ROGER WILLIAMS UNIVERSITY
LAW REVIEW
VOLUME ELEVEN
SPRING 2006
NUMBER THREE
TABLE OF CONTENTS
ARTICLES
Getting the Lead Out:
How Public Nuisance Law
Protects Rhode Island’s Children……………………….…...……Aileen Sprague &
Fidelma Fitzpatrick
The Obfuscation of Rhode Island’s
Clearly Expressed Constitutional
Right to Bear Arms:
Mosby v. Devine……………………………….………………... Claudia J. Matzko
NOTES & COMMENTS
Constitutional Home Rule in Rhode Island.................................... Terrence P. Haas
A Threat to the Security of Private
Property Rights: Kelo v. City of New London
and a Recommendation to the Supreme Court
of Rhode Island………………...………………………………….Christina M. Senno
2005 SURVEY OF RHODE ISLAND LAW
CASES
Civil Procedure
Gliottone v. Ethier,
870 A.2d 1022 (R.I. 2005)……………………….……………….Russell E. Farbiarz
Constitutional Law
Gem Plumbing & Heating Co., Inc. v. Rossi,
867 A.2d 796 (R.I. 2005)………………………………................ William J. Delaney
In re Advisory Opinion to the House of
Representatives (Casino II),
885 A.2d 698 (R.I. 2005)………………………………………... Margreta Vellucci
McKenna v. Williams,
874 A.2d 217 (R.I. 2005)…………………………………………Aaron R. Baker &
Bridget N. Longridge
Young v. City of Providence,
396 F. Supp. 2d 125 (D.R.I. 2005)................................................. Esme Noelle DeVault
Contract Law
D’Amico v. Johnston Partners,
866 A.2d 1222 (R.I. 2005)…………………………………..…… Leah J. Donaldson
Contract/Insurance Law
Sanzi v. Shetty,
864 A.2d 614 (R.I. 2005)…………….……….………………….. Matthew J. Costa
Criminal Law
State v. Luanglath,
863 A.2d 631 (R.I. 2005)……………………..………………….. Jessica Bosworth
State v. Perez,
882 A.2d 574 (R.I. 2005)……..………………………………….. Christina M. Senno
Criminal Law/Procedure
In re Tavares,
885 A.2d 139 (R.I. 2005)…………………………..............…….. Hinna M. Upal
Criminal Procedure
Raso v. Wall,
884 A.2d 391 (R.I. 2005)………..………………............……….. Esme Noelle DeVault
Disability/Insurance Law
Marques v. Harvard Pilgrim Healthcare of New England,
883 A.2d 742 (R.I. 2005)……………………………..............….. Kimberly A. Tracy
Employment Law
DeCamp v. Dollar Tree Stores,
875 A.2d 13 (R.I. 2005).................................................................. Matthew Jill
Family Law
Gorman v. Gorman,
883 A.2d 732 (R.I. 2005)……………………………..............….. Elizabeth A. Suever
In re Mackenzie C.,
877 A.2d 674 (R.I. 2005)…………………..…………........…….. Esme Noelle DeVault
Property Law
Palazzolo v. State,
No. 88-0297, 2005 WL 1645974 (R.I. Super. July 5, 2005)…...... Colin M. McNiece
State Affairs and Government
Tanner v. Town Council of East Greenwich,
880 A.2d 784 (R.I. 2005)…………………………………..…….. Kevin Rolando
Tort Law
Esposito v. O’Hair,
886 A.2d 1197 (R.I. 2005)………….……………………….…… Jason Van
Volkenburgh
Perrotti v. Gonicberg,
877 A.2d 631 (R.I. 2005)………………………………...………. Christine List
Seide v. State,
875 A.2d 1259 (R.I. 2005)...……..………………………………. Brian K. Koshulsky
Tedesco v. Connors,
871 A.2d 920 (R.I. 2005)…………….…………………….…….. Terrence Haas
Tort/Property
Lucier v. Impact Recreation, Ltd.,
864 A.2d 635 (R.I. 2005)……………………………..............….. Mark H. Hudson
LEGISLATION
2005 Public Laws of Note
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Articles
Getting the Lead Out:
How Public Nuisance Law Protects
Rhode Island’s Children
Aileen Sprague and Fidelma Fitzpatrick
INTRODUCTION
On February 22, 2006, a jury of Rhode Islanders delivered a
decisive verdict in a case that had been the source of significant
political, social, and economic debate since it was filed in 1999.
On that day, a jury of six, who had devoted more than four months
of their lives hearing evidence in the longest civil jury trial in
Rhode Island’s history,1 delivered a victory for public health
advocates by rendering a verdict determining that: (1) the
presence of lead pigments in paints throughout Rhode Island was
a public nuisance; (2) three former manufacturers, suppliers, and
promoters of lead pigments - Sherwin Williams, Millennium
Holdings, and NL Industries (hereinafter “Lead manufacturers” or
“Defendants”) – were liable for that public nuisance; and (3) the
responsible defendants were required to abate the existing
nuisance.2
The factual premise of the State’s suit was simple. It
1. See Peter B. Lord, Jurors in Lead-Paint Trial Say They’re Proud of
Verdict, THE PROVIDENCE SUNDAY JOURNAL, March 12, 2006, at B1 (noting
that “court officials believe [the trial] was the longest civil trial in state
history.”)
2. State of Rhode Island v. Atlantic Richfield Co. et al., C.A.No. 99-5226.
603
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recognized that lead poisoning poses a very serious risk to a large
percentage of children under six years of age in Rhode Island.3
The primary reason that lead poisoning has such a widespread
adverse impact on the health of Rhode Island children is that lead
is still present in and on homes and buildings throughout our
state despite the fact that it was banned for residential use in the
United States in 1978.4 Furthermore, the action recognized that
the manufacturers of lead products used in paint (hereinafter
“Lead”) and their trade association were responsible for this harm
to Rhode Islanders because they manufactured and promoted
Lead for use in and on homes and buildings throughout the State
of Rhode Island despite their knowledge of its toxicity.5 In short,
the defendants knew Lead was dangerous but continued to sell it
in Rhode Island.6 In addition, they also failed to warn parents,
homeowners, or the public about the dangers of lead based paint.7
For decades, many groups, including State government,
3. See R.I. KIDS COUNT, R.I. KIDS COUNT FACT BOOK 66 (2005).
4. See 16 C.F.R. § 1303.1 (2005) (“the Consumer Product Safety
Commission declares that paint and similar surface-coating materials for
consumer use containing lead or lead compounds . . . are banned hazardous
products . . .”. See also Trial Testimony of Dr. Patricia Nolan, Nov. 14, 2005
(am) at 57.
5. Feb. 10, 2006 Trial Tr. at 4-5 (wherein counsel for the State argued in
closing arguments that “these four defendants knew that their lead products
were hazardous to kids, they knew that their lead pigment could
permanently hurt kids, they knew that it caused brain damage, they knew it
killed kids, and they even knew how it happened. And they chose to sell it
anyway.”);
6. Feb. 10, 2006 Trial Tr. at 35-36 (closing argument from State’s
counsel that “[t]hese defendants I just mentioned [NL, ARCO and
Millennium Holdings] were told that kids were poisoned by lead in paint, and
instead of embracing them, treating them, or offering to remove the toxic
substance from their kids homes, they continued to promote their lead
without even a whisper of the hazard. They poured more money into pro lead
ads and more resources and did the [sic] into the promotion of lead to
increase their sales. And all that add layers and layers of paints in our
homes today that need to be abated.”) See also Testimony of Professor Gerald
Markowitz, Dec. 8, 2005(am), at p. 21; Markowitz, Dec. 15, 2005 (am) at p. 97;
Testimony of Professor David Rosner Jan. 13, 2006, at p. 94.
7. Nov. 1, 2005 Trial Tr. at 33; see also Feb 10, 2006 Trial Tr. at
32.(closing arguments from State’s counsel arguing that “The defendants
chose, they chose not to educate people about the dangers of their product.
The defendants chose not to substitute safe alternatives. The defendants
chose not to warn. The defendants chose to recklessly promote, and the
defendants chose to downplay the hazards.”)
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homeowners and landlords, parents, and child health and housing
advocates, worked to solve the lead poisoning problem in Rhode
Island. Through the litigation, after years of bearing the burden
of this public health scourge, the Attorney General and the State
sought to have the Lead manufacturers share their responsibility
for the lead poisoning crisis in Rhode Island.8
The legal premise was also simple. The State maintained
that the Lead manufacturers had created an environmental
hazard which they, like all who pollute the environment, should
clean up. The case was brought under the common law claim of
public nuisance, which imposes liability on those who
“unreasonabl[y] interfere[] with a right common to the general
public” such as the “the health, safety, peace, comfort or
convenience of the general community.”9 Public nuisance law
allowed the State to pursue the public health remedy of
abatement, which “means the public nuisance is to be rendered
harmless or suppressed.”10 Such a remedy would work toward a
goal of primary prevention by protecting children before they are
poisoned. Leading public health advocates have maintained that
this strategy is essential to preventing lead poisoning in the
future.11 As the Centers for Disease Control recently concluded,
8. Feb 10, 2006 Trial Tr. at 58 (State’s closing argument stating “It’s
right, it’s right, Ladies and Gentlemen, for the defendants to assume their
responsibility after standing by and watching others carry it for so long.”);
Feb 9, 2006 Trial Tr. at 62. (State’s counsel arguing in closing that “[the
State, homeowners, parents] are the ones who are responsible for the public
health success story. It’s taken care of 75 percent of the children who were
still lead poisoned—who were lead poisoned. But 25 percent of children are
left. 25 percent of children who were lead poisoned ten years ago are still
getting lead poisoned today and that’s not okay. And so what we’re here
saying is, it’s these defendants, these defendants should come and help share
that responsibility.”); Nov. 1, 2005 Trial Tr. at 97 (opening statements from
State’s counsel that “[t]he State has taken responsibility. Taxpayers and
homeowners have taken responsibility. Parents have taken responsibility.
We are that temporary Band-Aid, the cover up, the treatment. But there’s
one group that has never contributed to the solution. This trial is about
telling the defendants it’s time to help fix the lead paint problem they created
once and for all.”)
9. Citizens for Pres. of Waterman Lake v. Davis, 420 A.2d 53, 59 (R.I.
1980) (quoting Copart Indus., Inc. v. Consol. Edison Co., 362 N.E.2d 968, 971
(N.Y. 1977)).
10. Feb. 13, 2006 Trial Tr. at 131.
11. See U.S. DEP’T OF HEALTH AND HUMAN SERVICES, CENTERS FOR
DISEASE CONTROL AND PREVENTION, PREVENTING LEAD POISONING IN YOUNG
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the “answer to lead poisoning is prevention. The alternative of
intervening only after a child has been harmed is unacceptable
and serves neither the interests of the child nor the property
owner nor future generations of children.”12
On February 13, 2006, after nearly ten weeks of receiving
evidence, the trial court gave jury instructions which covered the
law of public nuisance, among other things.13 After eight days of
deliberation, the jury returned a unanimous verdict in favor of the
state.14 Post-verdict interviews with the jurors revealed that the
process was a perfect example of the way the jury system in the
United States is supposed to work: the jurors recounted that they
put aside their own personal philosophical and social beliefs and
applied only the facts they heard during trial to the law as it was
given to them.15
CHILDREN 4 (2005) (“Because lead-based paint is the most important source of
lead exposure for young children, the first essential element of primary
prevention is implementation of strategies to control lead paint-contaminated
house dust and soil and poorly maintained lead paint in housing.”); U.S.
DEP’T OF HEALTH AND HUMAN SERVICES, CENTERS FOR DISEASE CONTROL AND
PREVENTION, PREVENTING LEAD POISONING IN YOUNG CHILDREN (1991),
http://www.cdc.gov/nceh/lead/Publications/books/plpyc/contents.htm
(“Eradicating childhood lead poisoning requires a long-term active program of
primary lead-poisoning prevention, including abatement of lead-based paint
hazards in homes, day-care centers, and other places where young children
play and live.”); PRESIDENT’S TASK FORCE ON ENVTL. HEALTH RISKS AND SAFETY
RISKS TO CHILDREN, U.S. DEP’T OF HOUS. AND URBAN DEV., ELIMINATING
CHILDHOOD LEAD POISONING: A FED. STRATEGY TARGETING LEAD PAINT
HAZARDS 35 (2000) (“The most important part of the treatment of childhood
lead poisoning is the identification and elimination of the sources of lead
exposure. In addition, case management services are needed to coordinate
interventions related to environmental, housing, medical, and social
factors.”); Id. at 6 (“The benefit of permanently abating lead paint is
considerably greater because more children would benefit over a considerable
longer time span. The quantified monetary benefits may underestimate the
actual benefits because of the many unquantifiable benefits associated with
eliminating childhood lead paint poisoning.”)
12. LEAD-BASED PAINT HAZARD REDUCTION AND FINANCING TASK FORCE,
U.S. DEP’T OF HOUS. AND URBAN DEV., PUTTING THE PIECES TOGETHER:
CONTROLLING LEAD HAZARDS IN THE NATION’S HOUS. 8 (1993).
13. See State of Rhode Island v. Atlantic Richfield Co., C.A.No. 99-5226,
Feb 13, 2006, Jury Instructions
14. See State of Rhode Island v. Atlantic Richfield Co., C.A.No. 99-5226,
Feb. 22, 2006, Verdict Form
15. See Lord, supra note 2, at B4 (reporting that “the jurors said they
carefully followed the judge’s instructions to focus only on the evidence.”). See
also Peter Krouse, Verdict Raises Risk for Paint Companies, CLEVELAND
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The verdict, which was the culmination of the jurors’
scrupulous adherence to the law and facts presented in the case,
should have put an end to the heated social and political debate
that surrounded the suit since its inception in 1999.16 Instead, the
verdict fueled more heated debates, especially in light of the large
decrease in the value of the publicly traded defendants – Sherwin
Williams and NL Industries – that accompanied the verdict.17
Corporate interests have flooded the media with criticism of the
jurors’ work, questioning the decision that they reached, the
manner in which the trial justice conducted the litigation, and
even the wisdom of Rhode Island’s well-established public
PLAIN DEALER, April 2, 2006, at A1.
16. Throughout the course of the litigation, the issue drew strong
opinions from lead poisoning prevention groups and public health advocates
on one hand and groups such as the Chamber of Commerce, local realtors
associations, and newspaper editorial writers on the other. See Neil Gendel,
Letter to the Editor, Hit oil companies after paint makers, THE PROVIDENCE
JOURNAL, April 7, 2006, at B5 (“the people who represent us are catching up
to the successors of the manufacturers and sellers of a product [leaded paint]
known to be inherently dangerous to our health.”); See Edward Achorn,
Bizarre, Unfair Lead-Paint Ruling, THE PROVIDENCE JOURNAL, April 4, 2006
(saying that the verdict “on its face seem unjust”); See Julie Creswell, The
Nuisance That May Cost Billions, THE NEW YORK TIMES, April 2, 2006, at
Section 3 (noting that “the jury’s decision was particularly shocking”); See
Jack McConnell, Why judgment on lead paint was right, THE PROVIDENCE
JOURNAL, March 17, 2006 (“[c]learly, lead poisoning is a public nuisance in
Rhode Island”); See Providence Journal Editorial Staff, Blaming the wrong
people, THE PROVIDENCE JOURNAL, March 6, 2006 (noting that bad landlords
were the real causes of lead poisoning in Rhode Island); See Editorials, Lead
paint decisions show clear reasoning, PROVIDENCE BUSINESS NEWS, March 612, 2006, at 28; See Editorial, Motley Legal Crew, WALL STREET JOURNAL,
February 27, 2006, at A14 (“There are so many screwy aspects to this case
that it’s hard to know where to begin.”); See Jane E. Brody, Dally No Longer:
Get the Lead Out, THE NEW YORK TIMES, January 17, 2006, at F6 (“no one at
any level of society, not even those with seven-figure incomes, can afford to be
complacent about the exposure of children to lead in home and play
environments.”)
17. See Creswell, supra note 17 (“It was a surprising and devastating
verdict for the industry, and the reaction was swift and severe. The stocks of
the paint companies tumbled, wiping out billions of dollars in market value
that afternoon.”); Peter B. Lord, 3 Companies Found Liable in Lead Paint
Nuisance Suit, THE PROVIDENCE JOURNAL-BULLETIN, Feb. 23, 2006, at A1
(“The value of Sherwin Williams stock began to plummet within moments of
the verdict. By the end of the day, the value of the company’s shares dropped
by nearly 18 percent—a loss totaling $1.3 billion. The value of NL Industries
stock dropped by 8 percent, for a total loss of $642 million.”).
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nuisance law.18
While words like “landmark”19 and “historic”20 have been used
to describe this litigation, these adjectives apply to the progress
the State of Rhode Island has made against corporations who
have, through aggressive litigation strategy and scorched earth
discovery,21 successfully immunized themselves from liability for
their actions for more than twenty years.22 As discussed in this
article, however, these adjectives do not apply to the legal and
factual premise of the State’s case.
Instead, the Attorney
General’s responsibility to bring this type of action, as well as the
controlling law of public nuisance, is well-grounded in over a
century of Rhode Island jurisprudence. The concept of public
nuisance is hardly a landmark or novel cause of action; it is firmly
rooted in the common law, with cases in Rhode Island dating back
to 1800s.23 Furthermore, the law of Rhode Island in this regard is
18. See Creswell, supra note 17 (“The defense lawyers . . . blame what
they call Rhode Island’s quirky public nuisance laws. They also contend that
the judge overseeing this case had severely limited their ability to gather
evidence and present a defense, and say that he may have given erroneous
instructions to the jury.”)
19. See Peter B. Lord, In a Surprise Move, Defense Rests in Lead-Paint
Trial, THE PROVIDENCE JOURNAL, January 26, 2006, at B1; Lead-Paint Jury
Deadlocks Briefly Before Trying Again, The Providence Journal, February 16,
2006.
20. See Lord, supra note 2, at B1.
21. Throughout the course of preparation for the November 2005 trial,
the defendants deposed between 140 and 160 Rhode Island landlords,
homeowners, and parents and hundreds of other fact and expert witnesses.
In addition, they requested and received millions of pages of documents from
Rhode Island departments, such as the Departments of Health,
Environmental Management, Administration, Human Services, Office of the
Governor, Office of the Attorney General, Business Regulation, and
Corrections, and the General Assembly.
22. In 1987, the first case filed against the lead industry was a personal
injury suit brought under the theory of market share liability. In Santiago v.
Sherwin-Williams Company, the First Circuit declined to overturn the lower
court’s ruling that market share liability does not apply in Massachusetts. 3
F.3d 546, 551 (1st Cir. 1993). Several other similar personal injury suits filed
in Massachusetts, Maryland, and Pennsylvania were either voluntarily or
involuntarily dismissed in the mid 1990s after the negative ruling in
Santiago. Add cites to these? These rulings, based on principles of product
liability law, paved the way for the public nuisance cause of action filed by
the State of Rhode Island in October 1999. Other governmental entities have
filed similar public nuisance suits against the lead industry since 1999.
citation?
23. See Simmons v. Cornell, 1 R.I. 519 (1851); Hughes v. Providence &
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not idiosyncratic or different from public nuisance law around the
country.
Not only is there significant historical precedent
nationwide for Rhode Island’s suit, but other courts around the
country that have also considered the applicability of public
nuisance law to the lead poisoning crisis and the conduct of these
defendants have issued decisions mirroring those of the Rhode
Island Superior Court.24
Part I of this article provides an extensive overview of the
public nuisance claim, explores that claim’s deep roots in Rhode
Island law and refutes arguments typically made against applying
public nuisance to remedy communal harms, such as lead
poisoning. Part II discusses the significance of the Rhode Island
verdict and discusses the remedies that the State will make on
behalf of the Rhode Islanders. Part III provides an overview of
successful cases brought in other states by government entities
against the Lead defendants. The article concludes that these
companies will no longer be able to use carefully crafted legal
defenses to shield themselves from responsibility for the lead
poisoning crisis that plagues the country and its children.
I.
RHODE ISLAND’S PUBLIC NUISANCE CLAIM
A. The State’s Claim Is Consistent with Almost a Century of
Rhode Island Precedent
The filing of this litigation in 1999 against the Lead
manufacturers was not based on a long shot theory of public
nuisance that has never been previously applied to environmental
torts affecting the public at large. Public nuisance has long been
utilized by the Attorney General to bring suits on behalf of the
public to remedy public harms.25
W.R. Co., 2 R.I. 493 (Sept. term. 1853); State v. Johnson, 3 R.I. 94 (1855);
State v. Keeran, 5 R.I. 497 (1858); Clark v. Peckham, 10 R.I. 35 (1871);
Thornton v. Grant, 10 R.I. 477 (1873); Engs v. Peckham, 11 R.I. 210 (1875).
24. See In Re Lead Paint Litigation, No. A-1946-02T3, 2005 WL 1994172,
at *14 (N.J. Super. A.D. Aug 17, 2005); City of Milwaukee v. NL Industries,
Inc., 691 N.W. 2d 888, 893 (Wisc. App. 2004); County of Santa Clara v.
Atlantic Richfield Co., 137 Cal.App.4th 292, 333; 40 Cal.Rptr.3d 313, 348
(Cal.App. 6 Dist. 2006).
25. The Rhode Island Attorney General’s responsibility to prosecute
public nuisances injurious to the health and welfare of residents of the State
is consistent with authority from the majority of jurisdictions across the
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Rhode Island courts have recognized the exhaustive common
law authority of the Attorney General to commence suit to redress
public harms:
In this state it was long ago settled that ‘[s]uits for the
public should be placed in public and responsible
hands.’ . . . The public officer vested with that authority is
the attorney general of the state. Only he may sue to
redress a purely public wrong . . .26
Further, the Attorney General’s authority to maintain such
actions is also derived from the Rhode Island Constitution and the
Rhode Island General Laws. The Constitution reserves for the
Attorney General all of the duties and powers of the office as
existed at the time the Constitution was adopted.27 Since the
country. See Lawton v. Steele, 152 U.S. 133, 136 (1893) (State’s police power
includes “everything essential to the public safety, health, and morals, and []
justif[ies] the destruction or abatement . . . of whatever may be regarded as a
public nuisance”); People v. Nebbia, 186 N.E. 694, 699 (N.Y. 1933); Minnesota
ex rel. Humphrey v. Standard Oil Co., 568 F.Supp. 556, 563 (D. Minn. 1983)
(“the parens patriae doctrine allows a state to maintain a legal action where
state citizens have been harmed, where the state maintains a quasi-sovereign
interest. A state maintains a quasi-sovereign interest [] where the health
and well-being of its residents is affected. . .”) (internal citations omitted);
State ex rel. Patterson v. Warren, 180 So.2d 293, 299 (Miss. 1965) (at
common law, the attorney general had inherent authority “to institute
proceedings to abate public nuisances, affecting public safety and
convenience, to control and manage all litigation on behalf of the state, and to
intervene in all actions which were of concern to the general public”);
Wilsonville v. SCA Services, Inc., 426 N.E.2d 824, 837 (Ill. 1981);
Commonwealth v. Barnes & Tucker Co., 319 A.2d 871, 885 (Pa. 1974) (“The
power of the Attorney General to abate public nuisances is an adjunct of the
inherent police power of the Commonwealth.”); 58 AM. JUR. 2D Nuisances § 50
(2002).
26. McCarthy v. McAloon, 83 A.2d 75, 78 (R.I. 1951) (internal citations
omitted). See also State of Rhode Island v. Lead Indus. Ass’n, No. 99-5226,
2001 WL 345830, at *3 (R.I. Super. April 2, 2001) (“the Attorney General’s
authority in bringing this action is comprised of that which existed at
common law, as well as that allowed by statute.”); Pine v. Vinagro, No. PC
95-4928, 1996 WL 937004, at *20 (RI. Super. Nov. 4, 1996) (“Among the
awesome responsibilities of the Attorney General is that of prosecuting a
public nuisance. . .”).
27. See Motolla v. Cirello, 789 A.2d 421, 424 (R.I. 2002) (“Pursuant to
article 9, section 12, of the Rhode Island Constitution, the duties and powers
of the Attorney General remained the same under the Constitution as existed
at the time the Constitution was adopted, ‘or as from time to time may be
prescribed by law.’”); Suitor v. Nugent, 199 A.2d 722, 723 (R.I. 1964) (“The
constitution did not purport to create such an office [of Attorney General], but
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power and responsibility to prosecute public nuisance actions
existed in the Office of Attorney General prior to the adoption of
the Constitution, it remains one of the office’s constitutionally
proscribed duties.28 Similarly, R.I.G.L. § 42-9-5 provides that the
“attorney general shall commence and prosecute to final judgment
and execution those other legal or equitable processes, and shall
perform those other duties which are or may be required of him or
her by law; except insofar as he or she may have been required to
act as the legal officer of the department of health, those functions
are hereby transferred to the chief counsel of the division of legal
services of the department of health.”29 Historically, the Attorney
General of Rhode Island has prosecuted companies for conduct
that has put the health and welfare of the citizens of Rhode Island
at risk.30
Under Rhode Island law, public nuisance is defined
expansively as “an unreasonable interference with a right common
to the general public: it is behavior that unreasonably interferes
with the health, safety, peace, comfort or convenience of the
general community.”31 An interference can be considered
recognized it as existing and provided for continuance of the powers and
duties exercised by its occupant prior to the adoption of the constitution.”).
28. See State of Rhode Island v. Lead Industries Ass’n, No. 99-5226, 2003
WL 1880120, at *3 (R.I. Super. Mar. 20, 2003) (the “common law equity
power as to public nuisances [was] vested in the Attorney General even prior
to the adoption of our State Constitution.”); Greenough v. Industrial Trust
Co., 82 A. 266, 266 (R.I. 1912) (recognizing an “information in equity brought
in the superior court by the Attorney General, in behalf of the state, to abate
a public nuisance. . .”); Engs v. Peckham, 11 R.I. 210, 212 (R.I. 1875) (finding
that a “public nuisance . . .may be proceeded against by information in equity
and be abated. . .”).
29. R.I.Gen.Laws § 42-9-5 (1993). See also R.I.Gen.Laws § 42-9-6 (1993).
30. See Pine v. Shell Oil Co., No. 92-0346B, 1993 U.S. Dist. LEXIS 21043,
at *14 (D.R.I. August 23, 1993) (wherein the Attorney General sued Shell Oil
company under public nuisance claim after a service station released
hydrocarbons into the environment, polluting ground water); Wood v. Picillo,
443 A.2d 1244, 1245 (R.I. 1982) (wherein the Attorney General sued property
owners under public nuisance as a result of chemical disposal operations at
their property and sought to have them finance cleanup and removal of toxic
wastes); Whitehouse v. New England Ecological Dev., Inc., No. 98-4525, 1999
WL 1001188, at *6 (R.I. Super. Oct. 28, 1999) (wherein the Attorney General
sued solid waste disposal company under public nuisance alleging that their
excessive disposal of out-of-state waste in Rhode Island constitutes a public
nuisance).
31. Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 59
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“unreasonable” if:
the conduct involves a significant interference with the
public health, the public safety, the public peace, the
public comfort or the public convenience, or [] the conduct
is proscribed by a statute, ordinance or administrative
regulation, or [] the conduct is of a continuing nature or
has produced a permanent or long-lasting effect, and, as
the actor knows or has reason to know, has a significant
effect upon the public right.32
In considering the elements a plaintiff would have to prove in
order to establish that some instrumentality was an unreasonable
interference with a right common to the general public, the Rhode
Island Supreme Court noted that “liability in nuisance is
predicated upon unreasonable injury rather than unreasonable
conduct.”33 Therefore, pursuant to Rhode Island precedent, the
plaintiff bringing the nuisance claim must “demonstrate the
existence of the nuisance, and that injury has been caused by the
nuisance complained of.”34
Public nuisance law also addresses the issue of liability. The
social impact and the benefits of living in an ordered society
require those who do harm that rises to the level of a public
nuisance to remediate that harm to the public, even if it that
harm was done innocently. In order to prove liability for the
nuisance, the State had to show that the Defendants participated
in creating or maintaining the public nuisance, not that lead
pigment was a defective product or that Defendants’ participation
in creating or maintaining the public nuisance was tortious. Here,
the trial court adopted the Restatement (Second) of Torts, section
834 at 149: “One is subject to liability for a nuisance caused by an
activity, not only when he carries on the activity, but also when he
(R.I. 1980) (citing Copart Industries, Inc. v. Consolidated Edison Co., 362
N.E.2d 968, 971 (N.Y. 1977)).
32. RESTATEMENT (SECOND) OF TORTS § 821B (1979).
33. Wood, 443 A.2d at 1247. See also Braun v. Iannotti, 175 A. 656, 657
(R.I. 1934) (“‘[i]n cases of damages by nuisance it is considered that the
injurious consequences resulting from the nuisance, rather than the act
which produces the nuisance, is the cause of action. . .’” (internal citations
omitted).
34. Citizens for Pres. of Waterman Lake, 420 A.2d at 59. (internal
citations omitted).
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participates to a substantial extent in carrying it on.” 35
Significantly, liability for a public nuisance is not premised on
tort-based notions of fault or negligence. Instead, public nuisance
is more akin to a strict or absolute liability claim because it is not
fault-based. As the Rhode Island Supreme Court has found:
Distinguished from negligence liability, liability in
nuisance is predicated upon unreasonable injury rather
than upon unreasonable conduct. Thus, plaintiffs may
recover in nuisance despite the otherwise nontortious
nature of the conduct which creates the injury.
Generally, this court has not required plaintiffs to
establish negligence in nuisance actions.36
35. State of Rhode Island v. Lead Industries Ass’n, No. 99-5226, 2005 WL
1331196, at *2 (R.I. Super. June 3, 2005); State of Rhode Island v. Lead
Industries Ass’n¸ No. 99-5226, 2001 WL 345830, at *7 (R.I. Super. April 2,
2001) (quoting RESTATEMENT (SECOND) OF TORTS § 834 (1979)). In addition,
the court adopted comment (d) to § 834, which states “when a person is only
one of several persons participating in carrying on an activity, his
participation must be substantial before he can be held liable for the harm
resulting from it. This is true because to be a legal cause of harm a person’s
conduct must be a substantial factor in bringing it about.” RESTATEMENT
(SECOND) OF TORTS § 834 cmt. d (1979). The court further found that “[a]lso of
significance is the provision of comment (e) to the effect that if the activity
engaged in lead to the creation rather than to the maintenance of the
nuisance, the actor who carried on the activity ‘. . . or who participated to a
substantial extent in the activity is subject to the liability for a nuisance, for
the continuing harm.’ This is so even after he has withdrawn from the
activity and even if he is not in a position to stop the harm, or to abate the
condition.” Lead Industries Ass’n, 2005 WL 1331196, at *2. See also
RESTATEMENT (SECOND) OF TORTS, § 834 cmt. e (1979).
36. Wood, 443 A.2d at 1247-48 (internal citations omitted). See also New
York v. Shore Realty Corp., 759 F.2d 1032, 1051 (2d Cir. 1985) (finding that
liability for public nuisance exists “irrespective of negligence or fault”);
United States v. Hooker Chemicals & Plastics Corp., 722 F. Supp. 960, 968
(West. Dist. N.Y. 1989) (“‘fault is not an issue, the inquiry being limited to
whether the condition created, not the conduct creating it, is causing damage
to the public’”) (quoting State v. Schenectady Chemicals, Inc., 459 N.Y.S.2d
971, 979 (N.Y. Sup. Ct. 1983)); Concerned Citizens of Bridesburg v. City of
Philadelphia, 643 F. Supp. 713, 726 (E.D. Pa. 1986) (“At common law, neither
individuals nor municipalities have the right to maintain for any period of
time activities that constitute a public nuisance, irrespective of lack of fault
or due care.”); Branch v. Western Petroleum, Inc., 657 P.2d 267, 274 (Utah
1982) (public nuisance “is not centrally concerned with the nature of the
conduct causing the damage, but with the nature and relative importance of
the interests interfered with or invaded.”).
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This important distinction between nuisance and negligence
liability underscores the inapplicability of product liability
concepts – both affirmative requirements and defenses thereto –
to public nuisance suits.
The Rhode Island Supreme Court has recognized for almost a
century that public nuisance provides a cause of action in
environmental contamination and pollution cases. For example,
in Payne & Butler v. Providence Gas Co., our highest court
considered whether a manufacturer that polluted public and/or
private waters could be found liable for creating a public
nuisance.37 In concluding the manufacturer could be found liable,
the court stated:
any manufacturer who allows his deleterious waste
product to contaminate the waters of the State, be they
public or private, is liable to any person who is injured
thereby in his private capacity and apart from being
merely one of the public, provided he can trace to its
origin the noxious substance whereby he is damaged.38
Furthermore, in 1982, the Rhode Island Supreme Court
issued a seminal opinion considering the applicability of public
nuisance to a modern environmental contamination and pollution
case.39 Wood v. Picillo set the tone for the application of public
nuisance law to environmental hazard cases.40 In Wood, the
Attorney General commenced a private and public nuisance suit
against certain defendants who owned and maintained a
hazardous waste dump on their property.41 The Rhode Island
Supreme court held that the “essential element of an actionable
nuisance is that persons have suffered harm or are threatened
with injuries that they ought not have to bear.”42 In applying this
public nuisance law to the facts of the case, the Court upheld the
37. 77 A. 145, 151 (R.I. 1910).
38. Id. See also Braun v. Iannotti, 189 A. 25 (1937) (public nuisance
created by emitting smoke and soot from a smokestack).
39. See Tom Kuhnle, The Rebirth of Common Law Actions for Addressing
Hazardous Waste Contamination, 15 STAN. ENVTL. L. J. 187, 214-15 (1996)
(recognizing Rhode Island was one of the first states to uphold a public
nuisance claim in a modern hazardous waste contamination case).
40. 443 A.2d 1244, 1245 (R.I. 1982).
41. Id.
42. Id. at 1247- 49.
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trial court’s determination that the defendants’ conduct
constituted a public nuisance because their storage of the
hazardous and toxic waste on the defendant’s private property
posed a threat to the health of both aquatic wildlife and humans.43
Public nuisance law in Rhode Island, with its rich, wellreasoned decisions and clear holdings with respect to
environmental torts, was clearly applicable to the factual scenario
of the serious environmental and health problem facing all Rhode
Islanders from lead poisoning, especially the state’s children.
Moreover, the unique and powerful authority entrusted to the
Attorney General to bring nuisance suits to prosecute threats and
injuries against the public health, safety and welfare predated the
adoption of the Rhode Island Constitution. The Attorney General
can therefore draw from this authority to support the state’s
public nuisance claim against the lead manufacturers.
B. Legal Challenges to a Modern Application of Public Nuisance
To Lead Pigment
Despite the seemingly simple and straightforward
pronouncement of public nuisance law in Rhode Island,
defendants raised a series of seemingly endless questions
concerning the bounds of the public nuisance law. First, the Lead
manufacturers raised a host of questions at the outset of the
litigation on motions to dismiss, urging the trial court to dismiss
the complaint for following reasons: (1) these defendants cannot be
liable for a public nuisance because they are not in current control
of the property upon which the nuisance is found; (2)
manufacturers of products cannot be held liable for a public
nuisance; and (3) lead poisoning is a private, not a public, issue.44
The trial court rejected each of these arguments, permitting the
State’s claims to go forward.45
Following failed attempts to dismiss the case at the pleading
stage, the defendants also engaged in significant motion practice
throughout the litigation aimed at aborting the Attorney General’s
suit. Though the legal arguments were ultimately unsuccessful,
they provide an interesting framework for considering the
43.
44.
45.
Id. at 1248.
State v. Lead Ind. Assn., Inc., 2001 WL 345830 (R.I.Super.)
Id.
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boundaries of public nuisance law and its interplay with products
liability law. In addition to those identified above at the pleading
stage, Defendants presented the following issues to the trial court
during the course of the trial: (1) whether the Rhode Island Lead
Poisoning Prevention Act pre-empts the Attorney General’s
constitutional, statutory and common law authority to bring a
public nuisance action; (2) whether the State is required to
identify the presence of particular lead pigment on particular
walls in order to succeed in its public nuisance claim; and (3)
whether a manufacturer of a legal product can be held liable for a
public nuisance.
1.
The Defendants’ Motion to Dismiss
In lengthy written and oral arguments, the defendants raised
a host of issues seeking to dismiss the complaint in its entirety,
including the public nuisance claim. When considered in light of
prevailing public nuisance law, the trial court’s rejection of the
defendants’ arguments against the State’s public nuisance claim is
easily understood. First, public nuisance law in Rhode Island and
throughout the country squarely holds that those who either
created or contributed to the creation of a public nuisance may be
liable for that nuisance despite the fact that they are not in
physical control of the real property in question. In Friends of
Sakonnet v. Dutra, the United States Federal District Court for
the State of Rhode Island found that Rhode Island law does not
bar a public nuisance claim against a defendant that no longer
controls the property in question:
This Court has discovered no Rhode Island (or other)
precedent that bars recovery of nuisance damages simply
because the defendants no longer control the
instrumentality alleged to have caused the nuisance. If
Rhode Island courts allow suits for nuisance damages to
go forward although the nuisance itself has already been
abated, it follows that suits should be allowed . . . against
one who is alleged to have caused damages by a nuisance
even if that person no longer controls the alleged
nuisance.46
46. 738 F. Supp. 623, 633 (D.R.I. 1990) (internal citations omitted).
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The Rhode Island Supreme Court and Rhode Island’s federal
district court have applied this principle to numerous public
nuisance cases over the last century, properly concluding that a
defendant’s creation of a public nuisance renders him liable for the
resulting damages regardless of current control of the nuisance.47
For example, as early as 1910, the Rhode Island Supreme Court
recognized that a manufacturer of chemicals could be held liable
under public nuisance when their chemicals contaminated either
Although the
private or public waters in Rhode Island.48
chemical manufacturer was not in control of the private or public
waters it contaminated, the court found the manufacturer liable
for creating a public nuisance.49 Rhode Island’s application of
public nuisance liability to those who do not currently control the
real property upon which the nuisance is located is consistent with
the law across the country.50
47. Similarly, other courts have established public nuisance liability in
cases where a defendant created a nuisance on either public or private
property not controlled by the defendant. See, e.g. Anderson v. W.R. Grace &
Co., 628 F. Supp. 1219 1222 (D. Mass. 1986) (groundwater contamination);
California ex rel. California Dep’t of Toxic Substances Control v. Campbell,
138 F.3d 772, 775 (9th Cir. 1998), cert. denied, 525 U.S. 822 (groundwater
contamination); Branch v. Western Petroleum, Inc., 657 P.2d 267 (Utah 1982);
Lewis v. General Electric Co., 37 F. Supp. 2d 55, 57 (D. Mass. 1999); B&D
Molded Prodts. v. Vitek Research Corp., No. 970060362S, 1998 Conn. Super.
LEXIS 2363, at *1 (Conn. Super, August, 17 1998); New Jersey Dep’t of
Envtl. Protection and Energy v. Gloucester Envtl. Mgmt. Servs., 821 F. Supp.
999, 1012-13 (D.N.J. 1993); North Carolina ex rel. Howes v. W.R. Peele, 876
F. Supp. 733, 737 (E.D.N.C. 1995).
48. Payne & Butler v. Providence Gas. Co., 77 A. 145, 170 (R.I. 1910).
49. Id. See also Friends of the Sakonnet, 738 F. Supp. at 633-34 (finding
defendants who contaminated the waters of Rhode Island liable under public
nuisance despite the fact that the defendants exercised no control over the
polluted waters); Pine v. Shell Oil Co., 1993 U.S. Dist. LEXIS 21043, at *1415 (finding Shell Oil created a nuisance by releasing hydrocarbons into the
ground despite the fact that Shell Oil did not control the land it had polluted);
Wood v. Picillo, 443 A.2d 1244, 1248 (R.I. 1982) (holding defendants created a
public nuisance by allowing chemical wastes to contaminate surrounding
property despite the fact that defendants did not control the property that
had become contaminated).
50. According to 58 Am. Jur. 2d Nuisances § 116 (1999) (emphasis
added):
[a]s a general rule, one who creates a nuisance is liable for the
resulting damages, and ordinarily his liability continues as long as
the nuisance continues. Furthermore, liability for nuisance may be
imposed upon one who sets in motion the forces which eventually
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Second, public nuisance law simply does not grant blanket
immunity to product manufacturers. Rather, under Rhode Island
law, a public nuisance includes “behavior that unreasonably
interferes with the health, safety, peace, comfort or convenience of
the general community.”51 Further, public nuisance “[l]iability is
imposed . . . in those cases in which the harm or risk to one is
greater than he ought to be required to bear under the
circumstances.”52 No mention is made anywhere in Rhode Island
law that product manufacturers are immune from public nuisance
liability.53 As such, Defendants’ arguments for immunity do not
cause the tortious act, and all who participate in the creation or
maintenance of a nuisance are liable for injuries suffered by others
as a result of such nuisance.
See, e.g., Bubalo v. Navegar, Inc., No. 96 C 3664, 1997 U.S. Dist. LEXIS 8551,
at *13 (N.D. Ill. June 13, 1997) (“under Illinois law, liability [for a public
nuisance] may be established by demonstrating that the defendant was the
creator of the nuisance”); North Carolina ex rel. Howes v. W.R. Peele, Sr.
Trust, 876 F. Supp. 733, 741 (E.D.N.C. 1995) (“The person who creates the
nuisance is liable and that liability continues as long as the nuisance
exists.”); New Jersey Dep’t of Envtl. Protection & Energy v. Gloucester Envtl.
Mgmt. Servs., 821 F. Supp. 999, 1012-13 (D.N.J. 1993) (“It is enough for a
nuisance claim to stand that the [defendants] allegedly contributed to the
creation of a situation which, it is alleged, unreasonably interfered with a
right common to the general public.”); New York v. Fermenta ACS Corp., 608
N.Y.S.2d 980, 985 (N.Y. Sup. Ct. 1994) (“While generally nuisance actions are
brought against landowners, ‘everyone who creates a nuisance or participates
in the creation or maintenance of a nuisance are liable . . . for the wrong and
injury done thereby.’”(internal citations omitted)); Selma Pressure Treating
Co. v. Osmose Wood Preserving, Inc., 221 Cal. App. 3d 1601, 1619-20 (Cal. Ct.
App. 1990) (quoting Hardin v. Sin Claire, 115 Cal. 460, 463 (1896) (“any
person creating or assisting to create and maintain the nuisance was liable to
be sued for its abatement and for damages”); Philadelphia Elec. Co. v.
Hercules, Inc., 587 F. Supp. 144, 147-48 (E.D. Pa. 1984), rev’d on other
grounds, 762 F.2d 303 (3d Cir. 1985); Duncan v. Flagler, 132 P.2d 939, 940
(Okla. 1942) (“the general rule is stated that all those who participate in the
creation . . . of a nuisance are liable to third persons for injuries suffered
therefrom”); Shurpin v. Elmhurst, 148 Cal. App. 3d 94, 101 Cal. Ct. App.
1983) (“the party or parties who create or assist in [the creation of a
nuisance] . . . [are] responsible for the ensuing damages”); Armory Park
Neighborhood Ass’n v. Episcopal Cmty. Servs., 712 P.2d 914, 920 (Ariz. 1985).
51. Citizens for the Pres. of Waterman Lake, 420 A.2d at 59 (emphasis
added).
52.Id. (emphasis added).
53. Case law from around the country reveals numerous instances in
which courts have found that manufacturers of hazardous products are liable
under nuisance law for injury caused by their products when the
manufacturers’ conduct created that public nuisance. See Chase Manhattan
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apply in the public nuisance realm.
Finally, the Defendants’ attempts to have the public nuisance
count dismissed by claiming the State is seeking damages for
interference with private rights, as opposed to public rights, are
vanquished by prior precedent from Rhode Island courts. That
prior precedent established that the presence of Lead paint in
homes in the State interferes with public rights and, therefore, is
actionable as a public nuisance. In Pine v. Kalian,54 both the trial
Bank, N.A. v. T&N PLC, 905 F. Supp. 107, 126 (S.D.N.Y. 1995) (finding that
the plaintiff could maintain an action for public nuisance against the
manufacturer of an asbestos fire-proofing spray); Page County Appliance
Center, Inc. v. Honeywell, Inc., 347 N.W.2d 171, 177 (Iowa 1984) (finding the
manufacturer of a computer system that emitted radiation materially
participated in the creation of the nuisance and could be held liable); New
York v. Fermenta ASC Corp., 616 N.Y.S.2d 701 (Sup. Ct. 1994) (finding the
manufacturer of a pesticide could be liable under public nuisance for
contamination of groundwater caused by the product) See Alaska v. Philip
Morris, Case No. 1JU-97-915CI, Transcript of Oral Argument at 5 (1st Jud.
Dist. Juneau Apr. 29, 1998) ( Oct. 9, 1998) (the court deciding the State of
Alaska had stated a claim for public nuisance by alleging “defendants
targeted and addicted minors, denied that nicotine is addictive while
manipulating nicotine levels to promote addiction, and lied about the illeffects of tobacco while suppressing safer products.”); Wisconsin v. Philip
Morris, Case No. 97-CV-328, Decision & Order at 22 (Branch 11 March 17,
1998) (finding the tobacco defendants “interfered with the public’s right to be
free of unwarranted injury and illness, and have directly caused the State to
incur substantial costs in order to lessen the negative effects of tobaccorelated health problems. . . . Accordingly, this [public nuisance] claim is
necessary . . . to provide compensation for economic injuries.”); Oklahoma v.
R.J. Reynolds, No. CJ-96-1499, Transcript at 171 (Cleveland Co. July 7, 1998)
(“to the extent that the jury finds wrongful acts such as targeting and
addicting minors, denying that nicotine is addictive, secretly manipulating
nicotine levels to promote addiction, misdirecting public opinion, misdirecting
advertising, lying about ill effects of tobacco, and suppressing the promotion
of safer products, to the extent the state can establish that and a jury finds
that those wrongful acts did occur, that can rise to the level of public
nuisance in Oklahoma.”); Montana ex rel. Mazurek v. Philip Morris, Inc., No.
CDV97-306, Memorandum & Order (1st Jud. Dist. Ct. Sept. 22, 1998); Iowa
v. Philip Morris, Inc., Co. CL 71048, Ruling (Dist. Ct. Aug 26, 1997); Puerto
Rico ex rel. Rossello v. Brown & Williamson, No. 97-1910JAF, Opinion and
Order (D.P.R. June 3, 1998); Oregon v. Philip Morris, No. 9706 04457,
Amended Order (Cir. Ct. July 6, 1998); Massachusetts v. Philip Morris, No.
96-148, Transcript (Super. Ct. Oct 22, 1997); New Mexico v. The American
Tobacco Co., No. SF 97-1235 (C), Decision (1st Jud. Cir. Ct. Feb. 3, 1998);
Mississippi ex rel. Moore v. American Tobacco Co., No. 94-1429, Judgment
(Ch. Ct. Feb. 21, 1995).
54. In Pine v. Kalian, the Attorney General filed a complaint sounding in
public nuisance against a landlord seeking the abatement of lead-based paint
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court and the Rhode Island Supreme Court found that the
presence of lead paint in a rental property was a public nuisance
“constitut[ing] a continuing, persistent hazard of lead poisoning to
members of the public who occupy such premises, especially to
children of tender years.”55 Implicit in this decision is the
determination that lead poisoning and its hazards are issues of
concern to the public health, safety and welfare, and therefore,
actionable under a public nuisance claim.56
2. The State’s Lead Pigment Suit and the Rhode Island Lead
Poisoning Prevention Act
The Rhode Island General Assembly enacted the Lead
from his rental property. The trial court in that case found that “serious
health risks to young children from exposure to lead have been clearly
established by the record in [that] case” and that the home in question
“contain[s] enough lead so as to constitute a continuing, persistent hazard of
lead poisoning to members of the public who occupy such premises, especially
to children of tender years.” No. 96-2673, 1998 WL 34090599, at *1 (R.I.
Super. Feb 2, 1998). Accordingly, the court concluded that “[t]he premises are
a public nuisance. This Court has general equitable power, as well as
statutory jurisdiction pursuant to G.L. 1956 (1997) § 10-1-1 et seq., to abate a
public nuisance upon the application of the Attorney General.” Id. at *2
(emphasis added). In affirming the trial court’s issuance of a preliminary
injunction, the Rhode Island Supreme Court concluded that “the persistence
of the continuing hazard of lead paint presents immediate and irreparable
harm to the public so long as that hazard remains unabated.” Pine v. Kalian,
723 A.2d 804, 805 (R.I. 1998). This conclusion is consistent with almost a
century of Rhode Island precedent concerning the definition and scope of
public nuisance law and is dispositive of the public nuisance count in this
action.
55. Kalian, 723 A.2d at 805. (strike out – text has been relegated to a
footnote).
56. In addition, courts from around the country have determined that a
nuisance can be both private and public, and when the aggregate of private
injuries becomes so large, the issue becomes one of public concern actionable
under public nuisance. See Armory Park Neighborhood Ass’n v. Episcopal
Community Servs., 712 P.2d 914, 917 (Ariz. 1985) (“a nuisance may be
simultaneously public and private when a considerable number of people
suffer an interference with their use and enjoyment of land. The torts are not
mutually exclusive.” (citation omitted)); Cline v. Franklin Pork, Inc., 361
N.W.2d 566 (Neb. 1985); New York v. Waterloo Stock Car Raceway, Inc., 409
N.Y.S.2d 40, 43 (Sup. Ct. 1978) (“Public also is the nuisance committed in
such a place and in such manner that the aggregation of private injuries
become so great and extensive as to constitute a public annoyance and
inconvenience, and a wrong against the community, which may be properly
the subject of a public prosecution.”); City of Virginia Beach v. Murphy, 389
S.E.2d 462, 463 (Va. 1990).
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Poisoning Prevention Act (hereinafter LPPA) in 1991 in response
to the staggering rates of childhood lead poisoning in our state.
The Legislature found that:
(1) Environmental exposures to even low levels of lead
increase a child’s risks of developing permanent learning
disabilities, reduced concentration and attentiveness and
behavior problems, problems which may persist and
adversely affect the child’s chances for success in school
and life.
(2) Childhood lead poisoning is caused by environmental
exposure to lead. The most significant sources of
environmental lead are lead based paint in older housing
and house dust and soil contaminated by this paint.
(3) Childhood lead poisoning is completely preventable.
(4) Rhode Island does not currently have a comprehensive
strategy in place for preventing childhood lead poisoning.
As a result, tens of thousands of Rhode Island’s children
are poisoned by lead at levels believed to be harmful with
most of these poisoned children going undiagnosed and
untreated.
(5) Childhood lead poisoning is dangerous to the public
health, safety, and general welfare of the people and
necessitates excessive and disproportionate expenditure
of public funds for health care and special education,
causing a drain upon public revenue.
(6) The enactment and enforcement of this chapter is
essential to the public interest. It is intended that the
provisions of this chapter be liberally construed to
effectuate its purposes.
(7) The magnitude of the childhood lead poisoning in
Rhode Island’s older homes and urban areas is a result of
approved use of lead based materials over an extended
period in public buildings and systems and private
housing that a comprehensive approach is necessary to
alleviate the cause, identify and treat the children,
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rehabilitate the affected housing where young children
reside, and dispose of the hazardous material. Rhode
Island presently does not have the public or the private
resources to handle the total problem, requiring
prioritizing on a need basis.57
Furthermore, “the express purpose of the LPPA is ‘to protect
the public health and the public interest by establishing a
comprehensive program to reduce exposure to environmental lead
and thereby prevent childhood lead poisoning, the most severe
environmental health problem in Rhode Island.’”58 Finally, the
LPPA provides that “[t]he provisions of this chapter shall be
liberally construed and shall be held to be in addition to, and not
in substitution for or a limitation of, the provisions of any other
law.”59
In another effort to shield themselves from liability for the
public nuisance, the Defendants argued at numerous times during
the litigation that the existence of the LPPA and its governance of
lead poisoning prevention and abatement interferes with or
supersedes the Attorney General’s common law public nuisance
claim. The trial court rejected this argument for several reasons.60
Specifically, the trial court found:
[L]anguage [of the LPPA] mandated the law be liberally
interpreted so as to permit the LPPA to co-exist
(consistent with its terms) with common law equity power
as to public nuisances vested in the Attorney General
even prior to the adoption of our State Constitution. The
Court further notes that the provisions of LPPA clearly in
the first instance were intended by the General Assembly
to protect the health of children and that its provisions
almost exclusively deal with owners of dwellings,
dwelling units or premises and not in any way with
manufacturers of lead pigment used in paint and coatings
or, indeed, with manufacturers or vendors of paint or
57. R.I. GEN. LAWS § 23-24.6-2 (1986).
58. State of Rhode Island v. Lead Indus. Ass’n, Inc., No. 99-5226, 2001
WL 345830, at * 5 (RI. Super. April 2, 2001) (quoting R.I.G.L. § 23-24.6-3).
59. R.I. GEN. LAWS § 23-24.6-25 (1986).
60. State of Rhode Island v. Lead Indus. Ass’n, Inc., No. 99-5226, 2003
WL 1880120, at * 2 (RI. Super. Mar. 20, 2003).
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paint products. It, of course, is the alleged manufacturers
of such pigment who, here, are the Defendants.61
This holding is in concert with the great weight of authority
in Rhode Island, where courts have frequently determined that a
condition can be regulated by statute and also declared to be a
common law public nuisance.62
3. Product Identification Is Not Required to Bring a Public
Nuisance Claim
Defendants also sought to have the public nuisance claim
dismissed wholesale arguing that the public nuisance law requires
that, as a matter of law, the State prove the existence of each
defendants’ lead pigment in particular homes and buildings
throughout the State of Rhode Island. Stated differently, the
question was whether the conduct of these defendants in
manufacturing, marketing and promoting Lead, both individually
and collectively, was sufficient to establish liability for creating a
public nuisance in the State of Rhode Island or whether lack of
product identification was fatal to the case.
Defendants urged the trial court to incorporate the
requirements and holding of Gorman v. Abbott Laboratories.63 In
that case, the Supreme Court considered personal injury cases
against multiple drug manufacturers.64 The plaintiff was unable
to identify the manufacturer of the particular drug she ingested,
and therefore relied on the market-share theory of liability to
61. Id. at *3. See also Lead Indus. Ass’n, 2001 WL 345830, at *5 (“the
express purpose of the LPPA is ‘to protect the public health and the public
interest by establishing a comprehensive program to reduce exposure to
environmental lead and thereby prevent childhood lead poisoning, the most
severe environmental health problem in Rhode Island.’ G.L.1956 § 23-24.6.3.
Accordingly, the absence of express authorization in the statute does not
constitute a separation of powers bar which absolutely precludes the
Attorney General from bringing this type of action.”).
62. See State v. Carpionato, 605 A.2d 498, 498 (R.I. 1992) (sign
maintenance statute); Bierman v. Shookster, 590 A.2d 402, 403 (R.I. 1991)
(traffic control signal maintenance statute); Citizens for Preservation of
Waterman Lake v. Davis, 420 A.2d 53, 56 (R.I. 1980) (Fresh Water Wetlands
Act); Berberian v. Avery, 99 RI. 77, 205 A.2d 579 (R.I. 1964) (Mosquito
Abatement Act); Pine v. Kalian, No. 96-2673, 1998 WL 34090599, at *3 (Sup.
Ct. Feb. Feb. 2, 1998), affd, 723 A.2d 804 (R.I. 1998).
63. 599 A.2d 1364 (R.I. 1991).
64. Id.
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escape traditional product identification requirements in product
liability suits.65 The Gorman court rejected the market-share
doctrine66 and instead required the identification of a specific
defendant in order to establish liability. 67 The lead manufacturers
argued that the Gorman court’s product manufacturer
identification requirement should be applied to Rhode Island’s
public nuisance claim, requiring the State to identify with
particularity the manufacturer of the lead pigment in each house
in Rhode Island.68
The trial court ultimately rejected the Defendants’ argument,
focusing its analysis on the distinctions between products liability
law and public nuisance law. First, the court had long recognized
that the condition alleged to be a public nuisance is the collective
presence of lead pigment in paints throughout Rhode Island. As
the court stated:
[t]he issue. . . was not as to if such pigment in any
65. Id.
66. Id. The market share doctrine was recognized by California in Sindell
v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980) in response to the causation
problems that women injured by their mothers’ ingestion of the drug DES
during pregnancy were having in seeking a remedy against the
manufacturers of that drug. These women could not identify the specific
manufacturer of the DES that their mothers had taken because the DES pills
from one manufacturer were identical to those of another manufacturer. Id.
at 936. Through market share, the California court relaxed the requirement
that an injured party must prove which manufacturer produced the actual
DES pill their mother took by allowing her to bring into the litigation the
manufacturers who represented the market for DES at the time her mother
may have ingested DES. Id. at 937. Once those manufacturers were in suit,
the burden shifted to them to prove that they did not manufacture the
product that caused the harm. Id. If liability were found, then damages
against that manufacturer would be apportioned in accordance with its share
of the market. Id.
67. Gorman, 599 A.2d at 1364.
68. The market-share defense has been effective in personal injury suits
against the lead industry. Because it is impossible for a lead poisoned child
to identify the particular manufacturer of the lead pigment he or she
ingested, numerous courts have rejected their personal injury claims and left
lead poisoned children with no redress against the lead manufacturers. See
supra, note ___. However, in July 2005, the Wisconsin Supreme Court
reversed the tide of dismissals, adopted a modified market-share theory of
liability called risk-contribution, which allows individual lead poisoned
children to sue the Lead defendants absent proof of the particular
manufacturer of lead pigment that he ingested. See Thomas ex. rel.
Gramling v. Mallett, 701 N.W.2d 523 (2005).
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particular building or group of buildings (however
numerous) constituted a public nuisance, but rather
whether the cumulative effect of all such pigment in such
properties constitutes a single public nuisance.69
Indeed, it ruled that “property specific evidence is irrelevant
in connection with the issues of whether the cumulative effect of
such pigment in all such buildings, (that is to say buildings
containing lead pigment in paint or coating), was a public
nuisance, . . .”70
Relying on two of its previous decisions in this litigation,71 the
trial court then concluded that the product identification
requirements enunciated in Gorman were inapplicable to the
State’s public nuisance claim. As the court stated, “[f]irst, and of
some significance the present case is not a products liability
case . . .”72 It then explained:
During the course of argument, defendants seemed to
read into Gorman and the other cases they cited, a
requirement for product identification in this public
nuisance case, a requirement that this Court does not
find. This is not a case where it is alleged that one
defendant out of a number of defendants (but plaintiff
cannot tell which) made a product causing injury to a
single individual but rather it is a case where it is
claimed that each of the defendants through their own
separate actions or conduct was a substantial cause of the
massive public nuisance and harms and/or injuries
resulting therefrom. What the Court does find is that if
what plaintiff contends for, that is to say that each
defendant’s conduct or activities were a proximate cause
of the public nuisance alleged, the cumulative effect of
lead pigment in buildings throughout the state
(sometimes stated as the collective presence of lead
69. State of Rhode Island v. Lead Industries Ass’n, No. 99-5226, 2004 WL
2813747, at *1 (RI. Super. Nov. 9, 2004).
70. Id. at *2.
71. See State of Rhode Island v. Lead Industries Association, No. 99-5226,
2001 WL 345830, at *7 (R.I. Super. April 2, 2001); Lead Industries Association,
2004 WL 2813747, at *1.
72. State of Rhode Island v. Lead Indus. Ass’n., 2005 WL 1331196 at *2.
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pigment in buildings throughout the state of Rhode
Island), and of injury resulting therefrom then indeed
liability of the defendants may be found. In order to prove
that causation, defendants must establish that each
defendant’s conduct was a substantial cause of the public
nuisance and that the public nuisance was a substantial
factor in causing injury to the public which injury is
subject of this action.73
Having rejected Defendants’ arguments, the court recognized
the clear distinction between products liability law and public
nuisance law. It is noteworthy that concepts from each are not
easily interchangeable, and that strict adherence to the law of
public nuisance requires an analysis distinct from product liability
concepts.74
4.
Legality of Product and Actions of Others
In addition, the defendants urged both the trial court and the
jury to reject the public nuisance claim for two reasons: (1) Lead
pigment was a legal product at the time it was applied to the walls
of Rhode Island homes and buildings; and (2) the subsequent
actions of homeowners and landlords served to immunize the
Defendants from public nuisance liability.75 These arguments
failed at the motion to dismiss stage, summary judgment stage
and failed to convince the jury at trial.
First, established law holds that it is irrelevant to a nuisance
cause of action that the conduct complained of may be legal or
even appropriate and necessary in a certain circumstance. In the
words of the United States Supreme Court, “[n]uisance may be
merely a right thing in a wrong place,—like a pig in the parlor
instead of the barnyard.”76 Other courts have subsequently
agreed, holding that the fact that a defendant’s conduct is
otherwise lawful does not preclude liability for public nuisance.77
73. Id.
74. State of Rhode Island v. Lead Indus. Ass’n, Oct. 5, 2005 Hearing Tr.
at 23 (granting plaintiff’s motion to strike Defendants’ product liability
affirmative defenses to the State’s complaint)
75. State of Rhode Island v. Atlantic Richfield Co. et al., C.A.No. 99-5226.
76. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).
77. See City of New York v. Beretta U.S.A. Corp., 315 F. Supp. 2d 256
(E.D.N.Y. 2004); N.A.A.C.P. v. AcuSport, Inc., 271 F. Supp. 2d 435 (E.D.N.Y.
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Similarly, the subsequent actions of anyone – even
homeowners and landlords – do not immunize Lead
manufacturers from liability. Instead, a jury must consider
whether those actions are superseding, intervening causes of the
harm caused by the presence of Lead.
Legally,
superseding/intervening cause is often utilized by negligent
parties to insulate them from liability for those negligent acts.
The burden of proving the defense is on the defendant, who must
demonstrate that the “intervening” actor: (1) was negligent, (2) his
negligence was the proximate cause of the plaintiff’s harm and (3)
his negligence was not a reasonably foreseeable consequence of
defendant’s original negligence.78
The third element of foreseeability is the lynchpin of the
superseding/intervening cause defense. Where, as here, a party
seeks to sever the proximate cause chain between its conduct and
the resulting injury, that party must demonstrate that the
intervening act was not foreseeable and has rendered its original
acts totally inoperable:
[A]n intervening act will not insulate a defendant from
liability if his negligence was a concurring proximate
cause which had not been rendered remote by reason of
the secondary cause which intervened. The test for
remoteness is whether the intervening act could
reasonably have been foreseen as a natural and probable
result of the original act of negligence of the defendant. If
it could have been so foreseen, the intervening negligence
is not so remote as to prevent the original act from being
considered at law as merely a concurring cause of the
injury.79
2003); United States v. Reserve Mining Co., 394 F. Supp. 233 (D. Minn. 1974);
City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004); City of
Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003);
County of Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313 (Cal. Dist.
Ct. App. 2006).
78. See Pantalone v. Advanced Energy Delivery Sys., Inc., 694 A.2d 1213,
1215 (R.I. 1997).
79. Roberts v. Kettelle, 356 A.2d 207, 215 (R.I. 1976). See also Aldcroft v.
Fidelity & Casualty Co., 259 A.2d 408 (1969); Almeida v. Town of North
Providence, 468 A.2d 915, 917 (R.I. 1983) (stating that if the intervening
cause was foreseeable to the original wrongdoer, then the “causal connection
remains unbroken” and liability remains with the original wrongdoer.);
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Furthermore, “[i]t is well settled that for an independent
intervening cause to replace a defendant’s original negligence as
the proximate cause of an accident, the original negligent conduct
must have become totally inoperative as a cause of the injury.”80On
the other hand, an unforeseeable intervening cause will break the
causal chain and allows the original wrongdoer to escape liability.
In such cases, “the intervening. . .act becomes the sole proximate
cause of the plaintiff’s injuries.”81
Courts
considering
the
affirmative
defense
of
superseding/intervening cause in the context of a public nuisance
claim have concluded:
Intervening actions between a defendant and the harm
suffered by the public, even multiple or criminal actions
taken by third parties or occurring naturally, do not
break the chain of causation if a defendant could have
expected their nature and effect. . . .[T]he causal chain is
not broken even where it is the third party that is the
most immediate causal event of the injury to the
public.”82
Instead, liability for nuisance will lie when the acts or
omissions of the Defendants “remain[] the dominant and relevant
fact[s] without which the public nuisance would not have resulted
where and under the circumstances it did,” irrespective of
intervening actions by third parties.83
Mahogany v. Ward, 17 A. 860, 861 (R.I. 1889) (“[I]f the intervening act is such
as might reasonably have been anticipated as the natural or probable result
of the original negligence, the original negligence will, notwithstanding such
intervening act, be regarded as the proximate cause of the injury, and will
render the person guilty of it chargeable.”); Walsh v. Israel Couture Post, No.
2274 V.F.W. of the U.S., 542 A.2d 1094, 1097 (R.I. 1988) (“[A]n intervening
act. . .will not insulate an original tortfeasor if it appears that such
intervening act is a natural and probable consequence of the initial
tortfeasor’s act.”).
80. Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827, 830 (R.I.
1986) (citing Roberts, 356 A.2d 207) (emphasis added).
81. Almeida, 468 A.2d at 917.
82. N.A.A.C.P., 271 F. Supp. 2d at 494.
83. Commonwealth v. Barnes & Tucker, 353 A.2d 471, 479 (Pa. Commw.
Ct. 1976), aff’d 371 A.2d 461 (Pa. 1977). See also United States v. Hooker
Chems. and Plastics Corp., 722 F. Supp. 960, 968 (W.D.N.Y. 1989) (rejected
argument that causal connection between defendant’s conduct and the nuisance
“was broken by independent acts of other parties which constituted superseding
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In conformity with this law, the trial court instructed the
jury:
[i]n determining whether the acts of others constitute an
intervening superseding cause, you must consider
whether the conduct of the defendants, or any of them,
created or increased a foreseeable risk of harm through
the intervention of such others’ acts. If defendants’
conduct created or increased the foreseeable harm, risk of
harm, through the intervention of the subsequent actor,
then the intervening acts cannot be said to be an
intervening superseding cause and defendants will not
have proved their assertion.84
The court further instructed the jury:
[t]he act or failure to act by a defendant need not be
intentional or negligent to impose liability for creating a
public nuisance. Rather, the fact that the conduct which
caused the public nuisance otherwise is lawful or has not
been made unlawful does not preclude liability where
that conduct nevertheless results in the public
nuisance.”85
Jurors reported that these two issues – legality of the product
and the conduct of others – were factors in their decision. In fact,
for some, Defendants’ arguments that the product was legal and
that the faults lie with landlords and homeowners had social and
philosophical appeal.86 But the justice system prevailed, and
jurors reported that they were able to put aside their philosophical
or political biases and apply the law to the facts.87 When applying
causes” when defendant’s conduct “‘remains the dominant and relevant fact
without which the public nuisance would not have resulted where and under the
circumstances it did.’”).
84. State of Rhode Island v. Atlantic Richfield Co. et al., C.A.No. 99-5226,
Jury Instructions.
85. Id.
86. See Krouse, supra note 16, at A1 (noting that one of the jurors
originally “wanted to let the paint-company defendants off the hook. He
wanted to blame slumlords for the dangers of lead paint in Rhode Island
homes, not the firms that prosecutors claim made the pigment decades ago.”);
Lord, supra note 2, at B1 (reporting that one juror said that “‘[s]ome of us
thought a big part of the problem was poor maintenance’” and another said
that “‘[m]ost of use wanted to blame the landlords.’”).
87. One law professor who commented on the trial to the Cleveland
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the law regarding superseding/intervening cause, the jurors
ultimately “agreed that regardless of what the landlords did, the
harm began with the companies distributing toxic paints.”88 On
the issue of the legality of the product, jurors also reported that
they strictly adhered to the law as enunciated by the trial court.
One juror who was affected by the argument reported:
after rereading the judge’s instructions, it became clear to
him that the paint – even if applied decades ago – had
caused harm and that it had interfered with the rights of
children to be safe in their own homes. The fact that the
pigment makers had not broken any laws did not
preclude a finding of liability, according to the judge, nor
did the contributions of lousy landlords to the problem.89
Despite all of these challenges to the modern application of
public nuisance law to the situation created and maintained by
the Defendants in Rhode Island because of their manufacture,
sale, promotion and marketing of lead, the State successfully
presented its case to the jury.
II. THE SIGNIFICANCE OF THE JURY’S VERDICT FOR THE STATE’S CLAIM
AGAINST THE LEAD PAINT MANUFACTURERS
Armed with this public nuisance law, the jury sifted through
the testimony of twelve witnesses and numerous documents
admitted into evidence over eight days. Included in the witnesses
were four medical/scientific experts,90 three State public health
Plain-Dealer questioned “how lead paint can be ruled a public nuisance
without taking into account the lack of home maintenance that contributes to
the problem.” Krouse, supra note 16, at A1. However, the record reveals that
in this case, the lack of maintenance defense was presented to the jury,
covered in the jury instructions and ultimately rejected by the jury because it
did not satisfy the legal requirements of a superseding, intervening cause
affirmative defense. Thus any such criticism of the verdict is without
foundation in facts of this case and is best attributed to the spin generated by
the defendants after the verdict.
88. Lord, supra note 2, at B-4.
89. Peter Krouse, Verdict Raises Risk for Paint Companies, The
Cleveland Plain-Dealer, April 2, 2006 at A1.
90. The four medical/scientific experts were Dr. Philip Landrigan, Ms.
June Tourangeau, Dr. Michael Shannon, and Dr. James Girard.
Dr. Philip Landrigan received his M.D. from Harvard University in 1967.
Dr. Landrigan has been on the forefront of childhood lead poisoning research
and prevention efforts for over thirty years. During this time he has worked
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experts or officials,91 three historians,92 and two experts in
at or consulted with the United States Public Health Service, the Centers for
Disease Control and the Environmental Protection Agency on issues related
to childhood lead poisoning. Dr. Landrigan is board certified in Pediatrics,
Preventative and Occupational & Environmental Medicine and is a member
of the American Academy of Pediatrics, the American Medical Association
and the American Public Health Association. Dr. Landrigan has conducted
extensive research and written numerous peer reviewed articles on the
subject of childhood lead poisoning.
Ms. June Tourangeau is a Licensed Practical Nurse who has served lead
poisoned children in Rhode Island since 1978. Ms. Tourangeau is also a
Licensed Lead Inspector and Certified Lead Technician. Ms. Tourangeau
developed the model childhood lead poisoning case management system for
the State of Rhode Island and has investigated hundreds of homes and
hundreds of lead poisoning cases over the past decade.
Dr. Michael Shannon holds an M.D. from Duke University, an M.P.H.
from the University of North Carolina and is board certified in pediatrics,
emergency medicine, and medical toxicology. Dr. Shannon currently serves
as Chief of Emergency Medicine at Boston Children’s Hospital and as Chair
of the American Academy of Pediatrics Committee on Environmental Health.
During his illustrious career, Dr. Shannon has conducted extensive research
and authored many articles on childhood lead poisoning, and has personally
treated over 5,500 lead poisoned children.
Dr. James Girard received his Ph.D. in Chemistry from Penn State
University in 1971. Dr. Girard is a Professor of Chemistry and the Chairman
of the Chemistry Department at American University in Washington, D.C.,
where he instructs students on government approved methods for analyzing
materials in the environment including lead in paint.
91. The three public health officials were Dr. Patricia Nolan, Mr. Dean
Albro, and the Honorable David Cicilline.
Dr. Patricia Nolan holds an M.S. in Public Health, an M.D. from Magill
University and is board certified in Public Health. A public health servant
for over 30 years, Dr. Nolan served as the Director of the Department of
Health for the State of Rhode Island from 1995-2005. During her time as
Director, the Department of Health spearheaded a statewide cooperative
effort that resulted in a significant reduction in both the incidence and
prevalence of childhood lead poisoning in Rhode Island.
Mr. Dean Albro received a B.S. in Resource Development from the
University of Rhode Island in 1977. Since 1996, Mr. Albro has served as
Chief of the Office of Compliance and Inspection for the Rhode Island
Department of Environmental Management where among his primary
responsibilities, Mr. Albro is responsible for enforcing DEM Air Regulation
24, the rules and regulations related to exterior lead-based paint removal in
Rhode Island.
Mayor David Cicilline holds a B.S. in Political Science and a J.D. from
Georgetown University Law Center. Since 2002, Mayor Cicilline has served
as Mayor of the City of Providence and has made lead poisoning prevention a
priority of his administration. In so doing, Mayor Cicilline directed the
preparation of the Consolidated Plan for the City of Providence 2005-2010
which addresses elimination of childhood lead poisoning within the City of
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identifying and remediating lead paint and lead paint hazards.93
Providence.
92. The three historians were Dr. Gerald Markowitz, Dr. David Rosner,
and Dr. Michael Kosnett.
Dr. Gerald Markowitz received his Doctorate in History from the
University of Wisconsin in 1971. He currently serves as an Adjunct Professor
of Sociomedical Sciences at Columbia University and as a Distinguished
Professor of History at John Jay College of Criminal Justice. Dr. Markowitz,
in conjunction with Dr. David Rosner, has dedicated himself to the study of
the history of the conduct of the members of the lead pigment industry,
involving the systematic review of hundreds of thousands of pages of
historical, scientific and corporate documents from numerous sources. As a
result, Dr. Markowitz has published numerous articles and books on lead
poisoning, including the award winning book “Deceit & Denial - The Deadly
Politics of Industrial Pollution.”
Dr. Markowitz has given numerous
presentations on the conduct of the members of the lead pigment industry
before such esteemed organizations as the American Public Health
Association and the Wisconsin State Department of Health.
Dr. David Rosner holds a Ph.D. in the History of Science from Harvard
University and an M.S. in Public Health from the University of
Massachusetts. Dr. Rosner currently serves as a Professor of History and
Public Health of Sociomedical Sciences at Columbia University, and as an
Adjunct Professor of Community Medicine and the Director for the Center for
the History of Ethics in Public Health at Mt. Sinai School of Medicine.
Together with Dr. Gerald Markowitz, Dr. Rosner has dedicated himself to the
study of the conduct of the members of the lead pigment industry, the results
of which he has presented before numerous organizations including Yale
University, Columbia University, NYU, Johns Hopkins, Centers for Disease
Control and the National Institute of Public Health. Dr. Rosner has authored
dozens of articles and books, including his work as co-author of the award
winning book “Deceit & Denial - The Deadly Politics of Industrial Pollution.”
Dr. Michael Kosnett holds an M.D. from the University of California, San
Francisco, an M.S. in Public Health and Toxicology from Berkeley and a B.S.
from Yale University. Dr. Kosnett is board certified in Medical Toxicology,
Preventative and Occupational & Environmental Medicine and is a Professor
at the University of Colorado, School of Medicine. Dr. Kosnett has over 20
years experience treating hundreds of lead poisoned children.
93. The two lead paint experts were Mr. Frank King and Ms. Bonnie
Cassani.
Frank King has been a Registered Rhode Island General Contractor
specializing in lead hazard abatement for over 20 years. In 1993, Mr. King
was among the first contractors in the State of Rhode Island to become a
Licensed Lead Hazard Reduction Contractor. Since 1993, as President and
Owner of KRA, Inc., Mr. King has performed lead hazard reduction services
on over 1,500 properties within the State of Rhode Island.
Ms. Cassani is the sole proprietor of Northeast Lead Management, a
company organized to conduct lead-based paint inspections and based in
Rhode Island. In 1993, Ms. Cassani became the first Master Environmental
Lead Inspector in Rhode Island, and today, is one of only two Master
Environmental Lead Inspectors in Rhode Island. During her career, Ms.
