The Rhode Island State Constitution: A Reference Guide (Reference Guides to the State Constitutions of the United States)

The Rhode Island State Constitution: A Reference Guide

Patrick T. Conley Robert G. Flanders, Jr.

PRAEGER

The Rhode Island State Constitution

Reference Guides to the State Constitutions of the United States G. Alan Tarr, Series Editor Alabama William H. Stewart Alaska Gerald A. McBeath Arizona John D. Leshy Arkansas Kay Collett Goss California Joseph R. Grodin, Calvin R. Massey, and Richard B. Cunningham Colorado Dale A. Oesterle and Richard B. Collins Connecticut Wesley W. Horton Delaware Randy J. Holland Florida Talbot D’Alemberte Georgia Melvin B. Hill, Jr. Hawaii Anne Feder Lee Idaho Donald Crowley and Florence Heffron Indiana William P. McLauchlan Iowa Jack Stark Kansas Francis H. Heller Kentucky Robert M. Ireland Louisiana Lee Hargrave

Maine Marshall J. Tinkle Maryland Dan Friedman Michigan Susan P. Fino Minnesota Mary Jane Morrison Mississippi John W. Winkle III Montana Larry M. Elison and Fritz Snyder Nebraska Robert D. Miewald and Peter J. Longo Nevada Michael W. Bowers New Hampshire Susan E. Marshall New Jersey Robert F. Williams New Mexico Chuck Smith New York Peter J. Galie North Carolina John V. Orth North Dakota James E. Leahy Ohio Steven H. Steinglass and Gino J. Scarselli Oklahoma Danny M. Adkison and Lisa McNair Palmer Rhode Island Patrick T. Conley and

Robert G. Flanders, Jr. South Carolina Cole Blease Graham, Jr. Tennessee Lewis L. Laska Texas Janice C. May Utah Jean Bickmore White Vermont William C. Hill Virginia John Dinan Washington Robert F. Utter and Hugh D. Spitzer West Virginia Robert M. Bastress Wisconsin Jack Stark Wyoming Robert B. Kreiter and Tim Newcomb

THE RHODE ISLAND STATE CONSTITUTION A Reference Guide Patrick T. Conley and Robert G. Flanders, Jr.

REFERENCE GUIDES TO THE STATE CONSTITUTIONS OF THE UNITED STATES, NUMBER 44 G. Alan Tarr, Series Editor

Library of Congress Cataloging-in-Publication Data Conley, Patrick T. The Rhode Island state Constitution : a reference guide / Patrick T. Conley and Robert G. Flanders, Jr. p. cm. — (Reference guides to the state constitutions of the United States ; no. 44) ISBN–13: 978–0–275–98332–1 (alk. paper) ISBN–10: 0–275–98332–3 1. Constitutions—Rhode Island. 2. Constitutional law—Rhode Island. I. Flanders, Robert G., Jr. II. Rhode Island. Constitution (1986) III. Title. KFR4011986.A6 C66 2007 342.74502—dc22 2007000888 British Library Cataloguing in Publication Data is available. Copyright © 2007 by Patrick T. Conley and Robert G. Flanders, Jr. All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2007000888 ISBN–13: 978–0–275–98332–1 ISBN–10: 0–275–98332–3 First published in 2007 Praeger Publishers, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.praeger.com Printed in the United States of America

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Contents

Series Foreword by G. Alan Tarr Preface Acknowledgments PART I: RHODE ISLAND CONSTITUTIONAL DEVELOPMENT, 16362006 The Colonial Era: to 1763 The Revolutionary Era: 1764–1790 The Early National Period: 1790–1840 The Dorr Rebellion and Its Aftermath: 1841–1854 The Republican Ascendancy: 1854–1935 The Bloodless Revolution and Its Aftermath: 1935–1939 The Democratic Ascendancy: 1940–1985 The Modern Era: 1986–2006 PART II: THE RHODE ISLAND CONSTITUTION AND COMMENTARY Preamble

1 3 13 16 21 24 28 30 35

45 47

Article I: Declaration of Certain Constitutional Rights and Principles Section 1.

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Right to make and alter the constitution—Constitution obligatory upon all.

49 50

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Section

2.

Section 3. Section 4. Section 5. Section 6. Section 7. Section Section Section Section Section

8. 9. 10. 11. 12.

Section Section Section Section

13. 14. 15. 16.

Section 17.

Section Section Section Section Section Section Section

18. 19. 20. 21. 22. 23. 24.

Laws for good of the whole—Burdens to be equally distributed—Due process—Equal protection— Discrimination—No right to abortion granted. Freedom of religion. Slavery prohibited. Entitlement to remedies for injuries and wrongs— Right to justice. Search and seizure. Requirement of presentment or indictment—Double jeopardy. Bail, fines, and punishments. Right to bail—Habeas corpus. Rights of accused in criminal cases. Relief of debtors from prison. Ex post facto laws—Laws impairing the obligation of contract. Self-incrimination. Presumption of innocence—Securing accused persons. Trial by jury. Compensation for taking private property for public use—Regulation of fishery rights and shore privileges not a public taking. Fishery rights—Privileges of the shore—Conservation of natural resources—Preservation of the natural environment. Subordination of the military to civil authority. Quartering of soldiers. Freedom of the press. Right to assemble and petition—Freedom of speech. Right to bear arms. Rights of victims of crime. Rights not enumerated—State rights not dependent on federal rights.

Article II: Of Suffrage Section 1. Section 2.

Persons entitled to vote. Nominations, voter registration, and voting procedures.

Article III: Of Qualification for Office Section 1. Section 2.

Section 3.

Civil office—Qualified electors. Disqualification upon conviction or plea of nolo contendere—Requalification following sentence, probation, or parole. Oath of general officers.

51 58 64 66 69 70 72 75 78 82 83 85 88 90

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102 110 112 113 114 115 116 117 121 121 127 129 129

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Section 4. Section 5. Section 6.

Section 7. Section 8.

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Oath of General Assembly members, judges, and other officers. Method of administering the oath of office. Holding of offices under other governments—Senators and representatives not to hold other appointed offices under state government. Ethical conduct. Ethics commission—Code of ethics.

Article IV: Of Elections and Campaign Finance Section 1.

Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section 10.

Election and terms of governor, lieutenant governor, secretary of state, attorney general, general treasurer, and General Assembly members—Recall. Election by plurality. Filling vacancy by the General Assembly when elected officers cannot serve—Election when there is no plurality. Temporary appointment to fill vacancies in the office of secretary of state, attorney general, or general treasurer. Special elections to fill General Assembly vacancies. Elections in grand committee—Majority vote—Term of elected official. Elections in grand committee—Quorum—Permitted activities. Voter registration lists. Reports of campaign contributions and expenses. Limitations on campaign contributions—Public financing of campaign expenditures of general officers.

134 134

134 138 138 141

141 143 145 146 146 147 147 148 148 149

Article V: Of the Distribution of Powers

151

Article VI: Of the Legislative Power

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Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9.

Constitution the supreme law of the state. Power vested in the General Assembly—Concurrence of houses required to enact laws—Style of laws. Sessions of the General Assembly—Compensation of General Assembly members and officers. Restriction on General Assembly members’ activities as counsel. Immunities of General Assembly members. Election and qualification of General Assembly members—Quorum and organization of houses. Rules of the houses—Contempt. House journals. Adjournment of houses.

161 167 170 172 177 178 180 180 181

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Section Section Section Section Section Section Section Section Section Section

Contents

10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

Section 20. Section 21. Section 22.

Residual powers (repealed in 2005). Vote required to pass local or private appropriations. Property valuations for tax assessments. Continuance in office until successors qualify. General corporation laws. Lotteries. Borrowing power of the General Assembly. Borrowing in anticipation of receipts. Redevelopment powers. Taking of property for highways, streets, places, parks, or parkways. Local off-street parking facilities. Emergency powers in case of enemy attack. Referendum on the expansion of gambling.

Article VII: Of the House of Representatives Section 1. Section 2.

Composition. Officers—Presiding member during organization.

Article VIII: Of the Senate Section 1. Section 2. Section 3. Section 4.

Composition and apportionment. Lieutenant governor to be presiding officer until 2003. Presiding officer in absence of lieutenant governor (repealed). Secretary of state to be secretary of the senate (repealed).

Article IX: Of the Executive Power Section 1. Section 2. Section 3. Section Section Section Section Section Section Section

4. 5. 6. 7. 8. 9. 10.

Section 11. Section 12.

Power vested in the governor. Faithful execution of laws. Captain general and commander in chief of military and navy. Reprieves. Powers of appointment. Adjournment of the General Assembly. Convening of special sessions of the General Assembly. Commissions and the state seal. Vacancy in the office of the governor. Vacancies in offices of both the governor and lieutenant governor. Compensation of the governor and lieutenant governor. Powers and duties of the secretary of state, attorney general, and general treasurer.

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Section 13. Section 14.

Section 15. Section 16. Section 17.

Pardons. Veto power of governor—Veto overrides by General Assembly—Acts effective without action by the governor. State budget. Limitation on state spending. Budget reserve account.

Article X: Of the Judicial Power Section 1. Section 2. Section Section Section Section Section

3. 4. 5. 6. 7.

Power vested in the courts. Jurisdiction of the supreme and inferior courts— Quorum of the supreme court. Advisory opinions by the supreme court. Judicial selection. Tenure of supreme court justices. Compensation for justices of the supreme court. Wardens and justices of the peace.

Article XI: Of Impeachments Section 1. Section 2. Section 3.

Power of impeachment by the House. Impeachment trial by the senate. Governor, executive officers, judges liable to impeachment—Grounds for impeachment.

Article XII: Of Education Section 1.

Section 2. Section 3. Section 4.

Duty of the General Assembly to promote public schools and public libraries and to secure opportunities for education. Perpetual school fund. Educational donations. Implementation of this article—Diversion of funds prohibited.

Article XIII: Home Rule for Cities and Towns Section 1. Section 2. Section 3. Section 4.

Section 5.

Right of self-government in local matters. Local power to adopt home rule charter in conformity with reserved powers of the General Assembly. Every city and town shall have a legislative body. General laws apply to all cities and towns but shall not affect the form of government—Special acts need approval of local electors. Local taxing and borrowing power only as authorized by the General Assembly.

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Section Section Section Section Section Section

6. 7. 8. 9. 10. 11.

Procedures for the adoption of a home rule charter. Vote on charter adoption. Amendments to a home rule charter. Filing of charter petition with local legislative body. Certification of charter adoption. No diminution of the power of the judiciary.

Article XIV: Constitutional Amendments and Revisions Section 1. Section 2.

Amendment process. Procedures for the call of a constitutional convention.

Article XV: General Transition Section Section Section Section

1. 2. 3. 4.

What remains in full force and effect. What continues to be valid. All officers to continue the duties of their office. Implementing legislation required.

Bibliographical Essay Table of Cases Index

262 262 262 263 263 263 273 273 273 277 277 277 277 277 279 309 323

Series Foreword

In 1776, following the declaration of independence from England, the former colonies began to draft their own constitutions. Their handiwork attracted widespread interest, and draft constitutions circulated up and down the Atlantic seaboard, as constitution-makers sought to benefit from the insights of their counterparts in sister states. In Europe, the new constitutions found a ready audience seeking enlightenment from the American experiments in self-government. Even the delegates to the Constitutional Convention of 1787, despite their reservations about the course of political developments in the states during the decade after independence, found much that was useful in the newly adopted constitutions. And when James Madison, fulfilling a pledge given during the ratification debates, drafted the federal Bill of Rights, he found his model in the famous Declaration of Rights of the Virginia Constitution. By the 1900s, however, few people would have looked to state constitutions for enlightenment. Instead, a familiar litany of complaints was heard whenever state constitutions were mentioned. State constitutions were too long and too detailed, combining basic principles with policy prescriptions and prohibitions that had no place in the fundamental law of a state. By including such provisions, it was argued, state constitutions deprived state governments of the flexibility they needed to respond effectively in changing circumstances. This—among other factors—encouraged political reformers to look to the federal government, which was not plagued by such constitutional constraints, thereby shifting the locus of political initiative away from the states. Meanwhile, civil libertarians concluded that state bills of rights, at least as interpreted by state courts, did not adequately protect rights and therefore looked to the federal courts and the federal Bill of Rights for redress. As power and responsibility shifted from the states to Washington, so too did the attention of scholars, the legal community, and the general public. During the early 1970s, however, state constitutions were “rediscovered.” The immediate impetus for this rediscovery was former President Richard Nixon’s

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appointment of Warren Burger to succeed Earl Warren as chief justice of the United States Supreme Court. To civil libertarians, this appointment seemed to signal a decisive shift in the Supreme Court’s jurisprudence, because Burger was expected to lead the Court away from the liberal activism that had characterized the Warren Court. They therefore sought ways to safeguard the gains they had achieved for defendants, racial minorities, and the poor during Warren’s tenure from erosion by the Burger Court. In particular, they began to look to state bills of rights to secure the rights of defendants and to support other civil-liberties claims that they advanced in state courts. The “new judicial federalism,” as it came to be called, quite quickly advanced beyond its initial concern to evade the mandates of the Burger Court. Indeed, less than two decades after it originated, it became a nationwide phenomenon. For when judges and scholars turned their attention to state constitutions, they discovered an unsuspected richness. They found not only provisions that paralleled the federal Bill of Rights, but also constitutional guarantees of the right to privacy and of gender equality, for example, that had no analogue in the U.S. Constitution. Careful examination of the text and history of state guarantees revealed important differences between even those provisions that most resembled federal guarantees and their federal counterparts. Looking beyond state declarations of rights, jurists and scholars discovered affirmative constitutional mandates to state governments to address such important policy concerns as education and housing. Taken altogether, these discoveries underlined the importance for the legal community of developing a better understanding of state constitutions. Yet the renewed interest in state constitutions has not been limited to judges and lawyers. State constitutional reformers have renewed their efforts with notable success: since 1960, 10 states have adopted new constitutions and several others have undertaken major constitutional revisions. These changes have usually resulted in more streamlined constitutions and more effective state governments. Also, in recent years political activists on both the left and the right have pursued their goals through state constitutional amendments, often enacted through the initiative process, under which policy proposals can be placed directly on the ballot for voters to endorse or reject. Scholars too have begun to rediscover how state constitutional history can illuminate changes in political thought and practice, providing a basis for theories about the dynamics of political change in America. Patrick T. Conley and Robert G. Flanders’s excellent study of the Rhode Island Constitution is the latest volume in the series, Reference Guides to the State Constitutions of the United States, which reflects this renewed interest in state constitutions and will contribute to our knowledge about them. Because the constitutional tradition of each state is distinctive, the volume begins with the history and development of the Rhode Island Constitution. It then provides the complete text of Rhode Island’s current constitution, with each section accompanied by commentary that explains the provision and traces its origins and its interpretation by the courts and by other governmental bodies. Finally, the book concludes with a table of cases cited in the history and the constitutional commentary, as well as a subject index. G. Alan Tarr

Preface

Constitutional law is a dichotomous blend of continuity and change. Any book on this subject that purports to be definitive is doomed to obsolescence. Realizing this limitation, we have adopted an evolutionary and historical approach to analyze the Rhode Island Constitution. Had we completed our opus two years earlier (and on schedule) we would have failed to record the seismic shift in the structure of state government that has resulted from the adoption in 2004 of the separation of powers amendments. That is the good news. Conversely, the aftershock of this reform will be strongly felt during the immediately ensuing years, thus rendering many of our conclusions tentative. Until the General Assembly relinquished its residual powers in 2004 by giving the electorate the opportunity to repeal Article VI, Section 10, the colonial Charter of 1663 retained considerable vitality, despite its advanced age. Whether the legislature or the Rhode Island Supreme Court will attempt to continue it on life-support through some tradition-based theory akin to common law, only time will tell. We have devoted considerable space to certain constitutionally settled topics for which Rhode Island is justly famous—for example, religious liberty—and for which it is justly infamous—such as discriminatory, nativistic suffrage qualifications. In the belief that Rhode Island’s basic laws have profoundly shaped its politics and its socioeconomic system, we have made this treatise historical as well as legal. To the dry bones of constitutional provisions we have grafted the flesh of human effort and experience, including judicial attempts to interpret and apply these provisions. This approach has made our volume longer, but, we hope, livelier. Our essay on sources is intended not merely as an appendix to this study, but rather, as a comprehensive legal and historiographical guide to future research and

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writing on the course of Rhode Island constitutional development. Like those many works we cite in our essay, this volume is but one stride along that neverending road. Patrick T. Conley Robert G. Flanders, Jr. December 18, 2006

Acknowledgments

We are pleased to recognize those individuals and institutions who have assisted us in the preparation of a volume with such a diverse array of topics. Foremost is attorney John F. DiMeglio, a diligent researcher, who reproduced and arranged for our analysis all of the pertinent cases under their appropriate Sections of the constitution and prepared the table of those cases for ready reference. We are also grateful for the financial aid provided to this project by the Roger Williams University Ralph R. Papitto School of Law and for the skills of several law students. These included Marcus Jones, Peter Edward Jones, and Katie Mae Magee. We particularly wish to acknowledge the help and assistance of Nicholas Phinney, who served as the lead student research assistant on this project. In the emerging area of environmental law we sought and adopted the expert insights of Professor Dennis W. Nixon, associate dean of the College of the Environment and Life Sciences at the University of Rhode Island; attorney Dennis H. Esposito of Adler Pollock & Sheehan P.C.; and attorney John M. Boehnert of Partridge Snow & Hahn LLP. Others who have given us counsel include Professors Mario DiNunzio of Providence College, research director of the 1986 Constitutional Convention, Elmer E. Cornwell, Jr., of Brown University, Jay Goodman, Esq., of Wheaton College, and attorney Keven McKenna, president of the 1986 Constitutional Convention. Jane Jackson, archivist of Providence College, promptly furnished materials in her care upon request pertaining to the 1964, 1973, and 1986 conventions. The Rhode Island Publications Society provided financial assistance and the services of its meticulous editor, Dr. Hilliard Beller. Linda Gallen, Anna Loiselle, and Donna Falcoa typed and retyped the manuscript with great skill and greater patience.

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Acknowledgments

Series editor G. Alan Tarr and Hilary Claggett of Greenwood Publishing Group provided gentle prodding to ensure that our book was completed. Without Professor Tarr’s persistence in selecting us to write it and Ms. Claggett’s insistence that we write it in a timely fashion, Rhode Island would have been absent from this enterprise, as it was from the Constitutional Convention of 1787. Patrick T. Conley Robert G. Flanders Jr.

Part I Rhode Island Constitutional ­Development, 1636–2006

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The Colonial Era: to 1763 If we disregard the tribal organizations of Narragansetts, Wampanoags, ­Niantics, Nipmucks, and Pequots (as most American historians do, to their discredit), government in Rhode Island began when religious exile Roger Williams and about a dozen disciples founded Providence in the spring of 1636. During the town’s early months, a fortnightly meeting of “masters of families,” or “householders,” conducted civic affairs considering matters relating to the “common peace, watch, and planting.” As the number of settlers increased, a formal government became necessary, so Williams and the initial settlers drafted articles of self-incorporation in 1637. Then these “masters of families” entered into a mutual compact creating a “town fellowship,” and 13 other inhabitants who were either unmarried or minors signed a submission agreement to obey the householders and all whom “they shall admit into the same fellowship and privilege.” These documents were the fundamental papers of Providence town government. The major features of these first governmental agreements were the vesting of administrative control in a majority of the householders and the all-important proviso that they were to exercise such control “only in civil things.” This latter clause reflected the desire of Roger Williams to establish a colony based on the then revolutionary principles of religious liberty and the separation of church and state.1 Other dissenters soon followed Williams to the Narragansett Bay region, and two additional towns took root: Portsmouth (1638), founded by William ­Coddington in concert with Antinomian preacher Anne Hutchinson, and ­Newport (1639), established by Coddington after a squabble with the fiery woman the ­Puritans called the “American Jezebel.” By the end of 1639 the ambitious ­Coddington succeeded in engineering a consolidation of the two island towns

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The Rhode Island Constitution and Commentary

under a ­ common administration, of which he was governor. This new political entity proclaimed itself a democracy in 1641 and guaranteed religious liberty to all. Because the title to the entire island of Aquidneck (or Rhode Island), acquired from the Indians, was in his name, Coddington began to entertain thoughts of creating a political domain of his own, distinct from Williams’s Providence Plantation. This ambitious plan constituted the most serious internal obstacle to the creation of a united colony during Rhode Island’s formative years. Legal title to the lands on which the early towns were planted rested only upon deeds from the Narragansett chiefs, or sachems, because Williams had been so bold as to declare that the king of England’s authority to grant these New World lands to English colonists rested upon “a solemn public lie.” This view, though just, was unacceptable to the neighboring colonies of Plymouth, Massachusetts Bay, Connecticut, and New Haven. The more orthodox Puritans who resided therein, angered by the defiance of Rhode Island’s religious outcasts, began to cast covetous eyes upon the beautiful Narragansett Bay region, which, they said, had been transformed by Williams, Hutchinson, Samuel Gorton, and their kind into “a moral sewer.”2 To unite the towns against this threat, to thwart Coddington’s political designs, and to secure parliamentary protection for his holy experiment, Williams journeyed in 1643 to an England on the verge of civil war to secure a patent that would unite the settlements of Portsmouth, Newport, and Providence into a single colony and officially confirm the settlers’ claims to the lands they held by Indian purchase, even though some of the deeded territory was owned by the Wampanoags. ­Williams obtained the desired patent from Robert Rich, earl of Warwick, and his parliamentary Committee on Foreign Plantations. Significantly the patent lacked the royal seal, for King Charles I had already begun to lose power and control to the parliamentary opposition. The patent of March 14, 1644, was the first legal recognition of the Rhode Island towns by the mother country and served as an embryonic constitution. It authorized the union of Providence, Portsmouth, and Newport under the name of “the Incorporation of Providence Plantations in Narragansett Bay in New England,” and it granted these towns “full power and authority to govern and rule themselves” and future inhabitants by majority decision, provided that all regulations that were enacted were “conformable to the laws of England” so far as the nature of the place would permit. This initial patent specifically conferred political power upon the inhabitants of the towns. The repeated emphasis of the document upon “civil government” gave implicit sanction to the separation of church and state, whereas the use of words “approved and confirmed” rather than “grant” in conjunction with the right to the land was a vindication of Williams’s questionable contention that the Indian deeds were valid. Williams’s adroitness and diplomacy had won the day, and he was greeted with great enthusiasm when he returned to Providence, patent in hand, in ­September 1644.3 In 1642, while Williams was in England, volatile Samuel Gorton—another ­freethinking and quarrelsome religious leader—had succeeded in establishing a

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­ ainland settlement to the south of Providence. This was Shawomet, which Gorton m eventually called Warwick in honor of his English benefactor. Here, as in ­Providence, liberty of conscience prevailed. Although his new town was not ­mentioned in the patent, Gorton sought and eventually secured its inclusion under the patent’s protective provisions, despite the vigorous attempts of Massachusetts to annex the Warwick settlement. The two island towns of Portsmouth and Newport also embraced the legislative patent, and representatives of the four communities met initially on Aquidneck Island in November 1644. After this and three subsequent sessions, they held the momentous Portsmouth Assembly of May 1647 to organize a government and to draft and adopt a body of laws. According to Charles McLean Andrews, the leading historian of colonial America, “the acts and orders of 1647 constitute one of the earliest programmes for a government and one of the earliest codes of law made by any body of men in America and the first to embody in all its parts the precedents set by the laws and statutes of England.”4 The assembly that drafted this code was attended by a majority of the freemen of the four towns. Upon convening, the delegates agreed that they were “willing to receive and to be governed by the laws of England … so far as the nature and constitution of this plantation will admit.” However, they further declared that the form of government for the colony was “democratical,” in that it rested on “the free and voluntary consent of all, or the greater part of the free inhabitants.” The first list of colonial freemen, published in 1655, vindicated this claim. When compared with the population figures of the towns, it reveals that one-half the adult male residents in Providence, two-thirds in Portsmouth and Newport, and nearly 90 percent in Warwick had the right to vote and hold office. The 1647 assembly elected officers established a system of representation, and devised a legislative process containing provisions both for local initiative (repealed in 1650) and popular referendum. Then it enacted the remarkable code, an elaborate body of criminal and civil law prefaced by a bill of rights. Finally, for the administration of justice, the productive assembly established a General Court of Trials with jurisdiction over all important legal questions. The president, who was the chief officer of the colony, and the assistants, who represented their respective towns, were to constitute this high tribunal. By inference, the existing town courts were to possess the jurisdiction they heretofore ­exercised in matters of minor and local importance. The code and the court system of 1647 would serve as the cornerstones of the judicial establishment of both the colony and the state of Rhode Island. Thus did the four original towns and their inhabitants combine to create a fairly systematized federal commonwealth and dealt a temporary blow to the persistent forces of decentralization.5 The ambitious William Coddington, however, immediately threatened this promising union. In 1651 the Newport leader secured from the English Council of State a commission that contravened the patent of 1644 by granting him exclusive ownership and proprietary rights to the islands of Aquidneck (Rhode Island) and Conanicut (Jamestown). A determined group of Newporters opposed this power

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The Rhode Island Constitution and Commentary

grab, and they dispatched Dr. John Clarke to England to obtain a recission of this extraordinary commission. Clarke sought the aid of the influential Roger ­Williams, and the two men made the tedious journey to the mother country. As a result of the intercession on Williams’s behalf by Sir Henry Vane and Oliver Cromwell, the Council of State responded by annulling the Coddington commission and reaffirming the patent. After a brief immersion in English domestic affairs, Williams returned to Rhode Island in 1654 and immediately began to counteract the divisive forces within the settlement. He was determined to reunite and consolidate the four towns, and by mid-1657 his efforts produced an encouraging degree of cohesion. There were still stormy seas ahead for the Rhode Island ship of state, for no sooner had a semblance of internal unity and stability been created than two ­external dangers arose, one of which menaced the colony’s landed possessions and the other its very existence. The first danger resulted from the claims of the ­Connecticut-based Atherton Land Company to much of present-day Washington County; the second and greater threat arose from the restoration of the Stuart dynasty to the throne of England in 1660. The restoration rendered doubtful the legal validity of the parliamentary patent of 1644 and placed Rhode Island in a precarious position because of her close ties with the antimonarchical Commonwealth and Protectorate of Oliver Cromwell. Fearful for its legal life, the colony commissioned the diligent Dr. John Clarke (who had remained in England upon completing his successful mission of 1651– 1652) to obtain royal confirmation of its right to exist. After an exasperating delay stemming from Rhode Island’s and Connecticut’s conflicting claims to the Narragansett Country, Clarke, with the assistance of Connecticut agent John Winthrop, Jr., secured from Charles II the Royal Charter of 1663. This coveted document was immediately transported to Rhode Island, where it was received by the grateful colonists in November 1663. The 6,500-word constitutional instrument had the legal form of a corporate or trading company charter. It devoted relatively brief space to the organization of government, but it did provide for the offices of governor, deputy governor, and 10 assistants. The original holders of these positions were named in the charter itself, but their successors, called magistrates, were “to be from time to time, constituted, elected, and chosen at-large out of the freemen” of the colony (or “company”). The charter also provided that certain of the freemen should be “elected or deputed” by a majority vote of fellow freemen in their respective towns to “consult,” to “advise,” and to “determine” the affairs of the colony together with the governor, deputy governor, and assistants. It specified that Newport was entitled to six of these “elected or deputed” representatives; Providence, Portsmouth, and Warwick received four each, and two were to be granted to any town that might be established in the future. This was an equitable apportionment in 1663, but in the early nineteenth century it would become a source of grave discontent. The governor, deputy governor, assistants, and representatives (or deputies) were collectively called the General Assembly. Each member of this body had one vote. The assembly, with the governor presiding, was to meet at least twice ­annually,

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The Rhode Island State Constitution

in May and October. The only charter-imposed qualification for members was that they be freemen of the colony. Rhode Island’s legislature was endowed by the charter with extraordinary power, much of which it retained until 2004. It could make or repeal any law, if such action was not “repugnant” to the laws of England; it could set or alter the time and place of its meeting; and it could grant commissions. It could exercise extensive powers over the judicial affairs of the colony, prescribe punishments for legal offences, grant pardons, regulate elections, create and incorporate additional towns, and “choose, nominate and appoint such … persons as they shall think fit” to hold the status of freemen. The Royal Charter also mandated annual elections for all at-large officers of the colony, provided for the raising and governing of a militia, granted rights of commerce and fishery, and established acceptable boundaries (which included the Pawcatuck River as the western line of demarcation). Further, the document asserted, with language not unknown in other colonial charters, that inhabitants of the colony “shall have and enjoy all liberties and immunities of free and natural subjects … as if they … were born within the realm of England.” This clause and its alleged violation would cause the mother country serious difficulties a century hence. Finally, the charter’s most liberal and generous provision bestowed upon the inhabitants of the tiny colony “full liberty in religious concernments.” The document commanded that no person shall be “molested, punished, disquieted, or called in question for any differences in opinion in matters of religion” that “do not actually disturb the civil peace of our said colony.” This guarantee of absolute religious liberty was a vindication of Williams’s beliefs and accorded royal recognition of the fundamental principles upon which the Providence Plantation was founded—absolute freedom of conscience and complete separation of church and state. As Williams observed, this liberality stemmed from the king’s willingness to “experiment” in order to ascertain “whether civil government could consist with such liberty of conscience.” This was the “lively experiment” upon which the government of Rhode Island rested—an experiment that prompted some to observe that Massachusetts had law without liberty, but Rhode Island now had liberty without law. The Charter of 1663 won the overwhelming approval of the colonists, and with good reason: as the nineteenth-century American historian George Bancroft remarked, with only slight exaggeration, “No where in the world were life, liberty and property, safer than in Rhode Island.”6 During the last three decades of the seventeenth century, Rhode Island’s governmental progress was halting and uneven. In 1675 and 1676 King Philip’s War— a fierce struggle with the Wampanoag, Nipmuk, and Narragansett Indians—caused racial embitterment, drained the colonial treasury, disrupted civil government, caused widespread property damage, and took a high toll of human lives. From 1686 to 1689 Rhode Island’s charter was suspended as King James II and his colonial agent, Sir Edmund Andros, attempted to consolidate the coastal colonies from New Jersey to Maine under one regional government called the Dominion of New

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The Rhode Island Constitution and Commentary

England. Then King William’s War erupted between the English colonies and those of New France. That the seventeenth century ended with Rhode Island intact was a minor miracle. Despite freewheeling dissenters, jealous neighbors, internal secessionists, hostile Indians, avaricious land speculators, and imperial reorganizers, Rhode ­Island survived. The manner of its survival, however, failed to impress investigators sent by the Crown. One report at century’s end by Richard Coote, earl of ­Bellomont, observed that Rhode Islanders had a disdain for learning and were “shamefully ignorant.” His investigative analysis also disclosed an unjustified exercise of the judicial function by the General Assembly, violations of the Acts of Trade, usurpation of admiralty jurisdiction (which belonged only to the mother country), and the harboring of pirates. Bellomont concluded his 25-point indictment, which listed many deviations from the directives of the charter, by asserting that “his Majesty is neither honored nor served by that government, as at present it is managed.”7 From 1696 onward, however, the colony began to achieve a measure of stability. In that year the General Assembly developed more systematic and workable procedures and formally became bicameral, dividing into the House of Magistrates, or senate, and the House of Deputies, or representatives. In imitation of the English Parliament, the deputies assumed the task of preparing the tax bill and choosing their own speaker and clerk. In 1698 Samuel Cranston was elected governor. During his tenure of 29 years, by far the longest of any of Rhode Island’s governors (he died in office on April 26, 1727), Cranston established internal unity and brought his colony into a better working relationship with the imperial government in London. One valid criticism of the colony leveled by Bellomont had concerned the absence of a code of general statutes, in consequence of which “the people are at a loss to know what is law among them.” This deplorable condition was remedied in 1705, when a satisfactory manuscript digest was prepared. Then, in 1719, the assembly issued its first printed compilation of Rhode Island’s general laws. On the debit side, this digest contained a statute banning Catholics and Jews from voting or holding office—a violation of the spirit, if not the letter, of the Charter of 1663. During the Cranston regime the colony’s western boundary dispute with Connecticut was resolved in Rhode Island’s favor. A second important territorial development was the creation of the county system in 1703. By that date the assembly had incorporated five towns in addition to the original four: Westerly (1669), New Shoreham (1672), Kingstown (1674), East Greenwich (1677), and Jamestown (1678). The five mainland communities were assigned to the County of Providence Plantations, while the four island settlements were included in Rhode Island County. From the outset, however, these counties were merely militia districts and units of judicial administration, not separate layers of government as counties are in nearly all other states. In 1729, six years after Kingstown was divided into North and South, King’s (later Washington) County was created, with Little Rest (­Kingston) its seat, and Providence County assumed its present name. In 1746 the

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The Rhode Island State Constitution

r­ eadjustment of the colony’s eastern boundary with Massachusetts brought Tiverton and Little Compton into Newport County (then called Rhode Island County) and Cumberland into Providence County, and it prompted the creation of Bristol County from the former Massachusetts communities of Bristol—which became the county seat—and Warren, which then included present-day Barrington. This new judicial unit of less than 25 square miles became and remains America’s ­second smallest county. Finally, in 1750, Kent County was set off from the southern tier of Providence County, with East Greenwich its shire town. At this juncture Rhode Island boasted a population (according to a 1748 census) of 34,128 residing in 24 towns, of which Newport was easily the largest and most prominent. The vast majority of the people, however, lived in a rural, agrarian setting. The five counties created between 1703 and 1750 influenced the operations of Rhode Island’s government for more than a century. Each of these governmental units prompted the construction of a county house in which the General Assembly could meet and the courts could deliberate. Because the legislature rotated its sessions from county seat to county seat, each of these buildings became, in effect, a colony house and each county seat became a capital. The largest, oldest, and most imposing of these citadels of colonial government presently standing was erected in Newport in 1739, and each newly elected legislature convened and organized there annually on the first Wednesday in May from 1742 until 1900. The county system served mainly to systematize judicial proceedings. By the charter’s general charge to the legislature “to appoint, order and direct, erect and settle, such places and courts of jurisdiction, for the hearing and determining of all actions, cases, matters and things … as they shall think fit,” the basic law of 1663 did not fundamentally alter the judicial structure of 1647. The General Court of Trial was retained, and in 1664 the assembly ordered that its sessions be held semiannually, with the governor or deputy governor, and at least six assistants, presiding. From time to time several inferior courts were also created. Because legislative and judicial functions were for a time combined in the same body of men (namely, the governor, deputy governor, and assistants), the General Assembly often exercised functions now considered the exclusive domain of the judicial branch. Almost any part of the judicial process was open to its inspection and possible correction. The nature of its involvement in judicial affairs appeared to Lord Bellomont (and many observers since) to have been a usurpation of power not justified by the Royal Charter. The rearrangement of the court system in 1729, through the use of three counties (Newport, Providence, and King’s) as units of judicial administration, was a change of primary importance. The lowest tribunal in this county-based structure was the local court of the justice of the peace. This agency, which was in ­continuous session, had original jurisdiction in minor matters and bound over more serious offenders to the higher court having jurisdiction. On the next level were the Courts of General Sessions of the Peace and the Courts of Common Pleas. The former, established in each county, were conducted by all the local justices of the peace or any five of them, and they were empowered to try all criminal cases, capital crimes

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excepted. Their sessions were semiannual and their decisions could be appealed to the highest court. They in turn exercised appellate jurisdiction over all petty ­offenses originally triable by a justice of the peace. The Courts of Common Pleas were civil courts conducted by “judicious” persons chosen by the assembly from their respective counties. These appointees, upon their selection, were elevated to a justiceship of the peace. The jurisdiction of these courts, which was both original and appellate, extended to the trial of nearly all civil actions arising in the county. Their business was conducted semiannually together with that of the Courts of General Sessions. Although the Courts of Common Pleas and the Courts of General Sessions were nominally distinct from one another, both were usually conducted by the same personnel. At the apex of the county system was the Superior Court of Judicature, Court of Assize, and General Gaol Delivery, as the General Court of Trial was renamed in 1746. Held at Newport, it consisted of the governor, deputy governor, and assistants. The Superior Court possessed original jurisdiction in certain major cases, but its primary function consisted in reviewing appeals from decisions of the Courts of General Sessions and the Courts of Common Pleas. Petitions from decisions of the Superior Court, however, were often entertained and acted upon by the General Assembly, and occasionally appeals from that court’s verdicts were accepted by the king in council. In February 1746 the governor and assistants were removed from the bench of the Superior Court and replaced by one chief justice and four associates, but legislative influence was not significantly diminished by this change. Judges could still be members of the assembly, so those deputies or assistants appointed to the bench usually retained their legislative posts. Furthermore, all judges were subject to annual appointment by the assembly. During the session preceding the 1746 Superior Court Act, the legislature established a formal procedure for receiving, “hearing and determining” petitions praying relief from court decisions, thus strengthening and reaffirming its appellate powers, which were similar to those possessed by the English House of Lords. These practices endured for the remainder of the colonial period. In fact, the petition process and the system of annual appointment persisted until the establishment of Rhode Island’s state constitution in 1843. The development of executive power under the Charter of 1663 was comparable to the growth of judicial autonomy: both were repressed by the powerful ­legislature. Apart from making the governor the presiding officer of the General Assembly and granting him the right to convene special sessions of that body, the charter bestowed upon him few exclusive powers of significance. As little more than the executive agent of the assembly, he had no appointive power, for that important prerogative resided in the legislature. Even the governor’s charter-conferred position of commander in chief was carefully circumscribed by the assembly. A final significant implementation of the charter concerned the creation of freemen and their consequent power to vote. Contrary to widely held opinion, the basic law of 1663 did not establish a specific suffrage requirement; it simply empowered the assembly to “choose, nominate and appoint” freemen of the colony.

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However, both the framers and recipients of the charter apparently considered the franchise a privilege to be exercised only by those who had been elevated to the status of freemen, and indeed such was the practice in both the towns and in the colony prior to 1663. Thus, under the Royal Charter freemanship remained a prerequisite for voting, and the colonial legislature in 1664 declared “that none presume to vote … but such whom this General Assembly expressly by their writing shall admit as freemen.” According to the voting-rights statute of 1664, any person of “competent estate” could become a freeman of the colony either by direct application to the assembly or through being proposed by the chief officer of the town in which he lived. In the normal course of events Rhode Islanders secured dual freemanship. First they gained the right of inhabitancy and acquired a “competent estate” in the town where they had chosen to reside, and then they applied and were admitted to town freemanship by their fellow townsmen of that status. Finally their names were proposed, or “propounded,” to the General Assembly for admittance as freemen of the colony by the town’s chief officer or the town clerk. When a town freeman was proposed to the assembly in this manner, his acceptance as a freeman of the colony was practically assured. Once approved, his name was entered in the records of the colony. In 1723 a statute was passed by the assembly that set the first specific landed requirement for town freemanship, and since that status was the usual and nearly automatic prelude to colonial freemanship, the act is worthy of citation. This law stipulated that a person must be a “freeholder of lands, tenements, or hereditaments in such town where he shall be admitted free, of the value of one hundred pounds, or the [rental] value of forty shillings per annum, or the eldest son of such a freeholder.” In 1729 the real estate requirement was increased to £200, and in 1746 to £400, but by 1760 it had been reduced to £40 (about $134). These drastic and erratic changes were more the result of inflationary and deflationary trends than of stringency or fickleness of the General Assembly. The freehold requirements and suffrage stipulations enacted by the legislature might cause the uncritical reader to assume that the franchise was a privilege enjoyed by a select minority. Such an inference would be erroneous. The real estate requirement for freemanship was not a measure of oppression or restriction in a rural, agrarian society where land tenure was widely dispersed. The suffrage statute of 1746 in fact declared that the manner of admitting freemen was “lax” and the real estate qualification was “very low.” Authoritative students of Rhode Island’s colonial history estimate that 75 percent of the colony’s white adult male population were able to meet the specific freehold requirements from the time of their imposition in 1723 to the outbreak of the War for Independence.8 This fact, however, needs some qualification. Being allowed to vote and hold office was not synonymous with exercising those privileges. Normally less than half the freemen bothered to vote, and those that did often elected to office men from the upper socioeconomic strata. Rhode Island democracy was one of indifference and deference, though it was a democracy nonetheless. Although the incentive to participate politically was not widespread, it was strong in some quarters, as evidenced by the development of an extraconstitutional

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system of two-party politics in the generation preceding the American Revolution. Opposing groups, one headed by Samuel Ward and the other by Stephen Hopkins, were organized with sectional overtones; generally speaking (though there were notable exceptions), the merchants and farmers of southern Rhode Island, led by Ward, battled with their counterparts from Providence and its environs, the faction led by Hopkins. The principal goal of these groups was to secure control of the powerful legislature in order to obtain the host of public offices—from chief justice to inspector of tobacco—at the disposal of that body. In these circumstances the governor, as party leader, acquired an informal influence far beyond his meager official power. The semipermanent nature, relatively stable membership, and explicit sectional rivalry of the warring camps have led one historian to describe the state’s pre­Revolutionary political structure as one of “stable factionalism.” Jackson Turner Main, the leading authority on the early formation of American political parties, has unequivocally stated that “Rhode Island produced the first two-party, or, more accurately two-factional system in America.” Another historian, David Lovejoy, has maintained that Rhode Islanders revolted from British rule not only “on the broad grounds of constitutional right to keep Rhode Island safe for liberty and property” but also to preserve “the benefits of party politics”—patronage and spoils. As noteworthy as the development of the party system in mid-eighteenth­century Rhode Island were the rules by which the political game was played. The charter provided the broad framework within which elections were conducted, but a succession of resourceful, imaginative politicians supplied the unique details through an intricate combination of custom and statute. The salient and most significant feature of Rhode Island government under the charter was that the crucial electoral arena was the colony—and later the state—as a unit. The governor and deputy governor, together with a secretary, an attorney general, and a treasurer, were elected annually in April on a colonywide or at-large basis, as were 10 “assistants” who constituted the upper house. Only the deputies, elected semiannually in April and August, were chosen on a local basis. Thus there existed an obvious inducement to form colonywide parties in order to elect a full slate of general officers. For these at-large contests, Rhode Islanders devised a peculiar system known as “proxing.” A “prox” was a ballot upon which a party placed the names of its atlarge candidates. On the third Wednesday in April, the elector in his town meeting took the prox of his choice, made any deletions or substitutions on it that he deemed desirable, and signed it on the reverse side in the presence of the town moderator. The voter then submitted the prox to the moderator, who forwarded it to the town clerk to be recorded. When this ritual was concluded, the proxes were sealed in a packet and taken to Newport by one of the town’s state legislators for the start of the May session of the assembly. On “election day,” the first Wednesday in May, ballots were opened and counted by the incumbent governor in the presence of the incumbent assistants and newly elected deputies sitting jointly in grand committee. The candidate having a majority of the total vote cast for his respective office was declared elected.

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Under this system a party’s success was dependent upon many procedural factors: how widely its printed prox could be distributed, how many new voters could be qualified by fraudulent transfers of land, how many electors of the opposite persuasion could be induced by bribes to abstain from voting. Rhode Island was also a democracy of corruption and chicanery. An English visitor, the Reverend Andrew Burnaby, perceptively observed in his travels through the colony in 1760 that the “men in power, from the highest to the lowest, are dependent upon the people, and frequently act without that strict regard to probity and honor, which ever ought invariably to influence and direct mankind.”9 The Revolutionary Era: 1764–1790 Rhode Island’s political antics, not to mention its autonomy, scandalized many royalist observers. In the eyes of the colony’s conservative critics, the land of Roger Williams, on the eve of the American Revolution, was “dangerously democratic.” Chief Justice Daniel Horsmanden of New York, in a 1773 report to the earl of Dartmouth during the investigation into the June, 1772, burning of the English customs sloop Gaspee, disdainfully described Rhode Island as a “downright democracy” whose governmental officials were “entirely controlled by the populace,” and conservative Massachusetts governor Thomas Hutchinson lamented to George III that Rhode Island was “the nearest to a democracy of any of your colonies.” Because of such “democratic” conditions, the years prior to the War for Independence saw no protests or attempts at reform directed against the suffrage requirements or the charter-imposed system of legislative apportionment. Rhode Islanders of the Revolutionary generation and their individualistic forebears knew well that they enjoyed near-autonomy within the empire and broad powers of selfgovernment within their colony, and they were also keenly aware that their selfdetermination flowed in large measure from the munificent Charter of Charles II. Thus they harbored a passionate attachment to that document and defended it against all challenges. Allowed to weather the revolutionary upheaval, the charter would remain the basic law of the state until 1843—a point far beyond its useful life. Because of its history and its circumstances, Rhode Island played a leading role in the American Revolutionary movement. Having the greatest degree of self-rule, it had the most to lose from the efforts of England to increase her supervision and control over her American colonies after 1763. In addition, Rhode Island had a long tradition of evading the poorly enforced Navigation Acts, and smuggling was commonplace. Beginning with strong opposition in Newport to the Sugar Act of 1764, with its restrictions on the molasses trade, the colony engaged in repeated measures of open defiance, such as the scuttling and torching of the British customs sloop Liberty in Newport harbor in July 1769, the burning of the British revenue ship Gaspee on Warwick’s Namquit Point in 1772, and Providence’s own “tea party” on March 2, 1775, when the English leaf was burned in Market Square. Gradually the factions of Ward and Hopkins put aside their local differences and united by

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e­ ndorsing a series of political responses to alleged British injustices. On May 17, 1774, after parliamentary passage of the Coercive Acts (Americans called them “Intolerable”), the Providence Town Meeting became the first governmental assemblage to issue a call for a general congress of colonies to resist British policy. On June 15 the General Assembly made the colony the first to appoint delegates (Ward and Hopkins) to the anticipated Continental Congress. In April 1775, a week after the skirmishes at Lexington and Concord, the legislature authorized a 1,500-man “army of observation,” with Nathanael Greene as its commander. At its organizational session on May 4, 1776, the Rhode Island General Assembly, sitting in Providence’s colony house because of the presence of a British fleet hovering off Newport, became the first colonial legislature to ­renounce allegiance to King George III. Meeting again in Newport’s colony house, the English threat having temporarily subsided, the assembly voted on July 18, 1776, to approve the Declaration of Independence and to substitute the word state for colony in the Royal Charter. Contrary to popular opinion, it was these votes, and not the renunciation of allegiance on May 4, 1776, that constituted Rhode Island’s acts of independence.10 In December 1776 the British occupied Newport, successfully ­resisted a siege to dislodge them in August 1778, and voluntarily evacuated Aquidneck Island in October 1779. In July 1780 the French army under Rochambeau landed there and made Newport its base of operations. During their stay the Catholic French conducted the first public masses ever celebrated in Rhode Island, with Newport’s colony house the setting for the most formal of these religious observances. The Revolution did not alter Rhode Island’s governmental structure (even the Royal Charter remained intact), but it did prompt some legal and political changes. For example, the Revolution and the reform sentiments it generated influenced legislation affecting Catholics and black slaves. Whatever anti-Catholicism existed in Rhode Island was mollified by assistance rendered to the struggling colonials by Catholic France and by the benevolent presence of large numbers of French troops in Newport under General Rochambeau, some of whom remained when the struggle was over. Thus the General ­Assembly in February 1783 removed the disability against Roman Catholics, imposed in 1719, by giving members of that religion “all the rights and privileges of the Protestant citizens of this state.” The most significant of several statutes relating to blacks was the emancipation act of 1784.With a preface invoking sentiments of Locke, that “all men are entitled to life, liberty, and property,” the manumission measure gave freedom to all children born to slave mothers after March 1, 1784. Since the Providence statehouse was the site of such momentous revolutionary measures as the renunciation of allegiance, the Catholic equality law, and the emancipation statute, it well deserves (but has not been accorded) the designation as Rhode Island’s “Liberty Hall.” The emancipation act was followed by a concerted effort of Rhode Island ­reformers—particularly the influential Quaker community—to ban the slave trade. This agitation had a salutary result when the General Assembly, sitting in Little Rest (Kingston), seat of the recently renamed Washington County, enacted a

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­ easure in October 1787 that prohibited any Rhode Island citizen from engaging m in this barbarous traffic. The legislature termed the trade inconsistent with “that more enlightened and civilized state of freedom which has of late prevailed.”11 A side effect of the Revolution that had important consequences for Rhode ­Island’s political and constitutional development was the decline of Newport. Its exposed location, the incidence of Toryism among its townspeople, and its temporary occupation by the British combined to produce both a voluntary and at times a forced exodus of its inhabitants. In 1774 Newport’s population was 9,209; by 1782 that figure had dwindled to 5,532. The population of Providence—more sheltered at the head of the bay and a center of Revolutionary activity—actually increased during these turbulent times from 4,321 in 1774 to 6,380 in 1790. The Revolution was a blow from which Newport never fully recovered. British occupation adversely affected both its population and its prosperity. From this period onward, numerical and economic ascendancy inexorably moved northward to Providence and the surrounding mainland communities.12 In 1778 the state quickly ratified the Articles of Confederation, with its weak central government, but when the movement to strengthen that government developed in the mid-1780s, Rhode Island balked. The state’s individualism, its democratic localism, and its tradition of autonomy caused it to resist the centralizing tendencies of the federal Constitution. This opposition was intensified when an agrarian-debtor revolt in support of the issuance of paper money gave rise to Rhode Island’s second party system and placed the parochial Country party in power from 1786 through 1790. This political faction, led by Charlestown’s ­Jonathan Hazard and Joseph Stanton, Jr., was suspicious of the power and the cost of a government too far removed from the grassroots level, and so it declined to dispatch delegates to the Philadelphia Convention of 1787, which drafted the United States Constitution. Then, when that document was presented to the states for ratification, Hazard’s faction delayed (and nearly prevented) Rhode Island’s ­approval.13 In 1786 the Country Party implemented an inflationary paper-money plan designed for the relief of agrarian debtors who lacked the money to pay the taxes imposed on their land. The implementation of the plan led to a major constitutional controversy. Since the bills were declared legal tender by the General ­Assembly, they could also be used to discharge private debts. When many businessmen balked at accepting the paper money, the assembly passed a “force act” imposing criminal penalties on anyone who refused this legal tender. This punishment was to be inflicted without benefit of trial by jury. When Revolutionary War veteran John Trevett tendered a bill to his Newport butcher John Weeden, and Weeden declined it, the stage was set for Trevett v. Weeden, the most important case in Rhode Island’s judicial history. The dispute was heard before the highest court in the state, and it concluded with the court’s refusing jurisdiction and dismissing Trevett’s complaint. In the course of the trial, however, James Mitchell Varnum, one of Weeden’s defense attorneys, advanced a learned and eloquent argument urging the court to exercise its hitherto unused power to review legislation and declare the force act

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unconstitutional. Although the court did not act on this plea, Varnum’s printed brief was widely disseminated, and it may have even influenced John Marshall in his famous formulation of the doctrine of judicial review. The agrarian-controlled legislature expressed its displeasure with the high court for failing to enforce the paper-money plan, and although it repealed the forcing statute that sparked the dispute in December 1786, it also declined to reelect four of the five members of the independent-minded court upon the expiration of their one-year terms in May 1787.14 In the period between September 1787 and January 1790, the rural-dominated General Assembly rejected no fewer than 11 attempts by the representatives from the mercantile communities to convene a state ratifying convention. Instead, the assembly defied the instructions of the Founding Fathers and conducted a popular referendum on the Constitution. That election, which was boycotted by the supporters of stronger union (called Federalists), rejected the Constitution by a vote of 2,708 to 243. Finally, in mid-January 1790, more than eight months after George Washington’s inauguration as first president of the United States, the Country party reluctantly called the required convention, but it took two separate sessions, one in South Kingstown (March 1–6) and the second in Newport (May 24–29), before approval was obtained. The ratification tally—34 in favor and 32 opposed—was the narrowest of any state, and a favorable result was obtained only because four Antifederalists either absented themselves or abstained from voting. Rhode Island’s course during this turbulent era—first in war, last in peace—is attributable in part to its tradition of individualism, self-reliance, and dissent. Most of its residents feared the encroachment on local autonomy by any central government, whether located in London, Philadelphia, or Washington. This ideology, coupled with the economic concerns of the agrarian community, explain Rhode Island’s wariness toward the work of the “Grand Convention.” Those economic worries consisted principally of a fear that the new central government would be financed by exorbitant taxes on land and that the new Constitution’s ban on state emissions of paper money would terminate the inflationary financial scheme formulated by Hazard and the Country party to discharge public and private debts. Because the Constitution three times gave implied assent to slavery, the influential Quaker community also denounced it. These factors explain the strength of Antifederalism. Small wonder that “Rogue’s Island,” as Federalists called it, withheld ratification until May 29, 1790, making it the last of the original 13 states to join the new federal union.15 The Early National Period: 1790–1840 The year 1790 marked the state’s grudging acceptance of the new federal Constitution and also saw an event that served as a catalyst in Rhode Island’s transition from a mercantile and agrarian economy to one based principally upon industry. That event, which some have lavishly termed “the beginning of Rhode Island’s

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i­ ndustrial revolution,” was the reconstruction of a cotton-spinning frame similar to Arkwright’s and its employment in a mill at Pawtucket Falls, the last plunge of the Blackstone River on its course to the Seekonk and thence to Narragansett Bay. The men chiefly responsible for this promising venture were Providence ­merchant Moses Brown, who was seeking to diversify his business interests, and Samuel Slater. The latter was a young Englishman, with technical knowledge and managerial experience acquired in the Derbyshire cotton industry, hired by the enterprising Brown for this industrial experiment. This combination of capital and craftsmanship was successful; in December 1790 cotton yarn was spun by ­waterpower for the first time in America. Gradually, almost imperceptibly at first, from this event Rhode Island began a metamorphosis that would alter not only its economic but its political, constitutional, and social complexion as well. The Rhode Island cotton industry, begun by Brown and Slater, developed slowly, with Providence entrepreneurs contributing to its expansion by supplying most of the funds, managers, and technical knowledge. The significant shifts of commercial capital into cotton manufacturing began in Rhode Island in 1804, well in advance of the Jeffersonian embargo and the War of 1812. Stimulated by high profits as well as the further transfer of capital from the dormant maritime business, ­cotton production expanded rapidly during the conflict with England. Throughout the decade of the l820s the industry flourished. The processing of cotton displaced maritime activity as the backbone of the Rhode Island economy. Cotton was indeed “king” of the state’s burgeoning industrial enterprises, but resourceful Rhode Island entrepreneurs and merchant capitalists experimented with a variety of manufacturing endeavors. The woolen industry, which eventually became second in importance to cotton, was an early example of this pattern of diversification. Because of the state’s pioneering role in cottons and woolens, it naturally turned to the manufacture of textile machinery and equipment. By 1830 this enterprise formed a major, though highly specialized, segment of Rhode Island’s rapidly expanding base-metal industry. A final early and lucrative line of endeavor was the manufacture of precious metals, especially gold and silver jewelry. By 1840 Providence was the industrial leader in a rapidly industrializing state and the possessor of the best balanced and most diversified manufacturing economy. It owed this primacy to its superior financial resources and banking facilities, its development of steam power, its position as the center of the base-metal industry, and its emergence as the hub of Rhode Island’s transportation network, hosting a railroad terminal and serving as the outlet for the Blackstone Canal. As the 1830s drew to a close, Providence (then only one-third its present geographical size) was well on the way to becoming the metropolitan center of southern New England. Less spectacular but also significant was the economic growth of the other northern towns. This expansion was especially pronounced in the Blackstone ­Valley cotton towns of Smithfield, Cumberland, and North Providence (which included the village of Pawtucket), and the Pawtuxet River community of Warwick,

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especially its western sector, which later became the town of West Warwick. Providence and these nearby municipalities furnished the dynamism in Rhode Island economic life during the second quarter of the nineteenth century. The transition and expansion of Rhode Island’s economy had a profound impact upon the political culture of the state and upon what one might term its constitutional demography. Industrialization effected significant changes not only in the distribution of population and the rate of population growth. These changes in turn precipitated demands for constitutional reform, especially in the area of legislative apportionment, because the charter’s allocation of representatives was not only rigid but, as successive census reports revealed, increasingly inequitable. Also, population and immigration trends pointed to the rise of a landless class of artisans and factory workers in crowded mill villages. In Rhode Island the statutory freehold qualification disfranchised this group. As industrialization progressed, the number of these second-class citizens multiplied. Their demands for suffrage reform, first advanced in the early l820s, grew more incessant and reached an ominous crescendo after the presidential election of 1840. To understand the growing concern over apportionment and suffrage in the period 1790–1840, one must analyze Rhode Island’s demographic data for that eventful era. A useful frame of reference—devised by historian Peter J. Coleman— is the classification of towns into three categories: (1) expanding—those which had a much higher rate of population increase than the state as a whole; (2) static— those whose population had either remained stationary or increased at a rate below the state average; (3) declining—those that showed a rate of population loss. Expanding towns were industrialized, and this was the basic factor in their growth, whereas static and declining towns, with Newport a notable exception, were basically rural and agrarian. With these criteria it is possible to designate Providence, North Providence, Smithfield, Warwick, Cumberland, Bristol, Warren, Johnston, and Scituate as expanding towns during the period under analysis. The remainder of Rhode Island’s towns, which can be described as static or declining, were located in southern and western portions of the state from lower Narragansett Bay to the Connecticut line. In the era 1790–1840 the bay county of Newport was generally static, while ­Washington County and the towns on the western border experienced a marked decline. Declining communities included Foster, West Greenwich, East Greenwich, and the Washington, or South, County towns of Exeter, Richmond, South Kingstown, Hopkinton, Charlestown, and Westerly. All lost population between 1790 and 1840 as their farms were abandoned and their inhabitants departed to more promising places. Those hardy, persistent, or complacent farmers who remained behind attempted, often successfully, to make the difficult adjustment from self-sufficient to commercial agriculture and to meet the increasing challenge of western competition. ­Politically, they jealously guarded the prerogatives of their community and watched the rise of the northern towns with awe and apprehension. They were estranged economically and socially from the native-born factory operatives of the mill ­villages and worlds apart from the immigrant Irish laborers who began to add to

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the burgeoning industrial population in the decade of the 1830s. The outnumbered rural folk regarded reapportionment and “free suffrage” as their political death knell. Their position on these issues strengthened and stiffened with each passing year and reached unparalleled intensity by 1840, as it became clear that the mounting though landless industrial population would increasingly be composed of such “undesirables” as Irish Catholic immigrants. The stand of these agrarians was diametrically opposed to majoritarian principles and the powerful national trends toward suffrage extension and equal representation. By 1840 the battle lines were drawn. Although the categories were far from rigid, generally the expanding towns were arrayed against the static and declining, the industrial sectors against the agrarian, the north and east against the south and west. A dynamic and irresistible force struggled against a reactionary and seemingly immovable object, with political ascendancy the prize. In the 1830s, as the demand for constitutional reform intensified, national political trends again exerted an impact on Rhode Island. The second American party system had formed, with the Democrats, led by Andrew Jackson, arrayed against the Whigs. In Rhode Island the rural, agrarian towns in South County and along the state’s western border lined up in the Democratic column, while Providence, the industrial areas in the Blackstone Valley, and commercial centers like ­Newport, Warren, and Bristol supported the Whigs. Except for the gubernatorial successes of Democrats John Brown Francis (1833–1837) and Philip Allen (1851–1853), the commerce- and industry-oriented Whigs generally controlled state government until that party divided and disbanded nationally in the mid-1850s over the issue of slavery. Locally, the Whig cause was aided by the inexorable transformation of the state’s economy from an agrarian to an industrial base.16 During the 50 years (1790–1840) that these political realignments and partisan battles were occurring, the structure of Rhode Island’s government remained ­virtually unchanged owing to the inflexibility of the colonial charter, which was still the state’s basic law. Sustained agitation for reapportionment of the General Assembly and for a diminution of its powers, beginning in 1817, led the reluctant legislature to authorize Rhode Island’s first constitutional convention, which convened in Newport’s county house in June 1824. This body—whose delegates were apportioned in the same manner as those in the state legislature—suggested modest reforms, but these were decisively rejected in the subsequent referendum. With overwhelming opposition from voters in those towns destined to lose political influence if the proposed reapportionment was implemented, the constitution of 1824 was defeated by a 2-to-1 margin. Ten years later another convention, also a replica of the General Assembly, met inconclusively and adjourned without even producing a draft of a basic law for the state’s voters to consider. The legislature’s tactic was obvious: By requiring constitutional conventions to be apportioned in the same ratio as decreed by the charter and to be manned by delegates qualified and elected under the existing, restrictive suffrage statute, the legislature contrived to prevent any significant change in its structure or power.17 The most notable example of such legislative dominance during the Early ­National Period was the General Assembly’s role in the controversial War of 1812.

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During that conflict, as the British menaced America’s coastline, the legislature created a Council of War, similar in power and function to those created during the imperial wars of the colonial period and one established during the American Revolution. It contained two legislators among its six members. The assembly, through the Council of War, directed Rhode Island’s military and naval activity in the conflict and, as a reluctant participant, challenged the national government’s conduct of the war on constitutional grounds. An analysis of the legislature’s many acts, orders, and resolutions from 1812 through 1815 clearly indicates that the war power was lodged in that body, with Governor William Jones merely its spokesman and the implementer of legislative directions. In April 1814, for example, the assembly passed resolutions challenging the Madison administration’s conduct of the war, declaring to the national government that “it is the most sacred duty of the legislature always to guard, defend and secure the sovereign rights of the state from all encroachments, and to protect its citizens from all arbitrary infringements of their inalienable privileges, by whomsoever such encroachment and infringement may be meditated or attempted.” South County political potentate Elisha R. Potter, Sr., rebuked those early reformers who undertook the formidable task of changing the legislative locus of power. He expressed his support for and his view of the existing system in 1818: I am not afraid of exercising the powers of the House. I am not afraid to declare my views in the General Assembly. The powers of this House are unlimited, they, being without a written Constitution, are omnipotent: They have as much right to govern the affairs of this State and the citizens, as the Supreme Ruler of the Universe has to manage his own affairs.

In 1829, the issue of assembly power received a national hearing before the justices of the United States Supreme Court. The occasion was the case of Wilkinson v. Leland, in which attorney John Whipple, a leader of the Rhode Island bar, dueled with Daniel Webster over the constitutionality of a special state statute, enacted in 1792 pursuant to a private petition to the General Assembly, which in effect validated a void deed. In defending the legislature’s action, Whipple frankly informed the Supreme Court that Rhode Island’s General Assembly “always has exercised supreme legislative, executive, and judicial power,” and “it is the best court of chancery in the world.” Evidently the Supreme Court at least acquiesced in this bold assertion of power. Justice Joseph Story, writing for a unanimous court, upheld Rhode Island’s General Assembly: But it is said that this is a retrospective act, which gives validity to a void transaction. Admitting that it does so, still it does not follow that it may not be within the scope of the legislative authority, in a government like Rhode Island, if it does not divest the settled rights of property. [Emphasis supplied].

Reformers such as Thomas Wilson Dorr attacked this system and those who supported it. In 1834, as a young state representative from Providence, Dorr dueled with arch-conservative Benjamin Hazard of Newport, a veteran of 25 consecutive years in the House, over the composition of the proposed 1834

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Constitutional Convention. Hazard wanted that gathering to be a replica of the House, and derided Dorr for suggesting that it be apportioned on the basis of population and elected by an expanded suffrage. In a strong but futile counteroffensive, Dorr laid bare the reason for Hazard’s obstructionism: He clearly foresees the effect of a reformation in this state. He reads a handwriting on the wall; and it announces too clearly to be misinterpreted, the doom of a certain class of politicians, who, when the present unjust and oppressive system of things goes down, go with it, and do not rise again. It is this dread of personal consequences which makes some men cling with such a desperate grasp, strengthened by the energy of self-preservation, to the decaying remnants of the present fabric. Their influence perishes upon the introduction of justice and equality into the distribution of political power.18

The Dorr Rebellion and Its Aftermath: 1841–1854 Industrialization and its corollary, urbanization, combined by the 1840s to produce an episode known as the Dorr Rebellion, Rhode Island’s crisis in constitutional government. The state’s Royal Charter, nearing its 180th anniversary with hardly a change or a blemish, gave disproportionate influence to the declining rural towns, conferred almost unlimited power on the General Assembly, and contained no procedure for its own amendment. State legislators, regardless of party, insisted upon retaining the old real estate requirement for voting and office holding, even though it had been abandoned in all other states. As Rhode Island grew more urbanized, this freehold qualification became more restrictive. By 1840 about 60 percent of the state’s free adult males were disfranchised. Because earlier moderate efforts at change had been virtually ignored by the General Assembly, the reformers of 1840–1843 organized as the Rhode Island ­Suffrage Association, embraced a radical theory called “popular constituent sovereignty,” bypassed the legislature, and convened a People’s Convention, equitably apportioned and chosen by an enlarged electorate. Thomas Wilson Dorr, a patrician attorney, assumed the leadership of the movement in late 1841 and became the principal draftsman of the progressive People’s Constitution, which was ­ratified by a popular referendum in December 1841 by a margin of 13,944 to 52. Dorr was elected governor under this document in April 1842, while the charter adherents reelected Whig incumbent Samuel Ward King of Johnston in separate balloting. These elections were held following the narrow rejection of the so-called Freemen’s Constitution in a three-day referendum held March 21–23. That reactionary document (which served as the basis for the 1843 Constitution) had been drafted by a convention properly called by the General Assembly, but one in which the delegates were chosen under the prevailing suffrage law and apportioned in the same manner as the charter legislature. Discouragement regarding the composition of this body had been a major reason why the Suffrage Association adopted extra legal means to attain their goals. The agitators correctly assumed that the assembly’s act authorizing the so-called Freemen’s Convention was insincere and opportunistic, merely designed to sap vitality from the association’s cause and no

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more intended to be the vehicle of significant change than the previous “do nothing” conventions summoned in 1824 and 1834 to appease the disfranchised. With the two rival governments preparing to assume power on May 3–4 under their respective basic laws, a clash appeared imminent. On Tuesday, May 3, the suffragists prefaced their accession to office by staging a colorful parade in Providence from the Hoyle Tavern in the West End to the Providence statehouse on North Main Street. The entourage featured the Providence Brass Band, members of the People’s government, and a strong military contingent including the 60member Dorr Troop of Horse—the insurgent governor’s personal guard. Only the eventual setting of the People’s legislature diminished the luster and triumph of the occasion. Since the Law and Order faction (as the defenders of the charter government were called) had locked the statehouse—which contained the state’s seal, its archives, and other symbols of sovereignty—the suffragists were forced to retreat to a preselected alternative site, an unfinished foundry building on Eddy Street near Dorrance, to conduct their legislative deliberations. Dorr unsuccessfully opposed such timid acquiescence. Later he ruefully observed “that it was here that the cause was defeated, if not lost.” In chiding his more moderate associates, Dorr contended that “the period for decided action had now arrived.” A valid government, he said, “was entitled to sit in the usual places of legislation, to possess and control the public property, and to exercise all the functions with which it was constitutionally invested. A government without power, appealing to voluntary support, destitute of the ability or disposition to enforce its lawful requisitions, was no government at all and was destined to extinction.” Had the Providence statehouse been seized, lamented Dorr, “right would have been confirmed by possession, the law and the fact would have been conjoined, and the new order of things would have been acquiesced in by all but a minority” of powerless reactionaries. In Dorr’s view, therefore, the failure to possess the statehouse as a symbol of legitimacy loomed large in deciding the unhappy fate of the People’s party. The reformers were resisted by a “Law and Order” coalition of Whigs and rural Democrats led by Governor King and a “council of war,” consisting of Democratic former governor James Fenner and six prominent Whigs. Operating from the Newport statehouse, they authorized the use of force and intimidation to prevent the implementation of the People’s Constitution. When Dorr responded in kind by unsuccessfully attempting to seize the state arsenal in Providence on May 18, 1842, most of his followers deserted the cause, and Dorr fled into exile. When he returned in late June to reconvene his People’s legislature in Chepachet (but not to wage war, as his enemies claimed), a Law and Order army of 2,500 marched to Glocester and sent Dorr into exile a second time. Although the Dorr Rebellion had been effectually ended, the turmoil and popular agitation against the charter forced the victors to consent to the drafting of a written state constitution. Their Law and Order coalition held its officially sanctioned convention in Newport’s statehouse during September 1842. This conservative, Whig-dominated gathering, presided over by James Fenner and Henry Y. Cranston, produced a draft constitution and adjourned to November to allow

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­ elegates to discuss the document with their constituents. In early November the d convention reconvened in East Greenwich at the United Methodist Church and quickly sent its handiwork to the General Assembly, then sitting in the nearby Kent County statehouse. Arthur May Mowry, the first major historian of the Dorr War, calls this instrument “liberal and well-adapted to the needs of the state” because it improved House apportionment, contained a comprehensive bill of rights, and removed the real estate requirement for native-born citizens. Mowry’s appraisal, however, neglects one important item: this constitution established a $134 freehold suffrage qualification for naturalized citizens, and this anti-Irish Catholic restriction—not removed until 1888, and then only as a political maneuver—was the most blatant instance of political nativism found in any state constitution in the land. Other defects included the stranglehold on the senate that the document gave to the rural towns (there was to be one senator from each town, regardless of its population), cumbersome amendment procedures that made reform of the document a very difficult task, the lack of a mechanism for the call of future constitutional conventions, and the absence of a secret ballot. This constitution, overwhelmingly ratified in November 1842 by a margin of 7,024 to 51, became effective in May 1843. Despite what the margin of victory might appear to indicate, the turnout was meager, for there were more than 23,000 adult male citizens in the state. That the opposition, in mute protest, refrained from voting explains in part the constitution’s apathetic reception and the lopsided vote. The reformers failed in their vigorous last-ditch effort to win the April 1843 elections, held under the provisions of the Law and Order Constitution, when James Fenner defeated Dorr’s ally and Democratic leader Thomas F. Carpenter by a vote of 9,707 to 7,392. In a prophetic realignment, the Dorr Democrats made a strong showing in northern industrial towns once solidly Whig, and Fenner rolled up impressive pluralities in previously Democratic South County. Informed of the result, a distraught Dorr wrote a letter from New Hampshire to supporter Aaron White in which he exclaimed, “If our party will not fight or vote, in God’s name what will they do!” A disillusioned Dorr returned from his New Hampshire refuge in October 1843 to surrender to local authorities. Immediately arrested and jailed until February 1844, Dorr was prosecuted for treason against the state. In a trial of less than two weeks, he was found guilty by a jury composed entirely of political opponents and sentenced to hard labor in solitary confinement for life. He served one year before Governor Charles Jackson—elected on a “liberation” platform—authorized his release.19 In 1849 Dorr’s attempt at vindication was dashed when the United States Supreme Court refused to decide if the People’s government was legitimate. In the case of Luther v. Borden, Chief Justice Roger B. Taney devised the Political Question Doctrine, asserting that the Supreme Court was not the proper authority to conduct a retroactive investigation of the rival claims to sovereignty. That determination, said Taney, belonged to the political branches—Congress and the ­president,

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the state legislature and the governor.” To Dorr’s chagrin, Taney placed primary responsibility for the Constitution’s guarantee of a republican form of government (which Dorr claimed the charter regime was not) on Congress and the president and withdrew the courts from playing any role in its enforcement.20 A Democratic General Assembly restored Dorr’s civil and political rights in 1851, and in 1854 it reversed the treason conviction. But these gestures did little to cheer the vanquished reformer, whose spirit and health were broken. Disillusioned, he died in December 1854 in the midst of a local Know-Nothing campaign directed against immigrant Irish attempts to secure the vote. The Republican Ascendancy: 1854–1935 The Know-Nothing, or American, party was a political aberration formed during the early 1850s in many northeastern states to curb the recent heavy influx of Catholic immigrants (mainly Irish) and to delay the citizenship applications of those already here. This secret organization swept town, city, and state elections in Rhode Island in the mid-fifties. Its candidate, William W. Hoppin, captured the governorship in 1855, and another standard-bearer, James Y. Smith, won the Providence mayoralty. Some of the party’s more zealous adherents even planned a raid on St. Xavier’s Convent in Providence, home of the “female Jesuits” (the Sisters of Mercy), but the angry mob dispersed when confronted by Catholic Bishop ­Bernard O’Reilly and an equally militant crowd of armed Irishmen. The rise of the American party was a by-product of the disintegration of the second national party system (Democrats vs. Whigs) and the emergence of a third. By 1854 the Whig party—split nationally over the issue of slavery into “Cotton” and “Conscience” Whigs—fragmented locally. Those who considered the spread of slavery the country’s greatest evil embraced the newly formed Republican party, while those who saw Catholic immigration as the main menace joined the ­American (Know-Nothing) party, at least temporarily. Rhode Island Democrats also divided. Reform-oriented followers of Thomas Dorr maintained their party allegiance to Governor Philip Allen (1851–1853), Dorr’s uncle, former foe, and then sometime ally, but many rural Democrats who had supported the cause of Law and Order during the Dorr Rebellion affiliated with the Know-Nothings. When that one-issue party also declined after 1856, both these rural Democrats and urban, nativist Whigs gravitated toward the rapidly growing Republican party, bringing with them their anti-Irish Catholic attitudes. Know-Nothing governor William Hoppin became the state’s first Republican chief executive in 1856, and American party mayor James Y. Smith served as GOP governor from 1863 to 1866. From the birth of the Republican party until the 1930s, the Democrats were consigned to the position of Rhode Island’s minority party. During the turbulent 1850s two notable governmental changes occurred. In November 1854 the quaint but cumbersome custom of rotating General Assembly sessions among the five county seats was abolished by Article of Amendment III to the state constitution. This revision stated that “there shall be one session of the General Assembly holden annually on the last Tuesday in May at Newport and an

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adjournment from the same shall be holden annually at Providence.” The smallest state thus progressed from five capitals to only two. In 1856 the new constitution’s nebulous language pertaining to the independence of the judiciary was clarified. In the landmark case of Taylor v. Place, Chief Justice Samuel Ames once and for all rejected the power of the General Assembly to review or reverse decisions of the highest state court.21 During the last third of the nineteenth century and the first third of the ­twentieth, the GOP skillfully maintained its political dominance. Such party stalwarts as U.S. senator and Providence Journal publisher Henry Bowen Anthony (1815–1884) and his protégés Charles Ray Brayton (1840–1910) and U.S. senator Nelson W. Aldrich (1841–1915) consistently deflected attempts by Yankee reformers and Irish Catholic Democrats to dislodge the Republicans by altering the state ­constitution. For a quarter century after the arch-nativist Anthony’s death in 1884, Aldrich and Brayton ran the Rhode Island GOP. Of this dynamic duo, Aldrich was “Mr. Outside,” operating for 30 years on the national stage in concert with John D. Rockefeller, Sr., J. P. Morgan, and other giants of business and finance. Officially, he was majority leader of the United States Senate; unofficially, he was by common estimation “the general manager of the United States.” Brayton, on the other hand, stayed home. As “Mr. Inside,” he took charge of the nuts and bolts of GOP organization and discipline. His boldness was legendary. From 1901 until he was ousted by Democratic governor James Higgins in 1907, Brayton, who was never a legislator, directed the actions of the General Assembly from the sheriff ’s office in the newly constructed (and present) statehouse. With the completion of that structure in 1900, Article of Amendment IX mandated that an annual session of the General Assembly convene at Providence beginning on the first Tuesday of January 1901— an enactment that left Providence the state’s sole capital from that date onward. The Republican organization of the Brayton-Aldrich era owed its ascendancy to many factors, not least of which was the political system established by the state constitution of 1843. That document, carefully drafted by the Law and Order coalition of upper-class Whigs and rural Democrats that vanquished Thomas Dorr, was designed to prevent the old-stock industrialists and Yankee farmers from succumbing to the numerically superior urban proletariat, especially those of foreign birth and Catholic faith. When the Republican party formed during the 1850s in response to the slavery issue, it revived the Law and Order coalition of the preceding decade, and by adopting that group’s nativistic posture, it determined to use and preserve the Law and Order party’s constitutional checks upon the power of the urban working class. Included in those checks were (1) a malapportioned senate that gave a legislative veto to the small rural towns; (2) a cumbersome amendment process to frustrate reform; (3) the absence of procedures for the calling of a constitutional convention; (4) the absence (until 1889) of a secret ballot; (5) a General Assembly that dominated both the legislatively elected state supreme court and the weak, vetoless (until 1909) governorship; and (6) a real estate voting requirement for the naturalized citizen. This last-mentioned check was eliminated by the Bourn

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Amendment (Article VII) in 1888, but it was replaced by a $134 property-tax­paying qualification for voting in city council elections. This requirement had the practical effect of preventing those at the lower socioeconomic levels, usually Catholic immigrants, from exercising control over the affairs of the cities in which they resided. This was true because the mayors, for whom all electors could vote, had very limited powers, while the councils, for whom only property owners could vote, were dominant, controlling both the purse and the patronage.22 The Equal Rights Movement of the 1880s, led by Irish American attorney Charles E. Gorman, had demanded a constitutional convention to effect sweeping reforms in Rhode Island’s basic law, especially in the area of voting rights. That effort was stymied in 1883 by a Republican-dominated state supreme court, which rendered an advisory opinion to the senate 14 R.I. 649 (1883) declaring that a constitutional convention could not be convened either by the people (as the Dorrites had done) or by the General Assembly. This incredible and reactionary ruling endured until after the Democrats seized control of state government in the “Bloodless Revolution” of 1935. In addition, the legislature ignored the 1882 report of its own select committee recommending that the constitution be amended to allow the General ­Assembly to summon a convention. With the possibility of a reform convention negated, equal rights advocates eventually pressured the General Assembly to create a constitutional commission to revise the basic law and present its report to the legislature and the electorate in the form of a constitutional amendment. This tactic resulted in the appointment of the Commission to Revise the Constitution in 1896. Yielding to popular pressure, Charles “Boss” Brayton made this concession to the reformers, but he exerted enough influence over the study group to prevent it from recommending major reforms. His goal was appeasement. Since the commission’s completed work would take the form of a constitutional amendment, the Republican-controlled General Assembly was required to vote its approval in two successive sessions. In order to achieve minor changes, such as a slight increase in the number of representatives from Providence, veto power for the governor, and the possibility of holding a constitutional convention in 1910 (ironically, the year that Brayton would die), the reformers had to accept such regressive provisions as the creation of a district system for electing House members in Providence, the retention of the property qualifications for voting in city council elections, and the establishment of a literacy test for voting. Even with its deficiencies, the “revised constitution” (as it was called) had the support of many reformers, including such leaders as Gorman and Amasa Eaton. When it went to the voters on November 8, 1898, however, it was rejected outright by a margin of 17,660 to 13,510. The legislature then made some very minor adjustments and resubmitted the draft constitution for ratification on June 20, 1899. This time the turnout was meager and the document was defeated more decisively—12,742 rejecting to only 4,097 for approval. In 1912 the legislature created a third commission but declined to submit its recommendations to the electorate when that body completed its work in 1915. Thus ended, to the relief of those in power, the awkward attempt at reform via constitutional commission.

