14-13. I with the following included the tions. statute majority’s filing conclusion that the belated provision: objection altogether. bars action “Every person believe this court should have exercised shall who be sentenced granted imprisonment its discretion and the relief the in the adult correctional petitioners sought. Vileno institutions for a term of more than one (1) offense, year, any one shall forev- question There is no that “this court has incapable being er thereafter be elect- jurisdiction grant exclusive the writ of honor, trust, profit ed to office of White, certiorari.” White acting in this state and of as an elector addition, therein, expressly person unless such “whether or not the writ shall privilege by restored to such act of the issue is not a matter of but rests general assembly.” the discretion of the court.” This Id. past Although specifical- court has stated in the that whereas the statute does not Legislature limit, may deny ly “the who have received restrict or refer individuals court, sentences, litigant suspended access to this it cannot it has been deter- power suspended divest this court of deci- who receives a to review mined that one by way sions of sentenced. This subordinate tribunals sentence has indeed been Robalewski, discretionary R.I. common-law certiorari.” court (1963) Timothy, Hester v. 108 R.I. 191 A.2d established Caldarone, see In re accordance with G.L.1956 316, 320, 12-19-8, suspended “A is one sentence § actually imposed but the execution thereof my opinion It is the ex- because of Therefore, suspended.” Cian- is thereafter traordinary nature of the issues involved scope ci fall within the 13-6-2. does § herein, this court should have exercised its statute, operative If 13-6-2 is in fact the § granted discretion and the relief the Vileno qualified as a candidate for Cianci is not petitioners sought. my In treatment of the by the specific elective office absent a act petition, previously addressed in this Webb Assembly restoring privi- other General opinion, length I discuss at the need for leges. discretionary extraordinary review such subsequently re- my was circumstances. In accordance with Section 13-6-2 pealed entirety by the General As- argument simply aforementioned cannot P.L.1987, ch. 5 of agree majority’s position sembly the that be- in 1987 § Pursuant relating meet an act to elections. cause the Vileno failed to Reenactment) 43-3-22, (1988 they imposed Legislature, a deadline G.L.1956 § does not terminate repeal are now redress. a conclu- 13-6-2 without Such § disqualified as a applicability regarding 13-6-2 “An elector shall be § appointive candidate for elective or state provides that Cianci. Section 43-3-22 holding or or local office such any repeal of statute shall no case “[t]he if elector has convicted of or done, been accrued, any any right affect act or plead felony nolo contendere to or established, acquired, any suit pro- or or or plead such elector been convicted or ceeding any case had or commenced civil result- nolo contendere to misdemeanor repeal before the time when the take shall jail of six or ing in a sentence months subject effect.” therefore remains more, or to suspended either be served. regulatory to the statute in effect not, convicted, once so Such elector shall sentencing eligible time of and is not as a any return office until three attain or election As- candidate for until years completion after the date of sembly specific passes granting act him pa- probation such sentence and of or privilege. logical It is view role.” repeal of 13-6-2 in this manner. § The effec- constitutional amendment was repealing automatically Had 13-6-2 re- The upon approval. tive voter constitution- Cianci, privileges, stored the as as well approved al it on convention June every other convicted felon who falls with- in favor of amend- voted statute, currently serving whether ment on November not, penal eligible sentence or would be applies That the amendment all elec- as qualify vote elections well as as occurring subsequent to its enact- tions candidate for elective office the state. any dispute, ment not in nor is there clearly This was not intent of the Gen- question that subse- individuals sentenced 13-6-2, Assembly. repealing eral quent approval to the of the amendment Legislature automatically did not intend three-year restriction. bound “being privileges restore the elected controversy concerns effect honor, trust, any profit in this office of or amendment on those individuals sentenced acting state and of as an elector” to all prior approval to the of the amendment intent convicted felons. fact the behind elec- qualify who do not as candidates for repealing clearly statute forth set three-year pursuant prohibition tion to the Explanation by Legislative Coun- by the invoked amendment. cil Relating of an Act to Elections: “This plain language amendment with respect act conforms the election laws prohibits presenting convicted felons from registration and candidacies of con- eligible themselves as to be candidates successfully victed felons who have com- years elapsed elections until three have sentence, etc., pleted probation, their completion of their after the sentences. required by the constitutional amendment Many per- individuals into the class of fall adopted in 1986. The effect act would take prior sons to November sentenced upon passage.” expla- It is clear from this years yet expired. whose three Legislature nation that intended applies specifically the amendment Because 1986, pertain- constitutional amendment of jail “a to individuals who receive sentence ing to of the Rhode Island art. more, suspended either six months Constitution, replace pro- effectively to served,” to the fact that Cianci’s five- by imposed regarding hibitions 13-6-2 year suspended was not ex- sentence does persons those convicted of felonies after persons him effect- clude from the class of Assuming took ar- the amendment effect. 24, 1984, April by ed the amendment. On guendo Legislature’s intent to that the suspended five-year sen- Cianci received apply constitutional amendment to dangerous weapon. assault with a tence for prior to its those felons convicted enact- on Although expired Cianci’s sentence ment, unqualified status can- Cianci’s as an 1989, 23, con- April accordance with the unchanged. didate remains eligi- stitutional amendment he will not be III, 2, limits the Article section class ble to offer himself as candidate 23, April applica- 1992. That eligible candidates as follows: election until electoral