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Each of these witnesses was called by the State because the
defendants surprisingly called not a single witness to counter the
testimony of the State’s experts.94 These witnesses presented the
following statistical evidence from 2004: (1) 172 children were
significantly lead poisoned,95 (2) 1,167 children had elevated blood
lead levels96 and (3) every city and town in Rhode Island, with the
exception of Gloucester, had a lead poisoned child that year.97 The
witnesses pointed out that because of the larger number of older
houses throughout the state, the risk of lead poisoning occurring
statewide is significant.98
The statistics also have an economic impact, not only because
of the numbers of kids poisoned and the irreversible damage
suffered by those children,99 but also because of the reduction in
earning capacity such poisoning causes.100 In addition, childhood
lead poisoning causes burdens on society because taxpayer dollars
are used to defray medical costs, relocation costs, and special
education costs for lead poisoned children.101 This economic
impact is especially acute because even very low levels of lead can
negatively influence the child’s nervous system development and
Cassani has inspected thousands of homes, schools, daycare centers and
other buildings in Rhode Island for lead hazards.
94. The jurors’ response to the defendants’ decision to present no
witnesses at trial was reported in newspapers, many of which considered the
surprising litigation tactic to be a factor in the Lead industry’s defeat.
According to the New York Times, one factor in the loss may have been “the
courtroom-strategy battles among the defense lawyers, and their hubris from
never having lost a lawsuit before.” Julie Creswell, The Nuisance That May
Cost Billions, The New York Times Sunday Business, April 2, 2006 at Section
3. Furthermore, “[t]here of the six jurors interviewed for this article . . . said
they had been surprised and disappointed that the defense did not offer any
witnesses to rebut the State’s central allegation: That simply by having been
in the business of making lead-based paint, companies contributed to what is
now a pervasive public nuisance. ‘They could have brought their own
witnesses up there,’ the jury’s foreman, Gerald Lenau, said. ‘The fact is, the
person you hear last does leave a lasting impression, but maybe they couldn’t
dispute anything.’”). Id.
95. Trial testimony (direct) of Dr. Patricia Nolan, Nov. 14, 2005 at 67-70.
96. Id.
97. Id. at 70-72.
98. Id. at 72.
99. Id. at 8.
100.Id. at 20.
101.Id. at 21-22.
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educational and intellectual outcomes.102
On the issue of liability, the State presented evidence to the
jury on each defendant’s acts and omissions that substantially
contributed to the public nuisance in Rhode Island. It was based
on these facts that the jury applied the law on liability for a public
nuisance, finding that defendants NL Industries, Inc., Millennium
Holdings, LLC and The Sherwin-Williams Company were liable
for the nuisance.103 Key evidence and allegations against NL
Industries, Inc. included:
• Manufactured Lead from 1891 until 1975;104
• Promoted lead in paint as safe even though it knew
that pure white lead paint in fact was not safe;105
• Failed to recommend that homeowners be educated
about the toxicity of Lead in paint;106
• Fought regulations to include warnings or labels on its
products that contained Lead;107
• Sold and promoted Lead in Rhode Island.108
Key evidence against The Sherwin-Williams Company was:
• Manufactured Lead from 1904 until 1971;109
• Made no effort to keep Lead pigment from being used
on buildings in Rhode Island;110
• Sold and promoted in Rhode Island when it had actual
knowledge concerning childhood lead poisoning;111
• Continued to sell Lead for use in paint knowing it
102.Id. at 49.
103.The jury did not find that defendant Atlantic Richfield Company was
liable for the nuisance because of their ten year involvement in the industry.
See Lord, supra note 2, at B1.
104.Trial Tr. Nov. 16, 2005 (pm) at 45
105.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at
29-30.
106.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at
29-30.
107.Trial testimony (redirect) of Professor Gerald Markowitz, Dec. 15,
2005 at 8-11.
108.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at
77.
109.Trial Tr. Nov. 16, 2005 (pm) at 45-46.
110.Trial testimony (redirect) of Professor David Rosner, Jan. 20, 2006
(pm) at 65.
111.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at
77-78.
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could poison kids.112
Key evidence against Millennium Holdings, LLC (predecessor
Glidden) included:
• Manufactured Lead from 1924 to 1958;113
• Promoted Lead in paint as safe despite knowledge of
the hazards;114
• Consistently marketed its non-Leaded paints as safe
alternatives to Lead paints;115
• Used advertisements that did not contain warnings of
Lead paint hazards;116
• Sold and promoted Lead products in Rhode Island.;117
• Had actual knowledge of childhood lead poisoning
from Lead pigment at the time it manufactured such
pigment.118
Key evidence against Atlantic Richfield (predecessor International
Smelting and Refining Company) included:
• Manufactured Lead from 1936 until 1946;119
• Never warned parents of the source of the poison for
childhood lead poisoning in the 1920s, 30s, 40s, 50s,
60s and beyond;120
• Fought regulations to include warning labels on its
harmful products.121
The witnesses also provided evidence against all the
defendants that implicated the industry as a whole for
112.Trial testimony (direct) of Professor Gerald Markowitz, Dec. 12, 2005
at 46.
113.Trial testimony (redirect) of Professor David Rosner, Jan. 20, 2006
(pm) at 64
114.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at
31.
115.Trial testimony (redirect) of Professor David Rosner, Jan. 20, 2006
(pm) at 43.
116.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at
22)
117.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at
77.
118.Trial testimony (direct) of Professor Gerald Markowitz, Dec. 12, 2005
at 47.
119.Trial Tr. Nov. 16, 2005 (pm) at 43 - 44
120.Trial testimony (redirect) of Professor Gerald Markowitz, Dec. 16,
2005 at 60-61.
121.Trial testimony (direct) of Professor Gerald Markowitz, Dec. 12, 2005
at 27 – 30).
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contributing to this public nuisance. First, adequate alternatives
to lead pigments existed as early 1922.122 Second, each defendant
was responsible for supplying Lead to thousands of paint
makers.123 Third, these Defendants’ total market share was
significant: ranging from 50 to 75% for dry white lead and 70 to
80% for white lead-in-oil.124 Finally, the Defendants’ trade
association, the Lead Industries Association (hereinafter “LIA”),
regularly sent medical articles on childhood lead poisoning to its
members while all defendants were members.125 The LIA acted as
the Defendants’ pseudo-lobbyist by monitoring legislation on
behalf of all its members and aggressively taking steps to void any
legislation that would restrict lead pigment use.126
The reasons reported in the press for the jury’s verdict were
consistent with the law as laid out in the trial court’s jury
instructions. First, the jury determined that the presence of Lead
pigment in paints throughout Rhode Island was a public nuisance.
One juror likened the effects of lead to a “‘ripple effect’ of
harm . . .[i]t wasn’t just the poisoned children who suffered but
also their parents and the agencies that had to spend money on
the problem.”127 Another reported that “it became clear to him
that the paint – even if applied decades ago – had caused harm
and that it had interfered with the right of children to be safe in
their own homes.”128
The jury next decided that three of the four defendants named
in the lawsuit were liable for the public nuisance. As one juror
stated, “‘The paint on the walls in Rhode Island didn’t magically
appear. If they didn’t do it, who did?’”129 That same juror also
commented, “[t]he state said the companies manufactured and
sold 80 percent of the paint sold in the country. It was up to the
122.Trial Testimony (direct) of Professor James Girard, Nov. 7, 2005
(am) at 28-35; Nov 8, 2005 (pm) at 57.
123.Trial Testimony (direct) of Professor David Rosner, Jan. 12, 2006 at
25-26.
124.Trial Testimony (direct) of Professor David Rosner, Jan. 12, 2006 at
24-27.
125.Trial testimony (direct) of Professor Gerald Markowitz, Dec. 12, 2005
at 35.
126.Trial testimony (direct) of Professor Gerald Markowitz, Dec. 12, 2005
at 13-17.
127.Peter Krouse, supra note 16, at A1.
128.Id.
129.Creswell, supra note 17.
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paint companies to say no, but they didn’t furnish us with that.
All they had to say was no, but they did not because I don’t think
they could.”130
The final question the jury had to consider was whether the
liable defendants were required to abate the nuisance.131 That
decision, reported the jury foreman, was made quickly after the
findings of public nuisance and liability.132 But although that
determination was made quickly, the ramifications of the
abatement decision are far-reaching.
First, in order to implement the jury’s order of abatement, the
trial judge has to determine the manner in which abatement
should take place. Prior to the trial, the court determined that:
the question of whether defendants or any of them shall
be required to abate or to otherwise provide nonmonetary relief as prayed by plaintiff shall be determined
by the jury. In the event that such relief is ordered by the
jury, this Court will conduct appropriate hearings, if
necessary, from time to time and fashion such orders as
under the circumstances might be appropriate in order to
implement any judgment of abatement rendered by the
jury.133
130.Id.
131.Since the outset of this case, the State has been clear that it was
seeking as part of its remedy for the public nuisance, the equitable remedy of
abatement. In its Complaint, the State sought relief in the form of an order
and judgment against Defendants, jointly and severally for
“funding of a public education campaign relating to the continuing
dangers posed by Lead, and for funding of lead-poisoning detection and
preventative screening programs in the State; [] [j]udgment ordering the
Defendants to detect and abate Lead in all residences, schools, hospitals, and
public and private buildings within the State accessible to children; [] [a]n
order awarding the State such other extraordinary, declaratory and/or
injunctive relief as permitted by law or equity as necessary to assure that the
State has an effective remedy; and [] [f]or such other and further relief as the
Court deems equitable, just, and proper.”
Complaint, Oct. 29, 1999; Second Amended Complaint, Mar 7, 2002.
132.Lord, supra note 2, at B4.
133. State of Rhode Island v. Lead Indus. Ass’n, Hearing Tr. Oct. 17,
2005 at 7-10. In reaching this decision, the trial court relied on Hudson v.
Caryl, 44 NY 553, 555 (N.Y.Ct.App. 1871), a matter heard “in the days of
yore,” for the principle that “‘[t]he action when brought for the double object
of removing the nuisance and recovering the damages occasioned by it was
always tried by jury. The ancient remedy was by a size of nuisance
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The singular question still pending before the trial court is
the manner in which the defendants must be required to abate the
public nuisance found by the jury. At this time, the State has
requested that the trial court appoint a Special Master pursuant
to Rule 53 of the Rhode Island Rules of Civil Procedure134 who is
charged with designing an abatement plan that is consistent with
the evidence in this case and the public health needs. Specifically,
the State requests that the court:
(1) appoint a Special Master with specialized knowledge in
the public health issues of lead abatement and lead poisoning
prevention;
(2) ask that the Special Master consider and answer specific
questions that would be relevant to assist the Court in
determining the manner in which the abatement will be carried
out;
(3) authorize the Special Master to solicit factual information
and professional opinions on the manner, method, timing, cost and
sequencing of the abatement of this nuisance; and
(4) authorize the parties to review and comment on the
Special Master’s answers to the questions framed by the Court.135
Significant legal precedent exists for the appointment of a
special master to devise and oversee a remedial program.136 For
demanding the sheriff to summon a jury and view the premises. And if the
jury found for the plaintiff, he was entitled to judgment of two things. First,
to have the nuisance abated; and second, to recover damages.’” This Court
further found that, “[t]he plaintiff here, in view of the Court, has pleaded a
case, and the discovery that the Court has had an opportunity to review,
indicates that if an alleged nuisance is found, such nuisance in fact and in
law would be abatable.” State of Rhode Island v. Lead Indus. Ass’n, Hearing
Tr. Oct. 17, 2005 at 7-10.
134.Under Rule 53(a), “[t]he court may appoint a special master in any
appropriate action which is pending therein. As used in these rules, the word
“master” includes a referee, an auditor, an examiner and any other individual
or entity possessing such special expertise sufficient to serve the purpose or
purposes for which a master may be appointed under this rule.”
135.See Plaintiff’s Position Paper Concerning Hiring of a Special Master
To Assist in the Implementation of the Jury Verdict Ordering Abatement,
filed March 31, 2006 at 2.
136.See Margaret G. Farrell, Special Masters, in Reference Manual on
Scientific Evidence, FED. JUDICIAL CTR. 590 (1994) (“Expert masters
appointed after a finding of liability in environmental and institutional
reform litigation often advise the court by making recommendations for
detailed remedial orders or amendments to such orders in periodic reports
based on their own expertise.”)
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example, special masters have been appointed in similar cases to
supervise the affirmative abatement of a nuisance.137 This use of
a special master to assist in the abatement of a public nuisance is
also in accord with well- established precedent. For example,
special masters have been employed in school desegregation cases
to help fashion an appropriate remedy and to oversee the
implementation of that remedy:
[I]t is a fact that public law litigation often places a trial
judge in a position where his role is necessarily somewhat
different from that performed in more traditional cases.
This is especially true in the remedial phase of a school
desegregation or institutional reform case. School and
institutional financing and administration are subjects
with which few judges have more than a passing
familiarity. Yet, when litigation exposes constitutional
violations in public institutions a court of equity must
take steps to eliminate them. In accomplishing this
result trial courts frequently issue orders which require
fundamental changes in the administrative and financial
structures of the institutions involved. In order to
accomplish these ends with fairness to all concerned a
137.See State v. Patrick, 1990 WL 83402, *4 (Tenn. Crim. App., June 20,
1990) (recognizing the power of a court sitting in equity to “be creative in
solving this problem [of abatement]” and that “a special master could be
appointed to monitor the [abatement].”); Gwinnett County v. Vaccaro, 376
S.E.2d 680, 682 (Ga. 1989) (in public nuisance action finding “no error in
either the trial judge’s appointment at county expense of a monitor to
supervise the necessary cleanup efforts at the Yellow River plant or in the
order of other measures which require expenditures.”); Custred v. Jefferson
County, 360 So.2d 285, 288 (Ala. 1978) (wherein trial court interrupted trial
to appoint an independent special master to study and research the condition
of water in stream and lake alleged to be a public nuisance and to render a
report thereon).
In addition, there are numerous examples of public nuisance cases in
which special masters were employed for other purposes. See, e.g., New
Jersey v. City of New York, 283 U.S. 473, 473 (1931) (recognizing a court’s
authority to appoint a special master to receive evidence and render a report
in public nuisance case); N.A.A.C.P. v. Acusport Corp., 216 F. Supp. 2d 59, 59
(E.D.N.Y. 2002) (appointing special master in public nuisance suit to resolve
discovery dispute); Charleston Comm. for Safe Water v. Commissioners of
Pub. Works, 331 S.E.2d 371, 371 (S.C. Ct. App. 1985) (using special master to
receive evidence in a public nuisance case); Mercer v. Keynton, 163 So. 411,
413 (Fla. 1935) (same).
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judge in equity has inherent power to appoint persons
from outside the court system for assistance.138
Finally, in addition to the clear authority imparted to the trial
court by Rule 53, a court also has the ability to appoint a Special
Master pursuant to its inherent equitable powers. Specifically,
abatement of a public nuisance requires the Court to utilize its
inherently flexible powers to fashion an appropriate remedy. The
“essence of equity jurisdiction has been the power . . . to mould
each decree to the necessities of the particular case.”139
Furthermore, the Court’s equitable powers are even broader and
more flexible when considering equitable issues implicating the
public interest. In Porter v. Warner Holding Co.,140 the United
States Supreme Court recognized that “since the public interest is
involved in a proceeding of this nature, those equitable powers
assume an even broader and more flexible character than when
only a private controversy is at stake.”141 Pursuant to these
equitable powers, the Court may appoint a person to assist in
administering an equitable remedy.142
138.Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 743 (6th Cir. 1979).
See also Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F. Supp. 1291,
1313 (W.D.N.C. 1969), vac. on other grounds, 431 F.2d 138 (4th Cir.), on
remand, 318 F.Supp. 786 (1970), aff’d, 402 U.S. 1 (1971) (the district court
appointing a special master who was an expert ‘consultant’ in educational
administration “to prepare immediately plans and recommendations to the
court for desegregation of the schools.”); Hart v. Cmty. Sch. Bd. of Brooklyn,
383 F. Supp. 699, 765 (E.D.N.Y. 1974) (court noting that “[m]asters to
determine remedies after liability has been determined by the court . . . have
been particularly useful.”).
139.Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). See also Texaco
Puerto Rico, Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 874 (1st Cir. 1995)
(“This emphasis on the particulars of each individual case is consistent with the
central feature of equity jurisdiction: ‘the ability to assess all relevant facts and
circumstances and tailor appropriate relief on a case by case basis.’” (quoting
Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 321 (1st Cir. 1989)); Lussier
v. Runyon, 50 F.3d 1103, 1110 (1st Cir.1995) (stating that “the hallmarks of
equity have long been flexibility and particularity”).
140.328 U.S. 395, 398 (1946) (citing Virginian R. Co. v. System Fed’n,
300 U.S. 515, 552 (1937)).
141.See also United States v. First Nat’l City Bank, 379 U.S. 378, 383
(1965) (“‘Courts of equity may, and frequently do, go much farther both to give
and withhold relief in furtherance of the public interest than they are accustomed
to go when only private interests are involved.’”).
142.See Warwick Sch. Comm. v. Warwick Teachers’ Union Local 915, 613
A.2d 1273, 1276 (R.I. 1992) (Court “may appoint one or more special masters
or mediators to assist in the implementation and facilitation of such
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If the special master is appointed, the State has set forth the
parameters of the abatement it will seek. Contrary to the
erroneous statement and reports that the State is seeking full
scale removal of all lead paint from all buildings in the State of
Rhode Island,143 the State instead seeks an order requiring
Defendants to administer and operate programs for the citizens of
Rhode Island that would “assist in the remediation and abatement
of lead-based paint and/or lead-based paint hazards in properties
in which they own or reside.”144
If successful in implementing this statewide abatement of
lead pigments in paints, the result of the prolonged Rhode Island
litigation will be to ensure the future for successive generations.
Children will no longer have to be lead detectors; no child will face
an uncertain future as a result of childhood lead poisoning;
parents and homeowners will be provided with the tools necessary
to inactivate a known toxin in their homes and protect not only
their own children, but every child that comes to live in that home.
In the words of a long-term lead poisoning prevention advocate in
Rhode Island:
“We are absolutely thrilled,” said Roberta Hazen
Aaronson, executive director of the Childhood Lead
Action Project, an advocacy group for lead-poisoned
children. “Sometimes in this not so friendly world, the
negotiations.”); Ruiz v. Estelle, 679 F.3d 1115, 1161(5th Cir. 1982), rev’d on
other grounds, (“rule 53 does not terminate or modify the district court’s
inherent equitable power to appoint a person, whatever be his title, to assist
it in administering a remedy. The power of a federal court to appoint an
agent to supervise the implementation of its decrees has long been
established. Such court-appointed agents have been identified by “a confusing
plethora of titles: ‘receiver,’ ‘Master,’ ‘Special Master,’ ‘master hearing officer,’
‘monitor,’ ‘human rights committee,’ ‘Ombudsman,’ “ and others. The function
is clear, whatever the title.”); United States v. Connecticut, 931 F. Supp. 974,
984 (D. Conn. 1996) (“[b]eyond the provisions of [Fed.R.Civ.P. 53] for
appointing and making references to Masters, a federal district court has the
inherent power to supply itself with [a special master] for the administration
of justice when deemed by it essential.” (quoting Ruiz v. Estelle, 679 F.2d
1115, 1161 (5th Cir. 1982)).
143.See Peter B. Lord, R.I. Sets Costs of Lead Clean-Up, THE PROVIDENCE
JOURNAL, April 5, 2006 at A2 (wherein it was reported that “[t]he paint
companies insist the state is going beyond state and federal policies that call
for making homes lead-safe, rather than lead-free.”).
144.Plaintiff’s Response to Defendants’ Interrogatories, Dated November
30, 2004.
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Goliaths are defeated and justice triumphs. This
precedent-setting decision feels like a home run for the
families devastated by lead poisoning and for a
community that has borne the cost of this industry-made
public health disaster.”145
III. NATIONAL TREND APPLYING PUBLIC NUISANCE LAW TO
LEAD PIGMENT CASES
The Rhode Island verdict could presage a national trend
toward greater protection of lead poisoned victims. While the
Defendants and those critical of the Rhode Island suit have
claimed that the suit is “bizarre” and “quirky,”146 the reality is
that the law and the facts of this case are equally applicable in
other jurisdictions. In the last year alone, , courts in New Jersey,
Wisconsin and California have all affirmed a governmental
entity’s right and obligation to bring a suit on behalf of the public
in order to remedy the public nuisance caused by the presence of
lead pigment in paint on buildings in those states. In addition,
the Supreme Court of Wisconsin has also affirmed the right of an
individual lead poisoned child to sure the lead pigment industry
notwithstanding his inability to identify the manufacturer of the
particular lead pigment he ingested. Each of these decisions
signals a change in the landscape of lead pigment litigation, and
sends a clear message to these and other possible defendants that
they will be held accountable for their actions.
A. New Jersey
In 2000, twenty-six cities and towns in New Jersey brought
suit against manufacturers, sellers, and promoters of lead
pigment seeking to recover costs for detecting and removing lead
paint, providing medical care to lead-poisoned residents and for
developing educational programs. Plaintiffs sought to recover
these expenses through claims based on public nuisance and
145.Peter B. Lord, 3 Companies Found Liable in Lead-Paint Nuisance
Suit, THE PROVIDENCE JOURNAL, Feb. 23, 2006, at A-1.
146.Creswell, supra note 16 (“Three defense lawyers interviewed for this
article said that this was one of the most bizarre lawsuits and trials of their
careers. They blame what they call Rhode Island’s quirky public nuisance
laws.”)
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several other claims. On November 4, 2002, the motion judge
granted defendants’ omnibus motion to dismiss.147 On August 17,
2005, the New Jersey court reversed the motion judge’s dismissal
of the public nuisance cause of action, finding that a municipal
body has a common law right to abate a nuisance by summary
proceedings.148 In addition the court concluded, as the Rhode
Island Superior Court did, that a common law public nuisance
claim
[W]ould not subvert the goals of the [New Jersey] Lead
Paint Statute, and, in fact, such action would foster those
goals. Each remedial tool looks to different responsible
parties. The Lead Paint Statute imposes a duty of
abatement on property owners, while this civil action
demands that the named paint-industry defendants
compensate the cities for their expenditures caused by
defendants’ creation of a public nuisance. This civil suit
can proceed on a parallel track that need not ever
intersect with the mechanism set forth in the Lead Paint
Statute. The relief demanded in the complaint—funding
future programs and compensating the municipalities for
their abatement and health-care expenses— would not
interfere with the municipalities’ ongoing enforcement
efforts under the Lead Paint Statute; their boards of
health remain free to sue property owners for the costs of
removal. And, the State Department of Health may
prosecute disorderly persons complaints against violating
owners. None of the statute’s enforcement tools may be
used against manufacturers or distributors. Hence, the
two classes of remedies are complementary, not
conflicting or duplicative.149
Importantly, as to the applicability of public nuisance law to
lead pigment and lead poisoning claims, the Appellate Division
found that “public health problems such as lead-paint
contamination and illnesses casually linked thereto require the
expenditure of public funds to provide medical diagnostic and
treatment services, particularly to members of the public who
147.In Re Lead Paint, 2002 WL 31474528 (N.J. Super. Law. Div.).
148.In Re Lead Paint, 2005 WL 1994172 (N.J.Super.A.D. Aug 17, 2005).
149.In Re Lead Paint, 2005 WL 1994172 at *5.
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have no access to health coverage or have insufficient resources to
attend to their healthcare needs.”150 Affirming the relevancy of an
abatement remedy, the court also found that “[t]he very presence
of lead paint – even lead paint that is never ingested – has
purportedly caused plaintiffs to incur costs of removing lead paint
and of funding detection and education programs. Thus the
complaint’s key proximate cause averment is. . .Plaintiffs also
allege damages to themselves. . . .the costs of discovering and
abating Lead. . .”151
The New Jersey case affirmed by the Appellate Division is
pending on appeal to the New Jersey Supreme Court.152
B. City of Milwaukee
The City of Milwaukee brought suit against NL and Mautz
Paint to recover costs associated with the city’s abatement of leadbased paint hazards. The city asserted claims for public nuisance,
conspiracy and restitution, alleging that the defendants were “a
substantial factor in contributing to the community-wide, leadbased public nuisance in Milwaukee.”153 The defendants moved
for summary judgment, claiming that the City was required to
prove ‘at a minimum, that [defendants’] pigment or lead paint. . is
present on windows in . properties and that their conduct
somehow caused the paint to become a hazard to children.”154 The
court held “that to establish a claim of creating a public nuisance,
a plaintiff must prove that the defendants’ conduct was a
substantial cause of the existence of a public nuisance and that
the nuisance was a substantial factor in causing injury to the
public, which injury is the subject of the action. Finally, public
policy considerations must also be considered because, similar to
liability for negligence, liability for creating a public nuisance can
be limited on public policy grounds.”155The court rejected the
150.Id. at * 13.
151.Id.
152.In reversing the trial court’s decision, the appellate court relied in
part on the Rhode Island trial court’s decision, signaling that the court’s
decisions therein are not quite as “bizarre” as defense counsel have
contended. See id. at * 15.
153.City of Milwaukee v. NL Industries, Inc., 691 N.W. 2d 888, 893
(Wisc. App. 2004).
154.Id.
155.Id. at 892.
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defendants’ position, finding instead that product identification
and property specific evidence were not required to prove that a
community-wide public nuisance existed or that the defendants
were liable for that nuisance.156The court agreed, recognizing the
communal harms associated with lead poisoning:
Public nuisance is focused primarily on harm to the
community or the general public. . . .[T]he allegation at
its essence is that defendants sold and promoted a
dangerous product to a community and that product
caused a serious public health problem in that
community. The City, rather than only the sick children,
has suffered and sustained an injury. This injury, unlike
injury suffered by individuals, is community-wide and
affects even those whose health is not compromised by
lead-paint poisoning. The City is also the entity most
reasonably able to remedy this community-wide injury to
public health.157
The Wisconsin Court of Appeals determined that allegations
of marketing, promoting, and manufacturing Lead for use in
paints and coatings were sufficient to establish liability for
creating a public nuisance in the absence of product and/or
manufacturer identification. The case is scheduled for trial in
early 2007.
C. California
Just days after the Rhode Island jury reached its verdict, the
California Appeals Court, Sixth District permitted government
entities to pursue a public nuisance cause of action against the
former manufacturers of lead pigments.158 In that case, “a group
of governmental entities acting for themselves, as class
representatives, and on behalf of the People of the State of
California, filed a class action against a group of lead
156.Id. at 894.
157.Id. at 893.
158.See County of Santa Clara v. Atlantic Richfield Co., 137 Cal.App.4th
292, 40 Cal.Rptr.3d 313 (Cal.App. 6 Dist. 2006). In addition to reversing the
trial court and reinstating the public nuisance cause of action, the court also
reinstated the plaintiffs’ strict liability, negligence and fraud causes of action.
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manufacturers.159
This class action suit alleged that the
manufacturers were liable under under strict product liability,
negligence and fraud “for damages caused by lead paint.”160 The
suit asks for abatement, injunctive relief, restitution and
disgorgement of profits.161
Like the Rhode Island case, the plaintiffs in the California
case alleged that the presence of lead pigment was a public
nuisance because it “is injurious to the health of the public.” 162
Further, as in the Rhode Island case, the complaint alleged that
defendants had created and/or contributed to the creation of the
public nuisance by “[e]ngaging in a massive campaign to promote
the use of Lead on the interiors and exteriors of private residences
and public and private buildings and for use on furniture and toys;
failing to warn the public about the dangers of lead; selling,
promoting and distributing lead; trying to discredit evidence
linking lead poisoning to lead; trying to stop regulation and
restrictions on lead; and trying to increase the market for lead.”163
Finally, like Rhode Island, the “remedy sought was abatement
‘from all public and private homes and property so affected
throughout the State of California.’”164
The court first concluded that the complaints identified a
condition that could be considered a public nuisance and that
abatement was an appropriate remedy: “Clearly their complaint
was adequate to allege the existence of a public nuisance for which
these entities, acting as the People, could seek abatement.”165 In
considering whether the defendants could be liable for that
nuisance, the court expressly rejected the contention that product
manufacturers could not be held liable for creating a public
nuisance. Instead, the court found:
that a “representative public nuisance cause of action
seeking abatement of a hazard created by affirmative and
knowing promotion of a product for a hazardous use is not
‘essentially’ a products liability action ‘in the guise of a
159.Id. at 319.
160.Id.
161.Id. at 319.
162.Id. at 324.
163.Id.
164.Id.
165.Id. at 325.
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nuisance action’ and does not threaten to permit public
nuisance to ‘become a monster that would devour in one
gulp the entire law of tort. . . .’ Because this type of
nuisance action does not seek damages but rather
abatement, a plaintiff may obtain relief before the hazard
causes any physical injury or physical damage to
property. A public nuisance cause of action is not
premised on a defect in a product or a failure to warn but
on affirmative conduct that assisted in the creation of a
hazardous condition. Here, the alleged basis for
defendants’ liability for the public nuisance created by
lead paint is their affirmative promotion of lead paint for
interior use, not their mere manufacture and distribution
of lead paint or their failure to warn of its hazards.166
The court then went on to find that public nuisance liability
and products liability were not interchangeable claims: “A
products liability action does not provide an avenue to prevent
future harm from a hazardous condition, and it cannot allow a
public entity to act on behalf of a community that has been
subjected to a widespread public health hazard. For these reasons,
we are convinced that the public nuisance cause of action in the
third amended complaint is not a disguised version of plaintiffs’
products liability causes of action . . . .”167
The appellate division remanded the case back to the trial
court. As of the time this article was written, the parties were
still awaiting the return of the case to the trial level so that a trial
date could be set.
D. Thomas v. Mallett
The Thomas case is a single plaintiff case brought against the
plaintiff’s landlords and against the same lead industry
defendants as the State of Rhode Island sued in its public
The case proceeded against the industry
nuisance case.168
defendants based on a possible application of the risk contribution
theory of Collins v. Eli Lilly, 116 Wis. 2d 166, 342 N.W.2d 37
166.Id. at 328.
167.Id. at 329.
168.See Thomas v.Mallett, 285 Wis.2d 236, 701 N.W.2d 523 (2005).
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(1984) which permitted those injured by DES to recover against
the DES manufacturers, despite the inability of the Plaintiff to
identify the specific manufacturer of the DES that caused the
injury.
While the case involved different legal theories of liability
than public nuisance, the Wisconsin Supreme Court drew a
number of conclusions that apply in the public nuisance context.
First, the court expressed “serious concerns” with pigment
manufacturers’ attempts to displace blame for lead poisoning from
themselves to landlords.169 Second, the court found that, while
landlords could share in that blame, “landlords are not to blame
for the fact that the lead pigment in the paint is poisonous in the
first instance.”170 Third, the court recognized that the pigment
manufacturers “did more than simply contribute to a risk,” but
knowingly produced and promoted the harmful product that
created that risk.171 Finally, and perhaps most importantly, the
court recognized the communal harm associated with lead
poisoning: “the problem of lead poisoning. . .is real[,]it is
widespread and represents “a public health catastrophe that is
poised to linger for quite some time.”172 This recognition of the
communal harm associated with lead poisoning represented the
crux of Rhode Island’s public nuisance claim against the lead
paint manufacturers.
III. CONCLUSION
While the case of State of Rhode Island v. Atlantic Richfield
Company, NL Industries, Inc., Millennium Holdings LLC, and
The Sherwin-Williams Company saw the first successful
application of public nuisance law against the lead pigment
industry for its role in creating a state-wide public health crisis,
this unique tort is solidly rooted in the history of Rhode Island
jurisprudence. The abatement remedy ordered by the jury will
ably supplement the decades of work done by children’s health
and housing advocates to battle childhood lead poisoning and raise
awareness about the importance of healthy and safe housing.
169.Id. at 552.
170.Id. at 554.
171.Id. at 558.
172.Id.
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Precisely what that remedy will consist of is in the hands of the
trial court and is the subject of more briefing and argument by the
parties. This additional debate over the parties’ abatement
proposals, which are worlds apart, is a small delay in what will be
the ultimately triumphant outcome for the people of the State of
Rhode Island: a housing stock that is free of lead and lead
hazards. Additionally, Rhode Island’s victory in its public health
lawsuit may be a precursor of things to come in other
jurisdictions. With appellate courts in other states endorsing the
applicability of public nuisance law to lead pigment suits, this
ancient cause of action has found new life in modern
environmental torts. Furthermore, over and above any legal
impact, the fact that, under public nuisance law, other states may
have the opportunity to benefit their citizens by seeking
abatement of lead and lead hazards from their housing is an
important public health victory.
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The Obfuscation of Rhode Island’s
Clearly Expressed Constitutional
Right to Bear Arms: Mosby v. Devine
Claudia J. Matzko
*
I.
INTRODUCTION
Like most other states, the Rhode Island Constitution
contains a “right to bear arms” provision.1 The text of the Rhode
Island Constitution has been preserved unchanged since the
framers drafted the first version of the Constitution in 1842: “the
right of the people to keep and bear arms shall not be infringed.”
For over one hundred fifty years, the scope and nature of the
Rhode Island Constitution’s article I, section 22 Declaration of
Rights provision remained unquestioned, until 2004, when the
Rhode Island Supreme Court decided Mosby v. Devine.2
Courts and scholars interpreting state constitutional right to
bear arms provisions or the Second Amendment of the U.S.
Constitution generally espouse one of three models.3 The first
model involves a “states’ rights” or “collective rights”
interpretation and believes that the right to bear arms does not
apply to individuals.4 Rather, the provision was drafted to
guarantee a general right of a state’s people to have a militia. The
*
Juris Doctor Candidate, Roger Williams University School of Law
(May 2006).
1. R.I. CONST. art. I, § 22.
2. 851 A.2d 1031 (R.I. 2004).
3. Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right,
104 YALE L.J. 995, 1003-04 (1995) (book review).
4. This approach has also been referred to as civic republicanism. David
B. Kopel, Clayton E. Cramer, & Scott G. Hattrup, A Tale of Three Cities: The
Right to Bear Arms in State Supreme Courts, 68 TEMP. L. REV. 1177, 1187
(1995). Supporters of gun control generally advocate this theory.
651
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652 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:651
purpose of the local militia was to protect a state from the
possibility of a potentially oppressive, national standing army.
The second model has been referred to as the “sophisticated
collective rights” model and purports to recognize a limited
individual right.5 Under this approach, an individual has a right
to bear arms only through participation in militia activities. The
right to keep arms applies solely to members of the militia, and
only if the government does not provide the necessary arms.6
Thus, although the right to keep arms and the right to bear arms
are considered separately, both the individual right to keep and to
bear arms are limited to the militia context. This view has the
potential on a theoretical level to completely disarm the entire
civilian population, or alternatively, to render the individual right
obsolete because the concept of the militia has disappeared.7 The
third model is the individual rights model. Under this view, the
intent of the framers was to create an individual right to keep and
bear arms. Notably, all three models arose from constitutional
originalists,8 and the comparison of the concepts is largely a
matter of whose version of history to believe.
The objective of this Article is to supplement Rhode Island’s
right to bear arms discourse with arguments and research that
advance the view that Rhode Island’s right to bear arms provision
is clearly an individual right, entitled to full constitutional
protection. This Article agrees with the dissent’s position in Mosby
v. Devine. However, this Article does not attempt a comprehensive
recap or analysis of the myriad issues at stake. Rather it presents
arguments and research which complement or amplify the
thorough investigation of the Mosby court into Rhode Island’s
right to bear arms provision. First, Part II of this Article will
present the Mosby case. In Part III, state constitutional analysis
in Rhode Island will be introduced, both in general and as applied
to Mosby. This section contends that the majority’s constitutional
analysis in Mosby is based on research that is too narrow in scope.
Part IV will discuss the word “people” as used in article I, section
5. Id.
6. See United States v. Emerson, 270 F.3d 203, 219 (5th Cir. 2001).
7. See Cottrol & Diamond, supra note 3. Militia would be unnecessary if
there was no longer a need to counter an oppressive standing army.
8. David B. Kopel, The Second Amendment in the Nineteenth Century,
1998 BYU L. REV. 1359, 1362.
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22. By means of textual and doctrinal analysis, this Article will
argue that the Mosby majority’s own broad definition of the word
undermines its own argument restricting the people’s right to bear
arms to a militia context. Part V will discuss the meaning of “bear
arms” from both a textual and historical vantage, using an
expanded comparative approach. Part V will also explore Rhode
Island’s 1790 Bill of Rights. Next, Part VI will compare other
extant state constitutions to Rhode Island’s right to keep and bear
arms provision, using both textual and structural modalities.
Finally, this Article concludes with the argument that the right to
bear arms is an individual fundamental right, entitled to full
constitutional protection.
II. MOSBY V. DEVINE
In a case of first impression, the Mosby court ruled that a
licensing statute under Rhode Island’s Firearms Act did not
impinge on the state’s constitutional right to keep and bear arms.
While the court did not specifically adopt the sophisticated
collective rights model, its reasoning was closest to the collective
rights approach.9 However, the holding in Mosby is unclear and,
ultimately, the court did not decide the scope or limits of the right
to bear arms provision.10 Instead, the court recognized an
individual right to keep and bear arms and simultaneously
concluded that the “bear arms” language should be read in the
collective, military context.11 The court reached this conclusion by
grouping the right to keep arms and the right to bear arms
concepts on one hand, and separately analyzing the concept of
right to bear arms on the other. The results are conflicting and
implausible.
The two plaintiffs in Mosby applied individually to the State
of Rhode Island Department of the Attorney General (“Attorney
General”) for a permit to carry a concealed weapon under Rhode
Island’s Firearms Act. This act contains two separate licensing
9. The Mosby court only recognized the “collective” and “individual”
rights models. Also, in the sophisticated collective rights model both the right
to keep and bear arms are understood in the militia context. In Mosby, the
right to keep arms is retained as an individual right and the right to bear
arms pertains to the militia.
10. See Mosby, 851 A.2d at 1043.
11. See id. at 1039, 1043.
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statutes: § 11-47-18 provides for a discretionary grant by the
Attorney General of a firearms permit “upon a proper showing of
need” and § 11-47-11 provides mandatory licensing by
municipalities, for a “suitable person.”12 Thus, one provision was a
discretionary “may grant” provision and one was a mandatory
“shall grant” provision. Apparently, the Attorney General had
instructed municipalities to consider an applicant suitable only if
they had first been granted a permit under § 11-47-18, in effect
circumventing the “shall grant” statute.13 Thus, the plaintiffs
applied under the discretionary “may grant” statute and only the
issue of the constitutionality of § 11-47-18 was before the court.14
Mosby was an avid gun collector and requested a permit
because he sometimes traveled with large sums of money.15 Coplaintiff Gollotto was a storeowner, who also traveled with large
amounts of cash, and feared for his safety because a number of
robberies had occurred in his store’s neighborhood.16 Each
applicant was apparently a “suitable person,” applying to license a
handgun, which, unlike a sawed-off shotgun, for example, is not
categorically associated with unlawful behavior. In fact, as the
dissent points out, a handgun is just the type of weapon that one
would expect a citizen would lawfully carry to protect himself.17
Nonetheless, using its discretion under the licensing statute, the
Attorney General denied each application, citing an insufficient
showing of need.18 There was no hearing or appeal procedure
within the application process at the time.19 In fact, the Attorney
General followed no written departmental policy for deciding
permit applications.
The dissent vigorously argued that the Attorney General
conducted an arbitrary licensing scheme in violation of the Rhode
Island Constitution.20 Furthermore, the dissent considered the
right to bear arms provision an individual right, entitled to full
12. R.I. GEN. LAWS §§ 11-47-18, 11-47-11 (2002 & Supp. 2005).
13. See Mosby, 851 A.2d at 1078 n.61 (Flanders, J., dissenting).
14. Rhode Island General Laws § 11-47-11 was not before the court,
although the court did decide other related matters.
15. Mosby, 851 A.2d at 1035.
16. Id.
17. Id. at 1054 (Flanders, J., dissenting).
18. Id. at 1035.
19. Id.
20. See id. at 1052-83 (Flanders, J., dissenting).
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constitutional protection, which would necessarily include due
process protection.21 This article posits that the dissent is correct.
III. RHODE ISLAND STATE CONSTITUTIONAL ANALYSIS
The Rhode Island Supreme Court has stated that its function
in construing the constitution is to ascertain and effectuate
framers’ intent.22 State constitutions derive their force from the
people who ratify them and, thus, the intent that the court seeks
to determine is that of the people.23 The court interprets the words
of the constitution according to their plain, ordinary, and
generally accepted meaning, assuming that each word was
carefully chosen.24 The Mosby majority failed to address several
underlying questions concerning plain meaning construction. To
which rights did the ratifiers of the 1842 constitution and the readapters of the constitution in 198625 think they were entitled
when they ratified the Rhode Island Constitution? What did the
people think “the right of the people to keep and bear arms shall
not be infringed” plainly meant? Could the ratifiers have
understood the right to extend to only a subset of people, such as,
the militia? Could they have voted for an individual right to keep
arms, with a right to bear arms restricted to the militia, as the
Mosby court held? The clear answers can be avoided only by
evading the questions; the plain meaning of the provision grants
an unqualified right to people to keep and bear arms.
The Rhode Island Supreme Court properly considers extrinsic
sources in interpreting the Rhode Island Constitution, including
proceedings of constitutional conventions, the history of the times,
changes to a constitutional provision, and other extant
constitutions.26 In the Debates and Proceedings in the 1842
Constitutional Convention at Newport, the framers frequently
referred to the constitutions and policies of other states.27 There
21. See id. (Flanders, J., dissenting).
22. Id. at 1038; City of Pawtucket v. Sundlun, 662 A.2d 40, 45 (1995).
23. 16 AM. JUR. 2D Constitutional Law § 58 (1998).
24. Mosby, 851 A.2d at 1038; Sundlun, 662 A.2d at 45.
25. Rhode Island held a constitutional convention in 1986. As noted, art.
I, § 22 was unchanged.
26. See Mosby, 851 A.2d at 1038 (using all four sources).
27. See, e.g., State of R.I., DEBATES AND PROCEEDINGS IN THE STATE
CONVENTION HELD AT NEWPORT, SEPTEMBER 12 , 1842, FOR THE ADOPTION OF A
CONSTITUTION OF THE STATE OF RHODE ISLAND 34 (1842) (This source quoted
TH
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were twenty-seven state constitutions28 in 1842; to which other
states were they referring? The writings of Elisha R. Potter29
provide an answer. Potter was an influential and prominent
leader from South Kingston, and a leading drafter of the 1842
Constitution.30 Potter’s notes from the period referenced twentyfour of the twenty-seven extant state constitutions.31 Because
readily available32 historical documents indicate that at least one
Mr. Jackson as stating that “In forming a Constitution, we should consider
this as a new State, and the models of other republics should be considered.”).
28. The state constitutions in effect at the time the Rhode Island
Constitution was drafted were: Alabama (1819), Arkansas (1836),
Connecticut (1818), Delaware (1831), Florida (1838), Georgia (1798), Illinois
(1818), Indiana (1816), Kentucky (1799), Louisiana (1812), Maine (1820),
Maryland (1776), Massachusetts (1780), Michigan (1835), Mississippi 1832),
Missouri (1820), New Hampshire (1792), New Jersey (1776), New York
(1821), North Carolina (1776), Ohio (1802), Pennsylvania (1838), South
Carolina (1790), Tennessee (1834), Texas (1836), Vermont (1793), and
Virginia (1830). See generally SOURCES AND DOCUMENTS OF UNITED STATES
CONSTITUTIONS (William F. Swindler, ed., 1992).
29. One publication listed Elisha Potter’s credentials:
POTTER, Elisha Reynolds, (son of Elisha Reynolds Potter [17641835]), a Representative from Rhode Island; born in Little Rest (now
Kingston), R.I., June 20, 1811; attended the Kingston Academy and
was graduated from Harvard University in 1830; studied law; was
admitted to the bar in 1832 and practiced in South Kingstown
Township, R.I.; adjutant general of the State, 1835-1836; member of
the State house of representatives, 1838-1840; elected as a Law and
Order Party candidate to the Twenty-eighth Congress (March 4,
1843-March 3, 1845); chairman, Committee on Revisal and
Unfinished Business (Twenty-eighth Congress); unsuccessful
candidate for reelection in 1844 to the Twenty-ninth Congress;
served in the State senate, 1847-1852 and 1861-1863; State
commissioner of public schools from 1849 to 1854, when he resigned;
associate justice of the Rhode Island Supreme Court from March 16,
1868, until his death in Kingston, Washington County, R.I., April 10,
1882; interment in the family burial ground, Washington County,
R.I.
BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS: 1771-2005 1756
(United States Government Printing Office, 2005).
30. Id. He chaired a number of committees at the convention. Id.
31. The states referenced were Alabama, Arkansas, Connecticut,
Delaware, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York,
North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Vermont,
and Virginia. Elisha Reynolds Potter, Jr. Papers, Rhode Island Historical
Society, MSS 629 SG3 (on file with author).
32. See Rhode Island Historical Society, www.rihs.org/muscollections
research.html.
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highly influential framer, Elisha Potter, considered nearly all, if
not all, the state constitutions, and because in the debates and
proceedings, other framers referred numerous times to other
states, this article argues that if textual comparisons are made,
they must be made to all extant constitutions. Part V will explore
these comparisons.
In large part, the Rhode Island Supreme Court adopted the
meaning of “bear arms” from Aymette v. State,33 an 1840 Supreme
Court of Tennessee case, which determined that the phrase was
restricted to the military context. However, the Rhode Island
Supreme Court failed to provide an actual link between the
Tennessee court and the Rhode Island framers. Thus, the Mosby
court’s analysis is built on an arbitrary assumption, that the
framers were either aware of and in accord with Aymette or that
they independently held the Aymette view. The court also
neglected to consider alternative early constitutional decisions
where the right to bear arms clearly applied to civilians,34 which
will be further discussed in Part IV.
IV. THE PEOPLE
The Rhode Island Supreme Court acknowledged that the
meaning of the word “people” is key to interpreting article I,
section 22.35 The court looked to its own precedent, citing an 1896
Supreme Court advisory opinion.36 This opinion, In re Incurring
State Debts, considered article 4, section 13 of the Rhode Island
Constitution, which provided in pertinent part, “the general
assembly shall have no power, hereafter without express consent
of the people, to incur state debts to an amount exceeding fifty
thousand dollars. . . .”37 The governor had asked the court whether
the word “people” referred to the entire electorate or only to the
taxpayers.38 The advisory opinion compared the use of the word
“people” in article 4, section 13 to its meaning in other parts of the
constitution and found “nothing to warrant its restriction.”39 The
33.
34.
35.
36.
37.
38.
39.
21 Tenn. (2 Hum.) 154 (1840).
Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822).
United States v. Mosby, 851 A.2d 1031, 1040 (R.I. 1896).
In re Incurring of State Debts, 37 A. 14 (R.I. 1896).
Id. at 14.
Id. at 14.
Id. at 15.
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court stated that, “the term ‘people,’ as used in the constitution, is
broad and comprehensive, comprising in most instances all the
inhabitants of the state.”40 Thus, “people” could not be restricted
to include only a subset of the electorate, the taxpayers.
Based on precedent and its own comparative analysis of the
use of the word “people” in the Rhode Island Constitution, the
Mosby court clearly concluded that “the people” includes all the
inhabitants of the state.41 Furthermore, the court noted that
constitutional rights flow to the people individually.42 The court
held that article I, section 22 “provides individuals with a right to
keep and bear arms, subject . . . to reasonable regulation by the
state.”43
However, later in its opinion, the Mosby court contradicted
itself by stating that the right to “bear arms” did not apply to all
individuals, but rather was limited to arms-bearing in a militia
context. The court applied this restriction only to the “bear arms”
prong of the right, and stated that all individuals did have a right
to “keep arms.”44 Unfortunately, the court did not explain in what
context all individuals could enjoy a right to keep arms, but that
only some of those individuals could bear the arms. As noted
earlier, the Mosby court comes closest to a sophisticated collective
rights model of analysis. In that view, both the right to keep and
bear arms is limited to a militia context. However, Mosby differs
from the collective rights model because, in this part of the
opinion, the court held that the individual retained the right to
keep arms, with only the right to bear arms relegated to the
collective, militia context.
In U.S. v. Miller, a federal Second Amendment case, the U.S.
Supreme Court explained that the term “militia” generally
referred to able-bodied males between the ages of eighteen and
forty-five.45 Obviously, the right to bear arms cannot at once apply
to all the people who inhabit the state, and only those males
between the ages of eighteen and forty-five in the militia. The
40. Id.
41. See Mosby v. Devine, 851 A.2d 1031, 1040-41 (R.I. 2004).
42. Id.
43. Id. at 1039.
44. Id. at 1042.
45. 307 U.S. 174, 180-81 (1939). See also Uniform Militia Act of 1792,
CHAP. XXXIII §1, 1 Stat. 271 (1792).
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Mosby holding is questionable because it contradicts its own
conclusion as to the meaning of “people,” as well as its In Re State
Debt precedent. The court had clearly established that “people”
includes all inhabitants, not a subset such as taxpayers or militia.
IV. THE RIGHT TO BEAR ARMS
Advocates of a states’ rights or a sophisticated collective
rights model of constitutional right to bear arms theory believe
that only members of a militia can bear arms, and can do so only
during militia duty. The sophisticated collective rights theorists
alternatively argue that the individual right has disappeared
because the concept of militia is obsolete. Proponents of the
individual rights theory advance the position that “bearing arms”
can refer to any individual, civilian or military. Although the
Rhode Island Supreme Court initially held that individuals have a
constitutional right to both keep and bear arms, subject only to
reasonable governmental restriction (an individual right), the
court then proceeded to separately analyze “to keep” and “to bear,”
concluding that individuals have a right to keep arms but they can
bear arms only in the militia context.46 Thus, Mosby does not fall
into any of the existing models of right to bear arms analysis.
Unlike scholars and courts who advocate either the individual
right to bear arms or gun control, it is difficult to imagine what
the Rhode Island Supreme Court intended by retaining the
individual right to keep arms, and restricting the right to bear
arms to the militia.
The Mosby court relied heavily on Aymette v. State to support
its view that “bear arms” was primarily used in a militia context.
Indeed, Aymette has been recognized as the best historical case to
support the collective rights or the sophisticated collective rights
model for this proposition.47 In Aymette, the Supreme Court of
Tennessee construed § 26 of its Declaration of Rights, which
provided that “the free white men of the State, have a right to
keep and bear arms for the their common defence.”48 It
46. Mosby, 851 A.2d at 1042.
47. United States v. Emerson, 270 F.3d 203, 229 (5th Cir. 2001). The U.S.
Supreme Court cited to Aymette in United States v. Miller, 307 U.S. at 174,
178, 182 (1939).
48. 21 Tenn. (2 Hum.) 154, 156 (1840).
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determined that the words “for their common defence” meant to
secure the public defense.49 Thus, the Aymette court held that the
right was related to the military context, precisely because the
objective of the right was for “common defence.” Because the
Rhode Island provision contains no “common defense” language,
the comparison to Aymette does little, if anything, to support the
Mosby majority’s argument that “bear arms” pertained only to a
military context.
The Mosby court noted that Aymette was decided a mere two
years before the Rhode Island Constitution was ratified in 1842. It
is not clear if the Rhode Island Supreme Court assumed that the
Aymette court’s ideas about “bearing arms” influenced the Rhode
Island framers or if it assumed that the framers would have
independently agreed with the Tennessee Supreme Court. In its
opinion, the Mosby majority subsequently briefly discussed a 2002
Ninth Circuit case50 that held “bear arms” as referring to military
use only and a 1991 Fifth Circuit case51 that held “bear arms” as
referring to both military and civilian use. The court found
noteworthy that both circuits looked to the Rhode Island
ratification of the U.S. Constitution for evidence that “bearing
arms” is a military concept.52 This paper suggests, infra, an
opposite conclusion and argues that the Rhode Island ratification
of the U.S. Constitution supports the position that the Rhode
Island constitutional right to bear arms is an individual right.
When the delegates of Rhode Island ratified the U.S.
Constitution in 1790, they included in the document certain
fundamental tenets known as Rhode Island’s Bill of Rights.53 The
Mosby court cited to the eighteenth part, which permitted
conscientious objectors to avoid military service.54 While “bearing
arms” was indeed used in the military context in this provision,
the issue is not whether bearing arms applies to the military
context; it does. Rather, the true issue is whether “bearing arms”
can also apply to the civilian context.
49. Id. at 160-62.
50. Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).
51. Emerson, 270 F.3d 203.
52. Mosby v. Devine, 851 A.2d 1031, 1041 (R.I. 2004).
53. See generally, Kevin D. Leitao, Rhode Island’s Forgotten Bill of
Rights, 1 ROGER WILLIAMS U. L. REV. 31 (1996).
54. Mosby, 851 A.2d at 1041.
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The Mosby majority did not discuss the seventeenth part of
the 1790 Bill of Rights, which was the right to bear arms provision
of its day. The provision was embedded in a military context and
stated:
That the people have a right to keep and bear arms, that
a well regulated militia, including the body of the people
capable of bearing arms, is the proper, natural and safe
defence of a free state; that the militia shall not be
subject to martial law except in time of war, rebellion or
insurrection; that standing armies in time of peace, are
dangerous to liberty, and ought not to be kept up, except
in cases of necessity; and that at all times the military
should be under strict subordination to the civil power;
that in time of peace no soldier ought to be quartered in
any house, without consent of the owner, and in time of
war, only by the civil magistrate, in such manner as the
law directs.55
Fifty years later, in the 1842 Declaration of Rights, article I,
section 22, the framers of the Rhode Island Constitution reduced
the right to bear arms provision to “the right of the people to keep
and bear arms shall not be infringed.” They removed any and all
military context, plainly granting a right to keep and bear arms to
the people. The framers did retain the “martial law,”56 the
“subordination of military to civil authority,”57 and the “quartering
of soldiers”58 provisions in the 1842 constitution. Notably, in this
1842 constitution, the military provisions were adjacent to each
other, but apart from the right to bear arms. Instead, the right to
bear arms was placed between the “freedom of press” and the
“rights not enumerated” provisions. Thus, the military provisions
were grouped, and did not include the right to bear arms
provision. This structural placement further supports the view
that the right to bear arms was an individual right, separate from
and not to be read within the military context.
Additionally, the Mosby majority ignored pre-1842 case law,
55. THE COMPLETE BILL OF RIGHTS 182 (Neil H. Cogan, ed., Oxford
University Press 1997) (R.I. Ratification of the U.S. Constitution, pt. 17.).
56. R.I. CONST. art. I, § 18.
57. Id.
58. R.I. CONST. art. I, § 19.
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which upheld the right to bear arms as an individual right. The
Tennessee case upon which the Mosby court relied discussed a
Court of Appeals of Kentucky case, Bliss v. Commonwealth.59 The
Bliss court found a law prohibiting a person from carrying a
concealed weapon to be unconstitutional, because the plain
meaning of the pertinent provision granted an individual right to
bear arms.60 The Kentucky right to bear arms provision stated
“that the right of the citizens to bear arms in defence of
themselves and the state, shall not be questioned.”61 The
Kentucky court held that Bliss had a constitutional right to bear
arms, in this case a nonmilitary, concealed sword in a cane.62
In 1840, the same year as Aymette was decided, the Supreme
Court of Alabama, in State v. Reid,63 afforded constitutional
protection to the right of individuals to openly bear arms. The
Reid court also cited Bliss for support of the idea that the right to
bear arms applied to individuals.64 Like Kentucky, Alabama’s
constitution contained language granting the citizens’ “right to
bear arms in defence of himself and the State.”65 Both courts
characterized this language as pertaining to civilian arms-bearing
activity.66 Additionally, eleven other early state constitutional
“right to bear arms” provisions contained the same phrase,
describing civilian arms-bearing activity.67 Thus, the Mosby
59. 12 Ky. (2 Litt.) 90 (1822).
60. Id. at 90-93.
61. Id. at 90.
62. Id. at 90, 93.
63. 1 Ala. 612 (1840).
64. Id. at 614.
65. Id. at 614-15.
66. Id. at 615; Bliss, 12 Ky. at 91-92.
67. Alabama, Connecticut, Indiana, Kentucky, Michigan, Mississippi,
Missouri, Ohio, Pennsylvania, Texas, and Vermont have some sort of “in
defense of himself” language. See 1 SOURCES AND DOCUMENTS OF UNITED
STATES CONSTITUTIONS 33 (William F. Swindler ed., Oceana Publications, Inc.
1973) (Alabama); 2 SOURCES AND DOCUMENTS OF UNITED STATES
CONSTITUTIONS 145 (William F. Swindler ed., Oceana Publications, Inc. 1973)
(Connecticut); 3 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS
366 (William F. Swindler ed., Oceana Publications, Inc. 1974) (Indiana); 4
SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 163 (William F.
Swindler ed., Oceana Publications, Inc. 1975) (Kentucky); 5 SOURCES AND
DOCUMENTS OF UNITED STATES CONSTITUTIONS 205, 362, 487 (William F.
Swindler ed., Oceana Publications, Inc. 1975) (Michigan, Mississippi,
Missouri); 7 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 555
(William F. Swindler ed., Oceana Publications, Inc. 1978) (Ohio); 8 SOURCES
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663
majority’s argument that “bear arms” applied only to the military
context is untenable.
V. COMPARISONS TO OTHER STATE
“RIGHT TO KEEP AND BEAR ARMS” PROVISIONS
Given that the framers indicated that they looked to other
state constitutions and that Elisha Potter’s notes reflected upon at
least twenty-four of the twenty-seven extant constitutions,68 it is
prudent to compare the text of the Rhode Island Constitution’s
right to bear arms provision with right to bear arms provisions in
other states’ constitutions.
Nine states had either no bill of rights in their constitution or
no right to bear arms provision.69 Of the remaining nineteen
states (twenty including Rhode Island), the Rhode Island
provision was unique for several reasons. With the exception of
Missouri, Rhode Island is the only state whose provision is not
imbedded in a military provision, or located next to a militaryrelated right.70 In 1842, Rhode Island was the only state whose
DOCUMENTS OF UNITED STATES CONSTITUTIONS 304 (William F. Swindler
ed., Oceana Publications, Inc. 1979) (Pennsylvania); 9 SOURCES AND
DOCUMENTS OF UNITED STATES CONSTITUTIONS 258, 509 (William F. Swindler
ed., Oceana Publications, Inc. 1979) (Texas, Vermont).
68. See Mosby v. Devine, 851 A.2d 1031, 1038 (R.I. 2004); City of
Pawtucket v. Sundlun, 662 A.2d 40, 45 (1995).
69. In 1842, the Georgia and New Jersey constitutions had no Bill of
Rights. See 2 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS,
supra note 67, at 458 (Georgia); 6 SOURCES AND DOCUMENTS OF UNITED STATES
CONSTITUTIONS 367, 449 (William F. Swindler ed., Oceana Publications, Inc.
1976) (New Jersey).
Delaware, Illinois, Louisiana, Maryland, New
Hampshire, South Carolina, and Virginia had no right to bear arms
provisions at that time. See 4 THE FEDERAL AND STATE CONSTITUTIONS 2471
(Francis Newton Thrope, ed., 1993) (New Hampshire); 2 SOURCES AND
DOCUMENTS OF UNITED STATES CONSTITUTIONS, supra note 67, at 217
(Delaware); 3 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS,
supra note 67, at 214, 237 (Illinois); 4-A SOURCES AND DOCUMENTS OF UNITED
STATES CONSTITUTIONS 4, 84 (William F. Swindler ed., Oceana Publications,
Inc. 1975) (Louisiana); 4 SOURCES AND DOCUMENTS OF UNITED STATES
CONSTITUTIONS, supra note 67, at 340, 372 (Maryland); 8 SOURCES AND
DOCUMENTS OF UNITED STATES CONSTITUTIONS, supra note 67, at 447,476
(South Carolina); 10 SOURCES AND DOCUMENTS OF UNITED STATES
CONSTITUTIONS 3, 57 (William F. Swindler ed., Oceana Publications, Inc.
1979) (Virginia).
70. 8 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS, supra
note 67, at 388.
AND
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664 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:651
right to bear arms provision did not include “the common defense”
or “defense of the state” language, which the Aymette court relied
on to determine that the Tennessee right to bear arms applied
only to the military context.71 As discussed supra, the Mosby court
incorrectly relied on Aymette for the same proposition.
Additionally, the Rhode Island right to bear arms provision is
the only one bound by the strong, unequivocal language, “shall not
be infringed.”72 This is of course, the same unambiguous,
qualifying clause in the Second Amendment of the U.S.
Constitution.73 Fifteen state constitutions had no such language,
and simply granted citizens a right to keep and bear arms. Four
states’ constitutions provided that the right “shall not be
questioned.”74
It follows from the foregoing analysis that both the clear text
and the structural placement of the text in article I, when
75
compared to other constitutions, strongly supports the idea that
Rhode Island’s unique right to bear arms provision was intended
to be an individual right.
VI. CONCLUSION
“[Those] who are trying to read the Second Amendment out of
the Constitution by claiming it’s not an individual right. . . [are]
courting disaster by encouraging others to use the same means to
eliminate portions of the Constitution they don’t like.”76
In Mosby v. Devine, the majority delivered conflicting and
71. Id.; See Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840).
72. 8 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS, supra
note 67, at 388.
73. U.S. CONST. amend. II (1791).
74. Kentucky, Maine, Missouri, Pennsylvania. See 4 SOURCES AND
DOCUMENTS OF UNITED STATES CONSTITUTIONS 163, 316 (William F. Swindler
ed., Oceana Publications, Inc. 1975) (Kentucky, Maine); 5 SOURCES AND
DOCUMENTS OF UNITED STATES CONSTITUTIONS 487 (William F. Swindler ed.,
Oceana Publications, Inc. 1975) (Missouri); 8 SOURCES AND DOCUMENTS OF
UNITED STATES CONSTITUTIONS 304 (William F. Swindler ed., Oceana
Publications, Inc. 1979) (Pennsylvania).
75. See Appendix I for the text of each state’s right to bear arms provision.
See also Appendix II for the placement of the right to bear arms provision in
each state’s constitution.
76. Dan Gifford, The Conceptual Foundations of Anglo-American
Jurisprudence in Religion and Reason, 62 TENN. L. REV. 759, 788-89 (1994)
(quoting Alan Dershowitz).
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contradictory holdings, which obfuscate and threaten one of Rhode
Island’s fundamental rights.77 As outlined in the previous sections
of this comment, the court stated that article I, section 22, (1)
“provides individuals with a right to keep and bear arms,” subject
to reasonable state regulation,78 (2) that an individual right exists
to keep but not to bear arms, because “bear arms” language is
employed exclusively in the collective military context,79 (3) that
Mosby did not define the extent or limits of the right to bear arms
provision,80 and (4) that the rights of the “people” refers to all
inhabitants of the state, yet the rights are also restricted to the
militia.81
This Article determined the intended scope and meaning of
Rhode Island’s right to bear arms provision, not whether the
provision is “wise.” Rhode Island’s right to bear arms provision is
unique among states for numerous reasons, not the least of which
is that it clearly expresses an individual right. In this senselessly
violent world, perhaps the need for this right should be readdressed.82 Constitutional amendment was designed to be a slow
and cumbersome process, replete with checks and balances, so
that changes to the constitution could not be hastily adopted. If
the right to bear arms has indeed become an “embarrassing”83
fundamental right, the amendment process should be considered.
This is far superior to outcome-determinative judicial decisionmaking, which cannot withstand scrutiny.
Additionally, even if the Rhode Island Supreme court had
clearly and consistently articulated an individual right to keep
and bear arms, this Article does not suggest that the right is
77. This assumes that the rights articulated in the constitutional
Declaration of Rights are fundamental rights.
78. Mosby v. Devine, 851 A.2d 1031, 1039 (R.I. 2004).
79. Id. at 1043.
80. Id.
81. Id. at 1040-42.
82. In the aftermath of the Bliss v. Commonwealth decision upholding
the right to carry concealed weapons, the Kentucky constitutional right to
bear arms provision was amended, to allow prohibitions on the carrying of
concealed weapons. State v. Hirsch, 114 P.3d 1104, 1118 (Or. 2005).
83. See Sanford Levinson, The Embarrassing Second Amendment, 99
YALE L.J. 637 (1989) (referring to the author’s statement that “For too long,
most members of the legal academy have treated the Second Amendment as
the equivalent of an embarrassing relative, whose mention brings a quick
change of subject to other, more respectable, family members.”).
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666 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:651
beyond reasonable state regulation. However, in Mosby v. Devine,
a state executive denied two apparently law-abiding, “suitable”
persons a weapons permit, absent internal departmental
procedural and due process rights to a hearing, in effect disabling
a constitutional fundamental right. If the court upholds a
legislative measure restricting the right to bear arms, it must at a
minimum comport with basic procedural due process. All rights
articulated in the Rhode Island Declaration of Rights are entitled
to constitutional protection. If a right has become useless,
offensive, or harmful to the people, the Rhode Island Constitution
should be amended to reflect this sentiment. Until that time
comes, it is important to remember that the last constitutional
convention in 1986 retained the rights to keep and bear arms
provision in exactly its original form.84
84. CONSTITUTION OF THE STATE OF RHODE ISLAND AND PROVIDENCE
PLANTATIONS 11 (The Office of Secretary of State 1988) (commenting that
section 22, “the right of the people to keep and bear arms shall not be
infringed,” remained unchanged from the 1843 Rhode Island Constitution).
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APPENDIX I
RIGHT TO BEAR ARMS
STATE
DATE
English Bill of 1689
Rights
Rhode
Island
Ratification
1790
SECTION
17th
667
TEXT
That
the
subjects
which are protestants,
may have arms for
their defence suitable
to their conditions,
and as allowed by law.
That the people have a
right to keep and bear
arms, that a well
regulated
militia,
including the body of the
people
capable
of
bearing arms, is the
proper, natural and safe
defence of a free state;
that the militia shall not
be subject to martial law
except in time of war,
rebellion or insurrection;
that standing armies in
time of peace, are
dangerous to liberty,
and ought not to be kept
up, except in cases of
necessity; and that at all
times
the
military
should be under strict
subordination to the civil
power; that in time of
peace no soldier ought to
be quartered in any
house,
without
the
consent of the owner,
and in time of war, only
by the civil magistrate,
in such manner as the
law directs.
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Rhode Island
1842
Art. I § 22
The right of the people
to keep and bear arms
shall not be infringed.
United States
1791
Amend. II
Alabama
1819
Art. I § 23
Arkansas
1836
Art. II § 21
A
well
regulated
Militia,
being
necessary
to
the
security of a free
State, the right of the
people to keep and
bear Arms, shall not
be infringed.
Every citizen has a
right to bear arms in
defence of himself and
the state.
That the free white
men of this State shall
have a right to keep
and to bear arms for
their common defence.
Connecticut
1818
Art. I § 17
Delaware
Florida
1831
1838
No provision
Art. I § 21
Georgia
1798
Illinois
Indiana
1818
1816
No Bill of
Rights
No provision
Art. I § 20
Every citizen has a
right to bear arms in
defence of himself and
the State.
That the free white
men of this State shall
have a right to keep
and to bear arms for
their common defence.
That the people have a
right to bear arms for
the
defence
of
themselves and the
State; and that the
military shall be kept
in strict subordination
to the civil power.
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Kentucky
1799
Art. X § 23
Louisiana
Maine
1812
1819
No provision
Art. I § 16
Maryland
Massachusetts
1776
1780
No provision
Pt. I
Art. XVII
Michigan
1835
Art. I § 13
Mississippi
1832
Art. I § 23
Missouri
1820
Art. XIII § 3
669
That the rights of the
citizens to bear arms
in
defence
of
themselves and the
State shall not be
questioned.
Every citizen has a
right to keep and bear
arms for the common
defence; and this right
shall
never
be
questioned.
The people have a
right to keep and to
bear arms for the
common defence. And
as, in time of peace,
armies are dangerous
to liberty, they ought
not to be maintained
without the consent of
the legislature; and
the military power
shall always be held in
exact subordination to
the civil authority and
be governed by it.
Every person has the
right to bear arms for
the defence of himself
and the State.
Every citizen has the
right to bear arms for
the defence of himself
and the State.
That the people have
the right peaceably to
assemble for their
common good, and to
apply to those vested
with the powers of
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New Hampshire
1792
Pt. I
Art. XIII
government
for
redress of grievances
by
petition
or
remonstrance;
and
that their right to bear
arms in defence of
themselves and of the
State
cannot
be
questioned.
No person who is
conscientiously
scrupulous about the
lawfulness of bearing
arms,
shall
be
compelled
thereto,
provided he will pay
an equivalent.
NOTE:
New Hampshire has
only this right not to
bear
arms.
Other
states have a similar
provision in addition
to their right to bear
arms provisons.
New Jersey
1776
New York
1821
No Bill of
Rights
Art. VII § 5
The militia of this
State shall at all times
hereafter be armed
and disciplined and in
the
readiness
of
service; but all such
inhabitants of this
State, of any religious
denomination
whatever, as from
scruples of conscience
may be adverse to
bearing arms, shall be
excused therefrom by
paying to the State an
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North Carolina
1776
DR
XVII
Art.
Ohio
1802
Art. VIII §
20
Pennsylvania
1838
Art. IX § 21
South Carolina
1790
No provision
671
equivalent in money;
and the legislature
shall provide by law
for the collection of
such equivalent, to be
estimated according to
the expense, in time
and money, of an
ordinary able-bodied
militia-man.
That the people have a
right to bear arms, for
the defence of the
State; and as standing
armies, in time of
peace, are dangerous
to liberty, they ought
not to be kept; and
that
the
military
should be kept under
strict subordination to,
and governed by the
civil power.
That the people have a
right to bear arms for
the
defence
of
themselves and the
State; and as standing
armies, in time of
peace, are dangerous
to liberty, and they
shall be kept up, and
that the military shall
be kept under strict
subordination to the
civil power.
That the right of the
citizens to bear arms,
in
defense
of
themselves and the
State, shall not be
questioned.
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672 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:651
Tennessee
1834
Art. I § 26
Texas
1836
DR § 14th
Vermont
1793
Ch. I Art. 16
Virginia
1830
No provision
That the free white
men of this State have
a right to keep and
bear arms for their
common defence.
Every citizen shall
have the right to bear
arms in defence of
himself
and
the
republic. The military
shall at all times and
in
all
cases
be
subordinate to the
civil power.
That the people have a
right to bear arms for
the
defence
of
themselves and the
State;
and,
as
standing armies in
time of peace are
dangerous to liberty,
they ought not to be
kept up; and that the
military should be
kept
under
strict
subordination to, and
governed by, the civil
power.
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673
APPENDIX II
RIGHT TO BEAR ARMS – LOCATION IN DOCUMENT
STATE
DATE SECTION TEXT LOCATION
English Bill of 1689
Between raising or keeping
Rights
a standing army and free
elections
Rhode Island 1790
17th
Between freedom of speech
Ratification of
and press and right to
the
U.S.
conscientious objector status
Constitution
Rhode Island
1842
Art. I § 22 Between right to assemble
and enumeration of rights
shall not impair or deny
other rights retained by the
people
United
1791
Amend. II Between freedom of religion,
States
press,
expression
and
soldier quartered in house
Alabama
1819
Art. I § 23 Between right to assemble
and military provision
Arkansas
1836
Art. II § Between right to assemble
21
and soldier quartered in
house.
Connecticut
1818
Art. I § 17 Between right to assemble
and military subordination
to civil power
Delaware
1831
No
provision
Florida
1838
Art. I § 21 Between right to assemble
and soldier quartered in
house
Georgia
1798
No Bill of
Rights
Illinois
1818
No
provision
Indiana
1816
Art. I § 20 Between right to assemble
and soldier quartered in
house
Kentucky
1799
Art. X § Between right to assemble
23
and military subordination
to civil power
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Louisiana
1812
Maine
1819
Maryland
1776
Massachusetts
1780
Michigan
1835
Art. I § 13
Mississippi
1832
Art. I § 23
Missouri
1820
Art. XIII
§3
New
Hampshire
1792
Pt. I
Art. XIII
New Jersey
1776
New York
1821
No Bill of
Rights
Art. VII §
5
North
Carolina
Ohio
1776
1802
Pennsylvania
1838
Art. IX §
21
South
Carolina
Tennessee
1790
No
provision
Art. I § 26
1834
No
provision
Art. I § 16
No
provision
Pt. I
Art. XVII
DR Art.
XVII
Art. VIII
§ 20
Between right to assemble
and military subordination
to civil power
Between freedom of the
press and principles of
behavior
necessary
to
preserve liberty
Between habeas corpus and
military subordination to
civil power
Between right to assemble
and military subordination
to civil power
Between the power of the
people
to
control
government and alter the
constitution and freedom of
religion
Between protection and
property
rights
and
remedies
Between no office holding by
religious
persons
and
habeas corpus
Between tax and right to
assemble
Between right to assemble
and corporal punishment
under military law
Between right to assemble
and military subordination
to civil power
Between
corporal
punishment of militia and
citizens under martial law
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MOSBY V. DEVINE
Texas
1836
DR § 14th
Vermont
1793
Virginia
1830
Ch. I Art.
16
No
provision
675
and soldier quartered in
house.
Between property rights
and well-regulated militia
Between
power
of
legislature and martial law
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Notes & Comments
Constitutional Home Rule in Rhode
Island
[T]here is perhaps no term in the literature of political
science or law which is more susceptible to misconception
and variety of meaning than ‘home rule.’1
Unfortunately, Rhode Island’s Home Rule Amendment has
spent most of its half century existence nearly dormant. Like all
home rule amendments,2 Rhode Island’s Home Rule Amendment
purports to bestow a certain degree of independent decisionmaking authority upon towns and cities within the state. A
properly drafted home rule amendment affirms and even
supplements local authority in certain areas, while maintaining
overriding state authority where appropriate. The next step, of
course, is the interpretation and implementation of the
amendment in a way that honors the spirit of local authority over
local matters and allows for clear resolution of inevitable conflicts
between local authorities and state authorities. By its very nature
this second step is primarily undertaken by state courts. When
properly implemented using clear rules, home rule amendments
can encourage efficient governance by empowering local
authorities to make decisions and legislate in areas for which they
1. Terrance Sandalow, The Limits of Municipal Power Under Home
Rule: A Role for the Courts, 48 MINN. L. REV. 643, 644 (quoting CHICAGO
HOME RULE COMM’N, MODERNIZING A CITY GOVERNMENT 193 (1954)).
2. There are currently forty-two states, including Rhode Island, with
some form of home rule. SANDRA M. STEVENSON, ANTINEAU ON LOCAL
GOVERNMENT LAW §21.01 (2d ed. 1997).
677
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678 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:677
are most properly suited. While the Rhode Island Supreme Court
was initially hostile towards the notion of home rule, it has slowly
begun to embrace the implications of home rule in Rhode Island
by carving out small areas of purely local concern over which
home rule communities may exercise control locally. I will argue
that the Rhode Island Supreme Court has made significant but
slow headway in implementing the Home Rule Amendment, a
trend which the court ought to continue by propounding clear
rules and affirming local decisions when appropriate. The
following discussion will begin with a general overview of the
development of home rule in the United States in Part I. The focus
will then turn to the history of home rule in the state of Rhode
Island in Part II. Finally, in Part III, the discussion will turn to a
more in-depth discussion of the application of Rhode Island’s
Home Rule Amendment as it has progressed, and as it is applied
today.
I. A BRIEF HISTORY OF HOME RULE IN AMERICA
The home rule movement in the United States has its roots in
the political turmoil of the late nineteenth century, when the
urbanization of the American population gave rise to ever larger
cities, and of course, all the complex needs that are associated
with such places.3 This is not to say, however, that local autonomy
only arose as a concern in the nineteenth century. In reality, the
idea that a distant state legislature would get involved in the
minute details of administering municipalities is impractical on
its face. Imagine a state legislature that is required to take action
each and every time a town needs to buy a new fire truck, paint
crosswalks, or hire a new town employee. The exigencies of day-today municipal operations have always required a degree of
autonomy, and no state legislature would seek to usurp that
autonomy in its entirety.4 The practical need for some degree of
local autonomy does nothing, however, to define the limits of
either a municipality’s autonomy or the state’s ability to encroach
upon it. The resulting uncertainty for state and municipal
3. Michael Monroe Kellogg Sebree, Comment, One Century of
Constitutional Home Rule: A Progress Report?, 64 WASH. L. REV. 155, 156
(1989).