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The proposed constitutions of 1898 and 1899 met the fate often reserved for most efforts to enact an entire basic law. Electors vehemently opposed to any one of the new proposals voted no; others rejected the document because the new constitution included only some of the reforms they sought. Many who believed that the constitution should be revised by a popular convention voted against the documents because they were the work of a small, select number of men. Conservative Republicans believed too much had been conceded, while some reform Democrats felt that the proposed reforms were insufficient. As if constitutional checks were not sufficient to ensure Republican control, Boss Brayton for good measure engineered the enactment in 1901 of a statute designed to weaken the power of any Democrat who might back into the governor’s chair by virtue of a split in Republican ranks. With a few limited exceptions, this “Brayton Act” placed the ultimate appointive power of state government in the hands of the senate. In the aftermath of its passage, a governor could effectively appoint only his private secretary and a handful of insignificant state officials.23 By 1920 the senate—the possessor of state appointive and budgetary power— was more malapportioned than ever. For example, West Greenwich, population 367, had the same voice as Providence, population 237,595! The 20 smallest towns, with an aggregate population of 41,660, outvoted Providence 20 to 1, although the capital city had over 39 percent of Rhode Island’s total population. As Democratic congressman George F. O’Shaunessy (1911–1919) observed, the senate was “a strong power exercised by the abandoned farms of Rhode Island.” The Progressive Era (ca.1898–1917) was an age of national reform—political, economic, and social—but Rhode Island’s reactionary political and constitutional system survived the period relatively intact. Boss Brayton, Nelson Aldrich, and their successors proved more than a match for Lucius Garvin, James Higgins, Charles E. Gorman, Robert H. I. Goddard, Theodore Francis Green, Amasa Eaton, and other supporters of constitutional reform. The Brayton-Aldrich combine even survived a national exposé by noted muckraker Lincoln Steffens, who described Rhode Island as “A State for Sale” in a 1905 article for McClure’s Magazine. Although nearly all the reforms associated with the Progressive Era bypassed Rhode Island, one that finally succeeded after more than 50 years of local effort was women’s suffrage. The battle, begun in Providence in 1868 by Paulina Wright Davis, Elizabeth Buffum Chace, and Anna Garlin Spencer, was won on January 6, 1920, when the state senate (voting 38 to 1) and the House (89 to 3) ratified the Nineteenth Amendment to the federal Constitution. The wide margins were deceptive, however, for the assembly yielded only when it appeared that nationwide approval of women’s suffrage was unavoidable. The Democrats lost no time in ­recruiting women candidates. In 1920 they ran Elizabeth Upham Yates for lieutenant governor and Helen I. Binning for secretary of state, and in 1922 and 1924 they nominated Susan Sharp Adams for the latter office. All four efforts were unsuccessful, and so the Democrats waited until 1982 to endorse another woman for the state ticket. With both major parties nominating women for secretary of state that year, Providence Republican Susan Farmer prevailed to become Rhode Island’s first female general officer.

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Despite their early failure to gain statewide elective office, women did register an important breakthrough in 1922 when Mrs. Isabelle Florence Ahearn O’Neill became Rhode Island’s first female legislator. When she was elected in 1922 as a Democratic representative from the Broadway district of Providence, she was a teacher of elocution and physical education. Mrs. O’Neill served four terms as a member of the House education committee and two terms as state senator prior to retiring undefeated from elective office in 1935. With the return of peace in Europe, Rhode Island’s political wars resumed. The stormy decades of the 1920s and 1930s witnessed a major transition from Republican to Democratic control in state government. Economic unrest—stemming from such factors as the decline of the textile industry, the stock market crash of 1929, the ensuing Great Depression, and the local rise of organized labor—­coupled with the development of cultural antagonisms between native and foreign stock to weaken the normal allegiance of local Franco-Americans and Italian Americans to the Republican party. Simultaneously, vigorous efforts by the Irish-led Democratic party to woo ethnics, key constitutional reforms such as the removal of the ­property-tax requirement for voting in council elections (by Amendment XX in 1928), a shift in control of the national Democratic party from rural to urban leadership, the 1928 presidential candidacy of Irish Catholic Democrat Al Smith, and the social programs of Franklin D. Roosevelt’s New Deal all combined by the early 1930s to pull the newer immigrant groups towards the Democratic fold. A highlight of the turbulent twenties, and one of the most bizarre episodes in the history of any state, was the stinkbombing of the senate in June 1924. At that stormy session the Democratic minority, led by Robert E. Quinn and Lt. Governor Felix Toupin, the presiding officer, staged a marathon filibuster to force weary Republicans to pass a bill to convene a constitutional convention that had already cleared the Democratic house. Toupin’s strategy was to wear some of the elderly Republicans down, then call for a vote on the question when they snoozed or strayed. In the 42nd hour of the filibuster, as the vigilant Democrats awaited the success of this scheme, Republican party managers authorized some thugs imported from Boston to detonate a bromine gas bomb under Toupin’s rostrum. As the fiery Woonsocket politician keeled over unconscious, senators scrambled for the doors. Within hours most of the Republican majority was transported across the state line, where Toupin’s summons could not reach them. There they stayed (Sundays excepted) until a new Republican administration assumed office in January 1925. Ironically, the defeat of the Democrats in the 1924 state elections was due in part to the fact that the Providence Journal wrongly accused them of the bombing. In that year the ­newspaper had its own reasons for discrediting the Democrats, inasmuch as Jesse H. ­Metcalf, brother of the Journal ’s president, was the GOP candidate for the U.S. Senate in the fall election against incumbent Democratic governor William S. Flynn.24 The Bloodless Revolution and Its Aftermath: 1935–1939 The Democratic setback in 1924 was only a temporary reversal in a seemingly inexorable political trend. By the General Assembly session of January 1935,

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­ emocratic leaders—especially Governor Theodore Francis Green, political boss D Thomas P. McCoy of Pawtucket, state senator William Moss, and Lieutenant Governor Robert Emmet Quinn—were on the verge of achieving political ascendancy by staging a governmental reorganization now known as the “Bloodless Revolution.” This bizarre coup, made possible by a controversial scheme that gave the Democrats narrow control of the state senate in defiance of election-day returns, resulted in the repeal of the Brayton Act, the reorganization of the state ­government through the replacement of the commission system with the present departmental structure, the seizure of state patronage by the Democrats, and the dismissal of the entire five-member Republican supreme court. With vivid memories of the 1924 bombing, Quinn had ringed the senate chamber with state policemen and sheriffs to prevent the startled Republicans from escaping and preventing a quorum prior to the execution of the Democratic plan. The newly elected state supreme court promptly issued an advisory opinion that emphatically overruled the 1883 opinion of the Republican court that had found no mechanism or power able to convene a Rhode Island constitutional convention. The Democratic-controlled tribunal, headed by Chief Justice Edmund Flynn, advised Governor Green that such power resided in the General Assembly under the residual powers clause of the 1843 constitution (Article IV, Section 10). Since the General Assembly had authorized the call of several conventions under the charter regime (viz.,1824, 1834, 1841, and 1842), it could continue to do so using its residual powers: “The General Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this Constitution.” Having the ability to summon a convention was not equivalent to the ability to structure an effective and objective gathering of delegates. Here the victorious Democrats squabbled and divided. Idealists among them, led by Lieutenant Governor Quinn, insisted upon a balanced convention containing an equal number of delegates from each party; partisans led by Governor Green structured the 1935 convention act to ensure Democratic control; and rural Democrats feared that a convention would devise a reapportionment plan that would strip them of their influence in state affairs. In the face of such disunity, the Democratic legislature did not pass the 1935 convention act that had sparked the new supreme court’s advisory opinion. In 1936 the effort was renewed with the introduction of a convention bill backed by Governor Green. Like the 1935 measure, it contained no provision for a popular vote on the question of holding a convention; it was partisan in nature; and it would give the convention unlimited power, including the power to redistrict the state. Strong opposition at once developed, and it became evident that no bill which could result in sweeping reapportionment would pass the closely divided senate. In the face of such opposition, legislative leaders devised a strategy. Since the supreme court had declared in its advisory opinion that only the people could restrict the scope of a constitutional convention, the proponents of the convention had to choose between an all-powerful body called into existence by the General Assembly (which could not restrict its scope) or a convention circumscribed by

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the people via language of limitation inserted in the popular referendum ­authorizing the convention call. The legislature chose the popular-vote alternative. It amended the convention bill to provide for a special election on March 10, 1936 (less than two months after the bill’s passage) to elect delegates and to decide whether or not to hold a convention. The one restriction to be placed on the power of this body was clearly stated: the convention was to be “so limited that the present number of senators and representatives in the general assembly of no city or town shall be decreased.” The Republicans campaigned vigorously against the convention, electors in the small towns remained apprehensive of change, and the disunited Democrats did not efficiently mobilize the vote (although they added referenda to the March ­ballot creating two new compulsory holidays—New Year’s Day and Columbus Day—to attract Italians and other working-class voters to the polls). The longsought gathering was decisively aborted; 88,407 voters approved, but 100,488 rejected the convention act. With the defeat of “The Constitutional Convention That Never Met” (as Rhode Island native and Harvard law professor Zechariah Chafee, Jr., called it in two pamphlets describing the project’s fate), Rhode Island soon ­resorted to the limited constitutional convention device to effect change. On the heels of the failed convention, a scandalous “Race Track War” erupted in 1937 complete with a gubernatorial declaration of martial law. It pitted Governor Quinn (1937–1939) against Narragansett Park owner Walter O’Hara, with whom Pawtucket mayor Tom McCoy was allied. These local embarrassments were compounded by a national recession that brought temporary disillusionment with the Democratic New Deal. In consequence, the state elections of 1938 returned the Republicans briefly to power. Although the GOP enacted a state merit-system law in 1939, its well-­intentioned governor, William Vanderbilt, became ensnared in a wiretap controversy during his overzealous attempt to implicate Mayor McCoy in vote fraud, and in 1940 the Democratic tide rolled in once more—this time for a long stay. United States district attorney J. Howard McGrath, who had made political hay with Vanderbilt’s federally illegal wiretap, won the governorship and took a giant step upward in a political career that would include several high national offices, including U.S. solicitor general, U.S. attorney general, and U.S. senator. Congressmen Aime J. ­Forand and John E. Fogarty also launched long and successful tenures in that 1940 campaign, as did Dennis J. Roberts, who became mayor of Providence under a new legislative charter that strengthened the powers of that city’s chief executive. For the Democrats, happy days were here for the first time since the early 1850s!25 The Democratic Ascendancy: 1940–1985 In the four-and-a half decades from 1940 to1985, the Democratic party enjoyed its era of political dominance. Of the 10 governors who served during that span, 8 were Democrats. So too were all the members of the state’s congressional delegation from 1940 until 1976. In addition, Republican control of Rhode Island’s smaller towns was weakened by the large-scale influx of urban ethnics and the

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a­ pplication of the “one man, one vote” principle to state legislatures by decisions of the U.S. Supreme Court (Reynolds v. Sims and Wesberry v. Sanders). Prior to that time senate apportionment gave small rural Republican towns an undue influence in state affairs. After a 1965 redistricting statute was enacted, however, the 50-member state senate, like the 100-member House, became overwhelmingly ­Democratic. By the three-and-a-half-century mark in 1986, Rhode Island’s three branches of government were closer to parity, but the General Assembly remained dominant. Although the office of governor was little strengthened by the constitution of 1843, several subsequent amendments had enhanced the power of the chief executive. In 1909 Article of Amendment XV endowed him with veto power, subject to a threefifths override by the General Assembly. Two years later his term (together with that of the other four general officers) was lengthened from one to two years by Amendment XVI. The reorganization act of 1935 greatly enlarged the governor’s appointment powers and his control over the state budget, both advances being made at the expense of the senate. Though the constitution of 1843 mandated a supreme court, the framers retained a close legislative check on the judiciary. In its Taylor v. Place ruling (1856), the not-so-high court asserted a measure of independence by terminating the assembly’s long-standing habit of reviewing and remanding its decisions. In 1903 Amendment XII ratified the Taylor rule and paved the way for the Court Reorganization Act of 1905. This statute, the root of our present system, established the county-based superior court and relieved the supreme court of its trial duties. ­Curiously, the new superior court judges (who were elected by the legislature until 1930) were given office for life (“during good behavior”), while a supreme court justice remained removable until 1994 by a mere resolution of the General Assembly—a fate that confronted the five judicial victims of the Bloodless Revolution. Conversely, Edmund W. Flynn, the chief justice appointed by the Democrats in their 1935 coup, presided over the supreme court for more than 22 years, the ­longest such tenure in the state’s history. In 1961 another substantial adjustment in the judicial system included the creation of a family court, a tribunal at the same level as the superior court, to hear cases dealing with divorce, support, custody, paternity, adoption, juvenile crime, and related issues. The district court system, established in May 1886, constitutes the third and basic level of the state’s judicial structure. The district courts do not hold jury trials, although they may hear lesser cases when the right to jury trial has been waived. Presently, civil matters that involve $5,000 dollars or less, a smallclaims procedure, and criminal cases including felony arraignments and misdemeanors are handled by the gubernatorial-appointed judges of this court, who also hold life tenure.26 The decades of Democratic ascendancy were quite active in a constitutional sense. One full-scale convention and five limited gatherings were held between 1944 and 1973. These limited sessions were called principally to effect constitutional change in a more rapid and less demanding manner than provided in the cumbersome amendment procedures of the state’s basic law. From 1843 through

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1973 a constitutional amendment that originated in the General Assembly required passage by two successive assemblies, a general election intervening and then ratification by a three-fifths vote of the qualified electors. The limited convention became a device to circumvent this difficult, time-consuming process, because an amendment proposed by such a body only required a majority vote of the qualified electors voting thereon for ratification. The 1944 convention drafted Article of Amendment XXII, exempting servicemen from voter registration requirements while on active duty. The 1951 body, called to consider eight proposed amendments, produced six changes in the basic law. These included amendments repealing the poll tax (Article XXVII), establishing a system for the permanent registration of voters (Article XXIX), allowing a veterans’ exemption from the taxpaying requirement for voting in financial town meetings (Article XXX), increasing the borrowing power of the state (Article XXXI), and providing for the use of eminent domain to acquire off-street parking (Article XXXII). In addition, this gathering drafted the municipal Home Rule Amendment (now Article XIII of the state constitution). This measure, designed to strengthen local self-government, established a procedure whereby a city or town could draft its own charter to replace the legislative enactment under which all municipalities were then governed. From 4 original towns, Rhode Island’s municipal system had cell-divided (often for partisan political purposes) and expanded by legislative fiat into 8 cities and 31 towns, the last, West Warwick, created in 1913. The 1955 limited convention proposed an increase in legislative pay (from the $5 per diem allowance established in 1900), life tenure for judges of the supreme and superior courts, and a procedure for the redevelopment of blighted areas in cities and towns. Only the redevelopment amendment (XXXIII) gained voter approval. The narrowly conceived 1958 convention proposed Article of Amendment XXXIV, regulating absentee and shut-in voting, and Article of Amendment XXXV, which attempted to purge the voting lists of those who did not reside at the addresses listed with the local boards of canvassers.27 In December 1964 Rhode Island’s first open, unlimited constitutional convention since 1842 convened. Its call had been approved and its delegates selected (81 Democrats and 19 Republicans) in the November 1964 general election. Former governor Dennis J. Roberts, who had chaired the limited 1951, 1955, and 1958 gatherings, secured election as convention chairman, but as the convention began its work, a Democratic legislative faction under the lead of family court judge John F. Doris, a former Woonsocket state representative, took political control of the gathering. The convention’s blueprint for action was the well-crafted Report of the Commission on Revision of the Rhode Island Constitution, prepared in 1962 by a 13-­member blue-ribbon legislative panel chaired by prominent Providence attorney and legal scholar William H. Edwards. Chairman Roberts diminished his influence with the Doris faction by championing a unicameral legislature, a radical innovation that the Edwards Commission had considered and rejected and that the ­General Assembly strongly opposed.

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For more than three years the convention dragged on, hampered by factionalism and extremely cumbersome rules that made delay the order of the day. Since the Democrats controlled the convention by a lopsided majority, both the Providence Journal and incumbent Republican governor John H. Chafee repeatedly criticized the gathering and made political hay from its controversies and its conservatism. Ironically, such prodding encouraged some significant reforms. The ratification referendum was held on April 16, 1968, the Tuesday after Easter. Arrayed against ratification were a resentful and disappointed chairman Roberts and the enormously popular Governor John Chafee. Although a superior court ruling blocked the convention’s Public Information Committee from spending money to explain and promote the document, Governor Chafee gave a substantial sum to his public relations agency to run an incessant media blitz against the proposed constitution over the Easter weekend. Although some contended that the anticonstitution ads were inaccurate and distorted, the negative campaign was a stunning success. The proposed basic law succumbed to the popular will by a 4-to-1 margin, 68,940 to 17,464, despite the determined efforts of a proratification group led by William H. Edwards and Patrick T. Conley, a research advisor to the convention, and chaired honorarily by Russell J. McVinney, bishop of the Diocese of Providence. Though the 1968 document was rejected by the voters, its defeat could be ascribed more to the opposition of the popular Republican governor, the terrible image of a convention that sat more than four years (probably the longest such conclave in the history of constitution making), and the reluctance of Democratic conservatives in that body to make innovations that might upset the status quo until forced to yield by public and, especially, media pressure. The voters, in effect, judged that constitution not by its content but by its parentage. The influential Providence Journal tried to prevent this voters’ bill of attainder at the 11th hour. After numerous (and justifiable) stories sharply critical of the convention, it undertook a lengthy article-by-article editorial analysis of the proposed document in the months prior to the April 1968 vote and concluded by endorsing the ratification of the proposed constitution. This about-face, however, proved too little, too late. In addition to the many specific reforms that it embodied, the 1968 document represented a vast improvement over the existing tangled, sometimes inconsistent, and much-amended basic law. The 1968 constitution was simple, logically arranged, succinct, and economically worded. It achieved these qualities because it properly dealt only with the organization and form of government and left the details for statutory determination.28 Though constitutional change was stymied in 1968, such persistent issues as legislative pay, lotteries, four-year terms for state officials, suffrage, and grand jury reform prompted a call for a limited constitutional convention in 1973 to consider these specific items. To prevent a partisan imbalance such as that which had afflicted the 1964 convention, the enabling statute called for each political party to nominate one candidate in each of the 50 senatorial districts. Democrats cheated the system and gave their party a 56-to-41 delegate margin, with 3 independents, in the 100-member convention.

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Ironically, the proposed convention was nearly aborted by the voters. On the morning following the August 7 special election to elect delegates and authorize the gathering, the local press headlines read “Convention Call Loses by 26 Votes.” Fortunately for the cause of constitutional reform an official recount reversed the results—the convention won approval by a narrow 92-vote margin (21,302 to 21,210). Voter apathy and a 90-degree day on August 7 resulted in an election that drew only 8 percent of the state’s eligible electors to the polls. Experts attributed opposition to the convention call to several factors: (1) the poor image of the recent 1964–1969 convention; (2) a fear that the amendments proposed by the 1973 convention would be submitted to the voters as a package—an all-or-nothing proposition; and (3) public coolness toward a proposed legislative pay increase that the convention was authorized to discuss. The fears of those who opposed the convention were largely dispelled by the efficient, workmanlike, bipartisan nature of the body. It opened on September 4 and adjourned on October 4 in accordance with the instructions of the General Assembly; it rejected the package ballot in favor of an item-by-item referendum; and it took a broad view of its powers in the four areas opened to it by the General Assembly and the people (viz., the grand jury, lotteries, election laws, and legislative compensation). This broad interpretation was especially evident in the delegates’ response to the directive that they effect a “revision in the election laws.” The convention regarded this instruction as enabling it to advance proposals dealing with such topics as financial disclosure of election contributions and election requirements for constitutional revision. In sharp contrast to its immediate predecessor, this convention ran smoothly, efficiently, and rapidly under the leadership of William E. Powers, a former attorney general and recently retired state supreme court justice, and Prof. Patrick T. Conley, the convention’s secretary. It removed the last vestige of the ancient property qualification by eliminating the property-tax- paying requirement for participation in financial town meetings, and it enacted (with Conley as principal sponsor) a campaign finance disclosure amendment (now Article IV, Section 9, of the state constitution). In addition, the convention expanded the role of grand juries, gave 18-year-olds the vote, and removed the ban on state lotteries. Its proposals for a legislative pay increase and four-year terms for general officers were narrowly rejected by the voters. Its most important achievement, however, was the proposal that became Article of Amendment XLII and is now Article XIV of the state’s basic law. Sponsored by secretary Conley, it streamlined the amendment process by requiring only a simple majority of the whole membership of each house of the General Assembly together with a majority of those electors voting thereon at a general election, and it set up a mechanism for the regular call of state constitutional conventions. This reform, described editorially by the Providence Journal as “the most significant substantive alteration ever made in the state constitution,” involved some sleight of hand by Judge Powers and Conley. The 1973 convention was a conclave limited to the consideration of certain definite topics. Amendment procedures and constitutional convention calls were not specified in its mandate, but the delegates

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were charged with “revision of the election laws.” Conley propounded a theory (with Justice Powers concurring) that amendments and conventions were within this body’s purview because these proposals produced changes in the basic law that were submitted to the electors for approval. Conley’s amendment was entitled “Election Requirements for Constitutional Revision” and sent to the Elections Committee. The amendment passed the convention on October 4, 1973, by a margin of 93 to 1. The Rhode Island Supreme Court later ruled in Malinou v. Powers, 114 R.I. 399, 333 A.2d 420 (1975), that the legislature’s authority to limit the power of the 1973 convention to propose amendments that were outside the legislative call governing its agenda became moot, since there was no indication that any proposals were ruled out of order, and since the convention finally adopted a resolution (Article of Amendment XLII), and entertained others, that exceeded the restriction set forth in the enabling legislation.29 Article of Amendment XLII was the proximate cause of the highly productive 1985–1986 open convention, ably presided over by attorney Keven McKenna. That assemblage, authorized in 1984 and elected in 1985, integrated the 44 amendments to the 1843 constitution into a concise, streamlined, “neutral rewrite” and created a new basic law for Rhode Island. Of this convention’s 14 proposals, the people ratified not only the neutral rewrite (and gender-neutral language) but such ­political provisions as those creating an ethics commission, conferring budgetary power upon the governor, and banning felons from holding office for three years after their sentence had been completed. Perhaps the most significant changes emanating from that conclave were the environmental protection provisions of Article I, Sections 16 and 17. All of these reforms will be discussed in detail in the section on substantive analysis. Proposals for increasing legislators’ pay (from the $5 per day stipend that dated from 1900) and for giving the governor and general officers four-year terms were defeated by the electors in the 1986 general election, when the convention’s handiwork appeared on the ballot. Also rejected were proposals creating a commission on judicial selection and discipline, the implementation of voter initiative, increased home rule for municipalities, and a controversial “paramount right to life” provision containing a ban on government funding of abortions and limiting the abortion procedure only “to prevent the death of a pregnant woman.”30 The Modern Era: 1986–2006 From 1986 to the present, Rhode Island’s political system has survived several traumatic events. Two successive chief justices (Joseph Bevilacqua and Thomas Fay) resigned to avoid impeachment, and a governor (Edward DiPrete) served jail time for bribery and extortion. In addition, the state’s credit union system collapsed in 1991 because of lax regulation and fraudulent lending practices—all this despite a constitutionally created Ethics Commission and the activities of attorney Sheldon Whitehouse, law professor Carl Bogus, and such citizen watchdog groups as Common Cause, Operation Clean Government, and Red Alert.

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Political corruption also gave the constitutional changes made by the 1986 convention their first significant public scrutiny when the temporary ban on office holding by felons was invoked in 1990 in an attempt to block the Lazarus-like comeback of Vincent A. Cianci, Jr., the former mayor of Providence. Cianci had served as the capital city’s chief executive from January 1975 until he was forced to abdicate in April 1984 following a felony conviction for assaulting his ex-wife’s lover (he had pleaded nolo contendere). By 1990 Cianci’s sentence had expired, so he entered the race for mayor and narrowly prevailed in a three-way race. Following Cianci’s victory some opponents invoked the new Article III, Section 2, to prevent his certification. When the Providence Board of Canvassers and the state Board of Elections ruled for Cianci, the objectors took their appeal to the supreme court, where Ronald W. DelSesto, the son of a former governor, and Patrick T. Conley, the general council to the president of the 1986 convention, successfully argued that the appellants lacked standing to bring a petition in equity in the nature of quo warranto to challenge a candidate’s title to office without the intervention of the attorney general, and that the constitution’s disqualification provision was prospective only and did not apply to a 1984 conviction. The court voted 4 to 1 to allow Cianci to assume office.31 Ironically, the charismatic Cianci could not stand success. In 2002 he was forced from office a second time following his conviction in federal district court on racketeering charges for running a criminal enterprise out of city hall, which federal investigators dubbed “Plunder Dome.” During the 1990s the legislature initiated several structural reforms via the amendment process, affecting all three branches of government. Summarized here and analyzed later, they included an amendment to Article IV, Section 1, lengthening the term of general officers from two years to four and making them subject to recall (ratified November 3, 1992); a change in Article VIII, Section 2, extricating the lieutenant governor from the legislative process by relieving him from the duty of serving as presiding officer of the senate and the grand committee (ratified November 8, 1994, and effective in January 2003); an amendment increasing legislators’ pay to $10,000 per year and downsizing of the House of Representatives from 100 to 75 members and the senate from 50 members to 38 (ratified November 8, 1994, effective January 2003); the addition of Article VI, Section 22, requiring both statewide and local referenda on any expansion of gambling; and the 1994 amendment to Article X, Sections 4 and 5, relating to judicial selection, which took the election of supreme court justices from the grand committee and placed it in the hands of the governor, acting in response to the recommendations of a judicial nominating commission. In view of the fragile nature of supreme court tenure at certain points in Rhode Island history (e.g., the Trevett v. Weeden controversy of 1786 and the Bloodless Revolution of 1935), the 1994 amendment to Article X, Sections 4 and 5, was a long-overdue reform. Briefly stated, it transferred the election of supreme court justices from the grand committee of the General Assembly to the governor. It directs the governor to fill any supreme court vacancy by nominating, on the basis of merit, a person from a list submitted by a judicial nominating commission with the consent of the House and senate, acting separately. In addition, the justices so

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appointed hold their positions “during good behavior.” Among the first justices to be confirmed using this new, more open procedure (which applied to all state judges) was Robert G. Flanders, Jr., who joined the high court in 1996. Article III, Section 8, of the 1986 constitution directed the General Assembly to establish an ethics commission, which it did. This commission, however, eventually turned on its creator by enacting both conflict-of-interest and separation-ofpowers regulations to prevent legislators from serving on state administrative boards and commissions, thereby launching the momentous separation-of-­powers controversy of the present era. In November 1997, Governor Lincoln Almond requested an advisory opinion from the supreme court regarding the constitutionality of these proposed commission regulations in light of the long-standing General Assembly practice to the contrary. This attempt by the Ethics Commission to bar members of the General Assembly from making appointments to, or serving on, state administrative boards and commissions, styled Regulation 5014, posed a major constitutional question. In this century, only the 1935 supreme court advisory opinion relative to the power of the General Assembly to call a constitutional convention rivaled this issue in significance. In the actual argument before the justices on November 10, 1998, seven attorneys, including those representing the House, the senate, the attorney general, and the American Civil Liberties Union, spoke on behalf of legislative power, while five advocates, including attorneys representing the governor, the Ethics Commission, Common Cause, the State Council of Churches, and the Environmental Council, urged the high court to uphold Regulation 36–14–5014. Nearly four hours of argument were presented as a packed gallery listened with deep interest and great attentiveness. On that day, professor and attorney Patrick Conley argued a historically oriented amicus brief tracing the appointive power of the Rhode Island legislature from its origins in the Royal Charter of 1663 through two constitutions to the present. He offered the following findings and conclusions: (1) the General Assembly has always possessed and exercised the power to create state boards and commissions of an administrative nature, to make appointments thereto, and to sit thereon; (2) contrary to the assertions of the governor and the Ethics Commission, Rhode Island never adopted the federal model of separated powers, nor is that model binding upon the states; (3) Chief Justice Samuel Ames, in the landmark decision of Taylor v. Place (1856), established the independence of the judiciary without enhancing the power of the governor; (4) the Rhode Island Constitution of 1843 (which the 1986 convention left relatively intact) was a Whiggish document that exalted the legislative branch of government and reserved for the General Assembly nearly all of the power it had exercised under the Charter of 1663; and (5) the Ethics Commission’s proposed Regulation 5014, which prompted the governor’s request for an advisory opinion, was an unconstitutional infringement upon the power of the legislature.32 Four of the five justices agreed. The majority, led by Chief Justice Weisberger (Justice Robert Flanders was the sole dissenter) told the governor that “the ethics

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commission lacks the power to enact Regulation 5014, [because it] fundamentally alters the constitutional structure of this state,” which they called a “quintessential system of parliamentary supremacy.” Justice Flanders, however, disagreed: “The framers of the ethics amendment to the Constitution did not believe that the commission should have to wait until it could catch one or more legislative foxes with the chief executive’s feathers sticking out of their mouths before they could accuse them of a conflict of interest. Rather, the framers believed that, to avoid the appearance of impropriety, the commission should be able to promulgate regulations that would keep legislators out of the executive henhouse altogether.”33 In the Ethics Commission case, the four justices in the majority declined to opine on two other questions posed by Governor Almond: whether or not Rhode Island’s system of separated power conforms to the federal model, and whether or not the Rhode Island system imposes “any limits whatsoever on legislative appointments to a public board or body.” (Justice Flanders, however, answered both of these questions in the affirmative.) In order to answer these questions, said the justices in the majority, “we would be required to make factual determinations,” and therefore “we defer our response until a litigated case is presented to us with a factual record upon which we more properly can address concrete questions rather than abstractions or hypotheses.” Justice Flanders ended his long advisory opinion to the contrary with a prediction that proved to be prescient: In the end, the people of Rhode Island ultimately will decide how best to divide the power pot that lies at the center of our state government. Shall it be and remain a separate but equal division among the three departments of our government? Or shall one of them be allowed to grab and keep the lion’s share? Shall the powers of our state government be checked and balanced? Or shall they be unchecked and imbalanced with one player holding almost all the aces and wildcards? These questions still need to be answered more definitively than they have been today and more clearly then they have been even in our Constitution. Indeed, one hopes that our advisory opinions are just the opening salvos in the greater and potentially more dispositive crossfire that will now ensue. Let the people be heard.34

The concrete case and controversy was not long in coming. The governor chose to fight the legislatively dominated Rhode Island Lottery Commission, which controlled millions of dollars in gambling revenue. In this high-visibility case, wherein the governor challenged the power of the commission to extend video gambling, Conley spoke as an expert witness at the superior court hearing before Judge ­Michael Silverstein. In that forum he testified first as a historian documenting absolute legislative control over state lotteries from their inception in 1744 for financing public improvement projects and private endeavors to their ban in the constitution of 1843. Then he testified as secretary of the 1973 constitutional ­convention concerning the intent of that body in removing the constitutional ban on state-run lotteries. Clearly, said Conley, that convention intended that the ­legislature create and control an agency to run a state lottery. The supreme court agreed. Chief Justice Joseph Weisberger for the majority (with Justice Maureen McKenna Goldberg abstaining and Justice Flanders

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­ issenting) upheld the power of the Lottery Commission to authorize an expand sion of video gambling at Lincoln and Newport (the action that gave rise to the case). “The Rhode Island Constitution,” said Weisberger, “does not prohibit the appointment of legislators to administrative boards and commissions.” The Rhode Island General Assembly, he concluded, “unlike the federal Congress, need not look to the state Constitution as a source of authority by virtue of its historical plenary power (preserved in both the 1843 and 1986 Constitutions). It may exercise any power unless prohibited in this Constitution,” and its delegation of power to the Lottery Commission was proper. In his dissent, Justice Flanders decried the majority’s approval of the legislature’s self-delegation of a portion of its powers to an administrative agency comprised of a majority of sitting legislators. “[U]nless the Court soon recovers its constitutional bearings … its loss of legal vision risks plunging the people of this state into a long, dark age of subjugation to unchecked, unbalanced, and unlimited governmental powers exercised by controlling members and subparts of the legislature—notwithstanding a state constitution that was enacted to prevent such a catastrophe from ever occurring.”35 In the aftermath of his two decisive judicial setbacks, and picking up on Justice Flanders’ suggestion to “let the people be heard” on the question, Governor Almond and his principal legal counsel, Joseph S. Larisa, Jr., tried their luck in the court of public opinion. They boldly swayed that court by crafting advisory referenda that created an apparent mandate not only for the implementation of separation of powers but also for a major diminution of legislative power. The mandate arose from two advisory questions submitted to the voters—one in 2000 and the second in 2002—employing Rhode Island General Law (R.I.G.L.) 17–5-2, a littleused device that the General Assembly had created by statute in 1978 (and repealed in 2006). This law stated that “the governor shall have power to order the secretary of state to submit such question or questions as he shall deem necessary to the electors at any ­ election.” It contained no standards for a referendum’s phraseology; hence it allowed leading questions that could be subjective or slanted, and thereby give false or exaggerated readings concerning the will of the ­electorate. The 2002 referendum, Governor Almond’s parting shot at the General Assembly, took direct aim at the legislature’s historic powers. It read as follows: QUESTION 5: QUESTION PROPOSED BY THE GOVERNOR (Rhode Island General Laws Section 17–5-2) CO-EQUAL BRANCHES OF GOVERNMENT ­(ADVISORY REFERENDUM) Should the Rhode Island Constitution be changed to eliminate ­Article 6, Section 10, which preserves to the General Assembly today broad powers granted to it by King Charles II of England in 1663 and also be changed to expressly provide that the legislative, executive, and judicial branches of Rhode Island ­ government are to be separate and co-equal consistent with the American ­system of government?

This leading question linked Article VI, Section 10, the potent residual powers clause, to a seventeenth-century British monarch and concluded by suggesting that Rhode Island’s three branches were not “consistent with the American system of government.” Seventy-six percent of Rhode Island’s electors rallied against king

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and for country by voting to approve the advisory referendum. This vote was hailed as a “mandate” for reform. Nevertheless, the same electors who desired to divest the legislature of its powers by a 3-to-1 margin simultaneously elected a General Assembly that was 85 percent Democratic.36 When the new General Assembly, downsized to 75 representatives and 38 ­senators, convened in January 2003, the incoming Republican governor, the ­influential Providence Journal, and several determined and incessant citizens’ groups—­especially Common Cause, led by former Protestant minister H. Philip West, Jr.—demanded that the purported popular mandate in favor of separation of powers be implemented. Fearful of retribution at the polls on election day if they ignored the people’s will, the senate then voted unanimously to relinquish its ­timehonored powers. The House, however, was more reluctant to capitulate. Its ­Committee on the Separation of Powers held hearings and invited experts to testify on behalf of the status quo. Meanwhile the media and the “good government” lobby exerted pressure from without, while Representative Nicholas Gorham and other ­members of the Republican minority incessantly advocated the passage of the ­ separation-of-powers amendments from within. At length the House also ­capitulated. After a contest for power no less significant than the Bloodless Revolution of 1935, separation-of-powers amendments were approved by the General Assembly and sent to the people for ratification. The legislature not only vacated its role on all state boards and commissions that exercise executive power (the issue that sparked the separation controversy); but it also relinquished the source of its residual powers by allowing the repeal of Article VI, Section 10. Although the procedure to amend the 1986 constitution has been frequently used and has wrought substantial changes in Rhode Island’s basic law, no convention has been held in the two decades since 1986. In fact, two convention referenda have been rejected by the electorate. In 1994 three important amendments were already on the ballot, and in addition the spirit of Article XIV, Section 2, was violated when the mandated bipartisan preparatory commission “to assemble information on constitutional questions” formed too late to meet or give the voters instruction regarding the need, if any, for constitutional reform. In 2004 the study commission performed its intended role by conducting six hearings around the state, but the recent battle over separation of powers had absorbed the energy and attention of those involved in the process of constitutional change, to the detriment of further reform. On the verge of winning their big prize—ratification of the separation-of-powers amendment—some citizen groups, notably Common Cause, openly opposed the holding of a convention, because, said Philip West, “it could tear apart some of the reforms that have been done.” Thus, the separation-of-powers amendment was easily ratified (257,308 to 71,236), but the convention call failed again (162,296 in favor to 175,601 against). Thus, after the smoke had cleared from the “more dispositive crossfire” that Justice Flanders had predicted would ensue in the wake of the Ethics Commission advisory opinions, Rhode Island’s “quintessential parliamentary supremacy” was dead, at least on paper, and a new era of “separate and distinct” branches of state government had dawned.

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As the General Assembly began its 2005 session, it soon became evident, however, that the power struggle among all three branches of government was far from resolved by the adoption of the separation-of-powers amendment. The judiciary soon claimed the right to prepare its own budget, and the General Assembly pondered its continued role, if any, in such traditional and constitutionally referenced areas of legislative activity as education, lotteries, the environment, and control over cities and towns. In addition, a long list of the General Assembly’s residual powers (to be enumerated and discussed in the commentary) appeared up for grabs with the specific repeal of Article VI, Section 10. These issues are unresolved and are certain to be contentious in the years ahead. Looking back on 370 years of government, one is impressed with both the durability of Rhode Island’s basic law and the volatility of its political system. If one regards the patent of 1644 as merely a license to survive, the colony and state have had but three fundamental laws: the corporate charter of 1663, which endured for 180 years; the constitution of 1843, which enjoyed 143 years of life; and the 1986 constitution, under which Rhode Island has been governed since November 1986. These documents have been like the granite walls of a Grand Canyon, through which has rushed the agitated and turbulent stream of Rhode Island parties and politicians—and the view has often been spectacular. Both tradition and turmoil have been hallmarks of Rhode Island’s constitutional and political culture, and most Rhode Islanders seem to relish, or at least to accept, this fascinating ­dichotomy. Notes   1. The “householders” compact has been lost, but Williams expressed his intention to institute the above-described system in a letter to John Winthrop [n.d., ca. Sept. 1636], published in the Narragansett Club Edition, The Complete Writings of Roger Williams (Providence, 1866–1874), 6:3–7. The submission agreement is printed in Horatio Rogers, George M. Carpenter, and Edward Field, eds., The Early Records of the Town of Providence (Providence, 1892–1915), 1:1.   2. Patrick T. Conley, Democracy in Decline: Rhode Island’s Constitutional Development, 1776–1841 (Providence, 1977), contains copious documentation for this entire narrative from 1636 through the Dorr Rebellion and its aftermath in the 1850s. The reader is referred to that volume for substantiation of the statements and conclusions made in this constitutional summary.   3. Howard M. Chapin, ed., Documentary History of Rhode Island (Providence, 1916– 1919), 1:214–17, contains the British State Paper Office copy of the patent, which is the most accurate draft.  4. Charles McLean Andrews, The Colonial Period of American History (New Haven, 1934–1938), 2:26.  5. John R. Bartlett, ed., Records of the Colony of Rhode Island and Providence Plantations in New England (Providence, 1856–1865), I, 14, hereafter cited as RICR, reprints the Code of 1647. For commentary and analysis, consult William R. Staples, ed., Proceedings of the First General Assembly of the Incorporation of Providence Plantations, and the Code of Laws Adopted by That Assembly in 1647 (Providence, 1847), and Charles McLean Andrews, op. cit., 2:26–30.

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  6. The charter is published in RICR, 2:1–21. See also Sydney V. James, John Clarke and His Legacies: Religion and Law in Colonial Rhode Island, 1638–1750, ed. Theodore Dwight Bozeman (University Park Pa., 1999).   7. On Bellomont’s report, see RICR, 3, 385–400.   8. Conley, Democracy, 36–50, surveys the charter’s implementation from 1663 to the end of the colonial era. Much more detailed are Sydney V. James, Colonial Rhode Island: A History (New York, 1975); James, The Colonial Metamorphoses in Rhode Island: A Study of Institutions in Change, ed. Sheila L. Skemp and Bruce C. Daniels (Hanover, N.H., 2000); and Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, Mass., 2004). The latter volume uses Rhode Island, which had the largest number of appeals to the English Privy Council of any mainland colony, as a case study.   9. David S. Lovejoy, Rhode Island Politics and the American Revolution (Providence, 1958), passim; Jackson Turner Main, The Upper House in Revolutionary America (Madison, Wis., 1967), 182–87; Sidney S. Rider, The Origin, Meaning, and Duration of Existence in Rhode Island of the Political Word Prox,” Book Notes (1908–1909), 25:201–4, 26:1–5, 12– 15. 10. Glenn W. LaFantasie, “An Act for All Reasons—Revolutionary Politics and May 4, 1776,” Rhode Island History 35 (May 1976): 39–47. 11. RICR, 9:674–75 (Catholics), 10:7 (Manumission Act). 12. Conley, Democracy, 72–73. 13. Irving H. Polishook, Rhode Island and the Union (Evanston, Ill., 1969), passim. 14. Patrick T. Conley, “Rhode Island’s Paper Money Issue and Trevett v. Weeden, (1786),” Rhode Island History 30 (Summer 1971), 95–108. 15. Polishook, 163–230; Patrick T. Conley, First in War, Last in Peace: Rhode Island and the Constitution, 1786–1790 (Providence, 1987); Frank Greene Bates, Rhode Island and the Formation of the Union (New York, 1898), 149–216. 16. Peter J. Coleman, The Transformation of Rhode Island, 1790–1860 (Providence, 1969), passim; Conley, Democracy, 145–61. 17. Conley, Democracy, 184–268; “Journal of the Convention … 1824,” Rhode Island State Archives. The Manufacturers’ and Farmers’ Journal, a Whig newspaper published in Providence, printed a draft of the 1834 constitution in its issue of September 18, 1834. 18. See Schedules of the General Assembly, May 1813, Rhode Island State Archives for the Council of War; Potter’s remarks are printed in the Providence Patriot, April 14, 1818; Wilkinson v. Leland, 27 U.S. 627 (1829); Dorr’s speech is published in the Manufacturers’ and Farmers’ Journal, September 1 and 3, 1834. 19. The Freemen’s Constitution, the People’s Constitution, and the Law and Order Constitution of 1843 are accurately reprinted, along with the charter, as appendices to Arthur May Mowry, The Dorr War (Providence, 1901). Mowry presents an interpretation of the struggle from a Law and Order perspective. Well researched and diametrically opposed is Marvin Gettleman, The Dorr Rebellion: A Study in American Radicalism, 1833–1849 (New York, 1973), a New Left analysis. See also Conley, Democracy, 308–79. The journal of the Law and Order Convention has been published: Journal of the Convention Assembled to Frame a Constitution for the State of Rhode Island at Newport, Sept. 12, 1842 (Providence, 1859). 20. Luther v. Borden, 7 Howard 1 (1849); William M. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca, N.Y., 1972), 78–129; C. Peter Magrath, “Optimistic Democrat: Thomas W. Dorr and the Case of Luther v. Borden,” Rhode Island History 29 (August and

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The Rhode Island State Constitution43 November 1970): 94–112; Michael A. Conron, “Law, Politics, and Chief Justice Taney: A Reconsideration of the Luther v. Borden Decision,” American Journal of Legal History 11 (October 1967): 377–88. Ironically, Taney had foreshadowed this formulation of the Political Question Doctrine in an 1838 dissent from a ruling in a case involving a dispute between Rhode Island and Massachusetts over Rhode Island’s northern boundary when he asserted that “rights of sovereignty and jurisdiction between states over any particular territory, are not … the subject of judicial cognizance.” Rhode Island v. Massachusetts, 37 U.S. 657 (1838). 21. Taylor v. Place, 4 R.I. 324 (1856); C. Peter Magrath, “Samuel Ames: The Great Chief Justice of Rhode Island,” Rhode Island History 34 (July 1965): 65–76; Patrick T. Conley, Neither Separate Nor Equal: Legislature and Executive in Rhode Island History (Providence, 1999), chap. 7, “Putting Taylor in Its Proper Place,” 83–88. 22. Clifford Chesley Hubbard “Constitutional Development in Rhode Island [1636– 1926]” (doctoral dissertation, Brown University, 1926); Conley, Neither Separate Nor Equal, 89–112; Edward L. Rondeau, “Charles Ray Brayton: A Study in Bossism” (master’s thesis, University of Rhode Island, 1966); Robert C. Power, “Rhode Island Republican Politics in the Gilded Age—The G.O.P. Machine of Anthony, Aldrich, and Brayton” (honors thesis, Brown University, 1972). 23. Advisory Opinion to the Senate, 14 R.I. 649 (1883); Report of Joint Select Committee on Changes in the Constitution … (Providence, 1882); Report of the Commission to Revise the Constitution … (Providence, 1898); Proposed Revised Constitution of the State of Rhode island (Providence, 1898); Report of Joint Special Committee on Constitutional Amendments … (Providence 1899); The Proposed Revised Constitution of the State of Rhode Island … (Providence, 1899); Report of Commission to Consider the Amendment and Revision of the Constitution (Providence, 1915); Richard P. Ironfield, “The Constitutional Reform Movement in Rhode Island from 1895–1905” (doctoral dissertation, Providence College, 2002); Charles Carroll, Rhode Island: Three Centuries of Democracy (New York, 1932), 2:666–69. 24. John D. Buenker, “The Politics of Resistance: The Rural Based Yankee Republican Machines of Connecticut and Rhode Island,” New England Quarterly 47 (June 1974): 212– 37, and “Urban Liberalism in Rhode Island,” Rhode Island History 30 (May 1971): 35–51; Carl Gersuny, “Uphill Battle: Lucius F. C. Garvin’s Crusade for Political Reform,” Rhode Island History 39 (May 1980): 57–75; Lincoln Steffens, “Rhode Island: A State for Sale,” McClure’s Magazine 24 (February 1905): 337–53; Patrick T. Conley, Rhode Island in Rhetoric and Reflection: Public Addresses and Essays (East Providence, 2002), 453–57 and 464–73; James Quayle Dealey, Political Situations in Rhode Island (Providence, 1928); Jeffrey S. Shinn, “Rhode Island Reform Politics of the 1920s” (honors thesis, Brown University, 1973). For an eyewitness history of the women’s suffrage movement. see Sara M. Algeo, The Story of a Sub-pioneer (Providence, 1925). 25. Erwin L. Levine, Theodore Francis Green: The Rhode Island Years, 1906–1936 (Providence, 1963), 173–203; Zechariah Chafee, Jr., The Constitutional Convention That Never Met: First Part—1935, Second Part—1936 (Providence, 1938–1939); Murray S. and Susan W. Stedman, “The Rise of the Democratic Party of Rhode Island,” New England Quarterly 24 (September 1951): 329–41; Matthew J. Smith, “The Real McCoy in the Bloodless Revolution,” Rhode Island History 32 (August 1973): 67–85; William J. Jennings, Jr., “The Prince of Pawtucket: A Study of the Politics of Thomas P. McCoy” (doctoral dissertation, Providence College, 1985). 26. Conley, Neither Separate Nor Equal, 113–23; Joseph R. Weisberger, “The Founding of the Superior Court: A New Era in the Rhode Island Judicial System,” Rhode Island Bar

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­Journal 34 (May 1986): 5–9; Duane Lockard, New England State Politics (Princeton, N.J., 1959), chaps. 7 and 8. 27. Proceedings of the Limited Constitutional Convention … 1944 (Providence, 1944), Proceedings of the Limited Constitutional Convention … 1951 (Providence, 1951), Proceedings of the Limited Constitutional Convention … 1955 (Providence, 1955), and Proceedings of the Limited Constitutional Convention … 1958 (Providence, 1958) contain the debates surrounding the framing and adoption of these amendments. 28. The records of this convention are stored in the Providence College Archives. See Matthew J. Smith and Jane M. Jackson, An Inventory to the Conley Collection of the Rhode Island Constitutional Convention (Providence, 1973). Indispensable is Elmer E. Cornwell, Jr., and Jay S. Goodman, The Politics of the Rhode Island Constitutional Convention (New York, 1969). See also Patrick T. Conley, “A Statement in Defense of the Proposed Constitution,” Rhode Island Bar Journal 16 (January 1968): 3, 9–13. 29. The records of this convention are stored in the Providence College Archives, where they have been inventoried by Smith and Jackson. For the debates, see Patrick T. Conley, comp., The Proceedings of the Rhode Island Constitutional Convention of 1973 (Providence, 1973), and Conley, Rhetoric, 182–96. 30. The debates and proceedings of the 1986 convention are discussed and summarized in detail in the constitutional commentary section that follows. Especially valuable is Mario R. DiNunzio et al., Annotated Edition: Constitution of the State of Rhode Island and Providence Plantations Done in Convention at Providence on the Fourth Day of December, A.D. 1986 (Providence, 1988). The records and correspondence of the convention were ordered by the delegates to be deposited in the state archives and copies sent to the law library of the Rhode Island Supreme Court and to the Providence College Archives, where Jane Jackson has prepared an inventory. See also Conley, Rhetoric, 197–203. 31. State of Rhode Island ex rel. Floyd Edmund Webb III v. Vincent A. Cianci, Jr., 591 A.2d 1193 (R.I. 1990). 32. In re Advisory Opinion to the Governor, 732 A.2d 55 (R.I. 1999). See Conley, Neither Separate Nor Equal, passim. 33. In re Advisory Opinion to the Governor, 732 A.2d 55 at 95 (R.I. 1999) (Flanders, J.). 34. 33. Id. 732 A.2d at 110–111. 35. Almond v. Rhode Island Lottery Commission, Newport Grand Jai Alai, LLC and Burrillville Racing Association d.b.a Lincoln Greyhound Park, 756 A.2d 186 (R.I.. 2000). 36. See Patrick T. Conley, “The ‘Elephant Gun’: Governors’ Advisory Referenda,” Providence Journal, Commentary, F7, June 10, 2006; and 27 RILW 242 (August 28, 2006).

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Part II The Rhode Island Constitution and Commentary

Constitution of the State of Rhode Island and Providence Plantations PREAMBLE We, the people of the State of Rhode Island and Providence Plantations, grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and to transmit the same, unimpaired, to succeeding generations, do ordain and establish this Constitution of government.

The preamble is significant for two reasons: (1) its reference to “We, the people of the State of Rhode Island”—rather than the General Assembly—as the sovereign authority that is responsible for ordaining and establishing “this Constitution of government;” and (2) its express invocation of God, not only in gratitude for the civil and religious liberty that “He” has permitted the people of this state to enjoy for so long, but also in the hope of receiving a “blessing” upon the people’s attempt to secure and transmit this liberty to succeeding generations of Rhode Islanders. Notice also that the preamble expressly codifies this “secure and transmit” purpose of “the people” in creating this constitution: namely, to secure the civil and religious liberty that God has permitted Rhode Islanders to enjoy for so long before they ordained and established this constitution and to allow them to transmit the same, unimpaired, to succeeding generations of Rhode Islanders. Arguably, this suggests a literally conservative view of how the constitution should be interpreted—at least with respect to those provisions that existed when the constitution was adopted in November 1842 and implemented on May 2, 1843. If the constitution should be construed in a manner that is consistent with its purpose—to wit, preserving the civil and religious liberty that Rhode Islanders enjoyed for so long before 1842 so that it can be transmitted “unimpaired” to future generations—then much interpretative attention needs to be paid to the historical

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civil and religious liberties that Rhode Islanders enjoyed up to and including the period when they adopted the constitution. But who are the “people” that the preamble references? Generally, when used in the constitution, this term, we are told, refers to all the inhabitants of the state. Thus, in In re Incurring State Debts, 37 A. 14, 14 (R.I. 1896), the Supreme Court of Rhode Island held that the word “people” as used in the constitution, specifically Article 4, section 13, included registered voters and not just taxpayers. At 37 A. at 15, the court reasoned that the term “people,” as used in the constitution, was broad and comprehensive, comprising all the inhabitants of the state, because it was used there in various contexts, including specifying rights to which all the inhabitants of the state were entitled. The Rhode Island Supreme Court reaffirmed this interpretation in State v. Kofines, 80 A. 432, 437 (R.I. 1911), concluding once again that the term “people” included both taxpayers and voters. This construction, however, is ironic because the “people” who adopted the 1843 Constitution were decidedly less than all the inhabitants of the state. Indeed, this constitution was proposed and adopted only after the unsuccessful Dorr Rebellion sought to establish a new state government based on a constitution that would broaden suffrage rights in Rhode Island beyond the landed few who then were the only “people” who were allowed to exercise that right. Although they tried to extend the right of suffrage to many more inhabitants of the state, even the Dorrites excluded women and countless other residents from the rolls of eligible voters. In any event, even though the “people” who ordained and established “this Constitution of Government” were only a subset of all the inhabitants of the state, the court has interpreted this word broadly when it appears in the constitution to include all the inhabitants of Rhode Island.

Article I Declaration of Certain Constitutional Rights and Principles In order effectually to secure the religious and political freedom established by our venerated ancestors, and to preserve the same for our posterity, we do declare that the essential and unquestionable rights and principles hereinafter mentioned shall be established, maintained, and preserved, and shall be of paramount obligation in all legislative, judicial and executive proceedings.

This section is unchanged from the 1843 Rhode Island Constitution. Rhode Island’s Royal Charter of 1663 contained no declaration of rights, despite its remarkable guarantee of unfettered religious liberty and its absolute separation of church and state. During the late eighteenth century the new federal government and many of Rhode Island’s sister states enacted constitutional safeguards for individual liberties, but Rhode Island’s charter (which continued as the basic law of the state until May, 1843) had no procedure for amendment. In 1798, the General Assembly enacted a digest or code of general laws (the first since 1767) and used this opportunity to include therein a statutory bill of rights. These “political axioms or truths” set forth by the legislative compilers were declared” to be of paramount importance in all legislative, executive, and judicial proceedings.” These newly enacted guarantees of liberty and property were contained in 10 provisions. They included the right of all to a legal remedy for injuries or wrongs to property and character, protection against unreasonable search and seizure, immunity from double jeopardy, protection from excessive bail and from cruel and unusual punishment, the privilege of habeas corpus, a guarantee of procedural due process, the termination of imprisonment for debt once the debtor’s estate had been delivered up for the benefit of his creditors, a ban on ex post facto laws, freedom from involuntary self-incrimination, and a presumption of innocence until guilt was proven. The 1798 declaration attracted the attention of reformers in the 1830s not because of illiberality but because of its potential impermanency. Critics believed

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that the mere legislative guarantees of 1798 were a precarious foundation upon which to base civil liberty. The constitution of 1843 effectively addressed this concern by incorporating these rights into Sections 5 through 14 of Article I, the “Declaration of Certain Constitutional Rights and Privileges.” They were transferred intact to the constitution of 1986, except for the addition of a bail limitation imposed against major drug dealers in Section 9. SECTION 1. Right to make and alter the constitution—Constitution obligatory upon all. In the words of the Father of his Country, we declare that “the basis of our political systems is the right of the people to make and alter their constitutions of government; but that the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”

This section is derived from the 1843 Rhode Island Constitution. It provides the textual basis for right of the “whole” people in Rhode Island, “by an explicit and authentic act,” to change and alter their Constitution as they see fit. Although the language of this section is fairly broad, it does not specify what method would qualify as an “explicit and authentic Act of the whole people.” In the aftermath of the Dorr Rebellion, the victorious Law and Order party invoked the words of George Washington in this section to vindicate their position on constitutional change and to refute the doctrine of popular constituent sovereignty upon which Dorr’s People’s Constitution was based. Dorr and his associates, citing the Declaration of Independence as their justification, used revolutionary and extralegal means to convene a People’s Convention, unauthorized by the General Assembly. The delegates to this body were chosen by a much broader electorate than existed under prevailing suffrage laws. It was Dorr’s position that the state’s basic law—the Royal Charter of 1663—and the government that existed under it were “tyrannical.” They could be changed only by radical measures, because the charter contained no procedures for its amendment, and because those in power refused to democratize Rhode Island’s political system by enacting statutory reforms. The doctrine of popular constituent sovereignty was best expressed in Article I, Section 3 of the People’s Constitution: All political power and sovereignty are originally vested in, and of right belong to, the people. All free governments are founded in their authority, and are established for the greatest good of the whole number. The people have therefore an unalienable and indefeasible right, in their original, sovereign, and unlimited capacity, to ordain and institute government, and in the same capacity to alter, reform, or totally change the same [without prior legislative authorization], whenever their safety or happiness requires.

To the contrary, the Law and Order draftsmen of the 1843 constitution—so named because their document (unlike the People’s Constitution) was drafted by a “legal” convention officially authorized by the General Assembly—considered the charter to be “sacredly obligatory upon all” and insisted that their constitutional

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convention was the only authentic one. Interestingly, their reactionary basic law was very difficult to amend and contained no specific procedure for calling a constitutional convention. There is little case law for this section. The justices have cited the section as support for the rule that governments cannot violate the provisions of the constitution. In re Advisory Opinion to the Governor (Rhode Island Ethics Comm’n.—Separation of Powers), 732 A.2d 55, 68 (R.I. 1999); City of Pawtucket v. Sundlun, 662 A.2d 40, 62 (R.I. 1995). In In re Advisory Opinion to the Governor (Ethics Comm’n.), 612 A.2d 1, 15 (R.I. 1992), the justices opined that the right of the people to amend the state constitution is limited only by the United States Constitution. Earlier, in In re Opinion to the Governor, 178 A. 433, 437, 441, 451–52 (R.I. 1935), the justices stated a number of principles including: (1) the legislature must enact laws that allow the people to amend the constitution; (2) the means provided by the state constitution for amending itself is not the exclusive way for passing amendments; (3) the legislature still has the power to call a constitutional convention for the replacement or alteration of the state constitution; and (4) the legislature cannot delegate this function to the governor—although it may authorize him to fix the date of the convention within a period that the legislature prescribes. The justices also concluded that the people must elect the convention delegates, but that the governor or another person may call the convention to order and preside until the delegates elect the president of the convention. Id. at 452. The justices further opined that the people must approve any proposed limits on the power of the convention to change the state constitution; that the legislature may provide for a simple majority of the people to approve the convention’s work prior to ratification; and that the people do not have to approve the legislature’s decision to call a convention. Id. At 452–53, 457. Although the final conclusion in this list garnered the support of a majority of the justices, unlike all the other opinions rendered, this last one did not enjoy unanimous support. Id. At 458 (Baker, J., dissenting). The recent separation of powers amendments also have the potential to decrease legislative power in this area, as the justices relied heavily on Article VI, Section 10 of the state constitution in their 1935 advisory opinion. This provision was repealed in 2005. R.I. Const. Art. VI, § 10 (repealed 2005); In re Opinion to the Governor, 178 A. at 438–39. The commentary regarding Article XIV—Constitutional Amendments and Revisions—contains a full discussion of the recurrent and sometimes volatile controversy over changing or replacing the constitution by means of a constitutional convention. SECTION 2. Laws for good of the whole—Burdens to be equally distributed—Due process—Equal protection—Discrimination—No right to abortion granted. All free governments are instituted for the protection, safety, and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the

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The first two sentences of this section remain unchanged from the original 1843 constitution, when they comprised its entire text. The remainder of the section was added by the 1986 Constitutional Convention by Resolutions 86–00032, concerning due process and equal protection, and 86–00002A and 86–00008, concerning discrimination. These important additions were the work of the Committee on Citizens Rights, chaired by delegate Mary E. Batastini of Providence. Prior to the adoption of equal protection, due process, and antidiscrimination clauses in the constitution, it was held that Article I, Section 2, was advisory and not mandatory in nature, and that it was addressed to the General Assembly as advice and direction rather than to the courts as a restraint on the legislative power. Sepe v. Daneker, 76 RI 160, 68 A.2d 101 (1949). The intent of the resolutions was to include the due process and equal protection language of the Fourteenth Amendment to the U.S. Constitution in the Rhode Island Constitution. The report of the Committee on Citizens Rights declared that including these protections in the state constitution “would create an independent state foundation for individual rights. One advantage of including the due process and equal protection clauses in the Constitution would be to protect the citizens of the state if the federal judiciary adopted a narrow interpretation of the Fourteenth Amendment.” (See also Section 24, which reiterates this position). It was also the intent of the committee that the state should not permit discrimination on the basis of gender or race, and that such discrimination is untenable in a democratic society. Because of the concerns of some of the committee members, the framers added a provision that specifically stated that nothing within the resolution should be construed as granting a right to abortion. Implicitly, homosexual rights were also not included, because the Committee on Citizens Rights did not interpret the word “gender” as including sexual preference. In drafting Resolution 86–00008, as amended, the committee used wording identical to that found in 29 USC, Section 794 (Section 505 of the Rehabilitation Act of 1973), which bans discrimination against the handicapped by federally funded programs. It was the committee’s intent that such a ban be expanded to state and local governments and businesses contracting with those governments. Moreover, it was the intent of the committee that the interpretations, judicial decisions, and regulations relating to 29 USC, Section 794 and Chapter 42–87–1 et seq of the Rhode Island General Laws serve as the basis for the broadest judicial interpretation of Resolution 86–00008, as amended. In particular, the committee intended that the following definition of terms contained in 28 CFR, Part 39, and 84 CFR, Part 45, should be utilized in determining the meaning and scope of Resolution 86–00008, as amended:

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‘Handicapped Individual’ means: any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. As used in this definition, the phrase: “(1) ‘physical or mental impairment’ includes: (i) any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or (ii) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term ‘physical or mental impairment’ includes but is not limited to such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism. “(2) ‘Major life activities’ includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. “(3) ‘Has a record of such an impairment’ means has a history of or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities. “(4) ‘Is regarded as having an impairment’ means: (i) has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation; (ii) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such an impairment; or (iii) has none of the impairments defined in subparagraph (1) of this definition but is treated by the agency as having such an impairment. ‘Qualified handicapped individual’ means: “(1) With respect to employment, a handicapped person who, with reasonable accommodations, can perform the essential functions of the job in question; “With respect to any program or activity, a handicapped person who meets the essential eligibility requirements for participation in or receipt of benefits from the program or activity. “‘Handicap’ means any condition or characteristic that renders a person a handicapped person, as defined in the beginning.”

It was the committee’s intent that the phrase “the state, its agents, or any person or entity doing business with the state” refer to the State of Rhode Island and Providence Plantations, its municipalities or other political entities, and its instrumentalities or any public or private agency, institution, or organization that does business with public agencies. The discriminating acts against a handicapped person that are prohibited include but are not limited to those acts banned by Section 42–87–3 of the Rhode Island General Laws (1984), as amended, and those acts otherwise banned by 29 USC 794, as amended.

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This resolution was meant to be self-enforcing, and it was the committee’s intent that a handicapped person should receive judicial, legislative, and executive support for these rights. Resolutions 86–00032, 86–00002A, and 86–00008 were grouped in Ballot Question 8 which was approved by the voters on November 4, 1986, by a margin of 160,137 (58 percent) to 115,730 (42 percent). The 1843 constitution guaranteed procedural due process only to persons accused of crimes. R.I. Const. of 1843, Art. 1, § 10. Unlike the United States Constitution—e.g. Roe v. Wade, 410 U.S. 113 (1973)—the Due Process and Equal Protection Clauses of the Rhode Island Constitution to date have not been interpreted to include a “substantive” content that would, for example, protect a woman’s right to have an abortion. In fact, the final sentence of the 1986 revision specifically disavows that any such right to abortion is conferred under state law. Although the 1843 constitution abolished slavery, it contained no language barring racial discrimination. Further, the right to vote (suffrage) was initially restricted to a certain class of property-owning male citizens. R.I. Const. of 1842, Art. 1, § 4, and Art. 2. LAWS FOR GOOD OF THE WHOLE Although precious little case law exists interpreting this clause, it has been construed to allow the legislature wide discretion to enact legislation that prefers one group over another—so long as the classifications drawn relate to legitimate public purposes and do not discriminate in an unreasonable manner. Kayrouz v. Rhode Island Depositors Economic Protection Corp. ex rel. Sundlun, 593 A.2d 943 (R.I. 1991) (upholding law which gave depositors preference over creditors upon the liquidation of certain financial institutions); General Fin. Corp. v. Archetto, 176 A.2d 73 (R.I. 1961), appeal dismissed, 369 U.S. 423 (U.S. 1962) (upholding tax exemptions as an attribute of sovereignty); Opinion to Governor, 145 A.2d 87 (R.I. 1958) (opining in favor of a delegation of authority to the Rhode Island Industrial Building Authority after the voters approved a referendum that so provided). BURDENS TO BE EQUALLY DISTRIBUTED When one thinks of the various burdens that a state may place on its citizens, one of the most obvious is taxation, and that is precisely the issue which has been most contested under this section. Much of the case law involving this section predates adoption of the present constitution in 1986. Neither the words nor the meaning of the Fair Distribution Clause, however, have changed after adoption of the present constitution in 1986. Although the Rhode Island Supreme Court generally has accorded the General Assembly substantial deference and leeway over the years, in no precinct of the law is this truer than in the area of laws pertaining to taxation. “[O]ur Constitution is extremely latitudinarian,” the court announced in Cleveland v. Tripp, 13 R.I. 50 (1880). Statutes are presumed valid; to be overturned, the party challenging a

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statute must prove its unconstitutionality beyond a reasonable doubt. East Shore Land Co. v. Peckham, 82 A. 487, 491 (R.I. 1912). The landmark case in this area is In re Dorrance Street, 4 R.I. 230 (1856). There, the court stated that the general language employed in Article 1, Section 2, was only advisory, but not mandatory. Id. at *12. The court noted that the precatory language of the section stated that burdens of the state ought to be fairly distributed, as opposed to saying that such burdens must be equally distributed. R.I. Const. Art. 1, § 2; Dorrance Street, 4 R.I. 230. The court went on to observe that all taxation was to some degree unfair and unequal. Id. at *13. After Dorrance Street, the court has consistently rejected most challenges to taxation laws, allowing the General Assembly a wide berth in this area. See Id. Although the text of the “fair distribution” clause itself has remained the same, the words “Burdens to be equally distributed” have been added as a subtitle of the section. R.I. Const. Art. 1, § 2 (emphasis added). Furthermore, the court has acknowledged that absolute fairness and equality in taxation is unattainable. Manufacturers’ Mut. Fire Ins. Co. v. Clarke, 103 A. 931, 933 (R.I. 1918). As with most social and economic laws, statutes distributing the burdens of the state need only satisfy a rational basis standard to pass constitutional muster. Id. Even if a law could have been drawn more narrowly, the court will not, generally speaking, overturn a law simply because the legislature failed to construct it in such a way. Id. The Rhode Island high court has upheld a number of taxation laws against various legal challenges; see, for example, City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995) (upholding funding for public schools based on taxation of property within town); Kalian v. Langton, 192 A.2d 12 (R.I. 1963) (upholding tax on certain types of businesses whose receipts exceeded $30,000); Society for Preservation of New England Antiquities v. Tax Assessors of City of Newport, 5 A.2d 293 (R.I. 1939) (upholding a tax on a Massachusetts corporation that had been granted a taxexempt charter in its home state); In re Opinion to the Governor, 142 A. 660 (R.I. 1928) (opining in favor of proposed legislation that addressed how municipalities could exercise taxing power); Brown Univ. v. Granger, 36 A. 720 (R.I. 1897) (upholding tax exemptions for colleges); Cleveland, 13 R.I. 50 (1880) (upholding tax assessments proportional to land area and frontage of lots). Taxation is not the only burden that ought to be fairly distributed. The court has also deferred to the legislature, state agencies, and municipalities with regard to the distribution of other legislative and administrative burdens, financial and nonfinancial, that these government actors have imposed on other parties. In re Advisory Opinion to Governor, 510 A.2d 941 (R.I. 1986) (opining in favor of law that would require the director of transportation to maintain a certain road as part of the highway system); Sepe v. Daneker, 68 A.2d 101 (R.I. 1949) (upholding regulations on alcohol sales); Prata Undertaking Co. v. State Bd. of Embalming & Funeral Directing, 182 A. 808 (R.I. 1936) (upholding regulations on undertakers); Bd. of Purification of Waters v. Town of East Providence, 133 A. 812 (R.I. 1926) (upholding requirement by state agency that town adopt a plan to stop water pollution); State ex rel. Egan v. McCrillis, 66 A. 301 (R.I. 1907) (upholding law requiring home-owners whose lots abutted public streets, squares, or public places to clear

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the snowfall off the sidewalk in front of their lots); State v. Duggan, 6 A. 787 (R.I. 1886) (upholding special penalties for pharmacists convicted of violating alcohol sales laws). Although most statutorily imposed burdens have survived challenges under the Fair Distribution of Burdens Clause, a few have not fared as well. Picerne v. DiPrete, 428 A.2d 1074 (R.I. 1981), aff ’d, 542 A.2d 1101 (R.I. 1988) (overturning tax assessment against 40 apartment buildings as being clearly discriminatory); American Bank v. Mumford, 4 R.I. 478 (R.I. 1857) (overturning law that allowed double taxation on dividends paid out to corporate shareholders). Only if the law is so completely indefensible and the evil intent of the actors’ motives so painfully obvious will the court question the lawmakers’ taxation decisions. As the court said in Clarke, 103 A. at 933, “An act of the General Assembly must stand, unless its repugnancy to the Constitution appears on its face or upon a consideration of the facts of which the court can take judicial notice.” DUE PROCESS AND EQUAL PROTECTION As noted previously, the 1843 constitution guaranteed due process only to defendants in criminal cases—R.I. Const. of 1843, Art. 1, § 10—and there was no Equal Protection Clause. Moreover, as of this writing, it is still an open question whether these clauses of the 1986 constitution are self-executing or whether they are unenforceable without enabling legislation that does not yet exist. The Rhode Island Supreme Court has not yet directly ruled on whether an implied cause of action exists to enforce these clauses in the absence of enabling legislation from the General Assembly. In Folan v. State, 723 A.2d 287, 292 (R.I. 1999), the court refused to imply a direct right of action under the Equal Protection Clause, as the United States Supreme Court did in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (U.S. 1971), under the Fourth Amendment to the United States Constitution. The court held that the antidiscrimination clause of Article I, Section 2, does not imply the existence of a direct cause of action for violations thereof, because those alleging a violation of their rights in this respect possessed other statutory remedies. But see Jones v. Rhode Island, 724 F. Supp. 25 (D.R.I. 1989) (holding that an implied cause of action existed under the Rhode Island Constitution’s Due Process Clause). The court traditionally employs a rational-basis test when it conducts a due process analysis. Usually, the scale tips in favor of upholding the challenged law or government action, unless the challenged law or action is “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” State v. Tregaskis, 540 A.2d 1022, 1026 (R.I. 1988). The court has disposed of many due process challenges by deferring to the presumed wisdom of the legislature. Cohen v. Harrington, 722 A.2d 1191 (R.I. 1999) (upholding local property taxes against a constitutional challenge); City of Warwick v. Almac’s, Inc., 442 A.2d 1265 (R.I. 1982) (upholding implementation of state’s “blue laws” that limit business conducted on Sunday).

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Many due process challenges arise from parties alleging violations of their property rights. Due process requires the opportunity to be heard before one is finally deprived of liberty or property interests; see, for example, Nisenzon v. Sadowski, 689 A.2d 1037, 1048 (R.I. 1997) (discussing Fricke v. Fricke, 491 A.2d 990, 997 [R.I. 1995]). Often the court has rejected such arguments, concluding that there is no vested property interest to complain about when the legislature changes the law to reflect new policy choices. See for example, D. Corso Excavating, Inc. v. Poulin, 747 A.2d 994 (R.I. 2000) (holding that no property interest had vested in employers and workers’ compensation insurers who, prior to repeal of the applicable law, were able to obtain reimbursement for payments made to injured employees); Hebert v. Ventetuolo, 480 A.2d 403 (R.I. 1984) (holding that there are no constitutional rights to state education or to participate in interscholastic sports); Gorham v. Robinson, 186 A. 832 (R.I. 1936) (holding no property right had vested in lower court judges who were appointed to six-year terms before the law was changed to have their terms limited to three years); Henry v. Cherry & Webb, 30 R.I. 13 (R.I. 1909) (holding that a state constitutional right to privacy was nonexistent under the section). Seldom does the court conclude that a statute violates a vested property right. But see Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996) (holding that the expiration of a previous statute of limitations period created a vested property right that would be impaired by allowing a lawsuit to proceed under a newly enacted statute of limitations against a defendant who enjoyed such an immunity from suit upon the expiration of the former limitations period). When the alleged impairment of a liberty interest is at stake, the court also tends to defer to legislative policy choices. See Henry v. Earhart, 553 A.2d 124 (R.I. 1989) (upholding a law that prohibited those convicted of crimes from employment at preschools, but entitling applicants to have a hearing to rebut the presumption of unfitness); and Prata Undertaking Co. v. State Bd. of Embalming & Funeral Directing, 182 A. 808 (R.I. 1936) (upholding some of the challenged regulations on undertakers). The right to have some type of a hearing before a deprivation of liberty occurs is vital. Avanzo v. R.I. Dept. of Human Servs., 625 A.2d 208 (R.I. 1993) (invalidating law that removed people from a list of those covered by state disability insurance when the complainants lacked the right to a hearing under the law). Equal protection analysis differs from due process scrutiny. There are three potential levels of judicial review for claims arising under both the state and federal Equal Protection Clauses, depending on the type of case. Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 734, 736 (R.I. 1992). The first and most searching level is called strict scrutiny and requires a finding that the law or action in question is necessary to the accomplishment of a legitimate governmental purpose. Id. This level of rigorous analysis is most frequently applied to laws involving racial or ethnic classifications. Id. The second type of review is called intermediate scrutiny and requires that the law or action in question serve important governmental objectives and be substantially related to achieving those objectives. Id. at 737. This type of analysis is most frequently applied to gender classifications. Id. In contrast to its treatment of racial or ethnic classifications, which almost never

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serve compelling governmental interests, the court has reasoned that innate differences between males and females allow for gender classifications to be examined under this lesser standard. Id. at 737, 738. The final type of analysis is the most deferential level of review: the more-common rational-basis standard. Id. at 737. Laws that constitute economic and social regulation are tested against this deferential standard. The court has applied a rational-basis test to uphold laws challenged for violating equal protection on many occasions. As the court stated in Dowd v. Rayner, 655 A.2d 679 (R.I. 1995), when a law does not involve a suspect classification, a fundamental right, or a gender-based classification, the proper standard of review is rational-basis scrutiny. In Gomes v. Bristol Mfg. Corp., 184 A.2d 787, 789 (R.I. 1962) (discussing Berberian v. Lussier, 139 A.2d 869, 873 [R.I. 1958]), the court said that equal protection doctrine allows the General Assembly to enact classifications that are reasonable, not arbitrary; that is, ones that are based upon substantial differences having a reasonable relation to the persons or things in question and the objectives sought to be achieved. As noted above, the court uses intermediate scrutiny when gender classifications are at issue. In Kleczek, 612 A.2d at 739, the court upheld a law that prohibited boys from playing girls’ interscholastic field hockey. The court reasoned that the governmental interests in safety and preservation of competition allowed for such a classification. Id. Ironically, one of the few times the court has found an equal protection violation was in Landmark Medical Ctr. v. Gauthier, 635 A.2d 1145, 1151 (R.I. 1994). There, the court held that the common-law doctrine of necessaries, whereby a husband was deemed liable for his deceased wife’s medical expenses, should be extended to hold a wife liable for those same expenses incurred by her husband before he died, so as to not run afoul of the Equal Protection Clause. DISCRIMINATION There is little case law concerning the antidiscrimination clause. In Folan, 723 A.2d at 292, the court, distinguishing the federal Bivens doctrine, 403 U.S. 388, held that the antidiscrimination clause of Section 2 does not imply a cause of action for alleged violations thereof, because there were other statutory remedies available to those asserting violations of these rights. In Kleczek, 612 A.2d at 740, the court held that the adoption of this provision in 1986 did not constitute an enactment of the failed proposed amendment to the United States Constitution known as the Equal Rights Amendment. Thus, the court has been chary to date about recognizing a direct right of private action under the Equal Protection Clause. SECTION 3. Freedom of religion. Whereas Almighty God hath created the mind free; and all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend to beget habits of hypocrisy and meanness; and whereas a principal object of our venerable ancestors, in their migration to this country and

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their settlement of this state, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with full liberty in religious concernments; we, therefore, declare that no person shall be compelled to frequent or to support any religious worship, place, or ministry whatever, except in fulfillment of such person’s voluntary contract; nor enforced, restrained, molested, or burdened in body or goods; nor disqualified from holding any office; nor otherwise suffer on account of such person’s religious belief; and that every person shall be free to worship God according to the dictates of such person’s conscience, and to profess and by argument to maintain such person’s opinion in matters of religion; and that the same shall in no wise diminish, enlarge, or affect the civil capacity of any person.