1213 law, remedy.” any constitu- the mischief and the Bail- tion to does not create 391-92, A.2d at 1339. 120 R.I. at application ey, The of art. tional difficulties. Ill, 2, inau- to all future sec. elections agree with the intent involving per- gurations, including those may determined ex- of the drafters convictions, is prior felony who have sons compiled amining the documentation dur- prospective of the application fact a evidentiary hearing ing the conducted an ante- amendment. Consideration of concerning the reso- the board elections fact, prior felony convic- such as a cedent Ill, 2. When that became art. sec. lution tion, not render the amendment retro- does Report of the transcripts review the we active. Qualifications for the Ethics Committee on Crimes, as Convicted of Office-Persons Supreme the United States Court transcripts proceedings as the at well a New constitutionality considered pertaining the constitutional to convention any sought disqualify York statute Ill, 2, apparent sec. art. felony one had been of a who convicted application effect its amendment’s on and holding labor waterfront prior to the enact- to individuals convicted organization. The the stat upheld Court the amendment were considered. ment of ute, reasoning application that the (committee) specifi- The ethics committee felony statute to individuals convicted of problem’s cally potential addressed prior The proper. to its effective date was arising concerning who had individuals Court went on to state that the statute was They discussed previously convicted. been necessary part needed a “much inserting language the amendment to into regulation.” v. Braist scheme of De Veau the class of individuals af- limit convicted ed, 363 U.S. S.Ct. subsequent to the fected to those convicted (1960). I shall dis L.Ed.2d As The approval of the amendment. commit- my in more detail when exami cuss I reach qualifying recognized that tee absent legislative regarding nation of the intent interpret- provision language, could be Ill, part art. it was of an sec. enacted as including persons serving sentences ed as Legislature regulate effort approval of the amend- at the time qualifications persons holding those of changes suggested and ment. The were Accordingly disquali fice in Rhode Island. discussed; however, they not intro- were Ill, pursuant sec. fication of Cianci to art. convention, duced at constitutional application render the does not they incorporated consequently never were amendment unconstitutional. Ill, approved, art. into the amendment. As to all convicted of sec. refers individuals It has been established that it is not months to six crimes sentenced beyond plain lan- necessary to look elapsed, years three more whose guage provision of a to es- constitutional felony when conviction regardless of therefore, meaning; tablish its as stated suggested limitation was occurred. above, face, 2, applies art. on its implemented. never Robinson, 57 R.I. Cianci. Gorham 31-34, A. How- 837-38 stating that majority, although “we ever, meaning if the of a constitutional anything read wrong it would be believe it is question, is called into amendment amendment adopt failure into the possible beyond to look the surface never ex- that amendment was because provision to discern the intent of the draft- full conven- to or debated plained 1217; Gelck, Bailey A.2d ers. restrictive tion,” clearly that the believes Baronian, apply the amendment language does Gorham, 31-34, apply 57 R.I. at does not final form therefore Cianci, prior In a in which a A. at 837-38. situation who was convicted majority must ar- challenged, clause is enactment. The term or a amendment’s “[w]e limiting failing the history of and examine that to consider gues look to the the time fact that way changed no the things language it was “in existing the state of when unanimously understood art. old adopted, to the the committee framed and ascertain convention, III, In prospective to in effect.” The constitutional as well as sec. ap- voters, viewpoint, majority this the adopting approved language. the this “Has purporting lan- parently that because the implies persons all been convicted” that guage initially adopted by was the commit- prior any to which the convicted to election direct on ethics no evidence of a tee and governed by applies are the amendment exists, con- language to the said qualifications set forth. amendment, ap- accepted as and stitutional completely no man is above the Since form, proved in its read as final should be law, Ill, to if the amendment art. sec. restriction, incorporating proposed even the Cianci, regulatory apply does not to the though language no can be found in effect at the time of Cianci’s statute I supporting premise. amendment this apply to him. It would conviction must a strongly concluding that disagree. appear that if we were to consider the obviously from a phrase that omitted was Ill, sec. and the subse- enactment art. merely constitutional amendment was mean, repeal 13-6-2 as the quent to § oversight actually in- procedural and was Ill, majority that ex- suggests, art. sec. amendment, tended to be included in the may tinguishes any and all effect 13-6-2 gone beyond the the bounds on to prior those felons convicted contrast, I of reasonable inference. 13-6-2, now repeal of such felons are failing incorporate provi- aver that to waiting subject three-year statutory to the into the final form of the amendment sion imposed As period by the amendment. clearly of the com- reflects intentions previously in this dis- issue was addressed adopt mittee and the full convention not to sent, pursuant interpretation, to either Therefore, Ill, language. art. sec. as qualify does not a candidate for Cianci apply it to provision, is the effective does Therefore, by mayoral election. persons as well to all convicted Cianci as candidate, deeming eligible as within prior to November who fall effectively majority has determined class the amendment. created to no electoral class felons exists which Additionally transcripts reference the in- apply. restrictions The class created atmosphere surrounding construction all to the cludes those individuals sentenced amendment, thereby of the further evidenc- for more Adult Correctional Institutions and ing the for the amendment motivation prior year any one one than offense prior the intent of the drafters to include interpretation 1986. This November convicted individuals the class affected the effect the constitutional amendment provision. by the The amendment was is, in- suggest, only contrary to the response history and “Rhode Island’s manifestly un- Legislature tent of the but political intended current climate.” It was reasonable as well. message people “send a of this Finally application art. state that convention will not tolerate it an ex applied Cianci does not render politics standard of low [business prohibited by facto the Con- post usual that we have the state both law both as] past even now.” The amendment of the United States stitution an[d] clearly apply convicted intended This court has Rhode Island Constitution. similar to following types felons situations Cianci’s. laws held that fall transcripts committee's make reference prohibition: post the ex facto within “Buddy amendment as the Cianci bill.” an action Every “1st. law makes attempt to restore “the confi- It was law, passing done before the in their people state dence done, criminal; which was innocent when establishing government” by means of Every law punishes such action. 2d. qualification holding “high crime, aggravates a or makes it office.” was, greater when committed. than punish- amendment, form, Every changes disqua- 3d. law its final ment, greater punishment, and inflicts a convict- lifies individual who “has been crime, when felony.” than the law annexed plead ed or nolo contendere to a