4. Sandalow, supra note 1, at 647.
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CONSTITUTIONAL HOME RULE
679
relations began to come to the forefront as the American economy
became more industrial and urban populations soared. State
legislatures became increasingly involved in local decisionmaking, and states began to regulate to a degree and in ways they
simply never had.5 In the face of this tension between municipal
autonomy and legislative encroachment, popular and scholarly
discussion began concerning the limits of state legislative
authority and the existence, if any, of local initiative.6 It was
under these conditions that Missouri became the first state to pass
a constitutional home rule amendment in 1875.7 The pressures
that led Missouri and many states thereafter to adopt home rule
are best understood in light of the generally accepted wisdom
concerning the status of municipalities before home rule.
A. Dillon’s Rule: Municipality As Creature of the State
By the end of the nineteenth century, a clear rule had
developed concerning the limits of municipal power. This rule was,
in fact, a conception of municipal state relations which had been
long accepted but little noticed.8 Named for John Dillon, a much
respected legal scholar9 who gave the rule its most recognized
formulation, Dillon’s Rule recognizes the often stated proposition
that municipalities are mere creatures of the state. The rule as
stated in Dillon’s Treatise on the Law of Municipal Corporations is
5. Id. (“It was during the second half of the nineteenth century that
state legislatures across the country established by usage the power which,
from the beginning, they had in theory. Legislation descended into regulation
of the minutest details of municipal government.”).
6. Sebree, supra note 3, at 156-57.
7. Sandalow, supra note 1, at 644; Kenneth E. Vanlandingham,
Municipal Home Rule in the United States, 10 WM. & MARY L. REV. 269, 270
(1968).
8. Sebree, supra note 3, at 157.
9. John Forrest Dillon (1831-1914). Dillon was born in New York, but
moved to Iowa as a child. He was awarded an M.D. in 1850, but gave up the
practice of medicine in favor of law. He was elected to the Iowa Supreme
Court in 1862 on which he sat for eight years, ultimately as chief justice. In
1869 he was appointed as a circuit judge for the newly created Eighth
Circuit. In 1879 he resigned from the court and became a professor of law at
Columbia College. He is most remembered for his monumental TREATISE ON
THE LAW OF MUNICIPAL CORPORATIONS (1872) which established municipal
law as a separate field of study. 3 THE AMERICAN COUNCIL OF LEARNED
SOCIETIES, DICTIONARY OF AMERICAN BIOGRAPHY 311 (Allen Johnson & Dumas
Malone eds., 1959) (1930).
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680 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:677
as follows:
It is a general and undisputed proposition of law that a
municipal corporation possesses, and can exercise, the
following powers, and no others: First, those granted in
express words; second, those necessarily or fairly implied
in, or incident to, the powers expressly granted; third,
those essential to the declared objects and purposes of the
corporation – not simply convenient, but indispensable.10
Dillon’s Rule is obviously one of strict construction.11 When
doubt arises concerning the boundaries of power between a state
and a municipality, any conflicts will almost certainly be resolved
in favor of state legislation.12 The beauty of the rule is that it
conforms to the common understanding that municipalities are
inferior creatures of the state, while at the same time it recognizes
the existence of very limited and derivative local authority in
decision-making.13 While the rule traces all municipal authority
directly back to the state’s plenary legislative powers, it succeeds
in avoiding an overly simplistic view of this relationship, one
which might ignore historically entrenched and necessary
decision-making authority for municipalities. Municipalities can
and do make decisions on their own initiative, but the authority
under which such decisions are made is always granted by the
state, either expressly through legislation creating and regulating
the municipality, or indirectly as implied by the power expressly
granted because the decision-making is “indispensable” to the
purposes and objects of a municipality. In the final analysis,
Dillon’s Rule boils down to a rule of strict construction concerning
the power of municipalities to regulate or make decisions
concerning local matters.
By the end of the nineteenth century, Dillon’s Rule was
accepted by nearly every jurisdiction that considered the
question.14 The rule’s popularity likely arose from the fact that it
10. 1 JOHN F. DILLON, TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS
§ 55 (1872) (emphasis in original).
11. Willard D. Lorensen, Rethinking the West Virginia Municipal Code of
1969, 97 W. VA. L. REV. 653, 659 (1995).
12. Gary T. Schwartz, Reviewing and Revising Dillon’s Rule, 67 CHI.KENT L. REV. 1025 (1991).
13. Lorensen, supra note 11, at 658-59.
14. 1 MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 1.40 (3d ed.
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is founded in accepted principles, and is relatively straightforward
in its application.15 Any opposing view which points to some
inherent local autonomy or authority ultimately suffers from
uncertainty concerning limitations on municipal authority.16
Courts almost universally opted for the certainty of the traditional
rule rather than some uncertain, and perhaps even radical, notion
of local autonomy.17
Not surprisingly, Dillon’s Rule was viewed with unhappy
suspicion by local politicians and citizens who viewed the
interference with local decision-making as an invitation for
distant state legislatures to pass self-serving regulations.18
Whether the perception is accurate or not, local politicians felt
that they had to protect their municipalities, both from usurpation
of local initiative and from meddling outsiders who were bent on
filling their own coffers through burdensome regulation.19 The
resulting movement, known as the home rule movement, had a
variety of aspects, both legal and political.20 The popular political
home rule movement is beyond the scope of this Comment, except
to say that the goals and rhetoric of the popular movement have
often lead to confusion about exactly what is meant by “home rule”
in the legal context.21 Home rule, in its constitutional and
statutory sense, refers simply to a particular system for
distribution of power between local and state governmental
entities, and does not necessarily suggest any sudden accretion of
local authority, despite what might be suggested by the
exaggerated rhetoric of the early political movement.22 Perhaps
the best way to avoid confusion concerning the ultimate legal
1999).
15. Lorensen, supra note 11, at 658-59.
16. David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255,
2277-79 (2003).
17. George D. Vaubel, Toward Principles of State Restraint Upon the
Exercise of Municipal Power in Home Rule, 24 STETSON L. REV. 417, 420-21
(1995).
18. Sandalow, supra note 1, at 648.
19. Id.
20. Id.
21. Id. at 651 (“Moreover, failure to keep the distinction between the two
aspects of home rule clearly in view has resulted in considerable confusion as
to the extent to which correctives are needed for present home rule
doctrines.”).
22. Id. at 664.
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effect of home rule is to carefully consider the dual purposes of
home rule as it is applied in both the historical and contemporary
context.23
B. The Two Distinct Functions of Home Rule
Home rule, in the constitutional and statutory context, is
frequently broken into two clearly distinguishable functions.24
First, home rule may involve restrictions on the power of the state
legislature to legislate concerning local municipal governments.25
Second, home rule often involves a grant to municipalities of
authority to act in certain very limited circumstances without
prior authorization from the state legislature.26 The logical
distinction between how a state legislature may act in relation to
a municipality, and how a municipality may act on its own, is
extremely important in clarifying what exactly the effects of home
rule will be in a particular context.
The limitation of state power in relation to municipalities
most commonly takes the form of a limitation on local or special
legislation.27 This limitation means that state legislatures must
limit themselves to regulations that apply equally to all towns and
cities.28 The theory is that this will prevent state legislatures from
regulating within the minutia of daily municipal operations. This,
of course, does nothing to prevent state legislatures from passing
very specific regulations which apply alike to all cities and
23. Id. at 651-52 (“[E]numeration of the areas deemed not to be of
statewide concern would have been far more meaningful than enumeration of
subjects intended to be included within the initiative power of
municipalities.”).
24. Michele Timmons, Judy Grant, Teri Popp & Heidi Westby, County
Home Rules Comes to Minnesota, 19 WM. MITCHELL L. REV. 811, 816 (1993).
Accord STEVENSON, supra note 2, at § 21.02 (stating the two principle ways
that home rule can be important to local governments).
25. STEVENSON, supra note 2, at § 21.01.
26. Id.
27. Sandalow, supra note 1, at 648.
28. The circumstances under which a state legislature is prohibited from
passing such local legislation vary. For instance, in many states the
proscription would apply only to cities which have home rule authority. Many
states, including Rhode Island, require that a municipality pass a home rule
charter before being granted home rule authority. Until the town or city
passes such a charter, it will have a statutory charter and is subject to special
legislation concerning any and all details of its local operation. See, e.g.,
Opinion to the House of Representatives, 87 A.2d 693, 695 (R.I. 1952).
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towns.29 Such a limitation does function, nonetheless, to provide a
certain degree of restraint on the power of a state legislature to
act in relation to any particular municipality.
Another common home rule limitation on the power of state
legislatures is a proscription on legislation concerning form of
municipal government.30 This limitation presumably prevents a
state legislature from dictating how a municipality will organize
itself.31 Unlike proscriptions on local legislation, limitations on
interference with municipal form of government cannot be so
clearly defined. Questions about what exactly constitutes form of
government are hard to sort out, especially in the context of
preemption analysis.32 Therefore, while this protection is often
included as a limitation on state legislative authority in a home
rule scheme, it is less significant in terms of practical impact.
The second function of home rule, to bestow upon
municipalities the authority to act in certain areas independent of
state authorization, generally involves some attempt to define
29. Sandalow, supra note 1, at 649 (quoting McBain, The Law and the
Practice of Municipal Home Rule). One can imagine any number situations
where legislation involves details of municipal operation but applies to all
towns and cities. For example, Rhode Island’s general laws contain a statute
requiring that tickets issued for non-moving violations in a town or city
contain “the specific violation charged, the schedules of fines for the violation,
the time within which the privilege of paying the fine by mail may be
exercised, and the place to which the fine may be mailed.” R.I. GEN. LAWS §
45-6.1-7 (2005) (originally passed as a public law in 1965).
30. See, e.g., R.I. CONST. art. XIII, § 4 (1986).
31. See STEVENSON, supra note 2, at § 22.06.
32. It is often difficult to sort out whether a particular function of a
municipal board or committee is attached to its form of government. In Rhode
Island, for instance, the problem arises when contracting with certain local
employees, especially police personnel. It is generally accepted in Rhode
Island that police personnel ultimately fall under the control of the state
legislature because they act under the General Assembly’s broad and historic
police power. Rhode Island courts have therefore generally found that the
state can divest local boards of authority to regulate and contract with local
police. Interpretation of conflicts in this fashion has rendered invocations of
the protection against legislation concerning local form of government
generally unsuccessful in Rhode Island. See Marro v. Gen. Treasurer of
Cranston, 273 A.2d 660, 662 (R.I. 1971) (“[T]hey are officers who perform a
state duty and are subject to full control by the state.”). See also Munroe v.
East Greenwich, 733 A.2d 703, 711 (R.I. 1999) (“The requirement that each
city and town repose certain duties in a ‘planning board’ with the function of
review conferred upon the zoning board of review acting as a board of appeal,
does not affect the town form of government.”).
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exactly what authority has been granted and the manner in which
it may be claimed and exercised.33 Often, vague terms like “local
matters”34 or “local affairs”35 are used to describe the subject
matter upon which a municipality has decision-making authority.
Because there is often little useful guidance concerning what
might be considered a “local” concern, decisions about whether
particular matters are “local” are often left to the courts.36 For this
reason, the degree to which home rule truly broadens local
authority is often a question which can only be answered in time
as courts develop rules and categories to tackle the difficult
question of what kinds of concerns are “local” and therefore within
the purview of a municipality’s authority. 37
In addition to granting initiative concerning particular
matters, constitutions often establish a process by which a town
may create and pass a home rule charter which spells out in
greater detail the specific authority which will be exercised by the
municipality.38 In this way, home rule becomes an option in which
a municipality may or may not elect to participate. Once a charter
is in effect, a municipality’s authority will usually be limited by its
charter, in much the same way a legislature is limited by the
constitution of its state.39
This system of limitations and empowerments is why a home
rule system is attractive. The primary benefit of home rule is that
it allows local government to operate independently in areas
where it is best suited to innovate. By the same token, home rule
acts to strictly limit local government action so that it cannot
affect those outside of the local government. In addition, the
residents of a town or city have the ability to create a charter
which can provide limits specific to the needs and desires of a
33. Sandalow, supra note 1, at 648. See also STEVENSON, supra note 2, at
§21.02.
34. See, e.g., R.I. CONST. art. XIII, § 1 (1986) (using the words “in all local
matters”).
35. Sandalow, supra note 1, at 660.
36. Id.
37. Id. at 661-63.
38. See Timmons, supra note 24, at 823-27.
39. Home rule analysis in any particular instance will often involve
questions about the scope of authority actually granted by a municipal
charter. Questions about the process by which a charter will be interpreted
and expounded are beyond the scope of this Comment.
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particular town. The result, when properly implemented, is more
efficient government on both the local and state levels.
From here the discussion turns to the specific Rhode Island
home rule provisions. Going forward, it is important to keep in
mind the dual purposes of home rule: to limit legislative authority
and to define municipal initiative. The distinction between what
the state may do on the one hand, and what the municipality may
do on the other, is always significant in attempting to understand
the effect of home rule in any particular situation.
II. THE HISTORY OF RHODE ISLAND’S HOME RULE AMENDMENT
The arrival of home rule in Rhode Island cannot be
adequately understood without first contemplating Rhode Island’s
peculiar history, before and after statehood, leading up to the 1951
passage of the Home Rule Amendment. Rhode Island’s history
sheds light on the particular meaning of home rule in this state,
and it breathes a certain life into contemporary interpretation of
home rule in Rhode Island. To that end, this section will provide a
short history of the relations between town and state in Rhode
Island leading up to the passage of the Home Rule Amendment,
followed by a short introduction to the language of the
Amendment itself.
A. Rhode Island’s Peculiar History
“In Rhode Island the towns came first. They designed the
colonial government, and altered it several times. . . .”40 This fact,
that Rhode Island was initially a loose collection of virtually
independent towns, makes Rhode Island a particularly suitable
setting for a discussion on the limits of local authority. This, of
course, is only part of the story. The Colony of Rhode Island
underwent a series of political changes as it repeatedly modified
and changed royal charters, the last of which endured well after
the revolution and into the nineteenth century.41 Rhode Island’s
tumultuous history begins as the story of a colony slowly forming
40. SYDNEY V. JAMES, THE COLONIAL METAMORPHOSES IN RHODE ISLAND: A
STUDY OF INSTITUTIONS IN CHANGE 40 (Sheila L. Kemp & Bruce C. Daniels
eds., 2000).
41. WILLIAM G. MCLOUGHLIN, RHODE ISLAND: A HISTORY 127 (The States
and The Nation Series ed., 1986) (1978).
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from a loose association of towns and cities.42 Ultimately, for
reasons too complicated to be adequately covered here, a very
powerful state legislature was formed which has, at times, been
the subject of controversy and even popular revolt. The resulting
historical tension in Rhode Island between a powerful state
legislature and the towns that preceded its creation will be the
focus of the discussion to follow.
The Colony of Rhode Island43 began as five distinct
settlements.44 In the beginning, these towns were basically
independent outposts.45 These outposts began to rely on one
another in a variety of ways, but the ultimate desire to form a
colonial federation was rooted in a desire to combine forces against
outsiders seeking to annex and control the region.46 In this way,
seventeenth-century Rhode Island was actually a group of fiercely
independent settlements united in defense against a group of
common enemies.47 This desire to unite was not, however,
expressed through any lessened desire on the part of the
settlements to control their own fates.48 Fierce independence,
especially religious, was a defining characteristic of these early
settlements.49 It is difficult, perhaps unreasonable, to imagine
that this historical tradition of independent self-government did
42. Id. at 3. (“Its formative years, 1636 to 1690, were marked by two
simultaneous struggles: the search for unity among these diverse settlements
around Narragansett Bay and the resistance of settlers there to efforts by the
neighboring colonies to assume authority over their land.”).
43. McLoughlin says of Roger Williams’ initial arrival in Bristol, “Here,
on Mount Hope, Williams’ friend Ousamequin (Massasoit), chief of the
Wampanoags, had his winter headquarters.” MCLOUGHLIN, supra note 41, at
8. Quite obviously, the short history presented here does not start at the
beginning of civilization in what is now Rhode Island. That being said, this
Comment will surely reflect to some degree the solipsistic bent of the
conquerors’ history.
44. MCLOUGHLIN, supra note 41, at 3. The settlements were Providence,
Pocasset (Portsmouth), Newport, Pawtuxet, and Shawomet (Warwick).
45. JAMES, supra note 40, at 15 (“In the founding years, the original
towns independently carried on their own disputes according to their own
dynamics.”).
46. Id. at 40-41. See also MCLOUGHLIN, supra note 41, at 27-28 (“In order
to fend off the imperialistic ambitions of these aggressive neighbors, Rhode
Islanders began to see the necessity of some form of union. And that required
a charter from the king.”).
47. JAMES, supra note 40, at 40-41.
48. Id.
49. Id.
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not affect the way that Rhode Islanders related to Dillon’s Rule
and the subsequent home rule response.
Rhode Island’s first charter was acquired by Roger Williams
in 1644, and was granted by the English Parliament.50 It was
perhaps lucky for Roger Williams that King Charles I had been
run out of London just a couple of years earlier, leaving Williams
free to bargain for favorable terms with a sympathetic
Parliament.51 The terms of this first charter essentially left
decisions concerning form of government to the towns
themselves.52 In fact, the charter seemed to create a kind of
federation of towns, relying in large part on government by
referendum.53 It is not necessary to delve deeply into the
mechanics of the government created and repeatedly modified
under this initial charter, except to say that it was one clearly
focused on local authority and decision-making. Again, it is hard
to imagine that this early experience of a colony ruled by towns
operating in nearly complete independence did not affect the way
Rhode Islanders thought about Dillon’s Rule and home rule.54
Early colonial history in Rhode Island under the charter
granted in 1644 was tumultuous, which is understandable given
the fiercely independent and widely varying views of its early
50. MCLOUGHLIN, supra note 41, at 28.
51. Id. (“Being himself a Puritan . . . a friend of Oliver Cromwell, Sir
Henry Vane, John Milton, and other leaders of the Puritan movement,
Williams had immediate access to power that he would have lacked had the
king been in charge.”).
52. JAMES, supra note 40, at 42.
53. See Newport v. Horton, 41 A. 312, 313 (R.I. 1900). (“The form of
government adopted under [the 1644] charter was a federation of towns
rather than a colony. Legislation originated in the towns and the general
assembly had simply the power of approval or veto. Local self-government
was preserved to its full extent.”). Consider also James’ description of the
system of proposing and validating legislation: “A town might propose a new
law by majority vote. Then the town recorder would send a copy of it to each
of the other towns to be voted upon. If a majority of the total votes cast
favored the proposal, it would be declared a law until the next General
Assembly (court of election), when a general vote on the proposal would be
taken.” JAMES, supra note 40, at 43.
54. As an introduction to home rule in Rhode Island, it is not necessarily
the purpose of this Comment to offer a comprehensive explanation of the
relationship between Rhode Island’s early history and the meaning and
interpretation of the Home Rule Amendment, but rather to provide a broad
view of state/municipal relations in the state.
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inhabitants.55 Whether it was the weak government formed under
the early charter, the restoration of Charles II to the throne in
England, or yet another unknown cause is not clear; whatever the
reason the colony chose to seek a second charter in 1663.56 This
second charter took a form similar to those of the surrounding
colonies, with a core of magistrates and locally elected deputies
who, when combined in the General Assembly, wielded a great
deal of authority.57 The result on paper was a much more powerful
central government, but because of local resistance it would be
many years before there were actual results.58 Regardless, this
charter granted in 1663 lasted until a new state government was
organized under the constitution adopted by the people of Rhode
Island in 1842.59 Remarkably, a charter granted by Charles II over
110 years before the American Revolution was the constituting
authority of Rhode Island for almost 180 years, lasting sixty-six
years beyond the end of the Revolution.
The Charter of 1663, as has already been noted, did not
immediately give rise to a powerful central government. In fact,
the colony went through a great deal of turmoil during the forty or
so years following the acquisition of the Charter of 1663.60 At the
end of the seventeenth century and into the early eighteenth
century, however, the colony of Rhode Island came into its own,
and during this period the towns slowly lost their autonomous
influence, while the colonial government began to centralize its
power by moving more and more towards the kind of powerful
General Assembly that was anticipated by the Charter of 1663.61
55. JAMES, supra note 40, at 53-54.
56. Id. at 48-49. It would certainly have been desirable to seek the
blessing of Charles II, especially considering the tremendous border tensions
during this time. The map on page 41 of McLoughlin’s Rhode Island: A
History is a good visual aid in understanding the magnitude of the various
disputes.
57. See JAMES, supra note 40, at 49-50.
58. For an excellent discussion of the factors concerning early colonial
ineffectiveness see the section in James’ history concerning the period right
after the acquisition of the charter in 1663 at pages 53-63.
59. See Providence v. Moulton, 160 A. 75, 77-78 (R.I. 1932).
60. JAMES, supra note 40, at 112.
61. Id. It seems relatively clear that the need for centralized authority to
regulate commerce was at the heart of this change. James says of the central
government: “[It] was the star performer. It recovered after 1695 and soon
raced ahead. . . . It truly began to exercise the powers assigned to it by the
charter. . . .” Id. James goes on to say of the town governments that “[t]heir
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It continued to be the case at the beginning of the eighteenth
century that, as Sydney James wrote in his history of Rhode
Island institutions, “[c]entralized authority rested on consent
rather than force.”62 In other words, the General Assembly had
begun to wrest control from the towns, but it could do so only in
limited ways that would avoid upsetting the delicate balance that
had arisen between the towns and the colonial government.63 It is
especially interesting to note that it was during this period that
the General Assembly began to grant town charters, which the
towns claimed could not be infringed upon without a legal
proceeding.64 At the same time, the towns began to recognize their
status in relationship to the central authority, marking the end of
a period of autonomous towns and the beginning of a more unified
centralized, government while the economy became more focused
on commerce and trade.65
The period from the Revolution into the nineteenth century
represents a period of sudden economic prosperity in Rhode
Island, coupled with extremely slow social and political change.66
The result was a growing disparity between the rights of wealthier
land owners and those of poor and more recently arrived
immigrants.67 These pressures, especially those associated with
the limited franchise for those newly arrived, ultimately led to a
popular uprising commonly referred to as Dorr’s Rebellion.68
business fell increasingly under regulation by colonial law, they stressed
procedural formality more than before, and they began to act more like
administrative arms of the central government and less like agencies of
communities.” Id. at 112-13.
62. Id. at 131.
63. Id.
64. Id. (“This concept of privilege, while a product of views about a
hierarchy of authority, served as a barrier to unfettered central power.”). It is
equally interesting that these early charters often contain expressions that
mirror the later formulation of Dillon’s Rule. For example, the charter
granted during this period to Newport gave the freemen of that town the
authority to act on “‘prudential affairs in passing acts and orders for the duly
governing affairs only properly needful and necessary for said town, and
proper and allowable for said town.’” Id. at 131 (emphasis added).
65. JAMES, supra note 40, at 68-69. See also MCLOUGHLIN, supra note 41,
at 50-51.
66. MCLOUGHLIN, supra note 41, at 109.
67. Id. at 109-10.
68. Id. at 126-28. The Dorr Rebellion was the culmination of a myriad of
historical factors resulting largely from the preservation of an antiquated,
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Thomas Dorr’s69 attempt to supplant the then-government of
Rhode Island with a newly constituted government was
unsuccessful, but popular pressure ultimately resulted in the
adoption of a state constitution and the formation of a state
government much like the one currently in place in Rhode
Island.70 The power of the General Assembly by this period was
great and the passage of the constitution in 1842 did not
necessarily result in a great limitation on that power. This is the
most significant aspect of this period of history for our purposes,
inequitable, and highly centralized political system. This political system
combined with rampant xenophobia would produce inevitable violent conflict.
An editorial piece from the Providence Journal authored by Henry Anthony
and William Goddard on the eve of a constitutional referendum gives a sense
of the times: “Now is the time to choose between these two systems. Where
will you place the great conservative check in our government? With
foreigners responsible only to their priests, or with intelligent Rhode Island
Farmers?” Patrick T. Conley, The Dorr Rebellion and American
Constitutional Theory: Popular Constituent Sovereignty, Political Questions,
and Luther v. Borden, in LIBERTY AND JUSTICE: A HISTORY OF LAW AND
LAWYERS IN RHODE ISLAND, 1636-1998, 244, 251 (Patrick T. Conley ed., 1998).
69. Thomas Wilson Dorr (1805-1854). Best known as the leader of the
“Dorr Rebellion,” Dorr graduated from Harvard second in his class before
studying law in New York. Dorr was a state legislator and state Democratic
Party chairman before becoming governor under the so-called “People’s
Constitution.” Dorr favored a system of “free suffrage” which would not
withhold the vote from foreign-born residents of the state. When Democrats
regained control of the General Assembly in 1935 for the first time in eightyone years, Governor Green said this change was inspired by “the spiritual
presence of the patron saint of the Democratic Party in Rhode Island –
Thomas Wilson Dorr!” Patrick T. Conley, Attorney Thomas Dorr: Rhode
Island’s Foremost Political Reformer, in LIBERTY AND JUSTICE: A HISTORY OF
LAW AND LAWYERS IN RHODE ISLAND, 1636-1998, supra note 68, at 239, 241.
70. It is interesting to note that much of the controversy concerning
Dorr’s Rebellion seems to have been associated with a feeling that the
Charter of 1663 was deeply undemocratic. In a much studied document
known as “Burke’s Report to the House of Representatives,” that charter is
uniformly condemned: “It invested all power in the grantees, and clothed
them with exclusive political as well as corporate privileges and authority; in
short, it abrogated the democratic government established by the charter of
1643, and created an OLIGARCHY in its stead as pure in its oligarchic
characteristics as any which have existed in the States of Greece, or the
misnamed Italian republics of later times. And such has been the government
of Rhode Island in substance, whatever may have been its ostensible form,
from the acceptance of the charter of Charles II to its final death and burial
in the popular movements of 1842. . . .” H.R. REP. NO. 546, at 8 (1844)
(emphasis in original).
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namely the General Assembly’s greatly centralized authority.71
The emphasis on Rhode Island’s general history leading up to
Dorr’s Rebellion is, in many respects, centrally focused on the
relationship between town and state authority. At this point in the
analysis, the focus on home rule is better served by a shift to a
discussion of the early Rhode Island Supreme Court decisions
concerning the relationship between municipal and state
authority.
B. Pre-Home Rule Cases
Early decisions concerning state/municipal relations in Rhode
Island before the passage of the Home Rule Amendment in 1951
embraced a view which was entirely consistent with Dillon’s Rule.
A quick look at just a few of those decisions should give an idea of
how Rhode Island’s history affected the judicial view of
state/municipal relations, and also just how strict that view
became.
One early Rhode Island Supreme Court decision, City of
Newport v. Horton,72 is a particularly good example of how colonial
history in Rhode Island ultimately reinforced a limited
understanding of local authority.73 In Horton, the court was asked
to decide “whether the general assembly has power to create a
police commission, to be appointed by the governor, which can
appoint a chief of police.”74 The City of Newport claimed that
towns and villages in Rhode Island have a long history of local
self-government.75 In analyzing this claim of self-government, the
court looked to the history of Rhode Island and the progression of
colonial charters to support the ultimate conclusion that the City
of Newport has not retained authority over it’s police force.76 The
71. The struggle for reform in Rhode Island exemplified a feeling among
immigrants all over the country that equality would be achieved through
political self-determination, a sentiment which in turn helped to drive the
home rule movement in mostly immigrant urban areas. One Irish-American
newspaper in New York City even said of the reform movement in Rhode
Island: “It is our own Home Rule question.” Conley, supra note 68, at 253.
72. 61 A. 759 (R.I. 1905).
73. 47 A.312 (R.I. 1900). Accord Horton v. Newport, 61 A. 759 (R.I. 1905).
74. 47 A. at 312.
75. Id. at 313 (describing petitioners as claiming that local self
government is “fundamental and historic” in Rhode Island).
76. Id. at 313-14 (“We do not find that the history of legislation in this
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Horton court, however, did not make any broad claims about what
local authority in fact might exist, but its reasoning seems to point
to the existence of at least some degree of local initiative.77
Only thirty-two years after the decision in Horton, in City of
Providence v. Moulton, the court expressed an even more limited,
perhaps even extreme, view of local autonomy in Rhode Island
based in large part on the state’s constitutional history.78 The
court in Moulton affirmed state legislation creating a “Board of
Public Safety” for the City of Providence which replaced certain
locally appointed officials with officials appointed by the
governor.79 The court again reviewed the history of Rhode Island
and came to the somewhat startling conclusion that “cities and
towns have no inherent right of local government.”80 The court in
that case also directly cites Dillon’s Rule,81 thus completing the
shift in Rhode Island from a small federation of independent and
self-governed towns to a state, like most others, in which towns
are limited entirely by whatever authority the state might choose
to grant them.
C. The Passage of the Amendment
The Home Rule Amendment was one of a small number of
amendments put forward at the limited constitutional convention
of 1951.82 While the political forces that led to the ultimate
drafting of the amendment are complicated enough to justify a
State shows that the clause relating to the powers ‘retained by the people’
necessarily implies that the General Assembly has no right to pass a law
affecting a particular town or city.”).
77. Id. at 314. (“Towns and cities are recognized in the constitution, and
doubtless they have rights which cannot be infringed. What the full limit and
scope of those rights may be cannot be determined in the decision of this
case.”).
78. 160 A. 75, 75 (R.I. 1932).
79. Id. at 75-77.
80. Id. at 78. The court points in large part to the tremendous authority
that the 1663 charter placed in the state government, but pays little or no
regard to what actual authority the state wielded under that instrument, or
the slow progression of state/municipal relations. Id.
81. Id. at 79. Cf. Nixon v. Malloy, 161 A. 135 (R.I. 1932) (holding that city
of Central Falls had no authority over its board of canvassers being strictly
limited by the authority granted by the General Assembly).
82. Proceedings of the Limited Constitutional Convention of the State of
Rhode Island (Rhode Island Secretary of State) (1951).
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study in themselves, it is clear that the amendment was popular.83
In fact, any minor dissention appearing in the record originated
with forces complaining that the version of the amendment put
forth at the convention was not adequate.84 This suggestion seems
to have met with little acceptance85 and the resolution passed
unanimously with 170 ayes.86
The Home Rule Amendment was Article XXVII of the
amendments to the Rhode Island Constitution until 1986.87 The
plenary constitutional convention of 1986 overhauled the thenexisting constitution and removed the Home Rule Amendment to
Article XIII, where it remains today.88
D. The Text of Rhode Island’s Home Rule Amendment
The following is excerpted from the 2005 version of the Rhode
Island Constitution.89 Only those sections of most relevance to the
discussion at hand have been included.
§ 1. Intent of article
It is the intention of this article to grant and confirm to
the people of every city and town in this state the right of
self government in all local matters.
83. The motion to pass the resolution pertaining to the Home Rule
Amendment was seconded by no less than thirteen delegates to the
convention. Id. at 125-26.
84. “Mr. Harold R. Smith, Cranston: . . .I sincerely believe that the
amendment offered by the Governor’s conferees does not go far enough and
that the people of Rhode Island would like to have a more liberal home rule
amendment. . .” Id. at 128. The most serious issue of contention appears to
have been the power of cities to levy and collect taxes. Id. at 130.
85. Mr. Smith, see supra note 84, seems to have been the butt of some
humor concerning his passionate views on home rule. “This humor that I
hear does not bother me. My resolution relative to home rule is a product of
many, many years of research and study by hundreds of capable, responsible
people throughout this country.” Id. at 129.
86. Id. at 131. Apparently Mr. Smith was willing to take what he could
get.
87. In re Advisory Opinion to the House of Representatives, 628 A.2d
537, 538 (R.I. 1993).
88. Id.
89. R.I. CONST. art. XIII, §§ 1-11 (1986).
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§ 2. Local legislative powers
Every city and town shall have the power at any time to
adopt a charter, amend its charter, enact and amend local
laws relating to its property, affairs and government not
inconsistent with this Constitution and laws enacted by
the general assembly in conformity with the powers
reserved to the general assembly.
§ 4. Powers of general assembly over cities and towns
The general assembly shall have the power to act in
relation to the property, affairs and government of any
city or town by general laws which shall apply alike to all
cities and towns, but which shall not affect the form of
government of any city or town. The general assembly
shall also have the power to act in relation to the
property, affairs and government of a particular city or
town provided that such legislative action shall become
effective only upon approval by a majority of the qualified
electors of the said city or town voting at a general or
special election, except that in the case of acts involving
the imposition of a tax or the expenditure of money by a
town the same shall provide for the submission thereof to
those electors in said town qualified to vote upon a
proposition to impose a tax or for the expenditure of
money.
§ 5. Local taxing and borrowing powers
Nothing contained in this article shall be deemed to grant
to any city or town the power to levy, assess and collect
taxes or to borrow money, except as authorized by the
general assembly.
§ 7. Adoption of charters
Within one year from the date of the election of the
charter commission the charter framed by the
commission shall be submitted to the legislative body of
the city or town which body shall provide for publication
of said charter and shall provide for the submission of
said charter to the electors of a city or town qualified to
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vote for general state officers at the general election next
succeeding thirty days from the date of the submission of
the charter by the charter commission. If said charter is
approved by a majority of said electors voting thereon, it
shall become effective upon the date fixed therein.
§ 8. Amendments to charters
The legislative body of any city or town may propose
amendments to a charter which amendments shall be
submitted for approval in the same manner as provided
in this article for the adoption of a charter except that the
same may be submitted at a special election, and
provided further that in the case of a town, amendments
concerning a proposition to impose a tax or for the
expenditure of money, shall be submitted at a special or
regular financial town meeting.
§ 11. Judicial powers unaffected by article
The judicial powers of the state shall not be diminished
by the provisions of this article.
III. APPLICATION OF RHODE ISLAND’S HOME RULE AMENDMENT
A. Early Decisions Restricting Home Rule Initiative
The 1951 passage of the Home Rule Amendment in Rhode
Island was attended shortly thereafter by confusion and concern
about the ultimate effect of the Amendment. The General
Assembly was unclear about what authority it retained, what
authority was granted to home rule municipalities, and ultimately
what sort of state legislation concerning municipalities would or
would not be upheld by the courts.90 The General Assembly almost
90. It is interesting to note that the General Assembly seems to have
recognized immediately that the Home Rule Amendment simply could not be
interpreted without aid from the judiciary because it lacked guidelines as to
what matters are appropriate for local action. In short order, the Rhode
Island Supreme Court made the prominent judicial role explicit, “Instead [the
Home Rule Amendment] leaves to the courts the responsibility of resolving
the conflicts where the state and municipality have each legislated on the
same subject matter.” Marro v. Gen. Treasurer of Cranston, 273 A.2d 660,
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immediately propounded questions to the Rhode Island Supreme
Court in an attempt to clear up uncertainty, and then propounded
another set of questions to the Supreme Court a year later.91
The first Opinion to the House of Representatives92 was sent to
the House of Representatives in April of 1952. The questions sent
to the court, of which there were two, were extremely broad. 93 As
a result, the advisory opinion is so general that it provides little
guidance concerning the change wrought by the Amendment. It
would seem that the General Assembly was so nervous about the
limits of its authority and the degree to which it had been
deprived of authority that it simply could not wait for practical
questions to arise.
This advisory opinion does, however, serve to reinforce a
couple of points. First, it emphasizes a clear distinction between
municipalities before and after they pass a home rule charter,
making clear that the provisions of the Home Rule Amendment do
not result in any automatic change in the status of Rhode Island
municipalities.94 Second, the opinion makes clear that once a
home rule charter has been adopted, the General Assembly may
act in certain areas of local concern only in either of two ways: (1)
by a general act that applies equally to all towns and cities, or (2)
662 (R.I. 1971).
91. Opinion to the House of Representatives, 96 A.2d 627 (R.I. 1953);
Opinion to the House of Representatives, 87 A.2d 693 (R.I. 1952).
92. 87 A.2d 693 (R.I. 1952).
93.
1. In the light of Article XXVIII of the articles of amendment to the
constitution of the
state would it be a valid exercise of the legislative power if the
general assembly should provide
(a) for the tenure of office of any employee, elected or appointed, of
any city or town;
(b) for the fixing of the time of the holding of any town meeting;
(c) for the fixing of the time of the beginning and the end of the fiscal
year of any city or town;
(d) for the regulation of the use of parking meter devices in any city
or town?
2. Is a law incorporating a city or town enacted before the adoption
of Article XXVIII of the articles of amendment to the constitution of
the state a ‘charter’ subject to the provisions of said Article XXVIII?
Id. at 695.
94. Id. at 695-96; see also Capone v. Nunes, 132 A.2d 80, 82 (R.I. 1957).
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by a special act directed to a particular town or city which is
approved by the majority of the qualified electors of that town or
city.95 Because the advisory opinion primarily concerned the
General Assembly’s authority after the Home Rule Amendment,
the court emphasized limitations on special legislation rather than
defining what matters will be considered local concerns for the
purpose of home rule authority. The court emphasized the power
retained by the General Assembly, noting that the only absolute
restriction that the Home Rule Amendment places on legislative
authority is a prohibition on legislation that might affect the form
of a municipal government.96
By April of 1953, the General Assembly was focusing in on the
reservation of power to the General Assembly concerning
municipal elections, and the resulting Opinion to the House of
Representatives further set the tone for early judicial
interpretation of home rule in Rhode Island.97 The opinion was in
response to fifteen questions propounded by the House of
Representatives,98 which the court broke into three general
95. Opinion to the House, 87 A.2d at 696-97.
96. Id. at 696.
97. 96 A.2d at 627.
98. The questions propounded are far too voluminous to be included here
in their entirety. The drafters apparently forgot the first rule of good writing
– know thy audience. The following excerpt more than suffices to capture the
tone:
1. Are provisions for non-partisan nominations or elections or
elections by ballots bearing no party designations in a charter duly
adopted by the qualified electors of a city in accordance with the
provisions of Article XXVIII of the Amendments to the Constitution,
in conflict with, repugnant to, or inconsistent with the provisions of
Section 4 of said Article XXVIII of the Amendments to the
Constitution reserving to the General Assembly the power to
legislate in matters not affecting the form of government of any city?
2. Are provisions for non-partisan nominations or elections or
elections by ballots bearing no party designations in a duly adopted
charter in conflict with the provisions of Section 7 of Article XXIX of
the Amendments to the Constitution providing that the General
Assembly shall have full power to prescribe the manner of
conducting elections?
3. If either or both of the above questions are answered in the
affirmative, and such charter provides that if any part thereof is held
to be unconstitutional, it shall not affect the validity of the
remainder, are nomination and elections in the city adopting the
charter to be made and held in accordance with the law applicable
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categories: (1) the validity of any home rule charter requirement
that town nominations and elections be nonpartisan, (2) the
validity of any home rule charter provision setting the times for
holding municipal general elections, and finally (3) the validity of
a home rule charter provision specifying the number of signatures
necessary on municipal nominating papers.99 The court answered
all three categories of question by affirming the post-home-rule
plenary power of the General Assembly concerning the conduct of
all elections, including municipal general elections.100 The opinion
based its conclusion on two primary foundations. First, the court
pointed to the “long history of the general assembly’s exclusive
authority over the conduct of elections, which was expressly
reaffirmed by article XXIX of amendments.”101 Second, the court
prior to the adoption of the charter?
6. If a duly adopted charter provides for holding municipal general
elections at times other than those fixed by acts of the General
Assembly applicable to that city, is such charter provision in
violation of or inconsistent with the provisions of Section 4 of Article
XXVIII of the amendments to the Constitution reserving to the
General Assembly the power to legislate in matters not affecting the
form of government of any city? * * *
14. Are provisions in a duly adopted charter prescribing criminal
penalties for violation of prohibitions in said charter in conflict with
the provisions of Section 4 of Article XXVIII of the Amendments to
the Constitution reserving in the General Assembly the power to
legislate in matters not affecting the form of government of any city?
15. Are provisions in a duly adopted charter prohibiting a resident of
that city holding office in or being employed by the State or Federal
government, except notaries public and members of the militia or
armed forces, from making any contract with the city or sharing in
the profits of any person or corporation making any contract with
the city in conflict with the provisions of
(a) Section 4 of Article XXVIII of the Amendments to the
Constitution reserving to the General Assembly the power to
legislate in matters not affecting the form of government of any city?
(b) the privileges and immunities clause of Article XIV of the
Amendments to the Constitution of the United States?
Id. at 627-29.
99. Id. at 629.
100. Id. at 630.
101. Id. The court will always strictly construe the Home Rule
Amendment if a conflict arises with any other constitutionally reserved
authority. See Royal v. Barry, 160 A.2d 572, 575 (R.I. 1960) (“Article XII of
the constitution expressly and affirmatively reserves to the legislature sole
responsibility in the field of education and nothing contained in article
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narrowly interpreted any control over elections granted to
municipalities under the Home Rule Amendment, stating that
such authority is “expressly limited to ‘the nomination and
election of a charter commission.’”102 The reasoning seems to have
derived in part from a certain deference towards the General
Assembly’s historic and broad plenary authority, as discussed
supra in Part IIA. Significantly, the court’s reasoning further
suggests that Dillon’s Rule, with its strict derivative
understanding of municipal authority, partially survives in Rhode
Island’s post-home-rule jurisprudence.103 This is not to say that
the 1953 advisory opinion explicitly refers to Dillon’s Rule.
Rather, it adopts the view that the language in the Amendment
must be strictly construed to avoid infringing on the reserved
powers, namely the power to control elections, of the General
Assembly.104 While it may be possible to view this opinion as
narrowly focused on municipal general elections, a cautious and
restrictive understanding of the Amendment continued to be a
hallmark of early Rhode Island Supreme Court decisions
concerning home rule.
The Rhode Island Supreme Court’s strict limitation on home
rule power early on is exemplified by the case of Newport
Amusement Co. v. Maher,105 in which the court held that home
rule municipalities do not have even limited licensing authority
for local businesses.106 The court in that case ruled on a local
ordinance in the city of Newport which purported to require that
all businesses obtain a license from the city before providing coin-
XXVIII is in derogation thereof.”).
102. Opinion to the House, 96 A.2d at 630-31.
103. See Wood v. Peckham, 98 A.2d 669, 670 (R.I. 1953) (declaring in the
same year as the advisory opinion of 1953, “It is declared to be a fundamental
principle that municipal ordinances are inferior in status and subordinate to
the laws of the state.”). See also State v. Pascale, 134 A.2d 149, 151-52 (R.I.
1957) (citing Wood in striking down a conviction for a traffic violation
differing slightly from the state penalty for the same offense); Bertrand v. Di
Carlo, 304 A.2d 658, 659-60 (R.I. 1973) (“It is a well-settled rule that cities
and towns have no power to enact ordinances except those powers from time
to time delegated to them by the Legislature. And it is a fundamental rule of
construction that such powers, being delegated, should be strictly
construed.”).
104. Opinion to the House, 96 A.2d at 630-31.
105. 166 A.2d 216 (R.I. 1960).
106. Id. at 218.
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operated juke boxes or games to the public.107 The court rejected
the city’s authority to enact this or any licensing regime. Such a
broad judicially-created prohibition on licensing of local businesses
by home rule municipalities grew out of an interpretation of
Rhode Island’s Home Rule Amendment that was significantly
narrower than that of any other home rule jurisdiction at the
time.108 The court in Newport Amusement Co. reasoned that if
licensing of jukeboxes, or any other kind of licensing, was
considered to be a local matter for purposes of home rule, then
“home rule municipalities would be authorized not only to enact
licensing laws for their localities inconsistent with those enacted
by the legislature on the same matters for the rest of the state, but
also to enact such laws whether the legislature had ever done so
previously on the same subjects or not.”109
By employing reasoning that seemed driven by a broad
misunderstanding of the purpose and effect of home rule, the court
held that licensing “is the exclusive prerogative of the legislature
except where it has expressly conferred such power upon a city or
town.”110 The court here appeared not to consider the possibility
that the Home Rule Amendment was in fact intended to confer
upon municipalities a certain limited ability to enact regulations
not inconsistent with those enacted by the General Assembly. In
other words, a municipality might be granted the authority to
pass its own jukebox licensing ordinances so long as they did not
interfere with any such provisions already in place under state
licensing authority. If the General Assembly saw fit to regulate
jukeboxes, it could subsequently preempt municipal licensing with
its own state jukebox licensing provisions, an outcome which fits
107. Id. at 217.
108. Sandalow, supra note 1, at 684. (“A recent Rhode Island decision
holds, contrary to every other case in which the issue has been presented,
that a home rule municipality does not possess licensing power.”) The
reasoning in Newport Amusement Co. ran counter to generally accepted
notions of home rule, even as they were expressed by Rhode Islanders. For
instance, Robert P. Bolan writing for the Bureau of Government Research at
the University of Rhode Island in the same year as the Newport Amusement
Co. decision writes that “[t]he legislature of a home rule city is the successor
to the state legislature in exercising certain powers within its own territory.”
ROBERT P. BOLAN, FUNDAMENTALS OF HOME RULE 12 (University of Rhode
Island Bureau of Government Research 1960).
109. Newport Amusement Co., 166 A.2d at 219.
110. Id. at 220.
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with both the spirit and the language of the Home Rule
Amendment.111 Having missed this possible via media, and out of
a fear that home rule might allow municipalities to run amok, the
court in this decision adopts an analysis that strictly limits home
rule authority to avoid “a grant of plenary power to enact licensing
laws without regard to the will of the legislature. . . .”112 Early
decisions in the vein of Newport Amusement Co. by the Rhode
Island Supreme Court ushered in a period of very limited
authority for municipalities under the Rhode Island Home Rule
Amendment.
As for the limitations that home rule placed on the General
Assembly’s power to legislate concerning home rule
municipalities, it is hard to know exactly why, but the Rhode
Island Supreme Court did not have many opportunities to take up
the issue of special legislation in its early home rule decisions. It
did, on occasion, emphasize that the General Assembly retained
nearly complete authority to regulate in areas of local concern, so
long as such legislation was general or specific in nature but
submitted to the qualified voters of the specific municipality in
question.113 Early on, however, the court either did not see fit to,
or did not have the opportunity to confront special state legislation
in an area of local concern which did not meet the requirements of
the Home Rule Amendment. This might be explained, in part, by
the fact that municipalities had not yet truly come to understand
the significance of the Home Rule Amendment’s prohibition on
special legislation, or it might even be that the General Assembly
was especially cautious about obeying the limits of that
Amendment. In any case, the majority of home rule cases which
came before the court up until the late 1980s had the court either
111. See Section IIIC1 for a discussion of the distinction between home
rule and preemption analysis. The rule in Newport Amusement Co. stands
today. See Amico’s Inc. v. Mattos, 789 A.2d 899, 903 (R.I. 2002) (“[T]he
General Assembly retains exclusive power over the licensing of Rhode Island
businesses.”). See also Nugent v. East Providence, 238 A.2d 758 (R.I. 1968)
(holding that East Providence may not license and regulate cable television);
State v. Krzak, 196 A.2d 417 (R.I. 1964).
112. Newport Amusement Co., 166 A.2d at 219.
113. See, e.g., Bertrand v. Di Carlo, 304 A.2d 658, 659-60 (R.I. 1973).
Accord Providence Lodge No. 3 FOP v. Providence, 730 A.2d 17, 19-20 (R.I.
1999); Marran v. Baird, 635 A.2d 1174, 1178 (R.I. 1994); Mongony v.
Bevilacqua, 432 A.2d 661, 664 (R.I. 1981).
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invalidating an action by a municipality as not within that
municipality’s home rule province, or finding that a law enacted
by the General Assembly was properly general, thus preempting
any conflicting municipal ordinances regardless of the validity of
the ordinance under a home rule charter.114
As a result of the Rhode Island Supreme Court’s narrow
interpretation of home rule and a dearth of cases invalidating
state legislation on home rule grounds, any commentator looking
at the status of home rule in Rhode Island before the late 1980s
would have been hard-pressed to point out exactly how the Home
Rule Amendment had affected municipal initiative, if at all. It is
important to note that this does not mean that changes were not
afoot, or that the growing number of municipalities that chose to
pass a home rule charter were not exercising their new found
authority, but rather that the extent of that authority could not
easily be determined by looking at the case law.
B. Recent Developments In the Case Law
The Rhode Island Supreme Court’s attitude towards home
rule in Rhode Island saw significant development toward a
broader view of the authority granted to home rule municipalities
beginning in the late 1980s. In 1989, the court published two
opinions of significance which made strides in clarifying both the
limitation on special legislation by the General Assembly and the
proper status of municipal home rule initiative. Then, a year later,
the court again invalidated state legislation concerning a home
rule municipality as failing to meet the requirements under the
Home Rule Amendment for passage of special legislation. Finally,
and perhaps most significantly, the court in 1993 issued an
advisory opinion affirming municipal authority over local voting
districts that clearly established the existence of meaningful home
rule initiative under the Amendment. This string of cases, one
could argue, establishes a limited but significant movement in the
direction of greater recognition for municipal initiative and away
from the influence of Dillon’s Rule, as exemplified by earlier home
rule decisions in Rhode Island.
The first of these relatively recent decisions, Bruckshaw v.
114.
See supra note 103.
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Paolino,115 emphasizes the limitation that the Home Rule
Amendment places on special legislation as well as the existence
of local concerns over which municipalities may exercise their
initiative. The underlying dispute in Bruckshaw involved the
passage of a public law by the General Assembly entitled “An Act
Relating To the Retirement Of Employees Of The City Of
Providence,” which purported to allow certain Providence city
employees to pay into the Providence employee retirement system
and thereby “buy back credits toward retirement.”116 The city
refused to accept applications under this provision, and one of the
affected employees filed for declaratory relief, hoping to force the
city to comply with the legislation.117 The city counterclaimed
seeking declaratory relief and a finding that the public law was
invalid, apparently on a theory that it was a violation of the Home
Rule Amendment.118 In affirming the city’s victory in the superior
court, the Rhode Island Supreme Court found both that the
pension plan was a “local matter” and that the public law
modifying it was special legislation that had not been submitted to
the voters of Providence.119 The court in Bruckshaw therefore held
that “the 1985 Retirement Act is invalid and unenforceable.”120
The decision in Bruckshaw was primarily significant because the
court addressed the Home Rule Amendment’s prohibition on
special legislation directly, invalidating an act passed by the
General Assembly because it was special legislation which
conflicted with a local home rule ordinance not approved by local
voters.121 In addition, while the court did not directly address the
initiative power of home rule municipalities, it did point out that
administration of an employee pension plan was at least one “local
concern” over which a home rule municipality may exercise
control.122 The decision in Bruckshaw primarily reinforced a city’s
power to resist special legislation, but it can also be seen as the
first in a series of decisions which give teeth to the Home Rule
115.
116.
117.
118.
119.
120.
121.
122.
557 A.2d 1221, 1223 (R.I. 1989).
Id. at 1222.
Id.
Id.
Id. at 1223.
Id. at 1224.
Id. at 1223.
Id.
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Amendment.
The second decision in this line of cases, Westerly Residents
for Thoughtful Development, Inc. v. Brancato,123 reinforced the
power of home rule municipalities to act in areas of local concern
under the Home Rule Amendment. In that case, a citizens’ group
seeking to prevent expansion of the local sewer system claimed
that the legislation giving the town authority to expand the sewer
system was a violation of the non-delegation doctrine and a
violation of the Home Rule Amendment because the provisions
were not submitted to the voters of Westerly.124 The Rhode Island
Supreme Court turned the argument on its head, holding that the
Westerly home rule charter itself gave the town the power to
expand its own sewer district because “[w]hether a sewer line is
installed on a particular street in the town of Westerly is not of
concern to all the residents of the State of Rhode Island but is of
concern to the residents of the town of Westerly.”125 The court,
citing Bruckshaw, reasoned that because the regulation of sewer
lines is a “purely local function,” and because the town of Westerly
has a valid home rule charter, that “Westerly’s power to expand
and maintain the sewer system is inherent in its home rule
charter.”126 The court simply did not reach the constitutionality of
the state legislation, which was not necessary to grant Westerly’s
municipal government authority over the Westerly sewer system
in the first place.127 In addition, the court in Brancato gave some
guidance as to what concerns might be considered purely local by
noting that such concerns will “directly affect” only the residents
of the locality in question, which was also true for the municipal
pension plan in Bruckshaw.128 The decision in Brancato helps to
define the boundaries of home rule initiative and to expand upon
the notion of local concerns employed in Bruckshaw.
A year later, the court again struck down special legislation in
McCarthy v. Johnson,129 in which the General Assembly passed
legislation extending the notice requirement for a particular
123.
124.
125.
126.
127.
128.
129.
565 A.2d 1662 (R.I. 1989).
Id. at 1263.
Id. at 1264.
Id.
Id.
Id.
574 A.2d 1229 (R.I. 1990).
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personal injury claim against the City of Newport.130 A general
law applicable to all towns and cities in Rhode Island requires
that a claimant, in order to preserve a claim against a city, give
notice to the city within sixty days of the accident.131 The plaintiff
in McCarthy, who had been injured by a low-hanging branch in
the City of Newport, took eighteen months to give notice to the
city.132 In response, the General Assembly passed legislation
specific to McCarthy’s claim allowing her an extended notice
period.133 The Rhode Island Supreme Court in McCarthy soundly
rejected the plaintiff’s argument that extension of notice falls
under the General Assembly’s unquestioned authority to confer
jurisdiction, instead finding that the act in question was
“legislation directed at a single home-rule community which
benefits a single party.”134 The court reasoned that the special
legislation in that case could not be distinguished from the special
legislation concerning the municipal pension plan in Bruckshaw,
and was therefore invalid.135 The decision in McCarthy is
important because it carries forward the enforcement of the Home
Rule proscription on special legislation begun in Bruckshaw, and
it does so strongly: “This court has recognized that except as
limited by the Constitution of the United States and the
Constitution of the State of Rhode Island, the powers of the
General Assembly are plenary and unlimited. . . . However, we are
firmly of the opinion that article XIII, section 4, is such a
limitation.”136
The Rhode Island Supreme Court confirmed both the power
granted to home rule municipalities and the firm limitation that
the Home Rule Amendment places on special legislation in an
advisory opinion to the House of Representatives in 1993.137 The
130. Id. at 1229-30.
131. Id. at 1230.
132. Id. at 1229.
133. Id. at 1229-30.
134. Id. at 1232.
135. Id. at 1231.
136. Id. at 1232. (Citations Omitted).
137. In re Advisory Opinion to the House of Representatives, 628 A.2d
537, 537 (R.I. 1993). This case comes a year after the important decision in
East Greenwich v. O’Neil discussed infra in Part IIIC2. O’Neil is important in
developing an analysis of what concerns are local, and so in that sense the
decision in O’Neil is also recognition of local initiative.
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questions propounded to the court in that case involved a plan by
the House of Representatives to adjust the local voting districts in
the town of Lincoln and remove the then current office holders.138
The questions propounded actually concerned the
constitutionality of the proposed legislation under the Fourteenth
Amendment to the Federal Constitution.139 The court, however,
refused to address the constitutionality of the apportionment plan
under the Federal Constitution, and instead chose to invalidate
the proposed legislation as a violation of the Home Rule
Amendment.140 In so doing, the court cited its decisions in both
McCarthy and Bruckshaw for the proposition that an act
pertaining to only one home rule town or city requires the
approval of a majority of the electors of that city.141 The proposed
legislation, the court reasoned, applied only to the town of Lincoln
and had not been approved by the voters of Lincoln, and therefore
was invalid.142
The court, however, did not stop with the proposed legislation.
It went on to state that the original act by the General Assembly,
passed in 1978, that purported to create the then existing voting
districts was an “unnecessary, meaningless exercise since the
reapportionment plan was enacted locally.”143 In other words, the
municipal voting districts in the town of Lincoln exist by virtue of
local authority granted under the Home Rule Amendment, and
any attempt by the General Assembly, past or present, to directly
interfere with those voting districts would be abortive.
The court went on to distinguish the issue of reapportionment
138. The questions were as follows:
1. Is the proposed amendment regarding the members of the school
committee and water board violative of section 1 of article XIV of the
amendments [to] the United States Constitution?
2. Is the proposed amendment regarding the budget board violative
of section 1 of article XIV of the amendments [to] the United States
Constitution?
3. Is the proposed amendment regarding the Democratic and
Republican district committees violative of section 1 of article XIV of
the amendments [to] the United States Constitution?
Id. at 538.
139. Id.
140. Id.
141. Id. at 539.
142. Id.
143. Id.
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from the procedural issues presented in the 1953 advisory opinion,
holding that local districting is “a matter of local interest reserved
by article 13, section 2, to the local government.”144 While the
General Assembly may control procedural matters, such as the
dates and times for general municipal elections, special legislation
concerning apportionment enters into an area where the General
Assembly “retains no authority.”145 The court here drew on the
opinions in McCarthy and Bruckshaw to create a firm boundary
for the powers of the General Assembly when it comes to special
legislation. In addition, though this was an advisory opinion to the
House concerning limitations on its authority, the court also
strongly affirmed municipal authority over apportionment for
municipal elections, yet another local concern.146
This discussion of cases leading up to and including the 1993
advisory opinion is not offered as an exhaustive discussion of cases
concerning home rule during that period, but rather to
demonstrate a trend towards a more generous acceptance of the
implications of the Home Rule Amendment for towns and cities in
Rhode Island. As the court has developed a more nuanced
understanding of the concept of home rule, and as the case law
has slowly developed, the court has moved away from the almost
fearful analysis of Newport Amusement Co. to embrace a limited
but robust understanding of home rule in Rhode Island. The result
has not been a complete destruction of the legislature’s authority,
as it was preserved under Dillon’s Rule, but rather a limited
redistribution of authority between the state and home rule
municipalities in a strictly limited number of areas. The next
section will move from the Rhode Island Supreme Court’s slow
acceptance of home rule to a general overview of home rule rubric
as applied by the court today.
C. Present Day Home Rule Analysis
The purpose of this section is to consider exactly how the
Rhode Island Supreme Court goes about analyzing problems and
conflicts involving home rule powers and limitations. Such
problems will generally arise in one of two contexts: either (1)
144.
145.
146.
Id.
Id.
Id.
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some third party, such as a local resident or industry opposed to
local regulation, will challenge a local ordinance as outside of the
home rule authority of that municipality;147 or (2) the municipality
itself or some party negatively affected by state legislation will
challenge the validity of that legislation claiming that it is
prohibited under the Home Rule Amendment’s proscription of
special legislation. In the former circumstance, the question
concerns the limits of authority granted to home rule communities
that have adopted a valid home rule charter and in the latter
circumstance, the question concerns the limitations that the Home
Rule Amendment places on the General Assembly. Before
considering the approach that the Rhode Island Supreme Court
takes in analyzing these two circumstances, an important
distinction between home rule and preemption must be drawn.
1. Distinguishing Home Rule and Preemption
Confusion often arises in Rhode Island between home rule
analysis and preemption analysis.148 It is important to highlight
the relationship between the two concepts to avoid confusion.
While this comment is not intended as an exhaustive discussion of
preemption, no discussion of home rule is complete without at
least some discussion of preemption.149 Preemption occurs when a
valid state statute conflicts with a local ordinance.150 In such a
circumstance a state statute will preempt the local ordinance,
rendering it ineffective.151 In addition, there may be certain areas
147. This is distinct from the issue of whether a municipality has exceeded
the authority granted to it under its own home rule charter. A city’s home
rule charter may, of its own right, place limitations on a municipal
government. The issue addressed in this section is whether a municipality
has exceeded the authority granted it by the Home Rule Amendment. A home
rule charter, of course, cannot grant a municipality powers exceeding those
granted to it by the Home Rule Amendment, and so a municipality acting
within the limits of its charter could conceivably still exceed its home rule
authority.
148. “The dueling issues of local authority and state preeminence often
intersect because home rule requires an analysis of whether the issue is of
local concern, whereas preemption requires an analysis of whether the issue
is implicitly reserved within the state’s sole domain.” Amico’s v. Mattos, 789
A.2d 899, 908 (R.I. 2002).
149. See, e.g., Thomas S. Smith, No Home on the Range for Home Rule, 31
LAND & WATER L. REV. 791, 800-01 (1996).
150. Id. at 800.
151. 56 AM. JUR. 2D Municipal Corporations, Counties, and Other Political
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of regulation which are entirely occupied by the state, and in
which a municipality may not regulate. This second form of
preemption, where a state legislature “occupies the field” in a
particular area of regulation without necessarily stating its
intention to do so, will be referred to hereinafter as “implied
preemption.”152 There are two important distinctions to keep in
mind concerning the relationship between these two forms of
preemption and home rule in Rhode Island.
First, the only absolute limitation on preemption under the
Home Rule Amendment is that no state legislation may modify a
municipality’s form of government.153 Home rule protects local
ordinances against preemption only in the sense that it renders
special legislation invalid if it is not in conformity with the
provisions of the Amendment.154 The key to home rule, therefore,
lies in the limitation on the power of the General Assembly to
legislate, and therefore in the validity of state legislation. Valid
state legislation will always preempt a conflicting local
ordinance.155
Second, concerning implied preemption, the legislature cannot
occupy the field in an area of local concern.156 The two are
necessarily and mutually exclusive. The flip side of this
relationship is that a municipal ordinance which is impliedly
preempted cannot be protected from preemption by the Home Rule
Amendment. Put simply, a court may decide either (a) that a
Subdivisions § 111 (2004).
152. Id. § 113 (discussing “matters of statewide concern” upon which a
municipality may not legislate). The relationship between home rule and
preemption is highly complex. For instance, treatises often make general
statements about the limitations on judicial interpretation in areas of “mixed
state and local concern,” but such statements are often inapplicable in Rhode
Island. Compare id. § 114 (“[A]bsent a specific limitation or declaration by the
legislature to the contrary, [constitutional home rule] is intended to
diminish . . . [preemption] by a judicial interpretation of an unexpressed
legislative intent.”), with East Greenwich v. O’Neil, 617 A.2d 104, 109 (R.I.
1992) (“We have long recognized the doctrine of implied pre-emption and do
not require a clear statement by the Legislature of its intention to pre-empt
local legislation.”).
153. R.I. CONST. art. XIII, § 4 (1986).
154. Judith A. Stoll, Note, Home Rule and the Sherman Act After Boulder:
Cities Between a Rock and a Hard Place, 49 BROOK. L. REV. 259, 263-65
(1983).
155. Id. at 264-65.
156. East Greenwich v. O’Neil, 617 A.2d 104, 109 (R.I. 1992).
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matter is of local concern and thus the state has not occupied the
field concerning that particular matter, or, in the converse, (b)
that the state has occupied the field and thus the particular
matter cannot be of local concern.157 This relationship is merely a
function of the definition of “local concern.” Confusion arises
because the case law does not always keep this distinction clear.158
Strictly speaking, a home rule amendment which is impliedly
preempted was not valid in the first place. Ultimately, it makes
little difference in the implied preemption context whether we say
(inaccurately) that a home rule ordinance is preempted because
the state occupies the field, or if we say (accurately) that the
ordinance does not regulate a local concern and therefore is
outside the power granted by the Home Rule Amendment, so long
as the distinction between preemption and home rule remains
generally clear.159
Combining these two distinctions, it should be clear that
preemption and home rule often arise in the same context.160 They
are not, however, the same kind of inquiry. Preemption concerns
the supremacy of valid state legislation, while home rule concerns
a particular constitutional limitation on state legislation in the
face of constitutionally-created municipal initiative.161 These are
important distinctions to keep in mind when considering how
courts will respond to conflicts between municipal and state
legislation.162
2. Municipal Powers: What Concerns Are Local Concerns?
Home rule analysis concerning the validity of municipal and
state legislation often begins with the same question: what
matters are of purely local concern?163 This is partly because
home rule initiative has been granted to municipalities in areas
where the General Assembly later chooses to pass some form of
special legislation. The result is that the analysis of the two issues
157.
158.
159.
160.
161.
162.
163.
1992).
Id.
Id. at 111.
Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1261 (1999).
Amico’s v. Mattos, 789 A.2d 899, 908 (R.I. 2002).
Id.
Id.
See id.; accord East Greenwich v. O’Neil, 617 A.2d 104, 109 (R.I.
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begins with the same question: Is the challenged legislation
regulating in an area of concern over which home rule
municipalities have been granted local initiative?164 In the case of
municipal regulation, this is really the ultimate question, while in
the case of challenged state legislation it is one in a series of
questions.165 An analysis of the validity of state legislation
challenged under the Home Rule Amendment has at least one
remaining step. This is so because special state legislation is valid
so long as it conforms to the powers retained by the General
Assembly under the state’s constitution, and because the Home
Rule Amendment limits, but does not prohibit, special
legislation.166 The key is that authority is granted to a
municipality, either by the constitution or the General Assembly,
while it is reserved to the General Assembly.167 This is a
significant distinction to keep in mind when considering how the
Supreme Court of Rhode Island is likely to rule on a particular
home rule conflict.
The first step, and often the primary concern, in all home rule
analyses in Rhode Island is the determination of whether a
particular concern is purely local. As Parts IIA and IIB of this
Comment make clear, the development of this question in Rhode
Island has been tentative, if not almost glacial, in its pace. It has
not been fruitless by any means, however, as the Rhode Island
Supreme Court has developed rules over time which were finally
combined into a single analysis in Town of East Greenwich v.
O’Neil.168 The underlying dispute in O’Neil concerned a local
ordinance passed by East Greenwich, a home rule municipality,
which prohibited the construction of high voltage transmission
164. See Amico’s, 789 A.2d at 908.
165. Id.
166. Id. at 904.
167. This interpretation might, at first glance, appear to be the same as
the conclusion reached under Dillon’s Rule. It is similar in so far as it
reinforces the notion that a municipality is merely a creature of the state. It
is different, however, because the Home Rule Amendment does grant
initiative authority to home rule municipalities. Home rule municipalities are
not limited in their authority by necessity or specific grant, as they would be
under Dillon’s Rule, but rather limited to an entire class of concerns, namely
those that are purely local.
168. 617 A.2d 104 (R.I. 1992).
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lines.169 The city cited health concerns surrounding
electromagnetic emissions from high voltage power lines in
support of the ordinance, which created a three-year moratorium
on construction of such lines.170 The Rhode Island Supreme Court
invalidated the ordinance because regulation of electric
transmission lines is clearly a field which has been occupied by
the state legislature.171 In reaching its decision, the court
formulated a rubric which I will refer to as the O’Neil test. The
three-part O’Neil test is intended to “more clearly discern[]” what
the court refers to as the “local-general equation.”172 In the words
of the court, the three steps are as follows:
First, when it appears that uniform regulation
throughout the state is necessary or desirable, the matter
is likely to be within the state’s domain.
Second, whether a particular matter is traditionally
within the historical domain of one entity is a substantial
consideration.
Third, and most critical, if the action of a municipality
has a significant effect upon people outside the home rule
town or city, the matter is apt to be deemed one of
statewide concern.173
Each of these steps was derived from general home rule
principles as they have been interpreted in Rhode Island, and
each requires further discussion.174
The first prong involves the desirability of uniform regulation
throughout the state in certain limited areas.175 In many ways,
this prong was covered by the discussion supra concerning the
169. Id. at 106.
170. Id.
171. Id. at 112.
172. Id. at 111.
173. Id. (citations omitted).
174. Interestingly, the Court cites, but then spends little time discussing
the development of Rhode Island’s case law. In addition, the court only cites a
treatise in support of the first prong. One reason might lie in the Court’s
recognition that the case law leading up to O’Neil is confusing, which it
points out when it states that “the local-general equation may be more
clearly discerned.” Concern about the clarity of past decisions might well
explain any reluctance on the Court’s part to discuss previous decisions. Id.
175. Id.
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distinction between preemption and home rule.176 In essence, the
court was merely stating that a local concern cannot be one which
is occupied by the state. Considering, however, that the court in
Newport Amusement Co. at the inception of home rule in Rhode
Island appeared convinced that the state occupied virtually every
conceivable field of regulation, this is an important prong in home
rule analysis in Rhode Island.177 Since O’Neil, the court has been
circumspect about declaring any particular field to be one in which
statewide uniformity is desirable; this is despite the fact that the
court in O’Neil did find that regulation of public utilities was an
area in which uniform statewide regulation is desirable.178
Following O’Neil, most decisions concerning uniform regulation
have involved relatively clear cases, such as child support179 or
regulation of tidal wetlands.180 In less clear cases, the court has
generally based its ultimate conclusion on a variety of
foundations.181 Ultimately, the court will inquire into the quality
of the thing being regulated to decide if statewide uniformity is
especially desirable.182 For instance, the court is quite likely to
find that regulation of agriculture to prevent pollution of
waterways is an area that cannot be effectively regulated without
statewide uniformity, while the court is unlikely to find that
effective regulation of parking on municipal streets requires a
176. See supra Part IIIC1.
177. Newport Amusement Co. v. Maher, 166 A.2d 216, 219 (R.I. 1960).
178. See East Greenwich v. Narragansett Electric Co., 651 A.2d 725, 729
(R.I. 1994) (citing O’Neil for the proposition that public utilities are an area of
statewide concern).
179. Duke v. Duke, 675 A.2d 822, 823-24 (R.I. 1996) (“Child support is a
statewide concern that a municipal ordinance may not impede or frustrate in
its implementation.”).
180. Warren, 740 A.2d at 1259 (“Under the public-trust doctrine, ‘the state
holds title to all land below the high water mark in a proprietary capacity for
the benefit of the public.’” (citations omitted)).
181. See generally Marran v. Baird 635 A.2d 1174 (R.I. 1994) (upholding
state legislation allowing the director of the State Department of
Administration to appoint a “budget and review commission” to oversee
municipal financial policy if a town’s bonds are lowered to junk status).
182. See, e.g., Coastal Recycling v. Connors, 854 A.2d 711, 715 (R.I. 2004)
(Chief Justice Williams writing for the court in Coastal rejected an argument
that the state occupied the field of regulation for municipal contracts. “Such
an interpretation is at odds with the Home Rule amendment of the Rhode
Island Constitution. . .[t]hus, we must read the towns ordinance in pari
materia with [state legislation].”
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uniform statewide policy. In between the extremes the court
would be required to make a case-by-case determination.
The second prong of the O’Neil test requires the court to look
at the traditional distribution of power between the state and
municipal governments, and to give deference to that traditional
scheme.183 This prong is essentially a way to avoid sudden change
in the distribution of power. The O’Neil court cited cases from the
early years of Rhode Island home rule to support the need for this
particular prong, the latest one being from 1971, and included the
1953 advisory opinion to the House.184 This prong preserves the
status quo in areas such as licensing and authority over police
personnel.185 Regardless of the reasoning in any particular case
establishing a precedent, the court is apt to preserve the historical
balance between state and municipal governments, or to at least
proceed cautiously in changing that balance. The danger, of
course, is that this particular prong will be used to preserve the
strictures of Dillon’s Rule based on its historical acceptance. As for
whether this concern is warranted, only time will tell.186
The final prong in the O’Neil test, and the one the court refers
to as the “most critical,” involves the fundamental limitation of
home rule authority to a single municipality’s property and
affairs.187 This prong stands in opposition to the second prong in
that it actually recognizes a relatively broad area of authority,
namely anything that does not affect people outside of the home
rule town or city. In fact, the court cited three cases in support of
this prong, all of which come from the later, more generous period
in the court’s home rule analysis as discussed in Part IIIB.188 The
tension between this prong and the second prong might not
present itself clearly at first glance since the third prong is
183. East Greenwich v. O’Neil, 617 A.2d 104, 111 (R.I. 1992).
184. Id. The court cites the following cases: Marro v. Gen. Treasurer of the
City of Cranston, 273 A.2d 660, 662 (R.I. 1971); Nugent v. East Providence,
238 A.2d 758, 761-63 (R.I. 1968); Opinion to the House of Representatives, 96
A.2d 627, 630 (1953).
185. See, e.g., Marran, 635 A.2d at 1179 (“The aggregate indebtedness of a
city or town has been historically regulated by statutes of general
applicability.”).
186. If Rhode Island’s past is any gauge, only a great deal of time will tell.
187. O’Neil, 617 A.2d at 111.
188. Id. The court cited the following cases in support of the third prong:
McCarthy 574 A.2d at 1231; Brancato, 565 A.2d at 1264; and Bruckshaw, 557
A.2d at 1223.
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presented in terms of a limitation on the authority of home rule
municipalities, but the limitation stated in the third prong is
really just part of the definition of home rule. Of course, a home
rule municipality may not regulate in a way that affects people
outside of the home rule community; otherwise the issue would
not be a local concern by definition. This supposed limitation
might actually support an expansion of home rule authority, over
time, by reinforcing the fundamental home rule notion that a
municipal government has the authority to act on its own
initiative, so long as such action affects only the residents of that
home rule community. It is perhaps telling that the court pointed
to this as the “most critical” prong of the three, especially given
the cases cited in support of this particular prong.189
The establishment of the O’Neil test is by far the most
significant development in Rhode Island’s recent home rule
jurisprudence. O’Neil establishes the local-general equation as the
centerpiece of home rule analysis in Rhode Island, and it provides
a definite starting point for home rule municipalities in
determining what the limits of their authority under the Home
Rule Amendment are likely to be.190 It also provides a starting
point for the General Assembly in determining what limitations
the Home Rule Amendment places on its authority to legislate
concerning home rule municipalities.191 The next sub-section will
discuss determination of the validity of state legislation under the
Home Rule Amendment.
3. Restrictions on State Legislation
As discussed above, the Home Rule Amendment acts as a
limitation on the General Assembly’s otherwise plenary
authority.192 Setting aside for the moment the absolute
proscription of legislation affecting form of municipal government,
the validity of state legislation in Rhode Island under the Home
Rule Amendment depends upon three interrelated factors: (1) the
status of the municipality, (2) the type of legislation, general or
specific, and (3) the procedure by which legislation has been
189.
190.
191.
192.
Id.
Id.
Id.
See text accompanying note 121 supra.
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passed.193 The first of these is a threshold question which
determines whether the Home Rule Amendment limitations are
relevant, the second is very much related to the local-general
equation raised in the previous section, and the final factor will
only be relevant if the legislation in question is special legislation
relating to a home rule community. The following discussion will
therefore address each factor in order.
The Home Rule Amendment only restricts state legislation as
it relates to towns and cities which have adopted a home rule
charter, referred to in this comment as “home rule
municipalities.”194 The Home Rule Amendment places no
restrictions on special legislation relating to municipalities which
have no home rule charter.195 These communities are still subject
to the will of the legislature and receive all their authority from
the General Assembly.196 Dillon’s Rule, with its strict
interpretation of municipal authority, applies in full force to these
communities.197
The second factor involves determining whether a particular
instance of legislation is to be considered special or general. This
question is of great significance, since the state retains nearly
complete power to legislate by general legislation.198 The Home
Rule Amendment does not restrict this power, except as it relates
to form of government.199 The process for determining whether
193. Opinion to the House of Representatives, 87 A.2d 693, 695-96 (R.I.
1952).
194. See Capone v. Nunes, 132 A.2d 80, 82 (R.I. 1957). Accord Opinion to
the House, 87 A.2d at 695 (“Generally speaking, unless a charter is submitted
to and is adopted by the qualified electors of a city or town in accordance with
the provisions of the home rule amendment, article XXXVIII, such city or
town retains the same status relative to the general assembly as that which
it had prior to the adoption of said amendment.”).
195. See Capone, 132 A.2d at 82.
196. See id.
197. See id.
198. See Mongony v. Bevilacqua, 432 A.2d 661, 664 (R.I. 1981) (“[A] state
law of general character and statewide application is paramount to any local
or municipal ordinance inconsistent therewith.”). It again becomes clear why
the distinction between preemption and home rule becomes difficult. This
proposition concerning a general law of statewide character is perhaps more
significant in terms of preemption, but it also holds a kernel of truth for home
rule analysis in that preemption applies despite the existence of home rule.