This section, unchanged from the constitution of 1843 except for the use of gender-neutral language, contains Rhode Island’s claim to constitutional fame and is, therefore, worthy of extended historical analysis. The phrase “to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with full liberty in religious concernments” is the famed guarantee of religious liberty inserted by Roger Williams and Dr. John Clarke in the Royal Charter of 1663. The language that follows is derived from a 1798 statute “Relative to Religious Freedom and the Maintenance of Ministers,” which is Rhode Island’s version of the Free Exercise Clause. The Digest of 1719, Rhode Island’s first published codification of the colony’s laws (there was a 1705 manuscript digest), figures prominently in any discussion of the implementation of the famed guarantee of religious liberty contained in the Charter of 1663. Although the Royal Charter had specifically stated that no person “shall be in any wise molested, punished, disquieted, or called in question, for any differences of opinion in matters of religion,” the 1719 code contained the following provision: All Men Professing Christianity, and of Competent Estates, and of Civil Conversation, who acknowledge, and are Obedient to the Civil Magistrate, though of different Judgments in Religious Affairs (Roman Catholicks only excepted) shall be admitted Free-men, And shall have liberty to Chuse and be Chosen Officers in the Colony both Military and Civil. [Emphasis added]

This act was allegedly passed in the March 1663 session of the General Assembly. Its enactment then or at any time prior to 1719 is possible but highly improbable. No such statute appears in the original proceedings of the General Assembly for 1663, nor is it found in the preserved proceedings of any subsequent session. Further, it is not contained in the manuscript “Laws and Acts” of 1705. The passage of this restrictive “law” during 1663 is particularly implausible in view of the colonists’ statutory enactment in May 1664 of the religious guarantees of the charter. The fact that Roger Williams was a member of the first assemblies renders the act’s passage at that time even more doubtful. The discriminatory statute was inserted into the Digest of 1719 by the compilers of that volume to cater to the whims of the recent defenders of their charter, the

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English Whigs, whose anti-Catholic sentiments had been aroused by the Jacobite efforts in 1715–1716 to place the Catholic Pretender James III on the English throne. In fact, Jacobite uprisings had prompted the passage by Parliament of proscriptive legislation against “Papists” in June 1716. To Rhode Island’s discredit, this statute, enacted as part of the Digest of 1719, was reaffirmed by the assembly in the Digests of 1730, 1745, and 1767. Not until 1783 was the arbitrary disqualification of Catholics removed—in large measure because of Rhode Island’s exposure to the troops of Catholic France, America’s indispensable ally in the War for Independence The act that accomplished this, however, not only failed to recognize the true origins of the disabling “statute”; it also neglected to define the civil status of those professing the Jewish faith. The 1719 digest’s civil restriction against those of the Jewish faith bears directly upon our discussion of the Digest of 1798. These volumes are bookends as they pertain to official and legal discrimination against Jews in Rhode Island. Whereas the Catholic restriction had a minimal impact because very few Catholics lived in Rhode Island Colony, the effect of the limitation on Jews was commensurate with Newport’s sizable and prosperous Jewish community, which dated from 1658. The key essay on the issue of Jewish political disability was written by David C. Adelman, a Providence attorney and founder of the Rhode Island Jewish Historical Association. In an article entitled “Strangers: Civil Rights of the Jews in Rhode Island Colony” that appeared in Rhode Island History magazine in 1954, Adelman detailed the fate of those Jews who sought naturalization and citizenship. Although Jews enjoyed freedom of worship, none, however qualified or competent, was ever made a freeman of the colony of Rhode Island. On the issue of naturalization, both the Superior Court and the General Assembly in 1761–1762 denied the citizenship petitions of Aaron Lopez and Isaac Elizer because they were non-Christians. The lower house of the assembly further admonished them that an adherent of their religion was “not Liable to be chosen into any Office in this Colony Nor allowed to give a Vote as a Freeman in Choosing others.” Adelman asserts that no evidence exists that anyone of the Jewish faith was ever naturalized in the colony of Rhode Island. But the rejection in the Lopez case, it should be noted, stemmed from the petitioner’s political as well as religious affiliations. Lopez was closely associated with Nicholas Brown, an ally of Governor Stephen Hopkins. This prompted Hopkins’s opponents in the assembly, led by former governor Samuel Ward, to dismiss the Lopez petition. The first Jews came to Newport in 1658, encouraged by news concerning the liberality of Roger Williams and his efforts to persuade the Cromwellian regime to admit Jewish refugees from Spain and Portugal into England and her colonies. During the remainder of the colonial era the “Hebrew” population of Rhode Island waxed and waned with changes in trade and commerce. In the 1690s approximately 90 Jewish refugees from Spain and Portugal arrived via the Dutch island of Curaçao, and in the 1740s and 1750s an accelerated Inquisition brought a new influx from Portugal. In 1763 Newport’s Jewish community—organized as Congregation Yeshuat Israel—erected Touro Synagogue, which had 200 members at its peak on the eve of the American Revolution. British occupation of Newport from late 1776 to 1779

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disrupted commerce and dispersed the town’s Jewish mercantile community. By 1790 Touro Synagogue was on the verge of closing when George Washington informed the Hebrew congregation (paraphrasing their own letter to him) that “happily the government of the United States gives to bigotry no sanction; to persecution no assistance.” Ironically, Rhode island’s hands were still unclean. Not until the enactment of the Digest of 1798, at a time when only four Jewish families remained in Newport (Sexias, Levy, Lopez, and Rivera), were adherents of the Jewish faith made firstclass citizens by an act “Relative to Religious Freedom and the Maintenance of Ministers.” This remarkable statute was as advanced as any drafted or conceived during this era of liberal religious declarations, but it was not more than an explicit rendering of the principles upon which Roger Williams founded his Providence Plantation. The act itself declared that “no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinion or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.” This is the language of the present constitution. The act’s preamble was even more emphatic. It condemned laws compelling a man to contribute money to support opinions in which he disbelieved as “sinful and tyrannical” and called forced contributions to support particular teachers of one’s own religion a deprivation of liberty. It also claimed that civil rights had no dependence on religious opinions, and so “the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.” Such a proscription, the act concluded, tended “only to corrupt the principles of that religion it is meant to encourage, by bringing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it.” This enlightened measure was a vigorous reaffirmation of Rhode Island’s longstanding commitment to the principles of religious liberty and church-state separation. Roger Williams would have rejoiced at the enduring nature of his “lively experiment.” Although the text of this section is decidedly wordier than the language protecting religious freedom in the First Amendment to the United States Constitution, it is no more restrictive than the federal Constitution when freedom of religion is at issue. Thus, in Bowerman v. O’Connor, 247 A.2d 82, 83 (R.I. 1968), the court chose to follow the federal holding in Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236 (1968), in deciding that a municipal school committee could supply parochial school students with textbooks without violating this provision. Bowerman, 247 A.2d at 83. In the case of Fowler v. Rhode Island, however, the United States Supreme Court and the court differed on the constitutionality of a Pawtucket ordinance banning

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speeches to religious gatherings in a public park. 345 U.S. 67 (1953); State v. Fowler, 91 A.2d 27 (R.I. 1952); State v. Fowler, 83 A.2d 67 (R.I. 1951). The federal Supreme Court held that if the authorities generally allow religious services in the park, then they must also allow the religious services of the Jehovah’s Witnesses sect, including the addresses that are as much a part of the service as prayers. 345 U.S. at 70. Disallowing a component of one service while allowing all components of another amounts to a state preference for certain religious groups over others. 345 U.S. at 69. In its preceding decision, the Rhode Island Supreme Court held the ordinance to be constitutional because it reasonably abridged the rights of the minister while it also protected the rights of citizens to enjoy the peace of the park without the interruption of loudspeakers. 91 A.2d 27 at 32. The Rhode Island Supreme Court also has held that the state constitution prevents it from assessing the fairness of internal church disciplinary proceedings. Martin v. Howard, 784 A.2d 291, 304 (R.I. 2001). The court refused to consider the alleged constitutional unfairness of procedures used to assess the purported defamation of a church member because it was part of the church’s “religious disciplinary proceeding that was a matter of ‘ecclesiastical cognizance.’” 784 A.2d at 304. In an earlier case, the court held that a church’s voluntary participation in the state unemployment compensation system bound it to the state’s determination of a former employee’s eligibility for worker’s compensation benefits. St. Pius X Parish Corp. v. Murray, 557 A.2d 1214 (R.I. 1989). The church disagreed with the state’s determination that its nonrenewal of the teacher’s contract was for reasons other than employee misconduct. Id. Contrast this case with In re Palmer, in which the court allowed a petitioner to wear a Sunni prayer cap, a takia, in court despite court rules forbidding it. 386 A.2d 1112 (R.I. 1978). Applying federal constitutional doctrine and using the Sherbert test, the court held “that restrictions on religious practices are permissible only where the practices threaten public safety, peace, or order.” In re Palmer, 386 A.2d at 1115–6, applying Sherbert v. Verner, 374 U.S. 398, 402–3 (1963). In two of the state’s earliest freedom-of-religion cases, the court held that a Christian Scientist offering to cure disease was not practicing medicine without a license when, while not claiming to be a doctor, he charged one dollar to pray for a cure and for providing a Christian Science book. State v. Mylod, 40 A. 753 (R.I. 1898); and State v. Anthony, 40 A. 1135 (R.I. 1898). Given that tax exemptions for religious organizations were common both before and after the effective date of the 1843 Rhode Island Constitution, the court held in General Finance Corp. v. Archetto, 176 A.2d 73 (1961), that the Freedom of Religion Clause was not intended to prohibit tax exemptions. During the tumultuous 1960s the liberal Warren Court rendered several decisions on the relationship between religion and education that ran counter to the prevailing sentiment in Rhode Island—the most Catholic state in the Union, with well over 60 percent of its population at least nominally Roman Catholics. Most legislative efforts to aid the state’s financially troubled Catholic schools were thwarted by this Court’s new and expansive view of the First Amendment’s Establishment Clause. In 1969 the state legislature passed an act to supplement the

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salaries of teachers in parochial elementary schools. After an ACLU challenge, the U.S. Supreme Court struck down the measure in the 1971 case of Di Censo v. Robinson (403 U.S. 602) because it provided “substantial support for a religious enterprise” and caused “an excessive governmental entanglement with religion.” Shortly thereafter, the federal district court for Rhode Island invalidated a state school bus law requiring towns to bus private school pupils beyond town boundaries if necessary. This decision prompted the legislature to create regional bus districts to circumvent the court’s ruling. Today the legal tension between the Establishment Clause and the proponents of state aid to sectarian education persists. In 1973 the high court made its controversial decision on abortion in Roe v. Wade. Since that time the state legislature has displayed much more opposition to abortion than the state’s general Catholic population, as evidenced by the decisive defeat of a pro-life amendment proposed by the 1986 state constitutional convention. Although abortion is both a moral and a religious issue, in Rhode Island the battle has assumed sectarian overtones and church-state implications. Numerous laws to blunt the effect of Roe have passed the General Assembly, including one declaring that life begins at conception, another requiring spousal or parental permission for abortion, and another requiring the informed consent of the prospective patient, followed by a 48-hour waiting period. Most of these laws have failed to pass constitutional muster in our federal district court. Another church-state issue to pierce the thin veil of local ecumenism involves the use of public funds for religious displays. Here, Rhode Island produced another nationally significant case in Lynch v. Donnelly, 465 U.S. 688 (1984). In this confrontation, the ACLU challenged the city of Pawtucket’s inclusion of a nativity scene in its Christmas display. In a 5-to-4 decision, Chief Justice Burger, speaking for the majority, dismissed the complaint in part because “it has never been thought either possible or desirable to enforce a regime of total separation” of church and state. Despite this 1984 ruling in Lynch, the local ACLU soon after unsuccessfully challenged the long-standing existence of a wayside cross on property owned by the town of East Greenwich; and the battle continues. Lynch v. Donnelly has been the subject of the most extensive analysis ever accorded a U.S. Supreme Court decision emanating from Rhode Island—a book by Wayne S. Swanson entitled The Christ Child Goes to Court (Philadelphia, 1990). In 1992 Rhode Island generated another high-profile Establishment Clause case for the U.S. Supreme Court, Lee v. Weisman, 505 U.S. 577 (1992), which arose from a graduation ceremony at Nathan Bishop Middle School in Providence. A student, Deborah Weisman, objected to an invitation by Robert E. Lee, the principal, to clergymen to give the invocation and benediction. The Supreme Court ruled, in a 5-to-4 decision, that a school requirement that a student stand and remain silent during a “nonsectarian” prayer at the graduation exercise in a public school violated the Establishment Clause, even though attendance at the ceremony was completely voluntary. The student, said the Court, should not be “ induced to conform” and should not be required to give up her attendance at graduation, “an important event in her life, in order to avoid unwanted exposure to religion.”

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As this sketchy survey reveals, even in the land of Roger Williams, where religious liberty has always existed and where no established church has ever reigned, history seems to support Montesquieu’s cynical observation that “there has never been a kingdom given to so many civil wars as that of Christ.” SECTION 4. Slavery prohibited. Slavery shall not be permitted in this state.

This section is unchanged from the 1843 Rhode Island Constitution, but because slavery and the slave trade had a greater impact upon Rhode Island than upon any other northern state—and continues to incite controversy—a commentary on the antecedents of this section is warranted. In the first 50 years of the colony’s existence, the lawmakers in Roger Williams’s refuge from oppression passed two notable measures banning the enslavement of blacks and Indians. In 1652, during William Coddington’s short-lived secession from the colony (he had secured a proprietorship over Conanicut, later Jamestown, and the Aquidneck Island settlements of Newport and Portsmouth), the remaining towns of Providence and Warwick passed a measure banning permanent black servitude. This law, called by American colonial historian Charles McLean Andrews “the first legislative act of emancipation in the history of the colonies,” was probably the work of Samuel Gorton, for Williams was in England at the time securing a revocation of Coddington’s proprietorship. Perhaps written in response to the purchase of blacks from the Dutch by Newporters, the law read as follows: Whereas there is a common course practiced among Englishmen, to buy negroes to the end that they may have them for service or slaves forever, for the preventing of such practices among us, let it be ordered that no black mankind, or white, being forced to covenant bond or otherwise, serve any man or his assigns longer than ten years, or until they come to be twenty-four years of age if they be taken under fourteen, from the time of their coming within the liberties of the Colony and at the end or term of ten years to set them free as the manner is with English servants, and that man that will not let them go free, or shall sell them away elsewhere, to that end that they may be enslaved to others for a longer time, he or they shall forfeit to the Colony forty pounds. (RICR, 1:243).

Rhode Island’s Native Americans were also the beneficiaries of such good intentions. As late as March 1676, during a great Indian war, Rhode Island stood apart from its aggressive neighboring colonies by enacting a statute providing that “no Indian in this colony be a slave but only to pay their debts, or for their bringing up, or courtesy they have received, or to perform covenant as if they had been countrymen not in war.” This curious language was designed to prevent the enslavement of Indian captives, a practice that began in New England when Connecticut colonists nearly exterminated the Pequot tribe in 1637. So much for good intentions! Blacks lost their legislative protection against permanent enslavement in 1654 when the Rhode Island towns were reunited, thereby

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rendering the Providence-Warwick slave ban a dead letter. Indians lost their protection after the bitter and bloody King Philip’s War (1675–1676), the culmination of a four-decade decline of Indian-white relations in southern New England. Famine, disease, and wartime casualties decimated the ranks of the Narragansetts and their Wampanoag allies. The killing of King Philip in August 1676 by an Indian allied with the whites effectively ended the war. White retribution was harsh and cruel. The body of Philip was drawn and quartered and his head placed above the stockade at Plymouth as a warning to other potential rebels. Some so-called “ringleaders” were executed for war crimes. Many Indians who survived fared little better. Philip’s widow and nine-year-old son, along with other “dangerous” captives, were sold into permanent West Indian slavery. Two Providence trading companies were formed to engage in this exportation of human cargo. Other natives were sentenced to penal servitude for specific periods on local plantations in southern Rhode Island. A bitter and disillusioned Williams gave support to these retributions. During the century following King Philip’s War, slavery gained a strong foothold in Rhode Island, especially as a consequence of the development of the foreign slave trade after 1700. According to the census of 1708, the colony had 426 blacks out of a total population of 7,181. Nearly all came from Barbados, and a small percentage enjoyed free status. The black population peaked at 4,697 in the colonial census of 1755, a figure that was 11.62 percent of the total population, and it then declined (because of escapes and sales) to 3,668 by 1774. Native Americans numbered 1,479 in the latter census, and whites accounted for 54,560 inhabitants. These Rhode Island enumerations did not distinguish between free blacks and slaves, but best estimates place the slave population at about 3,000 on the eve of the Revolution. If there was a positive aspect to Rhode Island’s slave system, it consisted in the fact that black slaves were not subjected to severer punishment than whites for the same offenses (as they were in some colonies), and they enjoyed the same legal protection that whites did for offenses against their persons. In addition, blacks could own real or personal property; and except for the period from 1822 to May 1843, there was no racial qualification for freemanship in Rhode Island. After the outbreak of the War for Independence, the revolution in race relations gained momentum. In 1778 the First Rhode Island Regiment of the Continental Army recouped early losses by recruiting slaves (who were offered freedom for enlisting for the duration of the war) as well as free blacks, mulattoes, and Indians. This “colored” battalion fought with distinction at the Battle of Rhode Island (August 29, 1778) and saw much bloody action later in the war. The Quaker-led campaign against slavery advanced in October 1779, when the assembly forbade the sale of Rhode Island slaves outside the state without their consent. The most significant of the Revolution-inspired statutes relating to blacks, however, was the Emancipation Act of 1784. With a preface invoking the sentiments of John Locke—namely, that “all men are entitled to life, liberty and property”—this gradual manumission measure gave freedom to all children born to slave mothers after March 1, 1784. Although the statute had obvious merits, it was

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not a complete abolition of slavery, for it failed to require the emancipation of those who were slaves at the time of its passage. Three years later, as public debate on the merits of the new federal Constitution began, Rhode Island’s increasing aversion to slavery intensified the state’s antifederalism. This attitude was strong among Rhode Island’s sizable Quaker community, but it was shared by others as well, perhaps to atone for past sins. Slavery engendered much discussion and debate at the South Kingstown session of the ratifying convention. In fact, the slave-trade provision of the Constitution provoked such opposition that an amendment (XVII) exhorting Congress to ban the traffic immediately was specifically proposed and approved. Rhode Island was the only state to suggest such an amendment to the federal Constitution during the ratification struggle. Despite the successes of the abolitionists between 1778 and 1790, the first federal census in 1790 counted 948 slaves in a black population of 3,863. In 1810 there were 108 slaves in a black community that totaled 3,717, and as late as 1840 five blacks remained chattels. Not until the implementation of the written state constitution in May 1843 was slavery absolutely forbidden and the remaining handful of slaves actually freed. In Rhode Island the “peculiar institution” died a lingering death. The prohibition against slavery does not include a prohibition against uncompensated prison labor, even when such labor is contracted to a private party. Anderson v. Salent, 96 A. 425, 432 (R.I. 1916). Such employment existed before and after the adoption of the state constitution. Id at 429–30. Beginning in 1847, the legislature quietly acquiesced to such uses of prison labor. SECTION 5. Entitlement to remedies for injuries and wrongs—Right to justice. Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one’s person, property, or character. Every person ought to obtain right and justice freely, and without purchase, completely and without denial; promptly and without delay; conformably to the laws.

This section and the nine immediately following (interrupted only by Section 7 on the grand jury, which was added in 1973) were derived from the 1798 “Act Declaratory of Certain Rights of the People of This State” enacted as part of the Digest of 1798. These 10 rights became Sections 5 through 14 of the constitution of 1843. This section is unchanged except for the replacement of gender references by neutral language, a task performed throughout the constitution by the 1986 convention. The threshold for the application of this section is that the party invoking it must have a recognized legal interest to protest against injury or wrong. In re Nichols, 8 R.I. 50, 54–55 (1864) (creditor unsuccessfully pressed for continued imprisonment of a debtor). See also, Armour & Co. v. New York, N.H. & H.R. Co., 103 A. 1031, 1034–35 (R.I. 1918) (where no property right is recognized, no compensation is required).

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Article I, Section 5, derives from the 40th section of the Magna Carta, which prevented the king from accepting payments or gifts as a result of the justice granted by his courts. Joslin Mfg. Co. v. Clarke, 103 A. 935, 937 (R.I. 1918). But the court held that Article I, Section 5, has no application when the state granted Providence authority to condemn and to buy areas of Scituate for a reservoir. 103 A. at 937. The state granted the city power “to decide ex parte without appeal and without an opportunity to have said questions heard and decided by an impartial tribunal.” 103 A. at 937. Article I, Section 16, merely declares that takings be for public use and require just compensation. 103 A. at 937. The same rationale applies when minority shareholders wish to block the majority from dispensing with the whole of a company. Narragansett Elec. Lighting Co. v. Sabre, 146 A. 777, 781–82 (R.I. 1929). IMMUNITY A statute allowing legislators to delay the judicial process of an action, whether civil or criminal, during a legislative session when they were involved in the action as either parties, counsel, or witnesses violated this section. Lemoine v. Martineau, 342 A.2d 616, 621 (R.I. 1975). But the section does not affect judicial immunity. Estate of Sherman v. Almeida, 747 A.2d 470, 473 n.2 (R.I. 2000) (suit for damages stemming from the decision of a judge alleged to have accepted bribes). The legislative grant of immunity in favor of hospitals was constitutional because the patient could still sue the practitioners who may have negligently injured her. Fournier v. Miriam Hospital, 175 A.2d 298, 302 (R.I. 1961). STATUTES OF LIMITATIONS AND STATUTORY NOTICE REQUIREMENTS The section is applicable when statutes of limitations bar remedies in product liability suits. Kennedy v. Cumberland Eng’g Co., 471 A.2d 195, 198 (R.I. 1984). The first sentence of Section 5 has a “broader, independent meaning and application”—in contrast to the second sentence, which merely discusses the attempted purchase of justice. 471 A.2d at 198. In Kennedy, the court found that because injuries may occur more than 10 years after the sale of a faulty product, a statute of limitations that required actions to be filed within 10 years of the product’s original sale meant that injured users might be left with no access to the courts. 471 A.2d at 199. Further, the injury might not manifest itself until after the limitations period has expired. 471 A.2d at 199. Claim preclusion here would be “manifestly unjust and inconsistent with art. I, sec. 5.” 471 A.2d at 200. The Kennedy rule, however, is not broadly applicable. “Statutes of limitations are vital to the welfare of society,” and therefore their limitation on the temporal availability of a remedy to a plaintiff is not unconstitutional. Young v. Park, 359 A.2d 697, 700 (R.I. 1976) (quoting Wood v. Carpenter, 101 U.S. 135, 139 [1879]). “[T]he length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are

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outweighed by the interests in prohibiting the prosecution of stale ones.” 359 A.2d at 700 (quoting Johnson v. Railway Express Agency, 421 U.S. 454 [1975]). Against a challenge invoking Article I, Section 5, the court upheld a statute limiting suits against builders of improvements to real property to 10 years from the substantial completion date. Walsh v. Gowing, 494 A.2d 543, 548 (R.I. 1985). The court distinguished Walsh from Kennedy on the grounds that the limitations statute in Walsh did not completely bar the plaintiff from obtaining a remedy. 494 A.2d at 547–8. See also, Dowd v. Rayner, 655 A.2d 679, 683 (R.I. 1995) (quoting Kennedy, 471 A.2d at 198. (“[A] ‘reasonable limit on the parties’ right to have their claims adjudicated by the courts’ … does not violate the open courts provision of article 1, section 5, of the Rhode Island Constitution”). The court also has held a statutory 60-day-notice requirement for a plaintiff to notify a municipality of a fall to be a reasonable burden. Hareld v. Napolitano, 615 A.2d 1015, 1017 (R.I. 1992) (slip and fall incident on city property). The most recent remedy case also involved Providence city property. The court ruled that the recreational use statute (R.I.G.L. 32-6)—which bars suits against municipalities by treating users of public and private recreational properties as trespassers for the purpose of tort claims—does not violate Article I, Section 5, because it does not completely bar the users of municipal-owned property from seeking redress for their injuries. It has merely lessened the common law duty of care that owners of recreational property owe. See Smiler, et al., v. Napolitano, 911 A. 2d 1035 (R.I. 2006). COURTRELATED COSTS AND FEES A petitioner should sue the clerk of the court when contesting the constitutionality of a fee required by the state in order to record a verdict invoked by the petitioner. Hudson v. Geary, 4 R.I. 485, 488–89 (1857). A court may constitutionally force a plaintiff to pay a surety before bringing suit—unless the plaintiff is unable to pay, in which case, the requirement of such a payment would be unconstitutional. Conley v. Woonsocket Inst. For Sav., 11 R.I. 147, 148 (1874) (case dismissed because plaintiff failed to show inability to pay); Spalding v. Bainbridge, 12 R.I. 244 (1879) (surety requirement waived because plaintiff showed inability to pay). See also Lewis v. Smith, 21 R.I. 324, 43 A. 542, 543–44 (1899) (affidavit of poverty showed inability to pay surety). Court filing fees are not unconstitutional because the legislature could not have meant to bar such fees if it adopted a fee table shortly after adopting the state constitution. Perce v. Hallett, 13 R.I. 363, 365 (1881). Courts, however, cannot be deprived of their inherent power to waive court fees upon a showing of poverty, or upon a finding of good faith, provided there is no intent to delay proceedings or to harass an opponent. Jones v. Aciz, 109 R.I. 612, 289 A.2d 44, 51–52 (1972). TAXATION “The practical impossibility of proving [a] claim to a rebate” does not constitute an alleged foreclosure of remedies. Oster v. Tellier, 544 A.2d 128, 132 (R.I.

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1988). The plaintiff could still pursue an injunction against collecting taxes not yet billed and collected. 544 A.2d at 132. State collection of a tax before the taxpayer is permitted to contest the tax is not unconstitutional because the state’s fiscal needs receive preference and the taxpayer retains the option of challenging the tax in court following payment. Moore v. Langton, 167 A.2d 558, 566 (R.I. 1961). NO INTERFERENCE WITH RIGHT An injury must be recognized as legally redressable before remedies can be considered under this provision. Molloy v. Collins, 66 R.I. 251, 18 A.2d 639, 643 (1941) (no violation found with regard to officeholders removed from office prematurely, because a political office is not a legally cognizable interest). This section does not preclude the legislature from limiting a party’s ability to assert a particular type of claim in court. Boucher v. McGovern, 639 A.2d 1369, 1377–78 (R.I. 1994) (workers compensation provided a remedy replacing common-law recourse). A limited statutory remedy may replace common-law or other remedies that might otherwise have been available. 639 A.2d at 1377. See also Bandoni v. State of Rhode Island, 715 A.2d 580, 595–96 (R.I. 1998). Although state officials failed to inform a drunk-driving victim of his constitutional right to address the court before sentencing and thus, left him without a remedy for the constitutional violation, the court could not invade the legislative province and create a damages remedy without legislative authorization to do so. The rights afforded in this section, however, are not “so fundamental as to be unwaivable.” State v. D’Amario, 725 A.2d 276, 281 (R.I. 1999) (defendant agreed to dismiss his civil claims and to forgo filing pro se motions for three years in a settlement agreement that precluded felony charges). A state law protecting defendants’ medical records from discovery by the prosecution violated this section because it “precludes litigants from obtaining and introducing material evidence, thereby preventing litigants from effectively presenting their claims.” State v. Almonte, 644 A.2d 295, 297–98 (R.I. 1994) (quoting Bartlett v. Danti, 503 A.2d 515, 518 (R.I. 1986) (arson defendant required to disclose his relevant medical records). OTHER Negligent sterilization is a tort for which a recovery may be allowed. Emerson v. Magendantz, 689 A.2d 409, 411 (R.I. 1997). SECTION 6. Search and seizure. The right of the people to be secure in their persons, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing as nearly as may be, the place to be searched and the persons or things to be seized.

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This section is unchanged from the 1843 constitution. Article I, Section 6, protects an individual’s reasonable expectation of privacy against unreasonable searches and seizures of his or her person, papers, and possessions. See State v. Bennett, 430 A.2d 424, 426 (1981). The Rhode Island Supreme Court has usually followed federal precedent in this area, interpreting Article I, Section 6, as identical to the Fourth Amendment to the United States Constitution. See Pimental v. Department of Transportation, 561 A.2d 1348, 1350–51 (1989); State v. Berker, 391 A.2d 107, 111 (R.I. 1978). Following the United State Supreme Court’s ruling in Mapp v. Ohio, 367 U.S. 643, 655 (1961), which applied the Fourth Amendment and its exclusionary rule to the states, the Rhode Island General Assembly enacted G.L. § 9–19–25. (“In the trial of any action in any court of this state … no evidence shall be admissible where the same have been procured by, through, or in consequence of any illegal search and seizure …”). Thus Article I, Section 6, protects an individual’s rights, through § 9–19–25, in the same manner as the Fourth Amendment’s exclusionary rule. See State v. Davis, 251 A.2d 394, 397 (R.I. 1969). On a rare occasion, however, the Rhode Island Supreme Court will interpret the constitution to require greater protections against government searches and seizures than those afforded under the United States Constitution. See Pimental, 561 A.2d at 1352–53 (concluding that drunk-driving roadblocks were invalid under the state constitution although they were valid under the federal Constitution). Under both the Fourth Amendment and its Rhode Island counterpart—Article I, Section 6, of the Rhode Island Constitution—a police officer must possess “probable cause” before arresting a person or conducting a search. See Bennett, 430 A.2d at 426. A police officer has “probable cause” if he or she personally knows or reliably has been informed of facts sufficient to justify a reasonable person to believe that a crime has been committed and that the arrested person has committed the crime. See id. at 426–27. Additionally, under Article I, Section 6, exigent circumstances need not exist to conduct a warrantless search of an automobile. See State v. Werner, 615 A.2d 1010, 1013–14 (R.I. 1992). Police need to have only probable cause to believe that an automobile, or a container located therein, contains evidence of a crime. See id. at 1013–14. Moreover, a warrantless search will not violate the Rhode Island Constitution when the “totality of the circumstances” justifies the search. See State v. Portes, 840 A.2d 1131, 1136–37 (R.I. 2004) (discussing the exigency exception to the warrant requirement). But the state has the burden of proving a warrantless search was reasonable under one of the recognized exceptions to the warrant requirement. See State v. Marshall, 387 A.2d 1046, 1048, (R.I. 1978). SECTION 7. Requirement of presentment or indictment—Double jeopardy. Except in cases of impeachment, or in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger, no person shall be held to answer for any offense which is punishable by death or by imprisonment for life unless on presentment or indictment by a grand jury, and no

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person shall be held to answer for any other felony unless on presentment or indictment by a grand jury or on information in writing signed by the attorneygeneral or one of the attorney-general’s designated assistants, as the general assembly may provide and in accordance with procedures enacted by the general assembly. The general assembly may authorize the impaneling of grand juries with authority to indict for offenses committed any place within the state and it may provide that more than one grand jury may sit simultaneously within a county. No person shall be subject for the same offense to be twice put in jeopardy. Nothing contained in this article shall be construed as in any wise impairing the inherent common law powers of the grand jury.

Article of Amendment XL, Section 1, added this section to the 1843 constitution. The 1973 Constitutional Convention drafted this section, which the people adopted on November 6, 1973, by a margin of 60,400 to 35, 808. Section 2 of the amendment provided for this section to replace the existing Article 1, Section 7, and nullified all inconsistent provisions. Article 1, Section 7, originated as Proposal 21 of the 1973 Constitutional Convention and was studied and debated by the Committee on Grand Jury. The discussion of the section’s meaning and purpose, which occurred at the time of passage, is reported in Patrick T. Conley, ed., The Proceedings of the Rhode Island Constitutional Convention of 1973, pp. 94–98. The convention’s intent was to modify the existing provision that required all felonies to go through the grand jury procedure, because that standard had produced delays in the criminal justice system. Accordingly, only those who were held to answer for an offense punishable by death or life imprisonment were constitutionally entitled to presentment or indictment by a grand jury. For other felonies, the General Assembly was given discretion of requiring either grand jury indictment or simply a signed “information” by the attorney general. The final sentence of this section was added during the floor debate. By including Article I, Section 7, in the Declaration of Rights, the framers intended to secure to every person charged with a serious crime the same protections as those provided by common law. See In re Opinion to the Governor, 4 A.2d 487, 489 (R.I. 1939). Additionally, Sections 7, 10, and 15 should be read together when determining the constitutional guaranties of a defendant accused of any crime punishable by death or life imprisonment. See id. In contrast to federal criminal procedure, this section allows an individual to be charged by either a grand jury indictment or by an information filed by the attorney general or designated assistants. See State v. Guido, 698 A.2d 729, 735 (R.I. 1997). An information is a written accusation prepared by the prosecutor without grand jury intervention. See Salvail v. Sharkey, 271 A.2d 814, 817 (R.I. 1970). Only the grand jury that returned an indictment can amend it, unless the defendant consents to the same under an enacted statute. See State v. Davis, 97 A. 818, 823 (R.I. 1916). Additionally, if a person other than the one designated by law to do so has qualified or drawn any one member of the grand jury, then any indictment by that grand jury would be invalid. See State v. Muldoon, 20 A.2d 687, 693 (1941).

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The Rhode Island Supreme Court has interpreted Article I, Section 7, to provide the same protection as that provided by the Fifth Amendment. See State v. One 1990 Chevrolet Corvette, 695 A.2d 502, 505 (R.I. 1997). The state’s doublejeopardy clause, which is located in this section, protects a criminal defendant from being charged with multiple indictments for committing the same offense. See State v. Barnes, 559 A.2d 136, 142 (R.I. 1989); and State v. Gordon, 508 A.2d 1339, 1345 (R.I. 1986). The court uses the “same evidence” test when deciding if a defendant is being placed in double jeopardy for the same offense. See State v. Grabowski, 644 A.2d 1282, 1284–85 (R.I. 1994). The “same evidence” standard means that a when a criminal act violates multiple statutes, the defendant may be prosecuted for each offense only if each crime requires “proof of an element distinct from the other.” See id. at 1284–85. The United States Supreme Court adopted this “same evidence” test in 1932, and the Rhode Island Supreme Court adopted it in 1971. See Blockberger v. United States, 284 U.S. 299, 304 (1932); State ex. rel. Scott v. Berberian, 284 A.2d 590, 594–95 (1971). Rhode Island also has adopted the United States Supreme Court’s recognition that jeopardy describes the risk traditionally associated with any criminal prosecution. See Breed v. Jones, 421 U.S. 519, 528 (1975). Likewise, the Rhode Island Supreme Court has adhered to the principle that the double-jeopardy clause only applies to criminal prosecutions. See Grabowski, 644 A.2d at 1286 (“the double-jeopardy clause applies only to proceedings that are ‘essentially criminal’ ”). In State v. Levesque, 694 A.2d 411, 412 (R.I. 1997), the court found that civil defendants could invoke the double-jeopardy clause, however, if their punishment was shown to serve a retributive and deterrent purpose. In doing so, the court relied on United States v. Halper, 490 U.S. 435, 448–49 (1989), a case in which the United States Supreme Court held the Federal Double-Jeopardy Clause to the same standard. U.S. Const. amend. V; Levesque, 694 A.2d at 412. Later in 1997, however, Halper was overruled by Hudson v. United States, 522 U.S. 93, 96 (1997). Since Hudson, the Rhode Island Supreme Court has not revisited the issue. Pursuant to Rule 12(b)(2), a defendant waives the defense of double jeopardy unless he or she raises it in a pretrial motion or unless the trial justice allows an untimely but proper assertion of the defense. See State v. Thomas, 654 A.2d 327, 330 (R.I. 1995). Also, the double-jeopardy defense can prevent a retrial when a defendant’s motion for a mistrial resulted from improper “governmental action intended to provoke a mistrial request.” See State v. Beltre, 764 A.2d 190, 191 (R.I. 2000). “Prosecutorial conduct not rising to the level of intentional bad-faith action designed to goad the defendant into seeking a mistrial is outside this narrow exception. Thus, mere prosecutorial error, although it may necessitate a mistrial, will not operate to preclude a retrial.” See id. (quoting State v. Gordon, 508 A.2d 1339, 1345 [R.I. 1986]). SECTION 8. Bail, fines, and punishments. Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted; and all punishments ought to be proportioned to the offense.

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This section reads as it did in 1843, except for the additional language that punishments ought to be proportioned to the offense. Article I, Section 8, is similar to the Eighth Amendment to the United States Constitution, which reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Rhode Island Supreme Court has addressed each of the four clauses in the section. Ex parte Snow, 1 R.I. 360 (1850) (per curiam) was the first case concerning the Excessive Bail Clause, and it is the first case dealing with any part of this section. There, the court stated that “The language is not high bail but excessive [bail]—that is, such an amount above what is reasonable as would show a palpable error of judgment or a disposition to oppress.” Id. at 363 (second emphasis added). The court went on to state that “The bail required ought to be such as will afford a reasonable security that the prisoner will abide the sentence of the court, should he be found guilty.” Id. In Benoit v. Langlois, 189 A.2d 805, 807 (R.I. 1963) the court also identified a host of factors that a court should consider in determining what proper security is, including the nature of the offense, the possible sentence, the probability that the accused will show up at trial or instead flee to avoid prosecution, the pecuniary and social condition of the accused, his or her general reputation and character, and the apparent nature and strength of the evidence against him. In that case, the court reversed the imposition of $20,000 bail against someone accused of conspiracy to escape from prison and remanded the case to the superior court, with instructions to impose bail no greater than $7,500. Id. at 809. The court found merit in the petition after the accused conspirator urged the court to consider factors such as “his extreme youth when first incarcerated, the nonviolent nature of previous offenses, his lifelong residence in this state, and the nature of the offense charged.” Id. at 807. Article I, Section 9, of the constitution states: “All persons imprisoned ought to be bailed by sufficient surety, unless for [enumerated offenses and categories of offenses].” In Quattrocchi v. Langlois, 219 A.2d 570, 572 (R.I. 1966), the court held that this provision only applied to preconviction bail and that there was no constitutional right to the possibility of postconviction bail pending appellate review. The court has not announced the principles that will guide it in determining what constitutes an excessive fine. As it has with the other clauses in this section, the court has been reluctant to meddle with the decisions of the legislature and the lower courts. Accordingly, the court has refused to overturn a number of fines challenged under this section. See DiPrete v. Morsilli, 635 A.2d 1155, 1164 (R.I. 1994) (upholding a $15,000 fine levied against a governor convicted of ethics violations); Douglas v. Bank of New England/Old Colony, N.A., 566 A.2d 939, 942 (R.I. 1989) (upholding punitive damage award of $225,000 against attorney who embezzled $26,000 from his clients); State v. Foster, 46 A. 833, 837 (R.I. 1900) (upholding a fine of $250 against unlicensed itinerant vendors); In re Stone, 41 A. 658 (R.I. 1898) (per curiam) (upholding a fine of $20 per bird given to a defendant convicted of having 18 birds illegally in his possession). Although most challenges under this section that do not address bail or fines have concerned whether a punishment is disproportionate to the offense, there

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have been a few occasions in which the court has opined on whether it thinks a particular punishment was cruel. In State v. Tregaskis, 540 A.2d 1022, 1026 (R.I. 1988), the court upheld a habitual-criminal statute (“Three Strikes Rule”), which imposed an additional up-to-25-year sentence on those convicted of a felony for a third time. It stated that such statutes are constitutional as long as qualifying for habitual-offender status would not constitute a separate offense. Id. In State v. Carufel, 263 A.2d 686, 688 (R.I. 1970), the court rejected a claim that it was cruel to punish someone for marijuana possession. The defendant had argued that because marijuana was classified as a narcotic, it must be addictive, and it was cruel, therefore, to punish someone for a disease. Id. The other jurisprudence in this area addresses whether punishments are proportionate to the crime charged. There has been much debate over whether the Eighth Amendment to the United States Constitution bans disproportionate sentences. A recent answer to this question may be found in Justice Sandra Day O’Connor’s plurality opinion in Ewing v. California, 538 U.S. 11, 23 (U.S. 2003). There she stated that “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J. concurring)). Four factors are used to determine the proportionality of a sentence under this standard: “the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors.” Ewing, 538 U.S. at 23 (quoting Harmelin v. Michigan, 501 U.S. at 1001 (1991) (Kennedy, J. concurring)). In McKinney v. State, 843 A.2d 463, 470 (R.I. 2004), the Rhode Island Supreme Court adopted this Ewing test and held that the Eighth Amendment to the United States Constitution and Article I, Section 8, of the Rhode Island Constitution are “identical” in this respect. Under this “grossly disproportionate” standard, the court has found many occasions to uphold sentences against claims that they violate this section. This means that the precise contours of what constitutes a disproportionate punishment remain unclear. See Retirement Bd. of Employees’ Retirement System of State of R.I. v. Azar, 721 A.2d 872, 880–81 (R.I. 1998) (upholding a sentence imposed upon a former director of public works for racketeering, requiring him to give up part of his pension); In re Almeida, 611 A.2d 1375, 1387–88 (R.I. 1992) (upholding a Rhode Island Superior Court’s justice’s sentence for ethics violations that required him to forfeit his pension as proportionate in light of his violation of the public trust), superseded by statute, Public Employee Pension Revocation and Reduction Act (PEPRRA), R.I. Gen. Laws § 36–10.1–3(a), as recognized in Smith v. Ret. Bd. of Employees’ Ret. System of State of R.I., 656 A.2d 186, 190 (R.I. 1995); State v. Ouimette, 479 A.2d 702, 706–07 (R.I. 1984) (upholding defendant’s 30-year sentence for armed robbery). Conversely, in State v. Ballard, 699 A.2d 14, 19 (R.I. 1997), the court reduced the consecutive sentences of a defendant convicted of multiple counts, including assault, kidnapping with intent to extort, and conspiracy. The trial justice had sentenced the defendant to serve two life sentences plus 65 years, to be served

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consecutively. Id. at 14–15. On appeal, the court reversed, eliminated the consecutive sentences, and ordered the sentences to all run concurrently. Id. at 19. Although the court expressed its reluctance to interfere with a trial court’s use of discretion in sentencing, it held that to avoid problems of disproportionality, consecutive sentences are generally inappropriate except in extraordinary circumstances, and that “the justification for such a severe sanction must be apparent from the circumstances and the consecutive sentencing must be proportional to the justification.” Id. at 18. SECTION 9. Right to bail—Habeas corpus. All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life, or for offenses involving the use or threat of use of a dangerous weapon by one already convicted of such offense or already convicted of an offense punishable by imprisonment for life, or for offenses involving the unlawful sale, distribution, manufacture, delivery, or possession with intent to manufacture, sell, distribute or deliver any controlled substance or by possession of a controlled substance punishable by imprisonment for ten (10) years or more, when the proof of guilt is evident or the presumption great. Nothing in this section shall be construed to confer a right to bail, pending appeal of a conviction. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety shall require it; nor ever without the authority of the general assembly.

Article I, Section 9, of the 1843 constitution originally read as follows: All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by death or by imprisonment for life, when the proof of guilt is evident or the presumption great. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety shall require it; nor ever without the authority of the general assembly.

Since Rhode Island no longer administers capital punishment for any crime, this section was amended in 1984 as follows: All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life or for offenses involving the use or threat of a use of a dangerous weapon by one already convicted of such an offense punishable by imprisonment for life, when the proof of guilt is evident or the presumption great. Nothing in this section shall be construed to confer a right to bail, pending appeal of a conviction. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety shall require it; nor ever without the authority of the general assembly. R.I. Const. of 1843 amend. XLIV, approved by a vote of 200,556 to 101,857 on November 5, 1984.

The 1986 Constitutional Convention approved Resolution 86–00153B, which added the words “already convicted” and “or for an offense involving the unlawful sale, distribution or delivery of any controlled substance punishable by imprisonment for ten years or more.” The courts have stated that two conditions

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must be met before an accused may be denied bail prior to trail. The first condition is that the accused be charged with an offense for which bail may be denied. Fountaine v. Mullen, 366 A.2d 1138, 1139–40 (R.I. 1976). The second condition is that “the proof of guilt is evident or the presumption great.” Id. at 1140. The 1986 amendment added a third category of offense that would satisfy the first condition. The intent of the convention’s Committee on the Judicial Branch in passing this resolution was that (1) drugs and drug dealers in particular are a menace to society, and that (2) the police and the judiciary need more effective tools in the effort to combat this problem. To allay the fears of those concerned with the erosion of the rights of the accused, the committee cited language “when the proof of guilt is evident or the presumption great,” already existing in this section. It also stated that the discretionary rather than mandatory denial of bail would allow judges to use their powers to incarcerate major dealers rather than all accused of drug-related offenses punishable by a sentence of 10 years or more. This resolution, presented as Ballot Question 12 on November 4, 1986, was approved by a vote of 177,977 (64.3 percent to 96,896 (35.7 percent). Because the manufacture and possession with intent to manufacture, sell, distribute, or deliver were not among the offenses listed in the 1986 revision, the section was again amended in 1988 to include those offenses, creating the section that appears today. Over 40 states have similar provisions in their constitutions. Taglianetti v. Fontaine, 253 A.2d 609, 610 (R.I. 1969) (citing Constitutions of the United States, vols. 1 and 2, Columbia University [ed. 1962]). There is no right of bail in the United States Constitution; there is only the right to not be burdened with excessive bail should bail be granted. U.S. Const. Amend. VIII. The sentence concerning habeas corpus is identical to the habeas corpus clause in the United States Constitution, except that the language concerning the authority of the General Assembly has been added. U.S. Const. Art. I, § 9, cl. 2. The cases requiring an interpretation of this section have dealt mostly with bail and seldom with habeas corpus, at least not without relating that privilege to bail. Before the addition of the clause stating that the constitutional right to bail does not apply to postconviction situations, the court had held as much in Quattrochi v. Langlois, 219 A.2d 570, 572 (R.I. 1966). In Taglianetti, 253 A.2d at 611, the court stated that “all offenses, including [those] which call for a punishment of life in prison, are bailable as a matter of right.” This right is not absolute, however, and can be conditioned on the defendant promising to appear and the defendant behaving himself or herself in accordance with the law while out on bail. Mello v. Superior Court, 370 A.2d 1262, 1264–1265 (R.I. 1977). A violation of either requirement would give the trial court the right to revoke bail. Id. at 1264–65. In a bail revocation hearing, the accused is entitled to the same rights as in a bail hearing. Id. at 1266. In addition, in light of the fact that the goal of bail is to provide assurance that the accused will appear at trial, a court may require the accused to furnish additional bail to remain free pending trial, based upon a change in circumstances, even if that change falls short of violating a bail condition. Ex parte Mariano, 84 A. 1086, 1087 (R.I. 1912).

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Also, bail may be available, but not as a matter of constitutional right, for those accused of an offense that falls within the three categories of offenses mentioned in this section “when the proof of guilt is evident or the presumption great.” Taglianetti, 253 A.2d at 611. This phrase has been interpreted to mean that “at a pretrial bail hearing, [the] judge shall determine whether the facts adduced by the state, viewed in a light most favorable to the state (i.e., notwithstanding contradiction of them by defense proof), are legally sufficient to sustain a verdict of guilty.” Fountaine, 366 A.2d at 1140–42. This standard is greater than probable cause but does not require proof beyond a reasonable doubt. Id. at 1141–42. The court, however, is to look at what evidence would be available to the trier of fact and not to any inadmissible evidence, thus determining whether the admissible evidence supports “legal guilt” instead of using all gathered evidence to determine “factual guilt.” Massey v. Mullen, 366 A.2d 1144, 1149 (R.I. 1976) (holding that a confession obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) could not be used against a defendant at a bail hearing). But see Bridges v. Superior Court, 396 A.2d 97, 101 (R.I. 1978) (holding that illegally obtained evidence can be used at a bail revocation proceeding, as long it is factually reliable). The fact that an accused has been indicted is also irrelevant to determine his or her guilt as far as a bail hearing is concerned. Taglianetti, 253 A.2d at 611–12. Furthermore, when punishment for an offense determines how this section is to be applied to an accused, a court is not to determine what the likely punishment will be if the accused were found guilty, but only whether the possibility exists that the accused could be punished by life imprisonment or 10 or more years of imprisonment if convicted of one of the enumerated drug offenses. Fountaine, 366 A.2d at 1140. Nonetheless, even if the evidence in the case makes the proof of guilt evident or the presumption great, an accused should be afforded a hearing to determine whether he should still be granted bail as a matter of the trial court’s discretion. DiMasi v. Mullen, 366 A.2d 1149, 1150 (R.I. 1976). In Ramsdell v. Langlois, 217 A.2d 83, 87 (R.I. 1966), the court held that an accused murderer, though not constitutionally guaranteed the right to bail, was given that right through a statute and could not be judged to have waived that right because of his dilatory tactics. Presumably this right also applies to those guaranteed bail under this section. Conversely, in Morris v. D’Amario, 416 A.2d 137, 139–140 (R.I. 1980), the court ruled that a minor held in custody of the state pending delinquency proceedings was not entitled to bail, because he was not considered to be “imprisoned” for purposes of the section. Perhaps the most significant modern abuse of the bail process pertained not to an accused person but to mere material witnesses. In 1958–1959 two migrant workers on a West Kingston farm were held as material witnesses at the Adult Correctional Institution for 158 days because they could not post bail. The statute ordering material witnesses to comply with a court order requiring recognizance or be committed to prison has since been repealed. Milton Stanzler and Ralph Semonoff, two of the state’s leading civil rights lawyers of that era, finally secured the release of General Quince and Titus Ward via habeas corpus, signed by Chief Justice Francis P. Condon at his Pawtucket residence. In 1962 the Rhode

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Island Supreme Court ordered the superior court to enter judgment in the amount of $3,750.00 for each of the workers. See Quince v. State, 94 R.I. 200 (1962); Quince v. Langlois, 88 R.I. 438 (1959); and Stanzler’s recently published recollections of the incident in Rhode Island Bar Journal 54 (Mar.–Apr. 2006): 11–13. One final note. In Clarke v. Moran, 451 A.2d 577, 577–78 (R.I. 1982), the court declared that a defendant who was convicted of second-degree murder (a crime punishable by life imprisonment) and sentenced to 25 years’ imprisonment, and who subsequently had his conviction thrown out, was entitled to bail pending a retrial under this section. The court relied on North Carolina v. Pearce, 395 U.S. 711, 726 (1969), which held that in order for a trial court to impose a harsher sentence for the same crime on retrial, the court must base its reasons on identifiable conduct by the defendant that occurred after the original sentencing so as not to constitute a violation of the right against double jeopardy. U.S. Const. Amend. V. In Clarke, 451 A.2d at 578, the court held that because the trial court in that case could point to no such conduct, the defendant could be sentenced only to a maximum of 25 years’ imprisonment and thus was entitled to bail. Pearce was subsequently overturned, however, by Alabama v. Smith, 490 U.S. 794, 803 (1989). As a result, it is unclear what effect Smith has on this section or on the Rhode Island double jeopardy clause, though the court has said that the state’s double jeopardy clause is interpreted consistently with the Fifth Amendment to the United States Constitution. State v. One 1990 Chevrolet Corvette, 695 A.2d 502, 505 (R.I. 1997). SECTION 10. Rights of accused in criminal cases. In all criminal prosecutions, accused persons shall enjoy the right to a speedy and public trial, by an impartial jury; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against them, to have compulsory process for obtaining them in their favor, to have the assistance of counsel in their defense, and shall be at liberty to speak for themselves; nor shall they be deprived of life, liberty, or property, unless by the judgment of their peers, or the law of the land.

This provision is unchanged from the 1843 constitution, except that gender references were replaced with neutral language by the 1986 Constitutional Convention. The following provision in the Magna Carta is the genesis for Section 10: “No freemen shall be taken, or imprisoned, or disseized, or outlawed, or banished, or in any way destroyed; nor will we pass upon him, or send upon him, unless by legal judgment of his peers, or by the law of the land.” See Henry v. Cherry & Webb, 73 A. 97, 107 (1909). Additionally, Section 10 is quite similar to the Sixth Amendment of the federal Constitution, and it guarantees a criminal defendant the same rights as those in that amendment. See State v. Hartley, 656 A.2d 954, 958 (1995). Sections 7, 10, and 15 of Article I should be read together to determine the constitutional guaranties of one accused of a capital or infamous crime. See In re Opinion to Governor, 4 A.2d 487, 489 (1939).

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Section 10 and the Sixth Amendment guarantee a defendant the right to a jury trial with impartial and disinterested jurors. See State v. Berberian, 374 A.2d 778, 781 (1977). Hence, a jury must be composed of individuals who can comprehend and intellectually resolve the issue presented before it. See id. Additionally, a defendant does not have a constitutional right to have his jury trial reviewed by an appellate court. See State v. Hudson, 179 A. 130, 131 (1935). Nor are jury trials constitutionally mandated for juveniles or defendants charged with petty misdemeanors. See Morris v. D’Amario, 416 A.2d 137, 140 (R.I. 1980); In re McCloud, 293 A.2d 512, 515–16 (R.I. 1972). A defendant’s right to confront the witnesses against him or her, and to crossexamine them, which is guaranteed by the Sixth Amendment to the federal Constitution, is also protected under Section 10. See State v. Freeman, 473 A.2d 1149, 1153–54 (R.I. 1984). This right is used to test the truth and veracity of a witness’s testimony. See id. at 1153. Nevertheless, the right is not absolute and may be reasonably restricted to protect such things as confidential information. See State v. Parillo, 480 A.2d 1349, 1355 (R.I. 1984). When confrontation is not possible because the declarant is not available, the courts must determine, on a case-by-case analysis, whether the accused’s right of confrontation has been violated. State v. Pacheco, 763 A.2d 971, 977 (R.I. 2001). Id. “The focus of the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.’ ” Id. (quoting State v. Manocchio, 497 A.2d 1, 8 [R.I. 1985]). In Crawford v. Washington, 541 U.S. 36, 42 (2004), the United States Supreme Court dealt with the question of when a statement of an unavailable declarant could be admitted into evidence without violating a defendant’s rights under the federal Confrontation Clause. The court held that “testimonial” statements of persons absent from trial are admissible only when both (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant. Id. at 68. In doing so, the court overturned an earlier pronouncement in Ohio v. Roberts, 448 U.S. 56, 66 (1980), that the second prong of the test was whether the statement “bears adequate ‘indicia of reliability.’ ” The Crawford court found that although both tests were concerned with the reliability of such statements “[the clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61. The court declined to give a complete definition of “testimonial” but said that it applied to “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68. The court also said that it was up to the states to determine what nontestimonial hearsay is admissible in their courts. Id. In Davis v. Washington, 126 S.Ct. 2266, 2273–74 (U.S. 2006), the court gave some guidance as to when statements given in the course of police interrogations are considered testimonial. The court said Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation

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Thus, the court found that the recording of a 911 call in which the operator elicited the name of the defendant from the alleged victim of a domestic dispute was nontestimonial, but held to be testimonial a statement of an alleged victim of a different domestic dispute taken in the living room of a house where the dispute had allegedly just occurred while the defendant was in the kitchen. Id. at 2277–78. In State v. Feliciano, 901 A.2d 631, 641–42 (R.I. 2006), the Rhode Island Supreme Court in applying the Crawford-Davis interpretation of the Confrontation Clause, held that a decedent’s statement to a friend, in which the decedent purported to identify his attackers, was not testimonial. Earlier, in State v. Harris, 871 A.2d 341, 345–46 (R.I. 2005), the court held that a defendant loses the protection of the Confrontation Clause when he or she uses that evidence in cross examination. See also State v. DeWolfe, 402 A.2d 740, 744 n.5 (R.I. 1979) (holding that defendant loses Confrontation Clause protection when he or she uses such a statement in either cross examination or direct examination). The accused’s right to a public trial is violated when the trial court deliberately acts to keep interested spectators out of the courtroom. See State v. Torres, 844 A.2d 155, (R.I. 2004). For example, in Torres, the court vacated the defendant’s conviction and remanded his case based on the improper exclusion of the defendant’s sisters from the courtroom during jury selection. See id. Like the Sixth Amendment to the federal Constitution, Section 10 guarantees a defendant’s right to a speedy trial. See State v. Austin, 731 A.2d 678, 683 (R.I. 1999). Whether a defendant has received a speedy trial must be determined in accordance with the elements the United States Supreme Court established in Barker v. Wingo, 407 U.S. 514, 530 (1972). See State v. Long, 488 A.2d 427, 435 (1985). The courts use the following factors to determine whether there has been a violation of a defendant’s right to a speedy trial: “(1) Length of delay, (2) Reason for the delay, (3) Assertion of one’s Sixth Amendment right, (4) Prejudice to the accused.” See Barker, 407 U.S. at 530; State v. King, 313 A.2d 640, 641 (R.I. 1974). The Sixth Amendment to the federal Constitution guarantees a criminal defendant the right to counsel. See Parker v. Gladden, 385 U.S. 363, 364 (1995) (per curiam). This right is also protected by Section 10. See Hartley, 656 A.2d at 958. A defendant is entitled to have counsel at all critical stages of a criminal prosecution. See State v. Austin, 462 A.2d 359, 366 (R.I. 1983). There is no right to counsel, however, when a breathalyzer test is administered. See Dunn v. Petit, 388 A.2d 809, 812 (1978). Even if one could view a breathalyzer test as an evidence-gathering step in a potential criminal proceeding, it is not considered to be a critical stage in the criminal prosecution. See id. Additionally, Section 10 has been construed as requiring appointment of counsel for indigent defendants charged with misdemeanors that carry a potential prison sentence in excess of six months. See

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Advisory Opinion to the Governor (Appointed Counsel), 666 A.2d 813, 816 (R.I. 1995). One Rhode Island right-to-counsel case, State v. Burbine, 451 A.2d 22 (R.I. 1982), wended its way through the district and appeals court as Burbine v. Moran to its ultimate disposition by the United States Supreme Court in Moran v. Burbine, 475 U.S. 412 (1986). The case concerned a defendant convicted of first-degree murder who appealed that conviction, alleging violations by the Providence and Cranston police of his constitutional rights to remain silent and obtain counsel. Id. at 24. The Rhode Island Supreme Court, in a 3-to-2 ruling, held that (1) the police were not required to inform the defendant of a telephone call from the public defender regarding the defendant’s representation in order that his written and verbal waivers of his right to remain silent and his right to counsel might be knowing and intelligent, and (2) the finding of the trial justice that the defendant’s confessions were voluntary and made following his intelligent waiver of his rights was supported by ample evidence. Id. at 28, 30. Writing for the majority, Justice Joseph Weisberger held that the dual elements of custody plus interrogation must exist to trigger the necessity for Miranda admonitions, and that the principles of Miranda place the assertion of the right to remain silent and the right to counsel upon the accused, and not upon benign third parties, whether or not they happen to be attorneys. Id. at 27–28. On appeal to the U.S. District Court, Judge Bruce Selya upheld the Rhode Island ruling in Burbine v. Moran, 589 F. Supp. 1245, 1251–52 (D. R.I. 1984), but the First Circuit held for Burbine. Burbine v. Moran, 753 F.2d 178, 186 (1st Cir. 1985). The United States Supreme Court affirmed Weisberger’s initial ruling by a 6-to-3 margin. 475 U.S. at 421–22. Writing for the majority, Sandra Day O’Connor stated that the police are not required, as part of a suspect’s Miranda rights, to inform the suspect of an attorney’s efforts to reach him or to keep the suspect abreast of the status of his legal representation. Id. at 422. “Once it is determined that the suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the state’s intention to use his statements to secure a conviction,” said the Court, “the waiver is valid as a matter of law.” Id at 422–23. Section 10 also mandates that criminal defendants have the right to be present at all stages of the trial when their absence may affect the fairness of the proceedings. See State v. Holland, 430 A.2d 1263, 1267 (R.I. 1981). That right is waived, however, if the defendant voluntarily fails to attend the criminal proceedings against him or her. See id. The concluding phase in this section, “nor shall they be deprived of life, liberty, or property, unless by the judgment of their peers, or the law of the land,” merits comment concerning the words “deprived of life.” Article I, Section 9, of the 1843 constitution referred to “offenses punishable by death,” a phrase deleted by constitutional amendment in 1984. Since 1843 only one Rhode Islander had been executed. On February 14, 1845, John Gordon, an Irish immigrant, was hanged for the murder of prominent industrialist Amasa Sprague. The evidence against Gordon was circumstantial, and his

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trial was conducted against a backdrop of anti-Irish Catholic sentiment. The case has been called Rhode Island’s version of Sacco and Vanzetti. With Gordon’s execution a catalyst, in 1852 the legislature enacted a statute abolishing the death penalty, except for one who committed “murder while under the sentence of imprisonment for life.” In 1973 the General Assembly amended the death penalty statute (RIGL 11–23– 2) to provide that “every person who shall commit murder while serving a jail sentence in the Adult Correctional Institution or the Reformatory for Women shall be put to death by lethal gas.” The legislature passed this law during a nationwide epidemic of prison revolts, specifically in response to a series of disturbances at the ACI that culminated in the killing of a prison guard. On February 19, 1979, the Rhode Island Supreme Court struck down this lastremaining vestige of capital punishment, thus writing what may be the concluding chapter of a process that began locally with the antigallows movement of the 1830s. State v. Cline, 397 A.2d 1309, 1310 (R.I. 1979). In invalidating the death penalty, the state supreme court invoked the federal standard as articulated in Furman v. Georgia, 408 U.S. 238, 309–10 (1972) (Stewart, J., concurring) and its progeny to nullify the 1973 statute. See Woodson v. North Carolina, 428 U.S. 280, 303–04 (1976); Cline, 397 A.2d at 1310–11. In the court’s opinion, this law’s mandatory sentence “amounted to cruel and unusual punishment in violation of the Eighth Amendment by reason of its failure to provide for consideration of any mitigating factors” by the sentencing authority. Cline, 397 A.2d at 1311 and State v. Anthony, 121 RI 299 (1979). SECTION 11. Relief of debtors from prison. The person of a debtor, when there is not strong presumption of fraud, ought not to be continued in prison, after such person shall have delivered up property for the benefit of said person’s creditors, in such manner as shall be prescribed by law.

This section is unchanged from the 1843 constitution, except that gender references have been replaced by neutral language. Until 1843 Rhode Island’s debtors could be imprisoned. A statute providing that a person’s property cannot be taken away without a finding of insolvency or the debtor giving consent is consistent with this section. Merrill v. Bowler, 38 A. 114, 116 (R.I. 1897). The phrase “in such manner as may be prescribed by law,” the court ruled, “implies that laws may be enacted prescribing the mode and terms and conditions in and upon which a debtor shall convey his property for the benefit of his creditors.” Id. A levy on a delinquent taxpayer’s body did not violate this section because the statute imposing the levy provided for discharge from jail in due course of law. In re Delinquent Poll Tax, 44 A. 805 (R.I. 1899). Thus the law “does not conflict with Section 11 of Article I of the Constitution of Rhode Island, but specially provides for a discharge from jail in due course of law.” Id. Imprisonment for failing to pay wages within a statutorily required period does not violate this section. State v. Feist, 341 A.2d 725, 729 (R.I. 1975). The sanction

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of imprisonment was constitutional because the legislature’s intent was to deter harmful conduct and to promote the social and economic welfare of the public. Id. at 728–29. The legislature’s abandonment of a compensatory philosophy and its introduction of a punitive measure that involved criminalizing the act as a misdemeanor and imposing imprisonment as a deterrent were manifestations of this intent. Id. at 728–29. SECTION 12. Ex post facto laws—Laws impairing the obligation of contract. No ex post facto law, or law impairing the obligation of contracts, shall be passed.

This section is unchanged from the 1843 constitution. EX POST FACTO An ex post facto law is one that criminalizes behavior that was not criminal when the behavior occurred. “To meet the well-settled definition of [an ex post facto] law, a statute must not only retroact, but must retroact, by way of criminal punishment, upon that which was not a crime before its passage.” State v. Paul, 5 R.I. 185, 190 (1858). The ban on ex post facto laws, however, does not affect the legality of civil penalties. Town of West Warwick v. Local 1104, Int’l Ass’n of Firefighters, 745 A.2d 786, 788 (R.I. 2000) (per curiam) (upholding loss of a government job as a result of a felony conviction). The section “is only applicable to the rights of the accused in criminal prosecutions.” Creditors’ Serv. Corp. v. Cummings, 190 A. 2, 10 (R.I. 1937). See also Prata Undertaking Co. v. State Bd. of Embalming & Funeral Directing, 182 A. 808, 815–16 (R.I. 1936) (statute allowing revocation of funeral directing license was constitutional because the statute did not address criminal matters); Cummings v. Church, 145 A. 102, 104 (R.I. 1929) (statute requiring child support payments enforced against the parent of a child born before its enactment); Manning v. Bd. of Tax Comm’rs, 127 A. 865, 870–71 (R.I. 1925) (law imposing a tax on the exercise of a power of appointment not in violation because it did not address criminal matters). A statute does not constitute an ex post facto law when it “does not provide in any way for a substantive crime or its punishment and it grants [the] defendant no substantive right,” State v. Carmello, 116 A.2d 464, 467 (R.I. 1955). Section 12 does not preclude a statute that “makes criminal no act which was innocent when done nor … alter punishment after doing a criminal act, nor alter the rules of evidence.” Bd. of Purification of Waters v. Town of E. Providence, 133 A. 812, 814 (R.I. 1926) (statute providing for water purification board to discontinue practices dangerous to public health did not violate the section). Parole board procedural guidelines and determinations are not subject to Section 12. Skawanski v. State, 538 A.2d 1006, 1009–10 (R.I. 1988) (standards for reviewing parole applications are procedural guidelines, not substantive law); Lerner v. Gill, 463 A.2d 1352, 1359 (R.I. 1983) (parole board determination).

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Strictly remedial fees imposed upon probationers do not increase the punishment imposed for any crime and therefore do not violate the section. Taylor v. Rhode Island, 101 F.3d 780, 783–84 (1st Cir. 1996).

INTERFERENCE WITH CONTRACT To determine whether an impairment of a contract obligation has occurred, three issues should be addressed: first, whether the law in question “constitutes a substantial impairment” of a contract; second, whether the state shows “legitimate public purpose”; and third, whether “the legitimate public purpose [is] sufficient to justify the impairment.” In re Advisory Opinion to Governor, 593 A.2d 943, 948– 9 (R.I. 1991) (act giving depositors payment priority upon liquidation of certain financial institutions held to be constitutional). Contracts are deemed to have an implied condition allowing the state to terminate the contract at any time. Greenough v. People’s Sav. Bank, 94 A. 706, 709 (R.I. 1915) (although a statute affected a depositor-bank contract and ordered payment of certain bank deposits to the state’s general treasurer, it was upheld as constitutional). Similarly, under eminent domain law, contract rights may be taken without being impaired. Narragansett Elec. Lighting Co. v. Sabre, 146 A. 777, 784 (R.I. 1929) (utility was converted into a public corporation and shareholders were given just compensation). Further, when a statute is in force at the time a contract is made, the law “enters into the contract, modifying the obligation from the outset, and therefore cannot impair [the contract] by simply being enforced.” People’s Sav. Bank v. Tripp, 13 R.I. 621, 622 (1882). The bar on laws impairing the obligation of contracts does not prevent the repeal of appropriations that “have not been expended or otherwise pledged to a binding executory contract entered into by the agencies involved.” In re Opinion to Senate, 275 A.2d 256, 258 (R.I. 1971). A statute permitting recovery of debts does not violate Section 12 because it does not impair a party’s obligation. Lace v. Smith, 34 R.I. 1, 28 (1912). One statute providing for discharge of debt following complete payment does not impair a contract, but helps to fulfill it. Cross v. Brown, 33 A. 147, 152 (R.I. 1895). A statute providing for the release of debtors from prison is a “modification of the remedy and does not impair the obligation of the contract.” In re Penniman, 11 R.I. 333, 340 (1877); See also In re Nichols, 8 R.I. 50, 55 (1864). A newly enacted remedial statute may be applied to pending actions when it does not violate vested rights or impair the obligation of contracts. Grinnell v. Marine Guano & Oil Co., 13 R.I. 135, 136 (1880) (per curiam). Laws applied to future remedies for previous breaches of contracts are prospective and therefore do not violate Section 12. Stokes v. Rodman, 5 R.I. 405, 408–9 (1858). Section 12 does not bar legislative interference with the duties of a school district because the duties are obligatory and not contractual. In re Sch. Comm., 58 A. 628 (R.I. 1904).

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SECTION 13. Self-incrimination. No person in a court of common law shall be compelled to give self-criminating evidence.

This section is unchanged from the constitution of 1843, except for the use of gender-neutral language by the 1986 Constitutional Convention. SCOPE OF APPLICATION A defendant may refuse to provide testimony “which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws” if, in the opinion of the judge, the testimony “will reasonably have such a tendency, or whether it will furnish an element or link in the chain of evidence necessary to convict him.” Ex parte Werner, 46 R.I. 1, 4–5 (1924). The text of this section differs from the text of the Fifth Amendment to the United States Constitution. The section precludes compelling a person in a court of common law “to give self-criminating evidence,” whereas the Fifth Amendment precludes compelling a person to be a witness against himself. Arguably that textual difference is significant, suggesting that this section provides broader protection to individuals than its federal counterpart. To date, however, the Rhode Island Supreme Court has not interpreted this section to provide defendants with broader rights against being compelled to provide the government with selfincriminating evidence. Thus, for example, the court has ruled that compelling a defendant to stand for identification during a criminal trial does not violate the defendant’s right against self-incrimination. State v. De Cesare, 26 A.2d 237, 238 (R.I. 1942). And not surprisingly, the defendant’s submission to a voluntary medical examination for the purpose of determining the defendant’s alleged intoxication as an element of an alleged charge against him, and the later admission of its results into evidence without objection, did not violate the defendant’s right against self-incrimination. State v. Chavis, 83 R.I. 360, 363–65 (1955). A defendant’s right against self-incrimination also is not violated when the defendant must choose between silence and volunteering information in his favor. Flint v. Mullen, 499 F.2d 100, 103 (1st Cir. 1974) (per curiam). Further, a defendant’s right is not violated when the police conduct a search with the consent of the defendant. State v. Lorenzo, 72 R.I. 175, 186 (1946). And this “section was not intended to prohibit the granting of a motion made by the state that the jury merely take a view of the accused’s premises where he is alleged to have committed the offense charged.” State v. Smith, 70 R.I. 500, 506–7 (1945). In a civil proceeding, a defendant cannot contend that requiring him to testify to rebut a presumption of a violation infringes upon his right against self-crimination. Cesaroni v. O’Dowd, 177 A.2d 777, 778 (R.I. 1962) (petitioner found to have violated prohibition against selling liquor to minors). A person who is a party in a civil trial may refuse to testify, but only if, during the course of questioning, the

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party’s answer would be self-incriminating. Turgeon v. Turgeon, 164 A.2d 699, 701 (R.I. 1960). A statute requiring drivers to report car accidents did not violate Section 13 because the court did “not perceive that the required statement calls for information so detailed as to suggest, let alone admit, that the collision was the result of conduct amounting to a misdemeanor.” State v. Smyth, 397 A.2d 497, 500 (R.I. 1979) (quoting State v. Lemme, 244 A.2d 585, 590 [R.I. 1968]). “[A]n inference may be drawn against a party in a civil case who declines to answer questions or to testify in a civil case,” but such an inference alone does not necessitate a default judgment against the declining party. Pulawski v. Pulawski, 463 A.2d 151, 156-7 (R.I. 1983). GOVERNMENT RECORDS A subpoena demanding production of government records does not violate a defendant’s right against self-incrimination because the right “shall be construed as coextensive with the privilege against self-incrimination contained in the Fifth Amendment to the Constitution of the United States as construed in Braswell v. United States, 487 U.S. 99, 109-12 (1988).” Rhode Island Grand Jury v. Doe, 641 A.2d 1295, (R.I. 1994). The Braswell Court held that a custodian of corporate or entity records holds the records in a representative capacity, and, therefore, has no personal right against self-incrimination that would allow the defendant to avoid producing the entity’s records. 487 U.S. at 109–12. INVOCATION OF RIGHT A request to speak with one’s mother and aunt is not an invocation of the right to remain silent, nor is a request to speak with one’s probation officer inherently an invocation of the right to remain silent. State v. Benton, 413 A.2d 104, 110 (R.I. 1980). WAIVER The state has the burden of showing by clear and convincing evidence that a defendant voluntarily, knowingly, and intelligently waived this right. State v. Benton, 413 A.2d 104 (R.I. 1980). The court must apply a totality of the circumstances test when determining whether a waiver of the right to remain silent is valid. Id. at 109 n.1. When cross-examining a defendant who has voluntarily testified on his own behalf, the prosecution has as much latitude as it would with any other witness and may impeach the defendant with prior convictions. State v. Wallace, 428 A.2d 1070, 1072 (R.I. 1981). SILENCE OF THE DEFENDANT The rule forbidding comment on a defendant’s silence after receiving a Miranda warning does not apply “when a defendant’s silence is in response to questions

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from a person who is not a police officer or otherwise acting in an official law enforcement capacity.” State v. Martinez, 651 A.2d 1189, 1194 (R.I. 1994). EVIDENCE AND PRESUMPTIONS For the in-court comment of a judge or prosecutor to violate the rule against making adverse statements concerning a defendant’s silence, “it must first appear that the language used in the comment manifestly intended or was of such a character that a jury would naturally and necessarily construe it to amount to a comment on the failure of the accused to testify.” State v. Fontaine, 323 A.2d 571, 574–75 (R.I. 1974). Statements are inadmissible when obtained by an undercover agent in a defendant’s cell after the defendant requests a lawyer but before the lawyer is provided. State v. Travis, 360 A.2d 548, 551 (R.I. 1976). There is “no significant difference” between a uniformed police officer’s continuing questioning and an undercover agent’s presence in the defendant’s cell because there is no knowing and intelligent waiver of the defendant’s rights. Id. The state must show by clear and convincing evidence that it obtained statements in a constitutional manner before the jury may determine beyond “any reasonable doubt that inculpatory statements were not obtained in violation of the defendant’s constitutional guarantees.” Benton, 413 A.2d at 113. Further, in accordance with the United States Supreme Court’s interpretation of the Fifth Amendment, a handwriting sample is an identifying trait not protected by the right against self-incrimination. State v. Bertram, 591 A.2d 14, 22 (R.I. 1991). COMMENT OF COUNSEL That a prosecutor’s “remarks might have been construed as a reference to defendant’s failure to testify does not necessarily call for reversal.” State v. Andrews, 390 A.2d 926, 929-30 (R.I. 1991). The remarks should be considered “in light of their attendant circumstances,” rather than as printed in a transcript. Id. at 929. Furthermore, a prosecutor may not comment on a defendant’s failure to call corroborating witnesses. State v. Taylor, 425 A.2d 1231, 1235-36 (R.I. 1981). “[T]he cautionary [jury] instruction must (1) identify the prosecutor’s conduct as improper, (2) unequivocally indicate that the jury must disregard it, and (3) unequivocally indicate that since the defendant has no duty to present witnesses or any other evidence, his failure to do so cannot be construed as an admission that the evidence, if produced, would have been adverse.” Id. at 1235. ASSISTANCE OF COUNSEL “Non-custodial interrogation does not violate the [Fifth Amendment] ruling in Miranda,” and therefore it does not violate the state constitutional protections of Article I, Section 13. State v. Ryan, 321 A.2d 92, 95 (R.I. 1974).