1215 964, 17, 28-29, 23 Every 4th. law that alters 101 S.Ct. 67 L.Ed.2d committed. conclude, evidence, (1981)). legal rules and receives We then went on to different, less, testimony, than the law purposes “These should be remembered required at the time of the commission of considering when whether a law is constitu- offence, in to convict the of order post the ex facto clause. tional not under Gill, Lerner 463 A.2d fender.” v. way these are not en- goals If in some (R.I.1983) Bull, (quoting Colder 3 hanced, reluctant to a court should most Dall.) (3 385, 390, 1 L.Ed. U.S. post prohibition.” facto Ler- invoke the ex (1798)). ner, a at 1357. In we went A.2d categories It is the third of the above adopted pre- step approach an further present controversy. There applies in a Law Re- viously presented Harvard Ill, fore, in for order art. sec. to be un- view to determine article whether definition, it pursuant violative to the above giv- present fairness a characteristic was penal to be in nature. would have In the en law. is at bar it clear that art. case * * * clear most is that the factor “[I]t express purpose not enacted for the appearing often these cases is punishing past activities but for parties extent have laid to which qualifica rather was enacted to establish existing on at reasonable reliance the law promote public tions for and to trust legal con- the time of the conduct whose public application As office. such its is a sequences the retroactive statute would legitimate appropriate exercise importance is alter. The of this element police power state’s and therefore consti very apparent one considers that when Veau, tutionally proper. De U.S. at general major the two factors to terms at 80 S.Ct. 4 L.Ed.2d at 1120. validity of weighed determining Additionally the court’s cate Colder third strength statute are the retroactive gory requires change that the “inflicts a un- public interest it and the serves greater punishment than the law annexed opera- by its fairness created retroactive crime, Colder, when committed.” tion, parties on and the reliance of the (3 Dall.) 1 L.Ed. at U.S. 650. As most accu- preexisting perhaps law is discussed, previously this is not situa gauge rate latter.” Lawrence present tion in the case. At the time Cianci Inc., Anheuser-Busch, sentenced, was convicted he was sub Hochman, (R.I.1987) (quoting The Su- ject lifetime disqualification to a from hold Constitutionality preme and the Court ing pursuant elective office 13-6-2. 73 Harv.L. Legislation, Retroactive of Rev. question The constitutional amendment (I960)). reducing has the effect of lifetime incapacity three-year waiting pe to mere There doubt the institution can be no riod, previ an obvious from the public abatement serves qualifications penalty. ous rational interest. substantial and then becomes whether Cianci again In 1983 and in 1987 this court upon to such an pre-existing relied law engaged purposes in an examination of the applied to change, extent to render post facto be served the ex clause. Cianci, him, fundamentally as a unfair. noted for the In 1983 we the reasons exist- bar, surely the Rhode Island member of post promul- the ex facto clause as ence of actions, his led to knew that his which gated by Supreme the United States Court. April conviction constituted on “First, give legislative should acts fair felony. to assume It is also reasonable warning their allow effect and individu- potential lawyer that as Cianci knew the rely their meaning explicitly on until als offense, le- penalty the most Second, for such post changed. the ban on ex facto him to subjected could have necessary nient of which prevent laws is lawmakers 13-6-2, disqual- lifetime abusing through providing his power their arbi- illogical, Lerner, It is ification from office. trary action.” at 1357 on Graham, therefore, relied (citing to conclude that Cianci U.S. Weaver answer to the provides no definitive guide his actions at thus the law as it existed to petitions. Accordingly question posed by as it these time. art. Cianci, post facto applies to is not an ex stated, I already reasons believe For the law. grant court has the discretion to that this respectfully I foregoing reasons For us. petitions before majority opinion. dissent from the address the ma- compelled