In other words, the Home Rule Amendment does not prevent state legislation
from preempting valid home rule ordinances in this instance.
199. Opinion to the House of Representatives, 87 A.2d 693, 695-96 (R.I.
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legislation is general or specific is basically two fold. First,
legislation will usually only be considered special legislation if it
actually encroaches on an area of purely local concern in a
particular home rule community.200 The basic idea is that the
Home Rule Amendment only grants local authority in areas of
purely local concern, and, as such, the Amendment is not
implicated if the state has not interfered in such concerns.201
Second, legislation regulating in an area that might otherwise be
of purely local concern will not be considered special legislation if
it “shall apply alike to all cities and towns.”202 This determination
is relatively straightforward: either the legislation in question
affects all towns and cities alike, or it does not. Legislation will
therefore be considered special legislation only if it regulates in an
area of purely local concern and does not apply alike to all towns
and cities in Rhode Island.203 If, at the end of this analysis, the
legislation in question is general and does not affect form of
government, then it is valid.
The final factor in determining the validity of state legislation
under the Home Rule Amendment will only be reached if the
legislation is special legislation under the second factor. If it is
special legislation, it can still be valid if it is submitted to and
ratified by a majority of the qualified electors of the town or city to
which it applies.204 This provision allows the General Assembly to
act as a catalyst for local initiatives, forcing a vote on issues on
which the local government has not acted. This device is most
frequently employed to ratify special legislation waiving the state
legislative cap on damages in tort suits against municipalities,
1952).
200. See, e.g., Royal v. Barry, 160 A.2d 572, 575-76 (R.I. 1960).
201. Id.
202. Bruckshaw v. Paolino, 557 A.2d 1221, 1223 (R.I. 1989) (quoting
article XIII section 4 of the Rhode Island Constitution).
203. It is worth noting that the relationship between municipal home rule
authority and the limitations on state legislation is not symmetrical. Home
rule never grants a Rhode Island municipality the authority to pass
ordinances in areas of statewide concern, while the General Assembly can
legislate in areas of purely local concern, so long as it does so with a general
law of uniform statewide application. This is yet another example of the close
relationship between home rule and preemption in Rhode Island.
204. See, e.g., McCarthy v. Johnson, 574 A.2d 1229, 1232 (R.I. 1990).
Accord Bruckshaw v. Paolino, 557 A.2d 1221, 1223 (R.I. 1989); Opinion to the
House, 87 A.2d at 696.
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and it has been employed with very limited success.205
IV. CONCLUSION
Rhode Island’s courts and legislatures have been slow to
recognize the benefits in efficient and effective government that
the Home Rule Amendment has to offer. This is not surprising
when one considers the power that such a historically unified and
powerful General Assembly stands to lose. Yet the overwhelming
logic of allowing local authorities the ability to make decisions
affecting only their constituents cannot be ignored. This is
probably why Rhode Island’s half-century experiment with
constitutional home rule has been marked by reluctant but
persistent acceptance of local initiative. Beginning with near
rejection of home rule in Newport Amusement Co. and progressing
to the court’s much broader conception of home rule in O’Neil, the
Rhode Island Supreme Court has begun to develop an analysis
which can allow for the realization of much broader municipal
authority. If this trend is to continue, the Rhode Island Supreme
Court must continue to act as an independent arbiter in clashes
between state and local power to ensure that the spirit of home
rule is not hobbled by the desire to preserve historically
entrenched power.206
205. See, e.g., McCarthy, 574 A.2d at 1232.
206. A recent supreme court decision in a case challenging authority
granted by a charter to a town council to reject or accept decisions made
under state legislation, suggests that home rule will continue its slow
progression forward using the O’Neil test as a guide:
Coastal contends the Legislature intended to occupy the field by
creating a uniform system to award municipal contracts. Such an
interpretation strips town councils throughout the state of any
opportunity to review major decisions that will cost their
municipality a significant amount of money. Such an interpretation
is at odds with the Home Rule amendment of the Rhode Island
Constitution, which confers “the right of self government in all local
matters.” R.I. Const. art. 13, sec. 1. Nothing in [the law in question]
proscribes the town councils from reviewing a decision made by a
purchasing agent in accordance with the statute. Thus, we must
read the town’s ordinance and charter in pari materia with [that
law].
Coastal Recycling v. Connors, 854 A.2d 711, 715 (R.I. 2004). See also supra
note 182.
HAAS
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CONSTITUTIONAL HOME RULE
719
Taking a broader historical view, this slow progression of
home rule is probably just a reluctant recognition of a persistent
fact of Rhode Island’s history, that the towns came first.
Terrence P. Haas∗
∗
Juris Doctor Candidate, Roger Williams University School of Law; B.A.,
Purdue University (Philosophy). I am most grateful to my family, especially
my wife Megan and my son James for their tireless support. Thank you also
to Professor Robert B. Kent for encouraging a doubtful neophyte and the
attorneys at the City of Providence Law Department for initially planting the
idea for this Comment.
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A Threat to the Security of Private
Property Rights:
Kelo v. City of New London and a
Recommendation to the
Supreme Court of Rhode Island
I. INTRODUCTION
In Kelo v. City of New London, the United States Supreme
Court held that the taking of private property for economic
development purposes qualifies as a “public use” under the
Takings Clause of the Fifth Amendment to the United States
Constitution.1 This decision has spawned widespread debate.2 On
one side are the property rights’ activists who are fighting to make
it more difficult for state and local governments to use eminent
domain to take private homes for the purpose of transferring the
property into the hands of another private person or entity.3 On
the other side are government officials, planners, urban renewal
experts, and development firms who believe that eminent domain
is a necessary tool in the struggle to instill prosperity in the face of
severe economic decline.4
1. Kelo v. City of New London, 125 S. Ct. 2655, 2668 (2005). The
Supreme Court upheld the 2004 decision of the Supreme Court of
Connecticut. Kelo v. City of New London, 843 A.2d 500, 520 (Conn. 2004),
aff’d, 125 S. Ct. 2655, 2669 (2005).
2. See Power Lunch (CNBC Business News television broadcast Oct. 12,
2005) (Bill Griffeth commenting that the Kelo decision has created
controversy across the country); Castle Coalition, http://castlecoalition.org/
legislation/index.html (last visited Apr. 17, 2006), [hereinafter Castle
Coalition] (commenting that since Kelo, eminent domain has become a hot
topic nationwide and legislatures everywhere are examining eminent domain
laws to insure what happened in Kelo will not happen again).
3. Warren Richey, Battle Over Property Rights Goes On, Despite Ruling,
CHRISTIAN SCIENCE MONITOR, Jan. 4, 2006, at 2.
4. Id.
721
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722 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:721
Opponents of the Kelo decision argue that its acceptance of
the use of eminent domain for economic development - to increase
tax revenues and create jobs - broadly expanded existing federal
The government need only
Takings Clause jurisprudence.5
identify a more profitable use for property in order to justify the
exercise of eminent domain.6 Because office buildings will almost
always produce more jobs and tax revenue than any private
residence or small private business, any home or business can be
taken under the guise of economic development.7 Private property
owners are left extremely vulnerable to eminent domain misuse.
In the wake of the Kelo decision, the question remains: if the
government, state or federal, can take private property under the
vague assertion of economic development, are private property
owners left with any protection under the Takings Clause?
Legislatures at the federal8 and state9 levels have begun to revisit
eminent domain laws to ensure that their citizens are afforded
more protection from governmental takings than that afforded by
the Kelo decision.10
5. Kelo, 125 S. Ct. at 2675 (O’Conner, J., dissenting).
6. Petition for Writ of Certiorari at *6, Kelo v. City of New London, 125
S. Ct. 2655 (2005) (No. 04-108), 2004 WL 1659558.
7. Id. at *6-*7.
8. Recently, the House of Representatives passed a bill declining to
extend economic development funds for two years to any state or local
government which employs eminent domain for private commercial
development. Private Property Protection Act, H.R. 3135, 109th Cong. (2006),
available at
http://www.castlecoalition.org/media/legislation/11_03_05pr
.shtml. In addition, the bill expressly forbids the federal government from
exercising its eminent domain power for private development. Id.
9. For example, Bradley Jones, Massachusetts State Representative,
proposed that “the taking of private property by right of eminent domain for
the sole purpose of economic development, where one private individual
benefits at the expense of another, is contrary to. . . well-established public
policy. Except. . . to prevent the development of or to eliminate dilapidated or
blighted open areas.” In New York, State Senator John DeFrancisco
proposed a constitutional amendment that would only allow private property
to be taken solely for the “possession, occupation, or enjoyment of land by the
public at large or by public agencies.” Illinois State Representative Eileen
Lyons introduced legislation that requires eminent domain power to be used
exclusively for a “qualified public use.” Use of the eminent domain power “for
private ownership or control, including for economic development” would be
expressly prohibited.
Castle Coalition, http://maps.castlecoalition.org/
legislation/.html (last visited Apr. 17, 2006) (Under Illinois, Massachusetts,
and New York headings).
10. See generally Castle Coalition, http://www.castlecoalition.org/
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Members of the Rhode Island legislature are among those
urging greater protection of individual property rights.11 State
Representative Victor Moffitt introduced Rhode Island House Bill
6636, “urg[ing] the United States Congress to take immediate
action to amend the Constitution in order to more fully protect
and guarantee private property rights and to nullify the Kelo
decision.”12 This bill was adopted by the House.13 In addition,
State Senator James Sheehan expressed his approval of a decision
to “amend the Constitution in lieu of the recent Supreme Court
decision on eminent domain.”14
Further, Governor Donald Carcieri, in outlining his plans for
2006, has stated that he has “never been a fan” of “taking
someone’s property” and intends to consider legislation that would
restrict the use of the eminent domain power.15 In 2001, the
Rhode Island Economic Development Corporation (RI EDC)
exercised its eminent domain power to condemn forty acres of
private property in Smithfield, Rhode Island so that the Fidelity
Governor
Corporation could expand its existing facility.16
Carcieri, who does not believe in the practice of “tak[ing] people’s
property and then say[ing], ‘I know what I’m going to do is better
than what you are going to do with it,’” has asked the RI EDC to
revisit the issue.17 They are expected to vote to terminate the
legislation/federal/index.html (last visited Apr. 17, 2006) (both the U.S.
Senate and House of Representatives have introduced legislation on proposed
federal response to Kelo); Castle Coalition, http://maps.castlecoalition.org/
legislation.html (last visited Apr. 17, 2006) (listing current proposed state
legislation urging the restriction of eminent domain for economic
development. States listed include: Alabama, Alaska, Arkansas, California,
Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey,
New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, West
Virginia, Wisconsin).
11. Castle Coalition, http://maps.castlecoalition.org/legislation.html (last
visited Apr. 17, 2006) (under Rhode Island heading).
12. Id. (2005 RI H.B. 6636).
13. Id.
14. Id. (2005 RI S.B. 1237).
15. Andrea L. Stape, Governor’s agenda: Reduce tax credit, limit seizings,
THE PROVIDENCE J., Jan. 6, 2006.
16. Id.
17. Id.
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724 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:721
practice of using eminent domain to take private property from A
and give it to private entity B.18 In response to the Supreme
Court’s decision in Kelo, Carcieri has said, “just because the
Supreme Court says its ok, does not mean the state should be
doing it.”19 However, while these proposals indicate an attempt to
better protect the private property owners of Rhode Island,
without firm legislation in place, the decision ultimately lies with
the Supreme Court of Rhode Island.
This Comment examines the takings provision in the Rhode
Island Constitution and urges the Supreme Court of Rhode Island,
should such an opportunity arise, to decline extending eminent
domain power to include the taking of private property for
economic development. Part II of this Comment provides an
overview of the Kelo v. City of New London decision and details
the facts and holding of the case. Part III employs Philip Bobbitt’s
six approaches to constitutional construction20 to examine the
Rhode Island Constitution’s takings clause, article I, section 16.
Next, Part III proceeds to explore the history and doctrine of
Rhode Island’s takings clause and the occasions in which the
Supreme Court of Rhode Island has typically departed from
United States Supreme Court rulings. Finally, Part III discusses
the various policy arguments and ethical implications of the Kelo
decision.
Part IV sums up the arguments advanced in Part III and
urges the Supreme Court of Rhode Island to depart from the
United States Supreme Court decision in Kelo v. City of New
London and interpret the Rhode Island Constitution in a manner
that provides the citizens of Rhode Island a greater level of
protection with regard to their fundamental private property
rights.
II. BACKGROUND: KELO V. CITY OF NEW LONDON
A. Factual Background of Kelo
The New London Development Corporation (NLDC), a private
18. Id.
19. Id.
20. Philip Bobbitt, Constitutional Fate: The Theory of the Constitution
(1982).
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THREAT TO PRIVATE PROPERTY RIGHTS
725
nonprofit economic development corporation, was created in 1978
to help the City of New London, Connecticut (the City) put
together an economic development plan.21 Over the years, the city
had fallen into economic decline.22 In January, 2000 the City
turned its attention to the Fort Trumbull neighborhood, a
peninsula of land along the Thames River.23 The unemployment
rate was almost two times that of the rest of the state and its
population had reached a near record low.24 These conditions
caused officials to pursue the Fort Trumbull area in an effort to
turn the city around.25
The troubled Fort Trumbull area is also home to many people,
including Wilhelmina Dery26 and Susette Kelo.27 Together, the
Dery’s, Mrs. Kelo, and six other homeowners own fifteen
properties in the Fort Trumbull neighborhood.28 Several of the
homeowners have lived in their homes and raised their families
there for many decades.29 Others have put an extensive amount of
time and money into developing their properties.30 All are
genuinely attached to their homes.31
In February of 1998, Pfizer, Inc. declared its intention to build
a global research facility on the New London Mills site located
directly adjacent to the Fort Trumbull neighborhood.32 The City
officially conveyed the New London Mills site to Pfizer in June
1998 with the goal to complement the Pfizer facility with the
development plan prepared by the NLDC for the Fort Trumbull
21. Kelo v. City of New London, 843 A.2d 500, 508 (Conn. 2004).
22. Kelo v. City of New London, 125 S. Ct. 2655, 2658 (2005).
23. Kelo, 843 A.2d at 508; Petition for Writ of Certiorari, supra note 6, at
*1-*2.
24. Kelo, 125 S.Ct. at 2658.
25. Id. at 2658-59.
26. Petition for Writ of Certiorari, supra note 6, at *1-*2. In 1918, Mrs.
Dery was born in the house that she currently shares with her husband of
fifty years and the rest of her family. Id.
27. Ms. Kelo is another Fort Trumball neighborhood homeowner, who
has lived in the area since 1997 and has made extensive improvements to the
property. Kelo, 125 S. Ct. at 2660. She values the location of her home for the
view and close proximity to the water. Id.
28. Id.
29. Kelo, 843 A.2d at 511.
30. Id.
31. Id.
32. Id. at 508.
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726 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:721
neighborhood.33 In addition to capitalizing on the arrival of the
new Pfizer facility, the NLDC hoped to create jobs, generate tax
revenue, and help “build momentum” for the city’s revitalization
movement.34
The development plan for Fort Trumbull encompasses about
ninety acres and is divided into seven parcels, each to
accommodate different projects.35 Two of the parcels involved
affect the homeowners in this case.36 Parcel 3 is located near the
new Pfizer building and is slated for private research and
development office space and parking, and Parcel 4A is slated for
park support to provide parking or retail services for the nearby
park.37
While the NLDC would own the land in the development site,
private developers would occupy the area through lease
agreements with the NLDC.38 At the time of trial, the NLDC was
involved in negotiations with one such private developer, Corcoran
Jennison, for a ninety-nine-year-lease for parcels 1, 2, and 3 at a
nominal $1.00 per year.39 Corcoran Jennison would then develop
the parcels and choose tenants for spaces.40
The City and the NLDC want to use eminent domain to take
the family homes of these individuals to make way for private
business development,41 and the United States Supreme Court
has ruled that this is a justified use of the City’s eminent domain
power.42 There is no indication that any of these homes are
blighted or in poor condition, but because they happen to be
located in the development area, the City has been given the
authority to take their homes.43
B. Procedural History
In 2005, Susette Kelo and other affected landowners in the
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
Id. at 508-09.
Id. at 509.
Petition for Writ of Certiorari, supra note 6, at *2.
Id.
Kelo, 843 A.2d at 509.
Petition for Writ of Certiorari, supra note 6, at *3.
Id.
Id.
Id. at *2.
Kelo v. City of New London, 125 S. Ct. 2655, 2660 (2005).
Id.
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Fort Trumbull neighborhood brought suit in the Superior Court of
Connecticut, seeking a permanent restraining order to halt the
implementation of the NLDC plan, and the resultant taking of
their homes. The court granted the permanent restraining order
banning the taking of the properties for park or marina support,
but denied relief to the landowners with property in the area
designated for office space.44 On appeal to the Supreme Court of
Connecticut, the majority held that all of the takings were a valid
exercise of the city’s eminent domain power.45 The dissent, signed
by three judges, would have enforced a heightened level of judicial
review for economic development takings and would have declared
the takings unconstitutional “because the City had failed to
adduce clear and convincing evidence that the economic benefits of
the plan would in fact come to pass.”46 The United States
Supreme Court granted certiorari to determine, “whether a city’s
decision to take property for the purpose of economic development
satisfies the ‘public use’ requirement of the Fifth Amendment.”47
C. The Decision
Writing for the majority, Justice Stevens, relying on Berman
v. Parker, stressed the Court’s “longstanding policy of deference to
legislative judgments in this field,”48 so long as the “legislature’s
purpose is legitimate and its means are not irrational.”49 Thus,
the Court, while recognizing that the City was not faced with the
need to remove blight, nevertheless concluded that the City’s
44. Id. at 2661.
45. Id.
46. Id.
47. Id.
48. Id. at 2663 (citing Berman v. Parker, 348 U.S. 26 (1954)). In Berman,
the Court upheld a redevelopment plan targeting a blighted area of
Washington D.C., in which most of the housing was beyond repair. Id. While
some of the land would be used for streets, schools, and other public facilities,
a portion would be leased or sold to private parties for the purpose of
redevelopment. Id. Berman’s deferential approach was reaffirmed in Hawaii
Hous. Auth. v. Midkiff, where the Court concluded that the State’s purpose of
eliminating the “social and economic evils of a land oligopoly” qualified as a
valid public use. 467 U.S. 229, 241-42 (1984). The fact that the State
immediately transferred the properties to private individuals upon
condemnation did not diminish the public character of the taking. Id. at 244.
49. Kelo v. City of New London, 125 S. Ct. 2655, 2667 (2005) (citing
Midkiff, 467 U.S. at 242).
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determination that the Fort Trumbull area was “sufficiently
depressed” to validate a plan for economic development was well
within the broad understanding of public purpose and thus not
violative of the Fifth Amendment to the Federal Constitution.50
The Court examined the comprehensive nature of the
development plan, and the detailed consideration that preceded its
adoption under a limited scope of review and concluded it was
proper, as it was in Berman, to decide the homeowners’ challenges
based on the entire development plan, and not on an individual
basis.51
In addition, the Court noted that “promoting economic
development [has been] a traditional and long accepted function of
the government” and that there was “no principled way of
distinguishing economic development from the other public
purposes that [the Court has] recognized.”52 The Court reasoned
that it would be out of step with precedent already laid down by
the Court to find that the City’s interest in the economic benefits
to be realized from the redevelopment of the Fort Trumbull area
constituted less of a public character than any of the previous
interests expressed as sufficient in the Court’s prior decisions.
The fact that individual private parties might benefit in the City’s
pursuit of a public purpose was irrelevant because, as the Court
had previously stated in Berman, “[t]he public end may be as well
or better served through an agency of private enterprise than
through a department of government - or so the Congress might
conclude. We cannot say that public ownership is the sole method
of promoting the public purposes of community redevelopment
projects.”53 Because, under Berman and Midkiff, the NDLC’s
redevelopment plan undeniably served a public purpose, the Court
held that the taking of the homes in the Fort Trumbull area
satisfied the public use requirement of the Fifth Amendment.54
Justice Kennedy joined the majority opinion but wrote a
concurring opinion to stress that, while a rational-basis standard
50. Id. at 2665.
51. Id.
52. Id. As examples, the Court cites Strickley v. Highland Boy Gold
Mining Co., 200 U.S. 527 (1906), Berman v. Parker, 348 U.S. 26 (1954),
Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), and Ruckelshaus v.
Monsanto, Co., 467 U.S. 986 (1984). Kelo, 125 S. Ct. at 2665.
53. Id. at 2666.
54. Id. at 2665.
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THREAT TO PRIVATE PROPERTY RIGHTS
729
was appropriate, “transfers intended to confer benefits on
particular, favored private entities. . . with only incidental or
pretextual public benefits, [were still] forbidden by the Public Use
Clause.”55 In such instances, a court should “review the record to
see if it has merit, though with the presumption that the
government’s actions were reasonable and intended to serve a
public purpose.”56 Because the trial court conducted a thorough
review of the findings, and determined that the primary
motivation behind the City’s redevelopment of the Fort Trumbull
area was not to benefit Pfizer or any other private party, but to
take advantage of Pzfizer’s presence, the City’s actions survived
However, Justice
“the meaningful rational basis review.”57
Kennedy noted that a situation may arise “in which the risk of
undetected impermissible favoritism of private parties is so acute
that a presumption (rebuttable or otherwise) of invalidity is
warranted under the Public Use Clause.”58
Justice O’Connor, who was joined by Chief Justice Rehnquist,
Justice Scalia, and Justice Thomas, dissented, concluding that
economic development takings are not constitutional.59 Justice
O’Connor criticized the majority opinion for essentially erasing the
line between private and public use of property and “thereby
effectively . . . delet[ing] the words ‘for public use’ from the
Takings Clause of the Fifth Amendment.”60 Justice O’Connor
pointed out that the Fifth Amendment expressly sets forth two
distinct limitations on the use of eminent domain: public use and
just compensation.61 “This requirement promotes fairness as well
as security.”62 According to Justice O’Connor, if these constraints
are to retain any meaning, it is necessary for the judiciary to keep
a check on how the public use requirement is interpreted.63 Thus,
prior decisions regarding what constitutes public use have
“reserved ‘a role for the courts to play in reviewing a legislature’s
55. Id. at 2669 (Kennedy, J., concurring).
56. Id.
57. Id. at 2669-70.
58. Id at 2670.
59. Id. at 2671, 2673.
60. Id. at 2671 (O’Connor, J., dissenting).
61. Id. at 2672.
62. Id. (citing Tahoe-Sierra Pres. Council, Inc., v. Tahoe Reg’l Planning
Agency, 535 U.S. 302 (2002)).
63. Id.
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730 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:721
judgment. . .’”64
Justice O’Connor went on to distinguish Berman and Midkiff
from the situation at issue in the Fort Trumbull area.65 In both
Berman and Midkiff, the existing property was the source of the
harm and the only way to remedy such harm was to condemn the
property and eliminate the existing property.66 The elimination of
the identified harm constituted the necessary public purpose, and
because in each case the taking directly promoted a public benefit,
it was irrelevant that the property was subsequently turned over
for private use.67 The City did not assert that the Fort Trumbull
homes were the source of any social harm.68 In fact, the Derys and
the Kelos were merely putting their well-maintained properties to
ordinary private uses.69
Justice O’Connor argued that the majority decision
“significantly expands the meaning of public use,” resulting in an
interpretation that does “not realistically exclude any takings, and
thus [does] not exert any constraint on the eminent domain
Justice O’Connor further explained that allowing
power.”70
economic development takings threatens the security of all
property ownership and that those likely to feel the harsh effects
of the Court’s decision would be those individuals with the fewest
Justice O’Connor believed that, because “the
resources.71
Founders cannot have intended this perverse result . . . the
takings in both Parcel 3 and Parcel 4A [were] unconstitutional.”72
Justice Thomas wrote a separate dissent criticizing the long
line of cases in which the Court has “strayed from the [Public Use]
Clause’s original meaning.”73 According to Justice Thomas, “the
Takings Clause authorizes the taking of property only if the public
has a right to employ it, not if the public realizes any conceivable
benefit from the taking.”74
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
Id. at 2674 (quoting Berman, 348 U.S. at 32).
Id. at 2674-75.
Id. at 2674.
Id.
Id. at 2675.
Id.
Id.
Id. at 2677.
Id.
Id. at 2678 (Thomas, J., dissenting).
Id. at 2680 (emphasis added).
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731
Pursuant to a plan for economic development, the Derys,
Susette Kelo and the other homeowners have been thrust from
their private homes so that their land can be given to another
private owner who, according to the legislature, will put the land
to a more beneficial use.75 The line between private and public
use has been erased and “all private property is now vulnerable to
being taken and transferred to another private owner, so long as it
might be upgraded.”76 Given that the Supreme Court expressly
emphasized that its decision did not prevent the States from
imposing stricter requirements on their exercise of the eminent
domain power,77 when the occasion arises, the Supreme Court of
Rhode Island should seize the opportunity.
II. CONSTITUTIONAL CONSTRUCTION:
INTERPRETATION OF RHODE ISLAND’S TAKINGS CLAUSE
Philip Bobbitt is “one of the nation’s leading constitutional
theorists.”78 In his book, Constitutional Fate: A Typology of
Constitutional Arguments, Philip Bobbitt explores and identifies
six types of constitutional arguments found in judicial opinions,
hearings, and briefs.79 The six argument types are: textual
argument,80 historical argument,81 structural argument,82
doctrinal argument,83 prudential argument,84 and ethical
argument.85 Bobbitt asserts that what is generally considered the
75. Id. at 2671-72 (O’Connor, J. dissenting).
76. Id. at 2671.
77. Id. at 2668 (majority opinion).
78. The Globalist, Biography of Philip Bobbitt, http://www.theglobalist.
com/bdweb/authorbiography.aspx?authorid=429 (last visited Apr. 9, 2006).
79. BOBBITT, supra note 20, at 6-7.
80. This argument considers the present meaning of the words within a
particular provision. Id. at 7.
81. This argument attempts to uncover the original understanding of a
constitutional provision as understood by the writers and those who adopted
the constitution. Id.
82. This argument focuses on the structures of government and the
relationships created in the Constitution and draws inferences from this set
up. Id.
83. This argument concentrates on precedent or judicial or academic
commentary on precedent to reach conclusions regarding constitutional
construction. Id.
84. This argument considers the consequences of adopting a particular
decision or interpretation. Id. at 7, 61.
85. This argument examines the implication of the government playing a
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style of a particular judge is actually his or her preference for one
of the above types of argument.86 These arguments are not
exhaustive and can frequently work together.87
A. Text
Phillip Bobbitt’s textual approach to constitutional
construction begins with an examination of the present plain
meaning of the text.88 In ascertaining the true meaning of a
constitutional provision, one must look to the actual words within
the text.89 The takings clause of the Rhode Island Constitution,
identical to that of the Takings Clause of the United States
Constitution,90 is found in Article I, the Declaration of Rights,
under section 16, and reads as follows, “[p]rivate property shall
not be taken for public uses, without just compensation.” 91 While
constitutions are intended to endure for ages and adapt to the
changing needs of society, one cannot altogether discount the word
choice of the framers.92 Every word is intended to have meaning,
and it is essential that every word be given full force and effect.93
The Supreme Court of Rhode Island has consistently used this
technique when interpreting other provisions in the Rhode Island
Constitution.94
This technique can be applied to the phrase “public use.”
Black’s Law Dictionary defines “public” as being “open or available
for all to use, share, or enjoy.”95 It is the opposite of “private.”96
central role within the American political culture. Id. at 94.
86. Id. at 8.
87. Id.
88. Id. at 7.
89. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803) (“It cannot be
presumed that any clause in the constitution is intended to be without
effect”).
90. U.S. Const. amend. V.
91. R.I. CONST. art. I, § 16.
92. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415-16 (1819).
93. Marbury, 5 U.S. (1 Cranch) at 147.
94. See Mosby v. Devine, 851 A.2d 1031, 1040 (R.I. 2004) (looking at the
text of Article I, section 2 to determine the meaning of the provision); State v.
One 1990 Chevrolet Corvette, 695 A.2d 502, 504 (R.I. 1997) (looking to the
language of the statute at issue).
95. BLACK’S LAW DICTIONARY 1264 (8th ed. 2004); see also WEBSTER’S NEW
INTERNATIONAL DICTIONARY 2005 (2d ed. 1945) (defining public as open to
common or general use, participation, enjoyment, etc; open to the free and
unrestricted use of the public; as a public park or road).
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The term “use” is defined as “the application or employment of
something else.”97 In addition, Black’s Law Dictionary defines the
phrase “public use” as referring to “the public’s beneficial right to
use property or facilities subject to condemnation.”98 While the
United States Supreme Court has departed from the Black’s Law
definition,99 the Supreme Court of Rhode Island has embraced it,
stating that public use “implies a possession, occupation, and
enjoyment of the land by the public at large or by public
agencies.”100 Public use takings typically involve the taking of
private property for highways, railways, public walkways, parks,
and public buildings.101
The “public use” requirement has been extended as the law
has developed. It is widely accepted that the phrase “public use”
should be expanded to include takings of private property for a
“public purpose.”102 However, this extension does not drastically
extend the phrase beyond its original meaning. “Public purpose”
is defined as “an action by or at the direction of a government for
the benefit of the community as a whole.”103 A public purpose
taking still must afford benefits to the general public as opposed
to individual or private interests. The term “purpose” means “the
end or aim to be kept in view in any plan, measure, exertion, or
operation.”104 When added to the term “public,” as defined above,
the meaning of the phrase is not much different than “public use.”
In either situation, the use or purpose for which private property
96. Black’s Law Dictionary at 1233.
97. Id. at 1577 (definition of “use”); see also WEBSTER’S NEW
INTERNATIONAL DICTIONARY at 2806 (defining use under subheading eleven as
the enjoyment of property which consists in its employment, occupation,
exercise or practice and under subheading twelve to mean behalf; advantage;
benefit).
98. Id. at 1578 (sub definition of “use” the phrase “public use”).
99. See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 244 (1984) (stating
that “it is not essential that the entire community, nor even any considerable
portion, . . .directly enjoy or participate in any improvement in order for it to
constitute a public use”).
100. In re Rhode Island Suburban Ry., 48 A. 591, 593 (R.I. 1901).
101. Id. at 592.
102. See, e.g., In re Advisory Opinion to Governor, 324 A.2d 641, 646 (R.I.
1974); Uhls v. State ex rel. City of Cheyenne, 429 P.2d 74, 79 (Wyo. 1967);
Lerch v. Maryland Port Auth., 214 A.2d 761, 765 (Md. 1965); Green v. City of
Mt. Pleasant, 131 N.W.2d 5 (Iowa 1964).
103. See Black’s Law Dictionary at 1267.
104. Webster’s New International Dictionary 2018 (2d ed. 1945).
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is to be taken must be essential to the effectuation of a wholly
public benefit, and not the private interests of another.105
The taking of private property in “slum blighted areas” has
also become an accepted “public use.”106 The term “blight” refers
to a condition of severe dilapidation that impairs growth, withers
hopes and ambitions, or impedes progress and prosperity.107 The
Rhode Island legislature has identified three types of blight and
substandard areas and defined them as follows:
“Slum blighted area” means any area in which there is a
predominance of buildings or improvements, either used
or intended to be used for living, commercial, industrial,
or other purposes, or any combination of these uses,
which by reason of: (i) dilapidation, deterioration, age, or
obsolescence; (ii) inadequate provision for ventilation,
light, sanitation, open spaces, and recreation facilities;
(iii) high density of population and overcrowding; (iv)
defective design or unsanitary or unsafe character or
condition of physical construction; (v) defective or
inadequate street and lot layout; and (vi) mixed character
or shifting of uses to which they are put, or any
combination of these factors and characteristics, are
conducive to ill health, transmission of disease, infant
mortality, juvenile delinquency, and crime; injuriously
affect the entire area and constitute a menace to the public
health, safety, morals, and welfare of the inhabitants of
105. See Palazzolo v. Rhode Island, 533 U.S. 606, 615 (2001); In re Rhode
Island Suburban Ry., 48 A. at 593.
106. See R.I. CONST. art. I, § 16 (stating “improvement of blighted and
substandard areas shall be a public use and purpose for which the power of
eminent domain may be exercised.”); Opinion to the Governor, 69 A.2d 531,
532 (R.I. 1949) (redevelopment of blighted areas constitute public uses and
purposes). See also Chicago Land Clearance Comm’n v. White, 104 N.E.2d
236 (Ill. 1952) Nashville Hous. Auth. v. City of Nashville, 237 S.W.2d 946
(Tenn. 1951); In re Slum Clearance in City of Detroit, 50 N.W.2d 340 (Mich.
1951); Opinion of the Justices, 48 So. 2d 757 (Ala. 1950); Schenck v.
Pittsburgh, 70 A.2d 612 (Pa. 1950); Redfern v. Bd. of Comm’rs of Jersey City,
59 A.2d 641 (N.J. 1948); Hous. Auth. v. Higgenbotham, 143 S.W.2d 79 (Tex.
1940); Allydonn Realty Corp. v. Holyoke Housing Authority, 23 N.E.2d 665
(Mass. 1939); Hous. Auth. v. Dockweiler, 94 P.2d 794 (Cal. 1939).
107. WEBSTER’S NEW INTERNATIONAL DICTIONARY 287 (2d ed. 1945)
(defining blight as that which frustrates one’s plans or withers one’s hopes;
that which impairs or destroys).
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the community and of the state generally.108
“Deteriorated blighted area” means any area in which
there exist buildings or improvements, either used or
intended to be used for living, commercial, industrial, or
other purposes, or any combination of these uses, which
by reason of: (i) Dilapidation, deterioration, age, or
obsolescence; (ii) Inadequate provision for ventilation,
light, sanitation, open spaces, and recreation facilities;
(iii) High density of population and overcrowding,
(iv) Defective design or unsanitary or unsafe character or
conditions of physical construction; (v) Defective or
inadequate street and lot layout; and (vi) Mixed
character, shifting, or deterioration of uses to which they
are put, or any combination of these factors and
characteristics, are conducive to the further deterioration
and decline of the area to the point where it may become a
slum blighted area as defined in subdivision (18), and are
detrimental to the public health, safety, morals, and
welfare of the inhabitants of the community and of the
state generally. 109
“Arrested blighted area” means any area which, by
reason of the existence of physical conditions including,
but not by way of limitation, the existence of unsuitable
soil conditions, the existence of dumping or other
insanitary or unsafe conditions, the existence of ledge or
rock, the necessity of unduly expensive excavation, fill or
grading, or the necessity of undertaking unduly expensive
measures for the drainage of the area or for the prevention
of flooding or for making the area appropriate for sound
development, or by reason of obsolete, inappropriate, or
otherwise faulty platting or subdivision, deterioration of
site improvements, inadequacy of utilities, diversity of
ownership of plots, or tax delinquencies, or by reason of
108. R.I. GEN. LAWS § 45-31-8 (2005) (LexisNexis) (Section 18) (emphasis
added); see, e.g., Ajootian v. Providence Redevelopment Agency, 91 A.2d 21,
23 (R.I. 1952).
109. R.I. GEN. LAWS § 45-31-8 (2005) (LexisNexis) (Section 6) (emphasis
added).
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any combination of any of the foregoing conditions, is
unduly costly to develop soundly through the ordinary
operations of private enterprise and impairs the sound
growth of the community.110
In other words, in order for a particular area to classify as a
“blighted area” subject to a taking by eminent domain, it must
have reached a point of no return due to either extreme
deterioration, constituting “a serious and growing menace. . .
injurious and inimical to the public health, safety, and welfare of
the people of the state,”111 or costly, unsafe or unsanitary
conditions that impair the healthy development of the
community.112 Thus, by condemning the property and
redeveloping the area, the public interest is served and the public
use requirement is satisfied. While even this extension of the
“public use” requirement arguably exceeds the boundaries of valid
eminent domain takings,113 unlike the “economic development”
extension in Kelo, the “blighted area” extension still imposes hefty
limitations on the taking of private property.
In contrast, the only requirement for the taking of private
property under the “economic development” extension is that the
city find that a particular area is “sufficiently depressed.”114 This
gives legislatures unprecedented discretion in their exercise of
eminent domain power and permits the taking of private property
merely because the legislature finds a more profitable use for the
property.
This analysis effectively deletes the “public use”
requirement from the Takings Clause. Because no word or phrase
in a constitution is without meaning, this interpretation of “public
use” cannot stand.
It is Rhode Island’s specific, detail-oriented, statutory
definitions of blight which warrant a narrower interpretation of
its takings clause than that employed by the United States
Supreme Court. The Supreme Court of Rhode Island should
decline to follow the United States Supreme Court decision in Kelo
110. Id. (Section 2) (emphasis added).
111. R.I. GEN. LAWS § 45-31-3 (2005) (LexisNexis) (legislative findings as
to which slum blighted areas will qualify for eminent domain condemnation).
112. R.I. GEN. LAWS § 45-31-8 (2005) (LexisNexis) (Section 2).
113. Accord In re Advisory Opinion to Governor, 69 A.2d 531, 544 (Judge
Flynn stating that redevelopment should not be considered as a public use).
114. Kelo v. City of New London, 125 S. Ct. 2655, 2665 (2005).
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because it would erase the “public use” requirement from the
takings clause of the state constitution and because it fails to
satisfy Rhode Island’s strict taking requirements.
C. Structure
According to Bobbitt, the structural approach to constitutional
interpretation examines the inferences taken from the structures
established by the constitution.115 The structure of article I,
section 16 of the Rhode Island Constitution supports the position
that the Supreme Court of Rhode Island should not extend the
“public use” requirement to include takings on the basis of
“economic development.” The clause, “[p]rivate property shall not
be taken for public uses, without just compensation” sets forth two
express limitations on the power of eminent domain.116 One such
limitation is the requirement of “just compensation” and the other
is that private property can only be taken for public uses.117 While
the structure of Rhode Island’s taking clause is identical to that of
the United States Takings Clause,118 the Rhode Island Supreme
Court is not restrained from interpreting the clause in a manner
inconsistent with United States Supreme Court.
These limitations provide private property owners with
“[T]hey ensure stable property
protection and security.119
ownership
by
providing
safeguards
against
excessive,
unpredictable, or unfair use of the government’s eminent domain
power.”120 The public use requirement describes the scope of the
eminent domain power: the government can deprive a person of
his property only for the public’s use, but not for the use of
another private individual.121 It is the duty of the court to
determine whether a particular use is a public use.122
By substituting “economic development” for “public use,” the
requirement of just compensation remains intact, but the public
115. BOBBITT, supra note 20, at 7.
116. Kelo, 125 S. Ct. at 2672 (O’Connor, J., dissenting); City of Newport v.
Newport Water Corp., 189 A. 843, 846 (R.I. 1937); see R.I. CONST. art. I, § 16.
117. City of Newport, 189 A. at 846.
118. See U.S. CONST. amend. V.
119. Kelo, 125 S. Ct. at 2672 (O’Connor, J., dissenting).
120. Id.
121. Id.
122. In re Rhode Island Suburban Ry., 48 A. 591 (R.I. 1901).
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use limitation on the exercise of eminent domain is severely
reduced.123 Private property owners would no longer enjoy the
level of security and protection expressly afforded them by the
framers. While private property owners would still enjoy the
protection of “just compensation,” they would be denied the
assurance of stable property ownership. The balance of power
would shift into the hands of the government, leaving the use of
eminent domain power virtually absolute and unchecked.
In addition, the takings clause is found in article I of the
Rhode Island Constitution which is titled, the “Declaration of
Certain Constitutional Rights and Principles.”124 Other rights
expressed in Article I include: due process and equal protection,125
freedom of religion,126 the right to privacy and freedom from illegal
searches and seizures,127 rights of those accused in criminal
proceedings,128 the right against self-incrimination,129 and the
right to trial by jury.130 These guarantees were founded upon the
principle that freedom and liberty were valued above all other
interests.131 The placement of the takings clause amongst these
other fundamental rights illustrates that the security and
protection of private property was a sacred right that should only
be burdened in the rarest of circumstances.
While the placement of the takings clause in the Rhode Island
Constitution is similar to that in the United States Constitution,
Rhode Island’s later amendments indicate a divergence from the
meaning of its federal counterpart.
These subsequent
amendments support the view that private property rights are
fundamental guarantees, subject to the exercise of eminent
domain in limited situations. Adoption by the Rhode Island
Supreme Court of the United States Supreme Court’s decision in
Kelo would alter the structure of article I, section 16 of the Rhode
123. Accord Power Lunch, supra note 2 (Bill Griffeth expressing concern
that public uses, one of the safeguards of the eminent domain power, went by
the wayside with the Kelo decision).
124. R.I. CONST. art. I, § 16.
125. R.I. CONST. art. I, § 2.
126. R.I. CONST. art. I, § 3.
127. R.I. CONST. art. I, § 6.
128. R.I. CONST. art. I, § 10.
129. R.I. CONST. art. I, § 13.
130. R.I. CONST. art. I, § 10.
131. Pimental v. Dep’t of Transp., 561 A.2d 1348, 1353 (R.I. 1989).
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Island Constitution, upset express limitations placed on the
eminent domain power by the framers, and disrupt the provisions
of subsequent amendments. Therefore, the Supreme Court of
Rhode Island should decline to extend the exercise of eminent
domain power to the taking of private property for economic
development.
D. History and Doctrine
A thorough post-Kelo recommendation to the Supreme Court
of Rhode Island must include an examination of Rhode Island
takings clause jurisprudence. This analysis falls within Bobbitt’s
doctrinal approach, which focuses on exploring the case law on a
particular subject.132 In addition, it is important under Bobbitt’s
historical approach133 to describe the historical background of
eminent domain jurisprudence in Rhode Island, paying particular
attention to those occasions in which the Supreme Court of Rhode
Island has departed from the United States Supreme Court
interpretation of similar federal constitutional provisions.
1. Eminent Domain Jurisprudence in Rhode Island
The Supreme Court of Rhode Island has consistently imposed
narrow limits on the Rhode Island Constitution’s takings clause.134
Even with the expansion of the definition of public use, the court
has sought to confine the use of eminent domain power so as to
prevent its abuse.135
The Supreme Court of Rhode Island originally insisted on a
strict interpretation of the “public use” requirement.136 For
example, in In re Rhode Island Suburban Railway Company,137
132. BOBBITT, supra note 20, at 7.
133. Id.
134. See City of Newport v. Newport Water Corp., 189 A. 843, 846 (R.I
1937); In re Rhode Island Suburban Ry., 48 A. 591 (R.I. 1901); Talbot v.
Talbot, 14 R.I. 57, 59 (1883).
135. See O’Neill v. City of East Providence, 480 A.2d 1375, 1381 (R.I.
1984) (finding that taking of plaintiffs land did not fit within the definition of
public use because it did not comply with the necessary criteria); Ajootian v.
Providence Redevelopment Agency, 91 A.2d 21, 22 (R.I. 1952) (found the
taking of a particular area to fit within the slum blighted area definition of
public use only after detailed legislative findings).
136. In re Rhode Island Suburban Ry., 48 A. at 591.
137. Id.
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the court held that the taking of a private lot by the Rhode Island
Suburban Railway did not qualify as a public use because the
main reason for the selection of the particular lot was to satisfy a
purely private interest.138 The court stated that “the right to take
is not for the convenience or advantage of the public, but for public
uses.”139
The court went on to explain that, while many types of
business may incidentally benefit the public, they do not justify a
taking.140 Private property cannot be taken for anything other
than use by the public.141 Public use “implies a possession,
occupation, and enjoyment of the land by the public at large.”142
The court warned that if such a taking were to constitute a valid
use of eminent domain, then companies could condemn land to
construct any building that might be required to further company
interests.143 Thus, even in its early decisions, in accordance with
other jurisdictions,144 the court feared possible abuses of the public
use requirement and sought to limit the type of takings that were
included under the provision.
As eminent domain jurisprudence developed, the trend
became to broadly construe the meaning of public use to include
the condemnation of blighted areas.145 While the Rhode Island
138. Id. at 593 (the only reason for choosing the lot was because it was
located along the Providence River and the company could conveniently get
coal by tide-water).
139. Id. at 592.
140. Id.
141. Id.
142. Id. at 593.
143. Id.
144. See Port of Umatilla v. Richmond, 321 P.2d 338, 347 (Or. 1958) (“the
public’s use and occupation must be direct”); City of Richmond v. Carneal,
106 S.E. 403, 407 (Va. 1921) (there should always be a “direct” public use of
the property taken); In re Opinion of the Justices, 91 N.E. 405, 407 (Mass.
1910) (the taking of private property to insure the proper development of
industrial facilities primarily benefited individuals and only an incidental
benefit to the public and thus was not considered a constitutional public use);
Healy Lumber Co. v. Morris, 74 P. 681, 685 (Wash. 1903) (the use must be
either a use by the public or a quasi public agency, and cannot be a merely
incidental benefit to the public).
145. See, e.g., O’Neill v. City of East Providence, 480 A.2d 1375, 1377 (R.I.
1984) (considering the constitutionality of acquiring private property to
effectuate urban renewal); Romeo v. Cranston Redevelopment Agency, 254
A.2d 426, 428-29 (R.I. 1969) (considering whether private property proposed
for condemnation complies with the definition of an arrested blighted area);
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Supreme Court has recognized that, in the wake of constantly
changing conditions of society, the concept of public use needs to
be more flexible,146 it has continued to impose strict, narrow limits
on the exercise of the eminent domain power.147
Following the lead of its sister states,148 the Supreme Court of
Rhode Island expanded its definition of “public use” to include the
taking of private property in “blighted areas.”149 However, in its
advisory opinion on the constitutionality of the Community
Redevelopment Act, which proposed the taking of private property
in blighted areas, the court explicitly noted that its validation of
the act was based on the highly specific definition of a “blighted
area” and the fact that the conditions must “predominate and
The court clearly
injuriously affect the entire area.”150
distinguished between an invalid statute that permitted the
taking of private property for uses that were partly private and
partly public but combined so as to make the two uses
inseparable, and the Community Redevelopment Act, which is a
valid public use because it seeks to eliminate disease, delinquency,
overcrowding, deterioration and crime in the interest of public
health and safety.151
Further, the court firmly stated that its advisory opinion did
not condone the use of eminent domain under the act for a
Ajootian v. Providence Redevelopment Agency, 91 A.2d 21, 22 (R.I. 1952)
(considering whether the condemnation of private property fit within the
definition of a slum blighted area); Opinion to the Governor, 69 A.2d 531, 531
(R.I. 1949) (considering the constitutionality of the Community
Redevelopment Act).
146. See In re Advisory Opinion to the Governor 324 A.2d 641, 645-46 (R.I.
1974); Romeo, 254 A.2d at 431.
147. See O’Neill, 480 A.2d at 1381; Romeo, 254 A.2d at 431.
148. See, e.g., Chicago Land Clearance Comm’n v. White, 104 N.E.2d 236
(Ill. 1952); Nashville Hous. Auth. v. City of Nashville, 237 S.W.2d 946 (Tenn.
1951); In re Slum Clearance in City of Detroit, 50 N.W.2d 340 (Mich. 1951);
Opinion of the Justices, 48 So.2d. 757 (Ala. 1950); Schenck v. Pittsburgh, 70
A.2d 612 (Pa. 1950); Redfern v. Board of Comm’rs of Jersey City, 59 A.2d 641
(N.J. 1948); Hous. Auth. v. Higgenbotham, 143 S.W.2d 79 (Tex. 1940);
Allydonn Realty Corp. v. Holyoke Hous. Auth., 23 N.E. 619 (Mass. 1939);
Hous. Auth. v. Dockweiler, 94 P.2d 794 (Cal. 1939); Dornan v. Philadelphia
Hous. Auth., 200 A. 834, (Pa. 1938) (slum prevention statute was
constitutional because its fundamental purpose was for a public use).
149. Romeo, 105 R.I. at 664; Ajootian, 91 A.2d at 26.
150. In re Advisory Opinion to the Governor, 69 A.2d 531, 535 (R.I. 1949).
151. Id. at 534.
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primarily esthetic purpose or as a means of creating an economic
advantage for the municipality.152 The act should be narrowly
construed to apply only to those redevelopment projects that are
necessary to protect public health, morals, and safety by removing
blight.153
In addition, the court specifically rejected the idea that the act
would permit municipalities to take private property under the
guise of so-called “blighted conditions” in order to develop the area
for a potentially more beneficial or profitable use.154 In other
words, only when the area in question constitutes a “menace to
public health, safety, or welfare” can the municipality then engage
in condemnation proceedings.155
In subsequent cases challenging both the Community
Redevelopment Act and Amendment XXXIII of the Rhode Island
Constitution, which adopted the Act into the state constitution,156
the court has strictly adhered to its narrow construction of what
constitutes a “blighted area” and has only permitted the use of
eminent domain in areas that fit within the rigorous definitions
outlined in the Act and Amendment XXXIII.157
For example, in Ajootian v. Providence Redevelopment Agency,
the Supreme Court of Rhode Island had its first opportunity to
review the city’s application of the Slum Clearance and
Redevelopment Act, which had repealed the fundamentally
similar Community Redevelopment Act.158 Through the use of its
152. Romeo, 105 R.I. at 657; In re Advisory Opinion to the Governor, 69
A.2d at 536.
153. In re Advisory Opinion to the Governor, 69 A.2d at 536.
154. Id. at 536-37.
155. Id. at 539.
156. Note, the adoption of the Community Redevelopment Act into the
Rhode Island Constitution created a significant difference between the state
constitution and the United States Constitution.
157. See O’Neill v. City of East Providence, 480 A.2d 1375, 1382 (R.I.
1984) (finding that the taking of land for the city’s proposed revitalization
project did not constitute a proper public use because the city failed to meet
the necessary requirements for a public use as defined in Amendment
XXXIII); Romeo, 105 R.I. at 655 (finding that the area in question fit within
the definition of an arrested blighted area after reviewing detailed legislative
findings); Ajootian v. Providence Redevelopment Agency, 91 A.2d 21, 22 (R.I.
1952) (finding that the designated project area qualified as a slum blighted
area because it fit within the narrow definition); See generally R.I. CONST.
art. I, § 16; R.I. GEN. LAWS § 45-31-3 (2005) (LexisNexis).
158. 91 A.2d 21, 26 (1952) (“. . .both acts generally expressed the same
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eminent domain power under the Act, the city had proceeded to
acquire lands within an area that it had determined to be a “slum
blighted area.”159 Plaintiff Ajootian owned one plot with a twofamily residential dwelling and two other lots within the
designated area.160 He sought an injunction against the city to
prevent it from taking these properties.161
The court, reiterating the findings expressed in its Advisory
Opinion regarding the Community Redevelopment Act, upheld the
constitutionality of the Act and found that the taking of private
property in order to dispose of blight in the interest of public
safety, health, and welfare fit within the public use requirement of
the takings clause.162 In doing so, the court pointed out that the
city had fulfilled all the necessary steps required by the Act before
engaging in condemnation proceedings, including that the
designated project area complied with the “slum blighted area”
definition outlined in the Act.163 The following findings were set
forth:
46 per cent of the land is used for industrial or
commercial purposes; that the streets are narrow and
congested; that of the 125 dwelling units, which are
contained in 49 structures and occupied by about 400
people, 110 have been surveyed; that 84 per cent of these
were built before 1900; that 71 per cent have no central
heating; that 63 per cent have no inside hot water; that
62 per cent have no private bath; that 97 per cent are
inadequate because of hazardous and unsanitary
conditions; that 85 per cent have serious deterioration;
and that all dwellings are predominately of wood
construction, built close together and constitute fire
hazards. . . . [B]ecause of such conditions, the incidence of
juvenile delinquency, aid to dependent children,
tuberculosis and other diseases are disproportionately
legislative intent. The changes in the latter relate mostly to matters of detail
and definition.”)
159. Id. at 22.
160. Id.
161. Id.
162. Id. at 26.
163. Id. at 24.
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high.164
While the above facts and findings were not at issue, had the
city not taken the necessary steps and made the proper findings to
specifically show how the project area fit within the explicit
definition of a “slum blighted area,” the court implied that the city
may not have been entitled to exercise its eminent domain power
to acquire Ajootian’s property.165
Thus, even under a more expansive “public use” requirement,
the Supreme Court of Rhode Island continued to curtail the abuse
of eminent domain power by requiring a positive showing that a
particular area meet the definition of a “slum blighted area.”
Such a showing is not required by the Federal Constitution, and
therefore, justifies the Rhode Island Supreme Court to depart
from the United States Supreme Court’s more lenient public use
requirements.
Subsequently, the citizens of Rhode Island approved an
amendment, known as article XXXIII, to the Rhode Island
Constitution.166 This amendment somewhat broadened the state’s
eminent domain power by permitting not only the removal of
slums but also the removal of blight in general which frequently
However, unlike the United States
leads to slums.167
Constitution, the provisions of the amendment still require
specific showings that the existence of the alleged blighted area
“constitutes a serious and growing menace which is injurious and
inimical to the public health, safety, morals and welfare of the
people. . . .”168
The Supreme Court of Rhode Island addressed the
constitutionality of Article XXXIII in Romeo v. Cranston
Redevelopment Agency,169 specifically the inclusion of “arrested
blighted areas”170 within the definition of blighted and
164. Id. at 22-23.
165. See id. at 24; see also O’Neill v. City of East Providence, 480 A.2d
1375, 1382 (R.I. 1984) (where the city was not authorized to use the eminent
domain power because it failed to meet the necessary requirements.)
166. Romeo v. Cranston Redevelopment Agency, 105 R.I. 651, 656 (1969).
167. Id. at 658; see generally R.I. CONST. art. I, § 16; R.I. GEN. LAWS § 4531-3 (2005) (LexisNexis).
168. Romeo, 105 R.I. at 656; see R.I. GEN. LAWS § 45-31-3 (2005)
(LexisNexis).
169. Romeo, 105 R.I. at 651.
170. See supra note 9, and accompanying text.
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substandard area.171 The project in question involved a section of
land that the city desired to acquire in order to build a highway
and install various utilities.172 The purpose of the project was to
“assist in the orderly development of this particular area of
Cranston.”173 The plaintiff owned a home in the area and jointly
retained eleven plots of vacant land in the project area.174
The court found that the redevelopment agency properly
adhered to the standards set forth under the definition of an
The project area displayed the
“arrested blighted area.”175
following conditions: outmoded platting, inadequacy of utilities,
diversity of ownership of lots, title to multiple lots held by reason
of their sale for unpaid taxes, and the disposal of garbage and
perishables in the area.176 The court went on to state that, while
the textual definition of an “arrested blighted area” did not
contain an express reference to public health, safety, and welfare,
provisions of § 45-31-3 presented eight specific findings regarding
the hazards which arise from blighted and substandard areas.177
Chief among these findings is that the area presents a “serious
growing menace which is injurious and inimical to the public
health, safety, morals, and welfare of the people. . . .”178
In endorsing the redevelopment agency’s findings and its use
of the eminent domain power, the court was careful to explain that
what classified as a valid public use was still a judicial question.179
Recognizing that this expansion of the public use requirement
gave redevelopment agencies an “extreme grant of power,” the
court reserved the authority to hear claims alleging an abuse of
this power.180 In other words, the Supreme Court of Rhode Island,
while broadening the original, rigid definition of public use in
171. Romeo, 105 R.I. at 654.
172. Id. at 653. Utilities included water, sewer, drainage, gas, electric,
telephone, street lighting and appurtenances.
173. Id. In my view, because the city would be building a public highway
on the land, this type of taking is the type envisioned by the framers and
thus, validly within the original definition of “public use.”
174. Id. at 654.
175. Id. at 655.
176. Id. at 655, n.1.
177. Id. at 656; see generally R.I. GEN. LAWS § 45-31-3 (2005) (LexisNexis).
178. Romeo, 105 R.I. at 656.
179. Id. at 665.
180. Id.
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order to conform with the changes of modern society, has
continued to maintain a policy of strict adherence to the limits
placed on the eminent domain power, a policy which the United
States Supreme Court has not pursued.
While the Supreme Court of Rhode Island has yet to be
presented with a Kelo-like situation, it has recently referenced the
Kelo decision. In Rhode Island Development Corp. v. The Parking
Co., the court first reaffirmed “the well-established rule that what
constitutes a public use is a judicial question.”181 Then, in
mentioning Kelo, the court stressed the fact that the Supreme
Court had focused on the City of New London’s extensive,
deliberate, and methodical approach in preparing the economic
development plan and “the condemning authority’s responsibility
of good faith and due diligence before it may start its
condemnation engine.”182 However, while the court appears to
apply Kelo in a positive light, it also emphasizes the need for the
“principle purpose and objective in a given enactment [to be]
public in nature [and] designed to protect the public health,
safety, and welfare.”183 The court went on to conclude that
condemnation proceedings motivated by a desire for increased
revenue did not satisfy the public use requirement.184 This
implies that the Supreme Court of Rhode Island would be against
the adoption of a bright line rule, as enunciated in Kelo, that
taking private property for economic development will always
constitute a valid public use, and opt for an approach that
continues to limit the use of the eminent domain power.
Thus, even under an expanded definition of public use, the
Supreme Court of Rhode Island has continued to curb potential
exploitation of the eminent domain power by imposing limits on
its application. The court should continue its current practice of
narrow construction of the public use requirement and reject the
broad, all encompassing “economic development” interpretation of
public use.
181. R.I. Econ. Dev. Corp. v. Parking Co., 892 A.2d 87, 103 (R.I. 2006). The
court found that, because the condemnation of a parking facility was
motivated by a desire to increase revenue, the taking was not a legitimate
public use). Id. at 101.
182. Id. at 104.
183. Id.
184. Id.
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2. Departure From the United States Supreme Court
The Supreme Court’s decision in Kelo represents the
minimum level of protection that the States must afford their
citizens under the Fifth Amendment to the federal Constitution.185
The States are free to interpret their state constitutions so as to
provide additional rights to their citizens than the federal
constitution provides.186 Given this integral tenet of federalism,
the Supreme Court of Rhode Island should enforce stricter “public
use” requirements than the federal minimum.
While the language of article I, section 16 of the Rhode Island
Constitution and the Fifth Amendment to the federal Constitution
are similar,187 Rhode Island has not closed its doors to the
possibility of departing from the minimum standards set by the
Supreme Court.188 In fact, Rhode Island has strayed from
Supreme Court rulings and provided its citizens with a heightened
degree of protection in several areas: the Fourth Amendment auto
exigency,189 drunk driving roadblocks under the Fourth
Amendment,190 electronic eavesdropping,191 suppression of seized
evidence,192 and the Sixth Amendment right to a jury trial.193
185. Kelo v. City of New London, 125 S. Ct. 2655, 2668 (2005).
186. Id.
187. See U.S. CONST. amend. V; R.I. CONST. art. I, § 16 (“Private property
shall not be taken for public uses, without just compensation”).
188. See In re Advisory Opinion to the Governor, 666 A.2d 813, 817 (R.I.
1995); State v. Taylor, 621 A.2d 1252, 1254 (R.I. 1993); State v. Werner, 615
A.2d 1010, 1252 (R.I. 1992); State v. Bertram, 591 A.2d 14, 21 (R.I. 1991);
State v. Mattatall, 603 A.2d 1098, 1112 (R.I. 1992); Pimental v. Dep’t of
Transp., 561 A.2d 1348, 1350 (R.I. 1989).
189. State v. Benoit, 417 A.2d 895, 899 (R.I. 1980) (departing from U.S.
Supreme Court holding that the automobile exception included immobilized
vehicles by invalidating the warrantless search of a car four hours after it
had been seized by police), overruled by State v. Werner, 615 A.2d 1010, 1014
(R.I. 1992) (overruled Benoit because the Supreme Court had subsequently
corrected the inconsistencies in the auto exigency requirement).
190. Pimental, 561 A.2d at 1351 (departing from the United States
Supreme Court language that the Fourth Amendment allowed
nondiscretionary roadblocks).
191. State v. Maloof, 333 A.2d 676 (R.I. 1975) (requiring stricter
compliance to the provisions of a state electronic eavesdropping statute than
the Fourth Amendment’s requirement of a similar federal statute).
192. State v. von Bulow, 475 A.2d 995, 1019 (R.I. 1984) (stating that even
if the defendant’s Fourth Amendment rights had not been violated, the Rhode
Island Constitution required a finding of an illegal search).
193. In re Advisory Opinion to the Senate, 278 A.2d 852, 854-55 (1971)
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Rhode Island has generally departed from Supreme Court
authority when a principled rationale exists for such a
departure.194 For example, in Pimental v. Dept. of Transp.,195 the
Supreme Court of Rhode Island declined to follow the language of
the Supreme Court decision in Delaware v. Prouse,196 which
allowed non-discretionary roadblock stops.197 The Supreme Court
of Rhode Island believed that such roadblocks would “diminish the
guarantees against unreasonable searches and seizures”
The court
embedded in the Rhode Island Constitution.198
recognized that, while the societal interest in getting drunk
drivers off the roadways was compelling, it could not outweigh the
fundamental guarantees of privacy explicitly outlined by the
framers of the Rhode Island Constitution.199 The court reasoned
that to ignore the traditional values set forth in the Rhode Island
Constitution would surely “shock and offend” the founders of this
Based on this reasoning, the court found that a
state.200
principled rationale existed to depart from the minimum level of
protection established by the Supreme Court.201
Similar to the situation in Pimental, a principled rationale
exists to depart from the Supreme Court standard set forth in
Kelo v. City of New London. The founders believed the right to
acquire, possess, and protect property was a guaranteed
This
fundamental right similar to the right to privacy.202
understanding that property was a natural, fundamental right
was widely accepted and embodied in the common law.203 For
instance, William Blackstone204 described private property rights
(departing from the Supreme Court decision that a six person jury does not
violate the Sixth Amendment).
194. Pimental, 561 A.2d at 1351; Benoit, 417 A.2d at 899.
195. 561 A.2d at 1348.
196. Delaware v. Prouse, 440 U.S. 648, 663 (1979).
197. Pimental, 561 A.2d at 1351.
198. Id. at 1352.
199. Id.
200. Id. at 1352-53.
201. Id. at 1351.
202. DOCUMENTARY HISTORY OF THE CONSTITUTION VOL. II, 310-20 (1894),
available at http://www.yale.edu/lawweb/avalon/const/ratri.htm.
203. Kelo v. City of New London, 125 S. Ct. 2655, 2680 (2005) (Thomas, J.
dissenting).
204. Blackstone is credited with unintentionally inspiring the American
Revolution and providing the foundation for American government. His
Commentaries were very influential in the drafting of the Constitution and
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in the following way: “So great. . . is the regard of the law for
private property, that it will not authorize the least violation of
it.”205 He wrote that “the law of the land. . . postpone[s] even the
public necessity to the sacred and inviolable rights of private
property.”206 In addition, Rhode Island courts have recognized
that ownership of property creates fundamental rights in that
property.207 This “bundle of rights” includes the right to exclude
others, to possession, to use and enjoy, and to dispose of the
property.208 Because the taking of private property for “economic
development” essentially allows the government to take private
property solely on the basis of finding a more profitable use for the
land, this fundamental right, valued by our founders, would be
severely diminished. Surely such a violation would “shock and
offend” the framers of the Rhode Island Constitution.
Thus, because a principled rationale exists for departing from
the Supreme Court minimum in Kelo v. City of New London, the
Supreme Court of Rhode Island should afford its citizens with a
heightened level of protection under the takings clause of Article I,
section 16 of the state constitution.
D. Prudentialism
Bobbitt’s prudential approach to constitutional interpretation
focuses on the consequences of adopting a particular decision or
interpretation.209 The sanctity of the home is a concept with deep
roots, fully embedded in American tradition.210 Homes provide
the self-evident, unalienable rights philosophy underlying the Declaration of
Independence likely originated with Blackstone.
205. William Blackstone, 1 Commentaries 135.
206. Id.
207. See Harris v. Town of Lincoln, 668 A.2d 321, 327 (R.I. 1995); Emond
v. Durfee, WL 936873, at *6 (R.I. Super. 1996).
208. Emond, WL 936873, at *6.
209. BOBBITT, supra note 20, at 7.
210. For example, the concept is consistently found in Supreme Court
Fourth Amendment cases protecting against unwarranted searches of the
home. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (Government
has the burden of showing that exigent circumstances existed before they
may invade the sanctity of the home); Payton v. New York, 445 U.S. 573, 586
n.24 (1980) (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948) (“the
right of officers to thrust themselves into a home is also a grave concern, not
only to the individual, but to a society which chooses to dwell in reasonable
security and freedom. . . .”)).
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foundations for America’s families and the encouragement of
stable family homes is a fundamental aspect of good public policy.
Yet, with the Supreme Court decision in Kelo, allowing
governments to take private property without fulfilling the public
use requirement,211 no family is safe from the threat of losing its
home. What was formerly a hurdle for governments to overcome
to take an individual’s home is now non-existent, resulting in the
possibility of leaving once stable, happy households with no place
to go.
Entire families could be uprooted from their homes and forced
to alter their lives212 solely because the government believes that
other businesses might be a more profitable use for the land.
Children may be forced to change schools or child care facilities
and leave their friends behind. Parents may have to find new jobs
or drive longer distances to get to their current jobs. Similar to
what happened to the Derys in New London, the government
would be allowed to force elderly couples from their longstanding
homes.213 These couples may have special needs, like requiring
wheelchair accessibility, that their home was particularly
designed to handle. Eminent domain poses risks to financial
stability and creates severe stress for all those affected. As a
public policy matter, the pursuit of higher tax revenues should not
trump the encouragement of stable family units.
Some may argue that the legislature, acting on behalf of its
constituents, is better situated to address policy concerns and that
the courts should play at most a limited role. However, as will be
discussed, certain situations call for the courts to step up and take
a more active role in policy decision making.214 For example, in
this situation, constitutional interpretation and fundamental
rights are at issue, and because, as shown below, the interests of
all socioeconomic levels of society are not always taken into
account by the local legislature, the courts, in an effort to protect
those individuals less politically represented, need to intervene.215
211. Kelo v. City of New London, 125 S.Ct. 2655 (2005).
212. See Petition for Writ of Certiorari, supra note 6.
213. Id. at *9.
214. See infra Part E.
215. Both Kennedy in his concurrence and Thomas in his dissent support
the idea that a more stringent standard of review may be appropriate for
some takings. See Kelo, 125 S. Ct. at 2670 (Kennedy, J. concurring); 125 S.
Ct. at 2687 (Thomas, J. dissenting).
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In addition, if the government is given free reign to take
private property with such ease, private property owners will have
less of an incentive to keep up their land and make improvements.
What motivates a person to improve his land when the threat of
condemnation is constantly looming over him? Essentially, a
private property owner would just be leasing from the city until
the city decides it wants the land.216
Further, the Kelo expansion of public purpose “guarantees
that these losses will fall disproportionately on poor
Economic development embraces any
communities.”217
economically advantageous end.218 Because poor communities
have little political power and are almost certainly less likely to
use their land to its maximum and paramount social use, they will
inevitably feel the brunt of economic development takings.219
Since the expansion of the definition of “public use” to include
the taking of “slum blighted areas,” this harsh disproportionate
effect has already been felt among the nation’s poorer
communities and the Supreme Court’s decision in Kelo would only
work to aggravate those effects.220 Between 1949 and 1963, 63
percent of families uprooted by urban renewal whose race was
known were minorities.221 Of these families, while 56 percent of
minorities and 38 percent of whites satisfied the public housing
minimum income prerequisite, public housing was rarely
available to them.222 During the 1950s and 1960s, public works
ventures decimated largely nonwhite neighborhoods in St. Paul,
Minnesota and Baltimore, Maryland.223 The lower income and
elderly residents of Poletown in Detroit, Michigan were displaced
from their homes in 1981 in order to make way for a new General
Motors plant.224 In the “slum clearance” development upheld by
216. See Benjamin D. Cramer, Comment, Eminent Domain for Private
Development- An Irrational Basis for the Erosion of Property Rights, 55 CASE
W. RES. L. REV. 409, 419 (2004) (summarizing the comments of an Ohio
property owner).
217. Kelo, 125 S. Ct. at 2686-87 (Thomas, J. dissenting).
218. Id. at 2686.
219. Id. at 2686-87.
220. Id. at 2687.
221. Id. (quoting Berman v. Parker, 348 U.S. 26, 28 (1954)).
222. Id.
223. Id. (citing Berman, 348 U.S. at 28-29).
224. Id. (citing Jeanie Wylie, Poletown: Community Betrayed 58 (1989)).
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the United States Supreme Court in Berman v. Parker,225 more
than 97 percent of people uprooted by the project were black.226
Because of its intimate connection to the dislocation of minorities,
“urban renewal came to be known as ‘Negro removal.’”227 The
Supreme Court’s decision in Kelo will only worsen this situation.
Now, under the guise of economic development, cities have
unbridled power to take private property for any economically
profitable objective, not just to remove blight.
Thus, because the exercise of eminent domain has such
negative effects on those displaced by it, as a matter of good public
policy, the power of eminent domain should continue to be used
only sparingly. A broad expansion of the power threatens to
exacerbate an already devastatingly disproportionate condition.
Therefore, the Supreme Court of Rhode Island should reject the
Supreme Court’s finding that economic development is a valid
public use because it gives the government too much discretion in
exercising its takings power.
E. Ethics
The Kelo decision raises many ethical questions. Bobbitt’s
ethical approach to constitutional interpretation takes a look at
the implication of the government as a central role in American
political culture.228 In the absence of any real guidelines on the
use of economic development as a justification for exercising the
eminent domain power, what stops the government from abusing
its takings power? Does the government need to advance any
rationale for its decisions to take private property for economic
development? What conditions must be present to condemn an
area for economic development?
Can plans for economic
development be based entirely on speculation?
The answers to these questions can be summed up with the
following: because the Court gave complete deference to the
legislature to determine which areas are ripe for economic
225. Berman v. Parker, 348 U.S. 26 (1954).
226. Kelo, 125 S. Ct. at 2687 (citing Berman, 348 U.S. at 30).
227. Wendell E. Pritchett, The “Public Menace” of Blight: Urban Renewal
and the Private Uses of Eminent Domain, 21 YALE L. & POL’Y REV. 1, 47
(2003).
228. BOBBITT, supra note 20, at 94.
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development,229 the government can take private property for
essentially any reason without any meaningful check on its
authority. In Kelo, the legislature only had to find that the Fort
Trumbull area was “sufficiently distressed” and put together a
plan that it “believed” would benefit the community.230 However,
the legislature did not provide any criteria for the basis of its
finding that the Fort Trumbull area was “sufficiently depressed”
or give any guarantee that its economic development plan would
in fact create more jobs or increase tax revenue, thus benefiting
the community.
The question remains: Are there any safeguards in place to
prevent the abuse of eminent domain?231 Some may argue that
the political process can adequately remedy any potential abuses.
In other words, because the citizens have a voice in whom they
want to run their state, legislators seeking re-election will not
alienate the citizens by abusing their powers.
However, legislators are also influenced by corporations and
organized interest groups who help raise money and promise
votes.232 It is these situations that threaten abuse of eminent
domain power and call for the courts to intervene.
“The
beneficiaries [of the Kelo decision] are likely to be those citizens
with disproportionate influence and power in the political process,
including large corporations and development firms.”233 The Kelo
decision encourages more influential citizens to take advantage of
individuals who are less politically powerful.234 These ethical
considerations make it more likely that the aforementioned
negative prudential concerns will be realized. Especially in regard
to large influential corporations, such as General Motors or Pfizer,
229. Kelo v. City of New London, 125 S. Ct. 2655, 2665 (2005).
230. Id.
231. Power Lunch, supra note 2 (Bill Griffeth asking, “what stops the head
of a major hotel from coming in and wanting to develop a choice piece of
property that already has homes on it? “Couldn’t he just say, ‘you let me
build, and your tax base will go up?’”).
232. Cramer, supra note 216, at 419; See Kelo, 125 S. Ct. at 2670
(Kennedy, J. concurring) (stating that “there may be some categories of cases
in which the transfers are so suspicious, or the procedures employed so prone
to abuse, or the purported benefits are so trivial or implausible, that courts
should presume an impermissible private purpose.”).
233. Kelo, 125 S. Ct. at 2677 (O’Connor J., dissenting).
234. Id. at 2687 (Thomas, J., dissenting).
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municipalities could essentially act as personal real estate agents.
A constitutional right thus would be undermined to adhere to the
interests of private corporate interests.235
In the aftermath of the Kelo decision, the incidents of abuse of
eminent domain power are already surfacing nationwide.236 For
example, city officials in National City, California endorsed the
use of eminent domain to take a large area of the city to allow a
private developer to build an office tower, condominiums and
retail space.237 While not all properties in the designated area are
blighted, they are still subject to eminent domain taking “because
the proposed development will be more profitable.”238 In Toledo,
Ohio, eighty three well-maintained homes were condemned so
that a Jeep plant, that threatened to leave otherwise, could
expand its facilities.239 Elsewhere, property owners in Menomonee
Falls, Wisconsin could stand to lose their land as the city
formulates a tangible redevelopment plan.240
Even homeowners in upscale and middle-class neighborhoods
are not safe.241 Homeowners in Boulevard Heights, an upscale
community in St. Louis, Missouri, were forced from their homes to
make way for a shopping center.242 In Long Branch, New Jersey,
city officials moved to employ eminent domain to seize middleclass oceanfront homes and replace them with luxury
condominiums.243
Some Rhode Island citizens are also among those who are
feeling the harsh effects of the abusive post-Kelo eminent domain
power.244 Back in 2000, the city of Warwick sought to redevelop
235. Accord Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d
455, 482 (Mich. 1981) (Ryan, J., dissenting).
236. Castle Coalition, http://www.castlecoalition.org/legislation/index.html
(last visited Apr. 17, 2006).
237. Castle
Coalition,
http://castlecoalition.org/current_controversies/
index.html (last visited Apr. 17, 2006) (under National City, Calif. Heading).
238. Id.
239. Castle Coalition, http://maps.castlecoalition.org/ (last visited Apr. 17,
2006) (Select Ohio on “select state” drop down menu, then select Toledo on
the map).
240. Castle
Coalition,
http://castlecoalition.org/current_controversies/
index.html (last visited Apr. 17, 2006) (under Menomonee Falls, Wisconsin
heading).
241. Id. (under Long Branch, NJ and St. Louis, Mo. headings).
242. Id. (under St. Louis, Mo. heading).
243. Id. (under Long Branch, NJ heading).
244. Castle Coalition, http://maps.castlecoalition.org/ (last visited Apr. 17,
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THREAT TO PRIVATE PROPERTY RIGHTS
755
the Station District.245 Plans were stalled when the Warwick
Station Redevelopment Agency failed to secure the land needed
for the project.246 Property owners in the area were simply not
willing to negotiate.247 However, in light of the Kelo decision, the
city and Warwick Station Redevelopment Agency have renewed
their efforts to put their plan in motion.248 Agency chairman
Michael Grande says, “[t]he only obstacle to private development
of hotels, condos, office space, and retail is the price of the dirt.”249
Thus, if the Supreme Court of Rhode Island adopted economic
development as a valid public use, property rights would exist
subject to the compulsion of the government and its desires to
satisfy influential corporations. The lure of potential abuse of the
eminent domain power would be great.
IV. CONCLUSION
In sum, the Supreme Court of Rhode Island should reject the
United States Supreme Court decision in Kelo v. City of New
London to extend the use of the eminent domain power to include
the taking of private property for economic development.
The text and structure of Article I, section 16 both imply that
the “public use” requirement is a limitation on the exercise of
eminent domain.
Not only must the government pay just
compensation, but the intended use must be for the possession,
enjoyment, and occupation by the public. It cannot be for the
benefit of a purely private interest. While the Supreme Court of
Rhode Island has accepted the extension of the “public use”
requirement to include the taking of “blighted” areas, this
exception is extremely narrow and only applies to those areas that
are so deteriorated and dilapidated that public health and safety
are at risk or those unsafe and unsanitary “arrested blighted
areas” that prevent the healthy growth of a community.
In addition, Rhode Island’s history and doctrine support the
rejection of the Kelo expansion of eminent domain jurisprudence.