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VOLUNTARINESS When the state does not falsely induce self-incriminating statements, the statements are voluntary. State v. Malone, 568 A.2 1378, 1381–82 (R.I. 1990). “A confession obtained by direct or implied promises or improper influence is involuntary, and the state bears the burden of proving by clear and convincing evidence that the confession is voluntary.” State v. Griffith, 612 A.2d 21, 25 (R.I. 1992) (citing State v. Amado 424 A.2d 1057, 1062 [R.I. 1981]). Voluntary confessions are “the product of [the defendant’s] free and rational choice [rather than] the result of coercion that had overcome the defendant’s will at the time he confessed.” Griffith, 612 A.2 at 25 (quoting Amado, 424 A.2d at 1062). SECTION 14. Presumption of innocence—Securing accused persons. Every person being presumed innocent, until pronounced guilty by the law, no act of severity which is not necessary to secure an accused person shall be permitted.

This section is unchanged from the constitution of 1843, except for the use of gender neutral language by the 1986 convention. There is no similar text in the United States Constitution. The presumption of innocence in Section 14 applies only to defendants who are actually facing criminal charges; it does not apply to defendants in civil proceedings. Cesaroni v. O’Dowd, 177 A.2d 777, 778 (R.I. 1962). PRESUMPTION OF INNOCENCE Many of the cases in which criminal defendants have brought constitutional challenges under this section concerned laws and proceedings that characterize certain matters as prima facie evidence of the crime in question. The Rhode Island Supreme Court has reached different results in such cases, depending on the situation. In State v. Papa, 80 A. 12, 16 (R.I. 1911), the court overturned the defendant’s conviction for assault because of an erroneous jury instruction, to the effect that evidence of the defendant’s flight established a prima facie case of guilt. In State v. Beswick, 13 R.I. 211, 213 n.1 (1881), the court considered a statute which barred the sale of alcohol. It considered evidence of the bad reputation of the defendant’s premises, the bad reputation of those who frequented the defendant’s place, and the finding of items there that typically belong to places that sell alcohol. Id. at 216. This evidence was used to establish a prima facie case against the defendant. Id. The court held that such a law deprived the defendant of his right to be presumed innocent until proven guilty. Id. at 217. Conversely, in State v. Higgins, 13 R.I. 330, 331–32 (1881), the court upheld a law which stated that evidence of the sale or possession of alcohol could create a prima facie case that such sale or possession was illegal. Also, in State v. Costakos, 169 A.2d 383, 386 (R.I. 1961), the court upheld a law that allowed evidence of a person driving faster than the speed limit to constitute a prima facie case that the person was driving at an unreasonable speed.

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The court also has examined other laws that shift burdens from the government to the defendant, and it has reached different results in these situations as well. In Higgins, 13 R.I. at 331–32, the court upheld a law that prohibited the unlicensed sale of alcohol and that required defendants who assert the defense that they possessed such licenses to produce the licenses. Such a law, the court ruled, did not deprive the defendants of their right to be presumed innocent. Id. at 332. In State v. Zorillo, 565 A.2d 1259, 1261 (R.I. 1989), however, the court invalidated a law that required a defendant, when the state so requested, to prove by clear and convincing evidence that the money the defendant used to post bail came from a legitimate source. The elements of an offense have also been challenged under this provision. In State v. Smyth, 14 R.I. 100, 101 (1883), the court held that a criminal statute can enumerate factors under which it is necessary to find someone guilty without running afoul of the innocence presumption. ACTS OF SEVERITY Many of the cases that have challenged laws or state action as unnecessary acts of severity have had to do with defendants’ right to bail. In Taglianetti v. Fontaine, 253 A.2d 609, 611 (R.I. 1969), the court held that all offenses, even those punishable by life imprisonment, are bailable as matter of right. The court went on to state, however, that the right was limited in this last type of offense if there was evident proof of guilt or the presumption for such was great. Id. In Zorillo, 565 A.2d at 1260–61, the state bore the burden to show why denial of bail was necessary. In State v. Wax, 116 A.2d 468, 473 (R.I. 1955), the court brushed aside a constitutional challenge brought by defendants who were kept in jail overnight and denied them a special arraignment, despite their ability to post bail. There have been other times when the court has been asked to determine the scope of necessary acts of severity, but the court has usually deferred to the other branches in defining the scope of such necessary acts. In State v. Kilday, 155 A.2d 336, 338 (R.I. 1959), the court found no constitutional problem when a defendant, who had previously been arrested for speeding, went to a police station at 2:15 p.m. to assist the police in investigating and was detained until a 9:00 a.m. arraignment the following morning. In In re Liquors of McSoley, 10 A. 659, 661 (R.I. 1887) (per curiam), overruled on other grounds by State v. Holliday, 280 A.2d 333, 339 n.2 (R.I. 1971), the court upheld a law which provided that a defendant convicted of keeping alcohol for illegal sale was required to provide a recognizance of $300 before filing an appeal. The court reasoned that the main test involved for the requirement that recognizance be given prior to the filing of an appeal was one of reasonableness in relation to the offense, and that such requirements were valid as a way of preventing abuse of the appellate process. McSoley, 15 R.I. at 611. Holliday was later questioned by a majority of the justices in Advisory Opinion to the Governor, 666 A.2d 813, 816–18 (R.I. 1995), but Holliday has not been explicitly overruled.

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The Rhode Island Constitution and Commentary SECTION 15. Trial by jury. The right of trial by jury shall remain inviolate. In civil cases the general assembly may fix the size of the petit jury at less than twelve but not less than six.

The second sentence of this section was added to the 1843 constitution by Article of Amendment XLIII, entitled “Petit Jury,” adopted November 2, 1976, by a vote of 188,003 to 117,029 in reaction to In re Advisory Opinion to the Senate, 278 A.2d 852 (R.I. 1971), wherein the supreme court held that the right to trial by jury meant a jury consisting of 12 individuals. That opinion marked one of the few times that the Rhode Island Supreme Court employed an “independent and adequate state ground” to declare that a state constitutional protection extended beyond or differed from federal guarantees (see Article I, Section 24). Asked to rule on a proposed statutory reduction in size of the petit jury from 12 to 6, the court first analyzed the question under the Sixth and Seventh Amendments to the federal Constitution and found no violation in light of the recent decision in Williams v. Florida, 399 U.S. 78 (1970). The court, however, declared that the proposed 6person jury violated the provisions of the Rhode Island Constitution because the jury referred to in Section 15 of the 1843 constitution was intended historically to mean a panel of 12. The United States Constitution contains similar provisions that guarantee the right to a jury trial for criminal defendants and parties “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” U.S. Const. Amends. VI, VII. The right of a jury trial under the United States Constitution does not require unanimous verdicts in state criminal trials, but it does require that only a jury can find those facts that can increase the punishment in criminal cases when the defendant has opted for trial by jury. U.S. Const. Amends. VI, XIV; Ring v. Arizona, 536 U.S. 584 (2002); Apodaca v. Oregon, 406 U.S. 404 (1972). The Rhode Island Supreme Court has not yet taken up these questions. State law requires unanimity in all jury trials. RI R.C.P. Rule 48 (2005); RI Super. R. Crim. P. Rule 31 (2005). The Rhode Island Supreme Court has held that the right to a jury trial is not offended when the trial court imposed either an additur or an remittitur, whereas under the United States Constitution, only remittitur is allowed. Compare Dimick v. Schiedt, 293 U.S. 474 (1935) with O’Brien v. Waterman, 163 A.2d 31 (R.I. 1960). Rights to trial by jury under both constitutions extend only to criminal defendants that are facing the possibility of more than six months imprisonment. Duncan v. Louisiana, 391 U.S. 145 (1968); State v. Holliday, 280 A.2d 333 (R.I. 1971), questioned in part by Advisory Opinion to the Governor, 666 A.2d 813 (R.I. 1995).

SCOPE OF RIGHT “The constitution requires simply the conservation, not an extension of the right of jury trial.” Bishop v. Tripp, 8 A. 692 (R.I. 1887). The right to a jury trial under Section 15 preserves the right to jury trial in proceedings that were triable to a jury

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when the people adopted the 1843 constitution. Briggs Drive, Inc. v. Moorehead, 239 A.2d 186 (R.I. 1968). Section 15 does not create rights when none preexisted the adoption of the 1843 constitution. Id. The court has sought to limit the right to trial by jury to cases in which juries were available before 1843. Causes of action that did not exist before 1843 are subject to jury trials as a matter of constitutional right only if they fall within a category of causes that were triable to juries in 1842. Much of the jurisprudence under Section 15 has had the effect of restricting the right of jury trial to those causes that were triable to a jury in 1842. Egidio DiPardo & Sons v. Lauzon, 708 A.2d 165 (R.I. 1998) (holding that there is no right to trial by jury in actions that are considered to be rooted in “equity” instead of “law,” and that when both types of claims are before court, a jury must decide on the legal claims before the court passes judgment on the equitable claims); National Velour Corp. v. Durfee, 637 A.2d 375 (R.I. 1994) (holding that the legislature has the right to authorize administrative agencies to enforce “public rights,” such as environmental protection, and that the right to a jury trial is only concerned with “private rights”); Aptt v. City of Warwick Bldg. Dep’t., 463 A.2d 1377 (R.I. 1983) (denying right to trial by jury for zoning violations because the right is limited to offenses that are “criminal in nature”); In re McCloud, 293 A.2d 512 (R.I. 1972) (holding that juveniles are not entitled to jury trials to determine whether or not they are delinquents as charged); Gunn v. Union R. Co., 62 A. 118 (R.I. 1905) (holding that the trial court’s power to enter a directed verdict does not violate the plaintiff ’s right to a jury trial); Dyson v. Rhode Island Co., 57 A. 771 (R.I. 1904) (holding that defendants in civil actions who have defaulted have no right to have damages assessed by a jury); State Bd. of Health v. Roy, 48 A. 802 (R.I. 1901) (holding that proceedings by an administrative agency to revoke a doctor’s license to practice medicine did not violate the constitution); Merrill v. Bowler, 38 A. 114 (R.I. 1897) (holding that cases regarding trusts are not subject to jury trials); In re Condemnation of Certain Land for New State House, 33 A. 448 (R.I. 1895) (holding that the state is not entitled to a jury trial in an action to condemn a parcel of land, even though the landowner does have such a right); Bishop, 8 A. 692 (R.I. 1887) (holding that actions to overturn tax assessments are not subject to jury trials); Mathews v. Tripp, 12 R.I. 256 (1879) (holding that the repeal of a law which, in effect, entitled parties in certain civil actions to two trials did not violate the constitution when the parties still had the right to one jury trial); Littlefield v. Peckham, 1 R.I. 500 (1851) (holding that a law which permitted appeals from convictions for selling alcohol without a license only after payment of court costs was constitutional, as a near identical law existed before 1843). Although the proper scope of Section 15 coverage has been the subject of most of the disputes, other limitations also have been placed on this provision. In Dyer v. Keefe, 198 A.2d 159 (R.I. 1964), the court stated that although the right is beyond the power of the legislature to change, reasonable conditions may be placed on its exercise. In Atlantic Refining Co. v. Director of Public Works, 200 A.2d 580 (R.I. 1964), the court stated that the right to a jury trial was subject to a waiver, even by parties who are guaranteed the right. In Mandeville, Brooks & Chaffee v. Fritz, 149 A. 859 (R.I. 1930), the court upheld a law that deemed both parties in a

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civil action to have waived their right to trial by jury if neither filed a written claim for a jury prior to the assignment day of the case. In Advisory Opinion to the Governor, 437 A.2d 542 (R.I. 1981), the court held that the right to jury trial does not encompass the right to be tried in the vicinage of the scene of the alleged crime. In State v. Costakos, 169 A.2d 383 (R.I. 1961), the court upheld a law providing that evidence of a defendant driving over the speed limit constituted a prima facie case that the defendant was guilty of driving unreasonably. In Morrell v. Lalonde, 114 A. 178 (R.I. 1921), the court upheld a law that made insurance companies directly liable to plaintiffs who successfully sued for injuries suffered because of acts of their insureds. In State v. Flynn, 11 A. 170 (R.I. 1887), the court upheld a law stating that people convicted of public drunkenness three times were subject to greater penalties because defendants had the right to a jury trial for each count of drunkenness. For the most part, the court has confined the right to a jury trial to those causes for which a jury could be invoked in 1842, the year the constitution of 1843 was drafted and ratified. But the court also has extended the right to areas in which legal history indicates that the right has always existed or that it falls within a category of suits where the right has always existed. In FUD’s, Inc. v. State, 727 A.2d 692 (R.I. 1999), for example, the court held that with respect to claims alleging violations of antidiscrimination laws, the parties were entitled to have them determined by a jury. The court reasoned that these claims most resembled common-law actions to enforce “private rights;” thus they were not exempt from Section 15, because they were not just a matter of “public rights.” Id. In Bendick v. Cambio, 558 A.2d 941 (R.I. 1989), the court held that periodic fines assessed by the Rhode Island Department of Environmental Management were analogous to common-law actions to collect debts and therefore fell under the purview of Section 15. In State v. Vinagro, 433 A.2d 945 (R.I. 1981), the court held that those accused of certain offenses that are only punishable by fines of up to $500 were nonetheless entitled to a trial by jury because similar offenses were triable by jury in 1842. In In re Liquors of McSoley, 10 A. 659 (R.I. 1887) (per curiam), overruled on other grounds by State v. Holliday, 280 A.2d 333 (R.I. 1971), questioned by Advisory Opinion to the Governor, 666 A.2d 813 (R.I. 1995), the court held that payment of a recognizance before a jury trial could be convened violated Section 15. In Francis v. Baker, 11 R.I. 103 (1877), the court invalidated a law which said that in actions of assumpsit, debt, or covenant or other actions involving accounts, an auditor’s report constituted a prima facie case for all matters embraced in the report. Unlike the prima facie case in Costakos, 169 A.2d at 386, the prima facie case at issue in Francis was found to be nearly impossible to rebut. The foregoing analysis indicates that the Rhode Island Supreme Court has consistently sought to limit the right of trial by jury to crimes and claims that were triable by a jury in 1842. Any expansion of the right has been only to claims that probably would have been triable to a jury had they existed in 1842. The court has also allowed the General Assembly considerable latitude in placing reasonable conditions on the right to a jury trial.

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SECTION 16. Compensation for taking private property for public use—Regulation of fishery rights and shore privileges not a public taking. Private property shall not be taken for public uses, without just compensation. The powers of the state and of its municipalities to regulate and control the use of land and waters in the furtherance of the preservation, regeneration, and restoration of the natural environment, and in furtherance of the protection of the rights of the people to enjoy and freely exercise the rights of fishery and the privileges of the shore, as those rights and duties are set forth in Section 17, shall be an exercise of the police powers of the state, shall be liberally construed, and shall not be deemed to be a public use of private property.

The first sentence of this section constituted the entire text of the corresponding section in the 1843 constitution. The language in the Takings Clause of the Fifth Amendment of the United States Constitution is nearly identical: “nor shall private property be taken for public use, without just compensation.” The discussion of case law that follows addresses the first sentence of Section 16 and certain aspects of the emerging law of regulatory takings. The remaining text concerns state powers to protect the environment in concert with Section 17 of Article I and will be discussed thereunder. The expansive second sentence of Section 16 was added to the constitution by the 1986 Constitutional Convention. It had its origins in Resolution 86–00004A, which was given to the Committee on the Executive Branch and Independent Agencies for study and drafting. George Lincoln Sisson, a delegate from Bristol and a member of the Coastal Resources Management Council, was the convention’s principal advocate for the people’s right to the shore. He led the successful effort to amend Sections 16 and 17 to allow public rights of passage and to strengthen state power to preserve our coastal environment.

TAKINGS When the state or a local government institutes proceedings to condemn land, such action is unquestionably a taking. But sometimes state and local governments pass laws or take other actions that, as a practical matter, accomplish a taking even though that was not their express intention. When this occurs, the owner whose property has been taken is still entitled to just compensation. As with other government actions facing constitutional challenges, the Rhode Island Supreme Court has been reluctant to require the government to compensate those claiming that their rights under Section 16 have been violated. To sue under the Takings Clause, one must have first exhausted all administrative remedies, such as appealing to or applying for a variance with the local zoning board. Annicelli v. Town of South Kingstown, 463 A.2d 133, 137 (R.I. 1983). All types of property and property interests, however—not just real estate and the interests therein—fall under the protective aegis of the Takings Clause. See Boston & Providence Railroad Corp. v. New York & New England Railroad Co., 13 R.I. 260 (1881).

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When government deprives an owner of all beneficial use or of substantial beneficial use of his or her property, a taking has occurred, even if the government has not physically entered the property. Annicelli, 463 A.2d at 139. A mere depreciation in the property’s value, however, does not constitute a taking, absent a physical taking of property or damage to a legally cognizable interest in property. E & J, Inc. v. Redevelopment Agency of Woonsocket, 405 A.2d 1187, 1191 (R.I. 1979). Importantly, a property owner has no vested interest in maximizing the value of his or her property. Annicelli, 463 A.2d at 140. Also, reasonable regulations on property use for the purpose of promoting health, safety, morals, and the public welfare are valid exercises of the police power that do not amount to takings. Horton v. Old Colony Bill Posting Co., 90 A. 822, 837 (R.I. 1914). In Newman v. Mayor of Newport, 57 A.2d 173, 177 (1948), the court, in dicta, declared that the right of ingress and egress onto one’s property could not be destroyed or materially altered without just compensation, but that such a right is subject to reasonable regulation. Whether a taking occurs turns on three factors: (1) the character of the government’s action, (2) the economic impact of the regulation on the claimant, and (3) the extent to which the regulation has interfered with distinct investment-backed expectations. Kayrouz v. Rhode Island Depositors Economic Protection Corp. ex rel. Sundlun, 593 A.2d 943, 949 (R.I. 1991) (discussing Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224–225 [1986]). The precise moment that a taking occurs can often be a factor in the valuation of the property or interest acquired. In a case involving a taking in Scituate by the Providence Public Building Authority on behalf of the Providence Water Supply Board, the supreme court overruled a superior court finding that the taking occurred at the time a statute was passed authorizing the acquisition. “Without a doubt,” said the court, “a taking was not intended to occur upon the enactment of a statute but rather was to occur only upon the vesting of title.” Thus, in accordance with the prevailing views, absent a physical intrusion, title to the Joslin Farm vested in the PPBA on the date it complied with the requirements of R.I.G.L. 45–50– 13(a), filed the resolution of taking in the Scituate land records, and deposited half the amount of the estimated sum of just compensation for the property (the Joslin Farm) with the court. Gorham et al v. Public Building Authority of the City of Providence, 612 A.2d 708 (1992). It is not often that the court will declare that government action has given rise to a taking when that was not the government’s intent. Harris v. Town of Lincoln, 668 A.2d 321 (R.I. 1995) (holding no taking occurred when the town built a sewage plant nearby that generated great odors, sounds, and vibrations); Kayrouz, 593 A.2d 943 (upholding ability of government to alter, for public purposes, rights under a contract that do not create rights in specific property); E & J, Inc. v. Redevelopment Agency, 405 A.2d 1187 (R.I. 1979) (not requiring compensation when land nearby plaintiff ’s restaurant was condemned and traffic had to be diverted as a result, which led to plaintiff having to close his restaurant because of loss of business); State v. A. Capuano Bros., Inc., 384 A.2d 610 (R.I. 1978) (upholding a law requiring wetland owners to obtain permits before altering their property); J.M. Mills, Inc. v. Murphy, 352 A.2d 661, 670–71 (R.I. 1976) (upholding law that allowed

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director of natural resources to deny permits to alter wetlands if the director determined denial to be in the public interest but allowed owner to proceed nonetheless to seek just compensation); Goldstein v. Zoning Board of Review, 227 A.2d 195 (R.I. 1967) (upholding denial of variance to plaintiff that would have allowed him to build a gas station on his lot); Garcia v. Falkenholm, 198 A.2d 660 (R.I. 1964) (upholding a higher rate of assessment by a town for sewer construction on the first 75 feet of frontage of an abutting property); General Finance Corp. v. Archetto, 176 A.2d 73 (R.I. 1961) (declaring that tax exemptions on certain pieces of property but not on others do not constitute takings because deciding what property is subject to taxation is a legislative matter); State Airport Commission v. May, 152 A. 225 (R.I. 1930) (declaring that the taking of a property where a business is located does not result in a taking of the business); Board of Purification of Waters v. Town of East Providence, 133 A. 812 (R.I. 1926) (upholding zoning ordinance requiring plaintiff to establish a plan to prevent further water pollution); City of Providence v. Stephens, 133 A. 614 (R.I. 1926) (upholding a town ordinance regulating the location and use of buildings, structures, and land for trade, industry, residential, or other uses); Horton, 90 A. 822 (upholding a town ordinance regulating outdoor advertising); State ex rel. Egan v. McCrillis, 66 A. 301 (R.I. 1907) (upholding an ordinance requiring those whose property abuts streets or public places to remove snow from abutting sidewalk within certain period). There have been certain circumstances in which the court has been willing to find a regulatory taking, but such cases are few and far between. In Annicelli, 463 A.2d at 141, the court required compensation when a town zoned an owner’s property so that she could not build a dwelling on it, thus denying her any beneficial use of the property. In Tillotson v. City Council of City of Cranston, 200 A. 767, 768 (R.I. 1938), the court overturned a denial of a permit for the plaintiff to build a gas station on her lot because the city failed to show why it was denying such a permit. With respect to alleged takings, however, the court has accorded great deference to local governments and the other branches of the state government when they attempt to regulate the use of property. It will almost assuredly continue to do so. PUBLIC USE Under the Takings Clause, the government cannot take private property unless it does so for a public purpose. Narragansett Electric Lighting Co. v. Sabre, 146 A. 777, 782 (R.I. 1929). But what constitutes a public purpose has been controversial of late, as many business interests have sought to have governmental entities condemn private property and then transfer it to one or more businesses on the theory that economic development serves public purposes, such as enhanced tax revenues, jobs, housing, recreation, and other public benefits. Recently, in Kelo v. City of New London, Connecticut, 125 S.Ct. 2655, 2665 (U.S. 2005), a sharply divided United States Supreme Court held that economic development can indeed serve public purposes under the Fifth Amendment to the United States Constitution. This line of reasoning has actually been the law in

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Rhode Island for some time. Article of Amendment XXXIII to the 1843 state constitution, ratified in 1955 to facilitate urban redevelopment, stated as much. The same principle is embodied in Article VI, Section 18, of the present constitution. The section reads: The clearance, replanning, redevelopment, rehabilitation and improvement of blighted and substandard areas shall be a public use and purpose for which the power of eminent domain may be exercised, tax moneys and other public funds expended and public credit pledged. The general assembly may authorize cities, towns, or local redevelopment agencies to undertake and carry out projects approved by the local legislative body for such uses and purposes including the acquisition in such areas of such properties as the local legislative body may deem necessary or proper to effectuate any of the purposes of this article, although temporarily not required for such purposes, and the sale or other disposition of any such properties to private persons for private uses or to public bodies for public uses.

Although the property taken in Kelo was not blighted, it perhaps would have qualified as substandard because of its designation as an economically depressed area. Thus, it is not clear whether this section would allow non-blighted property that officials conclude can be put to better economic use to be taken for private development merely because it was deemed substandard by virtue of its current use. As with most areas of state constitutional law, the court has been extremely deferential to lawmakers in defining what constitutes a public use and purpose. Economic development serving public purposes is a very broad interpretation of public use. Thus most takings that do not stretch the term that far are likely to be permitted by the court. In City of Newport v. Newport Water Corp., 186 A. 843, 846 (R.I. 1937), the court stated that a legislative determination that a particular use is public is presumed to be valid. The court went on to state that property devoted to one public use may be taken and devoted to the same identical public use. Id. at 847. Absolute necessity is not required for the government to exercise eminent domain. O’Neill v. City of East Providence, 480 A.2d 1375, 1382 (R.I. 1984). All that is required is that the property taken is reasonably required for a public purpose. Id. Anything that satisfies a reasonable public demand for public facilities for travel, or for transmission of intelligence or commodities, and for which the general public under reasonable regulations will have a definite and fixed use independent of the will of the owner, is a public use. Narragansett Electric Lighting Co., 146 A. at 782. In City of Newport, 186 A. at 847, the court upheld a taking for the purpose of establishing a municipal water supply. In Narragansett Electric Lighting Co., 146 A. at 782, the court upheld the taking of stock from minority stockholders in a public utilities corporation to allow for a merger as serving a public purpose in that it would result in lower rates and better service to the public. Although corporate purposes and public purposes can be served together, something necessary for a corporate purpose may not be necessary for a public purpose. In In re Rhode Island Suburban Railway Co., 48 A. 591, 592 (R.I. 1901), the court, in

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a rare limitation on interpretation of public use, held that a railroad corporation could not take land rich in coal deposits. Although energy was necessary for the railroad to serve the public, the origin of that energy was not something the public had an interest in sufficient to justify the proposed taking. As long as a reasonable relation exists, however, between a taking and any public purpose, and the taking is specifically for a public use, the court will in all likelihood allow it. PUBLIC NUISANCE The state can raise the claim of public nuisance as a defense against a compensatory taking. “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 property.” Iafrate v. Ramsden, 96 R.I. 216, 221, 190 A.2d 473, 476 (R.I. 1963). “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.” Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 59 (R.I. 1980). See also Hydro-Manufacturing., Inc. v. Kayser-Roth Corp., 640 A.2d 950, 957 (R.I. 1994). Claims may also be brought on the basis of anticipatory nuisance. See Commerce Oil Refining Corp. v. Miner, 281 F.2d 465, 474–75 (1st Cir. 1960); Berberian v. Avery, 99 R.I. 77, 81–82, 205 A.2d 579, 582 (R.I. 1964); Seidner, Inc. v. Ralston Purina Co., 67 R.I. 436 24 A.2d 902 (R.I. 1942). Not frequently litigated in Rhode Island, anticipatory nuisance was discussed in greatest detail in the Seidner case. “It is well settled that a court of equity may enjoin a threatened or anticipated nuisance, public or private, where it clearly appears that a nuisance will necessarily result from the contemplated act or things which it is sought to enjoin.” Id. at 450, 909. The court requires that nuisance must be “proved by clear and convincing evidence that such damage will be practically certain to result.” Id. at 451, 909–10. See also Commerce Oil Refining Corp., 281 F.2d at 474–75; Berberian, 99 R.I. at 81–82, 205 A.2d at 582. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the United States Supreme Court observed that there can be no taking where a proposed use is prohibited ab initio by nuisance law. Id. at 1029. The Court also stated that a nuisance analysis requires a review of “the degree of harm to public lands and resources, or adjacent private property, posed by claimant’s proposed activities … the social value of the claimant’s activities and their suitability to the locality in question…. ” Id. at 1030–31. The Lucas Court left the nuisance determination to state law, but not before establishing public nuisance as a preclusive defense and bar to takings claims. STATUTE OF LIMITATIONS ON TAKINGS CLAIMS Takings claims can be barred if they are not asserted within the applicable statute of limitations. An interesting illustration of this principle arose in the case of

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Reitsma v. Pascoag Reservoir & Dam, LCC, 774 A.2d 826 (R.I. 2001). There, the court held that the state had acquired, on behalf of the public, not only a portion of a privately held lake bottom by adverse possession, but also, by prescriptive easement, the right to use a boat ramp that it had built on that lake bottom for the public to obtain access to the lake for boating, fishing, swimming, and for other recreational purposes. Reversing the trial court’s conclusion that the owners of record title had consented to the public’s use of the lake in question and that, therefore, the use was not adverse, the court ruled that “[o]ther than the owners’ silent acquiescence, no evidence of this permission existed and none was communicated to the state or to any user.” In ruling in favor of the state, the court relied heavily on its previous decision in Talbot v. Town of Little Compton, 52 R.I. 280, 160 A. 466 (1932) (holding that a municipality, on behalf of the public, could acquire ownership of property by adverse possession when it openly, notoriously, and uninterruptedly used an entire tract of beach property under a claim of right for a length of time in excess of the statutory period for obtaining title by adverse possession). On appeal, the owners of record title in Reitsma sought to prevent the state from acquiring private property by prescriptive use and by adverse possession without the state invoking its eminent domain powers and without the state paying the previous owners the just compensation required by both federal and state constitutions for such takings of private property. Noting in passing that the owners of record title had voluntarily dismissed their inverse condemnation claim without prejudice, the court concluded that any such taking claims would have lapsed in any event because of the owners’ failure to initiate a timely action asserting them and because of their failure to otherwise interpose a timely objection to the state’s conduct—either during the prescriptive 10-year period or during any potentially applicable period of limitations thereafter. Without deciding when the takings claim accrued or what the applicable statute of limitations would be for such claims, the court held that the plaintiffs in the Reitsma case were barred from asserting such claims under any statute of limitations that could possibly apply, even if, arguendo, the claims did not begin to accrue until the prescriptive period in question had ended. Thus, Reitsma stands for the proposition that the state can acquire private property on behalf of the public through adverse possession or by a prescriptive easement established by adverse use by the public or by the government over the requisite 10-year period. And even if such a taking of private property might require just compensation (a point the court did not decide), the court held that such claims must be asserted in a timely manner within the applicable statute of limitations, else they will be forever barred, as they were in Reitsma. JUST COMPENSATION When a taking has occurred, as with any type of sale, the parties may disagree over what constitutes a fair price. In the event the parties cannot agree on a price, as is also often the case with owners who are being forced to sell, the adjudicated

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price will be the fair-market value of the property as of the date of the taking, which is determined on the basis of the most advantageous use of the property in light of existing land-use regulations. Serzan v. Director of Department of Environmental Management, 692 A.2d 671, 673–74 (R.I. 1997). Ordinarily, the preferred method of determining fair-market value is the comparable-sales method, in which prices of similar properties recently sold are compared, adjusting for the differences in the properties and their locations and characteristics. Capital Properties, Inc. v. State, 636 A.2d 319, 321 (R.I. 1994). When there are buildings on the property in question, the value is of the land and the buildings as one unit. Hervey v. City of Providence, 133 A. 618, 619 (R.I. 1926). In some circumstances, however, property may be of a peculiar character or special use, which makes the comparable-sales method inadequate. Assembly of God Church v. Vallone, 150 A.2d 11, 15 (R.I. 1959). In such cases, other methods, such as depreciated reproduction costs or estimates of the costs of constructing a specialized building, may be used to determine fair-market value. Id. at 16. In the case in which only part of the property is taken, the owner is entitled to the fairmarket value of the property taken and any damages to the property that the owner retains. Hickey v. Town of Burrillville, 713 A.2d 781, 785 (R.I. 1998). In such a case, special benefits to remaining land can offset any of these types of special damages, but only with respect to benefits that accrue to the owner personally as opposed to ones that accrue to the community. Taber v. New York, Providence & Boston Railroad Co., 67 A. 9, 12. When an owner is forced to accept an easement, he or she is entitled to compensation for both the easement and the denial of access to the property beyond the permanent easement in light of the most injurious use that the government might make of its easement. Hickey, 713 A.2d at 785–86. In addition to fair-market value, the owner is entitled to interest on the value running from the time the taking occurred until payment is actually made. Atlantic Refining Co. v. Director of Public Works, 244 A.2d 853, 855 (R.I. 1968). A taking is said to occur not upon actual entry but rather when the right to enter and take possession accrues. In re Southern New England Railway Co., 94 A. 738, 739 (R.I. 1915). A taking need not be preceded or accompanied by payment. The justcompensation requirement is satisfied when the public faith and credit are pledged to reasonably prompt ascertainment and payment, and there is an adequate provision in the applicable eminent domain statute for enforcing the pledge of such payment. Remington Realty Co. v. City of Providence, 151 A.2d 376, 378–379 (R.I. 1959). If an owner disagrees with the government’s initial offer to buy, which is evidently what the government believes to be fair-market value, and the owner petitions for assessment by a jury, he or she is entitled to interest only on the difference between the jury’s assessment and the initial offer. M. S. Alper & Son, Inc. v. Director of Public Works, 200 A.2d 583, 587 (R.I. 1964). With respect to a partial payment, interest is computed on a partial payment from the day of taking until the day the partial payment is made, and then on the balance due from the day of taking until the day the balance is paid off. Id. An owner cannot be compelled to receive

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compensation for a taking in any form other than money. Thus a proposed reconveyance of part of the land as partial payment does not pass muster. Id. Reynolds v. State Board of Public Roads, 194 A. 535, 537–38 (R.I. 1937). Prior to the passage of the second sentence of Section 16, the Supreme Court had ruled that “ecological or environmental legislation may constitute a taking when all beneficial use of the property is denied to the landowner to the benefit of the public welfare.” Annicelli v. Town of South Kingstown, RI 463 A.2d 133 (1983). The 1986 Constitutional Convention’s Resolution 86–00004A, however, directly responded to the Annicelli case by adding the second sentence to Section 16, thereby intending to prevent similar rulings in the future. In Annicelli, the court found that an environmental restriction, which was enforced by the Town of South Kingstown so as to deny a building permit to the owner of barrier beachfront property, amounted to “inverse condemnation.” The court accordingly ordered the town to pay the owner damages reflective of the full market value of buildable beachfront property. Previously the Rhode Island Supreme Court had recognized that environmentally related use regulations that were reasonably necessary to protect the public health and safety were permissible exercises of the police power that did not require compensation. See Milardo v. Coastal Resources Management Council of Rhode Island, 434 A2d 266, 268 (R.I. 1981). In the Annicelli case, however, the court implied that even such permissible exercises of the police power would be deemed acts of “inverse condemnation” if the effect of their application to a particular property caused the owner to lose “all beneficial use” of the affected property (463 A2d at 139). The court also stated that the overall purpose of the permit denial in Annicelli was “to benefit the public welfare by protecting vital resources;” it was not an attempt to regulate in a situation where “uncontrolled use would be harmful to the public” (ibid. at pp. 139–40). Although the court found that the regulation constituted “a taking for the public good rather than a taking to prevent a public harm” (ibid. at p. 141), it still ordered that just compensation had to be paid. In any event, this latest amendment to Section 16 was designed to reverse the precedential value of the Annicelli case and promote the adoption of a more environmentally progressive trend by the court in future consideration of similar cases. By amending Section 16 of Article I, the Committee on the Executive Branch and Independent Agencies defined the regulatory powers contained in Article of Amendment XXXVII of the 1843 constitution so as to create the presumption that such regulations and actions constitute exercises of the police power of the state. The committee intended that the powers of the state in such regulation should be “liberally construed” to the limits allowed by the federal Constitution when constitutional challenges are posited. In this regard, the committee recommended that governmental actions taken pursuant to these provisions be overturned only upon a finding that the state action was “arbitrary and capricious,” and it further recommended that the regulation imposed should be found invalid only upon proof by clear and convincing evidence. Resolution 86–00004A was included in Ballot Question 9 and was

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approved by the voters on November 4, 1986, by a margin of 183,021 (67.5 percent) to 88,046 (32.5 percent). The 1986 additions to Section 16 and Section 17 have rapidly expanded the field of local environmental law, especially as that specialty pertains to regulatory takings. The new Sections 16 and 17 will have enormous constitutional significance in a coastal state like Rhode Island, with its many rivers and streams, its 40 linear miles of irregular shoreline on Narragansett Bay, and its inlets. The long-running landmark case of Palazzolo v. State ex rel Tavares, 531 U.S. 923 (2001), might be said to cover the waterfront as it pertains to regulatory takings resulting from environmental restrictions. Palazzolo acquired the parcel that was the subject of his claim from his defunct corporation in 1978 after Rhode Island had passed legislation in 1971 creating a Coastal Resources Management Council (CRMC). The law designated all salt marshes as “coastal wetlands” and required a “special exemption” from the council for any filling or building on such parcels. To qualify for an exemption, the statute provided that “the proposed activity must serve a compelling public purpose which provides benefits to the public as a whole as opposed to individual or private interests.” When the CRMC twice denied Palazzolo development permits, he appealed the council’s action to the Rhode Island Supreme Court. That tribunal rejected Palazzolo’s claim on three grounds: (1) that the takings claim was not ripe; (2) that Palazzolo was precluded from challenging any regulations that existed before he personally acquired the property in 1978; and (3) that Lucas v. South Carolina Coastal Council (under which Palazzolo appealed) was inapplicable because the parcel remained economically viable despite the statutory restriction. Palazzolo obtained review of this ruling in the U.S. Supreme Court. There, the justices addressed the effect that an owner’s pre-acquisition “notice” of an existing land-use regulation would have on the two principal classes of regulatory takings: partial and total. The Court held that an owner’s acquisition of title to real estate after the effective date of an allegedly confiscatory regulation does not automatically bar any takings claim. The Court discussed its ruling in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), wherein it set out its per se or categorical rule for total regulatory takings (i.e., deprivation of all beneficial use). It agreed with the Rhode Island Supreme Court that Lucas did not apply to the Palazzolo case, because Palazzolo still could obtain permission from the state Coastal Resources Management Council to build a single-family house on the upland portion of his 18-acre parcel on Westerly’s Winnepaug Pond. Because Palazzolo’s claim involved a potential partial taking, the Court cited its ruling in Penn Central Transportation Co. v. New York, 438 U.S. 104 (1978), as the applicable standard for a Rhode Island trial court to apply. Penn Central held that it was necessary to undertake a multifactor inquiry into the nature of the governmental action and the economic effect on the landowner, particularly the extent to which the regulation interferes with the distinct, investment-backed expectations of the landowner. On the third issue—ripeness—the U.S. Supreme Court again disagreed with the holding of the Rhode Island court. The justices declared that the CRMC had made

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a final decision regarding the development of Palazzolo’s property because of the “unequivocal nature of the wetlands at issue and the council’s application of the regulations to the subject property.” Given the council’s clear ruling that none of Palazzolo’s proposed developments qualified for the special exemption, the Court emphatically concluded that his claim was ripe for judicial review. On remand, the Rhode Island Supreme Court sent the case to the superior court for the mandated Penn Central analysis. In July 2005, superior court trial justice Edwin Gale completed that analysis, finding (2005 WL 1645974) that the CRMC restrictions had “little or no adverse economic impact” on Palazzolo—given the wetlands nature of the parcel—and that such a conclusion “is consistent with a realistic appraisal of plaintiff ’s reasonable investment-backed expectations.” Therefore, said the court, the plaintiff “has failed to prove by a preponderance of the evidence that there has been a regulatory taking of his property.” Justice Gale, in his well-crafted decision, further admonished the plaintiff that “constitutional law does not require the state to guarantee a bad investment.” SECTION 17. Fishery rights—Privileges of the shore—Conservation of natural resources—Preservation of the natural environment. The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore; and they shall be secure in their rights to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values; and it shall be the duty of the general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state by providing adequate resource planning for the control and regulation of the use of the natural resources of the state and for the preservation, regeneration and restoration of the natural environment of the state.

The second sentence of Section 16 makes reference to Section 17, and these provisions should be considered in a complementary fashion because they combine to protect and preserve the state’s natural environment and to conserve the air, land, water, plant, animal, mineral, and other natural resources of the state. Section 17 is rooted in the Charter of 1663, which asserted that it “shall not, in any manner, hinder any of our loving subjects, whatsoever, from using and exercising the trades of fishing upon the coast, in any of the seas thereunto adjoining, or any arms of the seas, or salt water, rivers and creeks, where they have been accustomed to fish; and to build and set upon the waste lands belonging to the said Colony and Plantations, such wharves, stages and workhouses as shall be necessary for the salting, drying and keeping of their fish to be taken or gotten upon that coast.” Attuned to the significance of public shore privileges, the framers of the 1843 constitution adopted the following language in the original Section 17: “The people

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shall continue to enjoy and freely exercise all the rights of fishing and privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state. But, no new right is intended to be granted, nor any existing right impaired, by this declaration.” This section was expanded by Article of Amendment XXXVII, entitled “Conservation,” adopted November 3, 1970, by a vote of 138,741 to 80,160. Section 2 of that amendment provided for this section to replace Article I, Section 17, of the 1843 constitution and annulled all inconsistent provisions. The 1970 amendment retained the exact phraseology of the 1843 constitution as it pertained to “the rights of fishery and the privileges of the shore,” but it deleted the second sentence proviso that “no new right is intended to be granted, nor any existing right impaired, by this declaration.” In place of the deletion, the amendment embraced conservation-oriented language that was reaffirmed by the 1986 Constitutional Convention. That body, via Resolution 86–00003, added language that enumerated certain specific privileges of the shore, “including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore.” The Committee on the Executive Branch and Independent Agencies (to which Resolution 86–00003 was referred) supported a constitutional definition of the “privileges of the shore” to which Rhode Islanders are entitled. The case of Jackvony v. Powel, 67 RI 218, 21 A.2d 554 (1941), was central to the deliberations of the committee. The court specifically recognized a public right of passage along the shore, at least for certain “proper purposes,” and went on to note other rights that “have been frequently claimed by the public or have been described by authors who have discussed the law pertaining to rights in the shore and rights of fishing from the shore, taking seaweed and drift stuff therefrom, going therefrom into the sea for bathing, and also, as necessary for the enjoyment of any of these rights and perhaps as a separate and independent right, that of passing along the shore.” At the urging of environmental consultant Professor Dennis W. Nixon, an attorney and the director of the Graduate Program in Marine Affairs at the University of Rhode Island, the committee strongly affirmed that the Jackvony case accurately reflected those shore privileges which have been in place in Rhode Island historically. The resolution reflected that sentiment. In 1982 the Rhode Island Supreme Court had determined that the privately owned land boundary of the shore is the mean high tide line as determined by the average of the high tide lines over an 18.6-year cycle, and not at the highest tide ever reached along the shore, State v. Ibbison, RI 448 A.2d 728 (1982). The committee considered clarifying the definition of the word “shore” as used in the constitution, but after long deliberation it left the definition for judicial determination because of the likelihood that a landward boundary might be considered a taking without just compensation. Resolution 86–00003 was included in Ballot Question 9 and was approved by the voters on November 4, 1986, by a vote of 183,021 (67.5 percent) to 88,046 (32.5 percent)—a level of acceptance higher than any of the substantive ballot questions. The term “people” as used in Section 17 is interpreted broadly and comprehensively. See In Re Incurring State Debts, 37 A. 14, 15 (1986),

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generally applying to all the inhabitants of the state. Additionally, under Section 17 the intertidal zone is held for the people to be used as a right of passage, for access to the shore, and for swimming in the sea. See New England Naturist Association v. Larsen, 692 F. Supp. 75, 78 (1988). The Rhode Island Supreme Court has declared that “the State holds the legal fee of all lands below high-water mark … This right of the state is held, however, by virtue of its sovereignty, and in trust for all the inhabitants—not as a private proprietor. The public rights secured by this trust are the rights of passage, of navigation, and fishery, and these rights extend … to all land below high-water mark.” Allen v. Allen, 32 A. 166 (R.I. 1895). See also Nugent ex rel. Collins v. Vallone, 161 A.2d 802, 805 (R.I. 1960); City of Providence v. Comstock, 65 A. 307 (R.I. 1906); New York, N.H. & H.R. Co. v. Horgan, 56 A. 179, 180–80 (R.I. 1903). The courts have also held that this section accorded the General Assembly complete power to regulate the fisheries in public waters. See Windsor v. Coggeshall, 169 A. 326, 327 (1933); see also State v. Nelson, 77 A. 170 (holding that the power of the legislature to regulate fisheries in the waters of this state was plenary). Section 17 also limits the General Assembly’s authority over the land. For example, in Jackvony the court held the Rhode Island Constitution prevented the state from sectioning off an area of the shore and barring public access. Additionally, the state has power to delegate its regulatory power over tidal land to municipalities—see Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1259 (1999)—but it must expressly state its intent to do so before the court will recognize any such delegation. See id. at 160. The legislature cannot permit one class of citizens to take fish while entirely prohibiting another class of citizens from doing so. See Opinion to the Senate, 137 A.2d 525, 526 (1958). Thus fishing regulations and statutes must comply with the Equal Protection Clause to be held constitutional. See Cherenzia v. Lynch, 847 A.2d 818 (2004). Sections 16 and 17 promise to be among the most litigated provisions of the state constitution as inexorable private development impinges upon the public’s rights to the land, air, and water of the Ocean State. In 1990 Professor Dennis Nixon published a historically based legal analysis detailing “The Evolution of Public and Private Rights to Rhode Island’s Shore,” in the Suffolk University Law Review, an article that is worthy of extensive citation for its lucid, relevant, and timely analysis of this rapidly emerging area of Rhode Island constitutional law. A précis of that article reveals the following: The area of intertidal zone commonly referred to as the “shore” is the only category of real property that has attributes of both public and private ownership. In the colonial era, Rhode Island’s leaders encouraged wharf construction to enhance the public purpose of promoting commerce in our early ports. Throughout the nineteenth century, riparian owners could, as a matter of right, fill tidelands to the harbor line. The government’s only concern was whether such activity would adversely affect the “navigational servitude,” which is the paramount right of the federal government over navigable waters derived from the Commerce Clause of the United States Constitution. According to Nixon, navigational servitude has

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been the predominant factor limiting the historic riparian right to wharf out, from the passage of Rhode Island’s first Harborline Act in 1815 to contemporary state and local efforts in harbor management. In 1971 the Rhode Island General Assembly introduced a more significant factor limiting riparian interests in the shore with the creation of the Coastal Resources Management Council (CRMC). As the group charged with maintaining the state’s public trust responsibilities, the CRMC examines each proposed shoreline alteration for its impact on the coastal environment as well as its impact on navigation. The traditional common-law riparian rights to fill and wharf out have recently been eroded by actions of the General Assembly, the CRMC, and the 1986 Constitutional Convention. The only “right” clearly left for the riparian property owner, asserts Nixon, is the right to apply for a permit, from both the state and federal governments, when seeking shoreline alterations such as wharfing out or filling behind a bulkhead. In all other respects the common-law rights have evolved into privileges that public trustees at the state and federal level may or may not choose to grant, based on the impact that the proposed development would have on the public’s use and enjoyment of the shore and adjacent waters. This control is referred to as the Public Trust Doctrine. The explicit delineation of shore rights in the Charter of 1663 established three important principles that remain valid today. The first is the treatment of marine fisheries as common property resources, a principle sharply distinguishable from the generally prevailing rule on land that game was the property of the landowner. The second principle clearly established the right of navigation from the “coasts … to rivers and creeks.” The United States Supreme Court, in Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), recently reaffirmed this broad view of public usage of navigable waters. Finally, the charter provided the first example of a public resource: coastal “waste lands” devoted to the water-dependent uses of wharves and fish processing for public benefit. However, this third principle has raised a historically troublesome issue for the courts and the legislature regarding the extent to which a sovereign can abandon tidelands to allow private gain. Development of specific tracts is both necessary and appropriate, asserts Nixon, where the resulting public benefit outweighs the loss of the tidelands. The charter’s phrase “waste land belonging to the said Colony” clearly illustrates a claim of ownership coupled with the public desire to facilitate development of commercial fishing. These three principles embodied in the charter collectively represent the historical basis for the public trust in Rhode Island. In 1707 the General Assembly delegated the colonial government’s “public trusteeship” to the towns. The General Assembly granted each town full authority over “such coves, creeks, rivers, waters and banks bordering upon the respective townships,” for building houses, warehouses, and wharves, laying out lots, or making any other improvements that promoted trade and navigation. Rather than spending tax dollars to develop public facilities, the towns willingly authorized riparian landowners to wharf out, thereby improving a harbor’s marine

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facilities. After a long history of private investment, public use, and changing needs, determining title to those wharves today has been a source of litigation and conflict. The General Assembly slowly began to assert its authority over state waters and the adjacent tidelands that had not yet become wharves, warehouses, or building lots. Several pressures caused the state government to intervene, including the rapid filling of tidelands—particularly in Providence, and to a lesser extent in Newport—as the ties to fishing and shipping began to fade. It thus became apparent that harbors would disappear without state protection as riparian owners continued their relentless march seaward, and the right to freely navigate, protected by the navigational servitude, would be lost forever. During the nineteenth century most coastal states, including Rhode Island, responded to these pressures by creating the “harborline,” beyond which coastal development could not take place. Harborlines were simple, relatively easy to establish and enforce, and at least initially effective in accomplishing their mission. They resulted from a legislative determination that encroachment on waters up to the line would not interfere with fishery, commerce, or navigation. Contemporary coastal management gradually abandoned harborlines, because filling out to that boundary, even for a non-water-dependent use, was in jeopardy of being viewed as a matter of right for the riparian landowner. Wholesale bulkheading and filling of tidelands had an enormous impact on coastal ecology, notes Nixon. The state did not recognize the productive value of coastal wetlands until quite recently. In fact, the filling of tidelands, first endorsed in the charter for fishhouses and wharves, may have ultimately eliminated so much of Narragansett Bay’s reproductive capacity that the practice substantially devalued the fundamental right of fishery. For better or worse, harborlines represented the boundary between public and private rights to the shore from 1815 until 1970. However, the widespread use of harborlines also impeded the full use of the constitutional “privileges of the shore,” because they encouraged filling and development. An illustration of this tendency is Engs v. Peckham, 11 R.I. 210 (1875), a leading case in Rhode Island harborline law, which involved a dispute in Newport Harbor. Engs and Peckham owned adjacent wharves, but Peckham also owned the land adjacent to the open water area between the two wharves. In 1873 the General Assembly approved a Harborline Act for Newport. Peckham thereafter began filling the water between the wharves out to the new harborline, which would have eliminated half of Engs’s wharf capacity. The Supreme Court of Rhode Island ruled that Peckham could fill out to the harborline, despite the fact that Engs’s wharf had served the interests of commerce and navigation since the colonial era; moreover, the court did not find that Peckham’s act would better serve the public interest than the continued use of Engs’s wharf. The court stated that the establishment of a harborline “is equivalent to the legislative declaration that navigation will not be straitened or obstructed by any such filling out.… We hold that the establishment of a harborline operates as a license or invitation to the riparian proprietor to fi ll or wharf out to that line.” Id. at 224.

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The General Assembly’s use of harborlines was overbroad, observes Nixon. The method was indeed simple and did protect navigable waters necessary for commerce from encroachment, but it did not allow for the parcel-by-parcel analysis of whether each act of filling would serve the public interest. The necessity of performing that level of detailed analysis was certainly a key factor in the later delegation of authority by the Congress to the Army Corps of Engineers and by the Rhode Island General Assembly to the Coastal Resources Management Council. Recognizing the federal interests involved in establishing harborlines, Congress passed the Rivers and Harbors Act of 1899, which authorized the secretary of the army to create harborlines where necessary to preserve and protect harbors. In Philadelphia Co. v. Stimson, 223 U.S. 605 (1912), the United States Supreme Court held that Pennsylvania’s establishment of harborlines, however effective as between the state and riparian owners, was necessarily subject to the paramount power of Congress. The Court found that the secretary of war’s action was not a taking under the Fifth Amendment, since title to submerged soil is always subject to the federal navigational servitude. The secretary, therefore, could establish harborlines and later change them in order to more fully protect rivers from obstruction. One of the most significant developments in coastal law, concludes Nixon, occurred in 1970 when the Army Corps of Engineers, long maligned for its perceived lack of environmental sensitivity in coastal areas, announced a dramatic change of policy in its enforcement of the Rivers and Harbors Act of 1899. The corps recognized that under previous policies, riparian owners could construct open-pile structures or solid-fill construction shoreward of established harborlines without obtaining a corps permit. It found that this practice could result in construction without appropriate consideration of the impact such work might have on the environment and without a judgment on whether the work was in the public interest. In order to protect public interest, the corps declared all existing and future harborlines to be guidelines for defining the offshore limits of piers or wharves. Congress further clarified the concept of “public interest review” by adopting additional rules in 1982. In particular, the rules required that any decision on a federal permit must be consistent with the approved coastal zone management program of the state in question. Rhode Island began its own efforts in coastal management in 1971, a year before the enactment of federal coastal management legislation. The General Assembly created the CRMC to preserve and protect the state’s shore and to act as its public trustee. The act creating the CRMC ( R.I.G.L., 46–23–1) addressed a wide range of planning and regulatory functions. Specifically, it gave CRMC the power to grant licenses, permits, and easements for the use of coastal resources that are held in trust by the state for all its citizens; to impose fees for private use of the resources; to determine the need for and establish pierheads, bulkheads, and harborlines; and to enforce and implement riparian rights in the tidal waters after judicial decisions. Through this act the CRMC clearly assumed the role of public trustee for the state’s coastal resources. Judicial decisions upheld the law as a permissible delegation of legislative authority and permitted the CRMC to single out coastal areas for specific regulation.

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The federal Coastal Zone Management Act of 1972 gave critical support to the state effort, providing both planning and management funds to get the program under way. The act continues to assist in the operational costs through a grant program. The federal law also altered a key factor in the federal/state relationship with the concept known as “federal consistency,” which requires, upon state program approval, most federal agency activities, grants, programs, and permitting to remain consistent with that approved state program. In a sense, Congress simply returned to the basic premises of Martin v. Lessee of Waddell, 41 U.S. 367 (1842), that “the people of each state … hold the absolute right to all their navigable waters and the soils under them for their own common use.” As a practical matter, the state program focuses on the day-to-day management issues, while the federal program’s primary concern is with broader policy issues and compliance with grant conditions. The CRMC has regulatory authority over land areas up to 200 feet from the coastal physiographic feature, or to the point necessary to carry out effective resource management programs. The definition of shore for purposes of determining the constitutional “privileges of the shore” remained unclear until the Rhode Island Supreme Court addressed the issue in 1982. In State v. Ibbison (1982), cited previously, the court found that a long line of cases consistently recognized that the shore lies between high and low water, but that none of those cases defined how the high-water mark was to be calculated. A group of recreational fisherman on a beach cleanup in Westerly raised the issue when they insisted on their right to pass along the shore up to the high-water mark, known as the “wash” line, where seaweed marks the highest recent tide. A waterfront property owner insisted that the boundary was seaward at the mean high-water mark, and had the fishermen arrested on the charge of criminal trespass. The court upheld the dismissal of the criminal charges on due process grounds because, given the ambiguity of the meaning of the term shore, the fishermen could not be held criminally responsible for conduct that “[they] could not reasonably understand to be proscribed.” The court cautioned that a municipality, before attempting to impose criminal trespass charges for walking along waterfront property, must prove beyond a reasonable doubt that the defendant knew the location of the boundary line and intentionally trespassed across it. The court then agreed with the property owner that a correct reading of state and federal law puts the landward boundary of the shore at mean high water, which the United States Coast and Geodetic Survey defines as the average height of all the high waters over the astronomical cycle of 18.6 years. The court recognized that the principal flaw with this reading is that the mean high-water mark “is not readily identifiable by the casual observer,” although it represents the point that can be determined with the greatest scientific certainty. Since the expansion of Sections 16 and 17 by the 1986 Constitutional Convention, several judicial rulings and legislative enactments have impacted the law of tidelands and the Public Trust Doctrine. In Northeastern Corporation v. Zoning Board of Review, 534 A.2d 603 (R.I. 1987), the state supreme court reiterated the well-established principle that the line of demarcation that separates the property

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interests of waterfront owners from the remaining populace of this state is the mean high-tide line. In 1988 the U.S. Supreme Court’s decision in the Phillips Petroleum case expanded the scope of the Public Trust Doctrine with important implications for Rhode Island. The Phillips Petroleum Court held that the Public Trust Doctrine extends to all the tidal waters of the states, regardless of their navigability. In rejecting navigability as the standard for applying the Public Trust Doctrine, the Supreme Court noted a wide variety of public trust interests, such as bathing, swimming, recreation, and mineral development, all of which extend beyond the traditional common-law rights of navigation, commerce, and fishing. The decision gave to states substantial flexibility in the definition and scope of their public trust authority. Then, in Hall v. Nascimento, 594 A.2d 874 (R.I. 1991), the Rhode Island Supreme Court found that land on Portsmouth’s Common Fence Point, created by the placing of fill in Mount Hope Bay, belonged to the state under the Public Trust Doctrine, because the plaintiff lot owners could not prove that they, through their predecessors, were entitled to littoral rights to tidelands that were filled by dredge material. “Considering maps and deeds together,” said the court, “it was clear that the boundaries of the lot owners’ property did not extend to property created by the dredging of the bay.” The Hall decision prompted many state regulators and environmental groups to assert that according to the Public Trust Doctrine, the state, and not private title holders, owned all land created by the placing of fill below mean high tide. Such land exists throughout Rhode Island and includes a substantial portion of downtown Providence. This threat induced the Greater Providence Chamber of Commerce, whose offices were located on land created in the nineteenth century by filling the Great Salt Cove, to request a declaratory judgment defining the status of filled tidal land. The chamber was joined by several large waterfront businesses, including Narragansett Electric Company and Providence Gas Company. In Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995), the supreme court confined its ruling in Hall to that case’s narrow facts. It then asserted that when tidal land had been filled towards the harborline with the state’s express, implied, or tacit approval, and when that property had been substantially improved and taxes were paid thereon, then “the fee simple absolute title rests in the title holders.” This opinion reaffirmed dicta in two nineteenth-century decisions asserting that land created by the placing of fill to a harborline, and improved, becomes private land. The court’s decision struck a careful balance between the Public Trust Doctrine and the rights of private property. It has been followed in Providence & Worcester R. Co. v. Pine, 729 A.2d 202 (R.I. 1997). Other recent decisions have held that the state may transfer its ownership of tidal land to another and grant municipalities authority to regulate tidal land on the state’s behalf; but the transfer of tidal land does not, ipso facto, include relinquishment of the state’s public trust responsibilities under Section 17. Champlin’s Realty Associates, L.P. v. Tillson, 83 A.2d 1162 (R.I. 2003); Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255 (R.I. 1999).

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In reaction to the Greater Providence Chamber of Commerce decision, the General Assembly codified Rhode Island case law by legislation enacted in 2000. In this statute the legislature declared that The State of Rhode Island, pursuant to the Public Trust Doctrine long recognized in federal and Rhode Island state case law, and to Article 1, Section 17 of the constitution of Rhode Island as originally adopted and as subsequently amended, has historically maintained title in fee simple to all soil within its boundaries that lies below the high-water mark … R.I.G.L. § 46–5-1.2(a).

The Greater Providence Chamber of Commerce decision had made it clear that title to filled tidal lands vests in the riparian proprietors if such land has been filled, whether to a harbor line or otherwise, with the acquiescence or the express or implied approval of the state and the filled land has been improved in justifiable reliance on such approval. The new statute therefore provided that “[s]ubsequent to such effective date of this section, no title to any freehold estate in any such tidal land or filled land can be acquired by any private individual unless the same is formally conveyed by explicit grant of the State by the General Assembly for public trust purposes.” R.I.G.L. § 46–5-1.2(a). In the rapidly evolving area of coastal development jurisprudence, we are faced with mediating the conflict between earlier development-oriented law and custom—which included such features as harborlines, where “filling out” was considered by some to be a matter of right, and underwater lots, which were (and are) locally platted and taxed—and the Public Trust Doctrine of our present era, which asserts and protects the rights of the public to the Ocean State’s coastal resources. A final aspect of Section 17 deals not with regulation but with the regulator. The conservation clause makes it “the duty of the general assembly to provide” for the conservation of our natural resources, but the 2004 separation of powers amendment (discussed later) suggests that the governor may be responsible for this executive function. At stake in this dispute is control of the CRMC. Does Section 17 allow legislators and their designees to continue to serve on the Coastal Resources Management Council, or does the later separation of powers amendment override Section 17 and preclude such service? This issue is one of many that has arisen after the legislature divested itself of its enormous power as a result of a perceived popular demand for such change. SECTION 18. Subordination of the military to civil authority. The military shall be held in strict subordination to the civil authority. And the law martial shall be used and exercised in such cases only as occasion shall necessarily require.

This section is unchanged from the 1843 Rhode Island Constitution and is based, in part, upon the Charter of 1663, which cautioned authorities “to use and exercise the law martial in such cases only as occasion shall necessarily require.” No cases exist interpreting it, even though martial law has been invoked in Rhode Island.

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The second sentence begs the question: Who is entitled to declare martial law and under what circumstances shall the “law martial” be “used and exercised” when circumstances “necessarily require” it? Must the General Assembly declare martial law or, in an emergency, can the governor do so? Probably the courts will allow the governor to do so (as he has done) for so long as a true emergency exists—subject, of course, to the General Assembly exercising its law-making power whenever able to do so. The most notable exercise of martial law in Rhode Island immediately preceded the drafting of the constitution of 1843 and paved the way for the peaceful call of the convention that produced it. That exercise of martial law also frustrated the attempt by Governor Thomas Dorr to put the People’s Constitution into effect. Martial law was declared by the General Assembly on June 25, 1842, two days after charter Governor Samuel Ward King had issued orders authorizing full military mobilization for a march of the militia—3,500 strong—to Acote’s Hill in Chepachet, where Dorr had attempted to convene his People’s legislature. In the face of such force Dorr urged his followers to disperse, but martial law endured until August 8, and over three hundred indiscriminate arrests and irregular interrogations occurred during its operation. A raid conducted in Warren by charter militia under color of martial law led to the major U.S. Supreme Court case of Luther v. Borden, 7 Howard 1 (1849), a decision best known for its discussion of the Guarantee Clause of the federal Constitution and its formulation of the Political Question Doctrine. The legal controversy arose on June 29, 1842, when a Law and Order force under command of Luther M. Borden broke into Martin Luther’s private dwelling, roused and rousted his elderly mother, and conducted a fruitless search for Luther, a Warren town moderator serving under the People’s Constitution. Luther had fled to the adjacent town of Swansea, Massachusetts, where he established domicile and eventually filed suit against Borden and his comrades-in-arms in United States Circuit Court using diversity of citizenship to secure federal jurisdiction in the case. In form this claim was a routine trespass action, but in realty it raised profound issues relating to the Guarantee Clause of the federal Constitution, the doctrine of political questions, and the exercise of martial law. Luther’s case was a vehicle whereby the U.S. Supreme Court would be called upon to decide between the legality of the People’s government and the charter government. According to the Dorrites, the People’s Constitution had replaced the charter on May 3, 1842. If this assertion was legally valid, then Luther acted properly as an official in the new regime and Borden committed actionable trespass, taking orders from a defunct government that had no power to proclaim martial law; Borden, not Luther, would become the insurrectionist. Oral arguments were presented to the U.S. Supreme Court in the Luther litigation for six days in early 1848. Benjamin Hallett and future Supreme Court justice Nathan Clifford sought approval for the Dorrite doctrine of popular constituent sovereignty on which the People’s government was based while Daniel Webster

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and John Whipple, Rhode Island’s leading constitutional lawyer, defended the charter regime. In a 5-to-1 opinion handed down in January 1849, Chief Justice Roger Taney accepted the main points of Webster’s argument. Martin Luther had presented a political question that was not justiciable, said Taney, in a conclusion influenced by experience and practicality. Responsibility to decide questions of disputed sovereignty and to determine what constituted a “republican form of government” under the Guarantee Clause was not vested with the Court but rather with the political branches—Congress and the president, the state legislature, and the governor. In response to the Dorrite request that Taney apply the Guarantee Clause to the Rhode Island situation, the Maryland jurist insisted that Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.

Levi Woodbury of New Hampshire, a Dorr sympathizer in 1842, filed the lone dissent, but he confined his objection to a learned discussion of martial law. His detailed and well-researched opinion that the charter forces used this power arbitrarily, extravagantly, and unconstitutionally failed to dissuade the majority from its belief that “the established government resorted to the rights and usages of war to maintain itself and to overcome unlawful opposition.” The most notable Rhode Island examples of the use of martial law in the twentieth century occurred during major strikes by textile workers in 1922 and 1934, when Republican Governor Emery San Souci and Democratic Governor Theodore Francis Green, respectively, called out the state militia to quell the rioting, and during the so-called Race Track War of 1937, when Governor Robert E. Quinn sent the National Guard to close Narragansett Park during a nationally scandalous political battle of wills with race track owner Walter O’Hara and Pawtucket mayor Thomas P. McCoy, the details of which have filled a volume. SECTION 19. Quartering of soldiers. No soldier shall be quartered in any house in time of peace, without the consent of the owner; nor, in time of war, but in a manner to be prescribed by law.

No cases exist regarding this section, which is the Rhode Island analogue to the Third Amendment to the United States Constitution. It is unchanged from the 1843 constitution. The quartering of soldiers has not been an issue in Rhode Island under the present constitution. The only significant instances involving this practice occurred during the War for Independence. From December 1776 until October 1779, 6,000

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British troops occupied Newport and established outposts in the surrounding island communities of Portsmouth, Jamestown, and Middletown. In August 1778 a joint Franco-American effort to dislodge them failed. A 5,500-man French force occupied Newport from July 1780 until June 1781, when many departed to rendezvous with George Washington on the Hudson, leaving a small defensive garrison behind. The French army then proceeded to Yorktown. A year after that fateful battle, Rochambeau’s army returned to Providence for several weeks in November 1782 prior to sailing from Boston to wage war on other fronts. During both the English and the French occupations, only the highest-ranking officers established residences or headquarters in private homes, and often with permission. Newport had a large number of Loyalists who accommodated the British, and our French allies were warmly welcomed by their Rhode Island hosts. SECTION 20. Freedom of the press. The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.

The Rhode Island Supreme Court has, in some cases, interpreted Section 20, which is unchanged from the 1843 constitution, as being analogous to the First Amendment’s freedom of press provision. State v. Settle, 156 A.2d 921 (1959). Thus the court has followed the federal notion that “obscenity is not within the area of constitutionally protected speech or press.” See id.; and Bantam Books, Inc. v. Sullivan, 372 US 58, 66 (1963)—a U.S. Supreme Court case involving prior restraints on expression that originated in Rhode Island. Rhode Island has also followed the rulings in New York Times v. Sullivan 376 U.S. 254 (1964), Curtis Publishing Company v. Butts 388 U.S. 130 (1967) and Associated Press v. Walker, 388 U.S. 130 (1967), requiring defamed plaintiffs to prove actual malice (i.e., the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not) if they are public officials or “public persons” in order to recover monetary damages for libel. See Conley v. the Providence Journal Co. (R.I. Super. C.A. No. 81–1220) and (R.I. Supreme, 85–105-Appeal), wherein the plaintiff, who was adjudged both a public official and a public person, proved the elements of defamation and falsity but was not awarded damages because the jury deadlocked on the existence of the third required element—actual malice. Moreover, Rhode Island has followed the U.S. Supreme Court in concluding that Section 20 does not protect a reporter’s refusal to disclose information that is necessary to the determination of a litigated case. See Branzburg v. Hayes, 408 U.S. 665 (1972); and Outlet Communications Inc. v. Rhode Island, 588 A.2d 1050, 1052 (1991). In libel cases, speakers and writers do not abuse their free-speech protections under this rule if their published opinions are based on disclosed and nondiscriminatory facts. Beattie v. Fleet Nat’l Bank, 746 A.2d 717, 724 (2000). Additionally, truth can be used as a defense in libel cases falling under this

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section if the statements were published without malice and in good faith. Thus a defendant will be required to establish, by a fair preponderance of the evidence, that the statements published were true, not based on malice, and published in good faith. Cardarelli v. Providence Journal Co., 80 A. 583, 588 (1911). Also, the court has found that an individual’s right to access judicial proceedings does not apply to juvenile matters. Sherman Publishing Co. v. Goldberg, 443 A.2d 1252 (1982). SECTION 21. Right to assemble and petition—Freedom of speech. The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.

The first sentence of this section is unchanged from the 1843 constitution. The second sentence, derived from the federal Constitution, was added by the 1986 Constitutional Convention. It originated as Resolution 86–00033, which was considered by the Committee on Citizen Rights. The intent of the committee was twofold: (1) to place in the Rhode Island Constitution a right guaranteed by the U.S. Constitution, and (2) to protect this right in Rhode Island in case of an erosion of the principle of free speech in federal court interpretations. Resolution 86–00033 was part of Ballot Question 8, approved by the voters on November 4, 1986 by a vote of 160,137 (58.0 percent) to 115,730 (42 percent). Like the First Amendment to the federal Constitution, Section 21 of the Rhode Island Constitution bars the legislature from making any law that “abridges freedom of speech.” See Town of Barrington v. Blake, 568 A.2d 1015, 1018 (1990). Nevertheless, the Rhode Island Supreme Court has adopted the United States Supreme Court’s nonabsolutist view that “even protected speech is not equally permissible in all places and at all times.” See id. In determining whether a governmental regulation abridges freedom of speech, courts use a three-part test. First, the court must decide if the speech is protected under the First Amendment. Second, the court must determine if the restriction is content-based or content-neutral. Third, the court must decide whether to use a strict scrutiny standard of review or a lesser standard. See, for example, Pitre v. Curhan, 2001 WL770941 (R.I. Super., July 10, 2001). The Rhode Island Supreme Court has also decided what is not protected under this section. In City of Pawtucket v. Pawtucket Teachers Alliance, the court ruled that the rights of schoolteachers under this section were not violated when they were enjoined from striking. See 141 A.2d 624, 628–29 (1958). The court held that teachers, in their capacity as government workers, could not strike because such action would impede or obstruct the government. The right of petition guaranteed by this section existed as a formal process for nearly a century prior to its inclusion in the 1843 constitution. In January 1746 (now 1747 with the new calendar), the legislature passed an act “directing the

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method of receiving petitions into, and acting thereon, by the General Assembly.” The state archives contain voluminous files of such petitions divided neatly into two categories: “Petitions Granted” and “Petitions Not Granted.” The petitioning process had a significant influence upon Rhode Island’s constitutional development. SECTION 22. Right to bear arms. The right of the people to keep and bear arms shall not be infringed.

The language of Section 22, unchanged from the 1843 constitution, derives from Section 7 of the English Bill of Rights, which states that “the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” See Mosby v. Devine, 851 A.2d 1031, 1039 (R.I. 2004). The constitutional right to bear arms has long been a concern to Rhode Islanders. The Charter of 1663 authorized the colony’s officers to assemble, exercise in arms, martial array, and put in warlike posture, the inhabitants of the said colony, for their special defence and safety; and to lead and conduct the said inhabitants, and to encounter, expulse, expel and resist, by force of arms, as well by sea as by land, and also to kill, slay and destroy, by all fitting ways, enterprise and means, whatsoever, all and every such person or persons as shall, at any time hereafter, attempt or enterprise the destruction, invasion, detriment or annoyance of the said inhabitants or Plantations; and to use and exercise the law martial in such cases only as occasion shall necessarily require; and to take or surprise, by all ways and means whatsoever, all and every such person and persons, with their ship or ships, armor, ammunition, or other goods of such persons, as shall, in hostile manner, invade or attempt the defeating of the said Plantations, or the hurt of the said company and inhabitants; and upon just causes, to invade and destroy the native Indians, or other enemies of the said Colony.

In 1790, when debating the federal Constitution, the delegates to the ratifying convention proposed a Rhode Island Bill of Rights. Article 17 of that document read as follows: “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 defense of a free state” (Robert A. Cotner, ed., Theodore Foster’s Minutes of the Convention Held at South Kingstown … Which Failed to Adopt the Constitution of the United States [Providence, 1929], p. 95). The phrase “the people” in Section 22 includes all inhabitants of the state. See id. at 1041. Hence, just as with other protected rights that “the people” enjoy, the court has interpreted Section 22 as applying to the people individually. Nevertheless, the court concluded that the historical use of “bear arms” relates solely to military service and common defense. See id. at 1042. But this historical use of “bear arms” does not undermine the individual’s right to “bear arms” in his or her own house or place of business. See id.

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Historically, individuals were allowed to keep arms in case the state needed to be defended. See id. For example, Section 36 of the 1843 Rhode Island Acts and Resolves concerning militia law stated that infantry, grenadiers, and riflemen could carry weapons. Those weapons, however, could be carried only so long as they could be stored in an armory. This statute has been interpreted as providing a right to bear arms, but not in a public area. Accordingly, the court has not found any support for applying “bear arms” outside the military context. See id.; but see id. at 1058 (Flanders, dissenting) (“state and federal constitutional language, and judicial interpretations of the language … show that when Rhode Island framed and adopted its constitution, the words ‘bear arms’ were not limited in meaning just to militia service, but also applied to carrying arms for self-defense and for other non-military purposes”). Rhode Island has followed numerous jurisdictions who recognize that the right “to keep and bear arms” is not absolute but is subject to regulatory control. See id. at 1044. Thus there is no constitutional right to carry an unlicensed, concealed weapon in this state because the right to keep and bear arms is not absolute. In State v. Storms, the court upheld a law that forbade the unlicensed carrying of a pistol or revolver outside a person’s home or business. See State v. Storms, 308 A.2d 463 (1973). Unlike other constitutional provisions, Rhode Island uses a reasonableness test when determining if a regulation infringes on the right to keep and bear arms. See Mosby, 851 A.2d at 1044. More specifically, the test is “whether the statute is a reasonable limitation of the right to bear arms, rather than a reasonable means of promoting the public welfare.” See id. Thus the courts have recognized that statutory limitations under Section 22 are permissible as part of the state’s police power. But see id., Flanders, J., dissenting (objecting to the unfettered discretion of the licensing authority to deny an applicant’s right to bear arms: “checking arbitrary power and protecting our precious personal liberties are the twin towers of constitutional adjudication, the quintessence of constitutional law, and the most important jurisprudential duties that we justices of the highest court in this state can possibly perform”). Flanders’s view is supported by Claudia J. Matzko, “The Obfuscation of Rhode Island’s Clearly Expressed Constitutional Right to Bear Arms: Mosby v. Devine,” Roger Williams University Law Review, 11 (Spring 2006), 651– 75. SECTION 23. Rights of victims of crime. A victim of crime shall, as a matter of right, be treated by agents of the state with dignity, respect and sensitivity during all phases of the criminal justice process. Such person shall be entitled to receive, from the perpetrator of the crime, financial compensation for any injury or loss caused by the perpetrator of the crime, and shall receive such other compensation as the state may provide. Before sentencing, a victim shall have the right to address the court regarding the impact which the perpetrator’s conduct has had upon the victim.

This section was added to the constitution by Resolution 86–00140 of the 1986 Constitutional Convention. The Committee on the Judicial Branch, when considering

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the resolution, intended to give greater support to the victims of crime. The committee believed that the existing statutory rights of victims had been inadequately implemented. The rights of victims of crime in Rhode Island, enumerated in R.I.G.L., Section 12–28–3, comprise no less than 14 individual rights. According to the committee, one problem with that statute was that all parts of the criminal justice system must cooperate to afford victims their rights. The Committee on the Judicial Branch concluded that the General Assembly has addressed the problem of victim rights, but the mechanism for asserting those rights needed to be strengthened. Therefore it resolved to mandate enforcement, while leaving specific provisions or procedures to the determination of the General Assembly and the courts. Resolution 86–00140, part of Ballot Question 8, was approved by the voters on November 4, 1986 by a margin of 160,137 (58 percent) to 115,730 (42 percent). Section 23 ensures victims a right to compensatory damages from the perpetrator of the crime for injuries caused by criminal misbehavior. See Bandoni v. Rhode Island, 715 A.2d 580 (1998). Additionally, this section allows victims to provide impact statements to the trial court before the criminal is sentenced. See id. This right, however, is not conditioned upon the victim’s requesting that the court do so. See State v. Lessard, 754 A.2d 756, 760 (2000). Nevertheless, state officers are not subject to claims for monetary damages for failing to inform victims of their right to address the court before sentencing. See Bandoni, 715 A.2d at 582. The court ruled that the victim’s right to address the court regarding the impact of the crime was not judicially enforceable in any action for damages because it was not “self-executing.” The court emphasized that the provision in question lacked any express remedy and that the General Assembly had failed to enact any enabling legislation. In his dissent, however, Justice Flanders emphatically disagreed “with this shrunken and withered vision of judicial power, responsibility, and independence,” arguing that “if constitutional rights do not become enforceable until and unless the General Assembly decides to make them so, then as a practical matter the General Assembly would be able to veto the Rhode Island Constitution simply by doing nothing.” It remains to be seen whether the Bandoni doctrine—requiring General Assembly enabling legislation before the courts can enforce state constitutional rights—has any legs beyond the victim-rights provisions. SECTION 24. Rights not enumerated—State rights not dependent on federal rights. The enumeration of the foregoing rights shall not be construed to impair or deny others retained by the people. The rights guaranteed by this Constitution are not dependant on those guaranteed by the Constitution of the United States.