I now feel I response to this dissent. too be-

jority’s mindful of

lieve that this court should be expressed by Justice

the wise sentiments practical ap- Holmes. The

Oliver Wendell

plication of Holmes’s wisdom to Justice however, case, point is the facts of this Bevelyn HEALEY G. part company. It majority which the persuaded this court not be is manifest that “great political ramifications of T. HEALEY. James rendering a decision. case” before us No. 90-487-A. should, however, always be This court language and “persuaded” by its own Island. Supreme Court of Rhode although precedent. Accordingly, the ma- 29, 1991. May holding in jority is correct that the ultimate peti- Cummings Black v. denies the Black petition, bring their

tioners ignore

majority apparently chooses peti- relief the Black

critical fact that the peti- sought granting of a

tioners quo equity

tion in the nature of warran- this dis- already

to. As discussed within

sent, equity in the nature of markedly warranto is different war-

an information in the nature distinguishable. Further-

ranto and is thus

more, upon although language relied Black, appear in

by the does

following language appears: also “ ‘An information in the nature filed

warranto cannot be leave, which the court

individual without discretion, grant or

may, at its either

refuse.’ enough to show that

“We have said hear- petitioners are not entitled to a right; and fur-

ing on the merits as of

ther, us they have not shown argument at the

their they present a case which

hearing that exercise the discretion

should move us to hearing by allowing a

vested in the court Black, R.I. at merits.”

on the

375, 5 A.2d at therefore, appear, that Black can

It would propositions for both

be cited to stand

Case Details

Case Name: State Ex Rel. Webb v. Cianci

Court Name: Supreme Court of Rhode Island

Date Published: May 23, 1991

Citation: 591 A.2d 1193

Docket Number: 90-555-M.P., 90-560-M.P.

Court Abbreviation: R.I.