2006) (Select Rhode Island on “select state” drop down menu, then select
Warwick on the map).
245. Id.
246. Id.
247. Id.
248. Id.
249. Id.
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The Supreme Court of Rhode Island has continued to enforce a
strict application of the eminent domain power. In its advisory
opinions and subsequent decisions, the court has explicitly
rejected the notion that the government could take private
property solely for the purpose of putting it to a more beneficial
use.
Furthermore, the Supreme Court of Rhode Island has not
hesitated to depart from the United States Supreme Court in the
past when it believed that a principled rationale existed to afford
its citizens with more protection than the federal minimum.
Because the private right to property ownership was a core,
fundamental value of the founders, to allow the government to
acquire private property with such ease would be wholly contrary
to their beliefs and objectives.
Finally, the furtherance of good public policy and the
hindering of unethical abuse of the eminent domain power are
additional reasons to reject the Kelo holding. It is violative of
public policy to uproot families and force them out of their homes.
Also, because there are essentially no limitations on the economic
development rationale, the government is susceptible to bribery
from large influential corporations.
For these reasons, the Supreme Court of Rhode Island should
depart from the United States Supreme Court decision in Kelo v.
City of New London, and provide the citizens of Rhode Island with
more protection of individual property rights than that afforded by
the federal minimum.
Christina M. Senno
GLIOTTONE
5/15/2006 6:57 PM
Civil Procedure. Glittone v. Ethier, 870 A.2d 614 (R.I.
2005). Motions for summary judgment may be argued before the
expiration of the ten-day waiting period delineated in Rule 56(c) of
the Superior Court Rules of Civil Procedure if the non-moving
party fails to raise an objection to the timing of the motion
hearing. Additionally, the court held that under Rhode Island’s
comparative negligence system a plaintiff, notwithstanding his
own negligence, is entitled to survive summary disposition if he or
she can provide any evidence suggesting a genuine issue of
material fact as to the defendant’s negligence.
FACTS AND TRAVEL
Silvestro Gliottone, filed a negligence action against Jeff
Ethier following a motor vehicle accident.1 Gliottone was driving
northbound on Dyer Avenue in Cranston when he attempted to
turn left into a service station; while crossing the southbound lane
of the road, he struck the Ethier’s vehicle.2 Connie Martone was
traveling behind the car driven by the defendant, Jeff Ethier, and
in her deposition she stated that she saw the plaintiff’s vehicle
cross the center of the roadway and strike the defendant’s car
head-on.3 Furthermore, Martone stated that Gliottone’s vehicle
was not displaying a directional signal, and she estimated that
Ethier’s vehicle was traveling between twenty-five and twentyeight miles per hour at the time of the collision.4 Martone
“emphasized. . .that plaintiff crossed into oncoming traffic so
suddenly that defendant could not have avoided the accident.”5
Gliottone acknowledged in his deposition that he had no
recollection of the accident “other than seeing a ‘white blur’ just
Additionally,
before striking his head on his windshield.”6
Gliottone stated that he had not seen Ethier’s vehicle prior to
1. Gliottone v. Ethier, 870 A.2d 1022, 1023 (R.I. 2005).
2. Id.
3. Id. at 1024.
4. Id.
5. Id.
6. Id. at 1023.
759
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impact.7 Moreover, he could not recall whether he was wearing a
seatbelt at the time of impact, nor whether his foot was on the
accelerator or the brake.8 Discovery revealed that plaintiff had no
remaining vision in his left eye.9
At the encouragement of the Superior Court trial justice,
Ethier filed a motion for summary judgment, alleging an absence
of any issues of material fact to be submitted to the jury.10 That
same afternoon, Ethier argued his motion, asserting that
Gliottone had failed to raise evidence sufficient to create a genuine
issue of material fact as to defendant’s negligence.11 Gliottone
argued in response that photographs depicting damage to the
vehicles at the scene of the accident created an issue of material
fact as to the comparative negligence of the defendant; Gliottone
did not, however, challenge the timing of the court’s consideration
of the motion.12 The hearing justice granted the motion for
summary judgment and Gliottone filed a timely notice of appeal.13
ANALYSIS AND HOLDING
On appeal, Gliottone alleged that the hearing justice
committed both substantive and procedural errors.14
First,
Gliottone asserted that the hearing justice abused his discretion
by hearing the summary judgment motion without a showing that
plaintiff had received ten days notice of the motion in accordance
with Superior Court Rule of Civil Procedure 56(c), which states,
inter alia, that motions for summary judgment “shall be served at
least 10 days before the time fixed for the hearing.”15 The plaintiff
alleged that this language in Rule 56(c) established a ten-day
waiting period that may not be waived under the “raise or waive”
rule.16
The court acknowledged that the application of the “raise or
waive” rule to Rule 56(c) was a novel question in Rhode Island.17
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
Id. at 1024.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 1024-25 (quoting R.I. R. Civ. P. 56(c)).
Id. at 1025.
Id. at 1025 n.2.
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As a result, the court reviewed precedent from other federal
jurisdictions.18 Noting that Rhode Island Rule 56 is “substantially
similar” to its federal counterpart, the court found it appropriate
to consider federal authority,19 which states that “in the absence of
an objection, the defect of untimely service under Rule 56 will be
deemed waived.”20 Additionally, the court looked to other state
jurisdictions that have considered the application of the “raise or
waive” rule to Federal Rule 56(c) and found that those states
“likewise have held that failure to object to noncompliance with
Rule 56(c)’s ten-day requirement results in a waiver of the
argument on appeal.”21 Since the court could “discern no reason to
deviate from the weight of authority from around the country,” it
held that if a party fails to object to the timing of the court’s
hearing on a summary judgment motion, “the defect in compliance
with the ten-day requirement is waived and the court’s
consideration of the motion will not constitute reversible error.”22
In further support of the holding, the court determined that the
plaintiff here was not prejudiced by the prompt consideration of
the summary judgment motion because, as plaintiff’s counsel
admitted, both parties had knowledge of the facts intended to be
argued in support of the summary judgment motion at least ten
days prior to the hearing.23
On the substantive issues, the plaintiff asserted that the
granting of summary judgment was reversible error because the
photographs of the damaged vehicles were sufficient to create a
18. Id. at 1025.
19. Id. (citing Kelvey v. Coughlin, 625 A.2d 775 (R.I. 1993); Heal v. Heal,
762 A.2d 463 (R.I. 2000)).
20. Id. (citing 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2719 (3d ed. 1998); 11 JAMES WM. MOORE ET AL., MOORE’S
FEDERAL PRACTICE § 56.10[2][a] at 56-49 (3d ed. 2004)).
21. Id. at 1025-26 (citing McKenzie v. Killian, 887 So.2d 861 (Ala. 2004);
Wahle v. Med. Ctr. of Del., Inc., 559 A.2d 1228 (Del. 1989); Richardson v.
Citizens Gas & Coke Util., 422 N.E.2d 704 (Ind. Ct. App. 1981)).
22. Id. at 1026. The court also noted that “Rhode Island is not completely
without local guidance” on this issue. Id. at 1026 n.4. The court noted that in
Professor Robert Kent’s “influential treatise,” he wrote: “[f]ailure to serve the
motion [for summary judgment] 10 days before the hearing does not
necessarily void the motion. If it is in fact heard on the designated date, and
the opposing party does not raise the timeliness of notice, the defect is
waived.” Id. (quoting 1 KENT, RHODE ISLAND CIVIL PRACTICE § 56.3 at 417-18
(1969)).
23. Id. at 1026-27.
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material issue about the defendant’s speed at the time of the
crash.24 After reviewing the record de novo, the court vacated the
grant of summary judgment to the defendant and held that,
despite strong evidence of plaintiff’s negligence, a “jury reasonably
could infer from the evidence presented. . .that defendant may too
have been negligent.”25 Indeed, the court noted that in a
comparative negligence jurisdiction such as Rhode Island, the
plaintiff is entitled to avoid summary disposition of the action if he
presents evidence creating a genuine issue of material fact as to
the negligence of the defendant.26 Previously, the court had held
that accident scene photographs are admissible to prove causation
of injuries even without expert testimony.27 Thus, in this case, the
court determined that summary judgment was improperly
granted because the photographs offered into evidence by
Gliottone depicted vehicular damage of sufficient degree that a
jury could reasonably infer that Ethier may have been speeding at
the time of the accident.28 Therefore, a potential material issue of
fact was created, making summary disposition inappropriate.29
COMMENTARY
This case articulates a frustration of the underlying principles
and policies of comparative negligence and summary judgment
when it declares negligence cases, no matter how weak, immune
from summary adjudication.30 Under the rules of summary
judgment, as codified in Rule 56, cases in which “no issues of
material fact appear” allow the trial justice to enter an order
dismissing the case in favor of the moving party.31 This rule
serves a vital role in maintaining the efficiency of the court system
by providing a mechanism by which cases lacking merit are not
allowed to advance to trial.32 Without such a rule the court
system would be even more bogged down than it currently is
24.
25.
26.
27.
28.
29.
30.
31.
32.
Id. at 1027.
Id. at 1028.
Id. at 1028-29.
Id. at 1028 (citing Boscia v. Sharples, 860 A.2d 674 (R.I. 2004)).
Id.
See id.
See id. at 1028-29.
Id. at 1027 (quoting Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981)).
See id. at 1027-28.
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because the court would be required to adjudicate every minor
negligence claim, regardless of whether any substantial evidence
supports the charges alleged.
The Rhode Island Supreme Court, however, potentially
frustrates the efficient administration of justice by the Superior
and District Courts when it states that “issues of negligence are
ordinarily not susceptible of summary adjudication, but should be
resolved by trial in the ordinary manner.”33 In adopting such a
rule, the court abandons its doctrine of efficiency and instead
catapults negligence actions to a position of superiority above all
other civil wrongs in contravention of the policy of fairness that
underlies comparative negligence. Indeed, the principle of
comparative negligence is meant to eliminate the arbitrary and
unfair results of contributory negligence, not to provide the
plaintiff with a sure-fire avenue to trial.34 Such a system as the
Rhode Island Supreme Court has now created in Gliottone could
have a disastrous effect on the efficient administration of justice
because the courts in Rhode Island may now be required to hear
any negligence case in which a mere potential material issue of
fact is presented. No longer must a plaintiff in a negligence case
provide a concrete issue of material fact; a scant offer of proof
may now be sufficient to overcome a motion for summary
judgment. Such a standard means that regardless of the strength
(or weakness) of the evidence, all negligence actions must be
resolved at trial as a matter of right.
CONCLUSION
The Rhode Island Supreme Court held that when a party fails
to challenge a hearing justice’s consideration of a summary
judgment motion before the expiration of the ten-day period for
service of the motion, as prescribed by Rule 56(c) of the Rhode
Island Rules of Civil Procedure, the defect in compliance with the
ten-day requirement is waived and will not constitute reversible
error.35 Secondly, the court held that as issues of negligence are
not ordinarily susceptible to summary adjudication, the order of
33. Id. at 1028 (quoting Rogers v. Peabody Coal Co., 342 F.2d 749, 751
(6th Cir. 1965)).
34. See id. at 1028-29 & n.6.
35. Id. at 1026-27.
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summary
judgment
dismissing
plaintiff’s
claim
was
inappropriate.36 Therefore, the court ordered that the case be
remanded for further consideration.37
Russell E. Farbiarz
36.
37.
Id. at 1028-29.
Id. at 1029.
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Constitutional Law. Gem Plumbing & Heating Co., Inc.
v. Rossi, 867 A.2d 796 (R.I. 2005). The Mechanics’ Lien Law, as
amended by Rhode Island General Law § 34-28-17.1 (the Statute),
does not violate procedural due process. A claimant has a preexisting interest in any property improved upon by him or her due
to labor and materials expended by the claimant. The deprivation
of a property owner’s interest under the Statute does not amount
to a temporary total deprivation as a property owner has access to
a prompt post-deprivation hearing, as well as other procedural
safeguards, under the Fourteenth Amendment of the Constitution
and under Article 1, section 2, of the Rhode Island Constitution.
FACTS AND TRAVEL
In October, 2000, Robert V. Rossi and Lynda A. Rossi
contracted with Gem Plumbing & Heating Co., Inc. (Gem) to
provide the raw materials and labor required for water and sewer
lines necessary for an office building the Rossis were building in
Smithfield, Rhode Island (the Property).1 On January 28, 2002,
Gem sent the Rossis notice of its intention to do work and furnish
materials in connection with the construction on the Property, and
then recorded a copy of this notice in the Land Evidence Records
office of Smithfield, Rhode Island, as required by the Statute.2
Four months later, on May 28, 2002, Gem filed a petition to
enforce its mechanic’s lien, claiming that it was owed $35,500.00
in unpaid labor and materials.3 Gem also recorded a notice of lis
pendens on that same day.4
Subsequently, as prescribed by the Statute, the Rossis paid
$35,860.00, the total amount of Gem’s lien claim, plus costs, into
the court registry.5 The Rossis then filed an ex parte motion to
dissolve and discharge the mechanics’ lien and the lis pendens,
1.
2005).
2.
3.
4.
5.
Gem Plumbing & Heating Co., Inc. v. Rossi, 867 A.2d 796, 800 (R.I.
Id. at 800 (citing R.I. GEN. LAWS § 34-28-4 (1995)).
Id.
Id.
Id.
765
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which the court granted on June 4, 2002.6 On August 29, 2000,
the Rossis filed a motion to dismiss, charging that the Statute was
unconstitutional, in that it deprived them of their property
without due process.7
The Rossis informed the Rhode Island Attorney General of the
constitutional claim (as required by Rule 24 (d) of the Superior
Court Rules of Civil Procedure), but the state refused to
intervene.8 After a hearing on October 23, 2002, the motion
justice entered an order that invited the Attorney General and
any other interested party to file amicus briefs, requiring that
notice of this invitation be given also to major building and
After the Attorney General and
construction associations.9
several other amici curiae submitted their briefs, the court heard
the arguments as to the constitutionality of the Statute.10
Afterwards, the motion justice then issued a written decision
declaring the Statute unconstitutional.11 The Statute, however,
has since been amended, and it was the amended Statute that was
ultimately reviewed by the Rhode Island Supreme Court.12
In his decision analyzing the pre-amendment Statute, the
motion justice drew heavily upon the United States Supreme
Court’s most current procedural due process decision that
addressed pre-judgment remedies, Connecticut v. Doehr.13 The
motion justice in this instance found that a mechanic’s lien clouds
title (similar to the clouding the Supreme Court found with
attachment in Doehr) and that it impairs the owner’s ability to sell
property; additionally, he found that it taints credit ratings,
reduces the likelihood of obtaining a home equity loan, and can
6. Id. In its order, the Superior Court stated that “the amount deposited
with the court registry was substituted forthwith for the mechanic’s lien and
lis pendens in the event that Gem eventually succeeded on the merits.” Id. at
800-01.
7. Id. at 801. The court clarified that the claim invoked was not “one of
procedural due process, which is manifestly different from a ‘taking.’ The
former prevents the ‘deprivation’ of life, liberty or property without due
process. The latter provides protection from the government’s power of
eminent domain . . . [t]his is not a ‘takings’ case.” Id. at 801 n.4.
8. Id. at 801.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id. (citing Connecticut v. Doehr, 501 U.S. 1 (1991)).
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also place an owner’s current mortgage in technical default.14
The motion justice held that the “tremendous significance” of the
property interest (along with the statutorily required sworn
affidavit of the claimant) was inadequately safeguarded against
the possibility of erroneous depravation; thus this interest
considerably outweighed both the claimant’s interest in any
prejudgment remedy, as well as the potential burden on the
government, if additional safeguards were imposed.15
The motion justice entered judgment in favor of the Rossis on
May 30, 2003, and dismissed the action, ordering that the
$35,860.99 be released from the court registry, with accrued
interest added.16 The motion justice also issued an order staying
the judgment for thirty days.17 Gem subsequently appealed.18
ANALYSIS AND HOLDING
The Rhode Island Supreme Court focused on two major issues
on appeal: (1) whether the enactment of an amendment to the
Statute, which provided retroactive effect to all mechanics’ liens
pending the day of the amendment’s enactment (July 17, 2003), or
the pre-amendment statute would be controlling;19 and (2)
whether the amendment20 provided the Rossis with adequate
procedural due process protections under both the United States
and the Rhode Island Constitutions.21 The court held that the
Statute as amended was constitutional.22 The court noted that
after the motion justice had declared the Statute
23
the Rhode Island Legislature amended the
unconstitutional,
Statute on July 17, 2003, by adding § 34-28-17.1.23 The court
commented that “[g]enerally, if the Legislature amends or adds a
statute relevant to a case that is pending appeal, this Court will
14. Id.
15. Id.
16. Id.
17. Id. at 801-02.
18. Id. at 802. Subsequently, the motion justice declined to make the
stay indefinite, instead extending it to July 10, 2003. The court later stayed
the judgment pending further order. Id.
19. Id.
20. R.I. Gen. Laws § 34-28-17.1.
21. 867 A.2d at 810-12.
22. Id. at 818.
23. Id. at 802.
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apply ‘the law and effect at the time of the appeal,’ even when the
Statute was not in effect when judgment was entered in the trial
court.”24
The court stated that:
Statutes are given retroactive effect only when the
Legislature clearly expresses such an application . . .
Section 34-28-17.1 applies, not only to all future
mechanics’ liens, but also to all pending “mechanics’ liens,
petitions or lien substitutions” as of July 17, 2003 . . . .
This language clearly intends to apply §34-28-17.1 both
prospectively
to
future
mechanics’
liens
and
retrospectively to pending mechanics’ liens. Based on the
clear language of the statute and our case law, we are
required to apply the Mechanics’ Lien Law as amended
by §34-28-17.1 to this appeal.25
Having concluded that the propriety of the motion justice’s
ruling would be analyzed using the amended statute, the court
then turned its attention to ascertaining the nature of the Rossis’
property interest.26 The court stated:
At the time of the motion justice’s judgment on May 30,
2003, and before the amendment to the statute, the
Rossis had precious few avenues for relief from a
perfected lien. Pursuant to § 34-28-17, property owners
could deposit a bond (or cash) equivalent to the total
amount of the notice of intention (plus associated costs)
into the court registry and then petition the Superior
Court ex parte to discharge the notice of intention and lis
pendens, thereby clearing title to the property. Under §
34-28-17, this option is available to the property owner at
any time after the recording of the notice of intention or,
alternatively, after the filing of a petition to enforce. Of
course, the property owner, as responded to the petition
in Superior Court, may contest both the lien itself and the
amount claimed on their merits, although the statute is
unclear as to exactly when that contest shall be heard. §
24. Id. (citing O’Reilly v. Town of Gloucester, 621 A.2d 697, 704-05 (R.I.
1993)).
25. Id.
26. Id. at 804.
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34-28-20. Finally, a property owner prevailing on the
merits may be entitled to costs, and, in the court’s
discretion, attorneys’ fees.27
The enactment of the amendment to the Statute changed the
“playing field” of the lien holder and the owner of the property.28
The court noted:
However, P.L. 2003, ch. 269, section 1 (codified as §34-2817.1) enacted on July 17, 2003, significantly enhanced the
rights of a property owner facing mechanics’ lien. In
relevant part, § 34-28-17.1(a) provides that any owner,
contractor, or other interested party who alleges:
“(1) that any person who has provided labor, materials or
equipment or has agreed to provide funding, financing or
payment for labor or materials or equipment refuses to continue
to provide such funding, financing or payment for labor
materials [sic] solely because of the filing or recording of a notice
of intention; or (2) it appears from the notice of intention that
the claimant has no valid lien by reason of the character of or
the contract for the labor, materials or equipment and for which
a lien is claimed; or (3) that a notice or other instrument has not
been filed or recorded in accordance with the applicable
provisions of § 34-28-1 et seq.; or (4) that for any other reason a
claimed lien is invalid by reason or [sic] failure to comply with
the provisions of § 34-28-1 et seq., then in such event, such
person may apply forthwith to the superior court for the county
where the land lies for an order to show cause why the lien in
question is invalid, or otherwise void, or the basis of the lien is
without probability of a judgment rendered in favor of the
lienor.” Section 34-28-17.1(b) provides that such a show-cause
order “shall be served upon the necessary parties no later than
one week prior to the date of the scheduled hearing.”29
The court then reviewed the United States Supreme Court’s
most recent analysis and treatment of procedural due process
considerations as applied to prejudgment remedies.30 In those
cases, the United States Supreme Court deemed that the lack of
an immediate post-deprivation property rights hearing rendered
27. Id. at 805.
28. See id.
29. Id.
30. Id. at 805-08 (citing Sniadach v. Family Finance Corp. of Bayview,
395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W.T.
Grant Co., 416 U.S. 600 (1974)).
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the particular statutes at issue unconstitutional.31
The court then examined the Supreme Court’s most recent
procedural due process case addressing prejudgment remedies,
Connecticut v. Doehr.32 In Doehr, the claimant, who was the
plaintiff in an assault and battery civil action, sought to attach the
The
defendant’s home to secure the potential judgment.33
Connecticut attachment statute in Doehr permitted the
attachment of another’s real property without prior notice or
hearing, after judicial review of an affidavit demonstrating
probable cause to believe the plaintiff would win the underlying
.
civil action 34 The Doehr court, while recognizing the effect of the
attachment of real property was not a “complete, physical, or
permanent deprivation of real property,” and therefore, was “less
than the perhaps temporary total deprivation” found in earlier
cases, nonetheless held that the effects of the attachment,
primarily the clouding of title, deprived the property owner of a
“significant” property interest.35 The Doehr court then applied a
balancing test and concluded that the ex parte judicial review of
the affidavit, along with the post-deprivation hearing, were
insufficient to offset the property owner’s significant property
interest.36 As such, the Supreme Court held that the Connecticut
attachment statute was unconstitutional as it violated the Due
Process Clause.37
The Rhode Island Supreme Court applied the Doehr analysis
to Gem’s argument that mechanics’ liens do not involve state
action and are therefore not subject to the Fourteenth
Amendment.38 The court concluded that:
Government
officials
provide
“overt,
significant
assistance” in almost every step of the mechanics’ lien
process. A town official records the notice of intention
perfecting the lien. A town official records the notice of lis
31. Id.
32. 501 U.S. 1 (1991).
33. See id.
34. Id. at 5-7. “Though the claimant was not required to post a bond, the
property owner could avail himself of a post-deprivation hearing to challenge
the attachment.” Id.
35. Id. at 11.
36. Id.
37. Id. at 24.
38. 867 A.2d at 808-09.
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pendens. Prior to the show-cause hearing to determine
whether the lien should be enforced for the amount
claimed, a superior court clerk has a newspaper
advertisement published giving notice to “all persons
having a lien, by virtue of this chapter, or any title, claim,
lease, mortgage, attachment, or other lien or
encumbrance, or any unrecorded claim on all or any part
of the same property” and issues direct citations to each
person listed on the petition to enforce the lien. Finally,
the court registry holds the cash payment or bond in the
event that the property owner wishes to discharge the
lien. Thus, the operation of our Mechanics’ Lien Law
qualifies as state action within the broad sweep of
Doehr.39
Having concluded that a mechanics’ lien involves state action,
the court then turned to whether the amendment to the Statute
violated the Rossis’ procedural due process rights.40 It stated that:
To determine whether a particular state statute
complies with due process, we apply a balancing test first
announced in Matthews v. Eldridge. . . . We balance: (1)
the “consideration of the private interest that will be
affected by the prejudgment measure”; (2) “an
examination of the risk of erroneous deprivation through
the procedures under attack and the probable value of
additional or alternative safeguards”; and (3) giving
“principal attention to the interest of the party seeking
the prejudgment remedy, with, nonetheless, due regard
for any ancillary interest the government may have in
providing the procedure or foregoing the added burden of
providing greater protections.”41
As to the first prong in the Matthews-Doehr analysis, the
39. Id. at 809 (internal citations omitted).
40. Id. at 809-18. The Fourteenth Amendment to the United States
Constitution prevents states from depriving “any person of life, liberty, or
property, without due process of law.” U.S. CONST. amend. XIV. Article 1,
section 2 of the Rhode Island Constitution similarly provides “[no] person
shall be deprived of life, liberty or property without due process of law.” R.I.
CONST. art 1, § 2.
41. Id. at 809 (quoting Doehr, 501 U.S. at 11).
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court concluded that the effect of the filing of the mechanics’ lien
was to cloud the Rossis’ title to their property.42 As to the second
prong in the Matthews-Doehr analysis, the court analyzed the risk
of erroneous deprivation under the amended statute and found
that, as amended, the Statute offers several procedures to limit
the risk of erroneous deprivations including: “a prompt postdeprivation hearing; a detailed sworn affidavit; the property
owner’s ability to pay cash or post a bond to clear title; and the
payment of costs and fees to the prevailing party.”43
The court stated that a swift post-deprivation hearing is an
important factor in determining whether the procedural
safeguards in place adequately limit the possibility of erroneous
deprivation in that it allows the property owner to immediately
challenge the deprivation.44 The court found that “the language of
§ 34-28-17.1 clearly affords a property owner a hearing “for an
order to show cause why the lien in question is invalid, or
otherwise void, or the basis of the lien is without probability of a
judgment rendered in favor of the lienor.’”45 The court continued
that “[t]he question of when that hearing is to take place is critical
in limiting the risk of erroneous deprivation: the more prompt the
hearing, the less the risk of erroneous deprivation.”46 The court
concluded that even if and when the notice of intention is both
mailed and recorded in the town’s land evidence records on the
very same day, a property owner’s right to a prompt postdeprivation hearing, as under § 34-28-17.1, provides him or her
with adequate due process protection.47
As to the third prong of the Matthews-Doehr analysis, the
court examined Gem’s interest, accounting for any ancillary
interest the government may have in providing or choosing to
forego additional protections.48 The court stated that the Rhode
Island Mechanics’ Lien Law does recognize a preexisting interest
for claimants whose work and materials have increased the value
of an owner’s property.49 “§ 34-28-1(a) makes any improvement
42.
43.
44.
45.
46.
47.
48.
49.
Id. at 810.
Id.
Id. at 810-811.
Id. at 811.
Id.
Id. at 812.
Id. at 815.
Id. at 816.
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and the land upon which the improvement sits ‘liable and . . .
subject to liens for all the work done by any person . . . [as well as]
for the materials used’ in the doing of any such improvement.”50
The court also discussed the state’s additional interest in “putting
potential purchasers on notice of all claims to prevent the type of
complex third-party disputes that inevitably would result from
transfers of such property.”51
Finally, the court indicated that the state also had to consider
the propriety of other statutory prejudgment liens.52 The court
noted that the state also has an interest in the constitutionality of
the Mechanics’ Lien Law to the extent that a “holding to the
contrary would render other statutory prejudgment liens
constitutionally suspect – a situation that arguably might lead to
chaos in the market place.”
COMMENTARY
In Gem Plumbing, the Rhode Island Supreme Court has
articulated three major points that address constitutional, debtorcreditor and property law. First, the court followed precedent in
holding that retroactive provisions of statutes are enforceable.
Second, under Gem, property owners have now been accorded
enhanced due process rights previously unavailable to them.
Third, the court determined that § 34-28-17.1, which provides a
post-deprivation hearing to the owner of real estate, is
constitutional and follows the prevailing law in the area; it
provides the owner adequate procedural due process rights.53
While the court did suggest that the legislature amend § 34-2817.1 to provide a specific timeframe for the scheduling of the postdeprivation hearing, nevertheless, the court deemed that the
amendment to the Statute was sufficient in providing the owner
the necessary constitutional safeguards.54
50.
51.
52.
53.
54.
Id.
Id. at 817.
Id. at 817 n.32.
Id. at 818.
Id.
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CONCLUSION
The Legislature’s enactment of § 34-28-17.1 of the Rhode
Island Mechanics’ Lien Law is constitutional under the
Fourteenth Amendment to the U.S. Constitution and Article 1,
section 2 of the Rhode Island Constitution in that it establishes
adequate procedural due process safeguards for property owners.
William J. Delaney*
* Adjunct Professor of Law, Roger William University School of Law.
A.B. University of Notre Dame, 1976; M.B.A. Rensselaer Polytechnic
Institute, 1979; J.D. Albany Law School of Union University, 1983; LL.M.
American Banking Law Studies, Morin Center for Banking and Financial
Law, Boston University School of Law, 1991. I would like to acknowledge my
appreciation to my Spring Semester, 2005 Bankruptcy Class, and the
opportunity to participate in this Survey of Rhode Island Law through the
invitation of Mary H. Hayes. Finally the Author wishes to acknowledge his
colleagues at Tillinghast Licht LLP for their collective assistance provided to
him in preparing this project, especially the work of Muriel Morrison, Debbie
DeSisto and Jeanine Mathieu.
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Constitutional Law. In re Advisory Opinion to the House of
Representatives (Casino II), 885 A.2d 698 (R.I. 2005). At the
request of the House of Representatives of the State of Rhode
Island, the Rhode Island Supreme Court issued an advisory
opinion regarding the constitutionality of pending legislation,
titled “Establishment and Extension of Gambling Activities and
Other Facilities” (the proposed Casino Act). The court found that
the important constitutional questions posed by the House of
Representatives warranted consideration. After examining Rhode
Island’s constitutional requirement that the state must operate all
casino gaming facilities, the court indicated that the proposed
Casino Act did not comport with the constitutional provision.
However, the court found that the proposed Casino Act complied
with the state constitutional mandate requiring a statewide and
municipal referendum. Finally, the court declined to answer the
remaining two questions concerning the constitutionality of the
proposed legislation on either federal or state constitutional equal
protection grounds.
FACTS AND TRAVEL
The Rhode Island Supreme Court delivered this advisory
opinion during an ongoing political tug-of-war. In 2004, both
houses of the General Assembly passed a bill entitled The Rhode
Island Gaming Control and Revenue Act (Casino Act).1 However,
Donald L. Carcieri, the Governor of Rhode Island, vetoed the
legislation.2 Governor Carcieri subsequently sent a request to the
Rhode Island Supreme Court, seeking an advisory opinion
concerning the constitutionality of the 2004 Casino Act.3
Meanwhile, three-fifths of the legislature voted to override the
Governor’s veto.4 The court then issued an advisory opinion,5
1. In re Advisory Opinion to the House of Representatives (Casino II),
885 A.2d 698, 699 (R.I. 2005) (citing R.I. GEN. LAWS § 41-9.1-1 (Supp. 2004)).
2. Id.
3. Id.
4. Id.
5. In re Advisory Opinion to the Governor (Casino I), 856 A.2d 320 (R.I.
775
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which determined that the 2004 Casino Act violated the state
constitution, because the casino would not be abiding by Article
VI, Section 15.6 In 2005, the House of Representatives introduced
legislation which sought to revise chapter 9.1 of title 41, the
proposed Casino Act.7 The enactment, entitled “Establishment
and Extension of Gambling Activities and Other Facilities” would
amend the 2004 Casino Act.8 Rather than vote on this newly
proposed Casino Act, the House of Representatives submitted the
following four questions to the Rhode Island Supreme Court for an
advisory opinion:9
(1)Would the proposed act, if duly enacted into law and
approved by the electors of the state and town of West
Warwick, comply with the requirement of Article VI,
Section 15 of the Constitution of the State of Rhode
Island and Providence Plantations that all lotteries
permitted in Rhode Island be operated by the state?
(2) Would the proposed act, if duly enacted into law and
approved by the majority of the electors of the state and
the majority of the electors of the town of West Warwick
at the special election provided for by the proposed act,
comply with the provisions of Article VI, Section 22 of the
Constitution of the State of Rhode Island and Providence
Plantations requiring a statewide and municipal
referendum to become effective?
(3) Would the proposed act, if duly enacted into law and
approved by the electors of the state and the town of West
Warwick, violate the equal protection clause of Article I,
Section 2 of the Constitution of the State of Rhode Island
and Providence Plantations, in (a) granting to the
Narragansett Indian Tribe and its chosen partner the
right to enter into an exclusive contract as casino service
provider; or (b) in providing that the state retain a share
2004).
6. See generally Casino I, 856 A.2d 320 (citing R.I. CONST. art VI, § 15).
7. Casino II, 885 A.2d at 700.
8. Id. at 699-700.
9. Chief Justice Williams, Justice Suttell, and Justice Robinson signed
the advisory opinion, while Justices Goldberg and Flaherty did not
participate. Id. at 715.
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of net casino gaming income that is different from the
share of net income that the state retains from other
gambling facilities in the state?
(4) Would the proposed act, if duly enacted into law and
approved by the electors of the state and the town of West
Warwick, be violative of the equal protection clause of
Amendment XIV, Section 1 of the Constitution of the
United States, in (a) granting to the Narragansett Indian
Tribe and its chosen partner the right to enter into an
exclusive contract as casino service provider; or (b) in
providing that the state receive a share of net casino
gaming income that is different from the share of net
income that the state receives from other gambling
facilities in the state[?]10
After the House of Representatives submitted these
questions, the court issued In re Request for Advisory Opinion
from the House of Representatives,11 which created an expedited
The House of
briefing and oral argument period.12
Representatives, Governor Carcieri, and the Attorney General
submitted briefs explaining their positions.13 Lincoln Park, Inc.
(Lincoln Park), Newport Grand Jai Alai, LLC (Newport Grand),
the Town of West Warwick, and, jointly, Harrah’s Entertainment,
Inc. (Harrah’s), and the Narragansett Indian Tribe (Tribe) each
filed amicus curiae briefs.14
ANALYSIS AND HOLDING
Before issuing this advisory opinion, the court explained that
when a court issues an advisory opinion, the justices are speaking
in their “individual capacities as legal experts” rather than as
justices of the court.15 Because of this distinct role, the justices
shall not exercise any fact-finding power.16 As such, the court
established that the advisory opinion had no force of law and was
10. Id. at 700.
11. 875 A.2d 445 (R.I. 2005) (mem).
12. Casino II, 885 A.2d at 700.
13. Id.
14. Id.
15. Id. at 701 (quoting Casino I, 856 A.2d at 323).
16. Id. (citing Casino I, 856 A.2d at 323).
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not binding.17
Prior to discussing the constitutionality of the proposed
Casino Act, the court initially determined whether to issue an
advisory opinion in response to the House of Representatives’
questions.18 Article X, Section 3 of the Rhode Island Constitution
obligates the Supreme Court judges to issue a written opinion
“upon any question of law whenever requested by the governor or
by either house of the general assembly.”19 In other words, if the
General Assembly has a question concerning the constitutionality
of pending legislation, or if the Governor has a question
concerning the constitutionality of existing statutes, the Supreme
Court must issue an advisory opinion on the matter.20
The court acknowledged its obligation to render an advisory
opinion, but also expressed concern about issuing the opinion.21
The court evinced hesitation because of the legislation’s “largely
undeveloped and inchoate state” and noted several concerns.22
One necessary technical revision for the proposed Casino Act was
that the Lottery Commission, the original entity designated to
operate the proposed casino, had been abolished and subsequently
replaced by the State Lottery Division of the Department of
While this technicality did not
Administration (Division).23
change the court’s analysis, the court nonetheless suggested this
A second
modification to the House of Representatives.24
complication involved a sunset clause, contained in the proposed
legislation, which nullified the entire statute on November 8,
2005, if there was no “majority statewide and local approval of the
statute at a special election.”25 Given the approaching deadline,
the court acknowledged its late receipt of this request as well as
the court’s timely response.26 Furthermore, the proposed Casino
Act directed the Division to enter into a master casino service
17.
18.
18.
19.
20.
21.
22.
23.
24.
25.
26.
Id. (citing Casino I, 856 A.2d at 323).
Id. at 701-702.
Id. at 701.
Id. (citing Casino I, 856 A.2d at 323 (quoting R.I. CONST. art 10 § 3)).
See id. at 701-02.
Id.
Id.
Id. at 701.
Id. at 701-02.
Id. at 702.
Id.
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contract with the casino provider.27 Therefore, the proposed
Casino Act would not be the final statement of the rights and
responsibilities of the parties.28 Yet, despite the proposed Casino
Act’s flaws and ambiguities, the Supreme Court adhered to its
constitutional obligation to issue the advisory opinion.29
Question One: State Operation
The Rhode Island Constitution prohibits all lotteries except
those operated by the state.30 The first question under review was
whether the proposed Casino Act complied with this mandate.31
While the General Assembly has plenary power to legislate on all
matters relating to gambling, the Supreme Court interprets the
statutes which determine the constitutionality of the legislation.32
Thus, the court would uphold proposed legislation that vested
operational control of the casino in the Division.33
The court first examined the issue of non-slot games, or table
games.34 The proposed Casino Act appeared to grant the Division
total control in determining and approving the type of table
games.35 However, the Division’s powers were overcome by the
requirement that the Division “shall permit the casino service
provider to conduct. . .any [table game] that is regularly conducted
at any other casino gaming facility.”36 The court opined that as a
result, the Division would have no control over what table games
would be played at the casino.37 The court found that this was
inconsistent with the constitutional requirement that the state
have all decision-making power concerning the functioning of the
casino.38
27. Id.
28. Id.
29. See id.
30. Id. at 703 (citing R.I. CONST. art. 6 § 15).
31. Id. at 700.
32. Id. at 703 (citing Payne & Butler v. Providence Gas Co., 77 A. 145
(R.I. 1910)).
33. See id.
34. Id. at 703-04.
35. Id.
36. Id. at 704 (quoting H.R. 41-9.2-8(a)(19)(ii), 119th Gen. Assem., Reg.
Sess. (R.I. 2005) (proposed) (emphasis added)).
37. Id.
38. Id. (citing Casino I, 856 A.2d at 331).
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Second, the court examined the extension of credit to patrons
of the proposed casino.39 The proposed Casino Act permitted the
casino service provider to tender credit to patrons as a cash
advance, in return for a “negotiable instrument of the same
value.”40 The plain language of the provision did not extend any
control over credit to the Division.41 Rather, control of credit
would belong strictly to the casino service provider.42 As such, the
court decided that the extension of credit provision did not satisfy
the constitutional requirement that every aspect of the casino’s
operation must be vested in the state.43
Moreover, the enforceability of the proposed agreement
between the Division and the casino service provider troubled the
court.44 Tribes are generally immune from suits on contracts,
regardless of whether they involve governmental activity.45 Thus,
sovereign immunity threatened to undermine all state operational
control of the proposed casino.46 Although the Tribe expressly
stated at oral argument that the Tribe would be willing to waive
sovereign immunity from the master casino service contract, the
court noted that it was uncertain whether this waiver would
become part of the written contract.47 The court highlighted, in a
footnote, that this uncertainty served as an additional example of
the inchoate nature of the legislation.48 Hence, the issue of
sovereign immunity threatened to undermine every aspect of the
state’s control of the casino.49
Fourth, the proposed Casino Act directed the Division to enter
into a master casino contract with the casino provider, and therein
defined the casino service provider as “an entity composed of the
Narragansett Indian Tribe and its chosen partner.”50 The court
39. Id. at 704-05.
40. Id. at 704 (quoting H.R. 41-9.2-3(5), 119th Gen. Assem., Reg. Sess.
(R.I. 2005) (proposed)).
41. Id.
42. Id.
43. Id. at 704-05.
44. Id. at 705.
45. Id.
46. Id. (citing Kiowa Tribe of Ok. v. Mfg. Tech., Inc., 523 U.S. 751 (1998)).
47. Id.
48. Id. at 705 n.6.
49. Id. at 706.
50. Id. (quoting H.R. 41-9.2-2(1), 119th Gen. Assem., Reg. Sess. (R.I.
2005) (proposed) (emphasis added)).
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reasoned that this provision bestowed only regulatory power,
rather than operational power, over the most fundamental aspects
of the casino, namely choosing the casino service provider.51 Thus,
the Division would retain the equivalent of a veto power over the
Tribe.52 This veto power amounted to significantly less than
complete operational control of all aspects of the casino, and, in
turn, was violative of the state constitution.53
Furthermore, the court discussed the relationship of the
operational issues to the nondelegation doctrine, as the issues
were inexorably intertwined.54 The nondelegation doctrine serves
two purposes: it ensures that the public is protected from
discriminatory and arbitrary actions of public officials, and it
assures that politically accountable officials make fundamental
policy decisions.55 In this instance, particularly concerning the
table games issue, the proposed Casino Act would violate the
nondelegation doctrine.56 The court reasoned that the standard to
approve any table game that already exists in another casino
amounted to no standard at all, and consequently, lacked all
protection against potentially arbitrary or discriminatory actions
by the casino provider.57
In addition, the court found it important to highlight that the
proposed Casino Act would impart greater control to the Division
than the 2004 Casino Act would have.58 The court acknowledged
express grants of authority: for example, that the casino would
collect money on behalf of the Division, which would then be
transferred into the state’s bank account, whereupon the state
The court also
would distribute the funds accordingly.59
acknowledged a catch-all provision, in which the proposed Casino
Act bestowed all other necessary and proper powers to the
Division for effective administration of the casino.60 However, this
51. Id. at 706-07.
52. Id. at 706.
53. Id. at 706-07.
54. Id. at 707.
55. Id. at 708 (citing Kaveny v. Cumberland Zoning Bd. of Review, 875
A.2d 1, 11 (R.I. 2005) (citing R.I. CONST. art 6, § 15)).
56. Id.
57. Id.
58. Id. at 708-09.
59. Id. at 709.
60. Id. at 711.
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broad necessary and proper provision could not override the
express limitations contained in the proposed Casino Act that
restricted the Division’s power.61 Thus, the court concluded that
the necessary and proper clause could not cure all of the
constitutional defects discussed above.62
Finally, the court recognized the arguments in the briefs that
distinguished the proposed Casino Act from Lincoln Park and
Newport Grand, two constitutionally operated casino gaming
facilities in Rhode Island.63 Accordingly, the court expressly
stated that any prior reference by the court regarding Lincoln
Park or Newport Grand was not intended to establish a
In other words, newly proposed
“constitutional baseline.”64
casinos need not imitate these two contemporary casinos in order
to achieve constitutionality.65
Therefore, in response to the House’s first question, and while
giving a reasonable presumption of constitutionality to the
proposed legislation, the court ultimately found that the state
could not completely operate a casino gaming facility if it could not
control the type of non-slot table games, control or deny the
extension of credit, choose a casino service contract provider, and
protect its contractual rights by requiring the Tribe’s absolute
waiver of sovereign immunity.66
Question Two: The Referendum
The court then reviewed the second question, concerning the
constitutionality of the proposed referendum.67 Article VI, Section
22 of the state constitution prohibits gambling within a state or
municipality unless the gambling activity has been approved by
the “majority of those electors voting in a statewide referendum
and by the majority of those electors voting in a referendum in the
municipality in which the proposed gambling would be allowed.”68
The proposed Casino Act had two requirements: It would require a
61.
62.
63.
64.
65.
66.
67.
68.
Id.
Id.
Id. at 711-12.
Id. at 711.
Id.
Id. at 712.
Id.
Id. (quoting R.I. CONST. art. 6, § 22).
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statewide special election of a referendum that would ask whether
the state should operate a casino gaming facility in West
Warwick,69 and, it would require that prior to this statewide
referendum, the Lottery Division would certify to the Secretary of
State a “statement of intent” filed by the casino service provider,
stating, in essence, that the West Warwick Town Council had
agreed to place the question on the special election ballot.70 The
court answered that if both requirements were carried out, and
both statewide and local approval was gained, then Article VI,
Section 22 of the state constitution would be satisfied.71
Additionally, the court responded in the affirmative to the
question of whether the requirement may be met by a referendum
at a special election instead of a general election.72 The court
concluded that it was of no constitutional significance whether the
question was posed in a special election or as part of a general
election.73
Questions Three and Four: Equal Protection
The court declined to answer the third and fourth questions in
the context of an advisory opinion.74 First, the proposed statute
failed to comport with the constitutional requirement that the
casino must be operated by the state.75 Second, in order to
properly analyze the equal protection issues, the court requires a
factual record, which is unavailable in an advisory opinion.76 As a
result, the court respectfully declined to answer the
constitutionality of the proposed Casino Act in either the federal
or state equal protection constitutional frameworks.77 The court
remarked that it was not violating its constitutional duty to issue
an advisory opinion when asked, but instead was acquiescing to
the reality that sometimes issues cannot be properly answered
69.
70.
71.
72.
73.
74.
75.
76.
77.
Id.
Id.
Id.
Id. at 713.
Id.
Id. at 713-14.
Id. at 713.
Id. at 713-14.
Id. at 714.
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without accompanying facts.78
COMMENTARY
The proposed legislation in question contained a series of
flaws due to its largely undeveloped state. Before proceeding, the
court noted several of these oversights to provide guidance to the
legislature. Yet, notwithstanding the imperfect condition of the
legislation, the court heeded its constitutional duty and properly
issued an advisory opinion. Some may consider the court’s action
an unjust interference with the population’s right to vote on an
important state-wide issue. However, had the court allowed the
legislation to be placed before the voters in a statewide
referendum, a constitutional emergency may have ensued.
The majority of the voters could have voted in favor of an
unconstitutional casino.
Had they voted in this manner,
opponents of the casino would have ultimately challenged the
constitutionality of the “yes” vote. At this point, the court would
be faced with the same questions presented initially during the
House of Representatives’ request for an advisory opinion. Had
the court waited, it not only would have had to decide the
constitutional merits of the proposed Casino Act, it also would
have been faced with overturning a decision made by the people of
Rhode Island in their election booths. At this later date, the court
would be forced to finally determine that the proposed Casino Act
violated the constitutional mandate that all lotteries, including
casino gaming facilities, be operated fully by the state. It is fair to
assume that if the legislation had made it to the voting booths,
both opponents and proponents of the proposed Casino Act would
be up in arms, because each group would likely have devoted
significant time and money toward the casino campaign in vain.
Furthermore, although the resultant advisory opinion may
seem like a victory for Governor Carcieri and other casino
opponents, the court’s ruling has little practical effect on the
casino effort. Regardless of the court’s decision, the legislature
would have had to redraft the legislation in any case. For
instance, any chance of having a special election in November,
2005, was lost when the House waited until May to seek an
78.
Id.
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advisory opinion, and the court could not hear arguments until
Nonetheless, the court understood its judicial
August.79
responsibility to respond to constitutional questions posed by the
House of Representatives, as well as to prevent any ensuing
equivocation that the state might have otherwise experienced, and
properly issued an advisory opinion explaining how the legislature
failed to meet constitutional requirements.
CONCLUSION
Despite the emergent state of the proposed legislation, as well
as the court’s initial hesitance upon taking up these issues in the
form of an advisory opinion, the proposed Casino Act and the
debate surrounding its constitutionality called for judicial
intervention. For the second time in two years, the Rhode Island
Supreme Court found the General Assembly’s effort to construct a
bill enabling a casino
referendum to go before voters
unconstitutional. After noting, in 2004, that the word “operate”
means the power to make decisions about all aspects of the casino
gaming facility, the court found that the 2005 legislation failed to
meet this constitutional requirement.80 Under the proposed
Casino Act, the new legislation left too much power with the
casino service provider, and did not grant the state exclusive
operating authority over the casino.81 However, the court found
that a special election would meet the constitutional requirement
for a referendum.82 Finally, the court declined to answer two
other questions, regarding whether it was permissible to treat a
casino different from slot machine parlors already in place in the
state, because these questions would require fact-finding, which is
an impermissible court function during an advisory opinion.83
Margreta Vellucci
79.
80.
81.
82.
83.
See id. at 700-01.
Id. at 703-04.
Id. at 703-10.
Id. at 712-13.
Id. at 713-14.
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State Constitutional Law. McKenna v. Williams, 874 A.2d
217 (R.I. 2005). An attorney and his law practice lacked standing
to maintain an action to remove a public official from office. An
action to remove a public official from office was a petition in
equity in the nature of quo warranto over which the Superior
Court lacked subject matter jurisdiction without the intervention
of the Attorney General. Rhode Island’s constitutional prohibition
against state officials holding dual offices did not apply to an
appointed member of the Rhode Island Supreme Court.
FACTS AND TRAVEL
On September 21, 2004, Chief Justice Frank Williams, of the
Rhode Island Supreme Court, was sworn in as a member of a
military review panel, a federal position with the United States
Department of Defense.1 Attorney Keven A. McKenna and his law
practice, Keven A. McKenna, P.C., filed suit in the Providence
County Superior Court under the Uniform Declaratory Judgments
Act (R.I.Gen. Laws § 9-30-1 et seq.), (1) alleging that the Chief
Justice had vacated his seat on the Rhode Island Supreme Court
by accepting appointment to the military review panel; (2) seeking
a declaratory judgment to that effect; and (3) requesting
preliminary and permanent injunctions restraining the Chief
Justice from occupying his seat on the court.2 Additionally, the
plaintiffs sought injunctions restraining the Governor “from not
notifying the R.I. Judicial Nominating Commission of the vacancy
in the Office of the Chief Justice,” restraining the Chair of the
Rhode Island Judicial Nominating Commission “from not
submitting eligible names of nominees to the office of the Chief
Justice of the Supreme Court to the Governor of the State of
Rhode Island,” and restraining the State Treasurer “from issuing
salary checks to [the Chief Justice].”3
1. McKenna v. Williams, 874 A.2d 217, 221 (R.I. 2005).
2. Id. at 220-21.
3. Id. at 221.
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On April 26, 2005, the Presiding Justice of the Superior
Court, pursuant to the provisions of Rhode Island General Laws
§§ 8-2-4 and 8-2-23, appointed three members of that court “to be
a quorum for the purpose of presiding over the preliminary
motions and trial” of the case.4 The defendants moved to dismiss
pursuant to the Rhode Island Superior Court Rule of Civil
Procedure 12(b)(6).5 Additionally, the defendants sought a stay of
all proceedings pending a determination by the Superior Court
that the plaintiffs had standing to bring their claims.6
On May 11, 2005, the three-justice panel of the Superior
Court reasoned that the Uniform Declaratory Judgments Act
“provides that the Superior Court, upon petition, shall have power
to declare rights, status and other legal relations, whether or not
further relief is or could be claimed,” and that “[f]urther, § 9-30-12
declares the act to be remedial and to be liberally construed and
administered in order to afford relief from uncertainty and
insecurity with respect to rights, status and other legal relations.”7
Based on this reasoning, the panel found that the plaintiffs did,
indeed, have standing.8
The defendants petitioned the Rhode Island Supreme Court
for certiorari, which the court granted on May 13, 2005.9 The
defendants argued: (1) that the plaintiffs lacked standing to bring
their claims; (2) that the Superior Court lacked subject-matter
jurisdiction over the plaintiffs’ claims; and (3) that article 3,
section 6 of the state constitution did not apply to the Chief
Justice.10
ANALYSIS AND HOLDING
The court held: (1) that the plaintiffs lacked standing to
maintain an action to remove the Chief Justice from office; (2) that
the plaintiffs’ action to remove the Chief Justice was a petition in
equity in the nature of quo warranto over which the Superior
Court lacked subject-matter jurisdiction without the intervention
4.
5.
6.
7.
8.
9.
10.
Id. at 221-22.
Id. at 222 (citing R.I. SUP. R. CIV. P. 12(b)(6)).
Id.
Id. at 223-24.
Id.
Id. at 224.
Id. at 224-25.
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of the Attorney General; and (3) that Rhode Island’s constitutional
prohibition against state officials holding dual offices did not apply
to the Chief Justice, an appointed member of the Rhode Island
Supreme Court.11
A. Standing
The court held that the plaintiffs, Keven A. McKenna, Esq.
and his law practice, Keven A. McKenna, P.C., lacked the
requisite standing to bring an action to remove the Chief Justice
from office.12 An analysis of standing should focus on the
claimant, not the claim.13 Thus, the court focused on the
plaintiffs, not on the issues sought to be determined.14 In Rhode
Island Opthalmological Society v. Cannon,15 the court articulated
the notion that standing requires a plaintiff to allege that “the
challenged action has caused him injury in fact, economic or
otherwise.”16 In Pontbriand v. Sundlun,17 the Court explained
that the injury in fact must be “concrete and particularized . . .
actual or imminent, not ‘conjectural’ or ‘hypothetical.’”18
Furthermore, “[t]he line is not between a substantial injury and
an insubstantial injury. The line is between injury and no
injury.”19
Standing is a prerequisite for actions at law, actions in equity,
and claims for declaratory relief.20 The Superior Court “is without
jurisdiction under the Uniform Declaratory Judgments Act unless
it is confronted with an actual justiciable controversy,”21 which
requires a plaintiff to have (1) standing and (2) an entitlement to
real and articulable relief.22 The court held that the plaintiffs
11. Id. at 238-39.
12. Id. at 228.
13. Id. at 225-26.
14. Id.
15. 317 A.2d 124 (R.I. 1974).
16. Id. at 128.
17. 699 A.2d 856 (R.I. 1997).
18. Id. at 862.
19. Id. (quoting Matunuck Beach Hotel, Inc. v. Sheldon, 399 A.2d 489,
494 (1979)).
20. McKenna, 874 A.2d at 226.
21. Id.
22. Id.
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failed to meet either element of justiciability.23
The court held that the plaintiffs had failed to “articulate[] a
stake in the outcome of this controversy . . . distinguishable from
that of other members of the bar or the public.”24 The court
reasoned:
[The Plaintiffs’] subjective enthusiasm does not overcome
the glaring jurisdictional deficiencies in this case. Nor
are we persuaded that plaintiffs’ stated fear of an entirely
speculative and hypothetical malpractice claim that
might be brought if he did not pursue this action supplied
the standing component of justiciability. Unfounded
anxiety or a vague fear based on utterly speculative
hypothesis is simply not enough.25
The court concluded by citing several cases for the proposition
that the Attorney General is the appropriate party to bring an
The court
action to remove a public official from office.26
continued: McKenna “is neither a roving prosecutor nor an
Attorney General without portfolio, but a lawyer engaged in the
private practice of law . . . . “27 Consequently, the court held, the
plaintiffs were without standing to maintain an action to remove
the Chief Justice from office.28
B. Subject Matter Jurisdiction
The court next addressed the Superior Court’s subject matter
jurisdiction, holding that the Superior Court had lacked the
requisite subject matter jurisdiction to entertain the plaintiffs’
action “[b]ecause an action to test one’s title to office is an action
in quo warranto and the Superior Court’s jurisdiction to entertain
the claim is limited. . . . The Superior Court’s jurisdiction to
entertain an action in quo warranto is strictly limited to actions
brought by the Attorney General . . . .”29
23. Id.
24. Id.
25. Id. at 227.
26. Id. at 227-28 (citing Marshall v. Hill, 93 A.2d 524, 526 (Del. Super.
Ct. 1952); Brush v. City of Mount Vernon, 20 N.Y.S.2d 455, 456 (N.Y. Sup.
Ct. 1940); Jones v. Talley, 230 S.W.2d 968, 970-71 (Tenn. 1950)).
27. Id. at 228.
28. Id.
29. Id.
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Rhode Island General Law § 8-2-16 vests the Superior Court
with concurrent jurisdiction with the Supreme Court “to hear any
proceeding upon a writ of quo warranto or an information in the
nature of quo warranto”;30 however, because “such claims seek to
enforce a public right and the relief it affords is the ouster of the
incumbent from office[,] . . . those claims may only be brought by
the Attorney General on behalf of the state . . . .”31 The court
explained:
A private citizen who questions the right of an incumbent
to hold office may employ only a petition in equity in the
nature of quo warranto, and jurisdiction over such
petitions is exclusively vested in the Supreme Court. . . .
A petition in equity in the nature of quo warranto may be
brought by a private individual who asserts that he or she
has a right to the office at issue; and pursuant to G.L.
1956 § 10-14-1, the Supreme Court has exclusive
jurisdiction to entertain such a claim.32
Thus, only a plaintiff claiming title to the challenged office
may proceed without intervention from the Attorney General, and
only in the Supreme Court.33
In order to reach its result, the court reclassified the
plaintiffs’ petition for a declaratory judgment as a petition in
equity in the nature of quo warranto “over which the Superior
Court has no subject matter jurisdiction.”34 The court reasoned
that it “has consistently rejected claims that sounded in quo
warranto but were otherwise disguised.”35 The court concluded by
holding that the plaintiffs could not maintain their action in the
Superior Court without the Attorney General’s intervention; nor
could the plaintiffs bring a petition in equity in the nature of quo
30. Id. at 229.
31. Id.
32. Id.
33. Id.
34. Id. at 229-30.
35. Id. (citing Brennan v. Butler, 47 A. 320, 320 (R.I. 1900) (writ of
mandamus); Fargnoli v. Cianci, 397 A.2d 68, 71 (R.I. 1979) (class action for
injunctive relief); State ex rel. Webb v. Cianci, 591 A.2d 1193, 1194-95 (R.I.
1991) (information in the nature of quo warranto by a private citizen); State
v. Storms, 311 A.2d at 567, 570-71 (R.I. 1973) (action by defendants in a
criminal case)).
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warranto in the Supreme Court because neither plaintiff claimed
a right to the office of the Chief Justice.36
C. Article 3, Section 6 of the State Constitution
Although noting that its holdings as to standing and subjectmatter jurisdiction were determinative of the case, the court
stated that the public importance of “a direct challenge to an
official’s title to office” compelled it to address the merits of the
case.37 The court framed the issue before it as “whether, in the
context of this case, as an appointed (and not elected) member of
this court, Chief Justice Williams falls within”38 the provisions of
the state constitution providing that “if any . . . judge [shall,]
after . . . election and engagement, [have] accepted any
appointment under any other government, then his office shall be
immediately vacated.”39
Giving the words of the constitution their ordinary meaning,
the court concluded that “article 3, section 6, no longer applies to
the justices of [the] court because [they] are no longer elected to
[their] positions. . . . [B]y its clear language, article 3, section 6, is
restricted to those enumerated state officials who, ‘after election
and engagement, accept any appointment under any other
government . . . .’”40
In 1994, article 10, section 4 of the Rhode Island Constitution
was amended so that, rather than being elected, the justices of the
Supreme Court would be appointed.41 The court found “[t]he
contrast between the former election provision and the current
appointment provision of the state constitution . . . determinative
The court reached the
of the issue before [the] Court.”42
“inescapable conclusion that, as appointed justices to the Supreme
Court, the prohibition against dual office holding in article 3,
section 6, no longer applies to the members of [the Supreme]
Court.”43
36.
37.
38.
39.
40.
41.
42.
43.
Id. at 230.
Id. at 230-31.
Id. at 231.
R.I. CONST. art. 3, § 6.
McKenna, 874 A.2d at 232.
Id.
Id. at 232-33.
Id. at 235.
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COMMENTARY
Although acknowledging that its holding regarding the
plaintiffs’ standing and the Superior Court’s subject-matter
jurisdiction were determinative of the plaintiffs’ case, the court
chose to address the merits of the plaintiffs’ claim as well, because
of the “public importance that attaches to such a direct challenge
to an official’s title to office.”44 Although twice stating the “public
importance”45 of the issue presented, the court did not detail the
reasons for addressing the merits of the plaintiffs’ claim beyond
agreeing with the amici curiae that it should do so “‘for reasons of
equity and judicial efficiency.’”46 Beyond settling any doubt as to
the office of the Chief Justice, there are two likely reasons for the
court addressing the merits of the plaintiffs’ claim: first, the
possibility that the court would have to address the issue in the
future; and second, a failure of the court to adjudicate the matter
could have left determination of the issue to the military
commission.47
The court’s holdings as to standing and subject matter
jurisdiction, without addressing the merits of the plaintiffs’ claim,
would have left open the possibility, albeit limited, of a future
attack on the office of the Chief Justice. After the court’s holdings
as to standing and subject-matter jurisdiction, even a private
individual with the requisite standing would be unable to bring a
claim in the Superior Court for want of that court’s subject matter
jurisdiction. The only way for a private individual to challenge
the office of the Chief Justice would be to bring a claim in the
Rhode Island Supreme Court by claiming a right to that office.
Thus, the ability of the state’s “approximately 6,500 attorneys who
can bring cases before the R.I. Supreme Court involving the same
constitutional and ethical dilemma facing the Plaintiffs,”48 even
44. Id. at 230.
45. Id. 230-31.
46. Id. at 231 n.12.
47. Brief for Salim Ahmed Hamden, et al. as Amici Curiae Supporting
Respondents at 4-7, McKenna v. Williams, 874 A.2d 217 (No. 05-144).
48. Memo in Support of Preliminary Injunction at 3, McKenna v.
Williams, 874 A.2d 217 (No. 05-144).
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those suffering an adverse decision from Chief Justice Williams,
would be severely limited, but not impossible. The court’s decision
to address the merits of the plaintiffs’ claims thus eliminated any
possibility of having to do so in the future, and at the same time,
eliminated any doubt as to the status of the office of the Chief
Justice.
The court did not address whether its failure to adjudicate the
matter could have left determination of the issue to the military
commission. The amici curiae did, however, address this issue in
their brief,49 stating that “[a]n adjudication of whether Chief
Justice Williams violated the Rhode Island dual officeholding ban
is inevitable. . . . A challenge to Chief Justice Williams’ fitness to
serve could be filed by any of the military commission defendants
as a pre-trial motion.”50 Such a pre-trial motion would place the
military commission, of which two of three commissioners are not
lawyers,51 in the position of “consider[ing] the Rhode Island dualofficeholding question”:52 whether Chief Justice Williams was
properly “qualified”53 and whether Chief Justice Williams violated
the Rhode Island Constitution.54 The court’s failure to address the
merits of plaintiffs’ claim would, in such circumstances, leave the
military commission in Cuba to decide this issue of Rhode Island
constitutional law without guidance because “[u]nfortunately, no
certification procedure is available from a military commission”55
to the Rhode Island Supreme Court, “the body with the greatest
expertise and ability to answer it.”56
The court’s treatment of the merits rests on the statutory
construction of state constitutions, a topic which has received
varying degrees of academic and judicial treatment over the years,
from Justice Brennan’s impassioned plea for independent
49. Brief for Salim Ahmed Hamden, et al. as Amici Curiae Supporting
Respondents at 4-7, McKenna v. Williams, 874 A.2d 217 (No. 05-144).
50. Id. at 4-5.
51. Id. at 5.
52. Id.
53. Id.
54. Id. at 6 (citing MODEL CODE OF JUDICIAL CONDUCT Cannon 2 (2004);
R.I. CODE OF JUDICIAL CONDUCT Canon 2.A. (2000)).
55. Id. at 7 (citing R.I. SUP. R. 6 (limiting certification to requests from
the U.S. Supreme Court, U.S. Courts of Appeal, and U.S. District Courts)).
56. Id.
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construction,57 through interceding years when many state courts
generally marched in lockstep with the United States Supreme
Court,58 to a relatively recent resurgence in individual state
identity and more individualized interpretations by state courts.59
The Rhode Island Supreme Court has had a number of
opportunities to interpret various provisions of the Rhode Island
Constitution, but to date no clear pattern of interpretation has
emerged.60 In McKenna, the Rhode Island Supreme Court dealt
with the Rhode Island Constitution’s dual office holding
provision.61
The court’s holding that the two provisions at issue in its
analysis, article 3, section 6 (the dual office holding provision) and
article 10, section 4 (changing the selection method of judges from
election to appointment), could be harmonized is accurate; the
manner in which the court did harmonize them is arguably
inaccurate. The “inescapable” conclusion to which the court comes
– namely, that justices of the state’s Supreme Court are no longer
held to the constitutional prohibition against dual office holding,62
is entirely escapable, and tends to violate a fairly entrenched rule
57. See generally William J. Brennan, Jr., State Constitutions and the
Protection of Individual Rights, 90 HARV. L. REV. 489 (1977).
58. James A. Gardner, The Failed Discourse of State Constitutionalism,
90 MICH. L. REV. 761, 788-92 (1994).
59. See generally, e.g., Michael Schwaiger, Understanding the
Unoriginal: Indeterminate Originalism and Independent Interpretation of the
Alaska Constitution, 22 ALASKA L. REV. 293 (2005); Thomas R. Bender,
Toward a More Vigorous State Constitutionalism, 10 ROGER WILLIAMS U. L.
REV. 621 (2005).
60. There are three generally accepted methods of state constitutional
interpretation. The first is lockstep, in which a state court generally
interprets the provisions in its constitution to be coterminous with its federal
counterparts. An interstitial approach favors looking first at the federal
constitution unless some reason, such as a particularly unique provision or
state culture or history demands an independent look. Finally, a primacy
approach favors looking first to the state constitution, looking only to the
federal constitution for persuasive authority in interpreting issues of state
law. See Bender, supra note 59, at 628-632.
61. The dual office holding provision of article 3, section 6 is not unique
to Rhode Island. While the provision does not appear in the United States
Constitution, it has counterparts in forty-one other state constitutions.
Steven G. Calabresi and Joan L. Larsen, One Person, One Office: Separation
of Powers or Separation of Personnel?, 79 CORNELL L. REV. 1045, 1151-52
(1994).
62. McKenna, 874 A.2d at 235.
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of statutory construction – that repeals by implication are
disfavored.63 Retired Associate Justice Robert Flanders, in an
interview given after the court issued its opinion, stated that
“‘[t]he general rule is that repeals by implication are disfavored.
The notion that when the legislature changed the way of selecting
judges it intended to change the dual office holding ban is, in my
judgment, a real stretch.’”64 McKenna does not, however, mark the
first time that such a repeal by implication has been effected, nor
is the practice unique to the judicial branch of Rhode Island’s
government.
During the latter months of 2003, an apparent state
constitutional inconsistency faced Rhode Island’s legislature.
Operation Clean Government filed an ethics complaint against
House Majority Leader Gordon Fox after he voted on legislation
affecting a company with which Fox’s law firm did business.65 At
issue was article 6, section 4, a provision of the Rhode Island state
constitution which provides: “No member of the General Assembly
shall take any fee, or be of counsel in any case pending before
either house of the General Assembly under penalty of forfeiture
of seat, upon proof thereof to the satisfaction of the house in which
the member sits.”66 Because Fox had billed hours as a private
attorney in a matter pending before the General Assembly, the
ethics complaint alleged that Fox had forfeited his seat in the
House of Representatives.67 House Speaker William Murphy
opposed seeking an advisory opinion from the Supreme Court on
the constitutional question,68 though he had sought just such an
opinion when controversy had erupted during the reign of the
previous speaker.69 Instead, he sought the opinion of local
63. Id. at 241-42 (citing Berthiaume v. School Comm. of Woonsocket, 397
A.2d 889, 893 (R.I. 1979).
64. Edward Fitzpatrick, Retired Justice Criticizes Williams Ruling,
PROJO.COM, June 8, 2005, http://www.projo.com/news/content/projo_
20050608_chief8.261f8af.html.
65. See Katherine Gregg, Speaker Seeks “Expert” Advice on Ethics
Controversy, PROJO.COM, Nov. 7, 2003, http://www.projo.com/news/ content/
projo_20031107_gop07.b1c7a.html.
66. R.I. CONST. art 6, § 4.
67. See Gregg, supra note 65.
68. Katherine Gregg, Speaker Satisfied with Fox Opinion, PROJO.COM,
Nov. 25, 2003, http://www.projo.com/news/content/projo_20031125_fox25.
10a7c1.html.
69. See Katherine Gregg and Edward Fitzpatrick, At the Assembly:
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constitutional scholar and academic Patrick Conley.70
In his written opinion to the General Assembly, Professor
Conley opined that the plain meaning of the word “case” in article
6, section 4 was also its constitutional meaning.71 In discerning
the plain meaning, Professor Conley looked no further than
Black’s Law Dictionary, which defines the word “case” as, in
relevant part, “a question contested before a court of justice.”72
Because the General Assembly did, at one point, have the power to
exercise appellate judicial review, the use of the word has a loaded
meaning.73 In Professor Conley’s opinion, the word “case” was
dispositive in deciding the controversy: Because the General
Assembly no longer sat in a judicial role, and because article 6,
section 4 had been considered, but remained unchanged in
succeeding Rhode Island constitutional conventions, the provision
had slid into obsolescence and had no applicability to the situation
in which Representative Fox found himself.74
In his response to Professor Conley’s opinion to the General
Assembly, James Marusak raised the issue of constitutional
construction, suggesting that well worn methods of construction
had been left to the wayside by Professor Conley in the course of
his opinion.75 He made the oft-repeated point that considering
Ethics Exclusion for Lawyer-Politicians Delayed in Face of Heavy Opposition,
PROVIDENCE J., Feb. 14, 2001, at 1A.
70. Id. See also James P. Marusak, Article VI, Section 4: Still Alive and
Well, 53 R.I. BAR J., Nov.-Dec. 2004, at 11 (2004).
71. Patrick T. Conley, Article VI, Section 4: A Case Study in
Constitutional Obsolescence, 53 R.I. BAR J., Sept.-Oct. 2004, at 9-11 (2004).
72. Id. (citing BLACK’S LAW DICTIONARY 206 (7th ed. 1999)). James
Marusak suggests that this was the wrong place to look for the plain meaning
of a word, and that a regular dictionary should have been consulted rather
then a legal one. “Plain and common meanings should be ascertained by
consulting Webster’s Dictionary of the American Language, rather than
Black’s Dictionary of the Lawyer’s Language. Using a legal dictionary to
primarily define the word ‘case’ dictates the answer. One probably should not
use Dorland’s Medical Dictionary to define ‘seizures’ in its constitutional
context either.” Marusak, supra note 70, at 11.
73. See Conley, supra note 71. Professor Conley goes on to provide an
historical analysis of article 6, section 4, concluding that, “[t]he use of the
word ‘case’ in all three versions of this section was clearly intended to apply
only to court cases in which a lawyer/legislator might use the existing
petition process to win a legislative verdict for his client.” Id. at 9-10.
74. Id. at 11.
75. Marusak, supra note 70, at 11.
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constitutional provisions overruled by implication is disfavored.76
Despite Marusak’s analysis of the use of the word “case” in Rhode
Island’s constitutional history, an analysis which suggests that a
more expansive meaning might have been appropriate, Speaker
Murphy chose to accept Professor Conley’s opinion, never calling
for an advisory opinion from the Supreme Court.77
While the fact that “[n]o word or phrase in the Constitution
may be construed a nullity if any other construction can give it
meaning,”78 the legislature allowed the entire section of article 6
dealing with lawyer-legislators to be read right out of the state
constitution. If Professor Conley’s interpretation is to be accepted,
there is an absolutely meaningless provision in the state
constitution, one to which no construction can give meaning.
Similarly, in McKenna, the Rhode Island Supreme Court
interpreted a provision of the Rhode Island Constitution dealing
with dual office holding, despite its reference to judges, as not
applying to justices of the Rhode Island Supreme Court,79 thereby
violating the maxim that “no word or section can be assumed to be
unnecessarily used, needlessly added or unnecessarily omitted.”80
By applying the plain meaning of the words of the provision,
the Rhode Island Supreme Court held that the provision no longer
applied to judges, as they were no longer elected, but instead
appointed on the basis of merit.81 Because, at one point, judges
did take office after being elected, as opposed to just being
engaged, the court ascribed to both of those words a loaded
meaning, precluding continued application of article 3, section 6 to
the judiciary. McKenna renders article 3, section 6, as it applies to
the Rhode Island judiciary, like article 6, section 4, before it,
obsolete and meaningless.
CONCLUSION
The foregoing provides two recent examples of the Rhode
76. Id.
77. Id. See also Gregg, supra note 69.
78. Marusak, supra note 70, at 11 (quoting City of Pawtucket v. Sundlun,
662 A.2d 40, 45 (R.I. 1995)).
79. McKenna, 874 A.2d at 231.
80. Marusak, supra note 70, at 11 (quoting Bandoni v. State, 715 A.2d
580, 590 (R.I. 1998)).
81. McKenna, 874 A.2d at 232.
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Island Constitution being overruled by implication, despite the
fact that doing so is disfavored. After McKenna, not only do an
attorney and his law practice lack standing to maintain an action
to remove a public official from office, but any action to remove a
public official from office is a petition in equity in the nature of
quo warranto, over which the Superior Court lacks subject matter
jurisdiction without the intervention of the Attorney General.
Furthermore, Rhode Island’s constitutional prohibition against
state officials holding dual offices does not apply to appointed
members of the Rhode Island judiciary.
Aaron R. Baker & Bridget N. Longridge
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Constitutional Law. Young v. City of Providence, 396
F.Supp. 2d 125 (D.R.I. 2005). The Federal District Court for the
District of Rhode Island denied all of the City of Providence
Officers’ motions for summary judgment as put forth based on the
defense of qualified immunity, finding that for all three of the
defendants, under a three-prong qualified immunity analysis,
there existed material factual disputes as to supervisory liability.
FACTS AND TRAVEL
On January 28, 2000, Cornell Young Jr., an off-duty
Providence police officer, was shot and killed by two fellow on-duty
Providence police officers, Carlos Saraiva and Michael Solitro.1
Young was shot by the other Providence officers while responding
off-duty to an altercation occurring within city limits, and as such,
was in plainclothes and not in uniform.2 Additionally, Providence
police regulations at the time of the incident required that off-duty
officers be armed at all times and prepared to act in their official
capacity, even when off-duty; Young had his gun out while shot at
the scene of the altercation.3 Complicating this already complex
tragedy was the fact that Young was African-America and both of
the other officers were not.4
Young’s mother, Leisa Young, subsequently brought suit in
Rhode Island Federal District Court against both the individual
officers involved in the tragedy, on Fourth Amendment
unreasonable use of force grounds,5 and against the City of
Providence, for its alleged “failure to properly screen, hire, train,
discipline and supervise the City’s police officers.”6 In 2003, Judge
Mary Lisi presided over a bifurcated trial in which the jury was
1. Young v. City of Providence, 301 F. Supp. 2d 163, 166 (D.R.I. 2004).
2. Id. at 166.
3. Young v. City of Providence, 396 F. Supp. 2d 125, 129 (D.R.I. 2005).
See also Edward Fitzpatrick, Young Drops Appeal to End Five-Year Battle,
PROVIDENCE J., Feb. 4, 2006 at A3-4.
4. Fitzpatrick, supra note 3, at A3.
5. Young, 301 F. Supp. 2d at 168.
6. Id. at 166.
801
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first asked to determine if the two on-duty officers had violated
Young’s Fourth Amendment rights; the jury found that one officer
had violated Young’s rights, but that the other officer had not.7 At
that time, Judge Lisi granted summary judgment on all other
grounds and appeals soon followed.8
On April 25, 2005, the First Circuit Court of Appeals issued
its decision, affirming the jury’s finding that one officer violated
Young’s rights and also affirming Judge Lisi’s summary judgment
as to one charge against the City, but reversing Lisi’s summary
judgment for the City “on a claim that it is responsible for
inadequately training [Officer] Solitro on how to avoid on-duty/offduty misidentification in light of the department’s policy that
officers are always armed and always on-duty.”9 The District
Court’s grant of summary judgment for the City on supervisory
claims was also vacated and remanded, as it had been based on
the grant of summary judgment for the City on the other
municipal claims. 10
The issues as remanded for trial before the District Court for
resolution were based on the supervisory and training claims.11
On remand, the relevant supervisory officials (Urbano Prignano,
the then Providence Chief of Police; John Ryan; and Kenneth
Cohen) moved for summary judgment on qualified immunity
grounds.12
ANALYSIS AND HOLDING
In this case, the plaintiff, Leisa Young, sought to hold the
defendants (Prignano as the then Chief of the Providence Police,
and Ryan and Cohen for their roles in training Officer Solitro) as
liable for her son’s death in their supervisory capacities.13 All of
these three officials moved for summary judgment as to Young’s
claims based on the defense of qualified immunity.14
In addressing the city officials’ motion for summary judgment
based on the status of qualified immunity, District Court Judge
7.
8.
9.
10.
11.
12.
13.
14.
Young, 396 F. Supp. 2d at 129 (citing Young, 301 F. Supp. 2d at 169).
Id. at 129-30.
Young, 404 F.3d 4, 9-10 (1st Cir. 2005).
Id. at 10.
See Young, 396 F. Supp. 2d at 130.
Id.
Id. at 131-41.
Id. at 130.