The first sentence of this section appeared in the 1843 constitution as Article I, Section 23. When Rhode Islanders approved the current constitution in 1986, they added a second clause and moved this section to the final position in the declaration of rights to account for the Victims’ Rights Clauses that became part of the Declaration of Certain Constitutional Rights and Principles. The first sentence is

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similar to Amendment IX of the United States Constitution, which also cautions that the mere enumeration of certain rights in the Constitution is not meant to deny or disparage others that the people retain. The second sentence of Section 24 originated as Resolution 86–00171 and was referred to the Committee on Citizen Rights. It expressed the intent that the state constitution be interpreted as expanding and not limiting individual rights, even though similar rights in the federal Constitution may be more narrowly defined. This sentence also reaffirms the principle of state sovereignty within the federal system by declaring that rights guaranteed by the state enjoy an existence separate from the federal Constitution—that is, they rest upon an independent state ground. Resolution 86–00171, part of Ballot Question 8, was approved by the voters on November 4, 1986 by a vote of 160,137 (58 percent) to 115,730 (42 percent). In 1987, just after the second sentence of the section became effective, Michael DiBiase analyzed the use of the state’s Declaration of Certain Constitutional Rights and Principles in the period from 1925 onward, when the U.S. Supreme Court began to apply the federal Bill of Rights to the states via the incorporation theory. He noted that the Rhode Island Supreme Court had thus far taken “the so-called supplemental approach to state constitutional challenges—in cases brought under both federal and state constitutions, the court generally has analyzed the claim first under federal law. If the federal issue affords relief, the court generally has ignored the state constitutional claim. If the federal claim fails, then the court may look to the state constitution, although rarely has the state provision been given independent life.” See “Reviving Rhode Island State Constitutional Rights: The Need For a New Approach to Constitutional Questions,” Rhode Island Bar Journal 35 (May 1987): 5–9. In advocating a “state law first” approach, DiBiase lamented the fact that as of 1987 [t]he Rhode Island Supreme Court repeatedly has expressed a conservative and deferential view with respect to the role of federal constitutional protections vis-à-vis state guarantees. In several cases, the court has stated that the decision to depart from the minimum standards guaranteed by the federal Constitution and to afford greater protection under Rhode Island’s state constitution should be made guardedly and be supported by a principled rationale. Following this view, the court has refused to find greater state constitutional protections in a number of cases, although these decisions often have not been without dissent.

State sovereignty, of course, cannot be asserted to the point of conflict with federal law. In the case of Testa v. Katt, 330 U.S. 386 (1947), the U.S. Supreme Court reminded Rhode Island of the applicability of the national Supremacy Clause (Article VI) to state action that defied a congressional enactment. Rhode Island had established a policy against enforcement by its courts of the statutes of “foreign” jurisdictions (e.g., other states and the United States) which Rhode Island deemed penal. Justice Hugo Black, for a unanimous court, ruled that Rhode Island courts could not refuse to enforce the Federal Emergency Price Control Act, “for we cannot accept the basic premise on which the Rhode Island Supreme Court held

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that it has no more obligation to enforce a valid penal law of another state or a foreign country.” The effect of the Supremacy Clause on the relation of federal laws to state courts is such that a state has no right “to deny claims growing out of a valid federal law.” Id. 394. So far the Rhode Island Supreme Court has addressed only the first sentence of this section, and it has not yet considered what rights are “retained by the people,” other than the ones enumerated in the state and federal Constitutions. The court, however, has rejected attempts to invoke this sentence in a number of cases involving criminal laws and in suits involving criminal actions. In Berberian v. Berberian, 284 A.2d 72, 74 (R.I. 1971), the court stated that this section does not afford a husband the constitutional right to physically assault his wife. The court reasoned that even though such conduct may have been acceptable under common law, it was no longer lawful. Later, in State v. D’Amico, 293 A.2d 304, 305–06 (R.I. 1972), the court rejected a challenge to a law prohibiting shoplifting. The challenger argued that the statute required only that someone intend to shoplift in order to be convicted. The court, however, construed the statute to require an overt act as well as intent. Then, in State v. Storms, 308 A.2d 463, 464 (R.I. 1973), the court held that “manifestly” this section “in no sense assures a right of self-defense.” In rejecting such an assertion, however, the court supplied no reasoning for its conclusion. In other words, why is the right of self-defense not one of the rights “retained by the people” under this section? Ultimately the court upheld the conviction of a man found guilty of carrying an unlicensed firearm without answering that question. The court also has considered whether this section applies to a number of different law enforcement issues. In Kavanagh v. Stenhouse, 174 A.2d 560, 562–63 (R.I. 1961) (appeal dismissed, 368 U.S. 516 [1962] [per curiam]), the court upheld a statute authorizing a police officer to detain persons for up to two hours when the officer reasonably suspected they were committing, had committed, or were about to commit a crime. The court reasoned that “If the period of detention is reasonably limited, is unaccompanied by unreasonable or unnecessary restraint, and is based upon circumstances reasonably suggestive of criminal involvement, the legislature may lawfully make a distinction between such mere detention and an arrest.” In State v. Ramsdell, 285 A.2d 399, 402 (R.I. 1971), the court extended this reasoning, holding that “there is nothing ipso facto unconstitutional in the police briefly stopping a citizen under circumstances not justifying an arrest for the purpose of a limited inquiry during a routine police investigation.” The court also held that this section does not encompass a right to resist unlawful arrest. The court reasoned that modern police forces are armed and equipped to the point of making it impractical for individuals who are apprehended to attempt an escape, and that forcing such persons to seek relief from the courts, instead of invoking self-help, does not contravene this section. Id. Attorney Aram K. Berberian was involved in each one of the five Rhode Island Supreme Court cases mentioned in the last two paragraphs. Besides insisting that he had a constitutional right to beat his wife in Berberian, 284 A.2d at 72, 74, he brought the other four challenges just discussed acting as an attorney for the affected party. In State v. Berker, 391 A.2d 107, 110–11 (R.I. 1978), he tried once

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more to invalidate police activity similar to the activities he challenged in Kavanagh and Ramsdell. Although he succeeded in overturning his client’s drunk-driving conviction on different grounds, he again failed to convince the court that there was a violation of this section. Id. at 110–12. The other cases citing this section also deal with the police, albeit in a much different context. In City of Newport v. Horton, 47 A. 312, 316 (R.I. 1900), the court found that this section does not assure municipalities that they will exercise complete control over their police forces. In doing so, the court upheld a statute creating a board of police commissioners for the city of Newport that the General Assembly empowered to appoint and to remove the Newport chief of police and to control the city’s police department. The court relied on this ruling in City of Providence v. Moulton, 160 A. 75, 76, 79 (R.I. 1932), where it held that the legislature could create a Public Safety Board to control Providence’s police, fire, and engineering departments. The court stated: “In the absence of state constitutional provisions safeguarding it to them, municipalities have no inherent right of self-government which is beyond the legislative control of the state.” Id. at 79 (quoting Trenton v. New Jersey, 262 U.S. 182, 187 (1923). This act was a partisan maneuver to wrest control and patronage from a Democratic city administration and confer it upon a Republican governor and a Republican state senate. The board was abolished by the Democrats in January 1935 during the “Bloodless Revolution.” Note that the court decided both Horton and Moulton before the home rule and separation of powers amendments, both of which restricted the legislature’s considerable power over local governance. R.I. Const. Art. VI, § 10 (repealed 2005), Art. XIII, §§ 1–11; R.I. Const. of 1843, amend. XXXVIII, §§ 1–12 (1951). The continuing applicability of Horton and Moulton is in doubt.

Article II Of Suffrage SECTION 1. Persons entitled to vote. Every citizen of the United States of the age of eighteen (18) years or over who has had residence and home in this state for thirty (30) days next preceding the time of voting, who has resided thirty (30) days in the town or city from which such citizen desires to vote, and whose name shall be registered at least thirty (30) days next preceding the time of voting as provided by law, shall have the right to vote for all offices to be elected and on all questions submitted to the electors, except that no person who has been lawfully adjudicated to be non compos mentis shall be permitted to vote. No person who is incarcerated in a correctional facility upon a felony conviction shall be permitted to vote until such person is discharged from the facility. Upon discharge, such person’s right to vote shall be restored. The general assembly may provide by law for shorter state and local residence requirements to vote for electors for president and vice president of the United States.

Article II of the 1843 Rhode Island Constitution was originally entitled “Of the Qualification of Electors” and consisted of six sections. The new Article II dealing with suffrage derives from Article of Amendment XXXVIII, entitled “Of Suffrage,” drafted by the 1973 Constitutional Convention and adopted November 6, 1973, by a margin of 72,065 to 30, 258. Section 1 above was Section 1 of Amendment XXXVIII, to which the 1986 Constitutional Convention added two sentences relative to a felon’s right to vote. That provision originated as Resolution 86–00149A and was approved by the convention’s Committee on Ethics. Prior to the adoption of this 1986 amendment, “persons otherwise qualified to vote who are convicted of felonies and have served time in this or any jurisdiction” were disqualified from voting until such right was restored by an act of the General Assembly. Bailey v. Baronian, 120 RI 389, 394 A.2d 1338 (1978). The Committee on Ethics believed that the right of felons to vote should be restored automatically

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without action by the General Assembly after the person has paid his debt to society by serving the sentence imposed by the court. The committee determined that the disqualification from voting should apply to those convicted of felonies whether by guilty plea, trial, or a nolo contendere plea—whether or not the person served time in prison. It decided not to make the disqualification applicable to persons convicted of misdemeanors. The resolution was part of Ballot Question 10 and was approved by the voters on November 4, 1986, by a margin of 164,863 (62 percent) to 101,262 (38 percent). The basic revision of the suffrage provisions of the Rhode Island Constitution was the handiwork of the 1973 Constitutional Convention. That body was authorized to deal with voting issues for three basic reasons: (1) to clarify and consolidate various voting provisions and amendments scattered throughout the constitution; (2) to eliminate the property-tax-paying requirement for voting on financial questions in town meetings, because the United States Supreme Court had declared similar qualifications a violation of the Equal Protection Clause in Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); and (3) to shorten the 60-day registration provision and the six-month residency requirement to accord with Dunn v. Blumstein, 405 U.S. 330 (1972); Marston v. Lewis 410 U.S. 679 (1973), and other recent U.S. Supreme Court decisions relative to those issues. The convention’s Committee on Elections, chaired by William T. Murphy Jr., a political science professor at Brown University, successfully addressed these concerns and produced a concise yet comprehensive article, which won the support of the delegates by a margin of 89 to 2. The 1973 voting amendment replaced Article II, Section 5, of the original 1843 constitution (persons residing on lands ceded by the state to the United States cannot “exercise the privilege of electors”) and all inconsistent provisions of Articles of Amendment XXII (registration by servicemen, 1944), XXIV (qualifications of electors, 1950), XXX (servicemen’s town tax exemption, 1951), XXIV (absentee and shut-in balloting, 1958), and XXXV (voter registration and canvassing, 1958). It also conformed to the recently enacted Twenty-sixth Amendment to the U.S. Constitution, which had lowered the voting age to 18. Prior to the ratification of that amendment in 1971, Rhode Island’s voting age had been 21. The ease with which the 1973 convention accomplished voting reform was in marked contrast to the controversial role of suffrage in Rhode Island’s constitutional history. The freehold qualification for voting was the principal grievance leading to the Dorr Rebellion; the nativistic suffrage provision of the 1843 constitution was the primary catalyst for the Equal Rights Movement of the 1880s; and the property-tax-paying requirement for voting in a city council elections had been one of two major concerns of constitutional reformers in the 1920s. Of the 44 amendments to the constitution of 1843, 22 dealt in some way with suffrage, or with reapportionment—that is, with the weight one’s vote would carry. As the bibliography of this volume indicates, more scholarly and reform pamphlets and essays have been devoted to suffrage than to any other constitutional issue. When the 1973 convention removed the constitutional requirement that a person must own real property or pay taxes on personal property amounting to at

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least $134 in order “to vote upon any proposition to impose a tax or for the expenditure of money in any town,” it removed the last vestige of the ancient property qualification that had vexed Rhode Island since the early nineteenth century. (See Patrick T. Conley, ed., The Proceedings of the Rhode Island Constitutional Convention of 1973 [Providence, 1973], pp. 81–85, 106–10.) Two examples of the impact of the nativistic suffrage clause of the 1843 constitution can suffice to illustrate the strength of political nativism during the middle decades of the nineteenth century: (1) the effort to gain the vote for foreign-born Civil War soldiers and (2) the impact of Rhode Island’s restrictions on the federal Constitution. The Adopted Citizens’ Association, established in 1861 under the leadership of Peter A. Sinnot and Michael Brennan, worked strenuously during the Civil War years to secure the same voting rights for naturalized citizens, especially servicemen, as enjoyed by the native-born. The group—a forerunner of the Equal Rights party of the 1880s—was Catholic-led and quite vocal. Despite the efforts of the Adopted Citizens’ Association, no headway was made in the area of suffrage reform prior to 1872. Even such a limited concession as granting the franchise to foreign-born soldiers and sailors who served the Union cause during the Civil War was rejected by the electorate. A constitutional amendment giving equal voting rights to naturalized servicemen honorably discharged from Rhode Island units was proposed by state senator and future Supreme Court Justice Elisha R. Potter, Jr., in August 1861. The South Kingstown legislator, who had drafted an enlightened statement on Bible reading in the public schools while commissioner of education in 1854, observed that the time had probably not arrived when the people of the state would repeal the property qualification completely, but he thought that the electorate would look with favor on those naturalized citizens who risked their lives for the preservation of the Union. Potter was wrong. His proposed amendment passed two successive sessions of the General Assembly, but it was soundly rejected at a popular referendum in October 1863 by a vote of 1,346 in favor and 2,594 against. Just before the balloting the Providence Journal published a series of editorials that raised doubts as to whether or not the proposed amendment would allow a naturalized citizen to vote who had simply enlisted in the state militia. These negative editorials, according to one knowledgeable observer, “had a perceptible influence upon the vote.” In 1864 the legislature rephrased the amendment to grant the vote without a real property qualification to naturalized citizens who had been in the service of the United States and honorably discharged. This proposition fared better than the first. It received 2,174 votes in favor and 1,578 votes against, but it failed to pass by a margin of 78 because a proposed amendment under Rhode Island’s basic law needed the approval of three-fifths of those electors voting thereon. In the period immediately following the Civil War, the movement for general suffrage reform intensified. State statistician Edwin M. Snow noted in his 1865 state census that “only one in twelve or thirteen of the foreign-born of adult age was a voter.” Leaders in the drive for liberalization of the franchise included Governor Ambrose Burnside, the former Civil War general, who supported the

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vote for naturalized veterans; former Democratic Congressman Thomas Davis, a Dublin-born Protestant who had been ousted from the United States House of Representatives by the Know-Nothing landslide of 1854; Providence Republican Mayor Thomas Doyle, a Protestant also of Irish descent; and state senators Sidney Dean of Warren and Charles C. Van Zandt of Newport. The most fervent and outspoken advocate of suffrage reform in the postwar era, however, was young, energetic, and articulate Charles E. Gorman from the Wanskuck area of North Providence, a section that was annexed by the city of Providence in 1873–1874. Gorman was born in Boston in 1844, the son of Charles and Sarah J. (Woodbury) Gorman. His father was a native of Ireland but his mother was descended from one of the original settlers of the Massachusetts Bay colony. Admitted to the bar in 1865, elected to the Rhode Island General Assembly in 1870, and elected to the Providence Common Council in 1875, Charles Gorman is reputed to have been the first Irish Catholic to achieve each of these distinctions. During the last third of the nineteenth century he devoted most of his legal talent and his political energy to the cause of constitutional reform, or “equal rights” as the movement was then called. In 1870, as a freshman representative, Gorman and Senator Dean sponsored bills calling for an unlimited state constitutional convention, but both measures failed to pass. As a concession, however, the assembly approved a resolution proposing three constitutional amendments, one of which called for the repeal of the real estate property qualification for naturalized citizens. This proposal met defeat in October 1871 by a wide margin—3,236 votes were cast in its favor but 6,960 of the electors rejected it. The vote came less than three months after New York City’s infamous “Orange Riots” between Catholic and Protestant Irishmen, bloody civil strife that prompted Henry B. Anthony’s Providence Journal to equate suffrage extension with “mob government.” The Journal’s views prevailed over the exhortations of three small newspapers (the Rhode Island Lantern, the Weekly Review, and the Weekly Democrat) founded by Irish Catholics in 1870 to publicize the need for political reform. In November 1876 another futile effort was made to allow foreign-born soldiers and sailors to vote on the same terms as native citizens (11,038 for to 10,956 against), but this measure did not succeed until April 1886 when, under Gorman’s lead, it became Article of Amendment VI to the Rhode Island Constitution. Meanwhile Gorman had sought protection for Irish-American and other naturalized citizens under the provisions of the newly-ratified Fourteenth (1868) and Fifteenth (1870) Amendments. As early as 1870 he had circulated a petition signed by nearly 3,000 citizens, which he presented to Congress asking it to decide whether or not the Rhode Island Constitution conflicted with the recent federal amendments. When Congress disclaimed jurisdiction, preliminary steps were taken by Gorman in 1872 to test Rhode Island’s real estate qualification for voting in the United States Circuit Court. Before his case was reached for argument, the Supreme Court in three related decisions undercut his position.

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While Gorman pressed for suffrage reform, United States Senator Henry B. Anthony worked in an equally zealous manner for restriction. In fact Senator Anthony had helped to minimize Gorman’s chance for a favorable court decision when Anthony fought to limit the Fifteenth Amendment to blacks alone. In 1869, during debate on the voting rights amendment, Senator Henry Wilson of Massachusetts submitted a plan to broaden the measure by abolishing all qualifications for voting or holding office based on “race, color, nativity, property, education, or religious belief.” In effect, Wilson posed the controversial question of whether the amendment should confine itself to Negro suffrage or undertake sweeping reform of voting and office-holding qualifications. Henry Anthony took sharp issue with Wilson on the floor of the Senate, chiding him for interference in Rhode Island’s affairs. His state’s voting laws, warned Anthony, “were not made for the people of Massachusetts; they were made for us, and whether right or wrong, they suit us, and we intend to hold them; and we shall not ratify any amendment to the Constitution of the United States that contravenes them, and we have the satisfaction of knowing that, without our State, the necessary number of twenty-eight states cannot be obtained for the ratification of any amendment whatever.” The anti-Irish Anthony knew Rhode Island’s support for the Fifteenth Amendment was critical because several Southern states seemed certain to reject it. This undoubtedly inspired his threatening remark. Anthony and a majority of his colleagues, who were animated by different motives, eventually prevailed. The Fifteenth Amendment in its final form was limited to blacks (“race, color, or previous condition of servitude”) and left such oppressed ethnic minorities as the Irish of Rhode Island and the Chinese of California unprotected. When the Fifteenth Amendment came to Rhode Island for ratification in 1869 the controversy centered on the Irish rather than the Negro vote. Rhode Island blacks had enjoyed the suffrage since 1843, so the amendment would not affect their status, but overly cautious Republican conservatives led by Anthony and Congressman Nathan F. Dixon feared the word “race” in the amendment could be interpreted to mean “ethnicity” and thereby invalidate Rhode Island’s real estate voting requirement for the foreign-born. One contemporary reporter wrote that “many Republicans were afraid of the Amendment not because they liked the Negroes less but because they feared the Irish more.” Supporters of ratification included Republican Governor Seth Padelford and G.O.P. Congressman Thomas A. Jenckes. This left the dominant party divided on the issue. One resourceful advocate of ratification said that if the amendment were interpreted to allow naturalized citizens equal voting rights, a literacy test could then be imposed to disfranchise many of them. Finally, in January 1870, the Fifteenth Amendment prevailed despite factional feuding, constitutional confusion, and ethnic tension, but it had been so emasculated by Anthony and his congressional colleagues and would be so narrowly interpreted by the courts that it afforded Charles Gorman and his Irish Catholic followers no comfort or relief. Eventually, in response to the demands of Gorman and others, a committee of the United States Senate, chaired by Pennsylvania Democrat William A. Wallace,

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conducted an investigation of Rhode Island’s governmental system. The committee’s report of 1880 concluded that “the rights of suffrage to foreign-born citizens of the United States is abridged by the constitution and laws of Rhode Island to a greater extent than anywhere in the nation.” The committee report also disclosed a widespread practice of political intimidation by mill owners of their employees who could vote. Because of the absence of a secret ballot, the senators observed, “at almost every election for years these men voted under the eye of their employers’ agents who were Republicans, and in very many cases under circumstances showing intimidation and fear of loss of work.” Eventually in 1887, when Gorman himself was speaker of the Rhode Island House of Representatives (the first House session controlled by Democrats since 1854), the Bourn Amendment was passed by the General Assembly. One year later it was ratified by a narrow margin to become Article of Amendment VII to the state constitution. It removed the real estate requirement for voting that had discriminated against the foreign born, but it did so at a time when native-born citizens of Irish descent greatly outnumbered naturalized Irish. In effect, the Bourn Amendment allowed newly arrived British, Swedish, German, Franco-American, and Italian immigrants to vote in state elections immediately upon naturalization. Republican leaders hoped these groups would align themselves with the GOP and consequently check the rising political power of the native-born Democratic Irish from whom the newer ethnics were culturally estranged. Their hopes were realized. This political effect may explain how Republican boss Charles R. Brayton, Anthony’s protégé and successor, could give his indispensable support to this pseudo-reform. But the Bourn Amendment is another complex story—one which shows that the political rivalry of Yankee and Celt, spawned in the 1840s, was still alive and virulent. Article 2, Section 1, defines the qualifications of voters and relates solely to the election of civil officers. See Wood v. Quimby, 40 A. 161 (R.I. 1898). The word “all” in Section 1 means an elector has the right to vote for all elected officers. See In Re Opinion to Governor, 6 A.2d 147, 150 (1939). Hence the legislature could not limit an elector to voting for only one or fewer than all elected officers. See id. The word “residence” as used in this section means the elector’s domicile or home, rather than his or her other place of actual habitation. See State ex rel. Goldsworthy v. Aldrich, 14 R.I. 171, 175 (1883). This ensures that electors who temporarily change their place of abode to another city do not lose their right to vote or hold office in the city where they maintain their residence. See id. If an elector’s qualifications are questioned, the burden of proof is on the person or board challenging the elector’s qualifications. See In Re Opinion of Justices, 16 A.2d 331, 332 (1940). It is easier to establish a domicile than it is to prove abandonment. See id. The disenfranchisement of convicted felons, even those who have completed their sentences and paroles, does not contravene the Equal Protection Clause of the Fourteenth Amendment. See Richardson v. Ramirez, 418 U.S. 24 (1974); Bailey v. Baronian, 394 A.2d 1338, 1344 (R.I. 1978). Until November, 2006 electors convicted of felonies who were imprisoned in Rhode Island or in any other jurisdiction (federal or state) were disqualified from voting until they completed their sentence (whether served

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or suspended, including any period of parole or probation). Thereafter, their right to vote was restored. See id. Question 2 on the November 7, 2006 referendum ballot amended this section by restoring voting rights (or privileges) to imprisoned felons when “such person is discharged from the [correctional] facility.” This amendment repealed the requirement that the felon must await the completion of a suspended sentence, probation, or parole prior to being permitted to vote. Supporters of the change, especially spokespersons for minority groups, contended that this proposed change will assist in the rehabilitation process. The voting restoration amendment was ratified by the narrow margin of 191,453 (approve) to 180,159 (reject). SECTION 2. Nominations, voter registration, and voting procedures. The general assembly shall provide by law for the nomination of candidates; for a uniform system of permanent registration of voters; for the exemption from such registration of persons in the active service of the nation and their families absent from the state because of such service, and, in time of war, members of the Merchant Marine; for absentee and shut in voting; for the time, manner and place of conducting elections; for the prevention of abuse, corruption and fraud in voting; and may define by law residence for voting purposes, but no person shall acquire such residence merely by being stationed or assigned in this state in the active service of the United States.

Under this section, which is identical to Section 2 of Article of Amendment XXXVIII (1973), the General Assembly must enact legislation providing for the nomination of candidates, for voter registration, for absentee and shut-in voting, and for establishing residency requirements for Rhode Island electors. Additionally, the General Assembly is required to enact laws that protect the voting system from corruption and fraud. Sections 1 and 2 of the suffrage article, as codified by the 1973 Constitutional Convention, derive in large part from several voting rights amendments enacted from World War II onward. The original absentee and shut-in ballot provision (Article of Amendment XXIII ratified in 1948) produced the major voting controversy of the past half century when the Rhode Island Supreme Court invalidated shut-in and absentee ballots because they were cast prior to election day. As a result of its convoluted decision in Roberts v. Board of Elections, 85 R.I. 203; 129 A2d 330 (R.I. 1957), the 1956 election results were reversed in the race for governor between incumbent Democrat Dennis J. Roberts and his Republican challenger, attorney Christopher Del Sesto. The fact that Associate Justice Thomas Roberts, brother of the governor, was a member of the high court—though he abstained from voting—further offended the general public’s sense of fair play and hurt the image of the court as an impartial tribunal. The popular belief that the will of the voters had been disregarded obscured the technical soundness of the ruling. The court did not hand down its decision until February 13, 1957, although it was retroactive to inauguration day, January 1, 1957. It came in the form of a proceeding on petition of certiorari to review the action of the state board of elections in declaring Del Sesto the victor. The board’s tally of absentee ballots had reversed

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the election-day machine returns, which had given Roberts a slight edge, 190,259 to 190,052. A count of all the absentee and shut-in votes by the board of elections, however, gave Del Sesto the governorship by a margin of 194,974 to 194,547. Roberts challenged this final total, asserting that many votes had been cast illegally. The court agreed. Of the three categories of mail ballots—servicemen, civilian, and shut-in—the 3-to-1 court majority contended that the latter two types should be invalidated because of an inconsistency between statutory and constitutional provisions relating to the time when shut-ins and civilian absentees could vote. According to the court’s analysis, Article of Amendment XXII (1944), dealing with servicemen, allowed the legislature to fix a time for balloting on a day other than election day, whereas Article XXIII (1948), dealing with civilians and shut-ins, did not. The failure of the latter amendment to allow the legislature discretion regarding the time for casting ballots necessitated recourse to Article XVI (1911), which had earlier been interpreted by the court to require voting only on election day. Therefore the portion of the existing 1953 statute governing shut-in and civilian absentee voting procedures that allowed voting prior to election day was unconstitutional. Its unconstitutionality, said the court, rendered void all ballots cast under its authority. To compound the confusion of the electorate, the court noted that Article XXI (1930) had modified Article XVI and enabled the General Assembly to allow absentee voting before election day, but XXI had been repealed by Article XXIII, and with it fell all of the voting laws based upon it, including the 1953 elections law. This somewhat strained decision also strained public confidence in the judicial system. With all civilian absentee and shut-in voters disfranchised, Roberts was certified the winner, 192,315 to 191, 604. Article of Amendment XXIV, ratified on February 27, 1958, cured the apparent defect in absentee voting procedures, and Del Sesto beat Roberts in the 1958 gubernatorial election. The so-called “long count” of 1956 had significant political repercussions. See Matthew J. Smith, “The Long Count and Its Legacy: Rhode Island Political Realignment, 1956–1964,” Rhode Island History, 35 (May 1976): 49–61.

Article III Of Qualification for Office SECTION 1. Civil office—Qualified electors. No person shall hold any civil office unless that person be a qualified elector for such office.

Article IX, Section 1, of the 1843 constitution, on which this section is based, read: “No person shall be eligible to any civil office (except the office of school committee) unless he be a qualified elector for such office.” The framers of the 1843 document included this curious exception to allow women to serve on local school committees. When women were accorded full status as electors in August 1920 by the Nineteenth Amendment to the federal Constitution, the exception no longer served its original purpose. It was not until 1973, however, that the section was modernized. The Constitutional Convention of 1973 passed Proposal No. 7 unanimously, and it was ratified by the electorate in November 1973 as Article of Amendment XXXIX. The new language read: “No person shall hold any civil office unless he be a qualified elector for such office.” The people adopted that provision nearly as is in 1986 except for its relocation and its use of gender-neutral language. The original form of this section and the concession to gender made in 1986 invites a brief discussion of the effort in Rhode Island to include women among the ranks of qualified electors and voters. That organized battle began on December 11, 1868, when Paulina Wright Davis and Elizabeth Buffum Chace formed the Rhode Island Woman Suffrage Association in Providence and ended successfully on January 6, 1920, when the General Assembly ratified the Nineteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.”

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Most of the jurisprudence under this section attempts to define the section’s operative terms “civil office” and “qualified elector.” Id. In State ex rel. Cummings v. Crawford, 21 A. 546 (R.I. 1891), the court stated that “[a] civil office has the characteristics of tenure; of definite term; of general duties as a part of the regular administration of the government; of right to emoluments; and of qualification by oath.” The court found that members of a municipal fire board—created for the purposes of extinguishing fires and maintaining firefighting equipment, and with none of these characteristics—were not civil officers. Id. The court also stated that the term “civil officers” was meant “to embrace only those in whom a portion of the sovereignty is vested, or to whom the enforcement of municipal regulations for the control of the general interest of society is confided.” Id. Later, in State ex rel. Costello v. Powers, 97 A.2d 584, 586 (R.I. 1953), the court held that a commissioner of a municipal housing authority who had no power in his capacity as commissioner to act unilaterally was not a civil officer. Conversely, in In re Harrington, 117 A. 273, 274 (R.I. 1922), the court found that town auctioneers appointed by the town council were civil officers and were long regarded as such. Thus the court found that whether one was considered a civil officer did not depend on whether that person was elected or appointed. Id. More recently, in In re Advisory Opinion to the Senate, 277 A.2d 750, 753 (R.I. 1971), the justices opined that the administrator or manager of a city or town is a civil officer if he has tenure and is the chief executive and administrative officer of the city. The justices distinguished “civil officer” from “employee” in the context of town administrators by saying that employees have neither tenure nor a definite term, and if the relationship between the administrator and the municipality was more of a contractual nature, then the administrator would be considered an employee. Id. The justices went on to say that a police chief would be considered a civil officer since the chief would almost certainly be given the duty to preserve the public peace and enforce the laws. Id. at 754. Defining the term “qualified elector” has also received judicial attention. In Harrington, 117 A. at 274, the court found that “civil officers” could be appointed. The implication is not that the electorate must vote for all civil officers, but rather that if there is an election held for a particular civil officer, then that officeholder must be eligible to vote in that election and in any actual election for the office that the person holds. In State ex rel. Goldsworthy v. Aldrich, 14 R.I. 171 (1883), the court found that a man who had moved out of town to care for his sick wife but still maintained his residence there was eligible for the municipal office for which he was elected. The court reasoned that the man was still a “resident” within the meaning of the term as it is used in the sections of the Rhode Island Constitution pertaining to suffrage. In State v. Lake, 17 A. 552 (R.I. 1889) (per curiam), the court brushed aside a claim from a defendant charged with throwing rocks at a building who contended that the magistrate judge who presided over his trial was not qualified for that office. The court said that the evidence suggesting that the defendant was not a

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qualified elector did not prove that the magistrate was not an elector; thus the defendant was sufficiently charged. Id. Likewise, in Bryer v. Sevigney, 106 A. 155, 156–57 (R.I. 1919), the court found that if one who technically should not be able to vote is listed on the voter registry and that person does indeed vote, then that person would be considered a qualified elector and could take the office to which he was elected. One final case worth mentioning is Pelligrino v. State Bd. of Elections, 211 A.2d 655 (R.I. 1965). In that case, the plaintiff—a former candidate for office—had been inadvertently listed on the ballot as “Josephine” instead of “Joseph,” which was his actual name. Id. at 656. After losing a close election to a woman named Florence Soloveitzik, the plaintiff claimed the election was unconstitutional because “Josephine Pelligrino” did not exist and thus was not a qualified elector. Id. at 657. The court disagreed and held that since neither candidate was unqualified and no one with the name “Josephine Pelligrino” was claiming the office as hers, the election did not violate this section. Id. SECTION 2. Disqualification upon conviction or plea of nolo contendere— Requalification following sentence, probation or parole. An elector shall be disqualified as a candidate for elective or appointive state or local office or from holding such office if such elector has been convicted of or plead nolo contendere to a felony or if such elector has been convicted or plead nolo contendere to a misdemeanor resulting in a jail sentence of six months or more, either suspended or to be served. Such elector shall not, once so convicted, attain or return to any office until three years after the date of completion of such sentence and of probation or parole.

Article IX, Section 2 of the 1843 constitution read: “Every person shall be disqualified from holding any office to which he may have been elected, if he be convicted of having offered, or procured any other person to offer, any bribe to secure his election, or the election of any other person.” Amendment XXIV, Section 1, to the 1843 constitution, added in 1950, read in part: “Nor shall any person convicted of bribery, or of any crime deemed infamous at common law, be permitted to exercise that privilege, until he be expressly restored thereto by act of the general assembly.” The 1973 Constitutional Convention changed the qualifications needed to exercise the franchise by Article of Amendment XXXVIII. That section stated in part: “Nor shall any person otherwise qualified to vote as provided in this Article be permitted to vote while serving a prison sentence on final conviction of a felony nor subsequent to such imprisonment until the franchise shall have been restored by an Act of the general assembly.” The 1986 Constitutional Convention crafted the present Section 2 from Section 2 of Article IX of the 1843 constitution as amended. The disqualification clause originated as Resolution 86–00025B and was considered by the convention’s Committee on Ethics. The Rhode Island Supreme Court has on several occasions considered the right of a person convicted of a crime to run for or hold public office. In Bailey v. Burns, 118 R.I. 428, 375 A.2d 203 (1977), the court held that the secretary of state could

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not be compelled to administer the oath of office to a member-elect whom the other members of the House of Representatives had determined was not a qualified elector. In a subsequent case, the court interpreted the provision contained in Article of Amendment XXXVIII of the 1843 constitution, which disfranchised persons who have served a prison sentence “on final conviction of a felony.” In Gelch v. State Board of Elections, RI 482 A.2d 1204 (1984), the court considered the challenge to the candidacy of Vincent A. Cianci, Jr., who had resigned from the office of mayor of Providence and was seeking to run for that office again in the special election scheduled to fill the vacancy. The court acknowledged that the United States Supreme Court had held that states “have discretion to establish conditions under which the right of suffrage may be exercised and the right to hold public office determined.” Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L. Ed.2d 1072, 1076 (1959). Although the court’s decision in Gelch depended on its interpretation of a provision of the Providence Home Rule Charter, the court also acknowledged that Section 2 of the Fourteenth Amendment to the U.S. Constitution expressly grants the states the power to disenfranchise convicted felons. In another case, the court determined that a Johnston councilman, Joseph Voccola, was not disqualified from holding his office as a result of his incarceration in a federal prison. This decision was based on the fact that Voccola was convicted of a misdemeanor under federal law, and Article of Amendment XXXVIII of the Rhode Island Constitution disfranchises persons from voting (and consequently from holding office) only if they serve time in prison following conviction of a felony. Violet v. Voccola, R.I. 497 A.2d 709 (1985). The court noted that the attorney general had suggested that Voccola had vacated his office by reason of his inability to serve while in prison. The court determined that it did not have the power to declare an office vacant because of the holder’s temporary disability. The court argued that “if the people of the State of Rhode Island, through their constitution, desire to disqualify a person from holding public office if that person is convicted of any offense that results in incarceration for any period of time, they would undoubtedly have the power to do so.” Violet v. Voccola, R.I. 497 A.2d 713 (1985). The court stated that the only criterion for disqualifying an individual from holding office at that time was conviction of a felony and subsequent imprisonment. Thus Voccola was permitted to retain his office during the term of his incarceration. The 1986 convention’s Committee on Ethics debated at length the question of whether only conviction of a felony should result in disqualification from office or whether a higher standard should be set. The committee decided that conviction of a felony, with or without a jail sentence, should result in disqualification from office. However, the committee members did not believe that conviction of a misdemeanor without a jail sentence should result in disqualification. They concluded that an individual convicted of a misdemeanor and sentenced to jail for six months or more, whether the sentence is served or suspended, should be disqualified from office.

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The Rhode Island Supreme Court has addressed the applicability of Amendment XXXVIII to felonies committed outside Rhode Island and has held that the meaning of “felony” in the amendment applies to a felony committed anywhere. Bailey v. Baronian, 120 R.I. 389 (1978). The committee recognized that the alternatives were to (1) disqualify only persons convicted of a crime in Rhode Island, or (2) disqualify persons convicted of a crime anywhere, or (3) disqualify persons convicted of a crime in another jurisdiction which is a felony under Rhode Island law. The committee recognized the drawbacks of each of these choices but believed on balance that the standard of offenses set forth in the Rhode Island General Laws should be adopted. It also believed that disqualification should commence upon conviction and should last for a period of three years beyond the successful completion of any sentence or probationary period. Resolution 86–00025B was included in Ballot Question 10 and was approved by the voters on November 4, 1986, by a margin of 164,863 (62 percent) to 101,263 (38 percent). One other case to note is State ex rel. Webb v. Cianci, 591 A.2d 1193 (R.I. 1990). In that case the court held that this section was not meant to apply retroactively. Thus one convicted of a crime prior to the section’s taking effect could not be disenfranchised, at least not by way of this section. Id. At 1204. Section 2 has not been altered since its adoption in 1986. A change in the statute that categorizes offenses, however, could affect the applicability of Section 2. Currently the law is as follows: Every act and omission which is an offense at common law, and for which no punishment is prescribed by the general laws, may be prosecuted and punished as an offense at common law. Every person who shall be convicted of any offense which is a misdemeanor at common law shall be imprisoned for a term not exceeding one year or be fined not exceeding five hundred dollars ($500). Every person who shall be convicted of any offense which is a felony at common law shall be imprisoned for a term not exceeding five (5) years or be fined not exceeding five thousand dollars ($5,000). Unless otherwise provided, any criminal offense which at any given time may be punished by imprisonment for a term of more than one year, or by a fine of more than one thousand dollars ($1,000), is declared to be a felony; any criminal offense which may be punishable by imprisonment for a term not exceeding one year, or by a fine of not more than one thousand dollars ($1,000), or both, is declared to be a misdemeanor; any criminal offense which may be punishable by imprisonment for a term not exceeding six (6) months or by a fine of not more than five hundred dollars ($500), or both, is declared to be a petty misdemeanor; and any offense which may be punished by only a fine of not more than five hundred dollars ($500) is declared to be a violation. R.I. Gen. Laws §§ 11–1-1, 11–1-2 (2005). SECTION 3. Oath of general officers. All general officers shall take the following engagement before they act in their respective offices, to wit: You being by the free vote of the electors of this state of Rhode Island and Providence Plantations, elected unto the place of_____do solemnly swear (or, affirm) to be true and faithful unto

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this state, and to support the Constitution of this state and of the United States; that you will faithfully and impartially discharge all the duties of your aforesaid office to the best of your abilities, according to law, So help you God. [Or: This affirmation you make and give upon the peril of the penalty of perjury.]

The language of this section remains unchanged from Article IX, Section 3, of the 1843 constitution. Only its location in the basic law has been altered. The oath is similar to the one required of federal offi cers. See U.S. Const. Art. II, § 1, Art. VI. This section has not been the subject of judicial interpretation. The size and significance of the Quaker community in early Rhode Island probably accounts for the alternative language. There is no known incident wherein a general officer refused to take this oath on religious grounds. SECTION 4. Oath of General Assembly members, judges, and other officers. The members of the general assembly, the judges of all the courts, and all other officers, both civil and military, shall be bound by oath or affirmation to support this Constitution, and the Constitution of the United States.

This section originally appeared with the same language as Article IX, Section 4, of the 1843 constitution. The courts have not had occasion to render an opinion regarding this provision. SECTION 5. Method of administering the oath of office. The oath or affirmation shall be administered to the governor, lieutenant governor, senators, and representatives by the secretary of state, or, in the absence of the secretary of state by the attorney-general. The secretary of state, attorney-general, and general treasurer shall be engaged by the governor, or by a justice of the supreme court.

This section appeared as Article IX, Section 5, of the 1843 constitution and remains intact, except for the use of gender-neutral language. Bailey v. Burns, 375 A.2d 203 (R.I. 1977), is the only case interpreting this section. There, the Rhode Island Supreme Court held that whether or not one elected to office should be given the oath is a justiciable question. Id. at 207. The court went on to hold that one elected to the office but who could not constitutionally hold the office should not be given the oath that would allow that person to take the seat to which the person was elected. Thus it refused a request for a writ of mandamus that would have ordered the secretary of state to administer the oath of office to an unqualified elector. See Id. at 208. SECTION 6. Holding of offices under other governments—Senators and representatives not to hold other appointed offices under state government. No person holding any office under the government of the United States, or of any other state or country, shall act as a general officer or as a member of the general assembly, unless at the time of taking such engagement that person shall have resigned the office under such government; and if any general officer, senator, representative, or judge shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated; but this restriction shall not apply to any person appointed to take depositions or acknowledgments of deeds, or other legal instruments, by the authority of any other state

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or country. No senator or representative shall, during the time for which he or she was elected, be appointed to any state office, board, commission or other state or quasi-public entity exercising executive power under the laws of this state, and no person holding any executive office or serving as a member of any board, commission or other state or quasi-public entity exercising executive power under the laws of this state shall be a member of the senate or the house of representatives during his or her continuance in such office.

The first sentence of this section is identical to Article IX, Section 6, of the 1843 constitution, except for the use of gender-neutral language by the 1986 Constitutional Convention. The separation of powers amendments, passed by Rhode Island voters in 2004 and made effective the following year, added the second sentence to the section. Not surprisingly, jurisprudence under Section 6 thus far has mainly concerned its first sentence. Until 2005 the key case on Article III, Section 6, involved the designation by President Eisenhower of incumbent governor Dennis J. Roberts as a special representative of the United States to the 10th Session of the General Assembly of the United Nations. In Opinion to the Governor, 83 R.I. 370; 116 A.2d 474 (R.I. 1955), the justices of the supreme court (a majority of whom were the governor’s previous political allies) declared that such a position was an office that entitled its incumbent “to exercise some portion of the sovereignty of another government,” and therefore an office within the prohibition imposed by the Rhode Island Constitution. In interpreting this section, said the justices, it is unnecessary to restate the history of our constitution and to establish the fact that from the beginning Rhode Island has been exceptionally jealous of its independence and sovereignty as a state. For the present problem it is sufficient to point to the explicit provisions of the above-quoted section of our constitution which are as strong, if not stronger, than similar prohibitions found in the constitutions of other states. (Emphasis added)

In the Roberts case, the justices also observed that a representative in the General Assembly of the United Nations is an officer of the United States, and that “the status of a representative as an officer does not differ essentially from that of certain diplomatic officers abroad who exercise their powers under instructions of the president through the department of state, or that of military or naval officers who are subject to the orders of the president as commander-in-chief.” The justices went on to say that whether a different office that a state official might accept constitutes an “office under the government of the United States, or of any other state or country,” depended on whether the sovereignty is the source of power, whether the duties are of a public character (due to the community in its political capacity), and whether the tenure is fixed and permanent, absent neglect or malfeasance. The justices found that the office in question had these characteristics and thus was unavailable to the governor. Id. at 480. Conversely, in In re Sundlun, 585 A.2d 1185, 1187 (R.I. 1991), the justices found that Bruce Sundlun, the senior member of the board of directors of a private District of Columbia corporation, did not hold the type of office that would prevent

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him from serving as governor under this section. In the Sundlun case, the governor’s membership on the board of directors of the Communications Satellite Corporation (COMSAT) did not constitute the holding of an “office under the government of the United States.” The test for what constitutes such an office is “whether the incumbent is entitled by the office to exercise a portion of the sovereignty of the United States government.” The court derived this test from the Roberts case. As applied to the Sundlun question, the court declared that “the duties of a COMSAT director are not to the community in its political capacity but rather to COMSAT itself. In this respect, a directorship of COMSAT is no different from the directorship of any other large publicly held corporation.” Members of the COMSAT board were not “officers of the United States” and therefore “not subject to provisions of Article III, Section 6, of the Rhode Island Constitution.” A federal constitutional prohibition analogous to the Rhode Island constitutional ban is found in Article I, Section 6, Clause 2, of the U.S. Constitution, which states that “no person holding any office under the United States, shall be a Member of either House [of Congress] during his Continuance in Office.” One of the more recurrent problems relating to this clause is the compatibility of congressional office with service as an officer of some military organization, such as militia or reserves. According to both Hind’s and Cannon’s Precedents of the House of Representatives, members of Congress have been unseated for accepting appointment to military office during their congressional tenure, but there are no instances in which a member-elect has been excluded for this reason. Although this section’s prohibitory language is direct, plain, and allencompassing—“if any general officer, senator, representative, or judge, after election and engagement, accept any appointment under any other government, the office under this [government] shall be immediately vacated”—the court in Davis v. Hawksley (119 R.I. 453; 379 A.2d 922 [R.I. 1977]) found a loophole. It held that the Rhode Island Constitution did not prohibit a colonel in the United States Army Reserve from being appointed to the superior court and from retaining both positions. The court’s opinion, however, depended almost exclusively on the curious language of the constitutional provision: “if any … judge shall, after election and engagement, accept any appointment” (emphasis added). Thomas Needham, the object of the complaint, was already a colonel in the U.S. Army Reserve at the time of his appointment to the bench. The court noted that “Here Justice Needham’s commission in the Army Reserve predates his appointment to the bench. Therefore, it is clear that acceptance of a judicial position by a member of the Reserve is not prohibited by the language of this provision in the Constitution.” The General Assembly created confusion over the applicability of Section 6 in 1956 in the aftermath of the Roberts decision when it passed a statute—R.I.G.L. 30–14–3—which allows any citizen of the state to hold a military commission in the militia, the National Guard, or “any reserve component of the United States armed forces without thereby vacating any civil office … held by that citizen.” This background is a prelude to the constitutional controversy that erupted in 2004 when Rhode Island Supreme Court Chief Justice Frank J. Williams was

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appointed by President George Bush through the Department of Defense to serve with the rank of major general on a Military Commission Review Panel to hear appeals from suspected captive terrorists. Convinced that the 1994 constitutional amendment changing the method of choosing supreme court justices from election by the Grand Committee of the General Assembly to nomination by a judicial selection commission removed him from the “election and engagement” provision of Section 6, Chief Justice Williams took the oath of office to the federal government. This act, said attorney Keven McKenna, former president of the 1986 Constitutional Convention, rendered Williams’s position as chief justice “immediately vacated.” Invoking what he considered the plain language of Section 6 and the previous case law thereon, McKenna filed suit in superior court to enforce his position. In an unusual move, the supreme court preempted the jurisdiction of the trial court and decided the matter in favor of its chief. The court’s ruling in McKenna v. Williams, 874 A.2d 217 (R.I. 2005), held that the dual-office-holding ban of Section 6 was inapplicable to supreme court justices because, as a result of the 1994 judicial selection amendment, they were no longer subject to “election and engagement” but rather were appointees with tenure during good behavior. The court had reached the prior conclusion that McKenna lacked standing because it construed his complaint to be a petition for writ of quo warranto, which could be filed only with the cooperation of the attorney general. But the majority did not stop there. Three justices opined further that Section 6 violated the national Supremacy Clause of the U.S. Constitution (Article VI) and the powers of the president to make appointments as commander-in-chief (Article II, Section 2). In declaring the unconstitutionality of its own constitution on federal grounds, the court observed in dicta that Section 6 “may fly in the face of the Supremacy Clause of the United States Constitution.” For a critique of the decision in McKenna v. Williams, see Patrick T. Conley, “Williams Ruling Exalts Semantics over Law,” Providence Journal, June 25, 2005, Commentary, p. B7. The second sentence of this section has not yet been the subject of judicial interpretation. The people amended the constitution in 2004 to add this additional sentence after the court issued a controversial advisory opinion in 1999 wherein a majority of the justices declared that a proposed ethics rule that would have mandated what this sentence now requires was unconstitutional. See In re Advisory Opinion to the Governor (Rhode Island Ethics Commission—Separation of Powers), 732 A.2d 55, 61 (R.I. 1999). This decision energized a reform campaign that resulted in the addition of the second sentence regarding executive appointments in 2004, as well as the other separation of powers amendments. It is certain that the General Assembly will test the appointments clause where state boards and commissions exercise jurisdiction in areas constitutionally and historically delegated to the legislature, such as the environment, coastal resources, lotteries, and education. The battle of the boards is not yet concluded, but the result, we predict, is foreordained by the separation of powers amendments and by the repeal of the General Assembly’s residual powers clause.

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SECTION 7. Ethical conduct. The people of the State of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety and not use their position for private gain or advantage. Such persons shall hold their positions during good behavior.

See the discussion under Section 8. SECTION 8. Ethics commission—Code of ethics. The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics. The ethics commission shall have the authority to investigate violations of the code of ethics and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment.

Sections 7 and 8 were drafted in concert by the 1986 Constitutional Convention and should be read in concert. They originated as Resolution 86–00060A and were debated and approved by the convention’s Committee on Ethics, efficiently chaired by attorney Anthony DeSisto of Barrington. Section 7 contains a general statement of the standards expected by the citizens of the state from their elected and appointed officials. Specific prohibited activities are detailed in a conflict of interest statute (R.I.G.L. 36–14–4). The committee determined that the Ethics Commission authorized by Section 8 should have the power to remove from office all individuals covered by the code of ethics except officials subject to impeachment (see Article XI). Removal would be appropriate, the committee believed, only for a serious violation of the code, a document drafted by the Ethics Commission with penalties provided by the legislature for violations thereof. The ethics resolution was part of Ballot Question 6 and was approved by the voters on November 4, 1986, by a margin of 143,973 (53.3 percent) to 125,964 (46.7 percent). In In re Advisory Opinion to the Governor (Ethics Comm’n.), 612 A.2d 1, 14 (R.I. 1992), the justices concluded that Section 8 empowered the Ethics Commission to enact ethics laws, but it did not divest the legislature of all its power to enact similar laws. The legislature, however, could not enact ethics laws that were inconsistent with the code of ethics adopted by the commission. Likewise, Town of Lincoln v. Lincoln Lodge No. 22, 660 A.2d 710, 715 (R.I. 1995), held that the legislature still had the authority over the “scope and organization” of police officers’ unions and that it could require police chiefs to be members of those unions. The court also stated that “the appearance of impropriety” was to be determined on a case-bycase basis. Id. at 715–16. With respect to police chiefs in officers’ unions, the court said that the factors to be considered are “a particular chief ’s powers, responsibilities, policy-making authority, and the extent of that chief ’s actual involvement in negotiations.” Id. at 716. In In re Advisory Opinion to the Governor (Rhode Island Ethics Comm’n.— Separation of Powers), 732 A.2d 55, 60 (R.I. 1999), a majority of the justices

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concluded that the power given by this section to the Ethics Commission to adopt an ethics code was not unlimited. The 4-to-1 majority (Justice Flanders dissented) went on to say that the commission’s interpretation of its own enabling act (Article III, Section 8) was subject to some form of heightened scrutiny. Id. The majority further concluded that a proposed ethics law that would have excluded legislators and their appointees from serving on state boards and commissions ( an exclusion which is now the substance of the second sentence of Article III, Section 6, as amended in 2004) was, at that time, unconstitutional. Id. at 72. Again, one should note that the justices addressed all these issues prior to the separation of powers amendments adopted in 2004. Among other changes, these amendments added a second sentence to Article III, Section 6 (barring legislators from also holding executive offices), as mentioned in the previous commentary to that section, and removed the residual powers of the legislature. R.I. Const. Art. III, § 6 (amended 2005), Art. VI, § 10 (repealed 2005). Thus it is unclear how those amendments will affect the scope of the Ethics Commission’s powers vis-à-vis the legislature.

Article IV Of Elections and Campaign Finance This article appeared as VIII, “Of Elections,” in the original 1843 constitution. Sections 1 through 9 were annulled in November 1900 by Article of Amendment XI, Section 12, along with any amendments to Article VIII that were inconsistent with the 1900 enactment. Prior articles of amendment that were not inconsistent (e.g., Article of Amendment X, 1893 [plurality elections] were retained, and subsequent changes (viz., Articles of Amendment XVI, 1911 [biennial elections]; XVIII, 1928 [biennial voter registration], XXXVIII, Section 2 ,1973 [campaign financial disclosure], and XXXIX, 1973 [qualifications for office] were added. The 1986 Constitutional Convention relocated, retitled, and renumbered Article of Amendment XI and the changes made thereto by designating it “Article IV: Of Elections and Campaign Finance.” In the process, the convention deleted Sections 9 and 10 of Article of Amendment XI because they were merely transitional provisions. SECTION 1. Election and terms of governor, lieutenant governor, secretary of state, attorney general, general treasurer, and General Assembly members— Recall. The governor, lieutenant governor, secretary of state, attorney general and general treasurer shall be elected on the Tuesday after the first Monday in November, quadrennially commencing A.D. 1994, and every four (4) years thereafter, and shall severally hold their offices, subject to recall as provided for herein, for four (4) years from the first Tuesday of January next succeeding their election and until their successors are elected and qualified. No person shall serve consecutively in the same general office for more than two (2) full terms, excluding any partial term of less than two (2) years previously served.

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The senators and representatives in the general assembly shall be elected on the Tuesday after the first Monday in November, biennially in even-numbered years, and shall severally hold their offices for two (2) years from the first Tuesday of January next succeeding their election and until their successors are elected and qualified. Recall is authorized in the case of a general officer who has been indicted or informed against for a felony, convicted of a misdemeanor, or against whom a finding of probable cause of violation of the code of ethics has been made by the ethics commission. Recall shall not, however, be instituted at any time during the first six (6) months or the last year of an individual’s term of office. Such a recall may be instituted by filing with the state board of elections an application for issuance of a recall petition against said general officer which is signed by duly qualified electors equal to three percent (3%) of the total number of votes cast at the last preceding general election for that office. If, upon verification, the application is determined to contain signatures of the required number of electors, the state board of elections shall issue a recall petition for circulation amongst the electors of the state. Within ninety (90) days of issuance, recall petitions containing the signatures of duly qualified electors constituting fifteen percent (15%) of the total number of votes cast in the last preceding general election for said office must be filed with the state board of elections. The signatures to the application and to the recall petition need not all be on one (1) sheet of paper, but each such application and petition must contain an identical statement naming the person to be recalled, the general office held by said person, and the grounds for such recall set forth in a statement of one hundred (100) words or less approved by the board of elections. Each signatory must set forth his or her signature as it appears on the voting list, the date of signing, and his or her place of residence. The person witnessing the signatures of each elector on said petition must sign a statement under oath on said sheet attesting that the signatures thereon are genuine and were signed in his or her presence. If the requisite number of signatures are not obtained within said ninety (90) days period, the recall effort shall terminate. Upon verification of the requisite number of signatures, a special election shall be scheduled at which the issue of removing said office holder and the grounds therefore shall be placed before the electors of the state. If a majority of those voting support removal of said office holder, the office shall be immediately declared vacant and shall be filled in accordance with the constitution and laws of the state. The person so removed shall not be eligible to fill the unexpired portion of the term of office. The general assembly shall provide by statute for implementation of the recall process.

The framers added this section to the constitution via a 1992 constitutional amendment that the voters ratified on November 3 of that year by a margin of 215,040 to 142,130. The first paragraph provides four-year terms for the five general officers, effective in 1994, thereby doubling their tenure. The 1973 Constitutional Convention had advanced this provision, but the voters narrowly rejected it on November 6, 1973, with 55,998 against and 52,332 in favor. The 1986 open convention proposed four-year terms for both general officers and members of the General Assembly, coupling the extension with a recall provision. The voters rejected that change by a wider margin because of its attempt to lengthen legislators’ tenure. By the deletion of legislators from the provision, the 1992 amendment fared much better.

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The terms of the state officers set by this section have changed significantly over the course of time. The Charter of 1663 allowed general officers one-year terms, a tenure that the constitution of 1843 reaffirmed. Not until the ratification of Article of Amendment XVI on November 7, 1911, by a vote of 27,149 to 14,176 did general officers and legislators receive a two-year term. The last sentence of paragraph 1 contains a final feature of the 1992 amendment as it pertains to term and tenure. Based on the Twenty-second Amendment to the federal Constitution, it bars a person from serving consecutively in the same general office for more than two full terms, “excluding any partial term of less than 2 years previously served.” This term limitation does not apply to legislators, however, because their term of office was not lengthened. The final four paragraphs of Section 1 set forth with specificity a procedure for the recall of general officers (but not legislators). The lengthening of the term of office to four years primarily accounts for this change. The recall process, however, has its limits. No general officer can be the object of a recall petition unless “indicted or informed against [i.e., a criminal information brought by the attorney general] for a felony, convicted of a misdemeanor, or against whom a finding of probable cause of violation of the code of ethics has been made by the ethics commission.” The petition requires the signatures of 3 percent of the total number of votes cast in the last preceding general election for that office to begin the process and 15 percent of that number to force a special election at which “the issue of removing said office holder and the grounds therefore shall be placed before the electors of the state.” Petitioners have 90 days from the issuance of the 3 percent petition by the state board of elections to accumulate the required verified signatures. SECTION 2. Election by plurality. In all elections held by the people for state, city, town, ward or district officers, the person or candidate receiving the largest number of votes cast shall be declared elected.

Section 2 specifically provides that in both primary and general elections for state office, candidates can win an election only if they receive the largest number or a plurality of the votes cast. See Metts v. Murphy, 363 F. 3d 8 (1st Cir. 2003). Hence, by receiving a majority of the votes, the candidate will be declared winner of the election. See id. The plurality provision originated as Article of Amendment X adopted on November 18, 1893, by the overwhelming margin of 26,703 to 3,331—the most decisive ratification of an amendment in Rhode Island’s constitutional history. The emphatic nature of the vote was due to four years (1889–1893) of electoral “no choice” in the race for governor under the existing majority election requirement. This annual impasse was the result of the presence of a third party (the Prohibition party) in the races for several state offices. In 1889 Democratic reformer “Honest” John Davis outpolled Republican Herbert W. Ladd by 4,419 votes, but the General Assembly’s grand committee gave the nod to Ladd under the procedures established by Article VIII, Sections 7 and 10. In 1890 Davis was again the high vote-getter against Ladd, and this time

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he was chosen governor by the grand committee because of an increased number of House Democrats. In 1891 Davis again outpolled Ladd, but the legislators picked the Republican. In 1892 Republican D. Russell Brown beat Democrat William Wardwell with a narrow majority of 243 ballots, but in 1893 no one obtained a majority. When the Republican senate and the Democratic House reached an impasse, the ballots were not officially counted, there was no election, and Brown carried over. Since the plurality election requirement applied to legislators as well as general officers, there were numerous second or “by-elections” held that caused changes in the composition of the grand committee. Eventually the returns from by-elections resulted in a grand committee of 60 Republicans, counting the lieutenant governor, and 59 Democrats. At this juncture the Democratic House expelled two Republican members-elect under the provisions of the old Article IV, Section 6, giving the Democrats control of the grand committee. The House then sent an invitation to the Republican senate to join it in grand committee to count the votes for governor and other general officers. The senate declined the invitation and voted to adjourn “owing to irreconcilable differences” with the House. When the house ignored the senate action, incumbent Governor Brown prorogued the General Assembly under the provisions of Article VII, Section 6, of the 1843 constitution, so the popular votes cast in the 1893 election were never counted. The House then asked the supreme court for its opinion of the legality of the adjournment of the legislature by the governor. Assuming that the governor had prorogued the General Assembly before the resolution asking for an opinion had been passed, the court answered first that it was under no obligation to take notice of the resolution because it had not been “passed by the House of Representatives.” Waiving the question as to the legality of the resolution because of “the gravity of the situation . . . and the importance of the principles involved,” the court assumed the right and duty to answer: (1) that circumstances, such as “a palpable violation of the Constitution by the expulsion of members contrary to its provisions, whereby the character of the grand committee is changed,” might warrant the senate in its vote to adjourn for more than two days before proceeding to the imperative duty of counting the vote; (2) that the determination of the fact of a disagreement as to the time and place of adjournment rested with the governor exclusively and was not subject to review by the court; and (3) that the governor had the power to prorogue the assembly without restriction as to the condition of business pending before it—he, and not the court, had the authority to make that decision. In re Legislative Adjournment, 18 R.I. 824 (1893). The 1893 deadlock caused by the majority-vote requirement also spawned several supreme court opinions relative to General Assembly elections, namely, In re the Ballot Marks, 18 R.I. 822 (1893); In re North Smithfield Election, 18 R.I. 817 (1893); and State v. Town Council of South Kingstown, 18 R.I. 258 (1893). The only detailed analysis of this election fiasco is Charles Carroll, Rhode Island: Three Centuries of Democracy, 2:660–65.

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Article of Amendment XI eliminated this serious defect in the state’s election laws—one which had not been rectified by the constitution of 1843, even though similar governmental crises had occurred in 1806, 1832, and 1839. After 1843, “no choice” popular balloting marked the elections of 1846, 1875, and 1876. SECTION 3. Filling vacancy by the General Assembly when elected officers cannot serve—Election when there is no plurality. When the governor-elect shall die, remove from the state, refuse to serve, become insane, or be otherwise incapacitated, the lieutenant governor-elect shall be qualified as governor at the beginning of the term for which the governor was elected. When both the governor and lieutenant governor-elect, or either the lieutenant governor, secretary of state, attorney-general, or general treasurer-elect, are so incapacitated, or when there has been a failure to elect any one or more of the officers mentioned in this section, the general assembly shall upon its organization meet in grand committee and elect some person or persons to fill the office or offices, as the case may be, for which such incapacity exists or as to which such failure to elect occurred. When the general assembly shall elect any of said officers because of the failure of any person to receive a plurality of the votes cast, the election in each case shall be made from the persons who received the same and largest number of votes.

This section was added to the 1843 Rhode Island Constitution by Article of Amendment XI, Section 3, entitled “Elections and Terms of Officers.” It was ratified by the voters on November 6, 1900, by a margin of 24,351 to 11,959. This amendment provided for the filling of certain offices because of vacancy or incapacity. In re Railroad Commissioner, 28 RI 602, 67 A.802 (1907). Gender references were replaced with neutral language in 1986 when the section received its present constitutional position. The most blatant example of the creation and the filling of a vacancy occurred under the charter at the outset of the American Revolution. On April 25, 1775, a week after the incidents at Lexington and Concord, the outgoing General Assembly authorized the raising of a 1,500-man “army of observation,” despite the objections of Governor Joseph Wanton and Deputy Governor Darius Sessions. The incoming General Assembly met on the first Wednesday in May. A tabulation of the votes cast for general office in the town meetings of April 19 (the day of the Massachusetts outbreak) revealed that Wanton and Sessions had secured reelection. Notwithstanding, the assembly chose Nathanael Greene as commander of their observation army. In an attempt to obstruct military mobilization, Wanton feigned illness and absented himself from the May session. In his absence the army commissions could not be conferred. Wanton’s running mate, Darius Sessions, anticipated trouble with the assembly and declined to serve. At this point the legislature selected the militant Nicholas Cooke to fill the office of lieutenant governor and heir apparent. Then, when Wanton finally made his appearance in June, the legislature declared that no one was “to administer the oath of office” to him. With Wanton effectively displaced, the General Assembly directed Secretary Henry Ward to sign all military commissions, and Cooke immediately assumed the functions and eventually the title of chief

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executive when Wanton was formally deposed in October 1775. In April 1776, Cooke was elected governor in his own right, and on May 4 the General Assembly, with little opposition, passed an act repudiating Rhode Island’s allegiance to George III. See RICR, 7:310–11, 332.37. After the implementation of the constitution of 1843, the General Assembly chose the governor in 1846, 1875, 1876, 1889, 1890, and 1891 as a result of “no choice” balloting caused by the majorityvote requirement of Article VIII, Sections 7 and 10. Since 1891 no governor has been elected in this manner. SECTION 4. Temporary appointment to fill vacancies in the office of secretary of state, attorney general, or general treasurer. In case of a vacancy in the office of secretary of state, attorney-general, or general treasurer from any cause, the general assembly in grand committee shall elect some person to fill the same; provided, that if such vacancy occurs when the general assembly is not in session the governor shall appoint some person to fill such vacancy until a successor elected by the general assembly is qualified to act.

This section was added to the 1843 constitution in November 1900 by Article of Amendment XI, Section 5. There are no cases interpreting it. The General Assembly in grand committee can fill vacancies in the offices of secretary of state, attorney general, and general treasurer, although the governor can make an interim appointment if the General Assembly is not in session. SECTION 5. Special elections to fill General Assembly vacancies. When a senator or representative-elect shall die, remove from the state, refuse to serve, become insane, or be otherwise incapacitated, or when at an election for any senator or representative no person shall receive a plurality of the votes cast, a new election shall be held. A vacancy in the senate or house of representatives shall be filled at a new election. The general assembly shall provide by general law for the holding of such elections at such times as to insure that each town and city shall be fully represented in the general assembly during the whole of every session thereof so far as is practicable. Every person elected in accordance with this section shall hold office for the remainder of the term or for the full term, as the case may be, of the office which that person is elected to fi ll, and until a successor is elected and qualified.

In 1893 Article of Amendment XI, Section 5, added this section to the Rhode Island Constitution. Until that date a legislator needed a majority of the votes cast to secure election (see the commentary at Section 2 of the article). Section 5 establishes the procedure for filling vacancies in the General Assembly. A vacancy can occur by death, removal, refusal to serve, insanity, incapacitation, or failure to receive a plurality of votes. If a vacancy does occur, the General Assembly must provide the time for the election of a replacement representative. Until a resigning official’s office is filled, he or she can continue to hold office. See In Re Election of Sheriff, 102 A. 802, 804 (1918). The newly elected official, however, will “hold office for the remainder of the term or for the full term, as the case

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may be, of the office which that person is elected to fill, and until a successor is elected and qualified.” Rhode Island courts have recognized that members of the General Assembly have a legal right to resign from the assembly. For the resignation to be effective, however, it must be done in the proper manner. Hence, resigning members were required to give their resignation to the clerk of the town that they represented in the assembly, because this ensured that an election to replace the resigning member would commence. See id. (providing letter of resignation to the House of Representatives was an inefficient resignation). The resignation had to be given to the municipal clerk because only clerks were authorized to order new elections. See id. This section has been rendered vestigial, in part, because the “one man, one vote” principle transcended municipal boundaries in the drawing of legislative districts. Prior to 1965, house and senate districts were within the boundaries of a single municipality, hence the judicial requirement to notify the clerk of the town and the constitutional language that “each town and city be fully represented.” SECTION 6. Elections in grand committee—Majority vote—Term of elected official. In elections by the general assembly in grand committee the person receiving a majority of the votes shall be elected. Every person elected by the general assembly to fill a vacancy, or pursuant to Section 3 of this article, shall hold office for the remainder of the term or for the full term, as the case may be, and until a successor is elected and qualified.

This section was originally Section 6 of Article of Amendment XI (1900). The 1986 Constitutional Convention replaced gender references with neutral language. In grand committee elections the person to be elected must receive a majority of the votes cast. The court has held that a majority of the votes consists of more than one-half of the votes cast. See Carpenter v. Sprague, 119 A. 561, 562–65 (1923) (where one candidate received exactly half of the votes, no person received a majority). Additionally, this section reiterates that any person elected to fill a vacancy will hold office for the remainder of the term and until a successor is elected and qualified. SECTION 7. Elections in grand committee—Quorum—Permitted activities. A quorum of the grand committee shall consist of a majority of all the members of the senate and a majority of all the members of the house of representatives duly assembled pursuant to an invitation from one of said bodies which has been accepted by the other, and the acceptance of which has been communicated by message to the body in which such invitation originated, and each house shall be attended by its secretaries and clerks. No act or business of any kind shall be done in grand committee other than that which is distinctly specified in the invitation by virtue of which such grand committee is assembled, except to take a recess or to dissolve;

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provided, that the grand committee may appoint a subcommittee of its own members to count any ballots delivered to it and report the result of such count.

This section was originally Section 7 of Article of Amendment XI (1900). Section 7 defines “quorum” as it relates to the grand committee’s composition. Under this section a quorum is defined as “a majority of all the members of the senate and a majority of all the members of the house of representatives” assembled at the committee meeting. Additionally, only members of the legislature invited to the committee meeting will be considered as part of the quorum. Once a member accepts the invitation, his or her acceptance must be communicated to the inviting house. Only business specified on the invitation may be discussed during committee meetings. Hence, members cannot try to discuss matters not pertinent to the committee’s discussion. The committees may also establish subcommittees “to count any ballots delivered to it.” SECTION 8. Voter registration lists. It shall not be necessary for the town or ward clerks to keep and transmit to the general assembly a list or register of all persons voting for general officers; but the general assembly shall have power to pass such laws on the subject as it may deem expedient.

This section was added to the 1843 constitution by Article of Amendment I, ratified on November 7, 1854, by a vote of 3,229 to 2,051. The 1986 Constitutional Convention placed it in Article IV as an addition to the provisions relating to elections. There have not been any Rhode Island cases interpreting this section. This amendment eliminated the long-standing practice carried over from the charter regime of “proxing.” A “prox” was a ballot upon which a party placed the names of its at-large candidates (i.e., general officers and assistants, or senators). The elector in his town meeting on the third Wednesday in April took the prox of his choice, made any deletions or substitutions he deemed desirable, and signed it on the reverse side in the presence of the town moderator. The voter then submitted the prox to the moderator, who forwarded it to the town clerk to be recorded. When this ritual was concluded, the proxes were sealed in a packet and taken to Newport by one of the town’s state legislators for the start of the May session of the assembly. On “election day,” the first Wednesday in May, ballots were opened and counted by the incumbent governor in the presence of the incumbent assistants and newly elected deputies sitting jointly in grand committee. The candidate having a majority of the total vote cast for his respective office was declared elected. See Sidney S. Rider, “The Origin, Meaning and Duration of Existence in Rhode Island of the Political Word ‘Prox,’ ” Book Notes 25 (Dec. 26, 1908): 201–4. SECTION 9. Reports of campaign contributions and expenses. The general assembly shall require each candidate for general office in any primary, general or special election to report to the secretary of state all contributions and expenditures made by any person to or on behalf of such candidate, provided however, that the

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general assembly may limit such disclosure to contributions or expenditures in excess of such an amount as the general assembly shall specify.

This provision originated in the 1973 Constitutional Convention as Resolution No. 26 under the sponsorship of convention secretary Patrick T. Conley and firstvice-chair Helen Migliaccio, joined by other members of the Cranston delegation. Its purpose was to “provide for greater public accountability by candidates for general office, and . . . provide the public with an awareness of possible conflicts of interest by their elected officials.” Section 9 was ratified as the second paragraph of the Suffrage Amendment (Article of Amendment XXXVIII). See Conley, The Proceedings of the Rhode Island Constitutional Convention of 1973 (Providence, 1973), pp. 82, 154–55. The 1986 Constitutional Convention gave this provision its current constitutional placement. Although there have not been any Rhode Island cases interpreting this section, it imposes upon the General Assembly a duty to require candidates for general state office to report to the secretary of state all contributions and expenditures made by any person on behalf of the candidate. Such disclosures, however, may be restricted to sums contributed or expended beyond a certain amount specified by statute. SECTION 10. Limitations on campaign contributions—Public financing of campaign expenditures of general officers. The general assembly shall adopt limitations on all contributions to candidates for election to state and local office in any primary, general or special election and shall provide for the adoption of a plan of voluntary public financing and limitations on total campaign expenditures of campaigns for governor and such other general officers as the general assembly shall specify.

The 1986 Convention added Section 10 to the constitution. It originated as Resolution 86-00145A, which the Committee on Ethics debated and passed unanimously and the convention approved by a vote of 86-to-12. In Buckley v. Valeo, 424 U.S. 1 (1976), the U.S. Supreme Court ruled that it was unconstitutional to limit a candidate’s spending of his own money in a political campaign, to limit a candidate’s total expenditures, and to limit independent expenditures to promote or defeat a candidate. The court also decided, however, that it was constitutional to limit the size of individual contributions to a campaign, to limit contributions to a single candidate by a political committee, to limit an individual’s total contributions to candidates in a given year, to impose reporting and disclosure requirements, and to provide for the public financing of campaigns. The Committee on Ethics acknowledged that it would be unconstitutional to prohibit contributions to political campaigns unless there was strong proof that such a prohibition was required to reduce corruption. The committee, however, regarded a limitation on the amount of contributions, including those from vendors, to be an effective means of reducing the impression of corruption created by

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the influence of money on political campaigns. The committee decided to leave to the General Assembly the establishment by statute of dollar limits so that such limits could be modified later to account for inflation or changing circumstances. On November 4, 1986 the electors approved this resolution, which was part of Ballot Question 6, by a vote of 143,973 (53.3%) to 125,964 (46.7%). Although no Rhode Island case law exists interpreting this section, federal cases concerning the legality of contribution limits generally hold them to be lawful unless they are set so low as to amount to an incumbent-protection plan.

Article V Of the Distribution of Powers The powers of the government shall be distributed into three separate and distinct departments: the legislative, executive and judicial.

Article III of the 1843 constitution provided for the distribution of governmental powers into three departments. It simply read, “The powers of government shall be distributed into three departments: the Legislative, Executive, and Judicial.” R.I. Const. of 1843, Art. III. The Rhode Island Constitutional Convention of 1986 renumbered this provision as Article V, but otherwise left its wording unchanged. At all times, the title of this article has remained “Of the Distribution of Powers.” The recent separation of powers amendments, which the voters adopted in 2004, added the “separate and distinct” language to the article. Because this article has generated much recent controversy and is often analyzed in conjunction with Articles VI through X, its origin and meaning are essential to an understanding of Rhode Island constitutional development. The historical essay introducing this volume clearly shows that the Royal Charter of 1663 contained no separation or distribution of powers. The General Assembly was supreme. Although the state’s first convention-crafted basic law—the Law and Order constitution of 1843—merely “distributed” the powers of government among its three branches, by doing so it “diminished the power of the legislature by providing for a clear separation of powers according to the three branch principle” (Patrick T. Conley, Democracy in Decline: Constitutional Development: 1776–1841 [Providence, 1977], pp. 312–13). Because the debates and proceedings of the 1842 convention that drafted the document are sketchy, one must look elsewhere to discern how learned contemporaries viewed the handiwork of the Law and Order delegates vis-à-vis the distribution of powers.

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In the landmark case of Taylor v. Place, 4 R.I. 324 (1856), Chief Justice Samuel Ames, labeled by legal historians as “the Great Chief Justice,” made the following observation: It is quite evident, too, that this distribution of powers was, in our constitution, made for the special purpose of depriving the general assembly of their long exercised judicial power, which rightly or wrongly, that body had assumed under the charter. The executive power had been nominal, merely, under the charter, and the constitution extends it very little. No jealousy of it, or of its assumption by the enterprising and allabsorbing legislative department of the government, did, or could exist. [Emphasis added]

It must be remembered, however, that Ames’s assertions about the constitution, particularly as they pertain to executive power, do not necessarily conform to what that document actually provides. Also, because executive power was not at issue in the Taylor case, his comments in that case about the executive were all obiter dicta. Ames, a staunch Whig, was not a delegate to the Law and Order Convention, but he was much involved in the events of 1842. He was not only a foe of Thomas Dorr; Ames was the reformer’s brother-in-law. By 1842 Ames had become a prominent member of the Rhode Island bar and a spokesman for the charter regime. He was a defender of the state arsenal on May 17, 1842, when Dorr attempted to seize it, and he was quartermaster general of the Law and Order army that marched on Chepachet. Ames was also a state representative from Providence in the very legislature that appointed him to his generalship. In 1844 he became Speaker of the House. Assisting Ames in his historical research on governmental power in the Taylor decision was Associate Justice George A. Brayton, a delegate to the Law and Order conclave. Associate Justice Sylvester G. Shearman, another member of the Ames court, was also a convention delegate. Shearman had served as Speaker of the House in 1848–1849 and again from October 1854 to January 1855. To understand the Taylor decision, one must be mindful of such facts as (1) the participatory role of Ames and his associate justices in the events of 1842; (2) the Law and Order Convention’s deletion of the word “distinct” from Article III of the defeated Freemen’s Constitution of March 1842; (3) the long history of legislative power over diverse governmental functions before and after the adoption of the constitution of 1843; (4) the prolegislative, antiexecutive Whig ideology that dominated the Law and Order Convention; and (5) the fact that legislators were then appointing most of the state administrators, boards, and commissions that the General Assembly had created, even while serving on some of these commissions and agencies. Insofar as the Taylor decision has to do with the separation or distribution of governmental power and the General Assembly’s role in Rhode Island government, judicial observations about the relative powers of the three branches by a learned participant in the constitution-making process such as Ames have carried great weight, even though, from a strict legal standpoint, they were totally extraneous to the decision in that case and were not entitled to any legal force whatsoever. Elsewhere in his decision, Ames discusses distribution as follows:

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The constitution first distributes the powers of the state government between its different departments, for the purpose of excluding each department from exercising those appropriate to the others. It next proceeds, after vesting “the legislative power” under the constitution in the two houses of the assembly—“the chief executive power of this state, in a governor”—to vest in the same form of language “the judicial power of the state: without qualification, in the courts. Is not the judicial power of the state all the judicial power of the state? If not, what is it? How much less? Does anyone doubt that the constitution by this form of words, vests all the legislative power in the two houses of the assembly; or imagine that under the constitution, the supreme court or the governor can exercise it, or any portion of it, except so far as the latter is empowered to give a casting vote when presiding over the senate. [Emphasis in original] Id. at 354.