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Smith utilized a three-prong approach, in which each prong must
be analyzed in a specific order:15 first, in the light most favorable
to the plaintiff, if the facts alleged show that the official’s conduct
violated a constitutional right;16 second, if the first prong is
answered in the affirmative, whether the right claimed to have
been violated can be said to have been “clearly established” by
law at the time of the alleged violation; 17 third, if the right was
established at the time of the violation, whether “a reasonable
official, situated similarly to the defendant(s), would have
understood that the conduct at issue contravened the clearly
established law.”18
As to the first prong of the inquiry, the District Court found
that Young had easily exceeded her burden in showing these
officers violated the decedent’s constitutional rights, as in phase
one of the first trial, the jury returned a verdict saying that
Cornell Young’s rights had been violated by Officer Solitro, a
verdict which the First Circuit subsequently upheld.19
As to the second prong of whether or not the law creating the
constitutional right was clearly established at the time of the
alleged violation of Young’s rights, the District Court cited the
case of Tennesee v. Garner,20 in which the United States Supreme
Court stated that “[w]henever an officer restrains the freedom of a
person to walk away, he has seized that person . . . [T]here can be
no question that apprehension by the use of deadly force is a
seizure subject to the reasonableness requirement of the Fourth
Amendment,”21 and as such Young’s rights were violated in this
instance.22
The District Court next inquired whether these defendants
would be liable in their supervisory capacities for the violations
15. Id. at 131. (citing Savard v. R.I., 338 F.3d 23, 27 (1st Cir. 2003)).
16. Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
17. Id. (citing Brosseau v. Haugen, 543 U.S. 194 (2004)).
18. Id. (quoting Saucier, 533 U.S. at 205).
19. Id. at 132-33 (citing Young, 301 F. Supp. 2d at 169; Young, 404 F.3d
at 25).
20. 471 U.S. 1 (1985).
21. Young, 396 F. Supp. 2d at 134 (citing Garner, 471 U.S. at 1 (quoting
Fernandez v. Leonard, 784 F.2d 1209, 1217 (1st Cir. 1986) (internal citations
omitted))).
22. See id.
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perpetrated by the subordinate officer, Solitro.23 Here again, the
court answered its own inquiry in the affirmative by finding that
police supervisors may be held liable for the actions of their
subordinates, as well as for the failure to properly train
subordinates, in circumstances involving friendly fire.24 In
denying the defendants’ arguments as to this prong, the District
Court cited the Circuit Court’s finding that “[a]lthough there was
no evidence of a prior friendly fire shooting, a jury could find . . .
that the department knew there was a high risk . . . that friendly
fire shootings were likely to occur”25 as support for a finding of
supervisory liability and as “clearly establish[ing] that supervisors
may be held liable for fail[ure] to adequately train officers.”26
As to the third and final prong of the qualified immunity
analysis, the District Court stated that the plaintiff “face[d] a
fairly tall order: she must demonstrate that there are material
factual disputes regarding whether each individual defendant was
deliberately indifferent to the risk” of harm that might result from
their failure to provide constitutionally adequate training of the
subordinate officers and that these actions were objectively
unreasonable.27
Here, the court found that there were material factual
disputes as to each of the three defendants.28 In the case of
Prignano, the defendant himself acknowledged that he was
“ultimately responsible for ensuring proper training of the PPD
[and that as to the “always armed, always on duty” policy,] . . .
that failure to follow it could lead to someone being killed.”29 The
court found that there were numerous factual disputes
surrounding training and that “[a]lthough Prignano did not
provide direct instruction to Solitro, he may nevertheless be liable
as a supervisor.”30 As to the defendant Ryan, the court found that
not only was he responsible as Director of Administration for the
Providence Police Department at the time of Young’s death for
officer training, but also noting that the plaintiff claimed that he
23.
24.
25.
26.
27.
28.
29.
30.
Id. at 134-35.
Id. at 135.
Young, 404 F.3d at 28-29.
Young, 396 F. Supp. 2d at 136.
Id. at 137.
Id. at 137- 41.
Id. at 137.
Id. at 138.
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“actually conducted training that was inconsistent with . . . PPD
policy,” and that there existed disputed issues of material fact as
to Ryan’s involvement in the officers’ training.31 As to the
defendant Cohen, who was the Director of the Training Academy
that Solitro attended, the court similarly found that there existed
issues of material fact as to whether Cohen was “deliberately
indifferent to the known risks associated with the always
armed/always on-duty policy by failing to provide training” around
this policy.32 As such, the court found that there were sufficient
factual disputes as to each defendant so as to deny summary
judgment based on supervisory qualified immunity in all three
instances.33
Additionally, the court denied two other motions for summary
judgment put forth: Prignano moved for summary judgment as to
the plaintiff Leisa Young’s Monell34 claim against him, and Ryan
moved for summary judgment claiming he could not be liable in a
supervisory capacity, as the officer he had trained was found not
to have violated the decedent’s constitutional rights.35
COMMENTARY
Five weeks after Judge Smith issued the opinion denying all
of the defendants’ motions for summary judgment, a federal jury
decided that the city of Providence and its officers were not liable
for the violation of Cornell Young’s constitutional rights as
perpetrated by Officer Solitro.36 The plaintiff Leisa Young (the
deceased officer’s mother) had filed an appeal to this verdict in the
First Circuit Court of Appeals on Januray 18, 2006, but later
dropped her appeal on February 3, 2006.37 What began as a
national news-making tragedy that once included legal counsel
Johnnie Cochran, ended with little legal consolation for the
deceased officer’s family and loved ones.38
31. Id. at 140.
32. Id. at 141.
33. Id.
34. Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978).
35. Young, 396 F.Supp. 2d at 141-46 (D.R.I. 2005).
36. Fitzpatrick, supra note 3, at A3-A4.
37. Id.
38. Id.
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CONCLUSION
The Federal District Court for the District of Rhode Island
denied all motions for summary judgment as put forth by
supervisory officers of the City of Providence under the defense of
qualified immunity.39
Esme Noelle DeVault
39.
Young, 396 F. Supp. 2d at 146.
SANZI
5/15/2006 7:20 PM
Contract/Insurance Law. Sanzi v. Shetty, 864 A.2d 614
(R.I. 2005). Medical malpractice liability insurer had no duty to
defend or indemnify a pediatric neurologist for injuries arising
from alleged sexual assaults of former child-patient because of the
“inferred intent doctrine,” which provides that, as a matter of law,
there is an inferred intent to harm in cases of sexual abuse of
children. The intentional acts of sexual abuse were outside the
scope of the insured’s policies, which provided coverage in the
event of accidental “occurrences.” The liability insurer also had no
duty to defend or indemnify because the alleged acts were not
sufficiently connected to “professional services,” and thus fell
outside the scope of policy coverage.
FACTS AND TRAVEL
In December 1999, Rebecca Caldarone, a former patient of
pediatric neurologist Dr. Taranath M. Shetty, committed suicide.1
In 2000, Caldarone’s parents and husband (as parent and next
friend of her minor children) brought a wrongful death action
against Dr. Shetty and Taranath M. Shetty, M.D., Inc.2 The
plaintiffs alleged that Shetty sexually abused and battered Mrs.
Caldarone for eight years, from 1979 until 1987, beginning when
she was his fourteen-year-old patient.3 They claimed that Shetty
deceived Caldarone’s parents into believing that it would benefit
their daughter’s health if she worked at his office on Saturdays,
and that Dr. Shetty sexually abused her on those Saturday
workdays and during her regular medical visits.4 The plaintiffs
claimed that this alleged sexual abuse ultimately caused Rebecca
Caldarone’s death by suicide.5
Since 1978, Dr. Shetty was covered by malpractice liability
insurance policies issued by The Medical Malpractice Joint
1. Sanzi v. Shetty, 864 A.2d 614, 615 (R.I. 2005).
2. Id.
3. Id. at 617.
4. Id.
5. Id. at 615.
815
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Underwriting Association of Rhode Island (JUA).6 The JUA
policies provided that the company would provide liability
coverage for “injury arising out of the rendering of or failure to
render . . .professional services by the individual insured
. . .performed in the practice of the individual’s profession . . . .”7
The policies provided for protection in the event of an
“occurrence,” with “occurrence” defined in the policy as “an
accident . . .which results in bodily injury or property damage
neither expected nor intended from the standpoint of the
insured.”8 Beginning in 1980, Shetty’s policies also contained a
criminal-act exclusion: “This insurance does not apply . . . to
injury arising out of the performance by the insured of a criminal
act.”9
When Shetty was sued, he contacted JUA seeking defense and
indemnification coverage.10 JUA denied coverage.11 They claimed
that under the insurance policies, neither Dr. Shetty, nor Shetty,
Inc., was entitled to defense or indemnity for the claims asserted
by the plaintiffs.12 Dr. Shetty filed a third-party complaint
against JUA, seeking “a determination that JUA ha[d] a duty to
defend and/or indemnify both himself and Shetty, Inc., and
demanding judgment against JUA for all sums potentially
adjudged against [him].”13
JUA filed a motion for summary judgment; the hearing justice
found that JUA was under no duty to defend or indemnify Dr.
Shetty and that therefore JUA was entitled to summary
judgment.14 The defendants appealed.15
ANALYSIS AND HOLDING
On appeal the defendant argued that: (1) the plaintiff’s
complaint passed the pleadings test, thus obligating JUA to
6. Id. at 617.
7. Id. (quoting defendants’ JUA policies JUA-7301 and 8809) (emphasis
omitted).
8. Id.
9. Id. (quoting defendants’ JUA policy issued on Form JUA-20).
10. Id. at 616.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
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defend and indemnify the defendant; and (2) that there was a
genuine issue of material fact as to whether the policies in place
between 1978 and 1980 covered injuries arising out of sexual
misconduct.16 The central question presented to the court was
whether the JUA had any duty to defend and potentially
indemnify the defendant, based on the terms of the defendants’
liability insurance policies and the facts alleged in the complaint
against them.17
The court’s analysis began with the question of whether the
complaint against Shetty satisfied the pleadings test.18 The
pleadings test provides that “an insurer’s duty to defend is a
function of the allegations in the complaint filed against the
insured, and that if the allegations bring the case within the scope
of the risks covered by the policy, the insurer must defend
regardless of whether the allegations are groundless, false, or
fraudulent.”19 Whether the pleadings test was satisfied turned on
the question of whether sexual abuse was an injury that arose out
of the rendering of “professional services.”20 This was because
according to the defendant’s insurance policy, JUA would provide
liability coverage for injuries “arising out of the rendering of or
failure to render . . . professional services”21 by the individual
insured. Since Shetty’s policies covered risks arising out of the
rendering of professional services, the pleadings test would be
satisfied if the sexual abuse arose out of the rendering of
professional services.22
The court found that the pleadings test was not met because
sexual abuse was not a claim within the sphere of professional
services covered under the policy.23 The court observed that most
American courts follow the rule that “intentional sexual abuse
does not fall within the rendering of professional services for the
purposes of insurance coverage unless the acts are so inextricably
intertwined with medical treatment that coverage must be
16. Id.
17. Id. at 616-17.
18. Id. at 618.
19. Id. (internal quotation marks and brackets omitted) (quoting Craven
v. Metro. Prop. & Cas. Ins. Co. 693 A.2d 1022 (R.I. 1997)).
20. See id. at 618-19.
21. Id. at 617 (emphasis added).
22. See id.
23. Id. at 618.
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afforded.”24 The Rhode Island Supreme Court had not previously
considered “the issue of insurance coverage in a case involving a
medical professional accused of sexual misconduct.”25 The court
decided to adopt the test for determining whether an act was
“professional” in nature from the 1968 Nebraska case Marx v.
Hartford Accident and Indemnity Co.,26 the leading case in this
area.27 According to the Marx case, “[i]n determining whether a
particular act is of a professional nature or a ‘professional service’
we must look not to the title or character of the party performing
the act, but to the act itself.”28 In addition, “something more than
an act flowing from mere employment is essential. The act or
service must be such as exacts the use or application of special
learning or attainments of some kind.”29
In applying the Marx reasoning, the court focused on “the acts
and circumstances surrounding the alleged assaults.”30 In the
court’s view, the connections between Shetty’s professional status
and the alleged abuse were de minimis.31 The only connections
between Shetty’s professional activities and the alleged abuse
were that his professional status allowed him access to the victim
and that the alleged abuse occurred at his office.32 These minimal
connections to Shetty’s professional services as a pediatric
neurologist were “remotely incidental” to the allegations of the
complaint.33 Because the “alleged sexual abuse . . . was so distinct
from [Shetty’s] medical skills, training, and practice in pediatric
neurology . . . the alleged abuse clearly [fell] outside the scope of
‘professional services.’”34 Thus, the court held that the allegations
of sexual abuse fell outside of the “professional services” coverage
of JUA’s liability insurance.35
The court did not end the analysis with the finding that the
24. Id.
25. Id. at 619.
26. 157 N.W.2d 870 (Neb. 1968).
27. 864 A.2d at 619.
28. Marx, 157 N.W.2d at 872.
29. Id. at 871-72.
30. Shetty, 614 A.2d at 619.
31. See id.
32. See id.
33. Id. at 619.
34. Id. at 619.
35. Id. at 619-20.
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pleadings test had not been met. The opinion went on to explain
that even if the distinction between the defendant’s professional
services and the alleged sexual misconduct were less clear, the
outcome would be the same.36 This was because Rhode Island
Supreme Court precedent established “an exception to [the
pleadings test] in cases involving civil actions for damages flowing
from an alleged sexual molestation.”37
In Peerless Insurance Co. v. Viegas,38 the Rhode Island
Supreme Court adopted the inferred intent doctrine.39 According
to that doctrine, “because injury always ensues [from the sexual
molestation of children], the offender is deemed to intend any
injury resulting from the act as a matter of law.”40 The Peerless
court applied the inferred intent doctrine to reach the holding that
“in civil actions for damages that result from an act of child
molestation, an insurer will be relieved from its duty to defend
and to indemnify its insured if the perpetrator is insured under a
policy in which there is contained an intentional act provision.”41
In a subsequent case, Craven v. Metropolitan Property &
Casualty Insurance Co.,42 the Rhode Island Supreme Court
extended the Peerless rationale to an insurance policy that did not
contain a specific intentional act exclusion provision.43 The policy
at issue in Craven would cover an injury arising out of an
“occurrence” with “occurrence” defined as an “accident . . .
resulting in bodily injury.”44 The Craven court held that when
allegations are made as to intentional acts, there is no accident,
and therefore can be no “occurrence” to fall inside of the policy’s
coverage.45
In nearly identical terms as the policy at issue in Craven, the
happening of an accidental occurrence would trigger coverage
36. Id. at 620.
37. Id. (quoting Am. Commerce Ins. Co. v. Porto, 811 A.2d 1185, 1190
(R.I. 2002)).
38. Peerless Ins. Co. v. Viegas, 667 A.2d 785 (R.I. 1995).
39. See id.
40. Id. at 788.
41. Id.
42. Craven v. Metro. Prop. & Cas. Ins. Co., 693 A.2d 1022 (R.I. 1997)
(mem).
43. Id. at 1022.
44. Id.
45. Id.
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under Shetty’s policies.46 Following the principles set forth in
Peerless and Craven, the court found that the inferred intent
doctrine applied and relieved JUA from its duty to defend or
indemnify the defendant for injuries arising from the alleged
sexual assaults.47
The defendant’s final argument before the court was that
there was an ambiguity in the insurance policies that were in
effect during the period from 1978 to 1980 that was sufficient to
create an issue of material fact.48 The defendant’s argument was
that there was no explicit criminal act exclusion clause in the
policy during that period, and that it could be implied that
coverage for injuries arising out of criminal acts was included in
those policies.49 The court determined that this argument was
without merit because there was nothing in the policies that
would lead an “ordinary reader to conclude that criminal-acts or
sexual-abuse coverage was included.”50 The mere fact that an
explicit criminal acts exclusion was included in policies after 1980
did not imply inclusion of criminal acts coverage in earlier
policies.51
Because the court found that the JUA had no duty to defend
or indemnify the defendant Dr. Shetty, it concluded that summary
judgment was appropriate and affirmed the judgment of the
Superior Court.52
COMMENTARY
This case is significant because it represents the first time
that the Rhode Island Supreme Court has addressed the issue of
liability insurance coverage of a medical professional accused of
sexual misconduct.53 The test that the court has adopted for
determining whether a particular act is a “professional service” or
of a professional nature for the purposes of liability insurance
makes sense.
The court will focus on the circumstances
46.
47.
48.
49.
50.
51.
52.
53.
Shetty, 864 A.2d at 620.
Id.
Id.
Id.
Id. at 621.
Id.
Id.
Id. at 619.
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surrounding the alleged act in order to determine whether it falls
within the scope of “professional services” as that term is used in
the relevant liability policies. It is reasonable to focus on the act
itself, and not the defendant’s title or vocation, when determining
whether the act was connected to the rendering of professional
services. The holding that in these circumstances the intentional
sexual abuse of a child was not sufficiently related to the
rendering of professional services to come within the scope of a
liability insurance policy seems correct.
Applying the inferred intent rule to reach the conclusion that,
as a matter of law, sexual molestation of a child is not an
accidental occurrence within the terms of a liability insurance
policy also makes sense. Liability insurance is intended to offer
protection in the event of alleged negligence on the part of the
insured. When a policy protects against liability arising from
accidental occurrences, it seems fair to deny coverage for
intentional misconduct.
The significance of this case for medical professionals is that,
in the event of allegations of sexual abuse, it is very unlikely that
they will be covered under their liability insurance policies.
CONCLUSION
In this case of first impression, the Rhode Island Supreme
Court held that sexual molestation falls outside the scope of
coverage under a medical liability insurance policy that provides
coverage for injuries arising out of the rendering of professional
services. The court also held that, according to the inferred intent
doctrine, sexual abuse of a child is not an accidental “occurrence”
under a medical liability insurance policy, and therefore is not
covered under an accident liability coverage policy in any event.
The liability insurance company therefore had no duty to defend
or indemnify the defendant pediatric neurologist against liability
arising out of accidental occurrences that took place in the
rendering of professional services.
Matthew J. Costa
LUANGLATH
5/15/2006 7:40 PM
Criminal Law. State v. Luanglath, 863 A.2d 631 (R.I. 2005).
When a deadlocked jury reveals its numerical split to a trial
justice, the trial justice must then convey the numerical split to
counsel. Knowledge of a jury’s numerical split allows counsel to
adequately consider trial strategy. A trial justice’s supplemental
Allen instructions, which suggest to the deadlocked jury that the
failure to reach a unanimous verdict will result in an imminent
retrial, “at great expense to the State and great expense to the
defendants,” are unduly coercive, when the lone holdout knows
that the trial justice and the remaining jurors share knowledge of
the numerical split.
FACTS AND TRAVEL
On March 16, 1990, after 11 p.m., three men entered the
Providence home of the Souvannaleuth family and robbed the
family at gunpoint.1 Six members of the family were present at
the time of the robbery: the parents (Mr. and Mrs.
Souvannaleuth); their three daughters (Malaythong, Southavong,
and Kongseng); and one son (Somsamay).2 The robbers took U.S.
currency, gold, and jewelry valued at between $39,000 and
$78,000.3
Soon after the robbery, the Souvannaleuths described their
observations to the police.4 None of the family members could
identify the robbers that evening, but Kongseng told police that
she recognized two of the perpetrators as people she encountered
within the Laotian community.5 Later that night, the family
members discussed the possible identity of the robbers and
mentioned the defendants, brothers Sythongsay and Soukky
Luanglath.6 In the days following the robbery, family members
1. State v. Luanglath (Luanglath II), 863 A.2d 631, 634 (R.I. 2005).
2. Id.
3. Id.
4. Id.
5. Id.
6. Id.
823
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After
reported seeing the perpetrators in the community.7
Kongseng, Malaythong, and Southavong attended a party in
Foxboro, Massachusetts, which featured a performance by the
defendants’ band, Kongseng reported the sighting to the police.8
The State of Rhode Island prosecuted the defendants for burglary
and robbery.9
During the defendants’ April and May 1993 trial, the jury
process was characterized by irregularities.10 Difficulties ensued
when, after the jury retired for deliberations, one of the twelve
jurors refused to vote based on his religious beliefs.11 At that
point, the trial justice asked the defendants if they needed an
English-language interpreter and then set forth four options
available to the defendants: (1) she could call the dissident juror in
and “read him the riot act;” (2) she could substitute the alternate
juror; (3) the trial could proceed with eleven jurors; or (4) the court
could declare a mistrial.12 The defendants considered their
options and agreed to allow the eleven-person jury to proceed.13
The eleven jurors then continued to deliberate, but after only
a few hours, the jury notified the trial justice that it was unable to
agree.14 The eleven jurors presented a note to the trial justice,
informing her that “[a]t the moment it is 10 to 1 and it seems that
neither are willing to change their opinion. Can you provide any
insight as to how to deal with the decision[?]”15 The trial justice
then met with the prosecution and defense counsel to discuss the
supplemental jury instructions that she planned to issue, but she
did not disclose her knowledge that the jury was deadlocked ten to
one.16
The trial justice then instructed the jury with essentially the
same instructions she discussed with counsel, but went on to
comment that “[i]f there is no decision by this jury, this case will
7.
8.
9.
2000)).
10.
11.
12.
13.
14.
15.
16.
Id.
Id.
Id. at 633 (citing State v. Luanglath (Luanglath I), 749 A.2d 1 (R.I.
Id. at 634.
Id.
Id. at 640.
Id.
Id. at 634.
Id.
Id.
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be tried all over again” and that “if it has to be retried, it will be
retried at great expense to the state and great expense to the
defendants.”17 At the time that the trial justice issued the
instructions, neither the prosecution nor the defense counsel knew
of the jury’s numerical split.18 Neither party objected to the
instructions; however, the defendants moved to pass the case due
to the deadlock.19 After one more hour of deliberations, the jury
returned a unanimous guilty verdict against both of the
defendants on all counts.20
17. Id. at 635 (emphasis omitted). The trial justice’s full instructions
were as follows:
I’m somewhat surprised that with the jury deliberating such a
short time, there is an apparent deadlock. . . . You know, of course,
that jurors have a duty, really, to consult with one another and to
deliberate and to discuss with a view to reaching an agreement, if it
can be done without violence to your individual judgment.
Naturally, each of you must decide this case for yourselves, but you
do that only after you have impartially considered the evidence in a
discussion with all of the other jurors. Although the verdict, as I
said, must be the verdict of each individual juror and not just
acquiescence in the conclusion of others, the issues submitted to you
in this case should be examined with proper regard and deference to
the opinions of others. Jurors should not be obstinate for the sake of
being obstinate. And a juror should consider it desirable that this
case be decided. If there is no decision by this jury, this case will be
tried all over again. It seems to me that no other jury is going to be
more qualified than you are. It isn’t that on the next go-round better
jurors are going to sit.
You are qualified. . . . And I should tell you that there’s no
reason for any juror to think that if this case is retried, more
evidence or clearer evidence is going to be presented. And, if it has
to be retried, it will be retried at great expense to the state and great
expense to the defendants.
As I’ve told you, it is your duty to decide the case if you can
conscientiously do so. And as I said before, don’t hesitate to reexamine your views and change your position if you are convinced it
is erroneous. I will remind you, of course, that you should never
surrender an honestly arrived at conviction as to the weight or effect
of the evidence only because of the opinion of other jurors, or only for
the sake of returning a verdict. I don’t want that to happen either.
It appears to me that more time ought to be spent upstairs by this
jury. And in an hour or so I will send a note asking if there has been
any progress.
Id. at 634-35.
18. Id. at 634.
19. Id. at 635.
20. Id.
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After the jury departed, the trial justice met with the
prosecution and the defense counsel in her chambers.21 She
questioned her decision not to reveal the deadlocked jury’s
numerical split, noting that the information “may have affected
your strategy.”22 She conceded that if the defense had known the
full content of the jury’s note, it might have pressed harder for a
mistrial.23
Following their 1993 conviction, the brothers appealed to the
Rhode Island Supreme Court, arguing several issues, including
that the trial justice had improperly denied their motion for a new
trial based on the unreliability of the prosecution’s witnesses.24
The case was remanded to the trial court with instructions to
reexamine the witness reliability issue.25 Because the trial
justice’s first decision suggested that the witness reliability issue
might be dispositive, the court declined to reach the remaining
issues proffered by the defendants.26 In 2001, the trial justice
issued a written opinion that resolved the witness reliability
issue.27
ANALYSIS AND HOLDING
On November 9, 2004, the defendants appealed to the Rhode
Island Supreme Court again, rearguing the witness reliability
issue, as well as the remaining two issues that the court did not
21.
22.
Id.
The trial justice’s complete remarks were as follows:
I thought it best not to talk numbers to you when I told you
about this note and told you that I wanted to re-instruct the jury. It
may very well have been I should have. I don’t know how you would
have read it. Either side. It may have affected your strategy, and I
will not ask you to discuss it with me, but just to think about it. You
may have had stronger objections to the so-called Allen charge which
I gave. If you knew about the ten to one breakout, you may have
indeed pressed for a mistrial, or at least a decision from me, and I
didn’t give you a decision on the motion for mistrial. And I may very
well have been in error in not deciding. But in any event, I thought
you should know.
Id. at 642.
23. Id.
24. Id. at 633.
25. Id.
26. Id.
27. Id.
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reach in the prior appeal.28 On the weight of the evidence issue,
the court affirmed the trial justice’s denial of the defendants’
motion for a new trial.29 Next, the court affirmed the trial justice’s
ruling that the decision to proceed with eleven jurors followed
knowing, intelligent, and voluntary waivers from both
defendants.30 The court then reached the two remaining issues
from Luanglath I.31
Supplemental Allen Instructions
First, the defendants argued that the trial justice’s
supplemental Allen32 instructions to the deadlocked jury were
improper for three reasons: (1) the instructions placed too much
emphasis on the possibility and cost of a retrial; (2) the nature of
the instructions was too coercive given the fact that only one juror
was dissenting from the majority; (3) the trial judge should have
conveyed the numerical split of the deadlocked jury to counsel.33
The court held that the trial justice’s failure to reveal the entire
contents of the jury’s note and her supplemental Allen instruction,
informing the jury that a retrial was imminent and costly,
constituted reversible error.34 The court vacated the defendants’
convictions and remanded the case to the Superior Court for a new
trial.35
In State v. Patriarca,36 the Rhode Island Supreme Court set
forth guidelines for analyzing Allen and instructing a deadlocked
jury:
[B]efore deliberation the court may instruct the jury: (1)
that in order to return a verdict, each juror must agree
thereto; (2) that jurors have a duty to consult with one
another and to deliberate with a view to reaching an
28. Id.
29. Id.
30. Id. at 641.
31. See State v. Luanglath, 749 A.2d 1 (R.I. 2000).
32. Allen v. United States, 164 U.S. 492, 501 (1896) (upholding jury
instructions delivered to a deadlocked jury, even though the instructions
urged the jurors in the minority to think about the majority’s views).
33. Luanglath II, 863 A.2d at 641-2.
34. Id. at 644.
35. Id.
36. State v. Patriarca, 308 A.2d 300 (R.I. 1973).
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agreement, if that can be done without violence to the
individual judgment; (3) that each juror must decide the
case for himself, but only after an impartial consideration
of the evidence with his fellow jurors; (4) that in the
course of deliberations, a juror should not hesitate to
reexamine his own views and change his opinion if
convinced it is erroneous; and (5) that no juror should
surrender his honest conviction as to the weight or effect
of the evidence solely because of the opinion of his fellow
jurors, or for the mere purpose of returning a verdict.37
The Supreme Court reasoned that the trial justice’s
instructions to the deadlocked jury covered, in almost the same
words, the guidelines suggested by Patriarca, but then added the
following additional instructions, upon which the defendants’
appeal is based:
It seems to me that no other jury is going to be more
qualified than you are. It isn’t that on the next go-round
better jurors are going to sit. You are qualified. . . . And,
if it has to be retried, it will be retried at great expense to
the state and defendants. As I’ve told you, it is your duty
to decide the case if you can conscientiously do so.38
In considering a challenge to a trial justice’s Allen
instructions, the Rhode Island Supreme Court applies a totalityThe court distinguished the
of-the-circumstances test.39
Luanglath I jury instructions from those upheld in a prior case,
State v. Rodriguez,40 which were not found coercive, in part
because “the instructions were not addressed to either the
majority or minority; it still took the jury an hour after the
instructions were issued to reach a verdict. . . and the trial justice
did not tell the jury that the case would have to be retried if they
failed to reach a unanimous conclusion.”41 By contrast, the trial
justice’s instructions in Luanglath I emphasized the imminence
and cost of a retrial when it was:
inescapable that the only holdout juror knew that the
37. Id. at 322.
38. Luanglath II, 863 A.2d at 642.
39. Id.
40. State v. Rodriguez, 822 A.2d 894 (R.I. 2003).
41. Luanglath II, 863 A.2d at 643 (citing Rodriguez, 822 A.2d at 902-04).
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trial justice was aware of the numerical split, and that
the remaining ten jurors knew of the split and knew that
the trial justice was aware of the split . . . even if the
trial justice did not specifically single out the only
dissenter, her instructions, coupled with the knowledge of
the single holdout, took on a new meaning.42
Considering both the statements regarding the cost and
imminence of a retrial, as well as the likely effect of the
circumstances on the lone dissenter, the court held that the trial
justice’s supplemental Allen instructions violated the boundaries
set forth in Patriarca.43
Trial Justice’s Failure to Inform Counsel of the Entire Contents of
the Jury’s Note
The defendants also presented the Rhode Island Supreme
Court with a question of first impression: must a trial justice
disclose to defense counsel the numerical split revealed to the
justice in a jury note?44
The court looked to State v. Sciarra,45 in which it held that a
trial justice erred when he responded to a jury’s note outside of
defense counsel’s presence, because the defense counsel had a
right to be heard “before a response was given to the note.”46 The
Supreme Court reasoned that the facts in the present case
demonstrated the problems that can arise when defense counsel is
unaware of the information available to the trial justice.47 The
court reasoned that, as the trial justice conceded, had defense
counsel been aware that the jury was deadlocked all-against-one
in favor of a guilty verdict, the defendant would have objected to
the court’s supplemental Allen instructions and moved for a
mistrial.48 Therefore, “it is imperative that the entire contents of
a note be revealed.”49
42. Id. at 644.
43. Id.
44. Id. at 643.
45. State v. Sciarra, 448 A.2d 1215 (R.I. 1982).
46. Id. at 1220.
47. Luanglath II, 863 A.2d at 643.
48. Id.
49. Id.
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830 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:823
COMMENTARY
The Rhode Island Supreme Court’s decision in Luanglath II
affirms the value and sanctity of jury deliberation. Additionally,
Luanglath II illustrates how a deviation from the Patriarca
guidelines can lead to precisely the end that the trial justice
sought to prevent: additional litigation “at great expense to the
State and great expense to the defendants.”50
A trial justice’s Allen instructions urge jurors to persevere and
to engage themselves in the type of vigorous debate that
characterizes the American jury system. The Patriarca guidelines
express high ideals for jurors, including the responsibility to
impartially consider the evidence and to refuse to sacrifice an
honest conviction solely for the purpose of reaching an
agreement.51 While the Patriarca guidelines provide a means for
trial justices to forestall Allen litigation, the Rhode Island
Supreme Court noted in 2003 that the guidelines “were not
intended to limit the trial justice’s discretion in instructing jurors
concerning their obligations and responsibilities.”52
In Luanglath II, the trial justice’s supplemental Allen
instructions suggested the imminence and cost of a retrial when
both the trial justice and the jurors, including the holdout, knew of
the jury’s numerical split.53 The court emphasized the importance
of the fact that the trial justice was aware of the jury’s numerical
split when she issued the supplemental instructions, and held
that the instructions were coercive considering the totality of the
circumstances.54
A jury allows citizens to engage in thoughtful deliberation to
determine whether the prosecution has satisfied its burden of
proof against the defendants. The Sixth Amendment of the
Constitution provides that a criminal defendant is entitled to a
jury trial.55 Any insinuation that jurors should rush to agreement
in order to save tax dollars represents a failure of the system. The
Rhode Island Supreme Court established the Patriarca guidelines
50. Id. at 642.
51. See Patriarca, 308 A.2d at 322.
52. State v. Rodriguez, 822 A.2d 894, 900 (R.I. 2003) (citing State v.
Souza, 425 A.2d 893, 900 (R.I. 1981)).
53. Luanglath II, 863 A.2d at 644.
54. Id. at 643-44.
55. See U.S. CONST. amend. VI.
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as a means for the court to guide a deadlocked jury without
encouraging agreement for its own sake.56 While a trial justice
has the discretion to give instructions beyond the Patriarca
guidelines, supplemental instructions can be subject to challenge,
as Luanglath II illustrates. In Luanglath II, the additional time
and money that the defendants expended in challenging the trial
justice’s supplemental instructions were well spent.
CONCLUSION
The Rhode Island Supreme Court held that a trial justice
must reveal the entire contents of a jury’s note to counsel. In this
case, knowledge of the jury’s numerical split, which included a
holdout juror, would have enabled defense counsel to better
consider its trial strategy and to object to supplemental Allen
instructions that suggested that the failure to agree would result
in an imminent retrial at great cost to the State and to the
defendants.57 Under the totality of the circumstances, the court
held that the trial justice’s instructions were unduly coercive.58
Jessica Bosworth
56.
57.
58.
See generally Patriarca, 308 A.2d 300.
Luanglath II, 863 A.2d at 643.
Id. at 643-44.
PEREZ
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Criminal Law. State v. Perez, 882 A.2d 574 (R.I. 2005). A
trial court does not abuse its discretion when it denies a
defendant’s motion to sequester the State’s essential expert
psychiatric witness during the defendant’s testimony. Further,
the trial court has not abused its discretion when it allows the
State’s psychiatric witness to testify that the defendant suffered
from a particular disorder, even though the State had failed to
inform the defense of this diagnosis as required by Rhode Island’s
discovery rules, so long as the defense is familiar with the
particular disorder, and any potential prejudice from the
undisclosed information can be successfully mitigated. In the
absence of overreaching, compulsion, or threats, a defendant who
indicates his understanding of the circumstances and is found to
be clear-headed when appraised of his Miranda rights, knowingly
and voluntarily waives those rights when he subsequently makes
a statement to police. However, even if an involuntary statement
is erroneously admitted, if the statement merely constitutes
cumulative evidence, the error is harmless. Finally, a delay of
more than twelve months between a defendant’s arrest and trial
on a charge does not violate the defendant’s right to a speedy trial
when the defendant bears the primary responsibility for the delay,
the defendant’s actions are not consistent with “banging on the
courthouse doors,” and the defendant has not suffered prejudice.
FACTS AND TRAVEL
Victor Perez lived with his mother, Rosa Perez, and her
friend, Lolo, in an apartment in Providence.1 On August 13, 1998,
Victor smoked a combination of crack and marijuana, continued to
smoke marijuana throughout the day, and although it had been
days since he had consumed any LSD, began to feel like he was
“tripping.”2
While smoking marijuana in the living room, Victor
testified that he heard his mother and Lolo arguing in the
1. State v. Perez, 882 A.2d 574, 578 (R.I. 2005).
2. Id.
833
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834 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:833
bedroom, so he took a knife from the kitchen counter, hid it in his
waistband, and proceeded to the bedroom to tell Lolo to leave his
mother alone.3 Lolo continued to scream at Rosa even after she
exited the bedroom and went into the kitchen.4
Rosa soon realized that the knife was missing from the
counter and insisted that Victor give it back, but Victor denied
having the knife.5 Lolo came out of the bedroom and went to hug
Rosa before leaving, but Victor believed Lolo was trying to
physically harm his mother.6 Victor jumped up and rushed
toward Lolo while grabbing for the knife in his waistband.7
However, Lolo exited the apartment before Victor reached the
kitchen.8 In the struggle to free the knife from his waistband, the
blade broke loose from the handle and fell to the floor.9 Rosa
attempted to confiscate the knife before Victor regained control.10
According to Victor, when Rosa reached for the knife, he
believed she was trying to assault him and a struggle developed.11
Rosa successfully grabbed the blade, but in response, Victor
swiped another knife and began slashing at Rosa.12 Victor
claimed that he formed the belief that his mother was “the devil”
and he had to protect himself.13 Rosa died as a result of the
injuries she sustained.14
A witness testified that he saw Victor run from the apartment
and that Victor was “running like he was crazy, up and down,
everywhere.”15 Victor looked “all confused” and “[h]e didn’t know
where he wanted to go.”16
When police arrived on the scene they observed “dozens
upon dozens of bloody footprints throughout the building, up and
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
Id.
Id.
Id. at 579.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 580.
Id.
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down various stairwells and various floors of the building.”17 The
officers tracked the footprints to the apartment of Luis Rivera on
the second floor.18 According to Rivera, Victor was acting crazy
and he “had never seen [Victor] like that.”19 Rivera testified that
Victor told him that he “had a problem downtown.”20 Unsatisfied
with Victor’s explanation of his behavior, Rivera asked Victor
whether he had killed his mother.21 In response, Victor went to
the kitchen, got a knife, wrapped it in a towel and sat down on the
bed next to Rivera when the police knocked on Rivera’s door.22
After receiving permission from Rivera to enter the
apartment, officers began searching for Victor.23 They found him
in the bathroom wielding a knife at “an attack point.”24 When
ordered to drop the knife and exit the bathroom, Victor complied
and surrendered to police.25 Officer Deschamps loudly read
Miranda warnings from a preprinted card in both Spanish and
English.26
When asked where his mother was and when he saw her
last, Victor responded, that he “didn’t do anything.”27 In response
to questions about the injuries to his leg and hand, Victor told
police that he had been in “a fight in the downtown area.”28
Officer Deschamps also testified that Victor was acting “extremely
angry” and “cocky” and that he had to tell Victor to calm down
numerous times.29
At trial, Victor did not refute that he had killed his mother,
but argued that he suffered from diminished capacity.30 To rebut
the defense expert’s testimony supporting diminished capacity,
the state presented its own expert witness, Dr. Kelly.31 The jury
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
Id.
Id. at 580-81.
Id. at 581 n.6.
Id. at 581.
Id.
Id.
Id.
Id.
Id.
Id. at 581 n.10.
Id. at 582.
Id.
Id. at 582 n.11.
Id. at 582.
Id.
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836 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:833
found Victor guilty of first-degree murder for the killing of his
mother, Rosa Perez, and sentenced him to life imprisonment.32
The defendant subsequently appealed to the Rhode Island
Supreme Court.33
ANALYSIS AND HOLDING
On appeal, the defendant argued that the trial justice had
committed reversible error: (1) in allowing the state’s expert to be
present in the courtroom to observe the defendant testify before he
gave his expert testimony about the defendant;34 (2) in permitting
the state’s expert to give a medical opinion in violation of
discovery provisions of Rule 16 of the Superior Court Rules of
Criminal Procedure;35 (3) in denying his motion to suppress
statements made to police in violation of his Miranda36 rights;37
and, (4) denying his motion to dismiss on the grounds that the
state violated his right to a speedy trial.38 The Rhode Island
Supreme Court unanimously found no reversible error and
affirmed the defendant’s conviction.39
Presence of the State’s Expert in the Courtroom
The defendant contended that the trial justice’s denial of his
motion to sequester Dr. Kelly, the state’s expert, was in error.40
He argued that this testimony constituted impermissible vouching
or bolstering because of the jury’s knowledge of Dr. Kelly’s
presence during Victor’s testimony.41
In finding that the trial justice was acting within his
inherent discretionary power42 when he chose not to sequester Dr.
Kelly, the court focused on Dr. Kelly’s essential role in the state’s
32. Id. at 578.
33. Id. at 582.
34. Id. at 578.
35. Id. (referencing R.I. SUP. R. CRIM. P. 16).
36. 422 U.S. 322 (1975).
37. Id.
38. Id.
39. Id.
40. Id. at 583.
41. See id.
42. Id. A trial justice retains the inherent power to sequester witnesses
in order to prevent a witness from corresponding his testimony to that of
other witnesses. See id. This decision is discretionary and should only be
overturned in the face of a clear abuse of discretion. Id.
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presentation of its rebuttal.43 The court reasoned that because the
state carried the burden of proving murder beyond a reasonable
doubt, it was essential for the state to invalidate Victor’s defense
by showing that he in fact was not suffering from diminished
capacity when he killed his mother.44 Because Dr. Kelly’s
opportunity to examine the defendant before trial had been
restricted, it was necessary to the presentation of the state’s
rebuttal that he be permitted to remain in the courtroom during
Victor’s testimony.45 The court further noted that in light of the
finding of necessity, Rule 615 of the Rhode Island Rules of
Evidence explicitly forbid the sequestration of “a person whose
presence is shown . . . to be essential to the presentation of [the
case],” and thus, they did not need to comment on the defendant’s
impermissible bolstering argument.46
The State Expert’s Medical Opinion and Compliance with
Discovery Provisions of Rule 16
The defendant next asserted that the trial justice should
have limited the scope of Dr. Kelly’s testimony and that he erred
when he allowed Dr. Kelly to testify that the defendant suffered
from “antisocial personality disorder.”47 The defendant based his
assertion on the state’s failure to act in accord with Rule 16 of the
Superior Court Rules of Criminal Procedure48 and inform the
defense of Dr. Kelly’s intent to testify on this subject.49
In holding that the trial justice did not abuse his discretion
in allowing Dr. Kelly to testify about his belief that Victor suffered
from “antisocial personality disorder,” the court relied heavily on
the fact that the defense’s own documents made reference to the
43. Id. at 584.
44. Id.
45. See id. at 583.
46. Id. at 583-84 & n.14 (quoting R.I. R. EVID. 615(3)).
47. Id. at 584.
48. Id. at 584 n.16 (quoting R.I. SUP. R. CRIM. P. 16).
49. 882 A.2d at 584. A trial justice’s ruling on noncompliance with Rule
16 should not be disturbed absent a clear abuse of discretion. Id. The trial
justice should evaluate the following factors before deciding whether
sanctions are appropriate under Rule 16: “(1) the reason for nondisclosure,
(2) the extent of prejudice to the opposing party, (3) the feasibility of
rectifying that prejudice by a continuance, and (4) any other relevant factors.”
Id. at 585.
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838 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:833
disorder.50 In addition, there was no evidence that the state’s
nondisclosure was a “deliberate act of misconduct.”51 Further,
because it was obvious that defense counsel was familiar with the
characteristics of the disorder, defense counsel was sufficiently
able to cross-examine Dr. Kelly regarding “antisocial personality
disorder.”52 Thus, the extent of prejudice was, at the most,
minimal.53 The court further noted that any potential prejudice
was lessened by the trial justice’s grant of a continuance.54
Motion to Suppress the Defendant’s Statements
The defendant also argued reversible error in the trial
justice’s denial of his pretrial motion to suppress two statements
he made to police shortly after being taken into custody.55 The
first statement challenged was the defendant’s response to Officer
Deschamp’s inquiry into the last time the defendant had seen his
mother.56 The second statement contested was the defendant’s
explanation about the injuries to his hand and leg.57 The
defendant asserted that the confusing circumstances of his arrest
interfered with his ability to understand his Miranda rights, and
thus voluntarily waive those rights.58
The trial justice focused on the fact that the defendant was
not disoriented, his injuries were not serious, and his cocky
behavior indicated that Victor understood the circumstances.59 In
addition, the trial justice did not find any overreaching,
compulsion, or threats.60 The court, giving due deference to the
50. Id. at 586-87.
51. Id. at 587.
52. Id.
53. Id.
54. Id.
55. Id. at 587-88. Review of a trial justice’s decision on a motion to
suppress a confession involves a two-step analysis: (1) review of the trial
justice’s finding of facts relevant to the voluntariness of the contested
statement, and (2) application of those facts and review of the trial justice’s
conclusion as to the voluntariness of the contested statement. Id. at 588.
(citing State v. Humphrey, 715 A.2d 1265, 1973 (R.I. 1998)).
56. Id. Victor replied that he had not done anything to her. Id.
57. Id. at 588. Victor indicated that he had been in an altercation in
downtown Providence. Id.
58. Id.
59. Id. at 589.
60. Id. at 589 n.23.
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trial justice, found that his findings of fact relevant to the
voluntariness of the contested confession were not clearly
erroneous.61
The court next conducted an independent review to
determine whether the defendant’s statement, taking into
consideration the totality of the circumstances, was a product of
his own free will.62 The court noted that waiver of an individual’s
Miranda rights cannot be presumed from either silence or the fact
that the accused actually makes a statement.63 However, the
court concluded that Victor was informed of his Miranda rights
and that he knowingly and voluntarily made the challenged
statements to the police after being informed of those rights.64 In
addition, the court went on to conclude, that even if the challenged
statements were erroneously admitted, because they merely
constituted cumulative evidence, the error was harmless.65
Right to a Speedy Trial
The defendant’s final contention was that he was denied his
constitutionally protected right to a speedy trial and that the trial
justice erred in his refusal to grant the defendant’s pre-trial
motion to dismiss on these grounds.66 The court conducted a de
novo review of the trial justice’s determination that the
defendant’s right had not been violated.67 In conducting its
review, the court considered the following factors: “[the l]ength of
the delay; the reason for the delay; defendant’s assertion of his
right; and [the] prejudice to the defendant.”68 Because a delay of
more than twelve months is “presumptively prejudicial,”69 the
court proceeded to examine the remaining factors and concluded
that Victor’s right to a speedy trial had not been violated and,
therefore, the trial justice properly denied the defendant’s motion
61.
62.
63.
64.
65.
66.
67.
68.
69.
Id. at 589.
Id.
Id.
Id.
Id. at 590.
Id. (citing U.S. CONST. amend. VI; R.I. CONST. art. I, § 10).
Id. at 590-91.
Id. at 591 (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)).
Id. (quoting State v. Crocker, 7667 A.2d 88, 91 (R.I. 2001)).
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840 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:833
to dismiss.70
The court based its rationale on a number of findings.
First, the great bulk of the delay was due to defense counsel’s need
to prepare Victor’s defense, and thus, the defendant bore the
primary responsibility for the delay.71 Second, the defendant’s
assertion of his right to a speedy trial did not constitute the
equivalent of “banging on the courthouse doors.”72 Third, the sole
fact that the defendant was held without bail prior to his trial did
not, by itself, constitute prejudice.73 Rather, the court reasoned
that “to the extent that incarceration disrupts one’s freedom,
employment, and familial associations, . . . this disruption merely
constitutes a prejudice inherent in being held while awaiting
trial.”74
COMMENTARY
Perez was generally an application of existing law and did
not significantly alter Rhode Island’s legal landscape. In fact, the
court did not seem to have any difficulty in reaching its
conclusion. However, some of the court’s comments are worth
noting.
First, in finding Dr. Kelly’s presence in the courtroom
essential to the prosecution’s rebuttal, the court declined to
comment on the defendant’s impermissible bolstering argument.75
This holding implies that in the absence of the express language of
Rule 615(3), the court might have entertained such an argument.
However, even without the prohibition on the sequestration of an
essential person, it is likely that the court would have reached the
same result, because, upon closer investigation of the language of
Rule 615, one discovers that it is materially different from that of
Rule 615 of the Federal Rules of Evidence. Unlike the Federal
Rule, which imposes mandatory exclusion of witnesses at the
request of a party and only forbids sequestration in a limited
70. Id. at 591-93. Victor Perez was arrested in the early morning of
August 13, 1998, and did not go to trial until June of 2001. Id. at 591.
71. Id. at 592.
72. Id. (quoting State v. Powers, 643 A.2d 827, 833 (R.I. 1994) (stating
the test for assessing the defendant’s assertion of his right to speedy trial)).
73. Id.
74. Id. (quoting State v. Austin, 643 A.2d 798, 801 (R.I. 1994)).
75. Id. at 583 n.14.
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number of circumstances,76 Rhode Island’s Rule 615, by use of the
word “may” in the first sentence, makes exclusion entirely
Thus, even if Dr. Kelly’s presence in the
discretionary.77
courtroom was not essential, the trial justice’s decision to allow
Dr. Kelly to remain could only be disturbed if it was a clear abuse
of discretion.
Second, in evaluating the trial justice’s discretion to permit
Dr. Kelly’s testimony regarding his diagnosis of the defendant, the
court did not address the reasons for the prosecution’s
nondisclosure.78 The purpose behind Rhode Island Rule 16 is “to
eliminate surprise and procedural prejudice,” through mandatory
In the case of
compliance with broad discovery rules.79
nondisclosure by either party, the reason for such nondisclosure is
a key factor in considering whether the violating party should
Yet, in Perez, the prosecution gave no
incur sanctions.80
explanation for its failure to disclose Dr. Kelly’s diagnosis of the
defendant.81 In fact, in a supplemental discovery response, filed
hours before Dr. Kelly’s testimony, when it seems apparent that
the prosecution would have known the content of this testimony,
the prosecution made no mention of Dr. Kelly’s intent to testify
that Victor suffered from “antisocial personality disorder.”82 The
prosecution’s nondisclosure seems potentially suspect and should
have been inspected more thoroughly.83
Finally, the court disposed of the defendant’s motion to
suppress without much comment. While it is proper to give great
deference to the trial justice’s findings of historical fact, step two
of the analysis requires a de novo review of the voluntariness
issue.84 Yet, in Perez, the court appeard to rely entirely on the
76. FED. R. EVID. 615.
77. R.I. R. EVID. 615 (stating “At the request of a party the court may
order witnesses excluded so that they may not hear the testimony of other
witnesses”) (emphasis added).
78. 882 A.2d at 582-84.
79. R.I. SUP. R. CRIM. P. 16 (comment); See also State v. Coelho, 454 A.2d
241, 244 (R.I. 1983).
80. R.I. SUP. R. CRIM. P. 16 (comment).
81. 882 A.2d at 585.
82. Id. at 585 n.17.
83. If nondisclosure is found to be a deliberate act of misconduct, a new
trial should be granted “without inquiry into the degree of harm produced by
the misconduct.” Id. (quoting State v. Garcia, 643 A.2d 180, 187 (R.I. 1994)).
84. Id. at 589.
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842 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:833
trial justice’s examination of the totality of the circumstances in
reaching its conclusion.85 In addition, the court noted that “[a]
valid waiver of Miranda rights cannot be presumed from the . . .
fact that the accused has actually made a confession or a
statement.”86 But, in Perez the court seemed to make this
forbidden presumption. However, as the court pointed out,
because the defendant’s statements were merely cumulative
evidence, even if his Miranda rights had been violated, the
decision to admit the statements amounted to harmless error.87
CONCLUSION
Although Perez did not significantly depart from existing law,
a close examination of the court’s ruling reveals some interesting
questions and leaves open the possibility that, had a few critical
factors been absent, the outcome may have been quite different.
For example, had Dr. Kelly’s presence not been essential to the
prosecution’s case, would the substitution of the word “may” in
Rule 615 of the Rhode Island Rules of Evidence88 in place of the
word “shall” in the Federal Rules of Evidence89 have been
significant?
Further, had the trial justice and the court
thoroughly
investigated
the
prosecution’s
reasons
for
nondisclosure, would the scope of Dr. Kelly’s testimony have been
narrowed? If so, would this have materially altered the outcome
of the case? Finally, what if Victor’s statements were not merely
cumulative evidence? Should those statements still have been
admitted? The court declined to comment on these issues.
Christina Middleton Senno
85.
86.
87.
88.
89.
See id.
Id. (citing State v. Amado, 424 A.2d 1057, 1062 (R.I. 1981)).
Id. at 590.
R.I. R. EVID. 615.
FED. R. EVID. 615.
IN RE TAVARES
5/15/2006 7:37 PM
Criminal Law. In re Tavares, 885 A.2d 139 (R.I. 2005). The
forensic commitment of a criminal defendant found incompetent to
stand trial pursuant to Rhode Island General Law §§ 40.1-5.3-1 to
40.1-5.3-18 (the forensic statutes) may be continued by the court
even after competency has been restored. The court affirmed the
lower court’s decision, which had continued the criminal
defendant’s commitment throughout trial, despite the literal
reading of the forensic statutes that the defendant “shall” be
released once found competent.
FACTS AND TRAVEL
On November 10, 2001, twenty-one year old Anthony Tavares
was arrested for the murder of his social worker and substance
abuse counselor, Glen Hayes.1 The court observed that Tavares’
entire life had been affected by mental illness.2 His family history
included an abusive sister, who suffered from mental illness
herself, and a schizophrenic father, who was incarcerated for
murdering a man with an ice pick.3 Tavares began to show signs
of mental illness at the early age of four.4 By six, he was admitted
into his first psychiatric treatment program, and by first grade he
was expelled from mainstream education.5 During childhood he
was continuously shuffled between special schools, residential
care facilities, juvenile detention facilities, and hospitals.6 He was
diagnosed with attention deficit hyperactivity disorder, but he did
not take the prescribed medication, and by eleven he was suffering
from paranoid and delusional symptoms.7 His teenage years
included acts of assault, arson, suicide attempts, violent threats to
kill, and several psychiatric hospitalizations.8 By nineteen, he
1.
2.
3.
4.
5.
6.
7.
8.
In re Tavares, 885 A.2d 139, 141 (R.I. 2005).
See id. at 143.
Id.
Id.
Id.
Id.
Id.
Id.
843
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844 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:843
was diagnosed with schizophrenia; in early 2000, he was
involuntarily hospitalized due to audio and visual hallucinations.9
His condition improved with medication and he was released with
a diagnosis of chronic paranoid schizophrenia.10 A year later, he
was once again hospitalized for having hallucinations. Again
medication improved his symptoms and he was discharged.11
In the weeks preceding the murder of Glen Hayes, Tavares
had stopped taking his medication and his mental health was
notably declining.12 On November 9, 2001, Glen Hayes and Victor
Moniz, two mental health professionals from Johnston Mental
Health Services, visited Tavares at his mother’s apartment in
Cranston, where Tavares lived.13 Tavares took his medication
from the two men and told them that he only took the pills when
he felt he needed to.14 In the apartment the conversation became
increasingly bizarre and Hayes and Moniz got up to leave.15 At
this point Tavares jumped up, shouted “where do you think you’re
going?” and stabbed Hayes just above the eyebrow with an eightinch serrated knife.16 The knife was lodged seven inches into
Hayes skull, and he died from the wound.17 Tavares’ mother
rushed in and began screaming, allowing Moniz to run away and
call 911 for help.18
Initially held without bail at the Adult Correctional
Institution (ACI), Tavares was soon placed in a psychiatric cell for
having religious and paranoid hallucinations.19 On November 14,
9. Id. These hallucinations included animals killing each other,
paranoia, and a belief that the devil was stalking him. Id.
10. Id.
11. Id. Tavares had reported to his doctor that the television was talking
to him, that he knew how to clone people, and that people were trying to
genetically alter him. He also told another doctor that he “was being raped
and mugged by God, the mob and doctors,” that “the devil invaded his body,”
and that his thoughts and feelings were being reported over the radio. Id.
12. Id. at 143-44.
13. Id. at 141-42.
14. Id. at 142.
15. Id.
16. Id.
17. Id. at 142 n.3.
18. Id. at 142.
19. Id. at 144. Tavares claimed to be possessed by the devil, that the
government had taken and killed his child on Halloween, that the child was
replaced with an exact opposite or duplicate, and that he talked to Carl Jung
through osmosis. Id.
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2001, Dr. Barry Wall evaluated Tavares and reported that he was
incompetent to stand trial.20 Tavares was committed to the
custody of the Department of Mental Health, Retardation and
Hospitals (MHRH), and was immediately transferred to the
forensic unit at Eleanor Slater Hospital (ESH).21 Upon arrival to
ESH, Tavares assaulted a social worker and was subsequently put
on a four-point physical restraint and chemical restraints.22
Tavares continued to refuse medication and on November 16,
2001, Dr. Mustafa Surti successfully petitioned the court for
instructions to treat Tavares with psychotropic drugs without his
consent.23 Under this treatment, Tavares’ condition improved.24
Although he still saw hallucinations, he was no longer acting upon
them.25 The lower court accepted a stipulation by the parties that
Tavares was competent, on the condition that his commitment
would continue throughout trial.26 MHRH objected to Tavares
being continuously hospitalized at ESH, claiming the forensic
statute demanded his release from commitment.27 A hearing
justice later held that although competent, Tavares needed to stay
at ESH throughout the trial so as to maintain competency.28
MHRH appealed claiming that once the hearing justice
determined Tavares was competent to stand trial, he should have
been statutorily released from ESH.29 Notably, Tavares was
subsequently found not guilty by reason of insanity at his trial for
the murder of Glen Hayes.30
ANALYSIS AND HOLDING
On appeal to the Rhode Island Supreme Court, MHRH argued
that section 40.1-5.3-3 (i)(3)(i) of the forensic statutes foreclosed
discretion of the hearing justice to order Tavares, as a competent
defendant, to remain committed during trial, especially in light of
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
Id.
Id.
Id.
Id.
Id. at 145.
Id.
Id.
Id.
Id.
Id. at 145-46.
Id. at 146.
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846 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:843
the legislature’s use of the words “shall terminate.”31 The court
held that the legislative intent and purpose of the statute
supported the interpretation that discretion was necessary on the
part of the hearing justice to extend commitment.32
Mootness
Because Tavares’ murder proceeding had carried forward and
he was found not guilty by reason of insanity by the time the
Rhode Island Supreme Court reviewed the issue, and he was
committed to the custody of MHRH under a different provision of
the forensic statute, the statutory question became moot.33
Despite the normal rule that deciding moot questions is not the
role of the court, the Rhode Island Supreme Court chose to review
the issue because it was a question of “great public importance
that, although technically moot, [was] capable of repetition yet
evading [their] review.”34
Holistic and Purposeful Statutory Construction
The court emphasized that in statutory construction, the
court’s ultimate goal was “to give effect to the purpose of the act as
Furthermore, statutory
intended by the legislature.”35
construction was a “holistic enterprise” and when the language
was clear and unambiguous, the court would adopt the plain and
ordinary meaning.36 However, they would not interpret a statute
literally if it led to an “absurd result” that was at odds with the
legislative purpose.37
The disputed provision, “Competency to Stand Trial” § 40.15.3-3, provides that a commitment shall terminate when the court
determines that the committed defendant is competent.38 The
court determined that the legislative scheme was remedial in
31. Id. at 145-46 (quoting R.I. GEN. LAWS § 40.1-5.3-3(i)(3)(i) (2005)).
32. Id. at 151.
33. Id. at 146.
34. Id. at 147.
35. Id. at 146 (quoting Oliviera v. Lombardi, 794 A.2d 453, 457 (R.I.
2002)).
36. Id. (quoting Park v. Ford Motor Co., 844 A.2d 687, 692 (R.I. 2004)).
37. Id. (quoting Ellis v. R.I. Public Transit Authority, 586 A.2d 1055,
1057 (R.I. 1991)).
38. Id. at 148 (quoting R.I. GEN. LAWS § 40.1-5.3-3(i)(3) (2005)).
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nature and construed the statute liberally to effectuate that
purpose.39
Legislative Intent is to Try Competent Defendants
Based on its holistic and purposeful approach, the court
determined that the word “shall” did not prevent the court from
exercising its discretion and extending commitment despite the
occurrence of competency.40 Revisiting the whole scheme of
forensic commitment, the court reasoned that generally the
provisions sought to govern the relationship of individuals who
were committed under the care of MHRH, to ensure those
individuals were provided “general rights,” including the right to
necessary and appropriate treatment, based on their particular
needs.41 MHRH argued that the statute also sought to prevent a
drain on the department’s resources; however, the court found
that was only an incidental benefit to the paramount goal of
protecting the criminal defendant’s rights.42 The court reasoned
that the statutes had a dual purpose in balancing the interests of
a criminal defendant to be competent during trial (and not be
indefinitely detained) with the public’s interest in prosecuting
crimes.43 The court determined that the intent of the legislature
was to restore defendant’s competency so that he could be tried.44
Competency throughout Trial
Despite the clear and unambiguous language of the statute,
the court reasoned that competency is more than a momentary
condition, and there is a judicial responsibility to ensure that the
defendant is competent throughout trial.45 The court found this
concept to be supported by §40.1-5.3-3(a)(2), which defines
competency as a mental condition, that is, the ability of the
criminal defendant to understand “the character and
consequences of the proceedings against him or her” and an ability
39.
40.
41.
42.
43.
44.
45.
Id. at 146.
Id. at 151.
Id. at 149.
Id.
See id. at 149.
Id.
Id. at 149-50.
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to properly assist in the defense.46
The court emphasized the importance of the judge’s role in
The
determining and ensuring a defendant’s competency.47
forensic statutes grant the court the authority to raise the issue of
competency at any time throughout trial and give the judge the
final determination about the defendant’s condition.48 The court
stated that competency is a legal condition, not a medical
condition, and although the judge may rely heavily on the advice
from medical health professionals, the final determination of
competency belongs to the court.49 Furthermore, because the
court can raise its own motion to question the defendant’s
competency at any point throughout the trial, judicial discretion is
already a necessary and integral part of determining
Tavares’ competency was fleeting and was
competency.50
dependent upon the special treatment he received at ESH.51 If he
was remanded to the ACI, where he would no longer receive
special treatment and would probably again refuse his medication,
he could have begun to rapidly decompensate.52 Dr. Surti noted
that Tavares’ condition would not simply have declined to his
prior state of incompetence, but Tavares could have suffered a
worse decline and medication would likely have been unable to
restore any competency at all.53 The court found that such a
result would be unfair to all and possibly raise serious due process
concerns for Tavares.54
A literal reading would also prevent the court from being
proactive, especially when competency was obviously fleeting, and
would instead require the much more difficult task of determining
when the defendant had actually lost competency again during the
proceeding.55 Once competency had been lost, the court would
either have had to grant a new trial, or allow the first trial to
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
Id. at 149.
Id. at 150.
Id.
Id.
Id.
Id. at 151.
Id. at 149.
Id.
Id. at 151.
Id.
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simply pause until competency was restored.56 The court stated
that either situation would threaten the “economy of justice and
waste the resources of the parties, the courts, and ESH alike.”57
Furthermore, allowing the court to ignore legitimate concerns
regarding a defendant’s competency would frustrate the remedial
goals of the forensic statutes.58 Allowing Tavares to decompensate
to such a degree that he would be unable to retain his competency
at all would mean that the prosecution would be unable to proceed
to trial.59 Such a result would have been absurd because the state,
Tavares, and the family of Glen Hayes each had an interest in
seeing Tavares tried.60 Preventing the hearing justice from taking
steps to ensure the competency of a defendant throughout trial
would be manifestly unfair to Tavares, the people of the state, and
to the victim’s family.61
COMMENTARY
The practical need for flexibility in situations dealing with a
criminal defendant’s fleeting competency mandate the rejection of
the MHRH’s formalistic and strict approach. A literal reading
that would essentially terminate the special treatment Tavares
was receiving under MHRH custody could potentially have caused
more damage to the defendant, and therefore would have raised
serious due process concerns. This is readily apparent because
Tavares, a chronic paranoid schizophrenic who refused his
medication, was competent solely by order of the court, which
allowed his medication to be administered without consent. It was
more than likely that he would not have taken his medication once
removed from MHRH’s custody and it was questionable whether
his competency could be restored afterwards. MHRH’s desire to
terminate their custody of Tavares would have been short-lived,
because if Tavares once again became incompetent, he would still
have been committed to the care of MHRH; but then he would be
more difficult to manage because restoration might not have been
56.
57.
58.
59.
60.
61.
Id.
Id.
Id.
See id.
Id.
Id.
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possible.
The court’s recognition that the strict language of the statute
was intended to protect a criminal defendant from potentially
indefinite detention without trial does little to actually provide
guidelines for when this power should be properly exercised. A
rule allowing courts to extend forensic commitment of a competent
defendant may have far-reaching consequences if the rule is not
narrowly applied to proper cases.62 The benefits of extending
commitment for a defendant would be that he would continue to
receive medical treatment during his trial proceeding; however,
such commitment may also prevent him from being released on
bail, and subject him to unwanted treatment and chemical
restraints.
With proper guidelines to help lower courts determine when it
is appropriate to exercise this discretion, the legislative dual
purposes of concern for defendants’ rights and the public’s interest
in prosecution would be realized. The court claims that the power
to extend commitment is justified if a mentally fragile defendant
is likely to decompensate during trial.63 This does not afford very
much protection against the government to the newly competent
criminal defendant. Although the court correctly states that
competency is a legal condition to be decided by the judge at his
discretion, the court overlooks the fact that the determination of
whether such competency is “fleeting” and likely to decline during
trial is not a traditional part of the province of a judicial
determination of competency.64
Here, Tavares had murdered his social worker, unprovoked
and based entirely on his delusional thinking.65 Tavares’ behavior
prior to the act, apart from a few strange comments, indicated
nothing to those around him, and as such, the murder was
essentially an unpredictable act.66 Tavares continued to attack
others while in custody and it was because of the fear of this
violent and unpredictable behavior that the court ordered forced
treatment.67 It would be overly risky, bordering on recklessness,
62.
63.
64.
65.
66.
67.
See id. at 151.
See id. at 150.
See id.
Id. at 142.
See id. at 141-42.
Id. at 144.
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to allow an already unpredictable murderer the opportunity to fall
deeper into delusion and wait until someone else is harmed.
Therefore, the degree of dangerousness is an important factor in
determining the need to extend the commitment of a criminal
defendant after competency has been restored.
The court also noted Tavares’ long history of mental illness
and that his particular illness, chronic paranoid schizophrenia,
required constant treatment.68 It was significant that Tavares
could not live in society without treatment and medication, and he
was wholly dependent upon this treatment to maintain
competency. This is an important policy concern because as
medical
advancements
improve,
previously
incompetent
defendants are going to be afforded the opportunity to be
competent through medication and treatment. Therefore, the
severity of the defendant’s illness and the ability of the defendant
to live in society are also important factors in determining the
need for court extension of commitment.
Additionally, the court focused on the circumstances
surrounding Tavares’ restored competency and the likelihood that
he would decompensate during the trial.69 Because Tavares
continually refused his medication, the court had ordered his
treatment without his consent.70 It was only because of this
treatment that he was deemed competent enough for the criminal
proceedings to carry forward; the doctors admitted that once the
medication stopped being administered, his competency would
decline and once again he would be at the mercy of his delusions
and paranoia.71 Tavares was incapable of being responsible
enough to take his medicine. Therefore, the defendant’s ability to
maintain his own competency by taking medication and getting
treatment outside of being in direct custody of MHRH, may also be
a significant factor in determining whether extending
commitment is necessary.
By emphasizing the duty on the hearing justice to ensure that
the criminal defendant remains competent, the court protects the
due process rights of defendants to be competent during trial, and
68.
69.
70.
71.
See id. at 143-46.
Id. at 144-46.
Id. at 144.
Id.
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852 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:843
prevents having to recommit them again at a later time. Allowing
judicial discretion to extend forensic commitment prevented
Tavares from becoming permanently incompetent, saved him from
being inhumanely subjected to the mercy of his paranoid delusions
and hallucinations, provided closure for the victim’s family, and
gave the state the opportunity to prosecute Hayes’ murder. The
literal construction of the statute would have caused so much
damage that the court had no other choice but to permit
flexibility, with the hope that the lower courts would not at a later
time abuse their discretion.
CONCLUSION
The Rhode Island Supreme Court held that a hearing justice
has discretion to extend the commitment of a criminal defendant
under the forensic statutes, §§ 40.1-5.3-1 to 40.1-5.3-18, despite a
finding that the criminal defendant is competent to stand trial.72
In this case, the hearing justice properly extended the
commitment of the criminal defendant in the custody of MHRH, to
ensure his competency would last throughout the entire trial
proceeding.73
Hinna Mirza Upal
72.
73.
Id. at 151.
Id.
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Criminal Procedure. Raso v. Wall, 884 A.2d 391 (R.I. 2005).
In a case of first impression, the Rhode Island Supreme Court
held that the doctrine of laches (unreasonable delay in pursuing a
claim) could apply as an affirmative state defense to an
application for postconviction relief.
FACTS AND TRAVEL
On September 19, 1973, after three days of trial, Edward
Raso pled guilty to kidnapping and as an accessory before the fact
to rape, sodomy, and robbery, as related to an incident that
involved the kidnapping and rape of a teenaged girl on August 15,
1972.1 During the subsequent sentencing hearing on November
28, 1973, Raso attempted to make an oral motion to withdraw his
guilty plea.2 Raso claimed that “at the time he pleaded guilty ‘[he]
didn’t get too much sleep and [he] didn’t understand it’ . . . [and]
that he desired ‘another chance to have a trial by [j]ury.’’’3 After
hearing from Raso, the trial court instructed him that his attorney
would need to file a motion and only then would he get a hearing
on the issue of withdrawal; the court then proceeded, over
counsel’s request for a continuance of the sentencing hearing, to
sentence Raso to twenty-eight years for kidnapping and
concurrent sentences of thirty-five years each for each of the other
charges.4
Twenty-eight years later, Raso filed an appeal with the Rhode
Island Superior Court for postconviction relief,5 requesting either
1. Raso v. Wall, 884 A.2d 391, 392 (R.I. 2005).
2. Id.
3. Id.
4. Id.
5. Id. at 393. Raso filed his application for post-conviction relief
pursuant to Rhode Island General Law §§ 10-9.1-1 through 10-9.1-9, which
allows for post-conviction relief for: convictions or sentences that are violative
of the United States Constitution; convictions made by a court without
jurisdiction to impose the sentence; convictions that exceed or are otherwise
not in accordance with the maximum authorized sentence; convictions in
instances when evidence of new material facts that require vacation of the
prior conviction come to light; cases when the defendant’s sentence has
expired or parole or probation been unlawfully revoked; and for convictions
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that his guilty plea be vacated, or, alternatively, that specific
performance
of
the
prosecution’s
original
sentencing
recommendation be ordered.6 Raso’s argument that the trial
justice had abused her discretion in not allowing him to withdraw
his guilty plea was denied; the court chose “not to reach the issue
of whether the state’s assertion of the doctrine of laches”
prevented Raso’s application for relief altogether.7 On appeal to
the Rhode Island Supreme Court, Raso again argued that the trial
justice erred in refusing to hear his motion to withdraw his guilty
plea prior to sentencing him, basing his argument on Rule 32(d) of
the Superior Court Rules of Criminal Procedure.8 Raso also
argued that the Superior Court erred in denying his application
for postconviction relief based entirely on the ground of laches.9
ANALYSIS AND HOLDING
The Rhode Island Supreme Court held that the affirmative
defense of laches may be properly invoked by the state against
defendants praying for postconviction relief.10 The court held that
although an application for postconviction relief may indeed be
made at anytime, that “to read ‘at anytime’ as constituting a
limitless ‘Open Sesame’” would be absurd and that rather, the
statutory term means “at any reasonable time.”11 The court
adopted the criteria from its prior application of laches in civil
cases that require “a showing of ‘negligence to assert a known
right, seasonably coupled with prejudice to an adverse party,’”12 in
light of the circumstances of the particular facts of the case at
issue.13 The court then remanded the case to the Rhode Island
Superior Court so that the necessary factual findings and
conclusions of law could be made as to the laches issue.14
that are subject to collateral attack. Id. at 393 n.2 (quoting R.I. GEN. LAWS §§
10-9.1-1 through 10-9.1-9(2000)).
6. Id. at 393.
7. Id.
8. Id. at 394 (citing R.I. SUP. R. CRIM. P. 32(D))
9. Id.
10. Id.
11. Id. at 395.
12. Id. (quoting Rodrigues v. Santos, 466 A.2d 306, 311 (R.I. 1983)).
13. Id. at 396.
14. Id.
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COMMENTARY
In this case, the Rhode Island Supreme Court follows some
other jurisdictions that allow for the application of laches in
criminal cases.15 In cases such as this one, the trial court on
remand will face a weighty balance of interests. It will have to
choose between an individual defendant’s right to seek potentially
legitimate postconviction relief, of the utmost importance at any
time to the individual, and the state’s right not to be forced to
retry such a stale case.
CONCLUSION
The Rhode Island Supreme Court held that the affirmative
defense of laches, or unreasonable delay, may be used in cases
involving application for postconviction relief.16
Esme Noelle DeVault
15. See, e.g., Robbins v. People, 107 P.3d 384 (Co. 2005); Wright v. State,
711 So.2d 66 (Fla. Dist. Ct. App. 1998); Walker v. State, 769 N.E.2d 1162
(Ind. Ct. App. 2002).
16. 889 A.2d at 394-96.
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Disability/Insurance Law. Marques v. Harvard Pilgrim
Healthcare of New England, 883 A.2d 742 (R.I. 2005). Insurance
companies are considered a “place of public accommodation” under
the meaning of the American with Disabilities Act (ADA), which
the Rhode Island Supreme Court held was not limited to physical
structures. Additionally, the court held that the ADA “specifically
relates” to the business of insurance, which subsequently resulted
in the McCarran-Ferguson Act being inapplicable to insurance
coverage cases in Rhode Island. As such, insurance companies are
subject to the restrictions of the ADA until it can be shown that a
decision to deny coverage was based on either sound actuarial
principles or reasonably anticipated experience, which would place
the insurance company under the safe harbor provision of the
ADA.
FACTS AND TRAVEL
In August, 1995, Thomas Seymour requested and received an
application for health-care coverage from Harvard Pilgrim
Healthcare of New England, Inc. (HPHC-NE), which he submitted
to HPHC-NE later that same month.1 A determination was made
by the HPHC-NE underwriting department that the application
was incomplete; as a result, HPHC-NE promptly returned the
application to Mr. Seymour requesting the missing information.2
On September 30, 1995, HPHC-NE notified Mr. Seymour that in
order to proceed with the application process, Mr. Seymour would
have to submit a completed application within two weeks.3 Due to
Mr. Seymour’s failure to comply with this deadline, HPHC-NE
voided the partial application on October 15, 1995.4
In December 1995, the Rhode Island Department of Human
Services (DHS) issued a “Ten-Day Notice” to Mr. Seymour due to
his failure to cooperate with the terms of his Medicaid benefits,
1. Marques v. Harvard Pilgrim Healthcare of New England, 883 A.2d
742, 744 (R.I. 2005).
2. Id. at 744.
3. Id.
4. Id.
857
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which required him to notify the DHS regarding any change in his
financial status.5 The notice allowed him the opportunity to
appeal the termination of his Medicaid benefits through a hearing;
Mr. Seymour, however, did not request such a hearing.6 As a
result of his noncompliance, Mr. Seymour’s Medicaid benefits
were terminated as of December 26, 1995.7
On February 12, 1996, Mr. Seymour contacted HPHC-NE to
inquire about his original application for insurance coverage from
August, 1995.8 At this time, Mr. Seymour was informed that due
to his failure to provide a complete application in 1995, he would
now need to restart the application process, the first step of which
would be to submit a completed application.9 Mr. Seymour
complied with this process and resubmitted an application, which
was denied because “he did not meet [HPHC-NE’s] eligibility
guidelines.”10 HPHC-NE determined that as a result of Mr.
Seymour’s Arthrogryposis and Crohn’s Disease, he “presented an
unacceptably high risk of loss.”11 This denial prompted Mr.
Seymour to file a complaint with the Department of Business
Regulation (DBR), which subsequently contacted HPHC-NE and
ultimately resulted in the DBR being appointed as rehabilitator of
HPHC-NE12 under the “Insurers’ Rehabilitation and Liquidation
Act.”13 Due to the imminent liquidation of HPHC-NE, the
Superior Court enjoined further action regarding Mr. Seymour’s
discrimination claim.14 Mr. Seymour subsequently filed a petition
with the Superior Court claiming the denial of his appeal violated
not only his constitutional rights, but also his civil rights; the
liquidator filed a cross-motion for summary judgment.15 The
Superior Court granted summary judgment to the liquidator; Mr
Seymour appealed to the Rhode Island Supreme Court.16
5. Id. at 744-45 & n.6.
6. Id. at 744-45.
7. Id. at 745.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. R.I. GEN. LAWS § 27-14.3 (2000).
14. 883 A.2d at 746.