Ames obviously viewed the word chief as conferring less than plenary executive power on the governor, especially because the historic and contemporary appointive power of the governor had no express constitutional basis and was within the legislature’s “impetuous vortex.” But unless the chief executive power is to be converted into a meaningless inkblot, the vesting of the governor with this power must have some substantive meaning that Ames and other legislative supremacists have chosen to ignore. Moreover, Ames never acknowledged the basic contradiction in this thinking on this subject: how could the constitution distribute all executive power to the executive department (to the exclusion of all other departments), yet still allow the legislature to exercise executive powers, such as appointing executive officials? Thus, he rather blithely observed, “However great the personal influence of him who, from time to time may fill the executive chair of the state, may be, from his character and standing, his official power under our constitution amounts to nothing” (Emphasis in original). But how could the official vesting of the chief executive power in the governor amount to nothing? Why would the framers and the people adopt a provision that, according to Ames, “amounts to nothing”? Yet Ames also believed that the rationale for distributing the legislative, executive, and judicial powers to three different departments of government was “for the purpose of excluding each department from exercising those [powers] appropriate to the others.” Given that the power to appoint inferior executive officers is, at least arguably, entailed by the vesting in the governor of the chief executive power, and that the governor’s obligation as chief executive officer to take care that the laws are faithfully executed arguably implies, as a necessary incident, the power to appoint those who will act under his direction in discharging this obligation, Ames’s obiter dicta on the historical weakness of Rhode Island’s executive chief magistrate and his assertions about the governor’s lack of official power were scarcely dispositive of whether the General Assembly could still appoint themselves and others to serve in executive offices. As Justice Flanders argued in his separate opinion in the Ethics Commission case with regard to the new constitution’s distribution to the executive department of all executive power (to the exclusion of the legislature), [s]uch [an appointive] power is essential to the Governor’s ability to perform the chief executive function that the Constitution vests in that office. Without such a power, the Governor would be totally dependent upon the Legislature for his or her

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ability to execute the laws, and if it chooses to do so, the Legislature could surround the Governor with subordinates chosen by others, loyal to others, and removable by others. Like an Indian chief with no Indians, the Governor would be reduced to a mere ceremonial figure, a chief executive at sufferance of the Legislature, and a Governor in name only. So conceived, he or she would be the functional equivalent of a show captain, propped up on the ship of state’s main deck in full dress regalia for all the passengers to ogle, while the real legislative bosses steered the ship, barked orders, and hired, fired, and supervised the crew and all those who toiled away in the boiler rooms below.

Ames’s view of the judicial branch was different from his assessment of gubernatorial power in that he asserted the independence of the supreme court from the revisory and review powers exercised over it by the legislature under the Charter of 1663. In Taylor, the chief justice was influenced by several predictable factors in singling out the judicial branch for emancipation from legislative control. All of these factors were rooted in the work of the Law and Order Convention, which placed the judiciary on a much different footing than the executive. Although the position of governor was created by the Charter of 1663, the supreme court was a creature of the General Assembly and purely statutory until May 1843. Clearly the new constitution had elevated the status of the high court. Secondly, Ames was aware that the Law and Order Convention had also altered the Freemen’s Constitution by deleting from Article IV, Section 10, not only the word distinct but also the provision that “the general assembly shall continue to exercise the judicial power.” This purposeful omission was a clear indication that the Whig-dominated convention had reservations concerning the legislature’s exercise of revisory or chancery powers in judicial proceedings. Convention delegate Sylvester Shearman, who became an associate justice on the Ames court, offered an amendment to the legislative article specifically depriving the General Assembly of “the appellate jurisdiction on petitions for divorce, benefit of the insolvent laws, new trials, and the jurisdiction on sales of real estate.” After considerable debate, Shearman’s proposed Section 18 was rejected on Wednesday, September 18, 1842. There was no such recorded debate or division with regard to the relationship between the legislature and the executive. Ames may have also received a cue from the name given to the high court in the Law and Order Constitution—the “Supreme Court.” From 1798 to 1843 it had operated as the Supreme Judicial Court, a name which implied that there existed a nonjudicial court—namely, the General Assembly—with review and revisory powers over the “judicial” court. This, in fact, was how the system had worked. Ames also believed, as noted above, that the grant of judicial power was unlimited, but that the governor’s power was qualified by the word “chief.” He also took judicial notice of the fact that the 1842 convention had used the federal Constitution as a model in crafting Rhode Island’s article on the judiciary. “This pregnant sentence [‘The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly, may from time to time ordain and establish’] is copied into our constitution verbatim from the constitution of the United States,” where it has “a settled constitutional meaning,” asserted Ames.

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Finally, as an orthodox Whig, like the dominant delegates to the Law and Order Convention, Ames looked to the judiciary as a bulwark against leveling democracy and a protector of property rights and societal order. Here he was of one mind with Chancellor James Kent, Justice Joseph Story, and such prominent Whig attorneys as Daniel Webster and John Whipple, the acknowledged leader of the Rhode Island bar, all of whom were involved in Rhode Island’s constitutional drama. Justice Joseph Story, a friend and associate of Ames, told Henry Clay in 1838 that the country was “sinking down into despotism, under the disguise of a democratic government,” and the Whig party supplied the only hope for the future. The support of the Whigs during the 1840s for an independent, life-tenured, well-paid, appointive judiciary is described in detail by Carl B. Swisher in The Taney Period, 1835–64 (New York, 1974). For a Whig constitution to empower the judiciary and enfeeble the executive made perfect sense to Chief Justice Ames. But whether the constitution, as drafted, accomplished this desideratum of Ames and other Whigs is another matter. His attempted liberation of the supreme court was no leap of faith. In the immediate aftermath of a three-year reign of Dorr Democrats (1851–1854) who had tried to convene a constitutional convention and liberalize the suffrage, who had passed a spate of populistic legislation, and who had the boldness to reverse the supreme court’s verdict in Dorr’s treason trial, Ames sought refuge in an independent court, one which could resist the popular tumult that threatened the governmental structure crafted by his fellow Whigs in the aftermath of the Dorr Rebellion. In that shelter, he believed, there was no room for a dynamic Jacksonian executive. And yet Ames’s vision of an independent supreme court was merely wishful thinking insofar as it ignored the practical and legal reality that the justices of that court still were, at that time, chosen exclusively by the legislature, and usually from the legislature’s own ranks. Also, the justices were subject, on an annual basis, to being summarily removed at will from their offices by the legislature’s grand committee. These were hardly the type of selection and tenure provisions that bred a spirit of independence in the justices—at least not with respect to the very same legislative body that appointed them to their offices and then decided on an annual basis whether to keep them there. Another early separation case deserves mention. In 1854 the supreme court issued a hastily crafted advisory opinion critical of legislative action purporting to nullify the 1844 treason conviction of Thomas Wilson Dorr. In the legislative year 1853–1854, the Dorr Democrats, led by the reformer’s uncle, Philip Allen, held the governorship and controlled both houses of the assembly. This situation would not be replicated until January 1935. The Democrats used their brief tenure to pass significant reform legislation, and in January 1854 they also passed an act “reversing and annulling” the judgment of the Rhode Island Supreme Court (then a trial court) in convicting Dorr of treason against the state. Probably they were encouraged to pass this measure by Chief Justice Roger Taney’s dicta in Luther v. Borden (1849) that Job Durfee’s Rhode Island court lacked jurisdiction. “It is worthy to remark,” Taney had said, “that the trial of Thomas W. Dorr took place after the Constitution of 1843 had gone into operation.” Thus a new judicial system had

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gone into effect, and a newly created court was trying a charge that applied to the old charter. Dorr had never challenged the legitimacy of the new constitution, and the charge of treason did not carry over to it. Taney, therefore, had strongly suggested that the 1844 Rhode Island court lacked jurisdiction over the offense. In the April 1854 annual elections, the Democrats were soundly beaten when nativist workmen and conservative farmers recoiled at the prospect of sweeping reform and supported a Whig-American party coalition. Soon after the organization of the new administration, the successor General Assembly asked the supreme court for an advisory opinion on the constitutionality of the nullification act. The Whig justices—Greene, Staples, Haile, and Brayton—promptly (on June 14, 1854) and obligingly responded. The opinion concluded that the act was, indeed, unconstitutional. However, the court properly confined its analysis to legislative versus judicial power and made only general references to strict separationist theory, and that on the federal level. The significance of the 1854 Opinion to the Senate and House of Representatives, 3 R.I. 299, is that it was a step in the direction of Taylor. Since the opinion was not a judgment of the court rendered in a justiciable controversy, it did not have the effect of actually invalidating the act in question. By November 1854 the legislature had passed, and the people had approved, Article of Amendment II, providing that “the governor, by and with the consent of the senate, shall hereafter exclusively exercise the pardoning power, except in cases of impeachment, to the same extent as such power is now exercised by the general assembly.” See Patrick T. Conley, Neither Separate Nor Equal: Legislature and Executive in Rhode Island Constitutional History (Providence, 1999), chapter 7, “Putting Taylor in Its Proper Place,” pp. 83–88. The Dorr decision of 1854 (and not Trevett v. Weeden, 1786) appears to be the first ruling in which a Rhode Island court declared an act of the General Assembly unconstitutional, although it was merely an advisory opinion. However, the U.S. District Court exercised the power of judicial review much earlier. In June 1792 the legislature acquiesced in a decision by the federal circuit court for the District of Rhode Island declaring a stay law passed by the assembly an unconstitutional violation of the Contract Clause of the U.S. Constitution (Article 1, Section 10). The law involved was a resolve passed in February 1791 in response to the petition of debtor Silas Casey giving him an extension period of three years to settle his accounts with British creditors, during which time he would be exempt from all arrests and attachments. This case, Alexander Champion and Thomas Dickason v. Silas Casey (1792), may be the first in which a United States District Court declared a state law to be a violation of the federal constitution. Charles Warren, “Earliest Cases of Judicial Review of State Legislation by Federal Courts,” Yale Law Journal 32 (Nov. 1922): 15–28; Patrick T. Conley, Jr., “The First Judicial Review of State Legislation: An Analysis of the Rhode Island Case of Champion and Dickason v. Casey,” Rhode Island Bar Journal 36 (Oct. 1987): 5–9. Although it seldom upheld executive power under Article III or the present Article V, the Rhode Island Supreme Court did not hesitate to invoke separation of powers when it believed that the General Assembly had improperly interfered with the judiciary’s powers. See, for example, City of Providence v. Employee

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Retirement Bd., 749 A.2d 1088, 1098–1099 (R.I. 2000) (holding that the legislature cannot enact laws which purport to nullify consent judgments); State v. Almonte, 644 A.2d 295, 299 (R.I. 1994) (holding that a law which expanded the rule of physician-patient privilege invaded the judicial sphere); In re House of Representatives, 575 A.2d 176, 178–179 (R.I. 1990) (holding that a proposed law calling for the appointment of a special prosecutor to investigate misdeeds by government officials invaded the judicial power); Lemoine v. Martineau, 342 A.2d 616, 620 (R.I. 1975) (holding that a law stipulating that legislators who would normally have a duty to appear in court as part of a case were excused while the General Assembly is in session was an unconstitutional interference with the judicial power); State v. Garnetto, 63 A.2d 777, 780 (R.I. 1949) (holding that a law directing trial courts to quash the imprisonment of anyone sentenced to prison for violating a deferred sentence by allegedly committing a felony but not having been indicted for the felony was an invalid exercise of judicial power by the legislature); and Creditors’ Service Corp. v. Cummings, 190 A. 2, 8 (R.I. 1937) (holding that regulation of the practice of law was a judicial power). But see Gorham v. Robinson, 186 A. 832, 844 (1936) (holding that the legislature possessed the power to decrease the tenure of judges on the inferior courts). With respect to legislative versus executive powers, the court has been repeatedly deferential to the legislature. In Almond v. Rhode Island Lottery Comm’n, 756 A.2d 186, 192 (R.I. 2000), for example, the court held that the General Assembly could delegate legislative functions to an agency controlled by legislators sitting as members of the agency without violating separation of powers, so long as the legislature specified what functions were delegated, established standards that accompanied the delegation, and enacted safeguards against administrative abuse. But Almond was just the latest in a long line of cases in which the court upheld the delegation of legislative authority to an administrative agency. See id.; In re Nicole G., 577 A.2d 248, 251 (R.I. 1990) (delegation of power to the Department of Children and Their Families to provide housing assistance); In re Advisory Opinion to Governor, 324 A.2d 641, 647 (R.I. 1974) (delegation of power to the Port Authority); DiTraglia v. Daneker, 115 A.2d 345, 348 (R.I. 1955) (delegation of liquor licensing authority to a control board); Ajootian v. Providence Redevelopment Agency, 91 A.2d 21, 27 (R.I. 1952) (agency delegated with power to acquire and sell land for redevelopment); Allen v. State Bd. of Veterinarians, 52 A.2d 131, 136 (R.I. 1947) (delegation to the board to administer the test for licensing of veterinarians); Mexican Petroleum Corp. v. Bliss, 110 A. 867, 871 (R.I. 1920) (delegation of power to evaluate property for tax purposes). Previously the court found no constitutional problem in having legislators serve on the advisory Commission on Judicial Tenure and Discipline. In re Comm’n on Judicial Tenure and Discipline, 670 A.2d 1232, 1234 (R.I. 1996). This practice of legislative delegations to administrative agencies led to an explosion in the size of Rhode Island’s administrative state. By one count, Rhode Island had 429 different agencies, boards, and commissions, one of the largest bureaucracies among the states in terms of agencies per capita. (See Carl T. Bogus, The Battle for Separation of Powers in Rhode Island, 56 Admin. L. Rev. 77, 113 [2004]. By 2004 the General

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Assembly had appointed 234 members of the 73 executive agencies. In many instances these appointees were legislators themselves; in other cases legislative appointments constituted the majority of the governing board of these agencies (see Bogus, at p. 114). In addition, the Rhode Island Supreme Court historically has upheld the legislature’s expansive powers, often at the expense of executive powers. The Almond decision, 756 A.2d at 194 (R.I. 2000), was the latest case in which the court determined that the governor was not the head of a branch of government equal in its powers to the legislature and the judiciary, but only the token head of a considerably weaker branch of government. As late as 2003 the observation of Chief Justice Ames in Taylor v. Place (1856) remained true—at least in the eyes of a majority of the supreme court justices: “The executive power had been nominal, merely, under the charter; and the constitution extends it very little.” See also In re Advisory Opinion to the Governor (Rhode Island Ethics Comm’n— Separation of Powers), 732 A.2d 55 (R.I. 1999); In re Advisory Opinion to the Governor (Ethics Comm’n), 612 A.2d 1 (R.I. 1992); Henry v. Cherry & Webb, 73 A. 97, 104–5 (R.I. 1909) (quoting in part Opinion to the General Assembly, 3 R.I. 299 [R.I. 1854]: “[E]xcept when expressly limited, the General Assembly exercises all of the legislative powers of sovereignty possessed by the British parliament, which is all powerful … [T]he Constitution create[d] two separate and distinct, but coordinate, departments of the government; the one vested with the legislative, the other with the judicial, power of the state”). During the 1990s, separation of powers became the panacea for reformers dissatisfied with Rhode Island’s political system. Many who sincerely believed that legislative dominance was at the root of the state’s repeated incidents of public corruption viewed several scandals that then convulsed the General Assembly as the last straw. Ironically, however, the supreme court and the executive branch produced three of the most notorious examples of malfeasance during this era. Two consecutive chief justices stepped down to avoid impeachment for judicial improprieties, and Republican governor Edward DiPrete (1985–1991) was convicted of bribery and extortion and imprisoned. Some political scientists saw the animus for change differently—as a simple quest for political power. Since the Reapportionment Revolution of the 1960s, the General Assembly has been overwhelmingly Democratic in both chambers. In the two decades from 1985 to 2005, however, the governorship had been held by a Republican for 16 years. What better way of increasing the power of the Republican party in state affairs, these observers argued, than by shifting constitutional authority to the executive branch at the expense of the General Assembly via a separation of powers amendment? See University of Rhode Island political scientist Maureen Moakley, “Separation of Powers Debate Is a Struggle for Power,” Providence Journal, July 7, 1998, Commentary, p. B5. Whatever the motive, the result was revolutionary, as the General Assembly is destined to learn in the years ahead. Responding to a “mandate” fashioned by Governor Lincoln Almond via two gubernatorial referenda, and a brilliantly executed campaign by reformers, the General Assembly drafted several separation of powers amendments and sent them to the electorate for approval in the general election

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of November 2, 2004. These changes were ratified by a resounding margin of 257,308 to 73,236, and 340 years of what most of the justices of the supreme court had called a “quintessential parliamentary supremacy” came to an end. In addition to amending Article V by the insertion of the crucial words “separate and distinct,” the amendments adopted in 2004 bar anyone from simultaneously serving as a legislator while holding a separate office under the Rhode Island state government or any other government. Most important, the amendments eliminated the residual powers provision (Article VI, Section 10) that allowed the legislature to retain all the powers it had exercised under the charter before the 1843 constitution was adopted, unless prohibited by the constitution itself. Finally, the amendment gave the governor the power to appoint, with the advice and consent of the state senate, a host of executive officers that previously had been strictly legislative appointments. R.I. Const., Art. III, § 6 (amended 2005), Art. V (amended 2005), Art. VI, § 10 (repealed 2005), Art. IX, § 5 (amended 2005). With these very recent changes, much of the law of Rhode Island pertaining to the structure of government and the locus of power has been rendered obsolete, making this analysis more historical, or even prophetical, than strictly legal. This conclusion is especially valid in any discussion of the legislature’s relinquished residual powers, a void which will be discussed under Article VI, Section 10.

Article VI Of the Legislative Power SECTION 1. Constitution the supreme law of the state. This Constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void. The general assembly shall pass all laws necessary to carry this Constitution into effect.

This section appears exactly as it did in the 1843 constitution, except that it was then the first section of Article IV. Compare the language of this section to the Supremacy Clause of the United States Constitution, which reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., Art. 6, cl. 2. It was no accident that the framers of the 1843 constitution (the Law and Order Constitution) placed this constitutional supremacy clause in the legislative article. Under the charter regime, the General Assembly’s role in colony and state government was dominant. Because of the shared Whig ideology of those who drafted the 1843 constitution, this legislative dominance endured, even though the distribution of powers to other departments of government in the constitution clearly diminished the preconstitutional powers of the General Assembly. The following examination of the ideology of that basic law explains much about Rhode Island constitutional history from 1843 until the decisive, resounding rejection of the framers’ constitutional theory in 2004. For the political leaders who vanquished Thomas Wilson Dorr, the corollary to constitutional supremacy was legislative supremacy. The constitution, however,

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also contained language and provisions—including the distribution to and vesting of powers with other departments of government—that undercut such an absolutist vision of legislative supremacy. Had Dorr’s People’s Constitution prevailed in the constitutional controversy of the early 1840s, legislative power would have been sharply curtailed, but Rhode Island got a Whig constitution drafted by a conservative convention of victorious Whigs who, like their namesakes in England, exalted the legislature and feared the executive. Since these delegates inherited a regime where the General Assembly was already supreme and the governor mainly symbolic, it would be folly to believe that the Whig-dominated Law and Order party in its moment of triumph would surrender legislative prerogatives to the executive branch in the constitution which it drafted in the autumn of 1842. Nevertheless, at least on paper, it did surrender the executive powers it previously exercised to a newly created executive department of government; and it purported to surrender, at least on paper, the undefined chief executive power of the state to the governor. According to the published journal of the convention, the delegates decided at the outset to use as their working document “the draft of Constitution adopted by the last Convention.” Therefore the Freemen’s Constitution that had been narrowly rejected in a March 1842 referendum became the basis for the Law and Order Convention’s deliberations. The changes made in the Freemen’s proposed basic law by the Law and Order Convention were most significant as they relate to legislative power and the relationship among the three branches of government. In Article III (distribution of powers) the word “distinct” was eliminated as a modifier of branches. There is no recorded debate regarding the deletion, but it should not take a linguist or a lawyer to fathom the motive for this change, nor to realize the damage that such a purposeful alteration does to the theory of strict separation. And yet, in providing for the distribution of executive power to the executive department, the constitution did so for the purpose of preventing the other departments, including the legislature, from exercising the powers that were distributed elsewhere. Article IV, Section 10 (the residual powers clause), also underwent change. The provision in the Freemen’s Constitution that the General Assembly “shall continue to exercise the judicial power” was deleted. Of equal significance, the somewhat mild and subjective “not inconsistent with” was changed to “unless prohibited in,” so that the final language of Section 10 stated that “the General Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution.” This language, however, begged the question: if the constitution distributed executive and judicial powers to other departments of government, was the General Assembly thereby prohibited from continuing to exercise such powers even though it had exercised them previously? The Rhode Island Supreme Court would soon answer that question in the affirmative—at least with respect to the judicial power.

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There were no changes made in the powers of the governor other than to shift his role as presiding officer of the senate from the executive article to the senate article. The convention’s published “debates and proceedings” do not mention any discussion on or proposed amendments to the executive article. The lone entry on the late afternoon of Thursday, September 15, 1842, merely states that “the Article on ‘The Executive’ was adopted by sections.” The Whigs gave Rhode Island’s governor no veto, no express appointive power, and no budgetary power. They did make him subject to impeachment and a member of the senate. Yet, they also vested him with the undefined but presumably meaningful chief executive power and charged him to take care that the laws were faithfully executed. Also worthy of note is the fact that the Constitution of the United States, which this convention consulted in drafting the judicial article, gave the legislative power to Congress, the judicial power to the Supreme Court, and the executive power to the president. The Rhode Island Constitution of 1842 gave the legislative power to the General Assembly, the judicial power to the supreme court, and the “chief ” executive power to the governor. But it also distributed all of the executive power to the executive department for the presumed purpose of preventing the other departments from exercising the powers that the constitution had distributed and vested elsewhere. All of the major historians of the Dorr Rebellion—Arthur May Mowry, Marvin Gettleman, George Dennison, William Wiecek, Arthur Schlesinger, Jr., Chilton Williamson, and Sidney Rider—attest to Whig control of the Law and Order Convention. The Whig delegates, a veritable Who’s Who of Rhode Island Whiggery, included Job Durfee of Tiverton, incumbent chief justice of the Rhode Island Supreme Court; James F. Simmons of Johnston, incumbent United States senator; William Sprague of Warwick, Rhode Island’s other U.S. senator; Charles Jackson of Providence and Byron Diman of Bristol, both future governors; George A. Brayton of Warwick and Sylvester G. Shearman of North Kingstown, both future associate justices on the supreme court headed by Samuel Ames; Henry Y. Cranston of Newport and Wilkins Updike of South Kingstown, both future congressmen; former U.S. senator Nehemiah R. Knight; Edward Lawton of Newport and Nathaniel Bullock of Bristol, future lieutenant governors; and Richard K. Randolph of Newport, the incumbent speaker of the house. Whig attorney Thomas A. Jenckes, a future U.S. congressman, was the clerk of both the House of Representatives and the convention. To complement the efforts of these delegates, Whig jurists had joined the fray. During the winter and early spring of 1842, Whig federal district judge John Pitman and Chief Justice Job Durfee descended from their neutral benches to attack the People’s Constitution openly on theoretical and legal grounds. Pitman, an earlier supporter of suffrage extension, penned a January address, To the Members of the General Assembly of Rhode Island, which attacked the extralegal methods of the suffragists and urged that their criminal “revolutionary movement” be immediately suppressed. Pitman also corresponded with United States Supreme Court Justice Joseph Story, who was then riding the New England circuit. The conservative Story—who would later preside over several cases arising from the Dorr Rebellion—was equally partisan. “If ever

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there was a case that called upon a judge to write and speak openly and publicly, it was the very case then before you,” he advised Pitman. According to Story’s Whig view, “the constitution of Rhode Island was to be overturned by a self-created body,” and Story knew “no duty more sacred in every citizen than upon such an emergency to come forth and resist, by all the just and moral means in his power, such proceedings.” Job Durfee agreed with this extreme judicial activism. In early March 1842 his three-judge court (which included Whigs William R. Staples and Levi Haile, a leader of the old Constitutional party) issued a public letter asserting the illegality of the People’s Constitution and contending that any attempt to carry it into effect would be “treason against this State.” Justice Durfee—erstwhile poet, former congressman, and formidable orator— was not content with a single swipe at the “mobocratic” suffragists. On March 15 he delivered a charge to a Bristol grand jury, subsequently published, reaffirming his belief that support of the People’s Constitution was treasonous and expounding a persuasive and logical refutation of popular constituent sovereignty. In attempting to define “the people,” Durfee distinguished between the “natural people”—the entire human population, regardless of age, sex, color, citizenship, legal or mental status—and the “corporate people,” the legal voters in whom alone sovereignty resides. For him, sovereignty was not some vague primal right in the hands of a majority of natural people but a carefully defined, limited power to be exercised by the people’s representatives under established, legitimate modes. Durfee’s distinction was followed by other Law and Order apologists, including Whig lawyers John Whipple and Daniel Webster when they defended the charter regime before the United States Supreme Court in the case of Luther v. Borden. The most authoritative studies of Whig party ideology are Robert V. Remini, Henry Clay: Statesman for the Union (New York, 1991), and, especially, Daniel Walker Howe, The Political Culture of the American Whigs (Chicago, 1979). Howe’s award-winning study summarizes Whig thought on executive power as follows: Of the components of mixed government [said Whig theorists], the one that historically had most often threatened the others was monarchy or the executive. The usurpation of power by the executive was such a common cause of the recurring cycle of republican degeneration that it had to be forestalled if at all possible. Andrew Jackson’s military past and reputation as a strong-willed leader impatient of restraint did nothing to reassure Whigs on this score…. Yet opposition to an overmighty executive was not confined to an embittered, displaced elite. It was the most common Whig appeal to the electorate, and it proved effective enough to win a big victory in 1840. The Whig campaign of that year hammered away at the theme of executive encroachments.

Howe concludes his analysis of this topic with a telling observation: “But Whig opposition to a strong executive extended beyond tactical opposition to Democratic incumbents. During the 1840s Whigs consistently opposed granting strong powers to the executive in the state constitutional conventions of the Old Northwest.”

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A Jacksonian-style “People’s Governor,” who could (as Dorr had done) bypass the legislature and appeal directly to a vastly enlarged electorate composed mostly of factory operatives, farmhands, nonnative Irish Catholics, and other landless men without a proper stake in society, had been political poison to these Whig leaders. They surely recalled Andrew Jackson’s public letter to Francis Blair on May 23, 1842, in the aftermath of Dorr’s attempt on the state arsenal, proclaiming that “The people are the sovereign power and agreeable to our system, they have a right to alter and amend their system of government when a majority wills it, as a majority have a right to rule.” The Law and Order Constitution was the Whig antidote to this political insurgency. As John Marshall has observed: “The spirit of an instrument and its words deserve equal weight …” The spirit and the language of the Rhode Island Constitution of 1843 are undeniably and vehemently Whiggish, exalting the power of the legislature, limiting the power of the executive, and maintaining the relationship between the two branches essentially unchanged from that which existed under the charter regime. Article VII gave the governor nothing more than he possessed prior to 1843, except now he had whatever power inhered in being vested with the state’s chief executive power and in the duty to take care that the laws were faithfully executed. The Whigs’ deletion of the word “distinct” in Article III and the use of the modifier “chief ” in Article VII, Section 1, may have limited the governor’s power, but it did not negate the powers distributed to the executive branch. Their redraft of Article IV, Section 10, left to the General Assembly the residuum of governmental power to compete with whatever unspecified executive powers the constitution had distributed to the governor. If the Whigs had a political punster at the Law and Order Convention, he might have observed that their new state constitution left the governor with feet of Clay. (Conley, Neither Separate Nor Equal, pp. 61–82, contains a more elaborate discussion with documentation for the material quoted above.) But the new constitution also contained, for the first time, the basic architecture of the tripartite separation of government powers into three different branches, which was ultimately to serve as the basis for the undoing, over 160 years later, of the Whiggish notions of parliamentary supremacy that actuated the framers in 1843. Like Article V of the constitution, the majority of the cases concerning this section deal with the legislature’s delegation of power to administrative agencies and other entities. The nondelegation doctrine, which restricts but does not forbid the General Assembly’s delegation of powers to other entities, stems from the supremacy clause set forth in this section and from the next section of the constitution, which vests the state’s legislative power in a bicameral legislature. R.I. Const., Art. 6, §§ 1–2; Davis v. Wood, 427 A.2d 332, 335 (R.I. 1981). The two purposes of the doctrine are (1) to ensure that duly authorized and politically responsible officials will make basic policy choices, and (2) to protect citizens from public officials’ arbitrary and discriminatory actions. Bourque v. Dettore, 589 A.2d 815, 817 (R.I. 1991). The doctrine does not, however, bar all delegations of legislative power. Davis, 427 A.2d at 335. Because of the practical need for a legislative body to delegate some authority to better realize the benefits of legislation, a

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delegation will be upheld if the statute declares a legislative purpose, establishes a primary standard for carrying out the delegation of power, and lays out an intelligent principle to which an administrative officer or body must conform. Id. at 335–36. As long as there are demonstrable standards or principles to confine and guide the agency’s power, a reviewing court will uphold the delegation. Id. at 336. Accordingly, the legislature has delegated substantial authority to administrative offices and agencies. The court has, for the most part, found the legislature to be following the parameters of the nondelegation doctrine, even when the terms of the delegation may be somewhat vague. For example, in Milardo v. Coastal Resources Management Council, 434 A.2d 266, 271 (R.I. 1981), the court upheld creation of an agency “to preserve, protect, develop and where possible, restore the coastal resources of the state for this and succeeding generations through comprehensive and coordinated long-range planning and management designed to produce the maximum benefit for society from such coastal resources …” In State v. Peloquin, 427 A.2d 1327, 1331 (R.I. 1981), the court upheld a law authorizing the director of health to designate, reschedule, or delete a substance from the list of controlled substances after the publication of the list in the Federal Register. In Bourque, 589 A.2d at 818–19, the court upheld the delegation of power to grant permits to operate junkyards upon payment of a nominal fee, provided the majority of the neighbors within 200 feet did not object. In Nocera Bros. Liquor Mart v. Liquor Control Hearing Bd., 100 A.2d 652, 655 (R.I. 1953), the court upheld a delegation of authority to the administrator of intoxicating beverages to fix wholesale and retail liquor prices “on a cost plus percentage mark-up basis.” In J. M. Mills, Inc. v. Murphy, 352 A.2d 661, 666 (R.I. 1976), the court upheld a delegation to the director of the Department of Natural Resources to disapprove an application to alter wetlands when he or she determines that such alteration would not be in the “best public interest.” In United States Time Corp. v. Ann & Hope Factory Outlet, Inc., 205 A.2d 125, 129 (R.I. 1964), the court held that legislative approval given to producers and wholesalers to restrict resale prices against resellers who are not under a compulsion to buy and who bought with notice of the restriction with respect to price was not even a matter of delegating authority; thus it upheld the law. Although occasionally the court has declared a delegation unconstitutional, it has rarely done so. In Moore v. Langton, 167 A.2d 558, 564 (R.I. 1961), the court held that a law which gave the tax administrator the power to adjust taxes as he deemed proper constituted an invalid delegation. The court went on to note that even though a completely unfair and arbitrary assessment of taxes was unlikely to occur, the question was not what will happen but what could happen if the law was left intact. Id. In In re Advisory Opinion to House of Representatives (Casino II), 885 A.2d 698, 708 (R.I. 2005), the justices advised that a law which would allow “any game or gambling game that is regularly conducted at any other casino gaming facility” would constitute a standard too vague to be upheld because it lacked safeguards against arbitrary or self-motivated action. The delegation of legislative power to administrative agencies is not the only occasion on which the court has construed the meaning of the supremacy clause. In City of Central Falls v. Halloran, 179 A.2d 570, 572 (R.I. 1962), the court stated

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that the legislature may subject municipalities to its discretion and control, except where the constitution prescribes home rule for municipalities. See R.I. Const., Art. 13. In Opinion to House of Representatives, 176 A.2d 391, 392 (R.I. 1962), the justices concluded that a proposed law that would create a new lottery in the state would violate another section of the constitution, one that banned new lotteries. See R.I. Const., Art. 6, § 15; R.I. Const. of 1843, Art. 4, § 12. For the most part, however, the jurisprudence under this section has upheld delegations of legislative powers to administrative agencies. With respect to the second clause of this section, the justices have not yet decided whether the constitution is self-executing or whether enabling statutes are required to enforce various constitutional provisions. In In re Opinion to the Governor, 178 A. 433, 437–438 (R.I. 1935), the justices opined that the legislature must enact laws that allow Rhode Islanders to amend the constitution, but that this obligation did not disturb the right of the people to call a constitutional convention for the purpose of implementing an entirely new constitution. See R.I. Const., Art. 1, § 1. But in Bandoni v. State, 715 A.2d 580, 584 (R.I. 1998), the court declined to imply a private cause of action for damages under the victims’ rights clause in the constitution, concluding that the creation of such a new cause of action for violation of the constitution was up to the legislature. See R.I. Const., Art. 1, § 23. Because the court has frequently upheld the delegation of legislative power to an administrative body or official and the cases addressing whether the constitution is self-executing or enforceable without the enactment of enabling legislation are not only infrequent but also may vary from section to section of the constitution, the effect of this section remains, and is likely to remain, largely uncertain until the court addresses it directly. Ultimately the text of this section begs the question of whether enabling legislation is truly necessary to carry this constitution into effect. The answer, it would seem, depends on the nature, purpose, and wording of the constitutional provision in question. Thus the response may differ from section to section and from clause to clause, depending in part on the relative specificity of the text, the ability of judicial remedies to redress the alleged injuries, and the existence of federal or common-law analogies for the cause of action in question. SECTION 2. Power vested in the General Assembly—Concurrence of houses required to enact laws—Style of laws. The legislative power, under this Constitution, shall be vested in two houses, the one to be called the senate, the other the house of representatives; and both together the general assembly. The concurrence of the two houses shall be necessary to the enactment of laws. The style of their laws shall be, It is enacted by the general assembly as follows:

Other than some changes in capitalization, the section appears exactly as it did in Article IV, Section 2, of the 1843 constitution. The section is also similar to Article I, Section 1, of the United States Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Like Section 1 of this article, the cases construing this

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section have dealt primarily with separation of powers issues, specifically the delegation of powers by the General Assembly to other entities and officials. The nondelegation doctrine flows from this section and from the section preceding it. The constitution not only declares itself to be the supreme law of the state but also requires the legislature to pass all laws to carry it into effect. R.I. Const., Art. VI, § 1; State v. Peloquin, 427 A.2d 1327, 1330 (R.I. 1981). Ironically, one of the unanswered questions that this language poses is whether the judiciary can compel the General Assembly to pass laws that are required to effectuate the constitution when it has failed to do so. The two purposes of the nondelegation doctrine are to ensure that basic policy choices will be made by duly authorized and politically responsible officials and to protect citizens from arbitrary and discriminatory action by public officials. Bourque v. Dettore, 589 A.2d 815, 817 (R.I. 1991). The doctrine does not, however, bar all delegations of legislative power. Davis v. Wood, 427 A.2d 332, 335 (R.I. 1981). Because of the practical need for a legislative body to delegate some of its authority to executive agencies and other entities to obtain the benefits of legislation, a delegation will be upheld if the statute declares a legislative purpose, establishes a primary standard for carrying out the use, or lays out an intelligent principle to which an administrative officer or body must conform. Id. at 335–36. As long as there are demonstrable standards or principles to confine and guide the agency’s power, the court will uphold the delegation. Id. at 336. Generally, the court has found that the legislature, in delegating authority, has kept within the boundaries of the doctrine, even if the delegation in question is overly general and vague. Thus, to cite a few examples, in Bourque, 589 A.2d at 818, the court upheld the licensing authority of a local board to grant licenses for the establishment or maintenance of a second-hand store and/or automobile junkyard, unless the majority of the people who reside within 200 feet of the location objected. In Allen v. State Bd. of Veterinarians, 52 A.2d 131, 135 (R.I. 1947), the court upheld a statute that authorized the state licensing board for veterinarians to admit any applicant for examination who shall be a graduate of any veterinary school or college of a standard recognized by the American Veterinary Medical Association (AMVA). The court reasoned that even though AMVA could change the eligibility of schools, the power to change the standard still rested with the legislature, thus the delegation was within proper limits. Id. In Chartier Real Estate Co. v. Chafee, 225 A.2d 766, 777 (R.I. 1967), the court upheld the power vested in the director of administration in an eminent domain statute to “cooperate with and assist the federal government in all matters in furtherance of the purposes of this act, and on behalf of the state, with the approval of the governor, to apply for and accept any federal funds or federal assistance which may become available therefor … ” In Davis, 427 A.2d at 336, the court upheld a law stating that the Department of Environmental Management was to conduct activities relating to the management of solid waste “in an environmentally sound manner.” In J. M. Mills, Inc. v. Murphy, 352 A.2d 661, 666 (R.I. 1976), the court upheld a delegation to the director of the Department of Natural Resources to disapprove an application to alter wetlands when he or she determines that such alteration

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would not be in the “best public interest.” In Capone v. Nunes, 132 A.2d 80, 83 (R.I. 1957), the court held that although the Town of Bristol lacked the authority to approve the creation of a harbor commission at its town meeting, this defect in the law had been cured when the legislature passed a law approving of the commission. In addition to holding that delegations of legislative power are valid, the court generally has upheld delegations of powers to administrative entities on the theory that they are not delegations of legislative power. In Blais v. Franklin, 77 A. 172, 180–81 (R.I. 1910), the court upheld a delegation to a commission of “discretionary powers of an executive and administrative character”: namely, to determine whether to repair or replace a certain bridge. The court went on to state that the fact that the legislature did not dictate what type of bridge it was to be, or put limits on expenditures in building or repairing, was acceptable because, unlike a statehouse or an executive mansion, ideas about what a suitable bridge consists of are more objective and less likely to lead to extravagance. Id. at 183. In In re Opinion of the Justices, 83 A. 3, 6–7 (R.I. 1912), the justices approved of a law that gave the superior court the power to appoint a commission to determine what amount of the state’s total annual expenditures each municipality should pay into the state treasury, based on what benefits each municipality would receive. The court held that the commission’s determination was simply one of arithmetical computation that did not result in creation of law. Id. at 7. In State v. Rosenkrans, 75 A. 491, 498 (R.I. 1910), the court held that a state board authorized to examine and certify those who wished to practice dentistry within the state was not exercising legislative functions, and thus there was no unconstitutional delegation. In City of Central Falls v. Halloran, 179 A.2d 570, 573 (R.I. 1962), the court, in upholding the legislative creation of an agency to abate pollution in the Blackstone River and Moshassuck River valleys, stated, “In no real sense is there any delegation of true legislative power in this grant of authority to a state agent.” Although approval of delegations of power has been the norm, it has not always been so. In In re Opinion to the Governor, 6 A.2d 147, 153 (R.I. 1939), the justices opined that a proposed law whose passage ultimately depended on approval by the voters of Providence was constitutionally deficient. In Jennings v. Exeter-West Greenwich Regional Sch. Dist. Comm., 352 A.2d 634, 638–39 (R.I. 1976), the court invalidated a statute requiring every public school district to bus children within its boundaries to private schools that were established to serve students within a specific area of the state. The court held that this empowered the private schools to decide, without any guiding standards, which students had to be serviced, and thus, gave the private schools both the power and the motivation to act in their own self-interests. Id. at 639. In DePetrillo v. Coffey, 376 A.2d 317, 319 (R.I. 1977), the court applied the nondelegation doctrine to municipal ordinances. In doing so, the court overturned a Cranston city ordinance that gave the chief of police the power to designate the classes of persons allowed to park in a lot owned by the city, but without giving the chief standards or guidelines to determine eligibility. Id. In In re Advisory Opinion to the House of Representatives (Casino II), 885 A.2d 698, 708 (R.I. 2005), the justices decided that a proposed law that delegated authority

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to the state lottery commission to permit “any game or gambling game that is regularly conducted at any other casino gaming facility” did not contain sufficient standards to survive judicial review. Cases involving the corresponding section of the United States Constitution have also dealt with issues such as the legislative veto or the line-item veto. But cases involving Article VI, Section 2, of the Constitution have dealt mostly with the delegation of legislative powers. See U.S. Const., Art. I, § 1; Clinton v. New York, 524 U.S. 417 (1998); INS v. Chadha, 462 U.S. 919 (1983). The standard for assessing the constitutionality of delegations of legislative power is similar under both the federal and state constitutions. See Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935). Although the recent amendments to the Rhode Island Constitution may diminish some of the General Assembly’s previous willingness to invest administrative agencies with broad powers—R.I. Const., Art. III, § 6 (amended 2005), Art. V (amended 2005), Art. VI, § 10 (repealed 2005), Art. IX, § 5 (amended 2005)—the need for the General Assembly to do so is still very much present and is sure to result in further delegations, though perhaps with more attempts at stricter legislative oversight. SECTION 3. Sessions of the General Assembly—Compensation of General Assembly members and officers. There shall be a session of the general assembly at Providence commencing on the first Tuesday of January in each year. Commencing in January 1995, senators and representatives shall be compensated at an annual rate of ten thousand dollars ($10,000). Commencing in 1996, the rate of compensation shall be adjusted annually to reflect changes in the cost of living, as determined by the United States government, during a twelve (12) month period ending in the immediately preceding year. Commencing in 2003, the president of the senate and the speaker of the house shall be compensated at an annual rate double that of other senators and representatives. Senators and representatives shall receive the same health insurance benefits as full-time state employees. Senators and representatives shall be reimbursed for traveling expenses in going to and from the general assembly at the same mileage paid to state workers as of the 31st day of December in the year preceding each session. No senator or representative shall be eligible for any pension on account of service in the general assembly after 1994; provided, however, that those senators and representatives first elected before 1994 who elect to receive compensation for legislative service in 1995 and thereafter, at the rate of five dollars for every day of actual attendance and eight cents (.08) per mile for traveling expenses in going to and returning from the general assembly, for a maximum of sixty days in any calendar year, shall be eligible for a pension on account of service in the general assembly after 1994. The amount of such pension shall be based upon the pension program in effect for legislators on January 1, 1994. The general assembly shall regulate the compensation of the governor and of all other officers, subject to limitations contained in the Constitution.

This section is actually an amalgam of a number of previous sections and numerous amendments to these sections over the life of the Rhode Island Constitution. Article IV, Section 3, of the 1843 constitution read: “There shall be two

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sessions of the General Assembly; one at Newport, on the First Tuesday of May, for the purposes of election and other business; the other on the last Monday of October, which last session shall be holden at South Kingstown once in two years, and the intermediate years alternately at Bristol and East Greenwich; and an adjournment from the October session shall be holden annually at Providence.” R.I. Const. of 1843, Art. IV, § 3. Section 11 of that same article read: “The Senators and Representatives shall receive the sum of one dollar for every day of attendance, and eight cents per mile for traveling expenses in going to and returning from the General Assembly. The General Assembly shall regulate the compensation of the Governor and all other officers, subject to the limitations contained in this constitution.” In 1854 the people ratified the Third Amendment to the constitution. It read: “There shall be one session of the general assembly, holden annually, commencing on the last Tuesday in May, at Newport and an adjournment from the same shall be holden annually at Providence.” R.I. Const. of 1843, amend. III. In 1900 the people ratified the Eleventh Amendment. It read, in part: “There shall be a session of the general assembly at Providence commencing on the first Tuesday of January in each year … The senators and representatives shall severally receive the sum of five dollars, and the speaker of the house of representatives ten dollars, for every day of actual attendance, and eight cents per mile for traveling expenses in going to and returning from the general assembly: Provided, that no compensation or mileage shall be allowed any senator or representative for more than sixty days’ attendance in any calendar year. The general assembly shall regulate the compensation of the governor and of all other officers, subject to the limitations contained in the constitution.” These constitutional provisions determined where the General Assembly would meet and, therefore, which municipalities would be considered state capitals. With the annexation of Bristol County in 1746 and the creation of Kent County in 1750, Rhode Island’s rotating legislature had five counties in which it could hold sessions and where the state’s highest court could preside. Public buildings were erected to accommodate this custom in Newport, Providence, South Kingstown (Kingston), Bristol, and East Greenwich. The last version of each of these statehouses has survived, and each has been restored through state and community effort. The practice of rotating sessions among the five statehouses gave the smallest colony and state five capitals for more than a century. Article of Amendment III (1854) reduced the number to two (Newport and Providence), and Article of Amendment XI (1900) made Providence the sole capital, with the newly constructed present statehouse the General Assembly’s permanent home. All five surviving statehouses continued to function as courthouses well into the second half of the twentieth century. See Patrick T. Conley and colleagues, The State Houses of Rhode Island: An Architectural and Historical Legacy (Providence, 1988). When the people adopted the present constitution in 1986, Article VI, Section 3, read: “There shall be a session of the general assembly at Providence commenc-

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ing on the first Tuesday of January in each year. The senators and representatives shall severally receive the sum of five dollars, and the speaker of the house of representatives ten dollars, for every day of actual attendance, and eight cents per mile for traveling expenses in going to and returning from the general assembly; provided that no compensation for mileage shall be allowed any senator or representative for more than sixty days attendance in any calendar year. The general assembly shall regulate the compensation of the governor and all other officers, subject to the limitations contained in the Constitution.” Then, in 1994, the section was amended to read as it does today. Over the years there have been only a few cases in which the court has been asked to interpret this section. Moreover, most of the cases have been advisory opinions, which do not carry the force of law. R.I. Const., Art. XII, § 2; Opinion to the Governor, 149 A.2d 341, 342 (R.I. 1959). Also, the court has not rendered any decisions regarding this section since the most recent 1994 amendment to the section. In re Opinion to the Governor 23 R.I. 635 (1902), the justices opined on their own tenure: whereas previously there were two sessions of the legislature, one in which supreme court justices were elected to defeasible life terms on the court and the other in which justices were elected to fill only the remainder of another justice’s term, the new single session of the legislature now meant that all justices were elected to defeasible life terms on the court. In In re Opinion to Governor, 85 A. 1056, 1058 (R.I. 1913), the justices concluded that the eight cents per mile that legislators were to receive in traveling to and from sessions of the General Assembly for up to 60 days did not entitle them to 60 days’ worth of compensation for traveling expenses, but instead that legislators were limited to receiving 60 days’ worth of traveling expenses. In In re Advisory Opinion to the House of Representatives, 485 A.2d 550, 554 (R.I. 1984), the justices opined that a proposed law for paying legislators their expenses incurred in discharge of legislative duties would not violate this section, which regulates compensation and expenses. The justices noted that “compensation” refers to money paid to legislators in exchange for their services, whereas “expenses” connotes costs that legislators incur while performing their duties. Id. In their opinion the justices reaffirmed that the maxim “Expressio unius est exclusio alterius” bears more on deeds and contracts, but not so much when interpreting the constitution. Id. at 555. Most recently, in Kass v. Retirement Bd. of the Employees’ Retirement System of the State of Rhode Island, 567 A.2d 358, 360 (R.I. 1989), the court held that the compensation provision of the section did not prevent legislators from participating in the state retirement system. With the most recent amendments to this section, however, no legislators first elected in 1994 or later are now considered eligible to do so. SECTION 4. Restriction on General Assembly members’ activities as counsel. 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.

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This section appeared in the 1843 constitution as Article IV, Section 4. In 1986 Rhode Islanders adopted the same text for inclusion in the present constitution. The Rhode Island Supreme Court has not yet opined on the meaning of this section. One unanswered question is whether this provision is now wholly vestigial because the General Assembly no longer hears any “cases” in a legal sense. Another question is whether, given the express penalty specified, the remedy for any alleged violation thereof is reserved to the legislative house in which the offending member sits rather than to a court of law or to the Ethics Commission. The historical grounds for declaring this section obsolete (which no court has yet done) are persuasive but require close analysis. Such a detailed examination will shed much light on a wide range of Rhode Island’s governmental and constitutional procedures. The critical aspect of this section is the word “case” and its constitutional meaning. Case is defined by Black’s Law Dictionary as follows: Case. A general term for an action, cause, suit, or controversy, at law or in equity; a question contested before a court of justice; an aggregate of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. A judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected, or wrongs are prevented or redressed; any proceeding judicial in its nature. [Emphasis added]

Essential to the definition of “case” is its use within the context of a judicial proceeding; and when the language of Article VI, Section 4, was drafted in 1842, the General Assembly was involved in the judicial process as an appellate tribunal with power to reverse or annul decisions of the supreme judicial court. From the time of its creation, the General Assembly had received petitions from the populace pertaining to a variety of issues and concerns. The state archives contain manuscript volumes of these entreaties, generally categorized by whether they were granted or rejected. The type of petition relevant here was in the form of a plea to overturn a ruling in a case decided by a court of competent jurisdiction. Until February 1746/47 the General Assembly could exercise appellate review simply by changing names, for until that date the highest court in the colony consisted of the governor, deputy governor, and the assistants (i.e., senators). All of these officers were then members of the General Assembly. The court reorganization of 1746 removed the governor and assistants from the colony’s highest court (then called the “Superior Court”) and replaced these legislative officials with one chief justice and four associates. Legislative influence was not significantly diminished at this juncture. Judges could still be members of the assembly, so those deputies or assistants appointed to the high court usually retained their legislative posts. Furthermore, all judges were subject to annual appointment by the General Assembly.

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During the session preceding the 1746/47 Superior Court Act, the legislature had established a formal procedure for receiving, “hearing and determining” petitions praying for relief from court decisions, thus strengthening and reaffirming its appellate powers, which were similar to those possessed by England’s House of Lords. After Rhode Island gained independence and statehood—with its charter of 1663 and its constitutional system basically unaltered—it reaffirmed the petition process. The new state’s first compendium of general laws, the Digest of 1798, contained a petition process providing that “whenever any person or persons shall prefer a petition to the General Assembly, praying that any judgment, rule of court, or determination whatever, may be set aside, or that execution may be delayed,” the person seeking relief should deliver the petition to the secretary of state, post a bond, and pay all costs for a new trial should that form of relief be granted (pp. 133–35). In the 1830s constitutional reformers, most notably Thomas Wilson Dorr and Joseph K. Angell, demanded that the 1663 charter be replaced by a popularly written state constitution. Among the specific reforms they sought were an independent judiciary, checks against legislative conflicts of interest, and an end to the procedure whereby court cases could be reviewed by the General Assembly. The popularly ratified People’s Constitution embodied these reforms (see its Article IV, Section 5, and Article IX, Section 4), but the existing government prevented that basic law from being implemented when its Law and Order faction emerged victorious from the contest known as the Dorr Rebellion and implemented a much more conservative constitution. This new basic law became operative in May 1843, and many of its provisions were readopted in the 1986 Rhode Island Constitution, including Article VI, Section 4. An analysis of the circumstances surrounding the framing of that provision is essential to an understanding of its continuing applicability, or lack thereof. Ironically, the questioned section had its origins in Article IV, Section 5, of the People’s Constitution, which read as follows: “No member of the General Assembly shall take any fees, be of counsel or act as advocate in any case pending before either branch of the General Assembly, under penalty of forfeiting his seat, upon due proof thereof.” The Freemen’s Constitution—the first of two Law and Order alternatives to the People’s Constitution—embraced similar language in its proposed Article IV, Section 4: No member of the General Assembly shall take any fees, be of counsel or act as advocate in any case pending before either branch of the General Assembly, under penalty of forfeiting his seat, upon due proof thereof to the satisfaction of the branch of which he is a member.

Although the Freemen’s Constitution was rejected in a March 1842 popular referendum, it served as the working draft used by the Law and Order Convention of September–November, 1842.

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The 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. The People’s Constitution made a frontal assault on this legislative power in its Article IX, Section 4, by providing that “No jurisdiction shall, hereafter, be entertained by the General Assembly in cases of insolvency, divorce, sale of real estate of minors, or appeal from judicial decisions, nor in any other matters appertaining to the jurisdiction of judges and courts of law.” Petitions for a new trial were apparently beyond this restriction, but of course this basic law was never implemented. In the Law and Order Convention, this provision of the People’s Constitution was advanced and expanded by delegate Sylvester Shearman. According to the convention journal, he proposed an addition to the legislative article that “took away from the General Assembly the appellate jurisdiction on petitions for divorce, benefit of the insolvent laws, new trials, and the jurisdiction on sales of real estate.” Shearman’s suggestion, “after much debate,” was rejected (p. 65). With the defeat of the People’s Constitution and Shearman’s amendment, the old petition process survived its most serious challenge. The General Laws of 1844, the first digest following the implementation of the new constitution, contained “An Act Directing the Method of Preferring Petitions to the General Assembly, and of Acting Thereon” (pp. 69–70). It simply modernized the process whereby court cases could be reviewed or “set aside” by the legislature. The only change in the old order was the constitutional provision (then Article IV, Section 4) that barred a legislator from taking any fee or serving as counsel in any case petitioned to the General Assembly under penalty of forfeiting his legislative seat. From 1844 until 1856 the General Assembly continued to exercise its longstanding appellate and chancery power. Ironically, the most famous exercise of this power occurred in 1854, when Democratic reformers, very briefly in control of the legislature, passed an act reversing and annulling the judgment of the Rhode Island Supreme Court in the 1844 treason trial of Thomas Wilson Dorr. The court retaliated with an advisory opinion (3 R.I. 299), written by Richard Ward Greene, asserting that the legislature acted unconstitutionally. In 1856 Chief Justice Samuel Ames, for a unanimous supreme court that included Associate Justice Sylvester Shearman, declared that the 1843 constitution rendered the judiciary separate from, and independent of, the General Assembly. In the landmark case of Taylor v. Place (4 R.I. 324), Ames declared that “the exercise of judicial, and especially of chancery powers, is prohibited to them [i.e. the General Assembly] by the constitution.” The legislature acquiesced in this bold decision in 1857, when its new digest of general laws revised the petition process to exclude the traditional review of court cases (pp. 37–38). It omitted that practice entirely from the list of “legislative proceedings.” By 1857 decisional and statute law had rendered Article IV, Section 4, obsolete, because the General Assembly no longer heard cases upon petition. Late in

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the nineteenth century, however, reformers concerned about conflict of interest sought to reactivate this out-of-date provision by deleting the word “case” and broadening the section’s application. They deemed this change necessary because it was obvious to them that the existing Section 4 did not apply beyond the judicial context. The first attempt at general constitutional revision occurred in 1897, when the legislature appointed the 15-man Commission to Revise the Constitution. Chaired by retired Chief Justice Thomas Durfee, the commission prepared a draft constitution, which was submitted to the electorate for ratification in 1898 and rejected. Article IV, Section 4, of this document replaced the obsolete word “case” with a much broader definition of improper legislative action. It read as follows: Article IV, Section 4: Any member of the general assembly who shall be of counsel, or who shall take compensation from any person or corporation for service, in any matter pending before either house, shall forfeit his seat upon proof thereof to the satisfaction of the house of which he is a member.

Following the defeat of the constitutional referendum, the legislature appointed a Joint Special Committee on Constitutional Amendments in February 1899. Chaired by Representative William W. Blodgett, it made revisions in the rejected constitution, but it made no change in Article IV, Section 4. This document was submitted to the electors on June 20, 1899, but it also failed to win the three-fifths approval of the voters that was required by the existing constitution. A third Commission to Consider the Amendment and Revision of the Constitution was created by joint resolution in April 1912. Chaired by Richard W. Jennings, the draft prepared by this distinguished nine-member body was never submitted to the voters. Article IV, Section 11, of that document contained language identical to Article IV, Section 4, of the proposed constitutions of 1898 and 1899. There was no further attempt at general constitutional revision until the Rhode Island Constitutional Convention of 1964–1969 produced its proposed basic law. That body’s Legislative Committee studied copies of the draft constitutions of 1898, 1899, and 1915 and recommended several changes, including the revision of Section 4. After long deliberation on the subject of legislative composition, powers, and conduct, the committee recommended, and the convention approved, the following language to replace the obsolete Article IV, Section 4 of the 1843 constitution: Article IV, Section 7: No member of the general assembly shall take any fee, or be of counsel, in any matter pending before either house of the general assembly, under penalty of forfeiting his seat upon proof thereof to the satisfaction of the house of which he is a member.

When the proposed constitution was rejected by the voters, Article IV, Section 4, of the 1843 constitution remained unchanged.

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The generally thorough 1986 Constitutional Convention—also unlimited in its scope—ignored the 1898, 1899, 1915, and 1968 efforts to modernize and broaden the scope of Article IV, Section 4. That body simply made this provision genderneutral and renumbered it Article VI, Section 4. The constitutional and legal history of this section, together with the absence of any case law interpreting it, leads to one historically accurate conclusion: Article VI, Section 4, does not and cannot apply to any action by a member of the General Assembly other than the act of a lawyer/legislator representing a client upon petition and for a fee in a case that had been previously decided in a court of law. Under this interpretation, this section has no present applicability and therefore, it would have been inapplicable when the people reenacted it in 1986. However, its oft-rejected revision should be adopted as a constitutional amendment. It must be admitted, however, that an alternative interpretation is possible: when the people adopted the new constitution in 1986, they knew that the General Assembly no longer heard any “case” in the legal sense of the word, even though they entertained many matters that of course had legal implications. Therefore, to give meaning to this word as used in this section, it could be deemed to have a broader meaning, one that would include any “matter” before the General Assembly, even those matters that would not qualify as legal “cases” in the limited historical sense of the term. Such an interpretation avoids the anomalous result that the people adopted a provision in 1986 that was totally inapplicable and therefore utterly meaningless, because no judicial cases were then possible before the General Assembly. It also serves the evident purpose behind this section: to avoid blatant legislative financial conflicts of interest in matters pending before the General Assembly. SECTION 5. Immunities of General Assembly members. The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place.

This section is nearly identical to Article IV, Section 5, of the 1843 constitution, except that it has been modified to add gender-neutral language. The section is also similar to Article I, Section 6, of the United States Constitution, which reads, in part: “The Senators and Representatives shall … in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” Few cases exist in which the court has construed this section of the state constitution. Nevertheless, in those few cases the court has addressed the most obvious questions concerning its interpretation. In Lemoine v. Martineau, 342 A.2d 616 (R.I. 1975), the court struck down a statute that excused legislators—whether as litigants, counsel of record, or witnesses—from appearing at the trial of any civil or

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criminal action then being held in state court when the General Assembly was in session. The law also invalidated any legal process served upon the absentee legislator to compel his or her appearance in court. After holding the law unconstitutional on other grounds, the court went on to state that the law was not a reaffirmation of this section because the law did not speak of arrest. Id. at 622. In Bailey v. Laurie, 373 A.2d 482, 485 (1977), the court, while reserving the question of whether this section applies to members-elect, held that the Supremacy Clause of the United States Constitution indicated that service of process by and in another state was inapplicable to this section. U.S. Const. Art. VI, cl. 2. Most recently, in Holmes v. Farmer, 475 A.2d 976 (R.I. 1984), the court took the opportunity to answer a number of questions concerning the speech-in-debate clause of this section while sustaining a redistricting plan for the state House of Representatives. The court noted that the two purposes of the privilege were “to preserve the constitutional structure of separate, coequal, and independent branches of government” and to protect a legislator “from executive and judicial oversight that realistically threatens to control his conduct as a legislator.” Id. at 985 (quoting United States v. Helstoski, 442 U.S. 477, 491 [U.S. 1979] and Gravel v. United States, 408 U.S. 606, 618 [U.S. 1972]). The court said that this freedom “allows the free flow of debate among legislators and the maximization of an effective and open exchange of ideas.” Holmes, 475 A.2d at 982. In passing on the redistricting plan, the court stated that the clause protects legislators from inquiry into legislative acts or the motivation for actual performance of legislative acts that are clearly part of legislative process; the privilege applies equally to legislative aides and commission staff members engaged in legislative activity; the privilege is an immunity from both suit and testimony; the fact that some meetings took place outside the State House was of no consequence; the claim of an unworthy purpose does not destroy the privilege; and any claims under the clause exceeding what would be needed to protect legislative independence would be closely examined. Id. 982–85. The court also said that the clause does not protect actions outside the legislative process, such as political or criminal activities that the legislator has engaged in. Id. at 983. The clause also allows legislators to testify about their legislative activities if they are relevant to a criminal investigation, so long as the propriety of the activity is not questioned. Id. While reserving the question of whether a legislator who was sued or prosecuted individually could waive the privilege, the court held—in what was one of the major holdings of the case—that a legislator called as a witness in a trial where he was not a party could not waive the privilege. Id. at 985. Thus although there may be many questions that still surround the scope of this section, many have been answered. The fact that the evolution of the state clause and the federal clause share many of the same issues means that, as is often the case, the court will look to the United States Supreme Court when interpreting the speech-in-debate clause of the state constitution. SECTION 6. Election and qualification of General Assembly members—Quorum and organization of houses. Each house shall be the judge of the elections and qualifications of its members; and a majority shall constitute a quorum to do business;

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but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner, and under such penalties, as may be prescribed by such house or by law. The organization of the two houses may be regulated by law, subject to the limitations contained in this Constitution.

This section appears exactly as it originally read in Article IV, Section 6, of the 1843 constitution, except for a few changes in capitalization. The section is similar to Article I, Section 5, of the United States Constitution, which reads, in part: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.” Although a few cases exist, the court has not been asked to interpret this section frequently. Nevertheless, the cases in which the court has ruled answer at least some of the questions that the text raises. In State v. Town Council of South Kingstown, 27 A. 599, 601 (R.I. 1893), the court held that it could order a town to hold an election as prescribed by statute for the election of General Assembly members after the town refused to do so. The court also held that the senate could lawfully seat a senator elected when the senate found the election to have been lawful, even though the House of Representatives had refused to seat the representative chosen in the same election from the same area. Id. In Corbett v. Naylor, 57 A. 303, 304 (R.I. 1904), the court ruled that this section was meant to indicate that each house is the sole judge of the elections and qualifications of its members. In doing so, the court refused to issue a writ of mandamus that would have ordered the moderator of the North Providence elections to count a ballot. The moderator had refused to count the ballot because of the near impossibility of determining the intention of the voter. If counted for the petitioner, the vote would have changed the outcome of the election and made him the winner of the house seat at issue. Id. In In re Certain Members of House of Representatives, 191 A. 269, 272–273 (R.I. 1937), the court held that a group of House members who sent a letter to the court requesting an advisory opinion were not entitled to it because, although the group had enough votes to constitute a quorum and the majority that was needed to pass the request, it still had to be brought to the floor of the House for a full vote. In Moore v. Langton, 167 A.2d 558, 562 (R.I. 1961), the court invalidated a law that passed without a quorum being present. The court held that even though a quorum existed at the beginning of that day’s session, any presumption concerning the continued existence of a quorum vanished when the actual vote on the bill showed that a quorum was lacking. Id. at 561. In Opinion to the Governor, 183 A.2d 806, 809–810 (R.I. 1961), the justices disapproved of a proposed bill that would have given House members the ability to cast fractions of whole votes based on the population in their district. The court held that the constitution contemplated that each one of the 100 representatives stood in exact same relationship in terms of voting power to their representative percentages of the whole legislature. Id. at 810.

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Most recently, in Bailey v. Burns, 375 A.2d 203, 208 (R.I. 1977), the court refused to issue a writ of mandamus that would have ordered the secretary of state to swear in a representative-elect that the House had refused to seat. In doing so, the court adopted the standard announced by the United States Supreme Court in Powell v. McCormack, 395 U.S. 486, 522–23 (U.S. 1977), that neither house of Congress had the power to exclude any duly elected member unless that member or member-elect failed to satisfy the requirements of the Constitution. Bailey, 375 A.2d at 208. SECTION 7. Rules of the houses—Contempt. Each house may determine its rules of proceeding, punish contempts, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member; but not a second time for the same cause.

This section first appeared verbatim as Article IV, Section 7, of the 1843 constitution. The Rhode Island Supreme Court has not yet addressed a case concerning this subject mater. SECTION 8. House journals. Each house shall keep a journal of its proceedings. The yeas and nays of the members of either house shall, at the desire of one-fifth of those present, be entered on the journal.

This section appears exactly as it did in Article IV, Section 8, of the 1843 constitution. The section is similar to Article I, Section 5, Clause 3, of the United States Constitution, which reads: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” There have been only a few occasions on which the court has construed this section. In O’Neil v. Demers, 118 A. 677, 680 (R.I. 1922), the court stated that “[w]hen a question arises … regarding the validity of an enrolled act and depending for its proper determination upon the nature of the action of the houses of the General Assembly, [the court] may, in the consideration of that question, receive the evidence furnished by the public records embodied in the legislative journals.” In In re Opinion of the Justices, 120 A. 868, 870 (R.I. 1923), the justices opined that it was the house’s duty to determine the validity of its journal, not the court’s. They went on to state that they would interpret records of the house with respect to facts appearing upon those records and give them the proper legal construction. Id. In In re Certain Members of House of Representatives, 191 A. 269, 271 (R.I. 1937), the justices elaborated on the meaning and function of the section. They stated: This mandatory provision of the Constitution requires a roll call, and a recording of the vote of the members of the House, when proper and timely request is made therefor. It is a right that neither the House nor any member thereof, whatever

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position he may occupy in its organization, may disregard or willfully nullify. This provision is a limitation on the power of the House, in the conduct of its affairs, made by the people themselves and primarily intended for their protection and interest. It also operates as a check or restraint upon majorities and minorities alike, who might be willing to avoid the requirements of this constitutional safeguard. The people, in express and unmistakable language, have reserved to themselves the right to be informed, by means of a permanent and public record, of the actions of their elected representatives, on matters affecting the life, liberty and property of the people under the law. [Id.]

In holding that it would not pass judgment on a request for an advisory opinion in a letter addressed from a majority of the House of Representatives, the justices said that they felt that the presiding officer, who the justices believed was violating the constitution in not allowing for roll call votes, would do so once informed of his constitutional duty to do so. Id. at 272. SECTION 9. Adjournment of houses. Neither house shall, during a session, without the consent of the other, adjourn for more than two days, nor to any other place than that in which it may be sitting.

This section appears exactly as it did in Article IV, Section 9, of the 1843 constitution. The section is similar to Article I, Section 5, Clause 4, of the United States Constitution, which reads: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” There have been few occasions on which the court has interpreted this section. In In re Legislative Adjournment, 27 A. 324, 326 (R.I. 1893), the justices said that the legislature may adjourn for over two days only by joint resolution, and that no set of facts could justify a longer adjournment without this process. The justices reaffirmed this interpretation 20 years later in In re Opinion to Governor, 85 A. 1056, 1057 (R.I. 1913). The spirit, if not the letter, of this section was violated most blatantly in the 1924 legislative session. In that year Democratic reformers in the House succeeded in passing a bill calling for a constitutional convention, despite an 1883 supreme court advisory opinion that the legislature lacked the power to do so. When the bill went to the senate, where the Republicans held a slim margin, the Democratic minority, led by West Warwick senator Robert E. Quinn and Lieutenant Governor Felix Toupin of Woonsocket, the presiding officer, staged a marathon filibuster to force weary Republicans to pass the constitutional convention bill. The strategy of Toupin was to wear some of the elderly Republicans down and then call for a vote on the question when they snoozed or strayed. In the 42nd hour of the filibuster, as the vigilant Democrats awaited the success of this scheme, Republican party managers authorized some thugs imported from Boston to detonate a bromine gas bomb under Toupin’s rostrum. As the fiery Woonsocket politician keeled over unconscious, senators scrambled for the doors. Within hours most of the Republican majority was transported across the state line into Massachusetts, where Toupin’s summons could not reach them. There

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they stayed (Sundays excepted) until a new Republican administration assumed office in January 1925. Ironically, the defeat of the Democrats in the 1924 state elections was due in part to the fact that the Providence Journal wrongly accused them of the bombing. The newspaper had particular reason to discredit the Democrats that year, inasmuch as Jesse H. Metcalf, brother of the Journal’s president, was the GOP candidate for U.S. Senate in the fall election against incumbent governor William S. Flynn. The paper’s strategy worked. To stem the defection of Franco-Americans from the Republican party, Aram Pothier was summoned from retirement to battle Felix Toupin in the 1924 governor’s race. With the Democrats unjustly blamed for the stink-bomb incident, Pothier and the GOP won a decisive victory. The turmoil that convulsed the state legislature in its 1924 session prompted the victorious Republicans who gained control of that body in the fall elections of 1924 to institute checks against the potential for such disruptions in the future. When the new legislative session opened in January 1925, the Republicans promptly sponsored a bill creating a Department of State Police. Rising violence in labor disputes and the need to enforce a statewide auto code were also motivating factors in the establishment of this first uniformed statewide law-enforcement agency. SECTION 10. Residual powers (repealed in 2005). The general assembly shall continue to exercise the powers it has heretofore exercised, unless prohibited in this Constitution.

This is the now-repealed section that featured so prominently in the war over separation of powers that raged in Rhode Island from 1997 to 2004. As reenacted in 1986, the section’s wording was the same as it appeared in Article IV, Section 10, of the 1843 constitution, except that the earlier version discussed powers of the General Assembly that “they have” exercised instead of powers “it has” exercised. R.I. Const. Art. VI, § 10 (repealed 2005); R.I. Const. of 1843 Art. IV, § 10. In 2004, however, Rhode Island voters approved a number of amendments to the state constitution designed to establish a greater separation of powers in the Ocean State. See November 2, 2004, Rhode Island Election Results and Official Election Ballot of State of Rhode Island, November 2, 2004, available at http://www.rules.state.ri.us/special_projects/2004_genElection_ ballots/3104.pdf. The 2004 amendments took effect on New Year’s Day of 2005. Historically, this section continuously surfaced in litigation challenging the legislature’s delegation of powers to administrative agencies and other third parties. Legislative delegation of the powers given to the General Assembly under this section could be accomplished so long as such a delegation was “confined in expressly defined channels … by the general assembly in other bodies which it authorizes to act as its agents or auxiliaries in carrying out its constitutional duties.” Opinion to the Governor, 308 A.2d 802, 808 (R.I. 1973) (quoting

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Opinion to the Governor, 145 A.2d 87, 89 [R.I. 1958]). The delegation question having been settled, the question then became, What powers did this section cover? “The General Assembly of Rhode Island succeeded to all the powers of the British Parliament except as limited by the constitution of the United States or the State of Rhode Island.” Opinion to the Governor, 185 A.2d 111, 115–116 (R.I. 1962) (quoting Henry v. Cherry & Webb, 73 A. 97, 104 [R.I. 1909]). Accordingly, cases under this section addressed the constitutional limits of this expansive power and what powers the legislature retained after 1843. In Opinion to the Senate and House of Representatives, 3 R.I. 299 (1854), the justices stated that “The exercise of judicial power by the legislative department of the government is so inconsistent with the other provisions of the Constitution” as to be invalid. Here, the justices opined that a proposed act to reverse the treason conviction of Thomas Dorr, the leader of Dorr’s Rebellion, would be an invalid exercise of judicial power by the legislature. A few years later the court affirmed this decision in Taylor v. Place, 4 R.I. 324 (1856). There the court again stated that the new constitution vested the judicial power exclusively in the courts and not in the legislature. Thus the court declared unconstitutional a statute that purported to reverse a judicial decision. Over the years the justices of the court found other limits on legislative power in the state constitution, overturning certain laws in the process. In Opinion to the Governor, 196 A.2d 829, 832 (R.I. 1964), the justices disapproved a proposed law that would bar future legislatures from imposing tolls on the cost of driving over a certain bridge. In another opinion, entitled Opinion to the Governor, 208 A.2d 105, 109 (R.I. 1965), the justices opined that a constitutional provision which, with some exceptions, prohibited the legislature from taking on debt greater than $50,000 without the people’s consent barred the legislature from taking on more debt, and for a different purpose, than the one submitted to the voters. See R.I. Const. Art. VI, § 16; R.I. Const. of 1843 Art. IV, § 13. In Camara v. City of Warwick, 358 A.2d 23, 29 (R.I. 1976), the court held that a city zoning ordinance that barred later amendments was an unconstitutional infringement on the legislative power validly delegated to the city by the legislature. In In re Advisory Opinion to the Governor (Ethics Comm’n), 612 A.2d 1, 14 (R.I. 1992), the justices concluded that the creation by constitutional provision of an Ethics Commission to enact an ethics code—see R.I. Const. Art. III, §§ 7 and 8—meant that the legislature could not enact ethics laws that were inconsistent with the ethics code of the commission. For the most part, however, the court found legislative acts challenged under this section were within the plenary power of the legislature. See General Finance Corp. v. Archetto, 176 A.2d 73, 77 (R.I. 1961), appeal dismissed, 369 U.S. 423 (U.S. 1962) (upholding the power of the legislature to exempt religious organizations from taxes despite the existence of state versions of the religion clauses [See U.S. Const. Amend. I; R.I. Const. Art. I, § 3]); Powers ex rel. LaBelle v. Monahan, 132 A.2d 97, 99 (R.I. 1957) (upholding the power of the legislature over the time and

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manner of holding municipal elections); Gorham v. Robinson, 186 A. 832, 860 (R.I. 1936) (upholding power of legislature to shorten the terms, or decrease the salaries, of lower court judges); Rhode Island Bar Ass’n v. Automobile Service Ass’n, 179 A. 139, 141 (R.I. 1935) (upholding the power of the legislature to prescribe punishments for the unlicensed practice of law despite the fact that the regulation of lawyers was a judicial concern); Mexican Petroleum Corp. v. Bliss, 110 A. 867, 871 (R.I. 1920) (upholding the power of the legislature to tax intangible property of corporations); In re Decision of Justices (Elections by Senate), 69 A. 555, 557 (R.I. 1908) (upholding the power of the General Assembly to place the appointment of certain officers not mentioned in the state constitution in either or both houses, just the state senate, or both the state senate and the governor); City of Newport v. Horton, 47 A. 312, 316 (R.I. 1900) (upholding the power of the legislature to establish a police commission with the power to appoint a local police chief). Near the turn of the twenty-first century, the justices issued two opinions that inadvertently helped put this section on the path to being scrapped altogether and also paved the way for adoption of the other separation-of-powers amendments. See, generally, Carl T. Bogus, The Battle for Separation of Powers in Rhode Island, 56 Admin. L. Rev. 77, 83 (2004). In the landmark decision In re Advisory Opinion to the Governor (Rhode Island Ethics Comm’n—Separation of Powers), 732 A.2d 55, 65 (R.I. 1999), a majority of the justices opined that a regulation approved by the Rhode Island Ethics Commission that barred legislators from serving on executive agencies was unconstitutional. Notwithstanding a strong opinion from Justice Flanders taking the opposite position, most of the justices concluded that this regulation was invalid because it took away the power of the General Assembly and its leaders to appoint legislators to state executive boards, commissions, and agencies, a power they had long exercised. The justices even went so far as to say that the regulation was invalid because it violated the principle that people are innocent until proven guilty, since the proposed regulation would demote legislators serving on administrative boards to a class of status offenders. Id. at 66. The corruption scandals that preceded adoption of the new constitution in 1986, including the new Sections 7 and 8 of Article III, providing for the creation of the Ethics Commission and for the adoption of an ethics code for government officials, did not cause most of the justices to reach a contrary conclusion. Rather, they believed that the ethics regulation barring legislators from serving on administrative agencies and appointing others to serve on them would have the undesirable effect of invalidating the governance structure of numerous executive agencies. Id. at 61; Ethics Comm’n, 612 A.2d at 2. The following year, in the contested matter of Almond v. Rhode Island Lottery Comm’n, 756 A.2d 186, 196 (R.I. 2000), the court itself confirmed the ability of the legislature to appoint its own members to various executive boards and administrative agencies, such as the Lottery Commission, saying that such a practice did not violate separation of powers principles or bicameralism or presentment requirements for legislative action. In so doing, the court also reiterated its conclusion that the state government was, in reality, a “quintessential parliamentary supremacy.” Id. at 64.

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The 2004 separation of powers amendments emphatically reversed this conclusion. Among other changes, the people repealed Section 10 and adopted provisions that rendered unconstitutional the General Assembly’s previous practice of appointing legislators and other designees to administrative boards, agencies, and commissions. R.I. Const. Art. III, § 6 (amended 2005), Art. VI, § 10 (repealed 2005). Nevertheless, there are many unanswered questions about the scope and nature of these new requirements that the court will have to address in the future. The action of the 2003 session of the General Assembly in agreeing to make the repeal of Article 10 a referendum question in the 2004 general election was a major relinquishment of power. Amazingly, this incredible act of self-denial was made by the legislature with full knowledge of its consequences. Testifying on April 9, 2003, at the request of the House Committee on Separation of Powers, Professor Patrick Conley suggested to the committee that the contemplated separation of powers amendments would mark a transformation in Rhode Island government “from the omnipotent legislature to the imperial governor.” At the committee’s request, he enumerated the most salient residual powers exercised by the General Assembly under Article VI, Section 10. This selective list of powers, not specifically granted by the constitution nor prohibited therein, included the following “examples”: (1) power to convene constitutional conventions; (2) power over cities and towns (“the creature doctrine”) by general laws, power of approval over local taxes and borrowing (Article XIII, Section 2), and power to enact legislative charters for non-home-rule municipalities; (3) power to create or merge towns and cities or alter their boundaries; (4) power to create counties and define their functions; (5) power to appoint members of boards and commissions and to serve thereon; (6) power over lotteries (VI, 15) previously permitted (i.e., pre-1973); (7) power over the tenure and terms of those state officers who are not granted constitutional terms or tenure (Gorham v. Robinson), 57 R.I. 1 (1936); (8) power to enter into interstate compacts and agreements; (9) power to draw and determine congressional districts; (10) power to deal with Native American tribal organizations and to determine their status and make land purchases therefrom; (11) power to settle disputes involving the state’s boundaries and the boundaries of cities and towns; (12) all powers “necessary and proper” to secure to the people the advantage of education and public library services (Article XII), by virtue of the General Assembly’s traditional role as the state school board; (13) power to regulate commerce and transport on Narragansett Bay and the state’s inland waterways; (14) power to exercise control over tidal lands and the environment under the Public Trust Doctrine; (15) power to impose fines, penalties, and imprisonment for violations of law; and (16) power to determine state citizenship. When the General Assembly comes to a full realization of the consequences flowing from the repeal of Section 10, the battle over the future exercise of these relinquished powers will keep Rhode Island government in its historically agitated condition. The exercise of the residuum of power will be replaced by the exertions over the retrieval of power.

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SECTION 11. Vote required to pass local or private appropriations. The assent of two-thirds of the members elected to each house of the general assembly shall be required to every bill appropriating the public money or property for local or private purposes.

This section originally appeared as Article IV, Section 14 of the 1843 constitution. Note that the requirement of a two-thirds supermajority is a higher hurdle for a bill than the three-fifths supermajority that is needed to pass a bill over the governor’s veto, even a bill that does not contain appropriations for local or private purposes. R.I. Const. Art. IX, § 14. Presently there are 75 members of the state House of Representatives and 38 members of the state senate. R.I. Const. Art. VII, § 1, Art. VIII, § 1. This means that to pass an appropriations bill for local or private purposes, the votes of 50 House members and 26 senate members are required. When a bill with multiple appropriations, some with public and/or statewide purposes and some with private and/or local purposes, passes without the two-thirds supermajority, the appropriations for private and local purposes are treated as having dropped out of the bill and the remainder becomes law. In re Opinion of Justices, 120 A. 868, 869 (R.I. 1923). “A statute which is unconstitutional or void in part may still be valid as to the residue, unless the parts are so intimately connected that it cannot be supposed that one part of the statute was intended to be enforced independently of the other.” City of Providence v. Moulton, 160 A. 75, 76 (R.I. 1932). Cases addressing the legality of legislative appropriations have focused on the difference between “public purposes” and “private purposes,” and on distinguishing “statewide purposes” from “local purposes.” These issues may arise when an appropriations bill passes with a simple majority, not a two-thirds supermajority, in either house. What is considered a public purpose under this section is similar to asking what is a public use for eminent-domain purposes. U.S. Const. amend. V; R.I. Const. Art. I, § 16; In re Advisory Opinion to the Governor, 324 A.2d 641, 646 (R.I. 1974). [P]ublic use may not be given a rigid, unbending, absolute definition. In the ever changing conditions of our modern society, new advances in the fields of sciences, new concepts in the scope and function of government and other circumstances make it clear that the former concept as to what is a public use has undergone a great change. Views as to what constitutes a public use necessarily vary with the changing conceptions of the scope and functions of government so that today there are familiar examples of such use which years ago would be unheard of. As governmental activities and services increased with the growing demands of society, the concept of “public use” has broadened in proportion thereto. The modern trend of authority is to expand and liberally construe the meaning of “public use.” (Romeo v. Cranston Redevelopment Agency, 254 A.2d 426, 431 [R.I. 1969].)

If the principal purpose of an act is public, it does not matter that there is an incidental private benefit conferred. Cardi Corp. v. State, 524 A.2d 1092, 1099 (R.I. 1987). In this vein the court has accorded great deference to the legislature

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to define the term “public use.” In Advisory Opinion to Governor, 289 A.2d 430, 433 (R.I. 1972), the justices approved a statute authorizing a state-owned corporation to acquire, develop, lease, and sell real estate that was to be used at sites for various industrial and commercial endeavors. The justices said that there would be no problem in this corporation’s appropriation of land for public purposes, and that determining the public purpose in question would require ad hoc determination. Id. They also said, however, that “An act of the general assembly mandates judicial approval if, on any reasonable view, the act is designed to protect the public health, safety and welfare.” In re Advisory Opinion to the Governor, 324 A.2d at 646 (R.I. 1974). But in a consideration of whether a stated objective is a public purpose, “the self-serving recitation of a public purpose contained within the legislation is not conclusive.” Kayrouz v. Rhode Island Depositors Economic Protection Corp. ex rel. Sundlun, 593 A.2d 943, 947 (R.I. 1991). Nonetheless, the justices have often been willing to accept the legislature’s interpretation of “public purpose” in this context. See R.I. Const. Art. 6, § 18 (declaring redevelopment and improvement of blighted property to be a public purpose in the eminent-domain context); Kayrouz, 593 A.2d at 948 (holding the creation of a state-owned corporation to deal with a banking crisis in this state to be a public purpose); In re Advisory Opinion to the Governor, 510 A.2d 941, 942 (R.I. 1986) (opining that a law mandating the director of transportation to repair and maintain a half-mile connector road between two public highways was for a public purpose); State v. Rhode Island State Police Lodge, 544 A.2d 133, 135 (R.I. 1988) (holding that an arbitration panel that had awarded state police retirees healthcare benefits was consistent with a public purpose because of the need for police and for compensating them); Cardi, 524 A.2d at 1099 (holding that a law allowing a particular claimant to sue the state fit within the broad definition of “public purpose”). On a number of occasions, however, the court has invalidated or disapproved a statute because it was not deemed to be for a public purpose or because it did not obtain the requisite two-thirds majority of each house of the legislature. Kennedy v. State, 654 A.2d 708, 713 (R.I. 1995) (holding that a statute allowing a particular claimant to recover beyond a previously enacted liability cap was an appropriation for a private purpose, which failed for not receiving the twothirds supermajority); State Terminal Corp. v. General Scrap Iron, Inc., 264 A.2d 334, 338 (R.I. 1970) (holding that conveyance of state property in exchange for private property requires two-thirds approval); Opinion to the Governor, 170 A.2d 284, 286 (R.I. 1961) (opining that a statute returning to drivers and chauffeurs the amount of money that they had to pay in excess of license fees that were not due in that particular year was an appropriation for a private purpose, because once money enters the treasury, it is all part of the same fund). In the State Terminal case, 264 A.2d at 338, the court also expressed the opinion that when the General Assembly appropriates money for a private purpose, it should appear on the face of the statute that the legislature passed the bill with the requisite two-thirds vote.

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The question of what is a statewide purpose instead of a local purpose has also received attention from the court when it has considered appropriations under this section. In Moulton, 160 A. at 76, the court held that an appropriation to the Providence Board of Public Safety to pay salaries and expenses of the board’s members was a local purpose that required a two-thirds vote. Conversely, in Moore v. Langton, 167 A.2d 558, 563 (R.I. 1961), the court held that a state law mandating taxation on intangible personal property throughout the state, with 40 percent of the proceeds to be returned to the cities and towns, was not a local purpose, because the appropriation was, in effect, statewide. There appear to be few cases in which the court has had to distinguish a local purpose from a statewide purpose. As a result, drawing the line between them appears difficult. This is in contrast to drawing the boundary between public and private purposes, which have the aforementioned cases, and state and federal cases concerning eminent domain, to distinguish them. The final issue for consideration in this area is determining what constitutes an “appropriation.” When a bill that seems to require a two-thirds vote is passed without it, supporters may claim that there really was no appropriation to challenge. In Cardi, 524 A.2d at 1098, the court held that legislation allowing a claimant to file suit against the state was not an appropriation, despite the fact that the term appropriated was used in the bill, because no money was set aside for the lawsuit. The court defined an appropriation as something that “sets apart from the public revenue a certain sum of money for a specified object, in such a manner that the executive officers of the government are authorized to use that money, and no more, for that object and for no other.” The court declared that “[t]he test of whether an act is an appropriation is whether the money may be paid or drawn from the state treasury on authority of the act.” Id. In Kennedy, 654 A.2d at 711, the court held that money to pay out claims against the state was an appropriation requiring the two-thirds vote. Thus the definition of an appropriation requires a setting aside of a certain amount of money that can be spent for a particular program. Given the deference that the court accords to the legislature and the fact that “local purpose” seems to be the most undefined term found in this section, it will likely remain the most contentious issue in the near future, whereas there seem to be clearer definitions for the terms “private purpose” and “appropriation.” SECTION 12. Property valuations for tax assessments. The general assembly shall, from time to time, provide for making new valuations of property, for the assessment of taxes, in such manner as it may deem best.

This section originally appeared as the first sentence of Article IV, Section 15, of the 1843 constitution. The second sentence of that section read: “A new estimate of such property shall be taken before the first direct State tax after the adoption of this constitution, shall be assessed.” Id. When the people adopted the present constitution in 1986, they eliminated this language because the original event in question was no longer relevant.

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Case law interpreting this section has been scarce. Nonetheless, the Rhode Island Supreme Court has answered a number of important questions pertaining to it. It has interpreted this section as vesting the taxing power exclusively in the legislature. Inn Group Assocs. v. Booth, 593 A.2d 49, 52 (R.I. 1991) (citing Ewing v. Tax Assessors of Jamestown, 247 A.2d 850, 853 [R.I. 1968]). “[T]he Legislature decides what will be taxed, and the property may not be taxed unless the Legislature has passed a statute clearly subjecting it to taxation.” Inn Group, 593 A.2d at 52 (citing Newport Gas Light Co. v. Norberg, 114 R.I. 696, 699 [R.I. 1975]). “The General Assembly may provide that towns [and other subordinate political bodies] may exercise the taxing power in any way that is deemed expedient, provided no provision of the Constitution is violated.” In re Opinion of Judges, 97 A. 21, 25 (R.I. 1916). At that time this could be accomplished with or without the approval of a particular town’s voters. Id. In Inn Group, the court voided a number of tax assessments on a pair of timeshare condominium buildings because the assessor neglected to follow the valuation methods set out in state law. Inn Group, 593 A.2d at 51. Conversely, in Kargman v. Jacobs, 325 A.2d 543, 547-548 (R.I. 1974), the court upheld assessments on a number of parcels of land under a law stating that such parcels were to be assessed at their “full and fair cash value.” The court held that the assessor had the power to use any of the recognized methods of valuation in appraising the property. Id. The court has also applied this section to the intangible property of corporations, which is both the capital doing business within a state and other intangible property within the state that the legislature may choose to tax. In Mexican Petroleum Corp. v. Bliss, 110 A. 867, 877 (R.I. 1920), the court upheld taxation on such intangible property, finding that the legislature had “determined that a tax should be assessed, upon whom it should be imposed, the property to be taxed, and the rate of tax upon the valuation of the property.” Conversely, in Moore v. Langton, 167 A.2d 558, 563 (R.I. 1961), the court overturned an assessment on the intangible property of a person, holding that property must be evaluated before it could be assessed with a tax. SECTION 13. Continuance in office until successors qualify. The general assembly may provide by law for the continuance in office of any officers of election or appointment, until other persons are qualified to take their places.

This section appeared first as Article IV, Section 16, of the 1843 constitution. The only difference between the two provisions is that the earlier version discussed “officers of annual election or appointment” (emphasis added). Id. Article of Amendment XVI (1911) increased the term of general officers and legislators to two years commencing with the 1912 elections, thereby annulling Section 2 of Article of Amendment XI (1900) and making the original Article IV, Section 16, inconsistent with the lengthened tenure. The Rhode Island Supreme Court has not specifically addressed this section in any reported cases. SECTION 14. General corporation laws. The general assembly may provide by general law for the creation and control of corporations; provided, however, that no

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corporation shall be created with the power to exercise the right of eminent domain, or to acquire franchises in the streets and highways of towns and cities, except by special act of the general assembly upon a petition for the same, the pendency whereof shall be notified as may be required by law.

Article IV, Section 17, of the 1843 constitution read as follows: “Hereafter, when any bill shall be presented to either House of the General Assembly, to create a corporation for any other than for religious, literary or charitable purposes, or for a military or fire company, it shall be continued until another election of members of the General Assembly shall have taken place, and such public notice of the pendency thereof shall be given as may be required by law.” R.I. Const. of 1843, Art. IV, § 17 (amended 1892). An effort in 1876 to repeal this section altogether was defeated. See State v. District of Narragansett, 16 A. 901, 902 (R.I. 1889). But in 1892 the people amended the constitution and replaced the original section with language nearly the same as Article VI, Section 14, appears today, except for some changes in punctuation and capitalization and the fact that the section, like its 1843 predecessor, also began with the word Hereafter. R.I. Const. Art. VI, § 14; R.I. Const. of 1843, Amend. IX. In Rhode Island, as elsewhere, a corporation is a legal person and cannot be deprived of life, liberty, or property without due process of law. This simple recitation of the constitutional evolution of the present Section 14 belies a momentous development in American economic history. The details of the story are well beyond the scope of this analysis, but an outline of the transition from special to general incorporation in Rhode Island and elsewhere is worthy of note. Prior to 1842 the Rhode Island General Assembly, in line with the practice in most other states, issued corporate charters upon petition by special act. Most of the early corporations of a business nature were concerned with turnpikes, canals, railroads, bridges, and other transportation improvements of a public nature. Such undertakings had a public service character, and they required substantial amounts of invested capital and were often highly speculative. They sometimes allowed the corporate recipient to exercise the right of eminent domain. As Rhode Island industrialized, many businessmen and entrepreneurs sought charters for large-scale manufacturing enterprises, banking, and insurance; and the public service aspect of the corporation gradually dissipated in favor of projects that enhanced individual business opportunities. By the 1830s equal rights reformers, such as the followers of Thomas Wilson Dorr and labor leader Seth Luther, began to regard these specially enacted business and banking charters as monopolistic, undemocratic grants of exclusive privilege. Implicit in this belief was the notion that they were often obtained through political favoritism. Acting upon this suspicion, the People’s Constitution required assent from twothirds of the whole membership of each house of the legislature for “creating, continuing, altering, or renewing” any nonbanking corporation and—reacting to Justice Story’s concurring opinion in the Dartmouth College Case, 17 U.S. 618

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(1819), relative to the reservation of the right to revise or withdraw charters once they were granted—insisted that “all grants of incorporation shall be subject to future acts of the General Assembly in amendment or repeal thereof.” The People’s Constitution reserved its greatest suspicion for banks, requiring a popular referendum on the granting of any bank charter. In 1836, as a state legislator, Dorr had been the principal sponsor of a banking regulation act that has been called “the first comprehensive American banking statute” (Peter J. Coleman, The Transformation of Rhode Island, 1790–1860 [Providence, 1963], pp. 197–99). Dorr himself described the measure as “the first in any state to establish a thorough visitation of banks and to reduce them to their just responsibility” (Conley, Democracy in Decline, pp. 278–79). Against this backdrop it is not surprising that the constitution of 1843 retained a rather cumbersome incorporation procedure by special act, with a general election intervening between the introduction of the corporate bill and its passage. Increasingly, both businessmen and legislators came to regard this process as timeconsuming as well as an impediment to economic development. In 1844 the legislature passed an act providing for the manner in which the constitutionally required public notice should be given for charter petitions. Then, in 1847, the General Assembly enacted an important liability statute that displayed Rhode Island’s corporate conservatism. It provided that shareholders in manufacturing corporations thereafter formed should be jointly and severally liable for corporate debts until the entire capital stock, as fixed by the charter or by vote of the company pursuant to the charter, should be paid in and a certificate thereof recorded in the office of the city or town clerk where the manufactory was established. Then the shareholders were to be liable “no longer,” except that if capital were refunded to them they would be liable without limit for all outstanding debts and for those contracted before the recording of the vote reducing the capital stock and would also be responsible for corresponding debts if the company should fail to file in the town clerk’s office an annual statement of the amounts of its paidin capital and of its debts. These liabilities could be enforced either by levying the execution which had been issued against the company upon the persons or property of the shareholders, or by a separate bill in equity against the shareholders. Certain additional liabilities to creditors were imposed upon directors and officers. Existing manufacturing corporations that had a paid-in capital of $30,000 or more were permitted to adopt the act. This general scheme endured into the early twentieth century. By 1892, when Article IV, Section 17 was ratified, every industrial state had made provision for a general self-incorporation process. In his classic study American Business Corporations Until 1860 (Cambridge, Mass., 1954), Professor Edwin Merrick Dodd has shown that Rhode Island “was the last of the industrial states to adopt a friendly attitude towards petitions for the incorporation of manufacturing companies, the last to include limited liability in the privileges granted to such companies, and the last to permit incorporation by general act [in 1893]” (pp. 428–35). Such backwardness in developing the modern corporate forms of business organization is quite surprising in view of Rhode

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Island’s Whig-Republican leadership and the fact that Rhode Island was the first urban-industrial state. This anomaly deserves the attention of an economic historian. Prior to Amendment IX to the 1843 constitution, there were a few cases decided by the Rhode Island Supreme Court pertaining to this section. In District of Narragansett, 16 A. at 92, the court held that the section was mandatory and not merely advisory. In Union Co. v. Sprague, 14 R.I. 452 (1884), the court held that an act amending a private corporation’s charter to change the name of the corporation was not tantamount to the creation of a new corporation, even though it authorized much larger capital than originally allowed and authorized the corporation to transact business that it had not been able to enact previously. In Opinion to Governor, 69 A.2d 531, 538 (R.I. 1949), the justices reaffirmed the other major holding in District of Narragansett: that the section does not apply to public corporations. 16 A. at 93. The remaining jurisprudence in this area has largely dealt with the difference between public and private corporations. In Wood v. Quimby, 40 A. 161 (R.I. 1898), the court held that a fire district was a quasipublic corporation, that it was not carrying on as a business, had no capital stock, made no returns, held no property except for public purposes, and merely exercised part of the power of the sovereign. Id. at 163. In Greenough v. Bd. of Police Com’rs of Town of Tiverton, 74 A. 785, 789 (R.I. 1909), the court held that “[c]orporations, constituted mainly for the purpose of conducting business, which do not possess extraordinary powers, especially the powers enumerated in [Article VI, Section 14 and under the law] are ordinary business corporations.” In In re Pawtucket & Central Falls Grade Crossing Comm’n, 89 A. 695, 703 (R.I. 1914), the court held that the legislature need not say “corporation” or “private corporation” to create a private corporation, but that in order to create a private corporation by implication, there must be “powers and privileges [that] are conferred upon a body of men” and these powers and privileges “cannot be exercised and enjoyed, and … the purposes intended cannot be carried into effect, without [that body of men] acting in a corporate capacity” (quoting Dillon on Municipal Corporations, § 43). In Ajootian v. Providence Redevelopment Agency, 91 A.2d 21, 26 (R.I. 1952), the court held that a public agency charged with exercising the power of eminent-domain was a public entity rather than a private corporation. SECTION 15. Lotteries. All lotteries shall be prohibited in the state except lotteries operated by the state and except those previously permitted by the general assembly prior to the adoption of this section, and all shall be subject to the proscription and regulation of the general assembly.

A history of lotteries in Rhode Island from 1744, when the first legislatively authorized lottery was held, until the implementation of a ban on lotteries in the constitution of 1843 reveals three basic facts: (1) the General Assembly exercised plenary and exclusive jurisdiction over all lotteries; (2) these games of chance were

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banned for moralistic reasons, because of financial irregularities in the distribution of prizes, and because the bulk of the money raised went to lottery managers rather than to the public or charitable purpose for which the lottery was held; and (3) all of the nearly 250 lotteries that were conducted from 1744 to 1843 were ternary combination games of the type presently operated by the Rhode Island Lottery Commission. Article IV, Section 12, of the 1843 constitution reads as follows: “All lotteries shall hereafter be prohibited in this State, except those already authorized by the General Assembly.” R.I. Const. of 1843, Art. IV, § 12 (amended 1973). In 1973 the people approved of Amendment XLI to the 1843 constitution, replacing Article IV, Section 12, and stating: “All lotteries shall hereafter be prohibited in the State except lotteries operated by the State and except those previously permitted by the General Assembly prior to the adoption of this amendment, and all shall hereafter be subject to the proscription and regulation of the General Assembly; provided that before the adoption of this amendment no other lotteries shall be permitted or authorized.” Article VI, Section 15 has remained textually the same since the adoption of the present constitution in 1986. Case law for this section is minimal, but the cases that have come before the Rhode Island Supreme Court have addressed a number of important questions concerning this section. In Opinion to the House of Representatives, 176 A.2d 391, 392 (R.I. 1962), the justices concluded that the original language of Section 12—wording that remains intact today—was meant to be a complete bar on any new lotteries after the section was adopted. No exceptions were to be allowed. In fact, however, the state condoned various forms of gambling, such as charity raffles, church bingo, jai alai at the Newport fronton, and pari-mutuel betting on horse races at Narragansett Park and Lincoln Downs. In Roberts v. Communications Investment Club of Woonsocket, 431 A.2d 1206, 1211 (R.I. 1981), the court set out to determine exactly what was meant by “lotteries” under this section. The court broadly defined a lottery as any scheme or plan having three elements to it: consideration (wager), chance, and prize. All three elements had to be present before a scheme or plan could constitute a lottery, but if all elements were satisfied, then the purpose of the lottery was irrelevant. As far as the chance element is concerned, the court also adopted the so-called “dominant factor” test, “under which a scheme constitutes a lottery when an element of chance dominates the distribution of prizes, even though such a distribution is affected to some degree by the exercise of skill or judgment.” In Roberts, the court held that an investment plan that amounted to what is commonly known as a “pyramid scheme” was a lottery for purposes of the section. Id. at 1212. Thus “lotteries,” for the purposes of this section, are defined by weighing the factors announced in Roberts; they are not to be confined to the games of chance that usually come to mind when one thinks of playing “The Lottery” (nor should they be confused with the deadly game in Shirley Jackson’s classic short story of the same name). Roberts, 431 A.2d at 1212; Shirley Jackson, The Lottery and Other Stories (Farrar, Strauss and Giroux, 1982).

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In Narragansett Indian Tribe v. State, 667 A.2d 280, 281–282 (R.I. 1995), the court, looking to the Roberts definition of “lotteries,” found that the governor lacked the authority to enter into a compact between the state and a local Indian tribe to permit casino gaming on a reservation. Roberts, 431 A.2d at 1211. The court found that this section vested all power over lotteries in the legislature, and that the governor had no power over them absent a delegation to that effect from the General Assembly. Narragansett Tribe, 667 A.2d at 282. The court also held that the so-called “implied powers” doctrine applied to the legislature but not to the governor. The court has held that the legislative power over lotteries included the power to create prophylactic rules to discourage illegal lotteries, such as barring possession of betting slips used in illegal numbers schemes. State v. Scotti, 248 A.2d 327, 330 (R.I. 1968); State v. Tutalo, 205 A.2d 137, 140 (R.I. 1964). The controversial decision in Almond v. Rhode Island Lottery Comm’n, 756 A.2d 186, 191 (R.I. 2000), reaffirmed the ruling in the Narragansett Tribe case. Almond also held that the legislature possessed the power to create the Lottery Commission to exercise this power, and that the General Assembly or its leaders could appoint other legislators to serve as a majority on the board of that commission. The court further stated that “[n]either the Governor nor the Supreme Court has been given the [constitutional] power to supervise the General Assembly’s implementation of its authority to regulate lotteries in this state.” The court, however, decided both the Narragansett Tribe and Almond cases before the adoption of the 2004 separation of powers amendments to the Rhode Island Constitution, and both cases relied in part on the now-repealed language of Article VI, Section 10, allowing the legislature to continue exercising the same powers as it had prior to 1843, unless restricted by the constitution. R.I. Const. Art. VI, § 10 (repealed 2005); Almond, 756 A.2d at 196; Narragansett Tribe, 667 A.2d at 281. Consequently it is unclear to what extent the General Assembly still retains exclusive power over lotteries, or whether the governor may now have appointing and other executive powers over lotteries as well. The supreme court’s broad definition of what constitutes a lottery has been a bar to a privately owned and operated casino. Thus the General Assembly, at the behest of the Narragansett Tribe and its chosen partner, Harrah’s Entertainment, placed a constitutional amendment before the voters in November 2006 to authorize a resort casino in the town of West Warwick, providing that the electors of that town approved such a facility under the provisions of Article VI, Section 22. This proposed amendment generated great controversy and the expenditure of large sums of money by supporters and opponents. It met with a resounding defeat, with 241, 576 voters rejecting the measure (65%) against 141, 525 electors who voted to approve. For a critique of the Rhode Island Supreme Court’s decision in Roberts as contrary to the intent of those who framed the lottery provision in the 1973 Constitutional Convention, see the commentary by the secretary of that convention: Patrick T. Conley, “Casino Issue Belongs to Rhode Island Voters, Not the Court,” 26 RILW 598 (February 13, 2006). See also Conley, Proceedings of the Rhode Island Constitutional Convention of 1973, pp. 132–35.

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SECTION 16. Borrowing power of the General Assembly. The general assembly shall have no powers, without the express consent of the people, to incur state debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion; nor shall it in any case, without such consent, pledge the faith of the state for the payment of the obligations of others. This section shall not be construed to refer to any money that may be deposited with the state by the government of the United States.

This section, approved by the Limited Constitutional Convention of 1951, is almost identical to Article IV, Section 13, of the original 1843 constitution. It was ratified, along with Section 17, on June 28, 1951, by a margin of 30,874 to 24, 438 and became Article of Amendment XXXI. Further restraints on the legislature’s borrowing power were added by Section 2 of the 1951 amendment, which is now Article VI, Section 17. These include a limitation on its total borrowing power in any fiscal year, a requirement that funds borrowed must be repaid within the same fiscal year, and the mandatory repayment of all funds borrowed in previous fiscal years before borrowing could commence in the current fiscal year. When the people adopted the present constitution in 1986, they kept the substantive provisions of Amendment XXXI, except for a few minor changes in the language. In Opinion to the Governor, 208 A.2d 105, 108 (R.I. 1965), the justices noted that the 1843 and 1951 provisions were “couched in substantially the same language” (i.e., Article IV, Section 13, and Article of Amendment XXXI, Section 1). What is the meaning of “express consent of the people” under Section 16? In In re Incurring State Debts, 37 A. 14, 15 (R.I. 1896), the reference to “the people,” we were told, meant all state voters and not just taxpayers. In Opinion to the Governor, 145 A.2d 87, 89 (R.I. 1958), the justices stated that “This consent must of course be an intelligent consent. That is, the people must be clearly informed of the nature and extent of the pledge which the general assembly proposes to authorize.” In a later advisory opinion, the justices stated that “[t]he people have demonstrated in no uncertain terms their jealous regard for the power to pledge the state’s credit. Whenever they relax that jealousy and permit the general assembly to exercise such forbidden power it may be lawfully done only within the strict letter of the legislative act referred to the people for their approval.” Opinion to the Governor, 155 A.2d 602, 603 (R.I. 1959). In the latter case the justices opined that a question propounded to the voters, which proposed borrowing funds for an “Industrial project”—defined as “any new building or other real estate improvement in Rhode Island and … all real properties deemed necessary to their use by an industry for the manufacturing, processing or assembling of raw materials or manufactured products, or any new building which the authority determines will tend to provide gainful employment for the people of Rhode Island, increase the tax base of the economy and diversify and expand industry so that periods of large scale unemployment and distressed times will be avoided”— would not alert the voters to the possibility of borrowed funds being used for development of a new luxury motor hotel. Id. at 603–4. The justices relied on the interpretive canon of ejusdem generis, which counsels that “where words of enu-

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meration are followed by words of more general import, such latter words are governed by the former and are to be construed as of like import.” Id. at 604 (citing 28 C.J.S. Ejusdem, p. 1049). Similarly, in Opinion to the Governor, 208 A.2d at 109, the justices concluded that a question proposed to the voters entitled “Newport Bridge Guarantee of Bonds Under Turnpike And Bridge Authority Act” was insufficiently specific to indicate to the voters that they were being asked to allow the state to pledge its credit for millions more than the $17.5 million stated in the question. Later, in 1965, the justices advised that a question put to the state electorate that asked for the power to increase the state debt from $30 million to $40 million, was not clear enough to gain informed consent. Although the question stated that the aggregate amount of the mortgages in question would be increased by $10 million, it did not indicate to the average person that the state’s credit would be pledged to gain such an increase. Opinion to the Governor, 212 A.2d 64, 67 (R.I. 1965). The justices declared that even though the precise meaning of the question would have been understood by those who had the sophistication to comprehend commercial and financial matters, this was not enough to obtain informed consent from the voters. Id. More recently in In re Advisory Opinion to the House of Representatives (General Obligation Bonds), 599 A.2d 1354, 1357 (R.I. 1991), the justices advised the House that it could not later pass legislation meant to clarify the meaning of a question approved by the voters under this section without submitting the question involved in the latter bill to the voters as well. On other occasions, however, the court has found the informed consent needed for questions submitted to the voters under this section. In In re State House Construction Loan, 38 A. 927, 928 (R.I. 1897), the court held that a proposition in which the legislature requested permission to borrow up to $1.5 million, “so much of said sum as may be necessary to be applied to the purchase of a site for, and the erection and completion of, a new state house,” was enough to qualify as informed consent. In Chartier Real Estate Co., v. Chafee, 225 A.2d 766, 770 (R.I. 1967), the court held that informed consent existed after the voters approved a question authorizing the state to borrow up to $5 million “for the acquisition and development of lands for recreation and conservation purposes.” The court stated that the substantive provisions of the proposed statutes did not have to be mentioned in order to obtain informed consent. Id. at 771. The court went on to hold that a part of the same proposed statute calling for acceptance of federal aid need not be part of the question asked of the voters, because their consent was not needed for the state to received federal assistance. Another key issue under this section focused on the meaning of the term state debts. In Chartier Real Estate, 225 A.2d at 773, the court held that debts refers only to the original amounts borrowed and not to any interest yet to accrue on those amounts. In Blais v. Franklin, 77 A. 172, 184–85 (R.I. 1910), the court held that state debts do not include debts of municipalities, counties, or other geographical and political subdivisions, even if such debts were assumed at the direction, or under the authorization, of the legislature. More recently, in Warwick Mall Trust v. State, 684 A.2d 252, 256 (R.I. 1996), the court held that the creation of the state

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Economic Development Corporation (EDC), which was authorized to incur debts in excess of $50,000, did not violate this section because it was created as an entity separate from the state. The court said that a disclaimer such as the one used in the act creating the corporation, which stated that corporate debts “shall not constitute a debt, liability or obligation of the state or of any political subdivision thereof other than the [EDC] or a pledge of the faith and credit of the state or any political subdivision other than the [EDC]” was sufficient to remove any question about whether this was a state debt, because the faith and credit of the state had not been pledged. Warwick Mall Trust was just the latest in a long line of cases holding that when the legislature has created a separate entity that will not bind the state to any credit obligations, this section does not apply. See Kayrouz v. Rhode Island Depositors Economic Protection Corp. ex. rel. Sundlun, 593 A.2d 943, 950–51 (R.I. 1991); Opinion to the Governor, 270 A.2d 520, 522 (R.I. 1970). In In re Advisory Opinion to Governor: Public Drinking Water Protection Act, 556 A.2d 1000, 1002 (R.I. 1989), the justices invoked the “revenue-bond” or “special-fund” doctrine: if a government commitment is payable only from income that results from the project in question rather than from taxes, then this obligation does not constitute a state debt. Likewise, in Opinion to the Governor, 193 A. 503, 506 (R.I. 1937), the justices decided that the Jamestown Bridge Commission could be indebted for more than $50,000. Even though the act creating that body referred to “bridge revenue refunding bonds of the state,” the commission’s obligations would not constitute state debt. Also, in Opinion to the Governor, 308 A.2d 802, 807 (R.I. 1973), the justices advised that long-term lease obligations do not constitute state debts, because they are recurring and paid out of current revenues. The justices have found state debts do exist with respect to certain other governmental obligations. In In re Opinion to the Governor, 169 A. 748, 750 (R.I. 1933), the justices opined that a quasi-public corporation authorized to pledge state property as security in exchange for loans would be incurring state debts over $50,000 on its own prerogative in violation of this section. The justices stated that “[t]he will of the people, as expressed in their Constitution, may not be defeated through the formation of a corporation to accomplish by indirection that which may not be done directly.” Id. Later, in Opinion to the Governor, 181 A.2d 618, 621 (R.I. 1962), the justices determined that a law allowing the Board of Trustees of State Colleges to pledge state revenues as security for loans for certain college projects violated this section. Similarly, in Opinion to the Governor, 196 A.2d 829, 833 (R.I. 1964), the justices advised that an agreement which would oblige the state to operate and maintain a bridge so long as the revenue bonds incurred in creating the bridge were outstanding was invalid, because the annual costs would amount to more than $50,000 and voter consent had not been requested or obtained. Other questions have arisen under this section as well. In In re Incurring State Debts, 37 A. at 15, the justices opined that the language in this section is absolute and prevents the state from incurring debts greater than $50,000 or pledging to pay others’ obligations without voter consent, except in the circumstances mentioned in the section. The justices went on to say that this section does not

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prevent the legislature from making appropriations or authorizing expenditures greater than $50,000 without voter approval so long as those disbursements were paid from current annual revenues without the need to put the state in debt for an amount exceeding $50,000. Id. That same year, in In re Statehouse Bonds, 33 A. 870, 871 (R.I. 1896), the justices decided that the surplus from a state debt incurred for a specific purpose could be applied elsewhere after satisfaction of the purpose for which the debt was incurred. In Higgins v. Green, 185 A. 686, 690 (R.I. 1936), the court held that after the voters approve an act calling for debt in excess of $50,000, nothing else needed to occur for the state to incur that debt. In In re Opinion to Governor, 4 A.2d 369, 371 (R.I. 1939), the state electorate approved a law that called for obtaining loans up to the amount of $1 million. After loans of $750,000 were repaid, the justices advised that the state could not borrow more than another $250,000 without obtaining further voter approval. The court has not yet addressed the portions of this section dealing with “the obligations of others” and the circumstances under which debts greater than $50,000 could be incurred without the consent of the electors. SECTION 17. Borrowing in anticipation of receipts. Notwithstanding the provisions of Section 16 of this article, the general assembly may provide by law for the state to borrow in any fiscal year, in anticipation of receipts from taxes, sums of money not exceeding twenty percent of the receipts from taxes during the next prior fiscal year, and, in anticipation of receipts from other sources, additional sums of money, not exceeding ten percent of the receipts from such other sources during the said next prior fiscal year; provided, that the aggregate of all such borrowings shall not exceed a sum equal to thirty percent of the actual receipts from taxes during the said next prior fiscal year. Any money so borrowed in anticipation of such receipts shall be repaid within the fiscal year of the state in which such borrowings take place. No money shall be so borrowed in anticipation of such receipts in any fiscal year until all money so borrowed in all previous fiscal years shall have been repaid.

This section originally appeared in 1951 as Section 2 of Article of Amendment XXXI to the 1843 constitution. The 1986 Constitutional Convention retained this section, but because Section 1 of Amendment XXXI now appeared as Article VI, Section 16, language in the section was altered to reflect that change. The only time the justices of the Rhode Island Supreme Court seem to have had occasion to consider this section was in 1971, in In re Advisory Opinion to Senate, 273 A.2d 485, 486 (R.I. 1971). There, the justices advised that any loans the state acquired under this section had to be repaid within the same fiscal year as they were obtained. The justices also stated that the final sentence of this section prevented the state from borrowing further should it breach its constitutional duty and not repay its obligations within the same fiscal year. The sentence did not imply that there were some circumstances in which the duty to repay the borrowings in question during that same fiscal year would be inapplicable.

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SECTION 18. Redevelopment powers. The clearance, replanning, redevelopment, rehabilitation and improvement of blighted and substandard areas shall be a public use and purpose for which the power of eminent domain may be exercised, tax moneys and other public funds expended and public credit pledged. The general assembly may authorize cities, towns, or local redevelopment agencies to undertake and carry out projects approved by the local legislative body for such uses and purposes including the acquisition in such areas of such properties as the local legislative body may deem necessary or proper to effectuate any of the purposes of this article, although temporarily not required for such purposes, and the sale or other disposition of any such properties to private persons for private uses or to public bodies for public uses.

This section was a product of the 1955 Limited Constitutional Convention. It was ratified on July 12, 1955, by a margin of 29,383 to 14,698 as Amendment XXXIII to the 1843 constitution. It was not changed by the 1986 Constitutional Convention. The people adopted this section in response to a number of close cases in which the court interpreted the scope of the takings clause of the Rhode Island Constitution. Several rulings were 3-to-1 decisions, and in one of them the swing justice stated that he was not prepared to say definitively that redevelopment takings were unconstitutional. See R.I. Const. Art. I, § 16; Ajootian v. Providence Redevelopment Agency of City of Providence, 91 A.2d 21, 26, 27 (Flynn, C. J., and Condon, J., dissenting) (R.I. 1952); Opinion to the Governor, 69 A.2d 531, 536, 539 (O’Connell, J., concurring), 543 (Flynn, C. J., dissenting), 546 (Condon, J., dissenting) (R.I. 1949). Amendment XXXIII sided with the majority of the justices in Ajootian and in Opinion to the Governor concerning the meaning of “public use” in the takings clause. R.I. Const. Art. I, § 16, Art. VI, § 18; Ajootian, 91 A.2d at 26; Opinion to the Governor, 69 A.2d at 536. The primary draftsman of the amendment was John W. Moakler of Providence, a member of the Committee on Municipal Development. (For the rationale that influenced the adoption of this section, see Proceedings of the Limited Constitutional Convention … 1955, pp. 52–67.) In Romeo v. Cranston Redevelopment Agency, 254 A.2d 425 (R.I. 1969) at 429, 434, the court upheld the legislature’s classification of one type of “blighted area” as 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 unsanitary 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 thereof or for making the same 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 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.

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The legislature could have concluded, said the court, that existence of such areas was inimical to society. The court went on to state that not every piece of land in the area to be taken need be blighted for the taking to occur, and that as long as the entire taking was needed to satisfy the legislative purpose in question, the taking could proceed. Id. In O’Neill v. City of East Providence, 480 A.2d 1375, 1381–82 (R.I. 1984), the court invalidated a proposed taking as being not for public use, where the community revitalization scheme failed to comply with the provisions of an eminentdomain statute needed for a taking to occur. The court stated that the taking would have amounted to the government selling the land to a private developer for private profit. The court added, however, that absolute necessity was not needed for a taking. Id. at 1382. All that was required was for the taking to be reasonably needed for the public purpose desired. In Rhode Island Economic Development Corp. v. The Parking Company, L.P., 892 A.2d 87, 104, 107 (R.I. 2006), the court invalidated a taking that it found was intended not for any sort of public use but merely to increase government revenue and to obtain the property at a discounted price. The court noted the lack of a development plan, which led it to conclude that a public purpose was also lacking. In Kelo v. City of New London, 125 S.Ct. 2655, 2664–65 (U.S. 2005), the United States Supreme Court, deferring to the city’s comprehensive redevelopment plan, held that economic development of nonblighted areas was an acceptable public purpose under the federal Takings Clause. See U.S. Const., Amend. V. Conversely, in Parking Company, 892, A.2d 87, the Rhode Island Supreme Court has concluded that the lack of a comprehensive plan of economic development undermined the argument that the state’s Economic Development Corporation took the property to promote legitimate public purposes instead of just its own economic gain. One question that is still unresolved is the scope of the definition of “blighted and substandard areas” under this section. Although in Parking Company, 892 A.2d at 96, the court noted that the takings clause required only that takings must be for a public use and that proper compensation must be paid, this section indicates that if an area is blighted or substandard, then the power of eminent domain can be used to take the property for a public use and purpose. R.I. Const. Art. I, § 16. Thus “substandard” under this section might simply mean that a more beneficial use could be made of the property, or even that nonblighted properties, such as those that were the subject of the Kelo dispute, 125 S.Ct. at 2664–65, could be constitutionally taken. But these issues are yet to be decided. SECTION 19. Taking of property for highways, streets, places, parks, or parkways. The general assembly may authorize the acquiring or taking in fee by the state, or by any cities or towns, of more land and property than is needed for actual construction in the establishing, laying out, widening, extending or relocating of public highways, streets, places, parks or parkways; provided, however, that the additional land and property so authorized to be acquired or taken shall be no more in extent than would

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be sufficient to form suitable building sites abutting on such public highway, street, place, park or parkway. After so much of the land and property has been appropriated for such public highway, street, place, park or parkway as is needed therefor, the remainder may be held and improved for any public purpose or purposes, or may be sold or leased for value with or without suitable restrictions, and in case of any such sale or lease, the person or persons from whom such remainder was taken shall have the first right to purchase or lease the same upon such terms as the state or city or town is willing to sell or lease the same.

This section, which originally appeared as Amendment XVII to the 1843 constitution, was approved by the voters on November 7, 1916, by a margin of 31,709 to 6,786. Seventy years after its initial adoption, the people retained it as part of the current Rhode Island Constitution without any significant change. It is one in a number of sections meant to define the power of eminent domain in Rhode Island. See U.S. Const., Amend. V; R.I. Const. Art. I, § 16, Art. VI, §§ 18–20. The Rhode Island Supreme Court has decided a few cases pertaining to this section that answer a number of important questions about its interpretation. In M.S. Alper & Son v. Capaldi, 206 A.2d 859, 861 (R.I. 1965), the court held that when the state offers to resell surplus property that it has taken through eminent domain, it first has to offer it to the original owner(s) before anyone else. Thus a covenant attached to the resale agreement with the original owner that extended an easement to another party for five years, with an option to buy at the expiration of those five years, was akin to evading this section. Id. at 862. Furthermore, the court opined that the state was entitled to a claim of unjust enrichment for improvements that it made on the land for the purposes of the taking because they enhanced the value of the property. Id. at 863. Later, in Advisory Opinion to Governor, 289 A.2d 430, 433–34 (R.I. 1972), the justices disapproved of a law that exempted a state-owned land development corporation from giving the original owner the first option to lease or buy surplus land. Then, in a series of cases in the mid-1980s, the court addressed the meaning of the word place as it is used in the section. Wood v. City of East Providence, 504 A.2d 441, 443 (R.I. 1986) (hereinafter Wood I); Lapre v. Flanders, 465 A.2d 214, 216 (R.I. 1983); and Griffin v. Bendick, 463 A.2d 1340, 1348 (R.I. 1983). In Griffin, 463 A.2d at 1347, the justices stated that the word, as used in the list of items enumerated in the section, was meant to refer to “a court or square or short street.” Thus the court has invalidated the claims of those whose property was taken and was not offered to be sold back when the takings occurred for purposes such as ports, airports, and schools. Wood I, 504 A.2d at 443; Lapre, 465 A.2d at 216; Griffin, 463 A.2d at 1347. In the Griffin line of cases, the court also held that owners who conveyed their land to the government by quitclaim deed surrendered any right to later attempt to reacquire any of their land by way of this section. Wood I, 504 A.2d at 443; Lapre, 465 A.2d at 216. The repurchase provision cannot be exercised by heirs of the original owner without the approval of the acquiring authority (R.I.G.L., 37-7-3). With the death of the original owner, the absolute right is extinguished.

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One final note. In Wood v. City of East Providence, 811 F.2d 677, 680 (1st Cir. 1987) (hereinafter Wood II), the First Circuit Court of Appeals held that the fact that this section applies only to landowners whose land was taken for certain purposes did not constitute a violation of the federal Equal Protection Clause, because it had the rational basis of attempting to strike a balance between the rights of landowners and the need for road construction. U.S. Const., amend. XIV, § 1. The United States Supreme Court has not yet considered the question of how the federal Equal Protection Clause applies to this section. (See also Article I, Section 16 of the Rhode Island Constitution.) SECTION 20. Local off-street parking facilities. The general assembly may authorize cities and towns to acquire property by eminent domain, or otherwise for the establishment and construction of off-street parking facilities and to maintain and operate or lease the same. Without limiting the generalities of the foregoing, any of the powers or authorities consistent with the provisions of this article for the provision of off-street parking now vested in public bodies by law, shall continue in existence and may be exercised by said public bodies, except as such powers and authorities may be modified, or repealed by the general assembly.

In 1951 the people ratified six amendments to the state constitution proposed to them by the Limited Constitutional Convention of that year. R.I. Const. of 1843, Articles of Amendment XXVII (1951), XXVIII (1951), XXIX (1951), XXX (1951), XXI (1951), XXXII (1951). See Proceedings of the Limited Constitutional Convention … 1951. The last of those amendments (XXXII) contained each of this section’s sentences in the same order, but numbered as Section 1 and Section 2 respectively. Article of Amendment XXXII was approved by the voters on June 28, 1951, by a margin of 39,291 to 16,844. In 1986 the electorate adopted this section as it appears today. The Rhode Island Supreme Court has not yet had occasion to interpret it. SECTION 21. Emergency powers in case of enemy attack. The general assembly, in order to insure continuity of state and local governmental operations, including the judicial functions, in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, to enact legislation permitting the convening of the general assembly at any place within or without the State of Rhode Island, and to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations during the period of said emergency. Any law enacted under this section shall apply to all cities and towns regardless of their form of charter. During said period of emergency the general assembly shall have the power to incur state debts exceeding the limitation set forth in Sections 16 and 17 of this article. The powers granted and the laws enacted under this section shall not be effective after two years following the inception of an enemy attack.

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On November 6, 1962, the people adopted Article of Amendment XXXVI by a vote of 96,071 to 60,983. Except for some stylistic changes and a change in the numbering of the other referenced sections, the 1986 Constitutional Convention left this section unchanged. It was enacted at the height of the Cold War, less than two weeks after the resolution of the Cuban Missile Crisis and at the outset of American involvement in Vietnam. Thankfully, the Rhode Island Supreme Court has not yet had any occasion to review this section. SECTION 22. Referendum on the expansion of gambling. No act expanding the types of gambling which are permitted within the state or within any city or town therein or expanding the municipalities in which a particular form of gambling is authorized shall take effect until it 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. The secretary of state shall certify the results of the statewide referendum and the local board of canvassers of the city or town where the gambling is to be allowed shall certify the results of the local referendum to the secretary of state.

This section was added to the Rhode Island Constitution by means of a voterapproved constitutional amendment in 1994. The margin of ratification was 207,949 in favor and 98,574 opposed. The section has been frequently cited in its short life because of the persistence of the Indian casino controversy that spawned it. In In re Advisory Opinion to Governor, 856 A.2d 320, 333–34 (R.I. 2004), the justices sought to distinguish “gambling” from “lotteries,” because the latter term is also governed by Article VI, Section 15. R.I. Const. Art. VI, § 15. The justices said that all lotteries constitute forms of gambling, but that there are forms of gambling which are not lotteries. Advisory Opinion to Governor (Casino I), 856 A.2d at 333. The distinction, according to the justices, is that lotteries are a type of gambling whose results depend primarily on luck or chance, whereas there are other types of gambling, such as betting on horse racing, whose results depend largely on skill or judgment, even though elements of both types may be present in each of them. Id. at 333–34; Roberts v. Communications Investment Club of Woonsocket, 431 A.2d 1206, 1211 (R.I. 1981). Thus lotteries are subject to both Section 15 and Section 22, whereas other types of gambling are only governed by Section 22. R.I. Const. Art. VI, §§ 15, 22; Casino I, 856 A.2d at 333–34. In In re Advisory Opinion to House of Representatives (Casino II), 885 A.2d 698, 713 (R.I. 2005), the court held that at either a special election or a general election, the question of whether gambling should be expanded could be posed to voters of Rhode Island and to the town where gambling is proposed to be expanded.

Article VII Of the House of Representatives SECTION 1. Composition. There shall be one hundred members of the house of representatives, provided, however, that commencing in 2003 there shall be seventyfive members of the house of representatives. The house of representatives shall be constituted on the basis of population and the representative districts shall be as nearly equal in population and as compact in territory as possible. The general assembly shall, after any new census taken by authority of the United States, reapportion the representation to conform to the Constitution of the state and the Constitution of the United States.

Article V, Section 1 of the 1843 constitution read: The House of Representatives shall never exceed seventy-two members, and shall be constituted on the basis of population, always allowing one Representative for a fraction, exceeding half the ratio; but each town or city shall always be entitled to at least one member; and no town or city shall have more than one-sixth of the whole number of members to which the House is hereby limited. The present ratio shall be one representative to every fifteen hundred and thirty inhabitants, and the General Assembly may, after any new census taken by the authority of the United States or of this State, re-apportion the representation by altering the ratio; but no town or city shall be divided into districts for the choice of representatives.

In 1909 Amendment XIII to the 1843 constitution passed by a margin of 25,920 to 12,898 and took the place of Article V, Section 1. Article of Amendment XIII, Section 1, read as follows: The house of representatives shall never exceed one hundred members, and shall be constituted on the basis of population, always allowing one representative for a

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fraction, exceeding half the ratio; but each town or city shall always be entitled to at least one member; and no town or city shall have more than one-fourth of the whole number of members. The general assembly may, after any new census taken by the authority of the United States or of this State, re-apportion the representation in conformity with the foregoing provisions. As soon as this amendment goes into effect, the general assembly shall divide each town and city into as many districts as it is entitled to representatives, and after each census, or as occasion may require, the general assembly may so divide each town and city, and one representative shall be elected from each district by the qualified electors thereof. Such districts shall be as nearly equal in population and as compact in territory as possible.

In Sweeney v. Notte, 183 A.2d 296, 302–3 (R.I. 1962), the court declared this amendment to be unconstitutional because the limit of 100 members, with the requirement that each town be represented, resulted in a gross disproportionality in representation that violated the Equal Protection Clause of the United States Constitution. See U.S. Const., amend XIV; Reynolds v. Sims, 377 U.S. 533, 568 (U.S. 1964). In Sweeney, 183 A.2d at 303, the Rhode Island Supreme Court ruled that the state House of Representatives should either keep the 100-member limit and apportion proportionately by discarding the municipal representation requirement or scrap the 100-member limit to keep the municipality requirement. The 100member limit stayed. Thus, when the 1986 constitution became effective, Article VII, Section 1, read as follows: The house of representatives shall never exceed one hundred members, and shall be constituted on the basis of population. The general assembly may, after any new census taken by the authority of the United States or this state, reapportion the representation. The representative districts shall be as nearly equal in population and as compact in territory as possible. R.I. Const., Art. VII, § 1 (amended 1994).

In 1994 the section was amended to appear as it does today. Id. The court has not addressed this section since the 1994 amendment, but several decisions rendered with respect to previous versions of the section are still relevant. Sweeney, 183 A.2d at 302, held that the use of the word “may” instead of “shall” in the 1909 version of the section signified that the legislature did not have to reapportion after every census, but only when a census indicated that such reapportionment was necessary. Now that the section uses “shall,” it is unclear whether reapportionment is required after every census, though one could reasonably conclude that if, by some strange occurrence, districts remained proportioned correctly after a census, then redistricting would not be necessary. In Opinion to Governor, 183 A.2d 806, 808 (R.I. 1962), the majority of the justices, in expressing their disapproval of a number of proposed apportionment plans, stated that several of the plans would be constitutionally infirm because the plans called for at-large elections, which are not a means of “apportionment” as the word is used in this section. As part of the fallout from Sweeney, 183 A.2d at 303, in which the then-existing apportionment of the House was declared unconstitutional, the justices, in Opinion to the Governor, 185 A.2d 111, 118 (R.I. 1962), stated that a malapportioned

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legislature could still act in its legislative capacity pending reapportionment, and that any laws that the legislature passed prior to Sweeney were still valid. The court further held that a legislative commission created to study the apportionment problem, which concluded that reapportionment was impossible before the next general election, was acting in good faith; thus it was allowed to continue its work so that the legislature would not be forced into a reapportionment before the report was complete. Opinion to the Governor, 185 A.2d at 123. In Opinion to the Governor, 221 A.2d 799, 802 (R.I. 1966), the justices addressed the term “compact” as used in the section. They found that the section was meant to avoid gerrymandering and was created in the recognition that districts equal in population do not automatically result in effective participation in the political process. The court quoted the United States Supreme Court’s decision in Reynolds, 377 U.S. at 578: A state may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering. [Opinion to the Governor, 221 A.2d at 802–3.]

The justices stated that deviations from the compactness requirement needed a rational basis and also had to be free from arbitrariness or discrimination. Id. at 803 (citing Roman v. Sincock, 377 U.S. 695, 710 [U.S. 1964]). According to the justices, the compactness requirement still left the legislature with broad discretion in apportionment. Opinion to the Governor, 221 A.2d at 803. The justices stated that: “[D]eviation from contiguity and from natural, historical, geographical and political lines for the purpose of achieving a political … a racial or an ethnic gerrymander or to insure as far as possible the reelection of an incumbent, or to make inconvenient or impractical an exercise of the franchise, are … prohibited.” Id. at 803. The court also noted that Rhode Island’s unique shape and host of geographical features—including “its irregular boundaries, its bays and its inlets, its islands, its rivers and lakes”—made it impossible to divide the state “into circular planes or squares,” and that any attempt to do so would countermand the requirement that the districts be proportionate to the number of their habitants. Id. at 802. In Holmes v. Farmer, 475 A.2d 976, 986 (R.I. 1984), the court, following the logic in Opinion to the Governor, 221 A.2d at 803, held that the “as possible” qualifier in the section meant that the compactness requirement would be violated “only when a reapportionment plan creates districts solely for political considerations, without reference to other policies, in such a manner that the plan demonstrates a complete abandonment of any attempt to draw equal, compact and contiguous districts.” In upholding the challenged apportionment plan, the court found that, even though the plan contained 74 municipal crossings, this “minor variance” was acceptable because the legislature also had to consider a host of other factors in redistricting. In rejecting the necessity of adopting a plan proposed by the plaintiff, which called for a more modest 68 crossings, the court stated that the plaintiff ’s

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plan did not prove the arbitrariness of the legislature’s plan. Surveying one district that contained one of the state’s islands, the court found that when an island lacks the population to constitute its own district, a determination of where the island’s relationship and interest are strongest had to be used to decide which part of the mainland to group with the island. The court noted that Jamestown (or Conanicut), the particular island in question, had a bridge between it and its mainland partner, as well as ties in terms of government services and shared residential shopping areas. With respect to this particular district, the court also found that its odd shape, including a “hook section,” was created for contiguity purposes and thus was not arbitrary, even though not necessarily vital to maintaining contiguity. Id. at 986–87. The apportionment of the House of Representatives had been a major issue leading to the Dorr Rebellion because the Charter of 1663 established a fixed ratio among the towns. Of the four original towns, Newport, then the largest, was awarded six representatives (or “deputies,” as they were called until 1798); Providence, Portsmouth, and Warwick each were allocated four; and any town created after 1663 received two. As indicated in our historical introduction, this apportionment became grossly inequitable by the early nineteenth century owing to the decline of Newport and the growth of Providence and other industrialized towns in the Blackstone Valley. See Patrick T. Conley, Jr., “One Town, Two Votes; One Man, One Vote: A History of Legislative Apportionment in Rhode Island,” Rhode Island Bar Journal 34 (May 1986):18–21. The constitution of 1843 created a house of 72 members and gave the state’s nine expanding industrial towns 52 percent of the representatives, an allocation even more generous than the 46 percent allowed by the People’s Constitution. Nevertheless, the upper limit of 12 seats for any municipality, regardless of size, immediately deprived Providence of 2 seats and checked any growth in its political power. In the last three decades of the nineteenth century (1868–1898), the Republican Assembly annexed to Providence several densely populated industrial areas from Cranston, Johnston, and North Providence, thereby tripling both the capital city’s area and its population (54,595 in 1865; 175,597 in 1900). But despite this growth, Providence was limited to the 12 representatives it received in 1843. In 1909, when Democratic reformers finally obtained a mild concession via Article of Amendment XIII, establishing a 100-member house, that provision required the creation of representative districts. This feature broke up Providence’s 12-vote Democratic bloc that had developed under the existing at-large system of choosing representatives, thus modifying the Democratic gain from this amendment. Providence obtained 25 percent of House members under this system, but in 1910 the city contained 41.3 percent of Rhode Island’s population. As late as 1950 the latter figure was 31.4 percent. When the Reapportionment Revolution occurred in the mid-1960s, so had suburbanization. In 1965 Providence had only 21 percent of the state’s population. The 1986 Constitutional Convention made no change in the size of the House, but in 1994 the General Assembly itself submitted a constitutional amendment to the voters that set the number of representatives at 100 while simultaneously

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reducing that figure to 75 effective in January 2003. The reduction was regarded as an inducement for the electors to accept another aspect of the amendment—an increase in legislators’ pay from $5 per day to $10,000 per annum. The changes were narrowly ratified, 154,776 approving and 143,901 rejecting this legislative restructuring. One question that remains unanswered about this section and its counterpart, Article VIII, Section 1 (which deals with the appointment of the state senate), is whether the legislature can draw new districts whenever it feels the need to do so, or whether redistricting can only occur after each new census. Given the deference that the Rhode Island Supreme Court has afforded to the legislature and the general reluctance to meddle with redistricting plans, the Rhode Island Supreme Court would likely adopt the rational of League of United Latin Citizens v. Perry, 126 S.Ct. 2594 (U.S. 2006), which holds that redistricting plans are not necessarily unconstitutional if they are enacted for reasons other than a response to the latest census. See Parella v. Montalbano (Parella II), 899 A.2d 1226 (noting that framers meant to afford the legislature great deference in this realm). SECTION 2. Officers—Presiding member during organization. The house of representatives shall have authority to elect its speaker, clerks, and other officers. The senior member from the City of Newport, if any be present, shall preside in the organization of the house.

This section appeared verbatim as Article V, Section 2 of the 1843 constitution, except that the word “Town” was changed to “City” to reflect Newport’s changed status. Newport had been incorporated as a city on May 6, 1853, and its municipal charter accepted by the General Assembly on May 20, 1853. This section has not been the subject of judicial interpretation.

Article VIII Of the Senate

SECTION 1. Composition and apportionment. The senate shall consist of the lieutenant governor and fifty members from the senatorial districts in the state, provided, however, that commencing in 2003 the senate shall consist of thirty-eight members from the senatorial districts in the state. The senate shall be constituted on the basis of population and the senatorial districts shall be as nearly equal in population and as compact in territory as possible. The general assembly shall, after any new census taken by authority of the United States, reapportion the representation to conform to the Constitution of the state and the Constitution of the United States.

Article VI, Section 1, of the 1843 constitution read: “The Senate shall consist of the Lieutenant-Governor and of one Senator from each town or city in the State.” On November 6, 1928, the people adopted Article of Amendment XIX to the 1843 constitution by a vote of 63,202 to 19,754. It read in part: The senate shall consist of the lieutenant-governor and of one senator from each town or city in the state; provided, however, that any town or city having more than twenty-five thousand qualified electors shall be entitled to an additional senator for each additional twenty-five thousand qualified electors, always allowing one additional senator for a fraction exceeding half the ratio; but no town or city shall be entitled to more than six senators. Any town or city entitled to more than one senator shall be divided into senatorial districts. The general assembly may after any presidential election reapportion the senate in accordance with the foregoing provisions. As soon as this amendment goes into effect, the general assembly shall divide any town or city into as many districts as it is entitled to senators, and one senator shall be elected from each district by the qualified electors thereof. Such districts shall be as nearly equal in number of qualified electors and as compact in territory as possible.

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In 1986, when the voters adopted the present constitution, Article VIII, Section 1, provided that: “[t]he senate shall consist of the lieutenant governor and senators from the senatorial districts in the state. The general assembly may after any presidential election reapportion the senate. Such districts shall be as nearly equal in proportion and as compact in territory as possible.” In 1994, the people again amended this section to read as it does today—fixing the number of senators at 50 until January 2003 and at 38 thereafter. The Rhode Island Senate has its roots in the colonial Charter of 1663, a document that created a locally omnipotent General Assembly consisting of a governor, a deputy governor, 10 assistants (senators) elected at large, or colony-wide, and 18 deputies (representatives) chosen by the towns—6 from Newport, 4 each from the other three original towns of Providence, Portsmouth, and Warwick, and 2 from any town that might be established from 1663 onward. Soon after the reception of the charter, the governor, deputy governor, and assistants combined to form an executive body known as the General Council. This group ran the affairs of the colony when the General Assembly was not in session, performing both administrative and judicial functions. These officials even served as the supreme court of the colony until 1746. In 1696 the General Assembly implemented its first major structural change by adopting a bicameral system. The governor, lieutenant governor, and assistants became the House of Magistrates, and the representatives from the towns became the House of Deputies. In addition to their legislative duties, assistants (i.e., senators) were also charged with performing administrative and judicial functions in the towns where they resided. Their multiple powers and functions included membership on the town councils (until 1733) and service as justices of the peace. They also dispensed licenses for the sale of liquor, appointed special constables, and enforced the vagrancy laws. They were powerful local magistrates as well as elected state officials. As the number of municipalities increased, a custom developed of allowing each town to nominate at least one assistant. This tradition worked until 1722, when Kingstown split into North and South, bringing the number of towns to 10. While each of these communities was guaranteed an assistant, the custom could no longer be observed when additional towns were created by the legislature from 1731 onward. Rhode Island retained the colonial charter as its basic law despite its establishment of independence from England, and no change occurred in the structure of government. In 1798 the new state’s first code of laws changed the nomenclature of Rhode Island government in several areas. From that point onward the upper house became known as the senate, and the lower chamber as the House of Representatives. The title of the deputy governor became lieutenant governor. During the first four decades of the nineteenth century, reapportionment became a major reform demand in Rhode Island, but the House, rather than the atlarge senate, was the focus of that controversy. Few objected to the composition of the senate or to the membership of the governor and lieutenant governor in the upper house.

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Rhode Island’s constitution of 1843 caused the next major structural change in the state senate. The framers of that conservative document provided one senator to each city and town regardless of that municipality’s population. They designed a system that gave a veto over state legislation to the rural/agricultural interest, an arrangement similar in operation to John C. Calhoun’s theory of the concurrent majority. From 1843 until the last town (West Warwick) was created in 1913, the senate grew in number from 31 to 39, plus the lieutenant governor, who remained a full voting member until 1909. The 1843 basic law also decreed that the governor—or, in his absence, the lieutenant governor—should preside over the senate and the grand committee, but the presiding officer could vote only in case of equal division, and not otherwise. The secretary of state retained his traditional role as secretary of the senate, unless the legislature by statute should relieve him of this duty. In 1901, by the provisions of the Brayton Act, the rural-dominated upper house (consisting of 34 Republicans and 3 Democrats) was given ultimate control over the state budget and nearly all appointments to the boards and commissions that administered state programs. Until this act was repealed as part of the Bloodless Revolution of 1935, the Republican-controlled senate was far and away the dominant branch of state government. During the early decades of the twentieth century, several adjustments were made in the composition of the senate. In 1909 Article of Amendment XIV removed the governor from the legislative process by making the lieutenant governor, rather than the governor, the presiding officer of the senate and the grand committee. At this juncture the lieutenant governor lost his senate vote, except in the event of a voting tie. By 1920 the senate—the possessor of state appointive and budgetary power— was more malapportioned than ever. For example, West Greenwich, population 367, had the same voice as Providence, population 237,595, and the 20 smallest towns, with an aggregate population of 41,660, outvoted Providence 20-to-1, although the capital city had over 39 percent of Rhode Island’s total population. The senate, said Democratic congressman George F. O’Shaunessy (1911–1919), was “a strong power exercised by the abandoned farms of Rhode Island.” Vigorous demands by Democrats for reapportionment of the senate led to the ratification of Article of Amendment XIX in 1928. This reform allowed any city or town having more than 25,000 “qualified electors” (not “people”) an additional senator “for each additional twenty-five thousand qualified electors, always allowing one additional senator for a fraction exceeding half the ratio.” This constitutional change immediately gave Providence a total of four senators. By 1962, the Amendment XIX formula allowed Providence five senators and Pawtucket, Warwick, and Cranston two each. When Warwick and Cranston received their additional senator after the 1960 federal census, the Rhode Island senate had 46 members, plus the lieutenant governor. However, some small rural towns were still greatly overrepresented when measured against the “one man, one vote” standard promulgated by the United States Supreme Court in several far-reaching decisions during the early 1960s.

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These rulings set in motion the Reapportionment Revolution and rendered Rhode Island’s senate allocation an unconstitutional violation of the Equal Protection Clause of the Fourteenth Amendment. In response to the federal mandate, the General Assembly changed the structure of the senate in 1965 by enacting a statutory reapportionment scheme that created a 100-member House and a 50-member senate, with all legislators elected from districts as nearly equal in population and as compact in territory as practicable. This formula was given constitutional status in 1986, but ironically the number of senators was not set constitutionally at 50 until the ratification of the downsizing amendment of 1994. In 2003 the senate implemented yet another fundamental change. While both chambers were reduced in size—the house to 75 members and the senate to 38— only the senate has been restructured. The 1994 amendment to the 1986 Rhode Island Constitution became fully operative in January 2003. It removed the lieutenant governor from the senate, thus allowing the upper chamber to choose one of its own as president and presiding officer. This change departs not only from local tradition but also from the federal model, wherein the vice president, an executive officer, presides over the U.S. Senate and votes in the event of a tie, as did the lieutenant governor of Rhode Island. The prestige of the Rhode Island Senate and its president is further enhanced by Section 2 of the new Article VIII, which directs the president of the senate to preside over the grand committee and empowers the senate to elect its own secretary, thus relieving the secretary of state of that traditional duty. In Opinion to the Governor, 221 A.2d 799, 801 (R.I. 1966), the justices stated that the section did not give the legislature the power to apportion legislative representation; rather, it merely limited the power of apportionment that the legislature already possessed. In the same opinion, which discussed the compactness requirement for apportioning both houses of the legislature, the justices said that the General Assembly did not have to divide the state into simple geometric shapes; given the state’s unique shape, such a requirement would be practically impossible. The purpose of the section, rather, was to provide voters with effective representation. Opinion to the Governor, 221 A.2d at 802. The justices also stated that the section’s larger purpose was to avoid a gerrymander; thus the requirement that districts be as equal in population as possible was more important than the compactness requirement. The court also opined that the legislature could deviate from the compactness requirement if “the deviations [are] explainable by rational and legitimate considerations[,] in good faith [and] free from any taint of arbitrariness or discrimination.” Id. at 803 (citing Roman v. Sincock, 377 U.S. 695, 710 [U.S. 1964]). In Farnham v. Burns, 561 F.Supp. 83, 87 (D.R.I. 1983), the United States District Court held that the compactness test was two-pronged: (1) it was to determine whether district lines deviate from natural, historical, geographical, and political lines, and (2) if so, it stipulated that such deviation “must be justified by rational and legitimate considerations, made in good faith, and free from any taint of arbitrariness or discrimination.”

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In Holmes v. Farmer, 475 A.2d 976, 986 (R.I. 1984), the court modified the compactness test: a redistricting plan will violate the compactness requirement, the court ruled, “only when a reapportionment plan creates districts solely for political considerations, without reference to other policies, in such a manner that the plan demonstrates a complete abandonment of any attempt to draw equal, compact and contiguous districts.” Holmes upheld a plan that contained 74 municipal crossings for house districts, even though an alternative plan that the challengers submitted had only 68. Id. Conversely, Farnham, 561 F.Supp. at 88– 89, held unconstitutional a plan that seemed to ignore historical, natural, and geographical lines and that appeared to be enacted solely to accomplish a gerrymander. The court also held that if it was possible to keep the constitutional portions of the plan while removing the gerrymandered districts, then such a plan would be acceptable. Id. at 94. More recently, in Parella v. Irons, 2003 WL 22389806 at 11 (R.I. Super. 2003) (Parella I) (aff ’d by Parella v. Montalbano, 899 A.2d 1226 [R.I. 2006]) (Parella II), the court said that contiguity, although it was not a constitutional requirement, was a factor in determining compactness. Parella I was the first case to deal with apportionment under the 2003 constitutional apportionment plan. In accordance with this section, the plan had reduced the number of senators in the state legislature from 50 to 38. Parella I found that the plan as drawn did not violate the compactness requirement. Parella I, 2003 WL 22389806 at 11. The court also has addressed the requirement that populations of the districts be as equal as possible. The equality of representation between voters in different districts is also a concern of the United States Constitution. U.S. Const. amend. XIV, §1; Reynolds v. Sims, 377 U.S. 533, 568 (U.S. 1964). In Farnham, 561 F.Supp. at 93, the court found a deviation of 2.5 percent to be acceptable. In Parella I, at 24, the court stated: An overall deviation in population that is less than 10% is generally said to be constitutionally sufficient. [Brown v. Thomson, 462 U.S. 835, 842 (1983).] The challenged Senate districts all fall within the aforementioned range. As such, the actual deviations are held to be de minimis in light of judicial precedent. The median average population deviation in the challenged districts is 7.35%; whereas, the median average population deviation for the Senate plan as a whole is 9.91%. Therefore, this percentage falls within the clearly defined range for acceptable population deviations in the context of state redistricting plans.

A question that remains unanswered about this section and its counterpart, Article VII, Section 1 (which deals with the apportionment of the state House of Representatives), is whether the legislature can draw new districts whenever it feels the need to do so, or whether redistricting can occur only after each new census. Given the deference that the Rhode Island Supreme Court has afforded to the legislature and the general reluctance of courts to meddle with redistricting plans, the Rhode Island Supreme Court would likely adopt the rationale of League of United Latin American Citizens v. Perry, 126 S.Ct. 2594 (U.S. 2006), holding that

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redistricting plans are not unconstitutional per se just because they were not enacted in response to the latest census. See Parella II, 899 A.2d 1226. SECTION 2. Lieutenant governor to be presiding officer until 2003. The lieutenant governor shall preside in the senate and in grand committee until 2003. Commencing in 2003, the senate shall elect its president, who shall preside in the senate and in grand committee, as well as its secretary and other officers from among its members and shall elect its clerks. The senior member from the city of Newport, if any be present, shall preside in the organization of the senate.

Article VI, Section 2, of the 1843 constitution read: “The Governor, and, in his absence the Lieutenant-Governor, shall preside in the Senate and in grand committee. The presiding officer of the Senate and grand committee shall have a right to vote in case of equal division, but not otherwise.” In 1909 the people adopted Article of Amendment XIV to the 1843 constitution by a vote of 27,390 to 9,151. That amendment read, in part: “The lieutenant-governor shall preside in the senate and in grand committee. The presiding officer of the senate and grand committee shall have a right to vote in case of equal division, but not otherwise.” Amendment XIV was adopted wholly in 1986 as Article VIII, Section 2. Then, in 1994, the section was amended yet again to read as it does today. This section has not yet been the subject of judicial interpretation. SECTION 3. Presiding officer in absence of lieutenant governor (repealed). If by reason of death, resignation, absence, or other cause, the lieutenant governor is not present, to preside in the senate, the senate shall elect one of its own members to preside during such absence or vacancy; and until such election is made by the senate, the secretary of state shall preside. The presiding officer of the senate shall preside in grand committee and in joint assembly.

Article VI, Section 3 of the 1843 constitution read: If by reason of death, resignation, absence, or other cause, there be no Governor or Lieutenant-Governor present, to preside in the Senate, the Senate shall elect one of its own members to preside during such absence or vacancy; and until such election is made by the Senate, the Secretary of State shall preside.

In 1909 the people altered this section by Article of Amendment XIV to read as it does in the repealed section above, except that the word “their” appeared instead of the word “its.” This minor grammatical change occurred when the people adopted the section in 1986. In 1994, however, the people adopted an amendment to Article VIII, Section 2, which stated that beginning in 2003, the state senate would elect its own president, who would also preside in grand committee. Because the lieutenant governor is no longer the presiding officer in the senate, the section has been repealed. The only opinion concerning this section was In re Advisory to the Governor, 688 A.2d 288, 291 (R.I. 1997), in which a majority of the justices concluded that the section did not give the state senate the power to elect a lieutenant governor when a vacancy in the office occurs.

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SECTION 4. Secretary of state to be secretary of the senate (repealed). The secretary of state shall, by virtue of office, be secretary of the senate, unless otherwise provided by law, and the senate may elect such other officers as it may deem necessary.

The text of this section appeared verbatim as Article VI, Section 4, of the 1843 constitution. In 1986 it was reenacted without change. In 1994 a further amendment to Article VIII, Section 2, occurred, which stated that beginning in 2003, the state senate would choose its own secretary. Thus the secretary of state has been relieved of this constitutional duty, rendering this section obsolete. The Rhode Island Supreme Court never had any occasion to interpret this section.

Article IX Of the Executive Power

SECTION 1. Power vested in the governor. The chief executive power of this state shall be vested in a governor, who, together with a lieutenant governor, shall be elected by the people.

This section appeared in the 1843 constitution as Article VII, Section 1. The only difference from the present text was that the earlier version called for annual elections of these offices. The people later amended this section by Article of Amendment XVI (1911), Section 1, to provide for biennial elections. The 1986 Constitutional Convention proposed a four-year term for these officers, but the ballot question (Number 4) was rejected, in part because it also proposed fouryear terms for state legislators. In 1992 the general officers were given four-year tenure, effective for the 1994 election, but were also made subject to recall and limited to two full terms (see the discussion of these aspects of the amendment at Article IV, Section 1). Candidates for governor and lieutenant governor run separately and are not bracketed in the manner of the president and vice president of the United States. The other three general officers—secretary of state, attorney general, and general treasurer—are also elected separately. In Gorham v. Robinson, 186 A. 832, 841 (R.I. 1936), the court recognized that under the constitution the governor functions as the state’s chief executive officer, but it interpreted the state constitution as vesting the governor with little actual power. Indeed, given the separate election of the four other executive officers, the idea of a “unitary executive” never took hold in Rhode Island, in contrast to the federal system, where its implications are very much at the center of constitutional issues. See, e.g., Morrison v. Olson, 487 U.S. 654, 705, 727 (1988) (Scalia, J., dissenting).

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Even after the enactment of the separation of powers amendments (effective in 2005), which on their face allot the governor considerably more appointive powers than previously enjoyed, his or her lack of control over the other separately elected executive officers means that the governor still is not the head of a unitary executive department, supervising all the workings of the executive branch. R.I. Const., Art. III, § 6 (amended 2005), Art. V (amended 2005), Art. VI, § 10 (repealed 2005), Art. IX, § 5 (amended 2005). Notice also that unlike the United States Constitution, which vests the president with all “the executive power,” the Rhode Island Constitution merely vests the governor with “the chief executive power.” U.S. Const. Art. II, § 1; R.I. Const. Art. IX, § 1 (emphasis added). The as yet unanswered question is this: What powers, if any, does that vesting entail beyond the expressly enumerated powers of the governor? See the implications (and limitations) of the modifier “chief ” in the commentary on distribution of powers (Article V) and the lengthy analysis of gubernatorial powers and the limitations thereon in Patrick T. Conley, Neither Separate Nor Equal: Legislature and Executive in Rhode Island Constitutional History (Providence, 1999). The separation of powers amendments have removed the imbalance noted by Conley in 1999. The few cases that have interpreted this section deal with the extent of the governor’s emergency power and other powers to act in the absence of contrary legislation. In In re State Employees’ Unions, 587 A.2d 919, 921, 923 [R.I. 1991]), the court found that the governor possessed the power to shut down “all State departments and agencies” for a period of 10 nonconsecutive days to address a budget crisis. The court concluded that the vesting of the governor with the “chief executive” power included this particular emergency power. But the court also cited Article IX, Section 2, requiring the governor to ensure that the laws are “faithfully executed,” and the statutory authority that the General Assembly had provided to the governor, as the basis for this action. SECTION 2. Faithful execution of laws. The governor shall take care that the laws be faithfully executed.