15. Id.
16. Id.
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ANALYSIS AND HOLDING
The Rhode Island Supreme Court held that: (1) with respect
to the facts of this case, Rhode Island General Law § 27-41-4217
(subsequently repealed) was superseded by Title III of the
American with Disabilities Act (ADA);18 (2) an insurance company
is a “place of public accommodation” within the meaning of the
ADA;19 and (3) Mr. Seymour had established a prima facie case
under the ADA.20
Place of Public Accommodation
The court begins the analysis of whether HPHC-NE is a
“place of public accommodation” by pointing out that an
“insurance office” is specifically listed in 42 U.S.C. § 12181(7) as a
public accommodation under the meaning of Title III of the ADA.21
The court looked to precedent and pointed out that the term
“public accommodation” need not be limited to physical places.22
Additionally, the First Circuit, in ruling that public
accommodations should not be limited to physical structures, also
noted that many service establishments which choose to conduct
business by phone or mail are unlikely to maintain a building
which the public may enter.23 The Rhode Island Supreme Court
adopted the First Circuit ruling that “public accommodation”
should not be limited physical structures.24
Denial on Basis of Disability
The court next looked to whether Mr. Seymour was in fact
denied services by HPHC-NE on the basis of his disability.25 Due
to HPHC-NE’s concession that Mr. Seymour was denied insurance
coverage because, as an individual who suffered from
17. R.I. GEN. LAWS § 27- 41- 42(2003).
18. 42 U.S.C. § 12181(7) (2000).
19. 883 A.2d at 748-49.
20. Id. at 749-50.
21. Id. at 748 (citing 42 U.S.C. §12181(7)(2000)).
22. Id. at 749 (citing Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s
Ass’n of New England, Inc., 37 F.3d 12, 15, 19 (1st Cir. 1994)).
23. Id. (citing Carparts, 37 F.3d at 19).
24. Id.
25. Id.
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Arthrogryposis and Crohn’s Disease, his application created an
unacceptably high risk, the court determined that it was in fact
Mr. Seymour’s disabilities which cost him the opportunity to
obtain insurance coverage from HPHC-NE.26
Applicability of the ADA
The court then turned its analysis to whether HPHC-NE fell
under the “safe harbor” provision found in § 501(c) of Title V of the
ADA.27 If certain conditions are met, the “safe harbor” provision
specifically excludes insurance underwriters from Title I through
III of the ADA.28 The “safe harbor” provision also provides a
“subterfuge clause,” which prohibits the use of the safe harbor
provision to purposefully evade Titles I through III of the ADA by
insurance providers.29 If an insurance company can show that a
decision was based on either “sound actuarial principles or
reasonably anticipated experience,” then it is subsequently
sheltered from the reach of the ADA and can take pre-existing
conditions and disabilities into consideration.30 The court then
shifted the burden of proof to HPHC-NE, due to HPHC-NE’s
ability to access pertinent information regarding its own denial of
coverage to Mr. Seymour, and the difficulty that Mr. Seymour
would likely meet in attaining this information.31 HPHC-NE
therefore had the burden of showing that it denied Mr. Seymour
for either “sound actuarial principles or reasonably anticipated
experience.”32 If HPHC-NE was successful in this showing, then
Mr. Seymour would bear the burden of proving that HPHC-NE’s
reasons for denial were “in fact a subterfuge to evade the purposes
of Title III of the ADA.”33
The majority then turned its discussion to the “decision tree”
used by HPHC-NE to make the ultimate eligibility determination
26. Id.
27. Id. at 750.
28. Id.
29. Id. at 750 n.17 (citing 42 U.S.C. § 12202(c)(2000)).
30. Id. at 750 (citing Doukas v. Metro. Life Ins. Co., 950 F.Supp. 422, 429
(D.N.H. 1996)).
31. Id. at 750-51.
32. Id. at 751 (citing Doukas, 750 F.Supp. at 429).
33. Id. at 751 n.7, 752 n.8 (citing Nicolae v. Miriam Hosp., 847 A.2d 856
(R.I. 2004)).
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in Mr. Seymour’s case.34 The decision tree, titled “Decision Tree
for Rhode Island Pre-Existing Condition Legislation,” is a
flowchart which guides the underwriters in the decision making
process.35 Because Mr. Seymour suffered from a pre-existing
condition and did not have continuous coverage for the twelve
months preceding the application, HPHC-NE guidelines allowed
the underwriter to deny or limit the coverage.36 Here, coverage
was denied altogether; the court reasoned that because HPHC-NE
failed to put forward specific evidence to justify the complete
denial of coverage to Mr. Seymour, summary judgment should not
have been granted in favor of HPHC-NE.37
The court concluded that HPHC-NE had not satisfied the
burden of proving that its decision to completely deny Mr.
Seymour insurance coverage was based on either “sound actuarial
principles or was related to HPHC-NE’s actual or reasonably
Without having made the above
anticipated experience.”38
showing, HPHC-NE had yet to establish that it fell under the
“safe harbor” provision of the ADA and, thus, it could be subjected
to Title III.39 The court ultimately held that unless HPHC-NE
met the above burden, Mr. Seymour had established a prima facie
case under the ADA.40 The court remanded to the Superior Court
where HPHC-NE will be given the opportunity to show that its
decision was based either on “sound actuarial principles or
reasonably anticipated experience.”41
Dissent – Justice Robinson
Justice Robinson argued in his dissent that the McCarranFerguson Act rendered the ADA inapplicable to Mr. Seymour’s
case.42 He stated: “(1) that Congress has spoken quite definitively
in the McCarran-Ferguson Act; (2) that said Act bars the
application of the ADA to insurance coverage cases like this one;
34.
35.
36.
37.
38.
39.
40.
41.
42.
Id. at 751-52.
Id. at 751.
Id. at 752.
Id.
See id. at 752.
Id. at 750-52.
Id. at 752.
Id.
Id. at 753.
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and (3) that there is no legally defensible way to circumvent that
clear congressional directive.” The McCarran-Ferguson Act reads
in pertinent part: “No Act of Congress shall be construed to
invalidate, impair, or supersede any law enacted by any State for
the purpose of regulating the business of insurance . . . unless
such Act specifically relates to the business of insurance . . . .”43
Justice Robinson pointed to case law which set the precedent that
“federal laws should not be construed to supersede state laws
‘regulating the business of insurance.’”44
Justice Robinson argued that there was a presumption that
Congress left the regulation of the business of insurance to the
states and that the McCarran-Ferguson Act is a strong example of
this presumption.45 Therefore, unless the federal law “specifically
relates” to the business of insurance, regulation of such businesses
is to be left to the state.46 Justice Robinson further contended
that, due to the particularly wide scope of issues covered by the
ADA, it cannot be said to “specifically relate” to the business of
insurance.47 Therefore, he stated that the McCarran-Ferguson
Act renders the ADA inapplicable to insurance coverage issues
such as the one presented here.48 Although Justice Robinson
conceded that there was some mention of insurance in the ADA,
he stated that the law was in fact “general” and unlikely to be
“read as relating specifically to the business of insurance.”49 Due
to the reverse preemptive effect made possible by the McCarranFerguson Act, when a federal statute is “general in character,” the
ADA is inapplicable to issues of insurance coverage.50
Regarding the “safe harbor” language in the ADA, Justice
Robinson argued that it in fact offers protection to the traditional
practices of the insurance industry.51 This being said, the
provision does not constitute an attempt to specifically regulate
43. 15 U.S.C. § 1012 (b)(2000).
44. 883 A.2d at 754 (citing Metro. Life Ins. Co. v. Massachusetts, 471
U.S. 724, 736 (1985) (quoting 15 U.S.C. § 1012(b)(2000))).
45. Id.
46. Id.
47. Id. at 755.
48. Id.
49. Id.
50. See id.
51. Id.
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the business of insurance.52 In fact, as Justice Robinson pointed
out, the purpose of the safe harbor provision appeard to be to
protect the insurance industry from the scope of the ADA, not to
subject it to specific regulation.53 In his conclusion, Justice
Robinson reiterated his belief that the McCarran-Ferguson Act
was a clear congressional statute that plainly precluding
application of the ADA to insurance coverage cases.54
COMMENTARY
The major disagreement between the dissent and the majority
was whether the ADA specifically related to the business of
insurance. The majority opinion argued that the ADA does
specifically relate to the business of insurance because it “contains
two fundamental provisions that specifically relate to the business
of insurance.”55 Conversely, Justice Robinson pointed out in his
dissent that the ADA has a broad focus and thus cannot be
considered to specifically relate to the business of insurance.56
The dissent went on to cite Humana, Inc. v. Forsyth,57 in which
the United States Supreme Court pointed to Section 2(b) of the
McCarran-Ferguson Act, noting that “federal legislation general
in character shall not be ‘construed to invalidate, impair, or
supersede any law enacted by any State for the purpose of
regulating the business of insurance.’”58
Although the ADA, as the majority points out, makes two
references to insurance, Justice Robinson’s argument is not
without merit. In fact, the ADA’s “safe harbor” provision provides
the insurance industry with further insulation from claims under
Title III. The ADA therefore does not appear to regulate the
business of insurance; rather its language provides the industry a
path to circumvent the ADA’s proscription of discrimination. In
addition to the safe harbor provision, the ADA defines an
insurance office as a place of public accommodation under the
52. Id.
53. Id.
54. Id. at 756.
55. Id. at 747 n.13.
56. Id. at 755.
57. 525 U.S. 299, 306 (1999).
58. 883 A.2d at 755 (quoting Humana, Inc. v. Forsyth, 525 U.S. 299, 306
(1999) (citing 15 U.S.C. § 1012(b)(2000))).
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meaning of the ADA.59 It is unlikely that Congress intended this
list of private entities to specifically relate to the business of
insurance. This provision merely points out that an insurance
office is a place of public accommodation; it does not attempt to
regulate the means by which the industry should determine
eligibility for insurance coverage.
The McCarran-Ferguson Act was passed by Congress for the
purpose of leaving the business of regulating the insurance
industry to the states.60 A legislative directive as clear as the
McCarran-Ferguson Act should only be circumvented where there
is no question as to the specific regulation of insurance by the
federal Act. Here, the majority found that the ADA specifically
relates to the business of insurance.61 In so doing, it effectively
took the control of the regulation of the Rhode Island insurance
industry in determining its eligibility requirements away from the
state. Instead, the insurance industry must now satisfy the safe
harbor provision of the ADA in order to make an eligibility
determination involving a pre-existing condition. This appears to
be what Congress sought to avoid by the enactment of the
McCarran-Ferguson Act.
The decision here had the effect of nullifying § 27-41-42 (since
repealed) of the Rhode Island General Laws, which gave insurance
providers the option to deny or limit the coverage offered to
individuals with a pre-existing condition who had failed to
maintain continuous coverage for the twelve months preceding
The majority argued that § 27-41-42
their application.62
effectively denied equal access to health insurance because that
provision had an adverse impact only on those individuals with a
pre-existing condition.63 Ultimately, the majority determined that
application of the ADA was appropriate and, as such, the
insurance company retained the right to show that it made its
denial decision for a valid reason under the safe harbor
provision.64
59. See 42 U.S.C. 12181(7)(2000).
60. Marques, 883 A.2d at 753 n.22 (citing Metro. Life Ins. Co., v.
Massachusetts, 471 U.S. 724 (1985)).
61. Id. at 747 n.13.
62. See R.I. GEN. LAWS § 27-41-42 (repealed 2000).
63. See 883 A.2d at 747 n.13.
64. See id. at 747-50.
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Under the safe harbor provision, the insurance company must
show that its decisions are based on “actuarial data or on the
company’s actual or reasonably anticipated experience relating to
Given the likelihood that insurance
the risk involved.”65
companies have data and experience with the risks involved in
providing coverage to clients with pre-existing conditions, they
will likely satisfy these requirements with ease. As a result, it is
likely that most insurance providers will meet this exception to
the ADA and will continue with their normal course of eligibility
determinations, an outcome which bears a striking resemblance to
the now repealed § 27-41-42 of the Rhode Island General Laws.
CONCLUSION
The Rhode Island Supreme Court held that an insurance
provider falls within the meaning of a public accommodation
under the meaning of the ADA66 and that the ADA specifically
relates to the business of insurance making it applicable to the
present case.67
Kimberly A. Tracey
65. Id. at 750 (citing Doukas v. Metro. Life Ins. Co., 950 F.Supp. 422, 429
(D.N.H. 1996)).
66. Id. at 749.
67. Id. at 747.
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Employment Law. DeCamp v. Dollar Tree Stores, 875 A.2d
13 (R.I. 2005). A gender-based disparate treatment discrimination
claim does not depend upon a prima facie showing of hostile work
environment, and a gender-based hostile work environment claim
does not involve a burden-shifting framework. Additionally, when
the major life activity under consideration to establish a disability
is working itself, the statutory requirement that the disability
“substantially limits” the major life activity requires that the
employee allege she is unable to work in a broad class of jobs. In
the context of work-related depression or anxiety, if an employee’s
doctor states that the employee cannot return to work for that
particular employer, then that fact supports the legal conclusion
that the employee is no longer qualified to do the job and no
accommodation exists to allow her to return to work, which
precludes the employee from establishing a prima facie case of
disability discrimination.
FACTS AND TRAVEL
Plaintiff Maria L. DeCamp was hired by Dollar Tree as a
store manager in May of 2000, and the defendant, Mr. Braz, was
her direct supervisor.1 Braz was a Dollar Tree district manager
and was investigated and counseled in 1999 regarding his
treatment of women.2 In December of 2000, DeCamp sought
medical treatment and was diagnosed with major depression,
which in the opinion of her psychiatrist, was “related to a
demanding, abusive and deteriorating relationship with her
immediate supervisor.”3 DeCamp was treated with therapy and
medication and was cleared to return to work for an employer
other than Dollar Tree on June 14, 2001.4 While in treatment,
DeCamp contacted human resources at Dollar Tree, who
conducted an investigation of Braz, finding some negative
1. DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13, 18 (R.I. 2005).
2. Id. at 17.
3. Id. at 19.
4. Id.
867
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comments regarding his treatment of associates, but nothing
related to mistreatment of females.5 Although the investigation
did not involve treatment of DeCamp specifically, following the
investigation, Braz attended antidiscrimination training.6
DeCamp was granted six weeks of medical leave by Dollar
Tree, during which time her future employment was discussed.7
Plaintiff claimed in her deposition that she suggested different
solutions that would have allowed her to return to work, but she
was informed that her leave would expire on February 2, 2001,
and she would have to return to work for Braz.8 DeCamp followed
her doctor’s instructions and did not return to work; subsequently,
on February 6, 2001, Dollar Tree sent DeCamp a letter stating
that her failure to return to work constituted a voluntary
resignation.9 DeCamp then filed a discrimination claim with the
Rhode Island Commission for Human Rights, and after waiting
the requisite time, filed an employment discrimination suit
against defendants in Superior Court.10 DeCamp alleged that
Braz’s treatment of her met the requirements of gender
discrimination and that Dollar Tree’s decision to terminate her
while on medical leave constituted disability discrimination.11
Defendants’ motions for summary judgment were granted as to all
claims and DeCamp subsequently appealed.12
ANALYSIS AND HOLDING
On appeal, DeCamp argued that the trial justice erred in
granting the defendants’ motions for summary judgment.13 The
Rhode Island Supreme Court reviewed the plaintiff’s case based
on two distinct theories of gender-based employment
discrimination: gender-based disparate treatment and genderbased hostile work environment.14 The court found that the
motion justice made a clear error by blending the tests for
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 19-20.
Id. at 20.
Id.
Id. at 21.
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disparate treatment and hostile work environment.15 The court
stated that the disparate treatment theory does not depend on a
prima facie showing of hostile work environment, and that hostile
work environment claims do not utilize a burden-shifting
framework.16 As a result, the court held that the motion justice
erred by failing to require defendants to offer a legitimate,
nondiscriminatory reason for terminating the plaintiff as is
required to overcome a prima facie showing of gender-based
disparate treatment.17 The court also held that the summary
judgment granted as to the hostile work environment claim was a
reversible error as the plaintiff created a genuine issue of material
fact as to each element of that claim.18
The court next held that summary judgment was correct as to
the disability discrimination claim, finding that if an employee’s
doctor states that the employee cannot return to work for that
particular employer, then that fact alone supports a legal
conclusion that the employee no longer is qualified to do the job
and no accommodation exists to allow her to return to work,
making it impossible to meet the second element of disabilitybased disparate treatment.19
Employment Discrimination in Rhode Island
Employment discrimination in Rhode Island is prohibited by
several statutes.20 The State Fair Employment Practices Act
(FEPA) prohibits employer discrimination based on gender or
disability with respect to “terms, conditions or privileges of
employment.”21 The Civil Rights Act of 1990 (RICRA) provides
that all persons should have the equal benefit of the laws
regardless of sex or disability and defers to FEPA for definitions of
such.22 The Rhode Island Supreme Court has adopted a multitude
of tests that are used to determine employment discrimination,
15.
16.
2002)).
17.
18.
19.
20.
21.
22.
Id. at 21 n.6.
Id. (citing Lewis v. Forest Pharm., Inc., 217 F. Supp. 2d 638 (D. Md.
Id. at 22.
Id. at 24.
Id. at 26.
Id. at 20.
R.I. GEN. LAWS § 28-5-7(1)(i),(ii) (Supp. 2004).
R.I. GEN. LAWS § 42-112-1(a),(d) (Supp. 2004).
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several of which were addressed in by the court in DeCamp.
Gender-Based Disparate Treatment
Gender-based disparate treatment involves a three-step
burden-shifting analysis as established by the United States
Supreme Court in McDonnell Douglas Corp. v. Green. 23 The
plaintiff must establish a prima facie case by showing that: she is
a member of the protected class; she was performing the job at a
level sufficient to rule out inadequate job performance; she
suffered adverse job action by the employer; and that the employer
sought a replacement with equivalent qualifications.24 The second
step requires the employer “offer a legitimate, nondiscriminatory
reason for the adverse employment action,” and the third step
shifts the burden back to the plaintiff to show that the professed
reason is pretext.25 The court characterized the requirements for
a prima facie case as “modest” and stated that the plaintiff, as a
female, was a member of a protected class and was in good
standing prior to the dismissal.26 The court also stated that the
termination was an adverse event regardless of its
characterization as a “voluntary resignation” by the employer, and
that since there was no corporate downsizing, it could be assumed
that the position would be filled with an individual with roughly
equal qualifications.27
More significantly, the court found that the motion justice, in
combining the theories of disparate treatment and hostile work
environment, failed to identify the defendants’ legitimate,
nondiscriminatory reason for the incident.28 In order to overcome
a prima facie finding of disparate treatment, the defendants had
to meet the second requirement of the burden-shifting framework,
which they failed to do.29 The court held that summary judgment
was reversible error and that the case had to be remanded to the
trial court for proper application of the burden-shifting
23. 411 U.S. 792 (1973).
24. DeCamp, 875 A.2d at 21 (citing Smith v. Stratus Computer, Inc., 40
F.3d 11, 15 (1st Cir. 1994)).
25. Id. at 22.
26. Id.
27. Id.
28. Id.
29. Id.
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framework, as a reviewing court cannot search the record for that
reasoning.30
Gender-Based Hostile Work Environment
A claim of gender-based hostile work environment mandates
that the court look at the record as a whole, with regard to the
totality of the circumstances.31 Looking at the record as a whole,
the court stated that the following elements must be met:
(1) the employee is a member of a protected class; (2) the
employee was subjected to unwanted harassment; (3) that
harassment was based upon his or her sex; (4) that the
harassment was sufficiently severe and pervasive so as to
alter the conditions of plaintiff’s employment and create
an abusive work environment; (5) that harassment was
both objectively and subjectively offensive, such that a
reasonable person would find it hostile or abusive and the
victim in fact did perceive it to be so; and (6) that some
basis for employer liability has been established.32
The court found that in DeCamp, the first two elements were
met, as the plaintiff was a member of a protected class and
considered the conduct unwelcome.33 As to the third element, the
court held that although none of the incidents involving Braz and
plaintiff involved express references to gender, Braz’s recorded
past history of treating women poorly was the “nexus between
Braz’s treatment of plaintiff and [the] conclusion that he
mistreated her because of her gender.”34
Next, the court stated that finding an abusive work
environment under the fourth element requires that FEPA and
RICRA are violated when “the workplace is permeated with
discriminatory intimidation, ridicule, and insult . . .
that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
30. Id.
31. Id. at 22 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67
(1986)).
32. Id. at 22-23 (quoting O’Rourke v. City of Providence, 235 F.3d 713,
728 (1st Cir. 2001) (internal citations and quotations omitted)).
33. Id. at 23.
34. Id.
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environment”35 The court observed that at least seven incidents of
direct mistreatment of the plaintiff occurred, ranging from violent
actions to verbally abusive comments; thus a reasonable juror
could find an abusive work environment given these facts.36
Next, the court discussed the fifth element of a hostile work
environment claim: subjective and objective offense.37 The court
stated that this element is based upon all the surrounding
discriminatory incidents including frequency, severity, physical
threats, humiliation, offensive utterances, and whether or not it
all unreasonably interferes with performance of work.38
Objectively, the court stated, conduct such as kicking over a
register and screaming at workers could clearly be considered
offensive by a reasonable person.39 The court also found subjective
evidence in the plaintiff’s tears and depression.40 Finally, the
court reasoned that employer liability could be found through
Dollar Tree’s knowledge of Braz’s mistreatment of employees in
general, and of women in particular, thus satisfying the sixth and
final element.41 The court held that given the factual variances
involved in all of the elements, the plaintiff created a genuine
issue of material fact and thus summary judgment was
improper.42
Disability Discrimination
The court stated that disability discrimination can be
established through the use of the disparate treatment theory and
The court stated that an
its burden-shifting framework.43
employee must first prove a prima facie case of disability
discrimination by showing that: he or she was disabled within the
meaning of FEPA and RICRA; that the employee was qualified, or
35. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(internal quotations omitted)).
36. See id. at 23-24.
37. Id. at 24.
38. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998)).
39. Id.
40. Id.
41. Id.
42. Id.
43. Id. at 24-25 (citing Equal Employment Opportunity Comm’n v.
Amego, Inc., 110 F.3d 135, 141 n.2 (1st Cir. 1997)).
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stated differently, that with or without reasonable accommodation
was able to perform the essential functions of the job; and that the
discharge was in whole or in part a result of the disability.44 If a
prima facie case is established, the employer must rebut with a
legitimate nondiscriminatory reason for discharge, at which time
the employee must respond with proof that the reason offered by
the employer is pretext.45 The court held that, in DeCamp, the
plaintiff failed to meet the elements required to establish a prima
facie case of disability discrimination.46
The court noted that disability is defined as “any physical or
mental impairment which substantially limits one or more major
life activities.”47 As extrapolated from FEPA and RICRA, major
life activities include “functions such as caring for one’s self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.”48 The court held that although
depression qualifies as a mental impairment49 the plaintiff’s
injury did not substantially limit major life activities.50 The
plaintiff had claimed that the major life activity in question was
her ability to work, and the court held that, in such a case, the
phrase “substantially limits” requires at minimum an inability to
work a broad class of jobs.51 Thus, when the major life activity
that is substantially limited is work, a conflict between an
employee and a supervisor, “even one that triggers the employee’s
depression[,] is not enough to establish that the employee is
disabled, so long as the employee could still perform the job under
a different supervisor.”52 The court pointed out that much of the
plaintiff’s testimony showed that her condition prevented her from
working for Braz, but not from working in general; the plaintiff in
44. Id. at 25 (citing Equal Employment Opportunity Comm’n, 110 F.3d at
141 n.2).
45. Id. at 25 (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3
(2003)).
46. Id. at 25-26.
47. Id. at 25.
48. Id.
49. Id. at 25 (citing Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 20
(1st Cir. 2004)).
50. Id.
51. Id. (citing Sutton v. United Air Lines, Inc. 527 U.S. 471, 491 (1999)).
52. Id. (quoting Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 (7th
Cir. 2000)).
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fact stated that she would return to work for Dollar Tree if they
fired Braz, and may have even returned if he apologized and
acknowledged his mistreatment.53 As a result, the court held that
even in the most favorable light, the plaintiff’s depression did not
substantially limit her ability to work a broad range of jobs.54
The plaintiff challenged the lower court’s finding that she was
not disabled by stating that, despite her testimony regarding her
ability to return to work, her psychiatrist’s statement that she
could not in fact return to work until June 14, 2001 created a
genuine issue of fact regarding her ability to work a broad range of
jobs.55 In addressing this argument, the court stated that given
the plaintiff’s burden of proving every element, a conflict existed
between proving the first and second element as a result of the
psychiatrist’s statement.56 This conflict occurred as a result of the
requirement that the employee be “qualified” or able to perform
the essential job functions with or without reasonable
accommodation and the requirement that the plaintiff must still
possess the ability to function competently and productively in the
employment situation with or without modification of that
situation.57 With depression specifically, “if an employee’s doctor
states that the employee cannot return to work for that particular
employer, then that fact supports a legal conclusion that the
employee no longer is qualified to do the job and no
accommodation exists to allow him or her to return to work.”58
The doctor’s statement thus created an insurmountable dilemma
for the plaintiff; although the statement introduced a question of
material fact as to the disability element, the very same evidence
resulted in the plaintiff’s inability to meet the “qualified”
element.59 Thus the psychiatrist’s claim that the plaintiff could
never return to work for Dollar Tree established that no
reasonable accommodation existed that would permit her to do her
job.60 As a result, the court held that the plaintiff could not
53. Id. at 26.
54. Id.
55. Id.
56. Id.
57. Id.
58. Id. (quoting Weiler v. Household Fin. Corp., 101 F.3d 519, 525 (7th
Cir. 1996)).
59. Id.
60. Id.
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establish a prima facie case of disability-based disparate
treatment.61
COMMENTARY
The Rhode Island Supreme Court did an excellent job of
clarifying the rules of law as to gender-based employment
discrimination. Similarities in establishing a prima facie case for
both disparate treatment and hostile work environment led the
lower court to intertwine the rules. The court clarified the
necessary steps for a disparate treatment claim and reinforced the
use of the burden-shifting framework, separately laying out the
elements for a hostile work environment claim. As to genderbased disparate treatment, the court had no choice but to remand
for a determination based on the employer’s legitimate nondiscriminatory basis for dismissal, as the lower court never
reached this issue, given their misinterpretation of the rule. As to
gender-based hostile work environment, the lower court was too
quick to dismiss the plaintiff’s claim, as Braz had a clear history of
poor treatment of women, as documented by Dollar Tree, and it
would be an injustice if the plaintiff were denied a claim, given the
factual leeway present in each element. The court was correct in
looking to Braz’s acknowledged history of poor treatment of
women and establishing it as the nexus between his offensive
treatment of the plaintiff and gender discrimination; to hold
otherwise would be to reward Braz for treating women poorly so
long as he did not reference gender.
The court’s decision regarding disability discrimination,
although technically sufficient, presents several alarming issues.
By holding that the evidence that established a genuine issue of
fact as to the plaintiff’s disability also precluded satisfaction of the
qualified element, the court failed to logically consider the
complexity of the circumstances. The psychiatrist’s findings
showed that the depression caused by Braz prohibited the plaintiff
from working a broad range of jobs. Although the statement of the
psychiatrist concluded that the plaintiff could not work for Dollar
Tree, this was clearly the result of the plaintiff’s relationship with
Braz and nothing else. This evidence, taken in conjunction with
plaintiff’s testimony that she could work at Dollar Tree if not for
61.
Id. at 27.
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Braz, showed that the plaintiff was qualified to do the job, but
could not as a result of Braz. In other words, the plaintiff was
qualified for the position of Dollar Tree manager. There was
likely enough evidence to overcome summary judgment on the
issue of disability discrimination, and as such, perhaps the court
should have allowed the issue to go to a jury.
CONCLUSION
The Rhode Island Supreme Court made several important
holdings in regard to employment discrimination based on gender
and disability.
The court reestablished the burden-shifting
framework for gender-based disparate treatment claims.62 Also,
the court allowed the use of an employer’s knowledge of past
mistreatment of women to assist in satisfying the elements in a
gender-based hostile work environment claim, even in the absence
of specific gender references.63 Most significantly, in the context of
work-related depression or anxiety, the court held that if an
employee’s doctor stated that the employee could not return to
work for that particular employer, then that fact alone supports a
legal conclusion that the employee is no longer qualified to do the
job. As a result, no accommodation exists to allow him or her
return to work, which paradoxically precludes that employee from
establishing a prima facie case of disability discrimination.64
Matthew Jill
62.
63.
64.
Id. at 22.
Id. at 22-24.
Id. at 26.
GORMAN
5/15/2006 8:29 PM
Family Law. Gorman v. Gorman, 883 A.2d 732 (R.I. 2005).
Family court judges are barred from exercising power to reform
property settlement agreements that are incorporated by
reference, but not included in, the final divorce judgment, unless
the Family Court finds that the property settlement agreement is
ambiguous or the product of mutual mistake. When a property
settlement agreement is not ambiguous and not the product of
mutual mistake, the Family Court can refuse to enforce the
agreement to the extent that it is inequitable, but does not hold
the power to modify the agreement to ameliorate the inequity.
Therefore, the Family Court has the ability to direct the parties to
negotiate a new property settlement agreement for its review and
approval, or to order the parties to proceed to trial in the event the
property settlement agreement does not reflect the division of
property determined to be equitable by the Family Court.
FACTS AND TRAVEL
The plaintiff, Kathleen M. Gorman, filed for divorce from the
defendant, Daniel W. Gorman, on February 12, 2002, after more
than thirty-five years of marriage, claiming an irremediable
breakdown of the marriage had occurred, due to irreconcilable
differences.1 The defendant husband filed a counterclaim.2 On
January 24, 2003, a hearing was held before the Family Court
during which the lawyers for both parties stated they desired to
make a written agreement regarding the division of property.3 An
absolute divorce was granted on February 7, 2003.4 On that day,
the Family Court also approved the written property settlement
agreement which stated that the defendant’s “Employee Stock
Option Plan” (ESOP) was to be divided evenly between the
parties.5
On April 15, 2003, the plaintiff filed a motion seeking
1. Gorman v. Gorman, 883 A.2d 734, 734 (R.I. 2005).
2. Id.
3. Id.
4. Id.
5. Id.
877
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878 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:877
clarification of the written property settlement agreement and the
intent of the parties in regards to the agreement, because she had
learned that the defendant held an additional stock plan, the
“Stock Bonus Plan,” (SBP) which was not mentioned in the
original property settlement agreement.6 The defendant objected
to this motion.7 Subsequently, on May 2, 2003, the plaintiff filed a
Rule 60(b) motion for relief (under the Family Court Rules of
Procedure for Domestic Relations)8 and a motion to modify the
property settlement agreement, claiming that the terms were
based on mistake of fact, misrepresentation, inadvertence, and/or
fraud, to which the defendant objected.9 The plaintiff asserted
that because the defendant was not only a participant in the
ESOP, but also the SBP, that the property settlement agreement
did not represent the even division agreed upon by the parties in
the Family Court order.10 The defendant argued that the property
settlement agreement should be read literally to exclude the SBP
because the agreement implicitly excludes non-specified plans
from inclusion.11
After a hearing by the Family Court on July 15, 2003 to
address the discrepancy, the court issued a bench decision on
The court concluded that the property
August 20, 2003.12
settlement agreement was ambiguous as to whether the SBP was
to be divided among the parties, and, as a result, the property
settlement agreement should be construed as dividing equally
both the ESOP and the SBP, even though the SBP was not
specified in the written agreement.13 To reach this decision, the
court considered the negotiations between the parties and the
testimony of the parties, which, the Family Court held,
demonstrated intent that all stock plans be divided equally
between the parties.14 The court also stated that it would be
improper to reward the defendant for failing to clarify an apparent
misunderstanding by the plaintiff regarding the existence of the
6. Id. at 735.
7. Id.
8. See R.I. R. Pro. D.R. 60(b).
9. 883 A.2d 735.
10. Id.
11. Id.
12. Id.
13. Id. at 736.
14. Id.
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SBP.15 The court entered an order directing the division of all
stocks as of the date of the execution of the property settlement
agreement.16 Following the entry of final judgment, the defendant
appealed.17
ANALYSIS AND HOLDING
On appeal, the defendant argued that the agreement was
unambiguous because it specifically mentioned the ESOP and
made no mention of the SBP18 In addition, the defendant argued
that the Family Court lacked the authority to reform the property
settlement agreement.19
Finding of Ambiguity
The court first addressed the defendant’s argument regarding
the ambiguity of the agreement.20 The court stated that the
Family Court has “broad power to review and to decide whether to
approve proposed property settlement agreements, given the
special status that the law accords to agreements between
spouses.”21 Therefore, the Family Court was acting within its
statutory power to oversee divorce proceedings, which includes the
review of the division of marital assets.22 When the Family Court
received the plaintiff’s motions after the divorce was granted, it
treated the motions as Rule 60(b) motions, which allowed the
court to review the property settlement agreement and to realize
that the agreement did not embody the fifty-fifty division the
Family Court had determined was equitable.23
The Rhode Island Supreme Court stated that although it
understood the equitable concerns that led the Family Court to
determine that the agreement was ambiguous, it considered the
agreement to be an “unambiguous contractual document” because
it only mentioned the ESOP and did not even hint at the existence
15.
16.
17.
18.
19.
20.
21.
22.
23.
Id.
Id.
Id.
Id.
Id. at 740.
Id. at 736-40.
Id. at 737.
Id.
Id.
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880 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:877
of the SBP.24 The Supreme Court held, however, that even if the
property settlement agreement was unambiguous, it was not selfexecuting, and was still subject to review and approval by the
Family Court.25 Therefore, although the court held that the
contract was unambiguous, it also held that the Family Court
acted within its powers when it reviewed the property settlement
agreement and determined that the agreement should not be
enforced due to the agreement’s inequity.26
Modification of the Agreement
Next, the court addressed the defendant’s argument that the
Family Court lacked the authority to reform the agreement.27 The
defendant argued that because the property settlement agreement
was not merged into the final divorce decree, it could only be
modified if both parties consented to the modification.28 The court
started this portion of the analysis by stating that there must be
an initial finding of mutual mistake in contract formation before
that contract can be subject to judicial reformation.29 Since the
Family Court stated that it did not find any evidence of mutual
mistake during the negotiations and the execution of the property
settlement agreement, that court is, therefore, bound by that
holding and its limitations.30
The Family Court does not have the authority to reform or
modify a contract like the property settlement agreement that is
merely incorporated by reference, but not merged, into the divorce
decree, absent the consent of both parties.31 The Rhode Island
Supreme Court found the property settlement agreement to be
unambiguous and found no evidence of mutual mistake, which left
reformation of the contract beyond the power of the Family Court
justice.32 The court held that the Family Court has the power to
either order the parties to negotiate a new property settlement
24.
25.
26.
27.
28.
29.
30.
31.
32.
Id. at 738.
Id. at 738-39.
Id. at 740.
Id. at 740-41.
Id. at 740.
Id.
Id. at 741.
Id.
Id.
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agreement for review of and approval by that court, or to direct
the parties to proceed to trial.33
COMMENTARY
The court used the holding in this case to speak about the
limitations of the Family Court’s powers. By articulating that the
Family Court does not have the power to alter an inequitable
property settlement agreement that is not part of the divorce
decree, the court ensures that the Family Court does not overstep
its statutory authority, which is admittedly broad when dealing
with divorce property settlement agreements.34 Although the
holding appears to be correct in regards to statutory and contract
law, it has the effect of limiting the Family Court’s ability to deal
with divorce settlements in a fair and timely manner, and
additionally the effect of making divorcing parties subject to
deceit by the other party.
In the interest of remaining true to established contract law,
the court has ensured that already long and difficult divorces are
potentially made longer. The court carefully applies contract law
to the property settlement agreement, even though it differs from
a standard contract because it is not immediately self-executing.
In addition, the property settlement agreement is clearly not a
traditional contract made at “arms-length,” as it arises out of a
divorce proceeding, in which both sides can be hostile to the
opposing party’s interests. Requiring parties to redraft and
resubmit their property settlement agreement each time a flaw is
found within the agreement only prolongs the difficulty of getting
divorced. The Family Court is charged with finding an equitable
way to divide property among former spouses, but under this
holding, can no longer use its discretion to achieve an equitable
result in a timely manner for both parties. By not allowing the
Family Court to repair a property settlement agreement so that it
represents the actual understanding achieved by the parties
during the divorce proceedings, this holding undermines the broad
discretion of the Family Court to deal with divorce proceedings.
When the Family Court modifies a property settlement
33.
34.
Id.
Id. at 737.
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882 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:877
agreement to represent the expressed intentions of the parties, it
saves both the time and the attorneys’ fees that would be required
to draft a new agreement and have it approved by the court. The
additional legal fees and time wasted when the court must order
the parties to renegotiate a property settlement agreement can
end up punishing the deceived party for the misdeeds of the
deceiver. In addition, it gives one side an opportunity to
temporarily withhold a divisible asset from the other side.
Perhaps the best way prevent such unfair advantage is to allow
the court to reform the agreement upon a showing of inequity.
Unfortunately, the Family Court no longer has that ability.
CONCLUSION
The Rhode Island Supreme Court held that the Family Court
does not have the ability to reform an inequitable property
settlement agreement unless there is a finding of mutual mistake
between the parties. Standard contract law applies to the
property settlement agreements that are not part of the divorce
decree and as a result, contract law, which demands an initial
finding of mutual mistake, prior to reformation by the court,
applies. In this case, the property settlement agreement was
found to be inequitable, but due to a lack of mutual mistake, the
revisions made by the Family Court were not valid and the parties
need to either enter into a new property settlement agreement or
proceed to trial.
Elizabeth A. Suever
IN RE MACKENZIE
5/15/2006 8:34 PM
Family Law. In re Mackenzie C., 877 A.2d 674 (R.I. 2005).
In applying the Daubert standard for admission of scientific
evidence, in which the court acts as a “gatekeeper” to insure that
evidence is both relevant and reliable, the Rhode Island Supreme
Court ruled that a Family Court justice did not err in reversing an
earlier finding of abuse. The reversal was based on the admission
of new expert testimony as to a child’s medical condition and its
potential contribution to the child’s injuries, and as such, both the
trial justice’s admission of the evidence and his subsequent
dismissal of the original abuse petition were made without error.
FACTS AND TRAVEL
The case of Mackenzie C. came before the Rhode Island
Supreme Court after what the court termed a “complex [and]
Dickensian procedural history.”1 It all began when the
Department of Children, Youth and Families (DCYF) filed an ex
parte abuse and neglect petition against Mackenzie’s parents on
December 28, 1998, after Mackenzie was brought to Hasbro
Children’s Hospital at nine weeks old, crying uncontrollably, with
something seemingly wrong with her right arm.2 A probable
cause hearing began on January 8, 1999, but was discontinued at
the parents’ request; subsequently, on April 12, 1999, DCYF filed
a termination of parental rights (TPR) petition, which alleged
“parental unfitness because of cruel or abusive conduct pursuant
to G.L. 1956 § 15-7-7(a)(2)(ii),”3 based in part on the treating
physician’s opinion that Mackenzie suffered from “battered child
syndrome.”4
The trial occurred over twenty days, commencing on June 11,
1999, and concluding on March 23, 2000.5 Mackenzie’s parents
presented one expert, Dr. Colin Paterson, who testified that
Mackenzie suffered from “temporary brittle bone disease,” a
1. In re Mackenzie C., 877 A.2d 674, 676 (R.I. 2005).
2. Id. at 678.
3. R.I. GEN. LAWS § 15-7-7(a)(2)(ii)(2000).
4. 877 A.2d at 678.
5. Id. at 679.
883
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884 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:883
condition that could explain the nineteen fractures evident upon
her body at the time of the treating physician’s examination.6
The trial justice rejected the parents’ expert’s testimony, and
found that the child “suffered from no abnormal bone disease . . .
[or from] any metabolic or endocrinology conditions.”7
Additionally, the trial justice went on to find that the “conduct of
the parents to the child was of a cruel and abusive nature” and
that they were unfit due to this finding of abuse.8 As such,
Mackenzie was committed to DCYF’s care, custody and control;
however, the court deferred deciding on the TPR petition until an
impartial psychiatric evaluation of both parents could be
conducted.9 This evaluation was subsequently conducted by Dr.
Bernard Katz, whose recommendation that a three-year case plan
be developed by DCYF and completed by the parents prior to
dismissal of the termination petition was adopted by the court.10
On January 12, 2001, DCYF filed for (and received) a stay of this
reunification plan from the Rhode Island Supreme Court, which
later additionally directed the Family Court to decide the TPR
petition on the merits.11
On November 1, 2001, after several days of testimony, the
Family Court justice denied the TPR petition, finding that
Mackenzie and her parents deeply loved each other, and that
“there [wa]s no evidence whatsoever that . . . the parents create[d]
any risk or constitute[d] any risk to the child if there [wa]s
reunification.”12 The trial justice ordered that DCYF immediately
create a reunification plan, an order that DCYF filed an appeal to
on November 8, 2001, as well as filing a motion for a stay of the
order on November 20, 2001.13 The motion for stay was denied;
DCYF did then submit a reunification plan, which the trial justice
rejected, noting that it did not contain “any initial step[s] toward
gradual reunification.”14
Mackenzie’s parents eventually filed a motion for
6.
7.
8.
9.
10.
11.
12.
13.
14.
Id.
Id.
Id.
Id.
Id. at 679-80.
Id. at 680.
Id.
Id.
Id.
IN RE MACKENZIE
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reconsideration and/or new trial as to the abuse petition, which
the Family Court justice had sustained.15 This motion was
subsequently granted on October 23, 2003, when the case was
reopened, with the admission of new expert testimony (by Dr.
Cathleen Raggio) as to Mackenzie’s medical condition, evidence
that simply did not exist at the original time of trial.16 On
November 5, 2004, the trial justice reversed his earlier finding of
abuse and neglect, noting that there was no competent medical
evidence at the time of trial to support the parents’ position, but
that such evidence had since come into existence.17 The trial
justice considered two issues in reversing his earlier decision:
Whether Dr. Raggio’s expert testimony was admissible as “based
on scientifically valid methodologies or principles” and sufficiently
tied to the facts of the case, and if so, if DCYF sustained “its
burden of proof with respect to the abuse” allegation with clear
and convincing evidence.18
The trial justice allowed the admission of Dr. Raggio’s
testimony and concluded that the court was convinced “by the
medical testimony produced . . . [and t]hat there is absolutely no
testimony with respect to any tendency of the parents to be
abusive.”19 The court then concluded that the state had failed to
meet its burden of clear and convincing evidence and dismissed
the prior finding of abuse.20 The trial justice later issued a followup order providing for visitation and gradual reunification; DCYF
responded with an appeal and a motion to stay the order.21 On
appeal, DCYF raised several issues; the only one that the court
addressed was “whether the trial justice erred in dismissing the
abuse petition after reconsidering the parents’ new evidence.”22
ANALYSIS AND HOLDING
In addressing DCYF’s appeal of the trial justice’s final
decision and order, the Rhode Island Supreme Court utilized a
15.
16.
17.
18.
19.
20.
21.
22.
Id. at 681.
Id.
Id.
Id.
Id. at 682.
Id.
Id.
Id.
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two-step analysis: first, it addressed the admissibility of Dr.
Raggio’s expert testimony to determine if the trial justice abused
his discretion in allowing the evidence in; second, it analyzed
whether the trial justice erred in dismissing the original abuse
petition after considering the parents’ newly admitted evidence.23
Admissibility of Dr. Raggio’s Expert Testimony
In appealing the trial justice’s admission of Dr. Raggio’s
testimony, DCYF claimed that this expert “fail[ed] to establish a
valid methodology to test her theories, including her inability to
test her theory, paucity of peer review, unknown rate of error, lack
of general acceptance in the orthopedic community” and as such,
“her unique opinions . . . w[ere] created merely for purposes of
testifying.”24 The trial justice allowed Dr. Raggio’s testimony in
based on her “superb credentials in the field,” as well as his
interpretation of her testimony as applying “known scientific
principles of bone development” and not junk science.25
In analyzing the trial justice’s decision, the Rhode Island
Supreme Court applied the now familiar Daubert26 analysis, as
embodied in the language of Rule 702 of the Federal Rules of
Evidence,27 in which the trial justice is viewed as a “gatekeeper” to
“ensure that any and all scientific testimony or evidence admitted
is not only relevant, but [also] reliable.”28 In such an analysis,
when a party is introducing potentially “novel” expert testimony,
the expert’s testimony may only be admitted if the testimony will
be “scientific knowledge that . . . will assist the trier of fact.”29
23. Id.at 682-86.
24. Id. at 682-83.
25. Id. at 683.
26. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
27. FED. RULES OF EVID. 702 (stating that: “If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of fact
or opinion.”)
28. 877 A.2d at 683 (quoting Daubert, 509 U.S. 579, 597 (1993)).
29. Id. (quoting Dipetrillo v. Dow Chem. Co., 729 A.2d at 677, 687 (R.I.
1999)).
IN RE MACKENZIE
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In reviewing the trial court’s analysis, the Rhode Island
Supreme Court focused on the trial justice’s findings as to Dr.
Raggio’s credentials and the methodology that Dr. Raggio utilized
in forming her opinion as to Mackenzie’s condition.30 The court
noted that a trial justice is not expected to become an expert him
or herself as to the substance of the scientific area being testified
about, and need not focus on the expert’s conclusions, “but rather,
whether the reasoning used in forming the expert conclusion was
sound.”31 Additionally, in satisfying the Daubert standard, the
court found that Dr. Raggio’s testimony would aid the trier of fact
(in this case, the trial court justice) in its analysis and that the
trial court justice did not abuse his discretion in admitting the
testimony as relevant.32
Dismissal of the Abuse Petition
In its appeal, DCYF also alleged that the trial justice erred in
dismissing the prior abuse petition, in light of the parents’ newly
admitted testimony by Dr. Raggio.33 DCYF claimed that Dr.
Raggio’s diagnosis of Mackenzie as having Ehlers-Danlos
Syndrome (and her feeling that this was the causation of
Mackenzie’s many fractures, rather than parental abuse) was not
supported by the evidence, and as such, the trial justice erred in
reversing his prior determination of abuse.34
In examining the trial court’s reversal and subsequent
dismissal of the prior abuse petition, the Rhode Island Supreme
Court focused on the lower court’s original finding that there was
“no direct evidence of abuse on the part of the parents . . . [but
that instead a permissible inference could be made that] the
parents had inflicted or allowed to be inflicted upon the child,
physical injury” and that “it is possible that in five years or so, any
difficulties may be resolved to the satisfaction of the entire
scientific-medical community.”35 Indeed, the Rhode Island
Supreme Court noted, this appears to have been just the case, as
30.
31.
32.
33.
34.
35.
Id. at 684.
Id.
Id. at 685.
Id.
Id.
Id.
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four years later, with the emergence of Dr. Raggio’s testimony, it
appeared that the child was suffering from “Ehlers-Danlos type
syndrome” and that this syndrome, rather than parental abuse,
was the cause (with other medical conditions) of the child’s many
fractures.36
Consequently, due to both the newly admitted expert
testimony and the lack of any direct physical evidence of abuse by
the parents, the Rhode Island Supreme Court upheld the trial
court’s reversal of the earlier finding of abuse, and the lower
court’s subsequent dismissal of the abuse petition altogether, as
DCYF failed to meet its evidentiary burden with clear and
convincing evidence.37
COMMENTARY
From the time of the original ex parte order of detention by
the trial justice (December 25, 1998), until the time of the final
issuance of the Rhode Island Supreme Court’s opinion (July 18,
2005), Mackenzie and her parents indeed embarked on what
turned out to be “a complex, Dickensian, procedural journey”38
that can only have created tremendous stress, turmoil, and
destruction to each of them as individuals and as a family unit.
Understanding that newly acquired medical knowledge and
technology are facts of life in an ever-changing information
landscape, it nonetheless seems unacceptable that this family
could not have found legal closure earlier (by one means or
another) and been allowed to get back on the path to reunification
and eventual healing. If nothing else, the history of Mackenzie’s
case serves as a commentary on the entire child welfare and social
services structure within the state. The fact that the original trial
justice in this case did reconsider at all his own earlier finding of
abuse with the newly admitted evidence, is evidence that even in
the most difficult of cases, there is hope of progress.
CONCLUSION
The Rhode Island Supreme Court held that a trial justice’s
admission of newly discovered expert testimony as to a child’s
36.
37.
38.
Id. at 685-86.
Id. at 686.
Id. at 676.
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medical condition was not in error and that the trial justice’s
reconsideration and dismissal of the abuse petition was, based on
this new evidence of the child’s Ehlers-Danlos Syndrome,
proper.39
Esme Noelle DeVault
39.
Id. at 685-86.
PALAZZOLO
5/15/2006 8:37 PM
Property Law. Palazzolo v. State, No. 88-0297, 2005 WL
1645974 (R.I. Super. July 5, 2005). “Constitutional law does not
1
require the state to guarantee a bad investment.” Nor does a
regulatory taking occur where the background principles of public
nuisance or the public trust doctrine act to limit the plaintiff’s
property rights. Where the plaintiff’s “bundle of rights” do not
provide for the proposed use of the property, any regulation
proscribing that use does not result in a taking under the Fifth
Amendment.
FACTS AND TRAVEL
The plaintiff, Anthony Palazzolo, first acquired an interest in
the subject property in 1959.2 The site consisted of eighteen acres
of land south of Winnapaug Pond, “a tidal, salt water pond” in
Westerly, Rhode Island.3 Immediately after having acquired an
interest in the site, Palazzolo sold six lots located on the more
upland portions of the site.4 Approximately one half of the
Soil
remaining site lies below mean high water (MHW).5
conditions make the majority of the site challenging for home
With the exception of an upland area,
construction.6
redevelopment of much of the site would require significant
excavation of existing soils and “as much as six feet of fill.”7
Although several homes in the area have been constructed on
filled wetlands, filling has not generally occurred in any area of
the salt marsh.8 In addition to a valuable habitat for wildlife, the
salt marsh has an “amenity value” to the property owners in the
1. Palazzolo v. State, No. 88-0297, 2005 WL 1645974, *2 (R.I. Super.
July 5, 2005)
2. Id.
3. Id.
4. Id.
5. Id. The court accepted a survey filed with the court “as substantial
scientific evidence as to the location of the mean high water (MHW) mark in
1986,” the year of the alleged taking. Id. at *2 n.16.
6. Id. at *2.
7. Id.
8. Id.
891
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area and the community.9
On several occasions since the 1960s Palazzolo has sought
permission to fill his site for redevelopment.10 In 1985, Palazzolo
applied to the Rhode Island Coastal Resources Management
Council (CRMC) to fill his site for construction of a beach facility.11
Palazollo claimed the date that application was denied, March 3,
1986, as the date his property was taken.12 Following a 1997
bench trial, the Superior Court held there was no taking on the
grounds that the regulations prohibiting development of the site
were in effect prior to Palazzolo’s acquiring an interest in the
land.13 Because the regulations had been in effect at the time, the
court reasoned that Palazzolo “could not have had [any]
reasonable investment-backed expectations.”14 In addition, the
court held that Palazzolo had not been denied all beneficial use of
his property where the state would allow the development of one
lot valued at approximately $200,000.15 The trial court also found
that Palazzolo’s development vision would constitute a public
nuisance, thus barring any compensation.16
The Rhode Island Supreme Court affirmed the lower court
decision on the basis that the appeal was not ripe because
Palazzolo had never properly submitted a development application
to the CRMC.17 In 2001, the United States Supreme Court
reversed that decision, holding the case was ripe and remanded
the case for a Penn Central18 analysis.19 The U.S. Supreme Court
also affirmed the conclusion that the regulations did not deprive
Palazzolo of all economic use of his property because “the value of
the upland portions [was] substantial.”20 On June 24, 2002, the
9. Id. at *3.
10. Id. at *1 n.2 A 1960s application to fill his site with dredge materials
from Winnapaug Pond was followed by another application to fill the site in
1983 and again in 1985. Id.
11. Id.
12. Id.
13. Id. at *1.
14. Id.
15. Id.
16. Id.
17. Id. (citing Palazzolo v. R.I., 746 A.2d 707 (R.I. 2000)).
18. Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).
19. See generally Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
20. Palazzolo v. State, 2005 WL 1645974 at *11 n.70 (quoting Palazzolo
v. Rhode Island, 533 U.S. 606, 616 (2001)).
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Rhode Island Supreme Court remanded the case to the Superior
Court.21
ANALYSIS AND HOLDING
On remand, the plaintiff disputed the precision of a survey
establishing the high water mark and argued that he could
economically develop his property.22 Palazzolo further disputed
the classification of Winnapaug Pond as a tidal pond subject to the
public trust doctrine.23 The state, citing law of the case, countered
that, consistent with the court’s conclusion at the first trial, the
development constitutes a public nuisance and thus bars a takings
claim.24 Furthermore, the state argued that the public trust
doctrine precluded the economic development of Palazzolo’s site
because nearly one-half of the site sat below the mean high water
mark and such portion did not belong to Palazzolo to develop.25
Public and Private Nuisance
The Superior Court found Palazzolo’s development plan
constituted a public nuisance at the first trial in 1997.26 Thus it
was within the court’s discretion to let the prior ruling stand
under the law of the case.27 However, because significant new
evidence was introduced, the court reconsidered the state’s claim
of nuisance.28
Actionable nuisances fall into two classifications: public and
private. A private nuisance involves an interference with the use
and enjoyment of land. It involves a material interference with
the ordinary physical comfort or the reasonable use of one’s
21. Id. at *1. “[A]dditional evidence was taken over eleven days to
augment the 1997 trial record” and a tidal survey was filed with the court. Id.
22. Id. at *3.
23. Id.
24. Id.
25. Id.
26. Id. (citing Palazzolo v. State, 746 A.2d 707 (R.I. 2000) (affirming the
lower court’s decision)).
27. Id. at *3-*4. The law of the case provides “that ordinarily after a
judge has decided an interlocutory matter in a pending suit, a second judge,
confronted at a subsequent phase of the suit with the same question in the
identical matter, should refrain from disturbing the first ruling.” Id. at *4
(quoting State v. Infantolino, 355 A.2d 722, 726 (R.I. 1976)).
28. Id.
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property. A public nuisance is an unreasonable interference with
a right common to the general public. It is behavior that
unreasonably interferes with the health, safety, peace, comfort or
convenience of the general community.29
The court found that the proposed development was
“practically certain” to result in “substantial damage” to the
ecology of Winnapaug Pond.30 Thus the court held that because
clear and convincing evidence demonstrated the development
would constitute a public nuisance, Palazzolo had no right to
develop his site as proposed.31 Without a right to develop the site
as proposed, the state’s denial of the same development could not
result in a taking.32
No neighboring property owner brought a claim of private
nuisance.33 Even had Palazzolo’s development been built, the
likely result would have been a non-actionable obstruction of the
neighbor’s view.34 Thus, the court held Palazzolo’s development
would not constitute a private nuisance.35
Public Trust Doctrine
Citing the United States Supreme Court’s decision in Lucas v.
South Carolina Coastal Council,36 the court reiterated the point
that a taking cannot result from a prohibited use that was not
part of the land owner’s title and that one’s title is subject to
certain background principles such as nuisance and the public
trust doctrine.37 The public trust doctrine provides that land
below the high water mark is held by the state for the benefit of
the public.38 The court accepted the survey filed with the court as
29. Id. (quoting Citizens for Pres. of Waterman Lake v. Davis, 420 A.2d
53, 59 (R.I. 1980) (internal citations omitted)).
30. Id. at *5.
31. Id.
32. Id.
33. Id. at *6. “Historically the law of private nuisance has been applied to
conflicts between neighboring, contemporaneous land uses.” Id. (quoting
Hydro-Mfg., Inc. v. Kayser-Roth Corp., 640 A.2d 950, 957 (R.I. 1994)).
34. Id.
35. Id.
36. 505 U.S. 1003 (1992).
37. Palazzolo, 2005 WL 1645974 at *6.
38. Id. at *7. The public trust doctrine is also incorporated into the Rhode
Island Constitution. Id. (citing R.I. CONST. art 1, §17).
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accurately establishing the mean high water line for 1986 and
thus concluded that fifty percent of Palazzolo’s site sat below that
mark.39 The court, also finding Winnapaug Pond a tidal body of
water, concluded that half of Palazzolo’s land was subject to the
public trust doctrine.40 Because the doctrine applied to only half
of the site, it could not completely bar Palazzolo’s taking claim.41
However, the court reasoned that it had a direct relationship to
his reasonable investment-backed expectations under a Penn
Central analysis.42
Penn Central Analysis
The remand instructed the court to analyze Palazzolo’s claim
under the Penn Central test.43 Analysis under Penn Central
includes the following three factors: “(1) the character of
governmental action, (2) the economic impact of the action on the
claimant, and (3) the extent to which the action interfered with
the claimant’s reasonable investment-backed expectations.”44
Before conducting its analysis, the court concluded that the
relevant parcel under review did not include the six lots that
Palazzolo had sold shortly after he acquired his interest.45 The
regulatory scheme charged with the taking never applied to those
six lots.46
The court quickly addressed the character of the government’s
action, along with the plaintiff’s argument that he should not
alone have to bear the burden of this regulation.47 The court
reasoned that the restrictions on coastal development have the
same impact on all owners of tidal salt marsh.48 Thus, the
regulatory scheme did not particularly target the plaintiff.49 In
addition, the court reasoned it would be unreasonable to require
the government to compensate property owners for every change
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
Id. at *6.
Id.
Id. at *7.
See id.
Id. at *8. (citing Penn Central, 438 U.S. 124 (1978)).
Id.
Id.
Id.
Id. at *9.
Id.
Id.
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in the general law.50 Thus the character of the government’s
action here would not constitute a taking.51
Likewise, the court found the circumstances failed to support
a taking under the second prong of the test.52 Accounting for the
unique costs required to develop this site and the amenity value of
the marsh, the court found Palazzolo’s alleged loss of a threemillion dollar profit unreliable.53 A “battle of trial experts” ended
with the court accepting the state’s presentation of expected
development costs and appraisal values.54 However, the court
noted that neither side accounted for the amenity value of the
existing landscape upon which any development would intrude.55
Thus the court found even the state’s estimated profit might be
“optimistic.”56 The court then concluded that Palazzolo would
benefit more financially by selling the property in its undeveloped
state because of the greater value in the upland area of the site
that allowed construction of a single home.57 Regardless of the
effect of the public trust doctrine on curtailing the size of the
parcel, the court found the potential costs for the development
would result in a loss to the plaintiff.58 Thus the regulations
prohibiting that development could not have an adverse economic
impact on Palazzolo.59
Pursuant to the remand, the court focused on the third factor
of the Penn Central analysis, Palazzolo’s reasonable investmentbacked expectations.60 Looking at Palazollo’s earliest interest in
the land, the court concluded that whatever investment-backed
expectations he held, they were not “realistically achievable.”61 No
similar developments had ever been proposed for the area.62 The
immediate sale of the six “prime” buildable lots left Palazzolo with
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
Id. at *9 n.43 (citing Palazzolo v. Rhode Island, 533 U.S. at 627).
Id. at *9.
Id. at *11.
Id. at *9, *10.
Id. at *10.
Id. at *11.
Id.
Id.
Id.
Id.
Id. at *12.
Id. (emphasis omitted).
Id.
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land that was “not readily capable of development.”63 The court
pointed out that the original seller of the property had prior real
estate experience, must have known of the challenges to
developing the site, and presumed that these challenges
“undoubtedly weighed heavily in [his] practical decision to sell out
to Palazzolo.”64 Furthermore, because the public nature of land
below the mean high water mark “is an ancient doctrine,” the
court found that Palazzolo knew or should have known that any
development would require filling the site which would require
state permission.65 In fact, the court noted thatm, as early as
1962, Palazzolo’s application for a filling permit included an
acknowledgment that the filling was “within the public tide
waters of the state.”66 Likewise, the court noted the application
forms gave notice of the state’s regulation of tidewaters.67 “Rhode
Island law regulated tidewaters and the filling of nearby flats as
early as 1876.”68
The court then considered Greater Providence Chamber of
Commerce v. Rhode Island69 where the Rhode Island Supreme
Court issued guidance regarding parcels subject to the public trust
doctrine.70 That guidance indicated that a coastal land owner
could establish free and clear title to land that is partially below
mean high water if the owner fills the land with the “acquiescence
or the express or implied approval of the state and improves upon
the land in justifiable reliance on the approval.”71 Here, the
numerous denials of Palazzolo’s requests for permits to fill his
land along with the fact the he had made no effort to improve the
land in reliance on any state action or acquiescence, negated the
possibility that he had established title to the land.72 In short,
“[p]laintiff’s title is clearly subject to the public trust doctrine.”73
63.
64.
65.
66.
67.
68.
69.
70.
71.
1044).
72.
73.
Id. at *12 n.73.
Id. at *12.
Id.
Id. at *12 n.75.
Id. at *14 n.78.
Id.
657 A.2d 1038 (R.I. 1995).
Palazzolo, 2005 WL 1645974 at *13.
Id. (quoting Greater Providence Chamber of Commerce, 657 A.2d at
Id.
Id.
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Given the state’s historical role in regulating the filling of
tidal waters, the public trust doctrine, the transfer of the prime
lots at the time of his investment, and the difficulties in
developing the site, the court found that “Palazzolo’s reasonable
investment-backed expectations were modest.”74
COMMENTARY
The opinion’s conclusion is soundly rooted in the background
principles of nuisance. Nevertheless, the takings analysis raises a
few questions. For one, the court’s totality-of-the-circumstances
analysis of Palazzolo’s investment-backed expectations includes
evidence of his business associate’s decision to sell to Palazzolo. Is
it reasonable to impute the business associate’s real estate
experience and judgment to the plaintiff as an element in
determining the plaintiff’s reasonable expectations? Is it also
reasonable to assign knowledge of the public trust doctrine’s
application to land below the high water mark, as determined in
1986, when the investment-backed expectations are measured at
the time of his acquisition in 1959? Is an understanding of the
effect of the “ancient doctrine” of public trust on the bundle of
property rights, particularly the distinction between state
regulations and sovereign title, a reasonable element of the
average citizen’s investment-backed expectations?
Notwithstanding these questions, the court’s analysis reminds
us of a clear and simple threshold in takings analysis that often
gets overlooked by issues of compensation and, more recently, a
renewed interest in defining public use. The Fifth Amendment’s
bar against taking private property without just compensation75
applies to private property. The state cannot be charged with
taking a property interest that it already owns. Given Rhode
Island’s extensive coastline, the market interest in waterfront
property and the state’s legitimate interests in managing its
resources through coastal regulation will inevitably conflict. The
strength of the background principles in nuisance and the public
trust doctrine establish a solid foundation to resolve those
conflicts by defining property rights at the outset.
74.
75.
Id. at *14.
See U.S. CONST., amend. V.
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CONCLUSION
The Rhode Island Superior Court held that given the
circumstances presented in this case, the proposed development
would constitute a public nuisance and thus preclude any takings
claim.76 Regardless of that finding, the public trust doctrine
proscribed the plaintiff’s development of one-half of the site.77 As
to the remaining land available for development, the court found
that the regulations did have an adverse economic impact where
the unique costs made development unprofitable.78 Furthermore,
a reasonable person would have recognized the problematic
character of the site, thus the plaintiff could have little or no
reasonable investment-backed expectations to develop the site as
proposed.79 Most directly, the plaintiff’s “title did not include a
property right to develop the parcel as he proposed.”80
Colin M. McNiece
76.
77.
78.
79.
80.
See Palazzolo, 2005 WL 1645974 at *4-*5.
Id. at *6-*7.
Id. at *9-*11.
Id. at *12.
Id. at *15.
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State Affairs and Government. Tanner v. Town Council of
East Greenwich, 880 A.2d 784 (R.I. 2005). Local citizens possess
standing to bring actions against public bodies under the Open
Meetings Act when a public notice hinders their right to be
informed of agenda items at public meetings. Remedial public
notice, in compliance with the Open Meetings Act, does not render
a case moot; the issue of the first violation remains justiciable.
Whether a violation of the Open Meetings Act has indeed occurred
is judged according to a “totality of the circumstances” standard,
taking into account how the public would perceive the notice as
compared to what actually occurred at the meeting. Finally,
attorney’s fees, a mandatory award for successful plaintiffs in
Open Meetings Act suits, must be awarded according to a
standard of “justice and fairness.”
FACTS AND TRAVEL
The Open Meetings Act (OMA), as enacted by the Rhode
Island Legislature, requires that “public business be performed in
an open and public manner and that the citizens be advised of and
aware of the performance of the public officials and the
deliberations and decisions that go into the making of public
policy,”1 and that a “statement specifying the nature of the
business to be discussed” be provided to the public.2 The
controversy in Tanner v. Town Council of East Greenwich3 arose
from an alleged OMA violation which occurred, on October 19,
2001, when the East Greenwich town council posted a public
notice which was intended to inform local citizens of an October
23, 2001, town council meeting.4 In an attempt to comply with the
OMA, the public notice stated that, at the October 23, 2001
meeting, the agenda would include “Interviews for Potential
Board and Commission Appointments” to the town zoning and
1.
2.
3.
2005).
4.
R.I. GEN. LAWS § 42-46-1 (2000).
R.I. GEN. LAWS § 42-46-6(b) (2000).
Tanner v. Town Council of E. Greenwich, 880 A.2d 784, 789 (R.I.
Id.
901
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planning boards.5 At the meeting, however, the town council not
only interviewed the potential appointees but also proceeded to
vote on them, selecting three of the six.6 Later, Frederick S.
Tanner decided to file a complaint against the town council,
claiming that it had violated the OMA, because it had not
provided proper notice in advance of the council’s decision to vote.7
On November 14, 2001, Mr. Tanner informed the town council
that he would bring suit against the town for failing to provide a
sufficient “statement specifying the nature” of what was actually
to occur at the October 23, 2001 meeting.8
In the face of Mr. Tanner’s challenge, the town council posted
a second notice, regarding a November 19, 2001 meeting, which
would have on its agenda “Boards and Commissions
During that second meeting, however, the
Appointments.”9
council would refrain from the voting issue and instead schedule a
third meeting for November 26, 2001, at which time the council
would address the issue.10 The council again posted a notice
which clearly indicated that a future vote would take place on the
On November 26, 2001, the board
board appointments.11
reaffirmed the three appointments previously made on October 23,
2001.12 Mr. Tanner did not challenge the November 26, 2001
appointments, but maintained that the violation of the OMA at
the October 23, 2001 meeting must be remedied.13
In his complaint, Mr. Tanner moved for summary judgment
and an award of three possible remedies available under the
OMA: a civil fine, attorney’s fees, and an injunction.14 The
hearing justice granted summary judgment to Mr. Tanner, finding
that the notice led the public to believe that only interviews, and
not a vote on the appointments, would take place at the October
23, 2001 meeting.15
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Id.
Id.
Id.
Id. at 789-90.
Id. at 789.
Id.
Id.
Id.
Id. at 789 n.3, 790.
Id. at 789-90.
Id. at 790.
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A later, second phase of the trial would decide Mr. Tanner’s
remedy. At that later remedial hearing, the hearing justice
determined that a civil fine could not be imposed on the town
council because Mr. Tanner was unable to establish that the town
council’s OMA violation was done “willfully or knowingly.”16 The
hearing justice awarded Mr. Tanner attorney’s fees and costs in
the amount of $11,193.89.17 Unless such an award would be
“unjust,” the award of attorney’s fees is mandatory in instances of
The hearing justice found no special
OMA violations.18
circumstance that would render such an award “unjust.”19 The
East Greenwich town council appealed the judgment to the Rhode
Island Supreme Court, alleging four points of error.20
ANALYSIS AND HOLDING
1. Standing
Mr. Tanner’s standing to bring suit against the town council
was the first issue addressed by the Rhode Island Supreme
Court.21 The town council averred on appeal that Mr. Tanner’s
status as a resident of East Greenwich did not in itself give him
standing to bring suit and that the alleged OMA violation had not
caused him any harm.22 The court readily noted, however, that
one has standing if a controversy causes “injury in fact” or if one is
granted standing as the “beneficiary of express statutory
authority.”23 Mr. Tanner did not claim to suffer, nor did he
attempt to prove, any economic “injury in fact;” therefore, his
standing needed to rest on statutory authority.24 The OMA does
indeed grant standing to any “citizen or entity” who is “aggrieved
as a result of violations” of the OMA.25 Provided Mr. Tanner had
been “aggrieved” by the actions of the town council on October 23,
16. Id. at 791.
17. Id. at 790.
18. Id. at 800 (citing Solas v. Emergency Hiring Council, 774 A.2d 820,
825 (R.I. 2001)).
19. See id. at 790.
20. Id. at 791.
21. Id. at 792.
22. Id.
23. Id.
24. See id. 792-93.
25. Id. at 792 (quoting R.I. GEN. LAWS § 42-46-8(a) (2000)).
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2001, he would possess the requisite standing.26
The term “aggrieved,” however, is an ambiguous term; the
court noted that the legislature did not provide the term a
discernable definition.27 It would therefore be up to the court to
assign the term an interpretation not at odds with the legislative
purpose behind the statute.28 By the language of the statute, the
court determined that the OMA served to protect a public right.29
The court stated that the OMA was not intended to protect the
“property or contract rights” of local citizens, but rather serves to
guarantee the right to be properly informed of the “performance,
deliberations, and decisions of government entities.”30 Thus, any
act which hinders this right will cause a citizen to be
“aggrieved.”31
Importantly, the court, drawing on precedent, made it clear
that one need not have had a “personal stake” in the agenda of a
public meeting to acquire standing under the OMA; the court cited
Solas v. Emergency Hiring Council,32 in which the court
determined that a citizen did not require a “personal stake” in the
“substance of the meeting to assert a right to attend a meeting of a
public body.”33 As a consequence of the rule laid down in Solas,
the Tanner court determined that, in addition to a right to attend
a public meeting, one does not need a “personal stake” in the
business of a particular meeting to assert the right to properly be
“advised of the business to be conducted” at such a meeting.34
Improper notice, however, need not cause a plaintiff to miss a
public meeting to acquire standing; the court previously
determined that if a citizen did attend a meeting, but improper
26. See id.
27. Id. at 792.
28. Id. at 792-93.
29. Id. at 793. Reference to protection of a public right is found in the
statutory language of the OMA, which states that: “public business [is] to be
performed in an open and public manner” so that citizens can be “advised of
and aware of the performance of public officials and the deliberations and
decisions that go into the making of public policy.” R.I. GEN. LAWS § 42-46-1
(2000).
30. 880 A.2d 793.
31. See id.
32. 774 A.2d 820 (R.I. 2001).
33. 880 A.2d 793(quoting Solas, 774 A.2d 820, 823 (R.I. 2001) (emphasis
added)).
34. Id.
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notice caused him to be “disadvantaged” or experience a “lack of
preparation or inability to respond to an issue,” that citizen would
also be “aggrieved” under the OMA.35 Therefore, Mr. Tanner
possessed the requisite standing to bring his action against the
town council because, as a local citizen, he was able to allege that
the notice left him unaware of any intention by the council to vote
on the appointments and would leave him unprepared to respond
to such action.36
2. Mootness
The defendant town council’s second point of error was the
issue of mootness.37 Because the council had, on November 19,
2001, posted notice for another meeting where “Boards and
Commission Appointments” would be on the agenda, they claimed
that any controversy raised by the October 23, 2001 meeting was
moot.38 In other words, concerned citizens would be able, at this
second meeting, to voice opinions on the appointments to the
zoning board, remedying any perceived inconvenience posed by
the first meeting.39 The court, however, found Mr. Tanner’s
argument stronger.40
Mr. Tanner argued that the case could not be dismissed for
mootness because the matter was of “extreme public importance”
and “capable of repetition.”41 Moreover, because the town council
had not, throughout the litigation, made any admission that its
October 23, 2001, behavior was at all improper, he argued that the
council intended to “engage in similar conduct in the future.”42
Mr. Tanner also argued that without a judgment in his favor,
public bodies subject to the OMA could give improper notice of
meetings, only to comply when challenged, thereby avoiding an
“adverse judgment.”43
35. Id. (citing Graziano v. R.I. State Lottery Comm’n, 810 A.2d 215, 222
(R.I. 2002)).
36. Id.
37. Id. at 793-94.
38. Id. at 789, 793-94.
39. See id.
40. See id. at 795.
41. Id. at 794.
42. Id.
43. Id.
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The court also made clear that just because one statutory
remedy has been rendered moot, the “viability of the case or the
remaining remedies” will not be affected.44 The OMA provides for
several possible remedies: injunctive relief, a civil fine of $5,000,
attorney’s fees, or any combination of the three.45 The November
26, 2001 meeting effectively rendered any claim to injunctive relief
moot.46 However, the possibility of attorney’s fees or a civil fine, in
the event the court found the town council to have violated the
OMA, were still issues to be resolved and therefore justiciable.47
3. The Open Meetings Act Violation
Whether the town council had in fact violated the OMA
required judicial interpretation of a certain portion of the statute
itself.48 Both of the parties differed on what was required by the
OMA mandate that notice of a public meeting necessitated a
“statement specifying the nature of the business to be discussed.”49
The town council, relying on the findings of the Attorney General,
averred that the OMA should be strictly construed to require only
the “nature” of any business conducted at a public meeting and
not an explicit mention of any intention to vote.50 Thus, the notice
posted prior to the October 23, 2001 meeting, which stated that
“Interviews for Potential Board and Commission Appointments,”
was the agenda, should have constituted a sufficient
“statement.”51 Mr. Tanner, on the other hand, argued that the
posting was insufficient because more than the agenda item it
mentioned – interviews – took place.52 Therefore, the question of
what, exactly, was required by the term “statement” became the
central issue in determining the outcome of the case.53
The court noted that ambiguous statutory language, such as
the phrase “statement specifying the nature of the business to be
discussed,” requires that the court not simply insert its own
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
Id. at 794-95.
Id. at 794 (citing R.I. GEN. LAWS § 42-46-8(d) (2000)).
See id. at 795.
Id.
Id. at 795-96.
Id. at 795 (quoting R.I. GEN. LAWS § 42-46-6(b)).
Id.
Id. at 789, 795.
Id. at 795.
Id. at 796.
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interpretation; rather, the court must “glean the intent and
purpose of the Legislature”54 and devise an interpretation
“consistent” with the Legislature’s “policies or obvious purposes.”55
Therefore, the Tanner court first determined the overall purpose
of the OMA before it attached any judicial interpretation to the
Act’s language.56
The “explicit purpose” the court found in the OMA was clear:
“[P]ublic business [must] be performed in an open and public
manner and that the citizens be advised of and aware of the
performance of public officials and the deliberations and decisions
that go into the making of public policy.”57 To the court, this
section of the OMA was intended to give the public “greater
opportunity” to gain access to “issues of public importance,” so
that the public can engage itself in “meaningful participation in
the decision-making process.”58
With this central purpose of the OMA in mind, the court
determined that the legislature intended to provide the courts
with a “flexible standard” regarding what was required of the
requisite “statement specifying the nature of the business to be
discussed.”59 The court consulted the jurisprudence of two sister
states confronted with a similar problem.60 The Supreme Courts
of both Colorado and Tennessee resolved the issue by establishing
a “totality of the circumstances standard.”61 So too would the
Understanding
the
balance
between
Tanner
Court.62
“safeguarding the public’s interest” and the “realities of local
government,” the court declined to provide “‘magic words’” or
“specific guidelines” under the OMA requirement of public
notice.63 Instead, the court held that to comply with the OMA,
54. Id. (quoting Motola v. Cirello, 789 A.2d 421, 423 (R.I. 2002)).
55. Id. (quoting Keystone Elevator Co. v. Johnson & Wales Univ., 850
A.2d 912, 923 (R.I. 2004)).
56. See id.
57. Id. (quoting R.I. GEN. LAWS § 42-46-1 (2000)).
58. Id.
59. Id.
60. Id.
61. Id. at 796-97 (citing Memphis Pub. Co. v. City of Memphis, 513
S.W.2d 511, 513 (Tenn. 1974); Benson v. McCormick, 578 P.2d 651,653 (Co.
1978)).
62. Id. at 797-99.
63. Id. at 797.
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public bodies must provide “fair notice” to the public in a manner
that would, under the “totality of the circumstances,” “fairly
inform the public of the nature of the business to be discussed or
acted upon.”64
Applying this “totality of the circumstances” standard to the
present case, the court found that the town council had not met
this standard.65 The court stated that a notice which declares that
a meeting’s agenda is to conduct “Interviews for Potential Board
and Commission Appointments” neither “states nor implies” that
any voting on these potential board members would occur.66 The
court referred to the dictionary definition of the word “interview”
and found the term to indicate only a “formal meeting . . . in which
facts or statements are elicited from another.”67 Relying on the
posted notice, a member of the public could not reasonably have
foreseen that, after these interviews, the council would vote on the
potential candidates.68 Therefore, under the “totality of the
circumstances,” it could not be held that the town council had
sufficiently provided a “statement specifying the nature of the
business to be discussed,” because the council proceeded to make
decisions of importance beyond that included in the public notice.
However, the court determined that because of the ambiguous
statutory language, the town council’s violation could not be
construed as “willful.”69
To be sure, the court stopped short of requiring that all
decisions to vote at public meetings must be signaled in the
requisite public notice.70 The town council’s violation lay in the
fact that its notice, describing interviews without mentioning an
intention to vote, was “misleading.”71
4. Attorney’s Fees
The town council’s final point of error was the issue of
64. Id.
65. Id. at 798.
66. Id.
67. Id. at 798 n.17 (quoting THE AMERICAN HERITAGE DICTIONARY 916
(4th ed. 2000)).
68. Id. at 798.
69. Id. at 802.
70. Id.
71. See id.
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attorney’s fees.72 The $11,193.89 awarded to the plaintiff by the
hearing justice was, in the town council’s view, “unjust” due to
“special circumstances.”73 The “special circumstanc[e]” argued by
the town council on appeal was that it should not be penalized for
acting in accordance with the findings of the Attorney General,
which stated that the intention to vote was not required on the
However, even the Attorney General’s findings
notice.74
mentioned that the notice could not be “misleading.”75 Under the
“totality of the circumstances,” the court had already determined
that the town council’s notice was in fact “misleading.”76
The Tanner court noted that attorney’s fees are mandatory
when an OMA violation has occurred, but that the legislature
granted the courts “a great deal of discretion” in determining the
amount of these fees.77 The purpose of the award was to “provide
an economic incentive to challenge violations of the OMA, deter
future violations, and penalize public bodies for noncompliance
with the act.”78 The court held, however, that the “great deal of
discretion” the Legislature had provided the courts in determining
such an award, requires that the courts consider “the myriad of
circumstances” surrounding issues of public notice and the “tenets
of justice and fairness.”79 Therefore, in addition to the burden
placed on the defendant to show “special circumstances,” the court
must make certain that the award is “proportional to the breach
and the effect thereof.”80
On the issue of attorney’s fees, the Tanner court diverged with
the determinations of the hearing justice. Employing the “abuse
of discretion standard,” the court concluded that the hearing
justice had only considered the fact that the council relied on the
opinions of the Attorney General as a “special circumstance” to
warrant mitigation of attorney’s fees.81 The Tanner court agreed
72. Id. at 799.
73. Id.
74. Id.
75. Id.
76. See id.
77. Id. at 800.
78. Id. at 794 n.10 (citing N.A.S. Imp., Corp. v. Chenson Enter., Inc., 968
F.2d 250, 254 (2d Cir. 1992)).
79. Id. at 800 (citing Edwards v. State, 677 A.2d 1347, 1349 (R.I. 1996)).
80. Id.
81. Id. at 801.
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with the hearing justice’s findings that such reliance on the
Attorney General’s findings would not meet the standard of
“special circumstances,” but that the greater issue of applying the
“inherent tenets of justice and fairness” remained.82 According to
the record, there was no indication that the hearing justice had
attempted to employ such standards to ensure that the remedy
was “proportional to the breach and effect thereof.”83
Rather than remanding the case with instructions for the
hearing justice to consider the “tenets of justice and fairness,” the
Tanner court determined, according to the full record before it,
that the award issue could be adjudicated on appeal.84 Adhering
to the standard of “justice and fairness,” the court looked
favorably upon the actions that the town council had taken when
it later provided proper notice for the November 26, 2001,
meeting.85 In the court’s view, the town council should not be
“further penalized when it [has taken] appropriate corrective
measures.”86 Establishing that the council’s October 23, 2001,
actions were not willful, that the statutory language was, at the
time, relatively unclear, and that the council acted to correct its
initial violation, the court reduced the award of attorney’s fees to
$1,500.87
COMMENTARY
In a 1996 article, Professor B. Mitchell Simpson expressed
concern that the Rhode Island Supreme Court had “yet to rule on
many important points” regarding the OMA – points which had
already been decided upon by “other state supreme courts and the
United States Supreme Court.”88 Chief among Simpson’s concerns
was that the lack of Rhode Island Supreme Court guidance left
public bodies with only the advisory opinions of the Attorney
General when attempting to understand the OMA.89 Such a state
of affairs was exactly the root of the controversy in Tanner. As
82. Id.
83. Id.
84. Id.
85. Id. at 802.
86. Id.
87. Id.
88. B. Mitchell Simpson, III, The Open Meetings Law: Friend and Foe, 45
R.I. B.J. 7, 8 (Oct. 1996).
89. Id.
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mentioned above, the East Greenwich town council relied on the
findings of the Attorney General.90 This finding supported an
interpretation that public notice under the OMA did not require
information about any vote that would take place at a public
meeting, provided the notice was not misleading.91 Without a
Rhode Island Supreme Court decision controlling the matter, it is
understandable that different parties would have different
interpretations of the OMA. Fortunately, Tanner provides greater
guidance by lending a degree of clarification on certain key
elements of the OMA.
On the issue of standing, the court’s interpretation of the term
“aggrieved” was effectively a decision for the people. The court’s
broad interpretation of the term enables a concerned citizen to
readily challenge those who violate this public right. However,
the court was careful to err on the side of political reality when it
determined that the requirements of public notice shall be subject
to a “totality of the circumstances” standard.92 Without such
consideration, the broad grant of standing would cause public
bodies to be liable for even the most questionable violations. This
end is also served by the obligation that the court imposed on the
lower courts to consider the “tenets of justice and fairness” when
determining the mandatory award of attorney’s fees.93 Rather
than simply granting the maximum amount in all cases of OMA
violations, the court ensured that the character of the violation
itself and any corrective measures taken by the public body would
be weighed against the harm done to the plaintiff.
Fortunately, Tanner provides greater guidance to the lower
courts on several key provisions of the OMA. However, the court’s
response created a flexible standard and therefore may leave room
for different understandings of related issues. The court’s decision
in Tanner was a much-needed step towards the clarification of key
OMA provisions.
CONCLUSION
In all, Tanner established a broad interpretation as to who
90.
91.
92.
93.
Tanner, 880 A.2d at 795.
Id. at 784.
Id. at 797.
Id. at 801.
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has standing to bring a claim alleging an OMA violation.
However, due to a realistic understanding of the function of public
bodies, the court refrained from providing an exact requirement
for what actually constitutes an OMA violation. The “totality of
the circumstances” standard sheds greater light on how a court
should determine whether a violation has occurred; but,
inevitably, this standard will ensure that differences of opinion
will arise from time to time as to whether a public body has indeed
violated the OMA.
Kevin Rolando
ESPOSITO
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Tort Law. Esposito v. O’Hair, 886 A.2d 1197 (R.I. 2005).
The common law collateral source rule is a well-established
principle of Rhode Island law. Absent a statutory provision to the
contrary, the collateral source rule prevents defendants in tort
actions from reducing their liability by presenting evidence that
the injured party received compensation for injuries from a source
wholly independent of the tortfeasor. Rhode Island General Law §
9-19-34.1, which abrogates the common law collateral source rule,
details a list of collateral sources, including payments from any
“state income disability” act, that are admissible in malpractice
actions to reduce a plaintiff’s damages. Medicaid is not a “state
income disability” act and thus is not an admissible collateral
source payment under § 9-19-34.1.
FACTS AND TRAVEL
In March of 2001, the plaintiff, Marion Thomson, filed suit
against Atmed Treatment Center, Inc., Hani Zaki, M.D., Inc., and
three individual physicians: James P. O’Hair, Daniel Regan, and
Hani Zaki.1 Thomson alleged that the defendants were negligent
when they failed to diagnose her with Hodgkins Lymphoma;
subsequently, on March 15, 2003, Thomson died from Hodgkins
Lymphoma.2 After Thomson’s death, her complaint was amended
to substitute Maria Esposito, executrix of Thomson’s estate, as
plaintiff in the action.3 Additionally, Dr. Zaki’s insurer, the
Medical Malpractice Joint Underwriting Association of Rhode
Island (MMJUA) was added as a defendant.4 In September of
2003, the parties reached a settlement agreement wherein
$440,000.00 was paid to the decedent’s estate, while an additional
sum of $381,689.26, the cost of decedent’s medical expenses, was
1. Esposito v. O’Hair, 886 A.2d 1197, 1198 (R.I. 2005).
2. Id.
3. Id.
4. Id. at 1198 n.1 (citing R.I. GEN. LAWS § 27-7-2 (2002) (prohibiting a
plaintiff from bringing a direct action against an insurer while the insured
defendant is alive; Dr. Zaki passed away after the initial complaint was
filed)).
913
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set aside.5
The defendants filed a motion for judgment as a matter of
law, contending that the plaintiff’s estate was not entitled to
recover medical expenses because they had been paid by Rhode
Island’s Medicaid program.6 The defendants contended that
under Rhode Island General Law § 9-19-34.1, plaintiff’s recovery
of medical expenses must be reduced by collateral source
payments made pursuant to a “state income disability” act.7
Plaintiff filed a cross motion, contending that Medicaid
benefits were not a “state income disability” act under § 9-19-34.1,
and as such, defendants were liable to the plaintiff estate for
Thomson’s medical expenses.8 Furthermore, the plaintiff claimed
that even if Medicaid payments were an admissible collateral
source under § 9-19-34.1, the statute would be preempted by
federal law, and further, would be unconstitutional.9
In April of 2004, the court entered judgment in favor of the
plaintiff.10 The court reasoned that § 9-19-34.1 must be strictly
construed, as it abrogates the common law collateral source rule
in that it allows defendants to offset their liability by presenting
evidence that a third party paid the plaintiff’s medical expenses.11
The court found that Medicaid was not a state income disability
act within the meaning of § 9-19-34.1 because it does not
compensate individuals for lost income, and disability is not a
prerequisite to establishing eligibility for Medicaid benefits.12
Because the court agreed with the plaintiff that Medicaid benefits
were not an admissible collateral source under § 9-19-34.1, it
declined to address the two constitutional arguments that were
raised.13 The defendants subsequently appealed.14
5. Id. at 1198.
6. Id.
7. Id. (citing R.I. GEN LAWS § 9-19-34.1 (2000)).
8. Id. Because there were no disputed issues of fact and the parties had
agreed as to the amount of damages, the motion justice applied a summary
judgment standard to the parties’ motions. Id. at 1198 n.3.
9. Id. at 1198.
10. Id. at 1199.
11. Id.
12. Id.
13. Id.
14. Id.
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BACKGROUND
In 1976, as a result of the increasing concerns over the limited
availability and increasing cost of medical malpractice insurance
premiums, the Rhode Island General Assembly enacted the
Medical Malpractice Reform Act.15 During that same legislative
session, the General Assembly also enacted Rhode Island General
Law § 42-14.1-1, authorizing the creation of the MMJUA.16 The
MMJUA provision was enacted to “stabilize the cost of medical
malpractice insurance by pooling expenses and losses in insurance
coverage.”17 The enactment of the Medical Malpractice Reform
Act also included the creation of a collateral source statute codified
as Rhode Island General Law § 9-19-34.18 Prior to this legislation,
if an injured party received compensation for injuries from a
source wholly independent of the tortfeasor, such payment could
not be deducted from the damages that the plaintiff would
otherwise collect from the tortfeasor.19 Section 9-19-34 effectively
abrogated the common law collateral source rule by making
collateral source benefits received by a plaintiff admissible in
medical malpractice actions against physicians.20 As originally
enacted, the Rhode Island collateral source provision identified a
list of admissible collateral sources.21 Among the list of admissible
collateral source benefits were payments received from “any state
or federal income disability or workers’ compensation act.”22
However, by 1986, concerns over the rising cost of medical
malpractice insurance had not subsided, and the MMJUA
experienced an accelerated negative financial position resulting in
a fund deficit; in response to these concerns, the legislature took
further action, passing An Act Relating to Malpractice.23 Similar
to the 1976 Act, the 1986 Act also included a collateral source
statute, Rhode Island General Law § 9-19-34.1.24 The newly
15. Id. (citing 1976 R.I. Pub. Laws ch. 244).
16. Id. at 1200 (citing 1976 R.I. Pub. Laws ch.1).
17. Id. (citing St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537
n.6 (1978)).
18. Id.
19. Id.
20. Id.
21. Id. (quoting R.I GEN. LAWS § 9-19-34 (1983)).
22. Id. (quoting R.I GEN. LAWS § 9-19-34 (1983)).
23. Id. (citing 1986 R.I. Pub. Laws ch. 350)
24. Id. at 1201.
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enacted collateral source statute, which extended its coverage to
include the professional malpractice of dentists and dental
hygienists, applied only to medical malpractice actions occurring
after January 1, 1987.25 The new statute was markedly similar to
its predecessor; the only modification relevant to Esposito was
that the General Assembly removed reference to payments made
pursuant to “federal” income disability or workers’ compensation
The relevant statutory language now reads: “[T]he
acts.26
defendant may introduce evidence of any amount payable as a
benefit to the plaintiff as a result of the personal injury pursuant
to any state income disability or workers compensation act. . . .”27
ANALYSIS AND HOLDING
On appeal, the defendants contended that § 9-19-34.1 was a
“remedial statute that should have been construed liberally to
include Medicaid payments.”28 Defendants claimed that the
proposed construction of the collateral source statute is most
consistent with the legislature’s goal of stabilizing the cost of
Furthermore,
medical malpractice insurance premiums.29
defendants contended that Medicaid is an “income disability act”
within the meaning of § 9-19-34.1 because a person must become
“income disabled” to be eligible for benefits.30
Conversely, the plaintiff contended that the court should
strictly construe § 9-19-34.1 because it effectively abrogates the
common law collateral source rule.31 In support of this position,
the plaintiff noted that other jurisdictions have strictly construed
collateral source statutes that limit a plaintiff’s recovery.32
“[Plaintiff] contend[ed] that these cases [were] consistent with this
Court’s well established rule that statutes that abrogate the
common law must be strictly construed.”33 The court agreed with
25. Id. (citing R.I GEN. LAWS § 9-19-34.1 (1986)).
26. Id.
27. R.I GEN. LAWS § 9-19-34.1 (1997).
28. 886 A.2d at 1199.
29. Id.
30. Id. at 1204.
31. Id. at 1202.
32. Id. at 1202-03 (citing Jones v. Kramer, A.2d 170, 177-78 (Conn.
2004); Allstate Ins. Co. v. Rudnick, 761 So.2d 289, 293 (Fla. 2000); Oden v.
Chemung County Indus. Dev. Agency, N.E.2d 142, 144 (N.Y. 1995)).
33. Id. at 1203 (citing Gem Plumbing & Heating Co. v. Rossi, 867 A.2d
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plaintiff and held that Medicaid was not an admissible collateral
source payment under section 9-19-34.1.34 In arriving at its
decision, the Esposito court considered the defendant’s two
principal contentions: (1) that § 9-19-34.1 was a remedial statute
that should have been construed liberally to include Medicaid
payments;35 and (2), that Medicaid is an income disability act
within the meaning of § 9-19-34.1.36
The court rejected defendant’s contention that § 9-19-34.1 was
a remedial statute.37 The court noted that “it is our view,
however, that a statute is not ‘remedial’ simply because its goal is
to improve societal woes.”38 The court reasoned that if this were
the case, then all statutes would be considered remedial to some
extent.39 The court noted that a remedial statute is “one which
affords a remedy, or improves or facilitates remedies already
existing for the enforcement or rights of redress of wrongs.”40 The
court reasoned that § 9-19-34.1 does not fit this definition because
unlike a remedial statute, §9-19-34.1 narrows the common law
collateral source rule by reducing a plaintiff’s recovery.41
Moreover, the court noted “whether we apply a strict or
liberal reading to § 9-19-34.1, we are not persuaded that the
legislature intended the term ‘income disability act’ to describe
this state’s Medicaid program.”42 The court reasoned that
although some Medicaid recipients are disabled, Medicaid could
not be defined as an “income disability” act because many
Medicaid recipients are not disabled, such as those who are aged
sixty-five or older.43 Furthermore, the court noted that some
individuals who are disabled might not qualify for Medicaid
benefits if their incomes exceed a certain amount; thus “disability
is not the lynchpin to the receipt of Medicaid.”44 Moreover, the
796, 803 (R.I. 2005)).
34. Id. at 1204.
35. Id. at 1199.
36. Id. at 1204.
37. Id. at 1203.
38. Id. (citing Ayers-Shaffner v. Solomon, 461 A.2d 396, 399 (R.I. 1983)).
39. Id.
40. Id. (quoting Ayers-Shaffner, 461 A.2d at 399).
41. Id. at 1203.
42. Id.
43. Id. at 1203-04 (citing R.I GEN LAWS § 40-8-3 (1997)).
44. Id. at 1204.
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court found that individuals receiving Medicaid benefits do not
actually receive income under the program; the court noted that
payments are made directly to medical care providers.45
Ultimately, the court found that Medicaid is not a “sate income
disability” act under § 9-19-34.1 because “even though some
Medicaid recipients may be disabled, these individuals do not
receive income under the program.”46 Finally, the court noted that
“our holding that Medicaid is not an admissible collateral source
payment under § 9-19-34.1 renders it unnecessary for us to
address whether the statute is preempted by federal law or is
otherwise unconstitutional.”47
COMMENTARY
Some observers may find the Rhode Island Supreme Court’s
decision in Esposito as unjust in that it grants a windfall to the
plaintiff’s estate by allowing the estate to gain at the taxpayers’
expense. An argument can be made that such a result is
inequitable in that a plaintiff in a medical malpractice action who
is ineligible to receive Medicaid benefits, and instead secures
health coverage from a private insurer, will receive less
compensation than a Medicaid beneficiary because benefits
received from a private insurance company will be admissible to
offset the defendant’s liability, unlike benefits received pursuant
to Medicaid. Even though the practical effect of the court’s
decision may appear inequitable, it would be even more unjust to
relieve private tortfeasors and their insurers from liability at the
taxpayers’ expense. While it seems more just in this case that the
plaintiff received the windfall rather than the defendants, neither
result is equitable. Perhaps Rhode Island General Law § 9-1934.1 should be amended so that all plaintiffs proceeding in a
medical malpractice action will be entitled to the same amount of
recovery regardless of whether the plaintiff’s medical expenses
were paid by Medicaid or a private insurer.
45.
46.
47.
Id.
Id.
Id.
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CONCLUSION
The Rhode Island Supreme Court held that Medicaid is not a
“state income disability” act within the meaning of § 9-19-34.1
and, thus, Medicaid benefits were not an admissible collateral
source to be deducted from estate’s damages.48
Jason Van Volkenburgh
48.
Id. at 1204.
PERROTTI
5/15/2006 9:02 PM
Tort Law. Perrotti v. Gonicberg, 877 A.2d 631 (R.I. 2005). A
pregnant woman cannot recover under a theory of negligent
infliction of emotional distress for mental anguish without
physical symptomatology exceeding the “black cloud” that followed
her around until the child was born. Similarly, a pregnant woman
may not recover under an alternative theory of mental anguish
stemming from her concern for the health of her unborn child,
which was wholly unsupported by medical diagnostics and absent
any physical suffering associated with the pregnancy.
FACTS AND TRAVEL
Jamie and Paul Perrotti were in an automobile accident
involving the defendant, Paul Gonicberg, which took place on
December 25, 1998.1 At the time of the accident, Mrs. Perrotti, a
passenger in the vehicle, was approximately six-months
pregnant.2 Other occupants included the driver, Mr. Perrotti, and
a backseat passenger, the couple’s two-year-old daughter, Ashley.3
Mrs. Perrotti sustained injuries to both her head and knee,
resulting from contact with the windshield and dashboard
respectively.4 She received medical attention immediately
following the accident.5 Emergency personnel performed an
ultrasound and subsequently informed Mrs. Perrotti that
everything was fine with the baby.6 In addition to her physical
injuries, Mrs. Perrotti testified that she suffered emotional
injuries including being shaken up, nervous, and scared due to
concern regarding the well-being of her baby.7 Mrs. Perrotti
testified that a “black cloud” loomed over her for the eighty-eight
days from the day of the accident through the day that she
1. Perrotti v. Gonicberg, 877 A.2d 631, 633 (R.I. 2005).
2. Id.
3. Id.
4. Id.
5. Id.
6. Id.
7. Id. at 634.
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delivered her baby, who was indeed healthy at delivery.8 Mrs.
Perrotti received no additional medical consultation or treatment
for any of the psychological symptoms contained in her testimony.9
Mrs. Perrotti filed a negligence action against Mr. Paul
Gonicberg seeking damages for physical and psychological
injuries.10 Prior to trial, Gonicberg filed a motion in limine
seeking to prevent introduction of Mrs. Perrotti’s testimony
regarding her psychological injuries, based on the lack of medical
evidence to support that claim.11 Gonicberg also sought to
preclude Mrs. Perrotti from introducing any evidence of physical
injury to passenger Ashley and any loss in wages resulting
therefrom.12 Mrs. Perrotti stipulated to the exclusion of evidence
regarding lost wages, but contested the remaining two items.13
The trial justice granted Gonicberg’s motion concerning Ashley’s
injuries, but denied the motion regarding the psychological injury
testimony, in order to “see what plaintiff presents.”14
At trial, the parties stipulated to the issue of Gonicberg’s
liability, leaving damages as the only consideration for the jury.15
Prior to submitting the case to the jury, the trial justice
involuntarily dismissed Mrs. Perrotti’s claim for emotional injury
resulting from the concern about the health of her unborn child.16
The jury subsequently awarded plaintiffs $750.17 Mrs. Perrotti
filed a motion for a new trial, which was denied.18 It was from this
8. Id.
9. Id.
10. Id. at 633.
11. Id. at 634.
12. Id.
13. Id.
14. Id.
15. Id. at 633.
16. Id. at 635. The trial justice relied on Rule 50(a)(3) of the Rhode Island
Superior Court Rules of Civil Procedure for the authority to grant judgment
as a matter of law for defendants. Id. The rule states:
When a motion for judgment as a matter of law is made at the close
of the evidence offered by an opponent, the court in lieu of granting
the motion may order the claim involuntarily dismissed on such
terms and conditions as are just, and the dismissal shall be without
prejudice. In the absence of a motion, the court may take such action
on its own initiative.
R.I. SUP. R. CIV. P. 50(a)(3).
17. 878 A.2d. at 633.
18. Id.
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denial that the plaintiff appealed to the Rhode Island Supreme
Court.19
ANALYSIS AND HOLDING
The plaintiff’s appeal challenged the trial court’s rulings,
which had prevented the jury from considering the psychological
injury claim and also from hearing evidence as to Ashley’s
injuries.20 Mrs. Perrotti cited the case of Arlan v. Cervini21 in
support of her claim that physical symptomatology is not required
when the plaintiff suffers from mental anguish caused by physical
bodily injury.22 Additionally, the plaintiff relied on Gagnon v.
Rhode Island Co.23 to illustrate the court’s willingness to allow a
pregnant woman to recover damages for the mental anguish
resulting from her apprehension of potential birth deformities
after being physically injured.24
Damages for Mental Suffering
The Rhode Island Supreme Court identified two potential
theories under which the plaintiff was entitled to recover: 1) the
theory of negligent infliction of emotional distress, as was utilized
by the trial court;25 2) the theory that a pregnant woman “is
entitled to damages for mental suffering despite the absence of
physical symptoms.”26
The court set forth the two elements necessary to prevail
under a theory of negligent infliction of emotional distress: first,
the plaintiff must be physically endangered by the defendant’s
negligent acts as a result of her presence in the zone of danger;27
second, the plaintiff’s emotional injury must be accompanied by
physical symptomatology.28
19. Id.
20. Id. at 635.
21. 478 A.2d 976 (R.I. 1984).
22. 877 A.2d at 635.
23. 101 A. 104 (R.I. 1917).
24. 877 A.2d at 635-36.
25. Id. at 636.
26. Id. at 638.
27. Id. at 636 (citing Jalowy v. Friendly Home, Inc., 818 A.2d 698, 710
(R.I. 2003) (citing Marchetti v. Parsons, 638 A.2d 1047, 1049, 1051 (R.I.
1994))).
28. Id. at 637. (citing Marchetti, 638 A.2d at 1052).
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As to the element of physical symptomatology, the court
recognized the “very fine line” which courts walk when
determining this threshold, noting that in the past the court had
adopted a “relaxed standard”29 as in Grieco v. Napolitano.30
However, the court distinguished that case on two grounds. First,
the court emphasized that the plaintiff in Grieco suffered from
physician-diagnosed post-traumatic stress disorder.31 In contrast,
the court noted that Mrs. Perrotti lacked any medical support for
her assertions of emotional injury.32 Second, and more
importantly, the court pointed to the causal relationship between
the defendant’s negligent actions in Grieco and that plaintiff’s
symptoms.33 Conversely, the court noted the complete lack of
connection between Mrs. Perrotti’s physical injuries as caused by
the defendant (her scraped chin and knee) and her claimed
emotional injury (the looming “black cloud”).34 In addition,
regardless of the causal connection between the negligent acts and
the mental anguish, the court found the “black cloud” which
plagued Mrs. Perrotti was not included in the symptomatology
required to establish a prima facie case under a theory of
negligent infliction of emotional distress.35 Consequently, the
court upheld the trial court’s decision to grant judgment as a
matter of law for defendants under a theory of negligent infliction
of emotional distress.36
The court then addressed the plaintiff’s second legal theory,
that a pregnant woman is entitled to such damages even absent
physical symptoms.37 The plaintiff relied on Arlan v. Cervini38 and
Gagnon v. Rhode Island.39 The court briefly distinguished both
cases. In Arlan, a plaintiff was able to recover damages for
29. Id. at 637-38.
30. 813 A.2d 994 (R.I. 2003). Grieco relied on cases that found symptoms
such as severe nightmares, headaches, suicidal thoughts, sleep disorders,
reduced libido, and fatigue to be sufficient physical manifestations of
emotional injuries. See id.
31. 877 A.2d at 638 (citing Grieco, 813 A.2d at 996-98).
32. Id.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. 478 A.2d 976 (R.I. 1984).
39. 101 A. 104 (R.I. 1917).
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mental anguish for her symptoms including nervousness, grief,
anxiety, and worry.40 However, the court easily distinguished
Mrs. Perrotti’s suffering from that of the plaintiff in Arlan, whose
mental anguish sprung directly from extensive facial scarring,
caused by the accident in that case.41 The court pointed to Mrs.
Perrotti’s comparatively minor injuries and the lack of any “direct
relationship between the physical injuries suffered as a result of
the accident and the mental suffering claimed.”42
The plaintiff in Gagnon was more analogous to Mrs. Perrotti,
but was equally distinguishable. In that case, the plaintiff, a
pregnant woman, was struck by a street car and immediately felt
pain in her back and side and felt the baby pushing toward one
side.43 That plaintiff was awarded mental damages for the
apprehension and anxiety she suffered connected with her concern
for her unborn baby’s health.44 In that case, the woman’s right to
damages arose because she was “deprived of the right and the
satisfaction of bearing a sound child.”45 Mrs. Perrotti contended
that Gagnon stood for the proposition that recovery for
“apprehension that [a woman] would give birth to a deformed
child” was allowable.46
Mrs. Perrotti cited additional cases from other jurisdictions
The court found two important
supporting her claim.47
distinctions between Gagnon, the accompanying cases, and the
case of Mrs. Perrotti.48 First, all of the cases cited were in a time
period before reliable antenatal diagnosis.49 Second, the injuries
suffered by the plaintiffs in those cases were either directly to the
abdomen or consisted of symptoms related to the pregnancy
itself.50 The court stated that it was not willing to “close off the
40. Perrotti, 877 A.2d at 638 (citing Arlan, 478 A.2d at 978).
41. Id. at 638-39 (citing Arlan, 478 A.2d at 978).
42. Id. at 639.
43. Gagnon v. R.I. Co., 101 A. 104, 105 (R.I. 1917).
44. Id.
45. Id.
46. Perrotti, 877 A.2d at 640.
47. Id. (citing Prescott v. Robinson, 69 A. 522 (N.H. 1908); Fehely v.
Senders, 135 P.2d 233 (Or. 1943); Rosen v. Yellow Cab Co., 56 A.2d 398 (Pa.
1948)).
48. Id.
49. Id.
50. Id.
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avenue of recovery . . . for pregnant women who suffer mental
anguish as a result of a defendant’s wrongful conduct;”51 however,
it contended that it was necessary to “reposition” the Gagnon
holding in a “twenty-first century context.”52
The court listed the factors distinguishing those cases from
Mrs. Perrotti’s: she sustained no injury to her abdomen; she did
not suffer from any pregnancy-related symptoms; she was
explicitly informed by medical personnel that the baby was fine;
she obtained an ultrasound which confirmed the health of the
baby; and, she did not seek any medical or psychological
treatment for her emotional symptoms.53 In none of the cases by
Mrs. Perrotti were the plaintiffs assured of the health of the
baby.54 Finding this list of facts detrimental to Mrs. Perrotti’s
case, the court held that “[Mrs. Perrotti] may not recover for
mental anguish for a potential injury to her unborn child that is
wholly unsupported by any physical suffering during and after the
incident in question and that explicitly has been ruled out by
routine medical diagnostics.”55
Evidence of the Minor Child’s Injuries
Mrs. Perrotti also contended that Ashley’s injuries were
relevant evidence as to her own apprehension and as to her
credibility as a plaintiff.56 The defendant pointed to the separate
claim filed on behalf of Ashley, and argued that any claim of loss
of consortium was relevant only to that separate claim.57 The
court upheld the trial court’s decision to prohibit the evidence of
Ashley’s injuries without any significant discussion, finding no
indication of abuse of discretion on the part of the trial justice.58
51.
52.
53.
54.
55.
56.
57.
58.
Id. at 641.
Id.
Id. at 640-41.
Id. at 640.
Id. at 641.
Id.
Id. at 641-42.
Id. at 642.
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COMMENTARY
The court in this case emphatically limited its decision to the
facts at hand.59 While the advent of antenatal diagnosis ensures
that in most cases the mother can be assured of her child’s safety,
the court did not take away the possibility that a pregnant woman
in such circumstances as Mrs. Perrottti might be able to recover
damages for mental anguish.60 Therefore, it is important to
question which factors were essential to the court’s holding. The
court’s analysis seems relatively effortless given this set of facts.
However, the opinion’s implications for future cases remains
unclear considering the court’s lack of guidance concerning which
factors were essential to the holding. Based on the court’s
analysis, it appears that injury directly to the abdomen would
significantly advance a claim. But it remains unclear whether
such injury would be sufficient if the mother was assured by
medial personnel after an ultrasound or other similar testing that
the baby was fine. Similarly, the court places some emphasis on
the plaintiff’s lack of treatment for her psychological symptoms,
but does not give any guidance as to whether such psychological
treatment would suffice to overcome a lack of physical
sympomatology or injury to the abdomen.
The court also left open the question of whether the
apprehension and anguish associated with the potential injury to
an unborn child are to be analyzed using an objective or subjective
standard. The court makes only a passing reference to the
emotions suffered by Mrs. Perrotti as they compared to the
average mother’s emotional symptoms during pregnancy. There is
no guidance concerning whether an overly sensitive or
apprehensive mother would be able to recover if additional factors
were satisfied such as physical injury to the abdomen. This
uncertainty has subtle implications for future cases. Plaintiffs
could bring forward claims, unsure of which factors must be
emphasized above others, and unsure of the proper standard to
apply to each circumstance. However, this is similar to many
situations in which the court applies a “totality of the
circumstances” type standard. The court has chosen to make the
59.
60.
See id. at 640-42.
Id. at 641.
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determination on a case-by-case basis as to which factors will be
sufficient for recovery. Future litigants will have to analogize and
distinguish the various facts of their own claim against the many
considerations of the court in this case and those relied on by the
parties.
CONCLUSION
The Rhode Island Supreme Court held that a plaintiff could
not recover for mental damages associated with her concern for
her unborn child’s health absent physical injury directly affecting
the abdomen or symptoms directly related to such pregnancy. In
this case, the plaintiff, a pregnant woman injured by defendant’s
negligence, received no psychological treatment and her concerns
were wholly unsupported by medical tests and personnel.
Consequently, she could not recover for her claimed psychological
injury.
Christine List
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Tort Law. Seide v. State, 875 A.2d 1052 (R.I. 2005). The
public duty doctrine, which restricts tort liability for certain
governmental functions, is a judicially crafted exemption to the
sovereign immunity waiver of the Rhode Island Tort Claims Act.
However, the Rhode Island legislature has clearly and
unambiguously required emergency vehicles to operate “with due
regard for the safety of all persons,” and expressly waived
protection for “the consequences of the driver’s reckless disregard
for the safety of others,” making the public duty doctrine
inapplicable to this case. The Rhode Island Supreme Court held
that the questions of whether the driver’s conduct was reckless,
and whether such conduct was the proximate cause of the
plaintiff’s injury, are generally questions for the jury.
FACTS AND TRAVEL
Early on the morning of April 5, 1994, the plaintiff, Mary
Seide, enroute home after spending Easter weekend with her
family, took a break to sleep in the passenger seat of her car; she
stopped about 100 to 150 feet behind a state police roadblock in
the northbound lane of interstate 95.1 She was jolted awake when
a stolen flatbed tow truck, traveling the wrong direction down the
interstate, swerved around the roadblock and slammed into her
car, seriously injuring her so that she had to be taken to the
hospital by ambulance.2
The truck had been stolen in East Providence around
midnight, prompting an alert to the East Providence Police
Department.3 Soon thereafter, a detective saw a truck matching
the description traveling west on interstate 195 and followed it,
without activating his lights or siren, to confirm it was the stolen
truck.4 As the detective followed the truck, it “traveled ‘[r]ight
within the speed limit’ and was not driven in an unusual
1. Seide v. State, 875 A.2d 1259, 1262, 1265 (R.I. 2005).
2. Id. at 1265.
3. Id. at 1262.
4. Id. at 1262, 1264.
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manner.”5 After confirmation that the truck was stolen and the
arrival of two other police cruisers, the three officers activated
their lights and sirens and attempted to stop the truck, but the
driver swerved toward the cruisers and refused to stop.6
For the next thirty minutes, the officers pursued the truck as
it tried to evade them by exiting and re-entering the interstates
and speeding through downtown Providence, not stopping for red
lights or stop signs.7 The truck was traveling between sixty and
seventy miles an hour, swerving at the pursuing police cruisers,
driving over sidewalks, and running down “a small tree or sign”
along the side of the road.8 The truck re-entered interstate 95,
heading south in the northbound lane at speeds over ninety miles
an hour, with at least three police cruisers in pursuit.9 Even
though traffic was “light to non-existent,” back at police
headquarters the supervising officer, Lieutenant Barlow, realized
that the situation had become unsafe and ordered his officers to
end their pursuit.10 One officer left the highway, but two officers,
while slowing and discontinuing efforts to stop the truck, stayed
on the highway with emergency lights energized.11 The truck
continued south in the northbound lane of the interstate, where it
encountered the roadblock, swerved around, and slammed into the
plaintiff’s car.12
On March 27, 1997, Seide filed suit in Superior Court, seeking
damages for injuries she alleged were sustained when the stolen
truck slammed into her car.13 The Superior Court granted
judgment as a matter of law to the remaining defendants,14
5. Id. at 1264.
6. Id.
7. Id. at 1262-64.
8. Id. at 1264.
9. Id.
10. Id. at 1264-65.
11. Id. at 1265.
12. Id. The driver of the truck later entered a plea of nolo contendere to
five counts, for which he received one year in prison, with the remainder of
the sentences suspended and with subsequent probation. Id. at 1263 n.1.
13. Id. at 1263-64.
14. Id. at 1265. The suit named the defendants as: “the State of Rhode
Island; the Rhode Island State Police and state police officers Captain Gary
Treml and Corporal Ernest Quarry; the City of East Providence and its
treasurer; and East Providence police officers Detective Diogo Mello and
Patrolman Robert Warzycha.” Id. at 1263. While “the City of Providence and
its treasurer, the City of Pawtucket and its treasurer, and Jerry’s Chevron”
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concluding that they were “immune from suit under the Public
Duty Doctrine,” and that the plaintiff had failed to produce any
evidence that the police conduct was the proximate cause of the
accident.15 The plaintiff subsequently appealed.16
ANALYSIS AND HOLDING
On appeal, the plaintiff asserted that: (1) the defendants were
not shielded by the public duty doctrine because their conduct
during the high-speed chase was reckless; and (2) judgment as a
matter of law was improperly granted on the issue of proximate
cause.17 The Rhode Island Supreme Court considered this the
“first occasion” to consider whether the legislature statutorily
waived immunity under the public duty doctrine, and determined
that “[t]he Public Duty Doctrine will not shield . . . defendants
from liability for injuries proximately arising from their reckless
conduct or in circumstances in which no real emergency exists.” 18
Therefore, the public duty doctrine was not a per se bar to the
plaintiff’s suit and judgment as a matter of law was improperly
granted.19 Because the defendants had no sovereign immunity, it
was for a jury to decide whether the officers’ conduct was reckless
and whether a real emergency existed.20 The issue of proximate
cause was also inappropriate for judgment as a matter of law
because the facts and reasonable inferences, when viewed in the
light most favorable to the plaintiff, could have reasonably led the
jury to conclude that the police should have terminated the
pursuit before the plaintiff was injured, and that continuing the
pursuit “was in reckless disregard for the safety of others.”21 The
court vacated the judgment and remanded the case for a new
trial.22
(the owner of the truck) were also named in the original suit, they were not
parties to the appeal. Id. at 1264 n.2.
15. Id. at 1265.
16. Id.
17. Id.
18. Id. at 1267, 1269.
19. Id. at 1268.
20. See id. at 1269-71.
21. Id. at 1269.
22. Id. at 1272.
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Public Duty Doctrine
Under the doctrine of sovereign immunity, governmental
entities are immune from private suits unless such immunity is
waived;23 the Rhode Island legislature has waived sovereign
immunity statutorily through the Rhode Island Tort Claims Act
(RITCA).24 The court stated that RITCA purports to provide a
broad waiver of immunity and make all governmental entities
“liable in all actions of tort in the same manner as a private
individual or corporation,”25 but the presumption is that the “‘the
Legislature did not intend to deprive the state of any sovereign
power ‘unless the intent to do so is clearly expressed or arises by
necessary implication from the statutory language.’”26 Therefore,
the court created the public duty doctrine to “restrict tort liability
for the state and its municipalities for governmental functions,
albeit with certain exceptions.”27
One of the exceptions to the public duty doctrine arises in the
operation of emergency vehicles; the court discussed how one
statute affords certain privileges to the drivers in the performance
of their duties, but another statute limits the protection.28 Prior to
the creation of the public duty doctrine, the court had concluded
that, if the driver of an emergency vehicle exhibited a “reckless
disregard for the safety of others,” the privileges extended to him
by law would be withheld.29 After the creation of the public duty
doctrine, the court decided it must re-examine “whether § 31-12-9
continue[d] to constitute a legislative waiver of immunity under
23. See id. at 1266-68.
24. See R.I. GEN. LAWS § 9-31-1 (1997 & Supp. 2005).
25. 875 A.2d 1267 n.9 (quoting R.I. GEN LAWS § 9-31-1 (1997 & Supp.
2005)).
26. Id. at 1268 (quoting Torres v. Damicis, 853 A.2d 1233, 1237 (R.I.
2004) (internal citation and brackets omitted)).
27. Id. at 1267 (citing Calhoun v. City of Providence, 390 A.2d 350 (R.I.
1978)).
28. Id. at 1266-68 (discussing R.I. GEN. LAWS § 31-12-9 (2002) and § 3112-6(a) (2002)). In Rhode Island, drivers of emergency vehicles are privileged
to disregard many traffic laws in the performance of their duties. See R.I.
GEN. LAWS § 31-12-7 (2002). But drivers must also exercise “due care for the
safety of all persons,” and are not protected “from the consequences of [their]
reckless disregard for the safety of others.” R.I. GEN. LAWS § 31-12-9 (2002).
29. 875 A.2d at 1267 (citing Roberts v. Kettelle, 356 A.2d 207, 213-14
(R.I. 1976)).
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the Public Duty Doctrine.”30
The court stated that as a matter of statutory construction, if
the intent of the legislature is “clear and unambiguous,”31 even
when the language is “closely parsed and strictly construed,”32
such intent supersedes any judicially crafted limitations.33 The
court goes on to say that the statutory language of § 31-12-9 is
“clear and unambiguous,” explicitly indicating the legislature’s
intent.34 Therefore, the court determined that the legislature
expressly waived sovereign immunity when the conduct of
emergency vehicle drivers is in “reckless disregard for the safety of
others,” and the judicially crafted public duty doctrine provides no
shield.35
Proximate Cause
The plaintiff in Seide alleged that the defendants acted “in
reckless disregard for the safety of others;” in order to survive a
motion for judgment as a matter of law, the trial judge had to find
that “sufficient evidence upon which reasonable persons could
conclude that the officer was not confronted with a true emergency
or that he or she conducted the pursuit in reckless disregard for
the safety of others and, but for this reckless conduct, injury to
plaintiff would not have occurred.”36 The court then determined
that the “existence and the extent of a duty of care are questions
of law . . . [but] whether such duty has been breached and whether
proximate cause [exists] are the questions for the factfinder.”37
The court looked to the record and determined that the
plaintiff had “produced evidence that reasonably could [have] lead
to the conclusion that the officers’ decision to continue the pursuit
and their failure to terminate the chase earlier, when they
realized the danger it posed to themselves as well as innocent
30.
31.
32.
2004)).
33.
34.
35.
36.
37.
1993)).
Id.
Id.
See id. at 1268 (quoting Torres v. Damicis, 853 A.2d 1233, 1237 (R.I.
See id. at 1267-68.
See id. at 1268 (citing R.I. GEN. LAWS § 31-12-9 (2002)).
See id.
Id.
Id. (quoting Rodrigues v. Miriam Hosp., 623 A.2d 456, 461 (R.I.
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citizens, was in reckless disregard for the safety of others.”38 The
court further determined that the evidence “reasonably could lead
to the inference that [the truck driver] drove onto Route 95
because the police continued to chase him and that they should
have terminated the pursuit at a point before the plaintiff was
injured.”39 Because sufficient evidence was presented, the court
held that “[t]he issue of proximate cause was a determination for
the jury,” and that judgment as a matter of law was improperly
granted.40
The court then addressed the defendants’ claim on appeal
that the driver’s actions were an independent intervening cause
which warranted judgment as a matter of law.41 The court stated
that “[i]ntervening cause exists when an independent and
unforeseeable intervening or secondary act of negligence occurs,
after the alleged tortfeasor’s negligence, and that secondary act
becomes the sole proximate cause of the plaintiff’s injuries.”42
However, if the intervening cause was reasonably foreseeable,
then “the causal chain remains unbroken.”43 The court discussed
that if the evidence would allow a reasonable jury to conclude that
the intervening cause was reasonably foreseeable, then
foreseeability is a question for the jury, not the trial judge.44 Here,
it was for the jury to decide whether the stolen truck would have
continued to travel the wrong direction on the interstate if the
police had not continued to follow.45
Duty of Care
The defendants claimed expert testimony was required so
that the jury could understand the “proper manner of conducting a
high-speed pursuit, and in particular when to break off . . . the
pursuit.”46 Expert testimony is required for matters not obvious to
38. Id. at 1269.
39. Id.
40. Id. at 1271.
41. Id. at 1270-71.
42. Id. at 1270 (quoting Contois v. Town of W. Warwick, 865 A.2d 1019,
1027 (R.I. 2004)) (emphasis added).
43. Id. (quoting Almeida v. Town of N. Providence, 468 A.2d 915, 917
(R.I. 1983)).
44. See id. at 1270-71.
45. See id.
46. Id. at 1271.
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a lay person or beyond common knowledge.47 However, the court
did not require expert testimony because “ordinary, intelligent lay
juror[s]” understand traffic laws, and the jury could “draw upon
its collective experience” to decide if the officers’ conduct was in
reckless disregard for the safety of others.48
Police Pursuit Policy
The court discussed how the East Providence Police
Department, in accordance with state law,49 established a
department-wide pursuit policy that stated that chases “should
never be carried to the extent as to appreciably endanger the lives
and property of either innocent users of the highway, the violator,
or the officer . . . .”50 The court determined that this policy
established the standard of care owed by the officers, and that
“violation of th[is] polic[y] could serve as evidence of the
defendants’ reckless disregard for the safety of others.”51
COMMENTARY
This case illustrates the tragic results of what can go wrong in
a high-speed police chase – an innocent bystander was severely
injured.52 But, it is also illustrates the conflicts between various
public policies and the issues of institutional competence and
judicial restraint.
Public Policy
On one hand is a very sympathetic plaintiff – an innocent
bystander who happened to be in the wrong place at the wrong
time and had her life changed forever. Is it fair to deny her
recovery when there was absolutely no fault on her part? Yet, on
the other hand, there are the brave and loyal police officers that
sacrifice for our community. They risk their lives to protect us
from predation by those who refuse to live by society’s rules and
47. See id.
48. Id.
49. See R.I. GEN. LAWS § 31-12-6(b) (2002).
50. 875 A.2d at 1272.
51. Id.
52. Id. at 1265.
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that ask only that we are as loyal to them as they are to us. Is it
fair to hold them individually accountable for the acts of the
criminals from whom they are trying to protect us in the first
place?
It seems unlikely that someone who steals trucks would have
the means to make reparations to the injured plaintiff, so the
plaintiff looked to the city. But, in this instance, the city has
carefully crafted a police pursuit policy that shifts the onus to the
officer to make the decision whether a police chase will
“appreciably endanger the lives and property of either innocent
users of the highway, the violator, or the officer,” and directs that
pursuits shall “never be carried to [such an] extent.”53 The only
way to ensure the plaintiff receives reparations is to find that the
individual officers failed in their duty to the public. But, finding
for the plaintiff has its attendant consequences – a sense of
disloyalty to those who protect and serve the public, the personal
impact on the lives and careers of the officers involved, and the
broader future implications of the decision. This opinion may
make police more reluctant to pursue fleeing criminals, who will
quickly learn that the more dangerous they are in the course of
flight, the more likely the police will terminate the pursuit, and
the more likely the criminal will evade capture. These are the
types of questions that the Seide jury will face on remand.
Perhaps the trial judge, recognizing that this was a no-win
decision for the jury, took the issue from them and decided that, as
a matter of law, the defendants were not liable.54 This segues to
the next issue: who should decide what the public policy should
be?
Institutional Competence / Judicial Restraint
Courts and legislatures have long operated in tension when it
comes to deciding public policy. Legislatures speak with the
collective voice of the people, but react slowly, and often only in
response to past events where the outcome was unpopular,
53. Id. at 1272. Is there any high-speed chase which would not involve
danger to the officer and/or the suspect involved? If not, there is no truly
meaningful choice on the part of the officer, and the policy merely shifts the
risk from the organization, which is better situated to bear that risk, to the
individual officer.
54. Id. at 1265.
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providing prospective relief for future occurrences, but no remedy
for the individual circumstances that initiated the controversy.
Courts can shape policy by their response to the individual
circumstances of the case or controversy before them, and, by stare
decisis, shape the response to similar future circumstances. Yet
when judges intervene, particularly on politically divisive topics,
there may be backlash allegations of judicial activism and
legislating from the bench.
This is the challenge faced by the courts in this case. The
Rhode Island Supreme Court had already crafted the public duty
doctrine,55 which was used by the trial judge to shield the officers
from liability.56 Or the doctrine of independent intervening cause
could have vitiated the proximate cause requisite to liability.57
However, the Rhode Island Supreme Court precluded the trial
judge from invoking the protection of these doctrines on remand.58
While the court could have shaped public policy directly by
upholding either basis for the judgment as a matter of law, its
decision to remand the case is a much more subtle strategic
maneuver.
While government officials may empathize with the plight of
the plaintiff, their duty is to preserve scarce public resources for
the good of the many, even at the cost of a few individuals. As
long as the public duty and independent intervening cause
doctrines acted as potential shields to all liability for the
defendants, meaningful settlement negotiation was unlikely. But,
by remanding the case without the protection of the doctrines, the
city has been given the incentive to settle the case, because
minimizing liability is in the taxpayers’ best interest. This allows
the city to make reparations to the deserving plaintiff without
necessarily finding that the individual officers were at fault.59
55. Id. at 1267 (citing Calhoun v. City of Providence, 390 A.2d 350 (R.I.
1978)). The public duty doctrine itself may have run counter to the public
policy of a broad waiver of sovereign immunity granted by the legislature in
the Rhode Island Tort Claims Act. See R.I. GEN. LAWS § 9-31-1 (1997 & Supp.
2005).
56. 875 A.2d at 1265.
57. See id. at 1270-71.
58. See id. at 1268, 1270-72.
59. This is not to say that officers should have blanket immunity to act
recklessly, merely that internal police procedures, rather than the courts, can
determine whether further action is required regarding the officers’ actions,
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If the issue is forced to trial, the jury will be faced with the
unenviable choices outlined above. However, no matter which
way the jury decides, the resulting public furor60 may move the
legislature to clarify policy, thereby still achieving the strategic
goal of shaping public policy.
CONCLUSION
The Rhode Island Supreme Court determined that “[t]he
Public Duty Doctrine will not shield . . . defendants from liability
for injuries proximately arising from their reckless conduct or in
independent of any pressure to compensate the injured plaintiff.
One lingering concern involves the court’s notion that a post facto analysis of
the suspect’s purported crime should be weighed as a factor in determining
whether the pursuit was justified. See id. at 1269 (inferring that there may
have been no “real emergency” because stealing the truck was merely a
property crime, and that it was not until officers tried to stop the truck that
the dangerous pursuit began). This minimizes the fact that a mere traffic
violation may in reality be the reason that a violent felon is stopped by
police. See e.g., Pam Belluck, Fugitive in Gay Bar Attacks Dies After Shootout
With Arkansas Police, N.Y. TIMES, Feb. 6, 2006, at A14. In a recent incident,
a fugitive suspect in the hatchet attack and shooting of several patrons of a
New Bedford, MA, bar shot and killed an Arkansas police officer during a
routine traffic stop. A twenty-mile police pursuit ensued, with the chase
ending only after police deployed spike strips to puncture the suspect’s tires,
causing a crash. During a subsequent shootout with police, the suspect shot
and killed the passenger in his car before turning the gun on himself and
committing suicide. Id.; see also Rampage Suspect’s Death Called Suicide,
L.A. TIMES, Feb. 8, 2006, at A12.
The presumption should be that a fleeing suspect is a danger to society and
that the liability of the officer should not hang on a subsequent evaluation of
whether the suspect committed a crime serious enough to warrant pursuit.
Additionally, pursuit should rarely be terminated in response to a suspect’s
dangerous action; otherwise the policy teaches suspects to flee through
criminal Darwinism – those who stop are arrested; those who flee escape and
will flee again next time. While innocent bystanders injured in a police
pursuit should not have to bear the burden of their own damages, the
majority of pursuing police officers are no more at fault than the victims. The
blame needs to lie where it belongs – on the criminals who choose to run from
the police. That is why settlement without simultaneously judging officer
culpability achieves the best possible outcome for both the injured plaintiff
and the individual officers.
60. If the jury were to find for the plaintiff, the possible resulting rise in
aborted police pursuits would likely lead to more incidents of criminals
initiating pursuits in the first instance, creating public outcry that the police
need to be tougher on crime. If the jury were to find for the defendants, the
innocent and sympathetic plaintiff may suffer, which could be discordant
with the public’s sense of equity.
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circumstances in which no real emergency exists;” 61 as such, the
public duty doctrine was not a per se bar to the plaintiff’s suit and
judgment as a matter of law was improperly granted.62 The issue
of proximate cause was also inappropriate for judgment as a
matter of law because the facts and reasonable inferences, when
viewed in the light most favorable to the plaintiff, could have
reasonably led the jury to conclude that the police should have
terminated the pursuit before the plaintiff was injured, and that
continuing the pursuit “was in reckless disregard for the safety of
others.”63 The Rhode Island Supreme Court vacated the judgment
of the lower court and remanded the case for a new trial.64
Brian K. Koshulsky
61. 875 A.2d. at 1267, 1269.
62. Id. at 1268.
63. Id. at 1269.
64. Id. at 1272.
TEDESCO
5/15/2006 9:07 PM
Tort Law. Tedesco v. Connors, 871 A.2d 920 (R.I. 2005). The
applicability of the egregious conduct exception to the public duty
doctrine, which allows a plaintiff to “pierce the protective shell”
afforded by the public duty doctrine, is a mixed question of law
and fact. While the existence of a legal duty is purely a question of
law to be determined by a judge, there still exist certain
“predicate” or “duty-triggering” facts, the determination of which
must be left to the jury. Specifically, the predicate facts inherent
in the “egregious conduct exception” are: “whether the
governmental entity created or allowed for the persistence of
circumstances that forced a reasonably prudent person into a
position of extreme peril, and then failed to remedy that peril in a
reasonable time.” If no genuine factual dispute exists as to these
two predicate facts, only then is judgment as a matter of law
(JML) appropriate.
FACTS AND TRAVEL
Dawn Tedesco was injured when the front tire of her bicycle
slipped into a sewer grate while she was riding on a public
highway in the town of Johnston, Rhode Island.1 The bars of the
sewer grate ran parallel to the road, thus allowing the front tire of
Tedesco’s bicycle to slip through.2 Tedesco brought suit against
both the town of Johnston and the Rhode Island Department of
Transportation (DOT); the town decided to settle.3 Tedesco’s claim
against DOT centered on one particular fact: Fifteen years earlier
DOT had circulated a design policy memorandum discussing the
hazards of parallel bar sewer grates to bicyclists.4 DOT
subsequently adopted a policy of replacing parallel bar sewer
grates with bicycle safe sewer grates, though it had not yet
replaced the grate in this instance.5
At the end of Tedesco’s case, DOT moved for JML based, in
1. Tedesco v. Connors, 871 A.2d 920, 923 (R.I. 2005).
2. Id.
3. Id.
4. Id.
5. Id.
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part, on the public duty doctrine.6 The judge determined that the
public duty doctrine shielded the DOT in this case and that the
egregious conduct exception was inapplicable.7 DOT’s motion for
JML was therefore granted; Tedesco subsequently appealed.8
ANALYSIS AND HOLDING
On appeal, Tedesco did not argue that the public duty
doctrine was inapplicable to her case; rather, she argued that the
DOT’s conduct in this case was such that it should trigger the
egregious conduct exception to that doctrine.9 After discussing the
public duty doctrine and the egregious conduct exception
generally, the court went on to frame the issues presented in
terms of the standard for JML.10 In that context, this case offered
a question of first impression: Whether applicability of the
egregious conduct exception to the public duty doctrine is a
question of law for the judge or a question of fact for the jury.11 If
applicability of the egregious conduct exception is a question of
fact for the jury, then a judge could only grant a motion for JML
when the facts concerning the conduct of the otherwise immune
government entity are not genuinely in dispute.12 The approach
adopted by the court was to treat applicability of the egregious
conduct exception as a mixed question of law and fact, with
certain “duty-triggering” facts left for determination by the jury.13
If those “duty-triggering” facts are genuinely in dispute,
determination of the applicability of the egregious conduct
standard as a matter of law will amount to a judicial assumption
of the fact-finding function.14 The court found in the case at hand
that the existence of a fifteen-year-old memorandum concerning
the dangers posed to bicyclists from parallel design sewer grates
left room for a reasonable juror to find that the DOT’s conduct was
6. Id. DOT also claimed that it had no legal duty to insure the safety of
its roads for bicyclists. Id.
7. Id.
8. See id. at 924.
9. Id. at 924.
10. See id. at 924-26.
11. Id. at 924-25.
12. Id. at 925.
13. Id.
14. Id. at 925-26.
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egregious.15 The court therefore reversed the trial court’s
judgment as a matter of law and remanded the case for further
proceedings.16
The Egregious Conduct Exception Generally
The public duty doctrine itself requires a two-step analysis.17
First, a court determines whether the doctrine applies to the
particular facts of the case.18 Second, the court must determine
whether one of two exceptions to the public duty doctrine
applies.19 Those two exceptions are: (1) the special duty exception,
and (2) the egregious conduct exception.20 The plaintiff in this
case did not challenge the application of the public duty doctrine;
additionally, she waived any argument concerning the special
duty exception.21 Thus, the only remaining issue was application
of the egregious conduct exception.22
The egregious conduct exception will allow a plaintiff to
“pierce the protective shell” afforded a government entity under
the public duty doctrine only if that entity’s conduct rises to the
level of egregiousness.23 Whether a government entity’s conduct is
in fact egregious will depend upon three factors: (1) the entity’s
role in creating or allowing the persistence of “circumstances that
forced a reasonably prudent person into a position of extreme
peril;” (2) the entity’s actual or constructive knowledge of those
circumstances; and (3) given a reasonable amount of time, failure
to eliminate those circumstances.24 Unless a plaintiff satisfies all
three of these elements, the government entity will be immune
from liability.25
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
Id. at 928.
Id. at 930.
Id. at 924.
Id.
Id.
Id.
Id. at 923 n.2.
Id. at 924.
Id. (quoting Catri v. Hopkins, 609 A.2d 966, 968 (R.I. 1992)).
Id. (quoting Haley v. Town of Lincoln, 611 A.2d 845, 849 (R.I. 1992))
Id.
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Question of Fact versus Question of Law
Rhode Island case law before this case was somewhat
ambiguous as to whether the application of the egregious conduct
exception was a question of fact or a question of law.26 However,
in an earlier case, Kuznair v. Keach,27 the court addressed this
identical issue in the context of the special duty exception.28 The
court in Tedesco found prior treatment of the egregious conduct
exception “renders it indistinguishable from the special duty
exception and [the] holding in Kuznair.”29 The court therefore
applied the analysis from Kuznair to the egregious conduct
doctrine in Tedesco to arrive at its characterization of the
egregious conduct exception as a question of both law and fact.30
The ultimate holding of the court in Tedesco was that
applicability of the egregious conduct exception is a question of
both law and fact.31 It is a question of law because it involves the
analysis of a legal duty, and “[t]he existence of a legal duty is
purely a question of law . . . .”32 Additionally, it is a “factintensive” inquiry which involves the determination of certain
duty-triggering facts.33 The trial justice will decide whether a
legal duty ultimately exists under the egregious conduct
exception, but she will often require the assistance of the jury if
certain predicate facts are genuinely disputed.34
In the case of the egregious conduct exception, the court
“[s]pecifically” identified the predicate or duty-triggering facts.35
The court appeard to identify only two of the three elements of the
egregious conduct exception as involving duty-triggering facts: the
creation of or allowing of the persistence of circumstances that put
a reasonably prudent person into extreme peril, and the failure to
remedy that peril in a reasonable time.36 Digested further, it
would appear that the question whether there was extreme peril
26. See id. at 925.
27. 709 A.2d 1050 (R.I. 1998).
28. See id.
29. 871 A.2d at 925.
30. Id. at 925-26.
31. Id. at 926.
32. Id. at 925 (quoting Kuznair, 709 A.2d at 1055).
33. Id.
34. Id. at 925-26.
35. Id.
36. Id.
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or a reasonable time to rectify that peril are duty-triggering
facts.37 Thus, the court found that it is the sole province of the
jury to decide these duty-triggering facts in the face of any
genuine dispute.38
The Tedesco court stressed that its holding should not act as
an absolute bar to JML.39 Rather, the decision only acts to bar
JML in situations where duty-triggering facts are genuinely in
dispute.40 In other words, if a plaintiff fails to offer legally
sufficient evidence to allow a juror to find for her on each element
of the egregious conduct standard, then JML dismissing the
plaintiff’s case is appropriate.41 Conversely, in the rare case
where a plaintiff offers sufficient evidence such that a reasonable
juror could not fail to conclude that the government’s conduct was
egregious, JML is likewise appropriate, and the jury can be
instructed only as to the law of negligence.42
Jury Instructions
The court also incorporated the guidance of the Kuznair court
concerning proper form of jury instructions in cases involving an
exception to the public duty doctrine.43 Jury instructions in a case
involving the egregious conduct exception should “incorporate the
elements of egregious conduct into the elements of negligence.”44
The court provided an example:
In order to find the defendant’s conduct is egregious, you
must find (1) the defendant created or allowed for the
persistence of circumstances that would force a
reasonably prudent person into a position of extreme
peril; (2) the defendant knew or should have known of the
perilous circumstances; and (3) the defendant, after a
reasonable amount of time to eliminate the dangerous
condition, failed to do so. If the plaintiff fails to prove
defendant’s conduct was egregious by a preponderance of
37.
38.
39.
40.
41.
42.
43.
44.
See id.
Id. at 926.
Id.
Id.
Id.
Id.
Id.
Id.
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the evidence, you must return a verdict in favor of the
defendant. If you do find that the defendant’s conduct is
egregious by a preponderance of the evidence, then, and
only then, may you proceed to determine whether the
defendant’s egregious conduct was the proximate cause of
any damages suffered by the plaintiff, and the amount of
those damages.45
Application of the Mixed Question Rule to the Facts of Tedesco
The Tedesco court reviewed the trial justice’s decision “bound
by the same rules and standards as the trial justice.”46 Using this
standard, according to the court, the trial justice’s error was
“clear.”47 By producing the DOT memorandum, Tedesco offered
sufficient evidentiary bases to allow a reasonable juror to conclude
that the defendant’s conduct in this instance was egregious.48 The
error occurred when the trial justice decided certain dutytriggering facts, mainly citing the fact that Rhode Island has
20,000 to 30,000 sewer grates, to arrive at the conclusion that the
defendant’s conduct was not egregious.49 In deciding these facts,
the court invaded the jury’s fact-finding responsibilities.50
COMMENTARY
As the Tedesco court itself noted, the public duty doctrine is
“much maligned.”51 Any unhappiness about the public duty
doctrine almost certainly arises from its long and confused history,
as the Tedesco court also noted.52 Unfortunately, the decision in
Tedesco is likely to further confound the already confused doctrine
and its two well meaning exceptions.
First, the nature of a “duty-triggering” fact in relationship to
the three well-established elements of the egregious conduct
exception is not entirely clear. As already noted here, the court
seems to quite specifically state that the duty-triggering facts
45.
46.
2003)).
47.
48.
49.
50.
51.
52.
Id. at 926-27.
Id. at 927 (quoting Mills v. State Sales, Inc. 824 A.2d 461, 472 (R.I.
Id. at 928.
Id.
See id. at 927-28.
See id. at 928.
Id. at 929.
See id. at 930.
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relate only to whether there is extreme peril, and whether the
defendant remedied that peril in reasonable time.53 Notice, actual
or constructive, does not appear to require the determination of
any duty-triggering facts.54 It is not clear why notice issues
should not involve predicate duty-triggering facts, and this
distinction is at odds with the notion of a “fact-intensive inquiry.”
Second, the Tedesco decision takes great pains to analogize to
the decision in Kuznair in reaching its conclusions.55 This does
not necessarily seem like a wise course of action considering the
confusion that already surrounds the special duty exception.56 If
division of labor between the trial justice and the jury is desirable,
it would make sense to avoid the murky waters of the special duty
exception in establishing a system to accomplish that task.
Only time will tell whether the rule in Tedesco can be
managed with a degree of efficiency by the trial justices of Rhode
Island’s Superior Courts; the somewhat confusing distinction
between duty-triggering facts and the exception they establish will
certainly require time to work out.
CONCLUSION
The Rhode Island Supreme Court in Tedesco held that the
egregious conduct exception to the public duty doctrine is a mixed
question of law and fact.57 Analogizing to the court’s previous
decision in Kuznair, the court held that while the existence of a
legal duty is purely a question of law to be left to the court, certain
duty-triggering facts, if any exist and are genuinely disputed,
must be decided by a jury as the finder of fact.58
Terrence P. Haas
53. Id. at 925.
54. See id.
55. Id. at 924-25.
56. See generally Aaron R. Baker, Comment, Untangling the Public Duty
Doctrine, 10 ROGER WILLIAMS U. L. REV. 731 (2005) (discussing Rhode Island’s
public duty doctrine and the difficulties surrounding it).
57. Tedesco, 871 A.2d at 925.
58. Id.
LUCIER
5/15/2006 9:23 PM
Tort/Property Law. Lucier v. Impact Recreation, Ltd., 864
A.2d 635 (R.I. 2005). A commercial landlord is not liable for
injuries that the guest of a tenant suffered on leased premises,
unless the injury results from the landlord’s breach of a covenant
to repair in the lease, or from a latent defect known to the
landlord but unknown to the tenant or guest, or because the
landlord subsequently has assumed the duty to repair.
Additionally, a lease that requires a commercial landlord’s
approval of any improvements that the tenant may make to the
premises and provides that the landlord will maintain the
structure of a building, allowing the landlord to enter the property
at all reasonable times, does not equate to the landlord having
control over the premises. Furthermore, negligent entrustment,
that is, breach of the landlord’s duty to ensure that the
commercial tenant is not engaging in an activity that is inherently
dangerous, is not a basis for liability. Regardless of negligent
entrustment not being a basis for liability, the landlord’s
insistence on the tenant procuring liability insurance and having
guests sign waivers and release of liability forms does not show
that the activity engaged in by the tenant was inherently
dangerous.
FACTS AND TRAVEL
Roland and Kerri Lucier are the parents of Timothy Lucier,
who was injured at a skateboard facility operated by Impact
Recreation, Ltd. (Impact) on premises it was leasing from Eugene
1
Voll. When the injury occurred, Impact was leasing a portion of a
larger building from Voll; the lease restricted the use of the
2
premises to a bicycle, skateboarding, and in-line skating park.
Under the lease, Voll was required to maintain the structure of
the building as well as the building’s exterior; Impact was
3
required to maintain the interior of the building. The lease
further provided that Impact obtain Voll’s approval before making
1. Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 637-38 (R.I. 2005).
2. Id. at 637.
3. Id.
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4
any alterations or improvements to the property. Additionally,
under the lease, Impact could install trade fixtures on the
premises that would remain the property of Impact regardless of
5
the manner of their installation. Finally, of note in the lease was
a requirement that Impact obtain a general liability policy and
require all participants to execute a waiver and release of liability
6
before participating in activities on the premises.
On March 16, 2001, Timothy’s father brought him and several
of his friends to the skateboard facility to celebrate Timothy’s
7
birthday. At the skateboard facility, Timothy’s father signed the
8
required waiver. Timothy put on protective gear and began to
9
skateboard. After roughly an hour, Timothy went down a ramp
and the front wheel of his skateboard caught inside a small hole in
10
the ramp causing him to fall. In an attempt to execute a safety
maneuver and shield his face, Timothy fell on his right leg causing
11
As a result of Timothy’s fall, he suffered a spiral
it to snap.
12
fracture in a growth plate of his right leg.
The Luciers filed this premises liability action against Voll,
Impact, and one of Impact’s principals, alleging failure to
maintain safe conditions, failure by the landlord to ensure that
the commercial tenant was not engaging in an inherently
dangerous activity, and breach of duty due to negligently
13
Default
maintained, dangerous conditions on the property.
judgment was entered against Impact; Voll moved for summary
14
judgment. The motion justice granted Voll’s motion for summary
15
Plaintiffs subsequently filed an appeal on May 17,
judgment.
16
2004.
4. Id. at 638.
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id. at 637.
14. Id.
15. Id.
16. Id. at 637 n.2.
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ANALYSIS AND HOLDING
On appeal, the plaintiffs argued that the motion justice erred
17
in granting the defendant’s motion for summary judgment. The
Luciers claimed that the defendant, as landlord, had a duty to
18
safely maintain the premises. Alternatively, the Luciers argued
that the defendant never surrendered full possession of the
19
premises. Lastly, the plaintiffs claimed that since the defendant
let his premises for the purpose of carrying on an inherently
dangerous activity, he had a nondelegable duty to ensure that the
proper precautions were taken in connection with carrying out
20
that activity. Upon de novo review, the Rhode Island Supreme
Court affirmed the motion justice’s order of summary judgment,
stating that the general rule remains that a nonresidential
landlord is not liable for injuries that the guest of a tenant suffers
21
The court
on the leased premises, with three exceptions.
additionally held that the defendant did not have control over the
property and that the skateboard park was not an “inherently
22
dangerous” facility.
Premises Liability
The court principally focused its analysis on premises
23
liability.
Rhode Island premises liability law imposes an
affirmative duty upon owners and possessors of property “to
exercise reasonable care for the safety of persons reasonably
expected to be on the premises . . . includ[ing] an obligation to
protect against the risks of dangerous conditions existing on the
premises,” provided the landowner knows of, or reasonably should
24
However, the court stated
know of, the dangerous condition.
that the general rule in Rhode Island concerning nonresidential
property is that a landlord is not liable for injuries that the guest
17. Id. at 637.
18. Id. at 639.
19. Id. at 640.
20. Id. at 641.
21. Id. at 640.
22. Id. at 641-42.
23. See 639-41.
24. Id. at 639 (citing Kurczy v. St. Joseph Veterans Ass’n, Inc., 820 A.2d
929, 935 (R.I. 2003) (quoting Tancrelle v. Friendly Ice Cream Corp., 756 A.2d
744, 752 (R.I. 2000))).
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of a tenant suffers on the leased premises unless one of three
25
These three exceptions require that the
exceptions are met.
injury result from one of the following: (1) “the landlord’s breach of
a covenant to repair in the lease [or (2)] from a latent defect
known to the landlord but not known to the tenant or guest [or (3)]
because the landlord subsequently has assumed the duty to
26
repair.” In this instance, the court held that the plaintiffs had
failed to present evidence sufficient to support any of the three
exceptions to the general rule, and as such, the defendant was not
27
liable for the injuries to their son.
Additionally, the court noted that when land is leased to a
tenant, property law “regards the lease as equivalent to the sale of
28
the premises for the term [of the lease].” The court recognized
that even if the defendant remained responsible for maintaining
the exterior of the structure, required that Impact get approval
first before making alterations to the premises, and retained the
right to enter the property, he still did not retain control over the
premises. Rather, these lease provisions were merely intended to
protect the defendant’s investment and reversionary interest in
29
the property.
Negligent Entrustment
As of the time of the Lucier decision, the Rhode Island
Supreme Court had never recognized negligent entrustment as a
30
basis for liability and it declined to do so in Lucier as well. The
plaintiffs argued that the defendant had leased his premises for
the purpose of conducting an inherently dangerous activity and
therefore had a duty to make sure that reasonable precautions
31
The plaintiffs’
were taken in connection with that activity.
argument continued to assert that the defendant acknowledged
that skateboarding was a dangerous activity by requiring that
25. Id. at 640.
26. Id. (quoting E. Coast Collision & Restoration, Inc., v. Allyn, 742 A.2d
273, 276 (R.I. 1999)).
27. Id.
28. Id. (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW
OF TORTS § 63 at 434 (5th ed. 1984)).
29. Id. at 640.
30. Id. at 641 (citing Regan v. Nissan N. America, Inc., 810 A.2d 255, 257
(R.I. 2002)).
31. Id.
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Impact maintain a liability insurance policy and have participants
32
The court did not address the
sign a waiver and release.
plaintiffs’ negligent entrustment claim because they failed to
present any competent evidence that skateboarding was an
33
Moreover, the fact that the
inherently dangerous activity.
defendant thought the activity to be sufficiently hazardous to
merit the procurement of liability insurance and the signing of
waivers did not indicate that the activity was inherently
34
dangerous.
COMMENTARY
This decision reinforces the general rule in Rhode Island that
insulates commercial landlords from liability for injuries to their
35
tenants or their tenants’ guests.
Commercial landlords are
encouraged to adopt a “hands-off” approach towards leased
36
property or else be subject to liability. While this decision seems
as though it may punish attentive landlords, in reality, it relieves
commercial landlords of an especially burdensome responsibility
of constant inspection of their leased property.
Were commercial landlords liable for the injuries of their
tenants or guests, landlords would have to become full-time
maintenance men for their tenants in order to avoid potential
liability.
Even absent a covenant to repair, if commercial
landlords were to be held liable for tenants’ and guests’ injuries,
landlords would be forced to watch their leased property under a
microscope and repair defects in fixtures on the premises
regardless of whether or not they were installed by the tenant.
This duty would be inconvenient for commercial landlords who
often lease numerous properties simultaneously, as well as for
tenants whose business operations would be interrupted regularly
by landlords’ inspections of every small detail of their operation.
Additionally, when a specialized business leases a landlord’s
premises, specialized fixtures may be installed by the tenant that
the landlord would not be familiar with and would not be qualified
to recognize defects in, let alone repair. Using the case at hand as
an example, an average landlord would not even begin to know
32. Id.
33. Id.
34. Id.
35. See id. at 639-41.
36. See id.
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the difference between a skateboarding ramp that was constructed
safely and one that was not safe for normal use. A rule different
from the one articulated in this case would require commercial
landlords to become intimately acquainted with even the smallest
details of their tenants’ places of business.
Also of note is the court’s decision that an activity is not
inherently dangerous simply because the landlord insists that the
tenant obtain liability insurance and has participants sign
waivers. If, as the plaintiffs suggest, a landlord were to have a
nondelegable duty to ensure precautions are taken in connection
with carrying out inherently dangerous activities, and an activity
is presumed to be inherently dangerous if the landlord requires
37
the tenant to obtain liability insurance, then cautious landlords
would be condemning themselves to a higher duty of care by
seeking to protect their interests by requiring that their tenants
obtain a liability policy. Alternatively, by not requiring the tenant
to obtain liability insurance, the activity would not be presumed to
be inherently dangerous, thus contributing to a lower duty of care,
but potentially subjecting the landlord to liability that may have
been otherwise covered by the tenant’s liability policy. This
paradoxically punishes landlords for seeking to insulate
themselves from liability. In a parallel example, if an overly
cautious landlord were to require a tenant who is operating a
retail store to obtain liability insurance, then the landlord’s
insistence on the insurance would be evidence that retail sale is
an inherently dangerous activity. Thus, the consequences of the
court rendering a different decision would have been extremely
unfair to landlords seeking to protect their own interests.
CONCLUSION
The Rhode Island Supreme Court held that commercial
landlords are not liable for injuries to their tenants or guests,
unless the injury results from the landlord’s breach of a covenant
to repair, from a latent defect known to the landlord but not the
38
tenant, or because the landlord has assumed the duty to repair.
Additionally, the court held that just because a landlord is
required to maintain the exterior of a leased building, approve of
37. See id.
38. Id. at 640.
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SURVEY SECTION
955
any alterations to the premises, and retain the right to enter the
premises at any reasonable time, does not mean that the landlord
39
Finally, a landlord’s
retained control over the premises.
insistence on a tenant’s procuring liability insurance and having
guests sign waivers and release of liability forms does not show
that the activity engaged in by the tenant was inherently
40
dangerous for purposes of negligent entrustment. In this case,
the defendant commercial landlord had no duty to the plaintiffs
whose son was injured while skateboarding on the defendant
41
tenant’s defective ramp.
Mark H. Hudson
39. Id.
40. Id. at 641.
41. Id. at 642.