This section is identical to the original language of Article VII, Section 2, of the 1843 constitution. Of the few cases challenging the governor’s performance of this duty, the most notable occurred during the plurality election crisis of 1893 (see Article IV, Section 2, for a full discussion), when the governor prorogued the feuding General Assembly. In In re Legislative Adjournment, 27 A. 324, 327 (R.I. 1893), the justices said: If [the Governor] violates the constitution or the laws which he is sworn to support, he may be impeached, and removed from office, and may also be indicted and punished like any other person … But for the exercise of his powers and prerogatives as governor, neither the legislative nor the judicial department of the government has any power to call him to account, nor can they, or either of them, review his action in connection therewith. In short, it cannot be questioned that the governor is

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supreme and independent in the executive department, as is the legislature in the legislative, and the court in the judicial, department of the government.

Earlier, in In re Investigating Comm’n, 11 A. 429, 430 (R.I. 1887), the justices found that other executive officers were similarly protected. The justices ruled that a report by members of a commission that the governor had created to investigate allegations of wrongdoing in prison management was a privileged communication that could not be used as a basis for bringing charges or suits against the commissioners unless the commissioners made the report with either express or actual malice. The justices also found that the governor had the power to appoint the members of this commission, but that the commissioners could not compel witnesses to testify. In DeCecco v. State, 593 A.2d 1342, 1342–45 (R.I. 1991), the court approved of an executive order creating a hearing and administrative appeal process for those state employees who were appointed to the “unclassified state service” for a fixed term but who were discharged for cause before the expiration of that term. The court found that Sections 1 and 2 of the executive article and a statute authorized the governor’s action. Conversely, in Advisory Opinion to Governor, 287 A.2d 353, 355–56 (R.I. 1972), the justices concluded that this section required the governor to comply with all terms of a legislative act, even though by failing to oppose the act in question, the state would lose millions of dollars in federal welfare assistance. SECTION 3. Captain general and commander in chief of military and navy. The governor shall be captain general and commander in chief of the military and naval forces of this state, except when they shall be called into the service of the United States.

This section appeared as Article VII, Section 3, of the 1843 constitution, except that the governor was simply referred to as “He.” In 1986 “He” was replaced by gender-neutral language. Only one case over the years has addressed this section. In Mauran v. Smith, 8 R.I. 192 (1865), the court held that it could not issue a writ of mandamus to compel the governor to do something that the governor was obligated to do as commander in chief. Thus the petitioner, Edward C. Mauran, whom governor James Y. Smith had removed from his post of adjutant general and imprisoned, could not invoke mandamus to ascertain the charges lodged against him. The court not only declined on jurisdictional grounds; Justice Thomas Durfee also invoked the doctrine of separation of powers: “But the reason which has been most effectual in determining the courts [of the various states cited] to refuse the writ [of mandamus], is that which is drawn from the division of the powers of Government under our State Constitutions, into three co-ordinate departments: Legislative, Executive and Judicial, each independent of the others, except in so far as it is subordinated to them by the Constitution.” Id at 217.

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Although the power of the governor over today’s National Guard has not been seriously challenged, in 1844 the ubiquitous General Assembly, composed of many men who drafted the constitution of 1843, passed the first statute pertaining to this section. This “Act to Regulate the Militia” provided that “the officers of the line and general staff of the militia shall be elected as follows: to wit: division inspector, adjutant general, quarter-master general, commissary general, postmaster general, surgeon general, purveyor general of hospitals, by the general assembly.” Elsewhere the statute provided that the governor as “captaingeneral and commander-in-chief ” shall be “entitled to appoint his own aides with the rank of colonel.” Digest of 1844, pp. 510–11. The governor’s power to declare martial law, though nowhere specifically defined, has been exercised infrequently and has not provoked a judicial challenge. (See the discussion of martial law at Article 1, Section 18.) SECTION 4. Reprieves. The governor shall have power to grant reprieves, after conviction, in all cases, except those of impeachment, until the end of the next session of the general assembly.

This section appeared as Article VII, Section 4, of the 1843 constitution, except the governor was then referred to as “He.” In 1986 the framers changed “He” to “The governor.” Only one case exists interpreting this section. In Hanley v. Langlois, 175 A.2d 182, 184 (R.I. 1961), the court held that allowing a prisoner to be removed to neighboring Massachusetts, so that he could face charges there before he faced charges in Rhode Island, did not constitute a reprieve under this section. SECTION 5. Powers of appointment. The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.

Article VII, Section 5, of the 1843 constitution stated: “He [the Governor] may fill vacancies in office not otherwise provided for by this constitution or by law, until the same shall be filled by the general assembly, or by the people.” This section was unchanged by the 1986 Convention except that the word “He” was replaced with “The Governor.” Then Rhode Islanders ratified the separation of powers amendments in 2004 and changed the language of this section and of three other sections of the constitution into their present-day versions. R.I. Const. Art. III, § 6 (amended 2005), Art. V (amended 2005), Art. VI, § 10 (repealed 2005), Art. IX, § 5 (amended 2005). The Rhode Island Supreme Court has not yet issued an opinion interpreting the current version of this section. Prior to the separation of powers amendments, however, the court decided a number of cases involving the powers of appointment.

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In In re Railroad Comm’r., 67 A. 802, 803 (R.I. 1907), the justices said that this section applied to both appointed and elected officers, but that it provided only for the power to make temporary appointments. Such temporary officers were to remain in office until they were replaced through the regular means of either appointment or election. However, in In re Advisory Opinion to the Governor (Appointment to Fill Vacancy in Office of Lieutenant Governor), 688 A.2d 288, 292 (R.I. 1997), a majority of the justices expressed their belief that neither a statute nor a constitutional provision then stated how a new lieutenant governor should be chosen when a vacancy arose. As a result, the governor could appoint someone of his or her choosing to fill the vacancy for the remainder of the four-year term in question, rather than on just a temporary basis. Soon after, in In re Request of Senate for an Advisory Opinion (Election of Lieutenant Governor by the General Assembly in Grand Committee), 696 A.2d 277, 280 (R.I. 1997), the justices opined that a proposed law calling for a permanent appointment to the office of the lieutenant governor—following the governor’s temporary appointment—would be constitutional, but that such a law could not be used retroactively to appoint a new lieutenant governor at that time. Thus Lieutenant Governor Bernard Jackvony, whom Governor Almond had appointed temporarily, could stay in office for the remainder of the term that he was appointed to serve. The court also addressed the question of whether the governor could fill all temporary vacancies. In Casey v. Willey, 151 A.2d 369, 374 (R.I. 1959), the court concluded that a statute vesting the chief justice (or judge) or presiding judge of a court with the power to appoint a clerk pro tempore removed any gubernatorial power to make temporary appointments to the clerks’ offices. The 2004 enactment of this new version of the section, however, has superseded the aforementioned cases. R.I. Const. Art. IX, § 5 (amended 2005); R.I. Const. of 1843, Art. VII, § 5. The governor now has considerably more power than he did prior to the amendment, especially over appointments to executive offices and to boards and agencies exercising executive power under state law. Although the exact scope of the governor’s new appointment powers is yet to be determined, several observations are pertinent: First, the governor now has the power to appoint all state officers other than those whose appointment is otherwise provided for in the constitution, as well as the ability to appoint all members of any board, commission, or other quasi-public entity that exercises executive power under the laws of the state—subject, always, to obtaining the advice and consent of the senate with respect to such appointments. Second, with respect to other state officers who are inferior to the state officers described above, the General Assembly can by law vest the appointment powers with one of several officials: (1) the governor; (2) any one or more of the other general officers (so long as the inferior officer to be appointed is within their respective departments); (3) the judiciary; or (4) the heads of various executive departments. Unanswered questions as of this writing about this power to appoint various officers include:

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1. Who is an “officer of the state” as opposed to an “inferior officer”? 2. What state and quasi-public entities will be deemed to be those “which exercise executive power under the laws of this state”? 3. Who can appoint the members of state boards and commissions working in areas that the constitution specifically entrusts to the General Assembly (e.g., lotteries, education, the environment, coastal resources)? 4. What restrictions, limitations, and qualifications, if any, may the General Assembly attach via legislation to the governor’s constitutional powers of appointment? 5. Must the exercise of the executive power in question be a true statewide power, or does it include executive power exercised under state law on a regional or even on a municipal basis? 6. What powers of removal may the governor exercise with respect to the various types of gubernatorial appointees, and what restrictions, if any, may the General Assembly place on the governor’s removal powers? May the General Assembly itself participate in the removal process, for example, by requiring the governor to obtain its advice and consent before discharging a given official?

Cases and advisory opinions will doubtless address one or more of these issues during the coming years. SECTION 6. Adjournment of the General Assembly. In case of disagreement between the two houses of the general assembly, respecting the time or place of adjournment, certified by either, the governor may adjourn them to such time and place as the governor shall think proper; provided, that the time of adjournment shall not be extended beyond the day of the next stated session.

This section originally appeared in the 1843 constitution as Article VII, Section 6. The only difference between the two versions, other than their placement within the constitution, is that all references to the governor as “he” or “him” have been removed or replaced. In re Legislative Adjournment, 27 A. 324 (R.I. 1893), though merely a nonbinding advisory opinion to the House of Representatives, provides the only legal opinion discussing this section. This decision was occasioned by the plurality election controversy of 1893, during which Governor Brown prorogued the General Assembly because of a dispute between the House and the senate over their respective membership (see the discussion under Article IV, Section 2). In Legislative Adjournment, 27 A. at 326, the justices opined that the governor, not the judiciary, was charged with interpreting the term disagreement. The justices also concluded that once the governor received the certifi cate of disagreement, then it was the governor’s decision whether or not to adjourn the legislature, and the court could not compel the governor to perform that duty. Legislative Adjournment, 27 A. at 328. Thus the “hands-off ” approach the justices took in this case might explain why the jurisprudence under this section is scarce. SECTION 7. Convening of special sessions of the General Assembly. The governor may, on extraordinary occasions, convene the general assembly at any town or city in

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this state, at any time not provided for by law; and in case of danger from the prevalence of epidemic or contagious disease, in the place in which the general assembly is by law to meet, or to which it may have been adjourned, or for other urgent reasons, the governor may by proclamation convene said assembly at any other place within this state.

This section originally appeared as Article VII, Section 7, of the 1843 constitution. When the people ratified the present version in 1986, all references to “he” were replaced by gender-neutral language. This section has been mentioned only once in an opinion from the high court, and that reference was in a nonbinding advisory opinion. See In re Opinion to the Governor, 51 A. 221 (R.I. 1902). The justices were asked to answer questions concerning elected officials’ ability to fill vacancies under a constitutional scheme that no longer exists. Id. Because the justices did not expound on the meaning of this section, there really is no useful jurisprudence to discuss. SECTION 8. Commissions and the state seal. All commissions shall be in the name and by authority of the State of Rhode Island and Providence Plantations; shall be sealed with the state seal, signed by the governor, and attested by the secretary.

This section appeared word-for-word as Article VII, Section 8, of the 1843 constitution. The Rhode Island Supreme Court has not yet addressed the meaning of this section. The state seal consists of an anchor with the state motto, “Hope,” inscribed above it. On the circumference of the seal is the inscription “Seal of the State of Rhode Island and Providence Plantations” (the official state name) and the date, “1636,” when Roger Williams founded Providence, the state’s first “plantation,” or settlement. SECTION 9. Vacancy in the office of the governor. If the office of the governor shall be vacant by reason of death, resignation, impeachment or inability to serve, the lieutenant governor shall fill the office of governor, and exercise the powers and authority appertaining thereto, until a governor is qualified to act, or until the office is filled at the next election.

Article VII, Section 9, of the 1843 constitution read: “In case of vacancy in the office of governor, or of his inability to serve, impeachment, or absence from the state, the lieutenant governor shall fill the office of governor and exercise the powers and authority appertaining thereto, until a governor is qualified to act, or until the office is filled at the next annual election.” Section 9 is similar to the provision contained in the 1843 constitution, except for the replacement of gender references with neutral language by the 1986 Constitutional Convention. In 1992 additional factors that would create a vacancy were added, but “absence from the state” was deleted. There has been only one pronouncement from the high court on this section. In Brown v. Sharkey, 263 A.2d 104, 105 (R.I. 1970), a man challenged an extradition warrant signed by the lieutenant governor, thereby paving the way for the man to be criminally charged in Connecticut. The court stated that it would

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presume that the lieutenant governor was acting pursuant to authority obtained through one of the circumstances enumerated in this section, and that anyone challenging that authority had to prove otherwise in order to succeed. Id. at 107–8. SECTION 10. Vacancies in offices of both the governor and lieutenant governor. If the offices of governor and lieutenant governor be both vacant by reason of death, resignation, impeachment, or inability to serve, the speaker of the house of representatives shall in like manner fill the office of governor during such vacancy.

Article VII, Section 10, of the 1843 constitution stated: “If the offices of governor and lieutenant governor be both vacant by reason of death, resignation, impeachment, absence, or otherwise, the person entitled to preside over the senate for the time being, shall in a like manner fill the office of governor during such absence or vacancy.” The 1986 Constitutional Convention substituted the Speaker of the House as next after the lieutenant governor in order of succession. In 1992 Rhode Islanders amended Section 10, eliminating “absence” as a cause of vacancy. The 1986 change placing the Speaker in the line of succession originated with Resolution 86–00246. That proposal was intended to resolve an apparent inconsistency in the 1843 constitution that provided for the possibility of two successors, the president pro-tem of the senate and a successor chosen by the grand committee. (See Article VIII, Section 4, and Article of Amendment XI, Section 4, of the 1843 constitution.) This resolution, part of Ballot Question 7, was approved by the voters on November 4, 1986, by a vote of 173,010 (64.8 percent) to 92,435 (35.2 percent). So far the justices on Rhode Island’s high court have rendered only an advisory opinion that is pertinent to this section. In In re Request of the Senate for an Advisory Opinion (Election of Lieutenant Governor by the General Assembly in Grand Committee), 696 A.2d 277, 280 (R.I. 1997), the justices opined that the legislature could constitutionally enact a law mandating that whenever the lieutenant governor’s office is vacant, the grand committee (a joint session of both legislative houses) could appoint someone to fill out the term. This opinion, however, occurred before the 2004 separation of powers amendments, which among other things provide that the governor, with the advice and consent of the senate, is to appoint all state officers whose means of appointment the constitution does not otherwise address. R.I. Const. Art. IX, § 5 (amended 2005). Thus it appears that only when the lieutenant governor’s position itself is vacant does Article IX, Section 5, indicate how a new lieutenant governor shall be appointed. Id. Otherwise, this section controls. No Speaker has filled the office of governor, but on two occasions since statehood the presiding officer of the senate served as acting governor—one under the charter, the other under the constitution of 1843. In 1839 there was no choice for governor or lieutenant governor under the plurality system, so “first senator” Samuel Ward King became governor. On March 3,

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1863, Governor William Sprague resigned to accept the office of United States senator (then, and until 1913, a choice of the General Assembly), and Lieutenant Governor Samuel G. Arnold had been previously elected to the U.S. Senate to fill the vacancy caused by the forced resignation of James F. Simmons for Civil War profiteering and influence peddling, so Rhode Island senate president William C. Cozzens served as governor for a two-month period. See Ralph S. Mohr, Rhode Island Governors for Three Hundred Years (Providence, 1959), pp. 218, 250. SECTION 11. Compensation of the governor and lieutenant governor. The compensation of the governor and lieutenant governor shall be established by law, and shall not be diminished during the term for which they are elected.

This section was adopted verbatim in 1986 from Article VII, Section 11, of the 1843 constitution. The Rhode Island Supreme Court has not yet interpreted it. SECTION 12. Powers and duties of the secretary of state, attorney general, and general treasurer. The duties and powers of the secretary, attorney-general and general treasurer shall be the same under this Constitution as are now established, or as from time to time may be prescribed by law.

This section has been retained verbatim from Article VII, Section 12, of the 1843 constitution. In Rhode Island the people elect the secretary of state, the attorney general, and the general treasurer and have done so since the seventeenth century. The court has defined much of the attorney general’s power but has not yet spoken on the powers of the other two general officers, whose duties are prescribed by the General Assembly (except for the former role of the secretary of state as secretary of the senate, a function discontinued in January 2003 by virtue of a 1994 constitutional amendment). In Orabona v. Linscott, 144 A. 52, 53–54 (R.I. 1928) (overturned in part by Giroux v. Superior Ct., 133 A.2d 636, 638 [R.I. 1957]), the court alluded to many of the attorney general’s functions: Under the Constitution and by long established practice great power and responsibility for the enforcement of the criminal laws are lodged in the Attorney General. He has control of his docket for the trial of criminal cases, and after they are set down, and due notice has been given, he may try them in such order as he sees fit … His control of the prosecution, of course, is regulated by the [federal and state Constitutions, namely through the Bill of Rights and the Declaration of Certain Constitutional Rights and Principles]. Orabona, 144 A. at 53.

In Orabona, the attorney general agreed with a convicted defendant to defer the sentencing until the attorney general suspected him of breaking the law again. Id. When the convict was charged with two more offenses and acquitted of one while the other was still pending, the attorney general moved for a sentence on the original conviction. Id. The court upheld the sentence given at that time and stated: The common practice in the superior court is to impose sentence after motion is made therefor by the Attorney General, for the reason presumably that he is the

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executive officer primarily responsible for the execution of the law, and that the function of the court is in the main to determine the sentence or to make such other disposition of the cause as is proper. Id.

The court also opined that similar agreements are both common and valid. Thus, the attorney general has a great deal of discretion in moving for the sentencing of criminal defendants. In State v. Fay, 14 A.2d 799, 802 (R.I. 1940), the court upheld a statute allowing the attorney general to move for sentencing to occur after the trial, whether or not the attorney general moved before or after the convict pursued any bill of exceptions in the Rhode Island Supreme Court. The court said: The decision of the attorney general not to follow the customary procedure, that is, to withhold his motion to sentence until the petitioners’ exceptions had been finally determined in this court, may not ordinarily be the best practice; but such fact does not establish that he had no such power under this statute, or that in acting thereunder he thereby invaded the judicial power, as the petitioners contend. When the attorney general exercises his discretion to determine when, if ever, he shall move the court to employ its judicial power and impose sentence, he is not then exercising any judicial power himself. There is a clear distinction between judicial power, such as is established by the constitution, and a discretionary power which merely involves the exercise of judgment by the attorney general in connection with a matter properly within the scope of his office.

In Rogers v. Hill, 48 A. 670 (R.I. 1901), the court considered an agreement between a plaintiff who had paid a lawyer a sum of money to have the attorney general settle some criminal charges against a third party. When the lawyer failed to do so, the plaintiff sued. Id. The trial court nonsuited the plaintiff for paying money illegally, but the high court disagreed and remanded the case for trial. Id. at 670–71. The court held that “[t]here being no express provision of the statutes relating to the power of the attorney general to enter a nolle prosequi in criminal cases, the power exists in him by virtue of the constitution of the state … ” Id. at 670. In this state the attorney general has exercised the power of entering a nolle prosequi in criminal cases long anterior to the adoption of the constitution; and before the trial actually begins, and after the trial concludes, and before sentence is imposed, he exercises that power wholly upon his official responsibility, without the advice or permission of the court. Id. at 671.

The court concluded that the plaintiff could have believed he was paying the lawyer for convincing the attorney general to do something that the attorney general could lawfully do. Id. at 670. In Ex parte McGrane, 47 R.I. 106, 130 A. at 804 (R.I. 1925), the court reaffirmed the attorney general’s power to enter nolle prosequi orders and it upheld the conviction of an indicted man who, after the attorney general entered a nolle prosequi order and indicted the man on a lesser charge, pled nolo contendere to the lesser charge and was imprisoned. Id.

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In Suitor v. Nugent, 199 A.2d 722, 724 (R.I. 1964), the court expanded upon the attorney general’s prosecutorial powers. The court held that the attorney general is immune from suits for any of his or her official actions. Id. The court reasoned that the attorney general could not perform as the attorney general if he or she was constantly defending against civil suits arising from criminal prosecutions. Id. at 725. In Jefferson v. State, 472 A.2d 1200, 1204–5 (R.I. 1984), the court again recognized the attorney general’s broad power over criminal prosecutions when it held that the attorney general owed no duty to a defendant to investigate and prosecute state witnesses who may have committed perjury at the defendant’s trial. Id. at 1204–5. The court reasoned that the attorney general exercised discretion in not investigating the perjury charges and did not taint the verdict by deciding not to prosecute the suspected perjurers. because a jury had already convicted the plaintiff. Id. at 1205. In In re House of Representatives (Special Prosecutor), 575 A.2d 176, 179–80 (R.I. 1990), the justices considered the validity of proposed legislation mandating that the chief justice appoint a special prosecutor when the attorney general suspected certain public officials of having committed crimes. The justices opined that the legislation would be unconstitutional because the attorney general would lose constitutional power. Id. at 180. “If an office is created by the Constitution … the position can neither be abolished by statute nor reduced to impotence by the transfer of duties characteristic of the office to another office created by the legislature.” Id. at 179. SECTION 13. Pardons. The governor, by and with the advice and consent of the senate, shall hereafter exclusively exercise the pardoning power, except in cases of impeachment, to the same extent as such power is now exercised by the general assembly.

The constitution of 1843 did not include a pardoning provision. In 1854 the people ratified three amendments to the 1843 constitution, including Article of Amendment II, which reads the same as the present Article IX, Section 13. This provision was proposed by a General Assembly controlled by Dorr Democrats to facilitate the granting of a pardon for Thomas Wilson Dorr, who had been convicted of treason against the state for his actions during the Dorr Rebellion of 1842. At the time of first passage, Democrat Philip Allen, Dorr’s uncle, was governor. By the time of the required second passage (a general election intervening), Allen had been elected to the U.S. Senate, and a coalition of Whigs and American party legislators had seized control of the General Assembly. Surprisingly, they also passed Amendment II. It went to the voters on November 7, 1854, and was ratified by a margin of 3,893 to 1,408. Not surprisingly, Whig-American governor William W. Hoppin, a nativist, did not use his newfound power to pardon Dorr, a champion of equal rights for the Irish immigrants who then were pouring into Rhode Island. Seven weeks after Article II became law, Dorr died of complications arising from his imprisonment.

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Anxious over the possible impact of the April 1854 state elections on the prospects of a gubernatorial pardon for Dorr, the Democratic legislature passed an act in January 1854 before succumbing to the tidal wave of nativism reversing and annulling the judgment of the Rhode Island Supreme Court in Dorr’s 1844 treason trial. This act (discussed in conjunction with Article V) prompted a ruling, at the request of the successor assembly, wherein the supreme court rebuked the deposed legislature and declared the reversal statute unconstitutional. Opinion to the Senate and House of Representatives, 3 R.I. 299 (1854). Article IX, Section 4, of the constitution reads: “The governor shall have power to grant reprieves, after conviction, in all cases, except those of impeachment, until the end of the next session of the general assembly” (emphasis added). The Rhode Island Supreme Court has not explained the difference between a pardon and a reprieve. Black’s Law Dictionary defines “pardon” as “[t]he act or an instance of officially nullifying punishment or other legal consequences of a crime” and defines “reprieve” as “[t]emporary postponement of the carrying out of a criminal sentence, esp[ecially] a death sentence” (pp. 511, 604). The constitution contains no provisions concerning the commutation of criminal sentences. Only one advisory opinion deserves mention here. In In re Opinion of Judges, 4 R.I. 583 (1857), the justices opined that an executive pardon restored the franchise to most convicts. Nevertheless, citing another constitutional provision empowering the legislature to return the franchise to this latter class of convicts, the justices also concluded that “any person convicted of bribery or of any crime deemed infamous at common law” could not vote unless and until the legislature specifically and expressly restored the privilege to that person. This other section (the original Article II, Section 4), on which the justices relied to reach their conclusion, was annulled in 1950 by Article of Amendment XXIV, but the provision relating to convictions was included verbatim in the new amendment. Id. In November 2006, the constitution was amended to allow a felon to vote when he or she was discharged from a correctional facility. R.I. Const. Art. II, § 1, as amended. No gubernatorial or legislative action is required. SECTION 14. Veto power of governor—Veto overrides by the General Assembly— Acts effective without action by the governor. Every bill, resolution, or vote (except such as relate to adjournment, the organization or conduct of either or both houses of the general assembly, and resolutions proposing amendment to the Constitution) which shall have passed both houses of the general assembly shall be presented to the governor. If the governor approve it the governor shall sign it, and thereupon it shall become operative, but if the governor does not approve it the governor shall return it, accompanied by the governor’s objections in writing to the house in which it originated, which shall enter the governor’s objections in full upon its journal and proceed to reconsider it. If, after such reconsideration, threefifths of the members present and voting in that house shall vote to pass the measure, it shall be sent with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by three-fifths of the members present and voting in that house, it shall become operative in the same manner as if the

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governor had approved it, but in such cases the votes of both houses shall be determined by ayes and nays and the names of the members voting for and against the measure shall be entered upon the journal of each house, respectively. If the measure shall not be returned by the governor within six days (Sundays excepted) after it shall have been presented to the governor the same shall become operative unless the general assembly, by adjournment, prevents its return, in which case it shall become operative unless transmitted by the governor to the secretary of state, with the governor’s disapproval in writing within ten days after such adjournment.

The constitution of 1843, a Whiggish document, failed to provide the governor with a veto power. In 1909 Rhode Islanders adopted Article of Amendment XV by a margin of 30,149 to 6,267. This amendment was reenacted in 1986 and numbered Section 14. In the present version the section’s language is gender-neutral. The three-fifths vote of the members present and voting in each house for an override is less formidable than the “two-thirds of the House” required by Article I, Section 7, of the federal Constitution. The federal veto process, which is contained in the legislative article, does not require two-thirds of the whole membership, but only two-thirds of a quorum. In that respect Rhode Island’s veto process is similar to the federal model. In In re Opinion to the Governor, 103 A. 513, 514–15 (R.I. 1918), the justices opined that the governor may veto bills concerning legislative apportionment and bills mandating the place and manner of holding elections. Later, in In re Opinion to the Governor, 117 A. 97, 98–99 (R.I. 1922), the justices said that that “Sundays excepted” meant that the periods referred to in the section included Sundays, but that they could not end on a Sunday; instead, they would end on the following Monday. The justices stated that “Sundays” applied both to one Sunday and multiple Sundays, and that when the people chose “Sundays excepted” instead of “Sunday excepted,” they did not mean to exclude all Sundays from the 10-day period, which, unlike the 6-day period, could include multiple Sundays. Id. at 99. SECTION 15. State budget. The governor shall prepare and present to the general assembly an annual, consolidated operating and capital improvement state budget.

The 1843 constitution failed to vest the governor with any express budgetary authority. The 1986 Constitutional Convention added this section, which originated as Resolution 86–00222. It was sponsored by delegate Lila Sapinsley, a former senate minority leader. Actually the governor had been given budgetary power by statute in January 1935 as part of the reform package that accompanied the Bloodless Revolution. This was accomplished when the senate-appointed post of finance commissioner was abolished and the gubernatorially appointed post of budget commissioner and comptroller was created by the General Assembly. Governor Theodore Francis Green selected Pawtucket Democratic potentate Thomas P. McCoy for the position, and McCoy then chose Christopher Del Sesto as his

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assistant. See William J. Jennings Jr., “The Prince of Pawtucket: A Study of the Politics of Thomas P. McCoy,” doctoral dissertation, Providence College, 1985, pp. 215–16. The Rhode Island Supreme Court has not yet decided a case on this section’s meaning. SECTION 16. Limitation on state spending. [Effective from July 1, 2007 until July 1, 2012. (a) No appropriation, supplemental appropriation or budget act shall cause the aggregate state general revenue appropriations enacted in any given fiscal year to exceed ninety-eight percent (98%) of the estimated state general revenues for such fiscal year from all sources, including estimated unencumbered general revenues to the new fiscal year remaining at the end of the previous fiscal year. Estimated unencumbered general revenues are calculated by taking the estimated general revenue cash balance at the end of the fiscal year less estimated revenue anticipation bonds or notes, estimated general revenue encumbrances, estimated continuing general revenue appropriations and the amount of the budget reserve account at the end of said fiscal year. (b) The amount between the applicable percentage in (a) and one hundred percent (100%) of the estimated state general revenue for any fiscal year as estimated in accordance with subsection (a) of this section shall be appropriated in any given fiscal year into the budget reserve account; provided, however, that no such payment will be made which would increase the total of the budget reserve account to more than three percent (3%) of the estimated state general revenues as set by subsection (a) of this section. In the event that the payment to be made into the budget reserve account would increase the amount in said account to more than three percent (3%) of estimated state general revenues that said amount shall be transferred to the Rhode Island Capital Plan fund to be used solely for funding capital projects. (c) Within forty-five (45) days after the close of any fiscal year, all unencumbered general revenue in the year-end surplus account from the said fiscal year shall be transferred to the general fund. SECTION 16. Limitation on state spending. [Effective July 1, 2012]. (a) No appropriation, supplemental appropriation or budget act shall cause the aggregate state general revenue appropriations enacted in any given fiscal year to exceed ninety-seven percent (97%) of the estimated state general revenues for such fiscal year from all sources, including estimated unencumbered general revenues to the new fiscal year remaining at the end of the previous fiscal year. Estimated unencumbered general revenues are calculated by taking the estimated general revenue cash balance at the end of the fiscal year less estimated revenue anticipation bonds or notes, estimated general revenue encumbrances, estimated continuing general revenue appropriations and the amount of the budget reserve account at the end of said fiscal year.

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(b) The amount between the applicable percentage in (a) and one hundred percent (100%) of the estimated state general revenue for any fiscal year as estimated in accordance with subsection (a) of this section shall be appropriated in any given fiscal year into the budget reserve account; provided, however, that no such payment will be made which would increase the total of the budget reserve account to more than five percent (5%) of only the estimated state general revenues as set by subsection (a) of this section. In the event that the payment to be made into the budget reserve account would increase the amount in said account to more than five percent (5%) of estimated state general revenues that said amount shall be transferred to the Rhode Island Capital Plan fund to be used solely for funding capital projects. (c) Within forty-five (45) days after the close of any fiscal year, all unencumbered general revenue in the year-end surplus account from the said fiscal year shall be transferred to the general fund.

Rhode Islanders added Section 16 and its companion Section 17 to the constitution in 1992 in the aftermath of a recession and a banking crisis in which many of the state’s credit unions failed. The section is designed to prevent overspending and to provide a cushion in a newly established “budget reserve account” (see Section 17 following) for physical emergencies involving the health, safety, or welfare of the citizens or for budgetary emergencies such as an unanticipated deficit. Paragraph (c) requires all unencumbered general revenue in the yearend surplus or reserve account to be transferred into the general fund within 45 days after the close of the fiscal year, which ends by statute on June 30. A proposal to amend the budget reserve account, also known as “the rainy day fund,” was placed before the voters on November 7, 2006 and ratified by a margin of 205, 110 (approve) to 140,825 (reject). The amendment (cited above) will have the effect of: (1) restricting the use of excess funds deposited in the state capital bond fund solely to capital projects beginning July 1, 2007; and (2) beginning on July 1, 2012: (a) decreasing appropriations for any fiscal year from ninety-eight (98%) percent of estimated revenues to ninety-seven (97%) percent of estimated revenues and, as a result, increasing the difference to be deposited into the budget reserve account from two percent (2%) to three percent (3%); and (b) increasing the cap on the budget reserve account from three percent (3%) to five percent (5%) of estimated revenues. For a clear statement of the scope and purpose of Section 16, see the 2006 Voter Information Handbook published by the Office of the Secretary of State, pp. 8–9. SECTION 17. Budget reserve account. There is hereby established a budget reserve account within the general fund. Revenues in this budget reserve account may be appropriated in the event of an emergency involving the health, safety or welfare of the citizens of the state of Rhode Island or in the event of an unanticipated deficit in any given fiscal year, such appropriations to be approved by a majority vote of each house of the general assembly.

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Neither the 1843 constitution nor its 1986 successor included this provision. It should be read in conjunction with Section 16. The referendum adding Sections 16 and 17 to the basic law was ratified on November 3, 1992, by a margin of 201,030 to 133,104. The court has not yet interpreted either section in any cases.

Article X Of the Judicial Power

SECTION 1. Power vested in the courts. The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish.

This section originated as Article X, Section 1, of the 1843 constitution. In 1986 the people adopted the section verbatim, and the wording is unchanged. Article X, Section 2, added to the constitution in 1903 by Article of Amendment XII, governs the jurisdiction of the supreme court and all other state courts. That section reads: The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity. It shall have power to issue prerogative writs, and shall also have such other jurisdiction as may, from time to time, be prescribed by law. A majority of its judges shall always be necessary to constitute a quorum. The inferior courts shall have such jurisdiction as may, from time to time, be prescribed by law.

Article X, Sections 1 and 2, are often considered together in judicial decisions. Like other vesting provisions in the constitution, the power that is vested here (“the judicial power”) is not defined, but it apparently depends on what a reasonable person generally would have understood by the use of such terminology at the time of the provision’s adoption. Also, note that the judicial power is vested not only in the supreme court but also in such inferior courts as the General Assembly may, from time to time, ordain and establish. It is a power that several courts may share. Finally, the creation of inferior courts is left up to the General Assembly,

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which presumably is also free to discontinue them at will whenever for policy reasons it chooses to do so. The assertion of the judicial power in its plenary form is associated with Samuel Ames, who has been labeled “the Great Chief Justice” because of his landmark decision in the case of Taylor v. Place, 4 R.I. 324 (1856). During the Dorr Rebellion Ames was a leading pundit and pamphleteer for the Law and Order party. He was also a leader of the state militia during its defense of the arsenal at the Dexter Training Grounds when that facility was menaced in May 1842 by a force under People’s Governor Thomas Wilson Dorr. Yet Dorr and Ames had been schoolmates at Phillips Academy (Andover) and allies in the formation of the reformoriented Constitutional party in 1834. In 1839 Ames had married Mary Throop Dorr, the famed rebel’s younger sister. During the rebellion that Dorr led and Ames opposed, the establishment of an independent judiciary had been a leading goal of the reformers. The People’s Constitution, mainly drafted by Dorr, diminished the power of the General Assembly by providing for a clear and strict separation of powers according to the three-branch principle (Article III), barred the assembly from exercising its traditional judicial functions (Article IX, 4), and gave stronger tenure to the judiciary (Article XI, 3). The Whiggish Law and Order Constitution that was eventually adopted did not embrace the doctrine of strict separation of powers, and it was much less decisive in its approach to separation of powers and judicial independence, so the opinion by Ames in Taylor v. Place had less explicit constitutional support than if the People’s Constitution had been the basic law of the state. Actually, the high court had moved towards Taylor in 1854, two years prior to Ames’s accession. In an advisory opinion to the senate and House of Representatives (3 R.I. 299), the supreme court under Chief Justice Richard Ward Greene vindicated Dorr’s position on judicial independence while delivering a setback to Dorr’s legal rehabilitation. This incongruity occurred because the act of the assembly that the court found unconstitutional was an 1854 Democratic-sponsored measure reversing and annulling the verdict in the Rhode Island Supreme Court treason trial of 1844 that sent Dorr to prison. The Taylor case arose when a creditor (Taylor) won two suits against a debtor in the Court of Common Pleas, only to have the verdicts set aside when the garnishee for the debtor (Place) appealed to the General Assembly. Taylor in turn appealed to the supreme court of Chief Justice Ames. The legal dispute was quite simple. Since the enactment of the distribution clause of the constitution of 1843 (Article III), could the legislature pass laws that overturned the verdicts of courts? Speaking on behalf of a unanimous court, Chief Justice Ames declared that the assembly’s law decreeing a new trial was unconstitutional. Although the legislature had traditionally interfered with the decisions of courts, he skillfully drew on various provisions of the constitution to build a powerful argument that the judicial power was to be exercised by courts alone, despite the existence of the residual powers clause (then Article IV, Section 10). Nor was the chief justice impressed by the fact that despite the provisions of the constitution, the legislature had continued to exercise judicial power since 1843:

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. . . our short and true reply is, that the exercise of judicial, and especially of chancery powers, is prohibited to them by the constitution; and that we must be false to history, right reason, the settled rules of judicial exposition, the established meaning of the language of the constitution as given unvaryingly by the highest authorities, and with that meaning adopted by the people in adopting the constitution, and so false both to the people and the constitution, if we come to any other conclusion.

Constitutional historian C. Peter Magrath has contended that “the Ames opinion in Taylor v. Place is distinguished by its masterful analysis of the nature of the judicial power.” The chief justice wisely noted that “it is difficult to draw and apply the precise line separating the different powers of government.” He realized that in performing its own distinctive functions, each branch of government inescapably exercised some of the power characteristic of its fellow departments. But, Ames wrote, “to hear and decide adversary suits at law and in equity, with the power of rendering judgments and entering up decrees according to the decision, to be executed by the process and power of the tribunal deciding … is the exercise of the judicial power, in the constitutional sense.” And this power Ames reserved exclusively for the courts. In his Taylor decision the chief justice was influenced by several predictable factors in singling out the judicial branch for emancipation from legislative control. All of these factors were rooted in the work of the Law and Order Convention. Although the position of governor was created by the Charter of 1663, until May 1843 the supreme court was purely statutory and a creature of the General Assembly. Clearly the new constitution had elevated the status of the high court. Secondly, Ames was aware that the Law and Order Convention had altered the Freemen’s Constitution by deleting from Article IV, Section 10, the provision that “the general assembly shall continue to exercise the judicial power.” This purposeful omission was a clear indication that the Whig-dominated convention had reservations concerning the legislature’s exercise of revisory or chancery powers in judicial proceedings. Convention delegate Sylvester Shearman, who became an associate justice on the Ames court, offered an amendment to the legislative article specifically depriving the General Assembly of “the appellate jurisdiction on petitions for divorce, benefit of the insolvent laws, new trials, and the jurisdiction on sales of real estate.” After considerable debate, Shearman’s proposed Section 18 was rejected. Ames may also have received a cue from the name given to the high court in the Law and Order Constitution—the “Supreme Court.” From 1798 to 1843 that court operated as the supreme judicial court, a name which implied that there existed a nonjudicial court—namely, the General Assembly—with review and revisory powers over the “judicial” court. This, in fact, was how the system had worked. Ames also believed that the grant of judicial power was unlimited. He took judicial notice of the fact that the 1842 convention had used the federal Constitution as a model in crafting Rhode Island’s article on the judiciary. “This pregnant sentence [‘The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly, may, from time to time ordain and establish’] is copied into our constitution verbatim from the constitution of the United States,” where it has “a settled constitutional meaning,” asserted Ames.

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Finally, as an orthodox Whig like the dominant delegates to the Law and Order Convention, Ames looked to the judiciary as a bulwark against leveling democracy and a protector of property rights and societal order. Here he was of one mind with Chancellor James Kent, Justice Joseph Story, and such prominent Whig attorneys as Daniel Webster and John Whipple, who defended the Law and Order Constitution in the case of Luther v. Borden (1849). The cases defining the judicial power are diverse. In Church v. Town of South Kingstown, 48 A. 3, 4 (R.I. 1901), the court examined a law that called for judges to appoint a commission to investigate whether or not there was any substance to a complaint that the town was failing to provide for the welfare of a pauper. In addition to finding the law unconstitutional as a due process violation, the court stated some of the essential reasons why the commission did not constitute a court: (1) its members did not have to take an oath in order to serve; (2) it lacked the power to swear in witnesses; and (3) it lacked the power to render a judgment. U.S. Const. Art. XIV, § 1; R.I. Const. Art. I, § 2; Church, 48 A. at 4. In this case the statute in question required the commission to report its findings to the judge that created it; thereafter, the judge was to make the required determination concerning the complaint based on that report. In Horton v. Old Colony Bill Posting Co., 90 A. 822, 838 (R.I. 1914), the court evaluated an ordinance requiring outdoor advertising to be adjudged in advance by the board of police commissioners as not “obscene, indecent, licentious, of immoral character or depicting the commission of any crime.” In declaring the act constitutional, the court distinguished between judicial powers and executive/ administrative powers as it had done on a number of occasions. For example, in Mason v. Taft, 50 A. 648, 649 (R.I. 1901), the court recognized the ability of the executive authority to use some discretion without trampling on the power of the judiciary: By ‘courts,’ as the word is used in the constitution, we understand permanent organizations for the administration of justice, and not those special tribunals provided for by law that are occasionally called into existence by particular exigencies, and that cease to exist with such exigencies … Commissioners are appointed to act in a given case, and not generally. Their appointment is temporary, for a single or transient purpose, and when they have acted in a given case their powers cease.

See also Sartor v. Coastal Resources Mgt. Council, 542 A.2d 1077, 1080–81 (R.I. 1988) (upholding the power of an executive agency to hold hearings and make findings as to the existence of public rights-of-way to tidal waters); Berberian v. Lussier, 139 A.2d 869, 874 (R.I. 1958) (upholding law that authorized the registry of motor vehicles to suspend the license of a person involved in a motor vehicle accident should that person fail to prove that he or she has been released from liability or has given sufficient surety—as determined by the registry—to cover any liability incurred in the accident); Di Traglia v. Daneker, 115 A.2d 345, 348 (R.I. 1955) (upholding the power of the liquor control board to suspend liquor sales licenses of those who sell to minors); Narragansett Elec. Lighting Co. v. Sabre, 146 A. 777, 784 (R.I. 1929) (upholding law giving discretionary power to corporations

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to condemn land for eminent domain proceedings); State Bd. of Health v. Roy, 48 A. 802, 803 (R.I. 1901) (upholding law giving the state board of health the power to revoke a medical license after a hearing in which the licensee was found to have committed grossly unprofessional conduct likely to deceive or defraud the public). Other instances exist, outside of the administrative law context, in which the court has found no unconstitutional interference with the vesting of the judicial power in this section. In In re Nichols, 8 R.I. 50 (1864), the court ruled that a law which allowed an imprisoned debtor to be released upon the taking of the poor debtor’s oath, stating that the person was unable to discharge incurred debts, was not a legislative exercise of judicial discretion. Later, in Gorham v. Robinson, 186 A. 832, 845 (R.I. 1936), the court held that this section does not limit the power of the legislature to increase or decrease the terms of inferior court judges. In other instances, however, the court has maintained a tight grip on judicial power. In Floyd v. Quinn, 52 A. 880, 881 (R.I. 1902), the court stated that when the people decided to establish a supreme court, they meant to establish a court that was not subordinate to any other state courts and that was a court of last resort. The court went on, however, to say that this did not mean that all cases had to reach their finality in the state supreme court, or that all cases necessarily had to go to that court for final review, or that a lower court could not reverse a judgment of a subordinate court. In In re Rhode Island Bar Ass’n, 263 A.2d 692, 697–98 (R.I. 1970), the court held that this section gives the high court the power to regulate the practice of law, including whether or not to allow lawyers to organize into public service corporations. Earlier, however, the court pointed out that practicing law without a license could incur statutory criminal penalties as well as professional discipline. Rhode Island Bar Ass’n. v. Automobile Serv. Ass’n., 179 A. 139, 141 (R.I. 1935). The court declined to give an exhaustive definition of “practice of law” but did say: It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients before judges and courts, and, in addition, conveyancing, the preparation of legal instruments of all kinds, and, in general, all advice to clients, and all action taken for them in matters connected with the law. An attorney at law is one who engages in any of these branches of the practice of law. The following is the concise definition given by the Supreme Court of the United States: ‘Persons acting professionally in legal formalities, negotiations, or proceedings by the warrant or authority of their clients may be regarded as attorneys at law within the meaning of that designation as employed in this country.’ [Id. at 144–45.]

Recently, in City of Providence v. Employee Retirement Bd. of the City of Providence, 749 A.2d 1088, 1098 (R.I. 2000), the court held that a municipality’s attempted reversal of a consent judgment would be an unconstitutional invasion of the judicial sphere. In State v. Garnetto, 63 A.2d 777, 778 (R.I. 1949), the court considered the constitutionality of a law mandating the release of a person sentenced to prison for violating a deferred sentence by way of an alleged felony when

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a grand jury failed to indict that person for the alleged felony. The court found that the law amounted to an unconstitutional reversal of a judgment by the legislature. Id. at 780. In In re House of Representatives, 575 A.2d 176, 177, 179 (R.I. 1990), the justices considered the constitutionality of a law that required the chief justice to appoint a special prosecutor to investigate and prosecute any crime involving certain public officials, upon application from the attorney general. The justices believed that the chief justice’s duties in regard to the special prosecutor—including appointment, supervision, defining jurisdiction, removal, or termination—were all administrative duties that encroached on the independence of the court, interfered with the chief justice’s inherent powers, and effectively eliminated him from participating in appeals involving the prosecutor, because his prior role would have created a conflict of interest. In In re Advisory Opinion to Governor (Casino I), 856 A.2d 320, 326 n.2 (R.I. 2004), the justices concluded that a proposed ballot question that limited their own judicial powers of review to questions concerning corruption or fraud was unconstitutional, because the judiciary must be able to review a law for all available challenges. It is unclear how the separation of powers amendments have increased or reduced the powers of the judiciary—see R.I. Const. Art. V (amended 2005)—except that the courts will surely be called upon repeatedly to interpret these provisions and to define their scope and applicability. SECTION 2. Jurisdiction of the supreme and inferior courts—Quorum of the supreme court. The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity. It shall have power to issue prerogative writs, and shall also have such other jurisdiction as may, from time to time, be prescribed by law. A majority of its judges shall always be necessary to constitute a quorum. The inferior courts shall have such jurisdiction as may, from time to time, be prescribed by law.

Article X, Section 2 of the 1843 constitution read: “The several courts have such jurisdiction as may from time to time be prescribed by law. Chancery powers may be conferred on the Supreme Court, but on no other Court to any greater extent than is now provided by law.” Article XIV, Section 3, of the 1843 constitution read: The Supreme Court, established by this constitution, shall have the same jurisdiction as the Supreme Judicial Court at present established, and shall have jurisdiction of all causes which may be appealed to, or pending in the same; and shall be held at the same times and places, and in each county, as the present Supreme Judicial Court, until otherwise prescribed by the General Assembly.

In 1903 the people ratified Amendment XII, which repealed Article X, Section 2, and Article XIV, Section 3, of the original constitution. Article X, Section 2, was thereby replaced with a passage nearly identical to the present Article X, Section 2, the only difference being that “also” did not appear in the second sentence of the earlier version.

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At the dawn of the twentieth century the judicial branch was headed by a supreme court, consisting of a chief justice and six associate justices. The court sat as a body on constitutional questions, but it otherwise was divided, in accordance with the provisions of the Judiciary Act of 1893, into an appellate division of four justices and a common pleas division. In the case of Floyd v. Quinn, 24 R.I. 147 (1902), attorney Charles E. Gorman raised the question of whether Rhode Island, under the prevailing practice that permitted the chief justice to assign members to either the appellate or common pleas division, had one supreme court or 120 supreme courts—that being the number of different panels possible under the assignment system. In a 1901 essay, Gorman, a former U.S. district attorney, House Speaker and Rhode Island’s first Irish Catholic member of the bar, had urged major reforms in the existing judicial system. The conundrum posed by reformer Gorman in Floyd v. Quinn challenged the court to make a searching analysis of its organization and jurisdiction. The newly formed Bar Association, especially attorneys Gorman and Amasa Eaton, joined the quest for a more simple and efficient judicial system. The products of this reassessment were the Twelfth Amendment (1903) to the Rhode Island Constitution, which provided for a supreme court with final revisory and appellate jurisdiction, and the voluminous Court and Practice Act of 1905, consisting of 1,275 sections in 576 pages, which established a supreme court of five justices, a superior court with trial jurisdiction in law and equity, and a detailed code of court procedures. The principal influence on the 1905 statute was the report of a seven-man study commission created in 1904 by the General Assembly to recommend judicial restructuring. This distinguished board consisted of Chief Justice John H. Stiness, its chairman, and Charles E. Gorman, Edward D. Bassett, William A. Morgan, Nathan W. Littlefield, Ellery H. Wilson, and Stephen O. Edwards, who had founded what has become Rhode Island’s largest law firm, Edwards & Angell, in 1894. In D’Arezzo v. D’Arezzo, 267 A.2d 683, 685 (R.I. 1970), the court stated that the people adopted this section to transform the Rhode Island Supreme Court into one primarily of appellate jurisdiction and the court of last resort in Rhode Island. The court declared that its judgments were precedents that all inferior courts must follow, no matter how much the inferior courts disagree. As the court stated: “courts of last resourt [sic] are not final because they are infallible, but rather they are infallible only because they are final.” Id. (quoting Brown v. Allen, 344 U.S. 443, 540 [1953]). The Rhode Island Supreme Court has largely deferred to the legislature’s judgment in creating inferior courts and defining the jurisdiction of all state courts. In State v. Nichols, 60 A. 763, 768–69 (R.I. 1905), the court held that this section and Article I, Section 7, which requires felonies punishable by imprisonment for at least one year to be presented to a grand jury, could be interpreted and modified by the legislature to vest jurisdiction in inferior courts over crimes punishable only by lesser sentences without the need for grand juries. In Higgins v. Tax Assessors of Pawtucket, 63 A. 34, 35 (R.I. 1905), the court held that the legislature could vest original jurisdiction over questions of equity in inferior courts. In Clark v. New York, New Haven & Hartford Railroad Co., 80 A. 406, 408 (R.I. 1911), the court held that the legislature could vest an inferior court with jurisdiction over motions

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for new trials and give such court jurisdiction, concurrent with the state supreme court, “over writs of habeas corpus, mandamus, quo warranto, and informations in the nature of quo warranto.” In MacKenzie & Shea v. Rhode Island Hospital Trust Co., 122 A. 774, 776 (R.I. 1923), the court found that the legislature could vest original appellate jurisdiction in inferior courts, whose appellate decisions would be reviewable in the state supreme court. In State v. Fortes, 330 A.2d 404, 411 (R.I. 1975), the court held that it had the power to review a criminal sentence imposed by a lower court even if the sentence fell within statutory limits. The court reasoned that an excessive sentence amounts to an abuse of discretion, which is an error of law. The Rhode Island Supreme Court has also limited its own inherent jurisdiction, and the jurisdiction of inferior courts, in accordance with this section. In Gainer v. Dunn, 69 A. 851, 852 (R.I. 1908), the court found that this section does not automatically give the supreme court jurisdiction over questions of fact—a jurisdiction possessed by inferior tribunals. In McCoy v. Cataldo, 148 A.2d 267, 270 (R.I. 1959), however, the court found that findings of fact unsupported by legal evidence are errors of law that are reviewable by the court. In Surmeian v. Simons, 107 A. 229, 231 (R.I. 1919), the court held that when there is conflicting evidence, the review of a decision of the trial court in upholding or setting aside a jury verdict is not a question of law. Whether the high court has jurisdiction over the matter is a question for the legislature, because the supreme court’s jurisdiction does not emanate directly from the constitution. In State v. Manocchio, 743 A.2d 555, 558 (R.I. 2000) (per curiam), the court found that lower courts have no inherent authority to expunge information contained in criminal records. In State v. DiStefano, 764 A.2d 1156, 1168 (R.I. 2000), the court held that lower courts lack the inherent authority to issue warrants, and that such authority must come from the legislature. Most of the other jurisprudence under this section deals with the Rhode Island Supreme Court’s power to issue writs, chiefly certiorari and, to a lesser extent, mandamus. In In re Little, 237 A.2d 325, 329 (R.I. 1968), the court stated that “[w]hen no other remedy is provided, we will charily employ such writs as will most efficiently aid us in the exercise of our revisory and appellate powers and in our efforts to promote justice and the fair administration of the law.” In Estate of Sherman v. Almeida, 610 A.2d 104, 106 (R.I. 1992) (per curiam), the court said: “The power to issue such writs is not confined by any narrow definition of a particular writ, and the Supreme Court has jurisdiction to adapt, to modify, or to frame new writs to meet the needs of the judicial system.” In Rogers v. Rogers, 201 A.2d 140, 142 (R.I. 1964), the court said that certiorari is the proper remedy for the court to review actions by lower courts that lack the proper jurisdiction or step beyond their jurisdiction in making decisions. The court went on to say: Ordinarily…we do not grant certiorari where the movant has another adequate remedy whereby his rights can be determined by this court, or where the petition seeks a review of an interlocutory decision, or where to grant certiorari will result in

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bringing a matter before us in piecemeal fashion. This does not mean, however, that we will not depart from what is customary and usual if there are unusual or exceptional circumstances.

In thus reviewing an order of a lower court mandating an equity accounting in a divorce proceeding, the high court found that the lower court did not have the power to make such an order. Id. at 144. In Schiavulli v. Sch. Cmte. of Town of North Providence, 334 A.2d 416, 417 (R.I. 1975), the court held that in a case where the legislature had provided for no means of review by the high court, certiorari is the correct means of obtaining review. In White v. White, 36 A.2d 661, 663 (R.I. 1944), the court said that in the absence of an applicable statute, whether or not the court would grant certiorari is completely within its discretion and not a matter of right. Certiorari differs in this regard from appeals, which are prescribed by statute and are a matter of right. New Harbor Village, LLC v. Town of New Shoreham Zoning Bd. of Review, 894 A.2d 901, 907 (R.I. 2006). In State v. Coleman, 190 A. 791, 794 (R.I. 1937), the court held that the government, as a party, can petition for certiorari, and that the public interest called for the court to issue certiorari in criminal cases to prevent a lower court from abusing or acting without jurisdiction. The court also held that it could issue a writ of error to review an inferior court’s decision to quash, dismiss, or sustain a demurrer to a complaint, indictment, or information. Id. at 793. In New Harbor, the court stated that while the legislature could define the parameters of the court’s appellate jurisdiction, the legislature cannot deprive the court of the power to review the exercise of judicial functions by lower courts. In Boucher v. Mailloux, 2 A.2d 63, 65 (R.I. 1938) (per curiam), the court weighed the merits of a petition for mandamus, ruling that it had to stay within the recognized principles of mandamus and any statutes passed in pursuance of such a writ. The court went on to say: “In order to prevail, the petitioners must show a clear legal right which can only be adequately and seasonably guaranteed to them by the issuance of the writ.” Id. at 66. In Carpenter v. Sprague, 119 A. 561, 563 (R.I. 1923), the court stated: “It appears to have been the intention of the Constitution and the statutes to confer upon this court complete original jurisdiction to issue any and all processes necessary for the full protection of public interests in the state.” The court further stated that it would not issue either mandamus or injunction on a matter within the discretion of the public officer over whom the petitioner seeks judicial control. Id. The court thereby issued a writ of injunction preventing the deputy secretary of state from delivering a judicial commission to a person who was not appointed properly. Id. at 564–65. In Rowe v. Border City Garnetting Co., 101 A. 223, 226 (R.I. 1917), however, the court said it would issue mandamus, even if it could have not done so at common law, if it appeared that the petitioner had no other adequate legal remedy. Other cases are also instructive. In In re Pawtucket & Central Falls Grade Crossing Comm’n., 89 A. 695, 703 (R.I. 1914), the court held that a statute mandating that the decree of the superior court was “final and binding” only meant final and binding in

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that court, because the lower court’s decision was still open to review in the supreme court. Later, in Public Utils. Comm’n. v. Rhode Island Co., 107 A. 871, 873 (R.I. 1919), the court held that a statute that allowed a single justice of the court, when the court is not in session, to order that a pending appeal from an order of the Public Utilities Commission not act as a stay did not violate the quorum requirement of this section but operated as a grant of jurisdiction from the legislature to an inferior tribunal. No other cases interpreting the quorum clause appear. Finally, in State v. Feng, 421 A.2d 1258, 1265 (R.I. 1980), the court held that its power to issue writs included the power to grant bail pending the review of a pending habeas corpus petition. SECTION 3. Advisory opinions by the supreme court. The judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly.

Article X, Section 3, of the original 1843 constitution read as follows: “The Judges of the Supreme Court shall in all trials, instruct the jury in the law. They shall also give their written opinion upon any question of law whenever requested by the Governor or by either house of the General Assembly.” In 1903 the people adopted Article of Amendment XII by a margin of 23,344 to 7,821. Section 2 of this amendment is the present Article X, Section 3. Section 3 of Article of Amendment XII stated that its Sections 1 and 2 were to replace Sections 2 and 3 of the original Article X, thus repealing that part of Article X, Section 3, requiring judges of the supreme court to instruct trial juries in the law. The supreme court discontinued its trial function when the superior court was established as the state’s major trial court in 1905. This commentary is designed to analyze the scope, status, and effect of advisory opinions rather than their history. Nonetheless, supreme court advisory opinions have exerted great influence on Rhode Island constitutional development. One need look no further than In re Constitutional Convention, 14 R.I. 649, an 1883 advisory opinion which held that neither the General Assembly nor the people possessed the power to call a constitutional convention. That ruling blunted the Equal Rights Movement of the 1880s and spawned the futile attempts in 1898, 1899, and 1912 to produce a constitution via legislative commission. The 1883 advisory prompted a rebuttal in 1935, In Re Opinion to the Governor, 55 R.I. 56, which paved the way for the failed constitutional convention referendum of 1936, the limited constitutional conventions of 1944, 1951, 1955, 1958, and 1973, and the open convention that met from 1964 to 1969. Finally, the 1999 advisory opinion to Governor Almond relative to the General Assembly’s power of appointment (In Re Advisory Opinion to the Governor [Rhode Island Ethics Commission—Separation of Powers], 732 A.2d 55 R.I. 1999) fueled the successful campaign to implement separation of powers. The 1935 and 1999 presentations to the supreme court by attorneys, professors, and reformers soliciting the opinion of the high court were the most impressive and momentous public constitutional debates of the twentieth century. The United States Supreme Court will not render advisory opinions. See generally, Mel A. Topf, The Jurisprudence of the Advisory Opinion Process in Rhode Island,

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2 Roger Williams U.L.Rev.; 1663; 1663 207, 210 (1997) (quoting a letter from the Supreme Court Justices to President Washington [August 8, 1793]). Rhode Island is one of 11 states whose supreme courts are authorized to render advisory opinions. Topf, supra at 209. In that respect Rhode Island joins Massachusetts, the first state that directed the justices of its highest court to issue advisory opinions, and two other New England states, Maine and New Hampshire. See Me. Const. Art. VI, § 3; Mass. Const. Pt. II, Ch. 3, Art. 2; N.H. Const. Pt. II, Art. 74; Topf, supra at 214. Over the years the legislature and the governor have asked the Rhode Island Supreme Court on numerous occasions to render advisory opinions. Such requests emanate from either the governor alone or from either house of the legislature. The court has frequently noted that advisory opinions are only the legal opinions of the individual justices and do not constitute decisions of the court itself. Thus, unlike opinions in actual litigated cases and controversies, they do not carry the force of law. DiPrete v. Vallone, 38 A.2d 769, 770 (R.I. 1944). “[I]n giving advisory opinions, the judges of the Supreme Court do not render a decision of the court, but only express their opinions as individual judges [and] for this reason such opinions have no binding force.” Opinion to the Governor, 284 A.2d 295 (R.I. 1971). “In performing this constitutional function the judges do not speak ex cathedra, from the chair of judgment, but only as consultors somewhat like the jurisconsultants under the Roman law.” Opinion to the Governor, 174 A.2d 553, 554 (R.I. 1961). “Because fact-finding power inheres in the Court as the judicial branch of the state government, judges acting in their individual capacity lack this power and therefore lack the power to issue advisory opinions which implicate factfinding.” In re Advisory Opinion to Governor (Rhode Island Ethics Commission— Separation of Powers), 732 A.2d 55, 72 (R.I. 1999). When the justices render advisory opinions, the rule that a statute must be proven unconstitutional beyond a reasonable doubt for the court to declare it such does not apply, because such opinions do not carry the force of law. 6 A.2d 147, 150 (R.I. 1939). Much of the jurisprudence in this area defines the circumstances under which the justices will issue advisory opinions and when they will decline to do so; and the justices have interpreted this section differently depending on whether the requests come from one or the other legislative chamber or from the governor. In In re Advisory Opinion to Governor, 483 A.2d 1078 (R.I. 1984), the justices stated that “[i]t is settled that this provision is mandatory in nature when the inquiry falls within the purview thereof. We have on numerous occasions, however, stated our reluctance to subvert the principle of the separation of powers by translating the obligation to give advisory opinions upon request into a grant of authority to give such opinions in situations in which the inquiry is not such as reasonably to be within the purview of this constitutional provision.” In In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318–19 (R.I. 1986), the justices stated: We are constitutionally obligated to give advisory opinions to either House of the General Assembly only when the questions propounded concern the constitutionality of pending legislation, and to the Governor only when the questions propounded

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concern the constitutionality of existing statutes which require implementation by the Chief Executive. However, neither of those coordinate authorities have standing to propound questions which are clearly the prerogative of the other.

In the opinion just mentioned, the justices stated that usually they will not respond to advisories requested by both the executive and the legislative branches at the same time, even though either house or the governor may be able to request and receive an answer on its own. Requests by either house or by the governor must pertain to the federal or state constitutional validity of a bill that is pending or a statute that was duly enacted. In re Advisory Opinion to House of Representatives, 272 A.2d 925, 925–926 (R.I. 1971). In that case the justices declined to give an opinion concerning a law that was pending, but not yet enacted, in the legislature, because the legislature adjourned before passage of the bill and before the justices had a chance to consider it. Id. at 926. There have been other occasions in which the justices have sought to narrowly define or limit the scope of this section. In In re Certain Members of House of Representatives, 191 A. 269, 272–73 (R.I. 1937), the justices declined to give an opinion requested in a letter signed by most members of the House of Representatives, because of the absence of a floor vote on whether to make such a request. In In re Opinion to House of Representatives, 433 A.2d 944 (R.I. 1981), the justices reiterated a policy of not issuing advisory opinions concerning questions presently involved in pending litigation. In Advisory Opinion to House of Representatives, 468 A.2d 258 (R.I. 1983), the justices rejected a request to answer a question upon request when the House of Representatives failed to direct the justices to any constitutional provision that was causing it concern. The justices went on to state that they would answer such a question if and when the House reframed its request in such a manner. Id. In In re Opinion to Senate, 137 A.2d 527, 529 (R.I. 1958), the justices turned down a request to answer a question regarding a proposed law whose ultimate mandate was ambiguous. The justices went on to state that they would answer such a question if and when the House reframed its request in such a manner as to eliminate the ambiguity. Id. In Opinion to House of Representatives, 216 A.2d 124, 125 (R.I. 1966), the justices stated that their policy of not rendering opinions requested by either legislative house concerning legislation already enacted applied equally to town or city ordinances already in existence. In other situations, however, the justices have agreed to waive these self-imposed limitations, depending upon the perceived importance of the question. In In re Advisory Opinion (Chief Justice), 507 A.2d at 1319–20 (R.I. 1986), the justices noted the impropriety of the governor asking whether the legislature possessed the power to remove the chief justice; nevertheless, they waived that asserted impropriety, even though the question had been improperly asked by both houses and by the governor, instead of by either house or by the governor. Id. In In re Opinion to the House of Representatives, 5 A.2d 455, 456 (R.I. 1939), the justices waived their policy of not answering questions involved in pending litigation, reasoning that because the House of Representatives was asking the question,

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most likely it had legislation that would be affected by the answer to the question, and thus they deemed it proper to answer it. In In re Advisory from the Governor, 633 A.2d 664, 667 (R.I. 1993), the justices waived the fact that there was no constitutional duty awaiting the governor that could possibly be affected by the answer to questions propounded to them; nevertheless, they decided to answer some questions regarding an ethics statute that was already enacted into law. The justices stated their belief that the public interest in having an answer justified the waiver. Id. Controversy continues about whether the justices should issue advisory opinions and, if so, whether they should continue to pick and choose the occasions and circumstances under which they will or will not respond to those questions. So long as the question posed to the justices is one “of law,” the text of the constitutional command is peremptory and admits of no qualifications, limits, or quibbles about whether or when the justices should respond. Ironically, the above-described limitations and restrictions that the justices have attempted to impose on their duty to render advisory opinions can be, and have been, ignored by the justices at will because these limitations enjoy no textual support whatsoever, and because they are all the product of nonbinding advisory opinions of the individual justices themselves rather than by the court decisions that would have the force of law and the effect of stare decisis. Moreover, it would be incorrect to characterize any of these limitations as “jurisdictional.” On the contrary, although the court itself has no jurisdiction whatsoever to issue advisory opinions, the individual justices clearly do whenever they are properly asked a question of law by either the governor or by either legislative house. All the other limitations, restrictions, and purported grounds for declining to issue such opinions are merely prudential. Thus, they can be and have been waived whenever the justices in their sole discretion choose to do so. SECTION 4. Judicial selection. The governor shall fill any vacancy of any justice of the Rhode Island Supreme Court by nominating, on the basis of merit, a person from a list submitted by an independent non-partisan judicial nominating commission, and by and with the advice and consent of the senate, and by and with the separate advice and consent of the house of representatives, shall appoint said person as a justice of the Rhode Island Supreme Court. The governor shall fill any vacancy of any judge of the Rhode Island Superior Court, Family Court, District Court, Workers’ Compensation Court, Administrative Adjudication Court, or any other state court which the general assembly may from time to time establish by nominating on the basis of merit, a person from a list submitted by the aforesaid judicial nominating commission, and by and with the advice and consent of the senate, shall appoint said person to the court where the vacancy occurs. The powers, duties, and composition of the judicial nominating commission shall be defined by statute.

Article X, Section 4, of the 1843 constitution read as follows: The judges of the Supreme Court shall be elected by the two Houses in grand committee. Each judge shall hold his office until his place be declared vacant by a

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resolution of the General Assembly to that effect; which resolution shall be voted for by a majority of all the members elected to the House in which it may originate, and be concurred in by the same majority of the other House. Such resolution shall not be entertained at any other than the annual session for the election of public officers; and in default of the passage thereof at said session, the judge shall hold his place as herein provided. But a judge of any court shall be removed from office, if, upon impeachment, he shall be found guilty of any official misdemeanor.

When the people adopted the 1986 constitution, most of the above-quoted language from the original constitution remained intact, except for the last sentence; if that sentence was kept, it may have clashed with Article XI, Section 3, because that newly enacted change contains a more detailed list of impeachable offenses. In 1994, however, the people adopted the present section and replaced Section 5 with a provision allowing justices of the supreme court to “hold office during good behavior.” Thus the legislature relinquished its previous exclusive power to elect supreme court justices and, even without a finding of guilt upon impeachment or other cause, to remove justices of the Rhode Island Supreme Court by resolution of a majority of the whole membership of each house—a power challenged by the justices in 1986 during the effort to remove Chief Justice Joseph Bevilacqua (see the commentary at Article XI). The removal resolution, prior to its elimination, could be entertained only at the outset of a new session of the General Assembly. The phrase “annual session” had become obsolete after 1911 because of the establishment of two-year terms for legislators. The 1994 amendment directs the assembly to create an independent, nonpartisan judicial nominating commission by statute. The commission’s duty is to submit, on the basis of merit, a list of judicial nominees to the governor when a vacancy occurs in any state court. The governor is directed to fill such vacancy from the list the commission presents to him. A supreme court nominee must be approved by the House and the senate acting separately. All other judicial nominations are subject to the advice and consent of the senate alone. It is somewhat unclear whether or not these changes similarly limit the power of the legislature to define the terms of office for inferior court judges and court clerks. In Gorham v. Robinson, 186 A. 832, 860 (R.I. 1936), the court ruled that although the state constitution barred the legislature from altering the tenure of Rhode Island Supreme Court justices, there was no such prohibition with respect to judges of the state’s inferior courts and court clerks. The provisions in the constitution that limit the power of the legislature to adjust the terms of Rhode Island Supreme Court justices still exist today. See R.I. Const. Art. X, §§ 5, 6; but no express bar exists on legislative control over the terms for the judges of Rhode Island’s inferior courts or for the clerks of Rhode Island courts. Indeed, Gorham, 186 A. at 845, relied on the fact that the judiciary was not then considered independent from the legislature. The court issued this ruling, however, long before the 2004 enactment of the separation of powers amendments, which, among other things, provided that the three branches of government were to be “separate and distinct” and eliminated Article VI, Section 10, upon which the Gorham decision was primarily based. Despite the

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new amendments, the legislature may attempt to exercise the power it has always exercised in fixing the terms of inferior court judges and court clerks, even though no express provision authorizing that authority exists. In In re Decision of Justices (Elections By Senate), 69 A. 555, 558 (R.I. 1908), a majority of the justices upheld the constitutionality of the laws vesting the appointment power in either the senate and the governor or just in the senate with respect to officers not mentioned in Section 4. In a companion decision, the justices vouched for the constitutionality of the Brayton Act, authorizing senate appointments of a host of other state officers. Election of Officers by the Senate, 28 R.I. 607, 611–12 (1908). Recently McKenna v. Williams, 874 A.2d 217, 236 (R.I. 2005), held that justices of the supreme court were exempt from a provision of the constitution that bars state officers from simultaneously holding office under one or more other governments. The court reasoned that because the 1994 amendment to this section caused Rhode Island Supreme Court justices to be “appointed” instead of being “elected” by the legislature, they were no longer subject to the dual office holding prohibition that applied solely to elected officials. The court ruled that appointed judges did not fall within the dual office holding ban because, as to these judges, there was no “election and engagement.” See R.I. Const. Art. III, § 6. SECTION 5. Tenure of supreme court justices. Justices of the supreme court shall hold office during good behavior.

Article X, Section 5, of the 1843 constitution read: In case of vacancy by death, resignation, removal from the State or from office, refusal or inability to serve, of any Judge of the Supreme Court, the office may be filled by the grand committee, until the next annual election, and the Judge then elected shall hold his office as before provided. In cases of impeachment, or temporary absence or inability, the Governor may appoint a person to discharge the duties of the office during the vacancy caused thereby. [Emphasis added.]

Section 5 remained largely unchanged when the state adopted its new constitution in 1986, although the obsolete word “annual” was removed. The section was annulled in 1994 and replaced by the present language, which mirrors that part of the federal Constitution that provides life tenure for justices of the United States Supreme Court. U.S. Const. Art. III, § 1. There was little case law addressing Section 5 prior to 1994, and the cases that do exist have no bearing on the present language. SECTION 6. Compensation for justices of the supreme court. The judges of the supreme court shall receive a compensation for their services, which shall not be diminished during their continuance in office.

This section remains unchanged from the text that originally appeared in the 1843 constitution. The only important case pertaining to Section 6 is Gorham v. Robinson, 186 A. 832, 860 (R.I. 1936). In the wake of the Bloodless Revolution of 1935, during which

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the newly elected Democratic-controlled legislature sacked the entire supreme court, the newly elected justices held that the constitution did not preclude the legislature from altering the compensation paid to the judges of inferior courts and to the clerks of those courts—even though Section 6 expressly bars any such alteration with respect to Rhode Island Supreme Court justices. To this day no ban exists on legislative alteration and control over the salaries paid to inferior court judges and to clerks. See the discussion of Gorham under Section 4. SECTION 7. Wardens and justices of the peace. The towns of New Shoreham and Jamestown may continue to elect their wardens as heretofore. The other towns and the city of Providence may elect such number of justices of the peace, resident therein, as they may deem proper. The jurisdiction of said justices and wardens shall be regulated by law. The justices shall be commissioned by the governor.

This section remains unchanged from the text that originally appeared in the 1843 constitution. Few cases address this section directly. In Marden v. Champlin, 22 A. 938, 939 (R.I. 1891), the court held that this section did not reserve only to wardens the calling of town meetings in the island towns of New Shoreham and Jamestown. The clerks of those towns could call town meetings also. In Whitman v. Mott, 336 A.2d 836, 837 (R.I. 1975), the court tried to place this section in context, noting that the 10-mile distance between New Shoreham (better known as Block Island) and the mainland made it difficult for New Shoreham residents to conduct judicial business in mainland courts. This remoteness was part of the motivation behind the enactment of this section. In Whitman, 336 A.2d at 839, the court considered a 1912 act that governed the election of wardens in New Shoreham and also called for the election of five members of the town council. A 1974 act directed that the town council comprise two elected wardens and three other duly elected members. The court held that the 1912 statute was not repealed by the later law, and it overturned the most recent election of the three nonwarden members because the two incumbent wardens were still required to be elected to the council along with the three nonwarden candidates. Id. at 840–41. The court reasoned that even though the three who won had garnered more votes than the others who were running for council, the outcome might have been different if all of the positions were subject to an at-large election.

Article XI Of Impeachments SECTION 1. Power of impeachment by the House. The house of representatives shall have the sole power of impeachment. A resolution of impeachment shall not be considered unless it is signed by one-quarter (1/4) of the members. For the purpose of impeachment, the general assembly and committees thereof shall have the power to compel the attendance of witnesses and production of documents. A vote of twothirds (2/3) of the members shall be required for an impeachment of the governor. Any officer impeached shall thereby be suspended from office until judgment in the case shall have been pronounced. SECTION 2. Impeachment trial by the senate. All impeachments shall be tried by the senate; and when sitting for that purpose, they shall be under oath or affirmation. No person shall be convicted except by vote of two-thirds of the members elected. When the governor is impeached, the chief or presiding justice of the supreme court, for the time being, shall preside, with a casting vote in all preliminary questions. SECTION 3. Governor, executive officers, judges liable to impeachment— Grounds for impeachment. The governor and all other executive and judicial officers shall be liable to impeachment. The governor or any other executive officer shall be removed from office if, upon impeachment, such officer shall be found incapacitated or guilty of the commission of a felony or crime of moral turpitude, misfeasance or malfeasance in office. Judges shall be removed if, upon impeachment, they shall be found incapacitated or guilty of the commission of a felony or crime of moral turpitude, misfeasance or malfeasance in office or violation of the canons of judicial ethics. Judgment of incapacity or guilt in a case of impeachment shall not extend further than to removal from office. The person convicted shall, nevertheless, be liable to indictment, trial and punishment, according to laws.

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This article originated in the 1843 constitution and was never invoked until January 1986. Ironically, at that point the 1986 Constitutional Convention was in the process of amending it by adding the first two sentences to Section 1 and a new Section 3. The changes originated as Resolution 86–00047A, which was considered by the Committee on Ethics. The impeachment resolution, part of Ballot Question 6, was approved by the voters on November 4, 1986, by a margin of 143,973 (53.3 percent) to 125,964 (46.7 percent). The Rhode Island impeachment process is similar to the federal model, but there are notable differences. The 1843 constitution required a two-thirds vote of the entire membership of the House to impeach (i.e., indict) the governor, while the U.S. Constitution (Article 1, Section 4) requires only a simple majority to indict the president. The present Rhode Island Constitution makes the process less difficult to initiate. It allows a resolution of impeachment when it is signed by onequarter of the members of the House. The 1986 Constitutional Convention, which first adopted the new process, had set the number at 25 in a 100-member body (which equaled one-quarter), but when downsizing was ratified in 1994, that fixed figure was changed to the present fraction. Downsizing also affected the vote on impeachment. As mentioned, the 1843 constitution required a two-thirds vote of the entire membership for an impeachment of the governor. In a 100-member House (its size in 1986) that margin equaled 67 votes—the specific number the 1986 convention inserted into Section 1 of Article XI. With downsizing to a 75-member House, the constitution was amended in 1994 to reinstate the two-thirds requirement of the original constitution. Section 1 was also amended in 1986 to give the House subpoena powers to conduct its impeachment investigation. This change resulted, in part, from the resistance of Chief Justice Joseph Bevilacqua to House efforts to gain documents relating to his activities when that body was conducting impeachment hearings against him. In March 1986, while the convention was in session, Bevilacqua’s supreme court colleagues ruled against him and declared that the House had the right to subpoena for its inquiry the records of a commission that had probed the chief justice’s connections with organized crime. Section 2, delineating the role of the senate as the trial court, was not altered in 1986. No person shall be convicted by that body except by a vote of two-thirds of the whole number of members elected (the federal Constitution requires only two-thirds of those members present). When the governor is tried, the chief justice of the supreme court presides as in the federal model. Section 3 was added to Article XI in 1986 to add standards for impeachment— something the federal Constitution sadly lacks. These standards (as well as the process) apply only to “the governor and all other executive and judicial officers.” The standards include being guilty of the commission of a felony or a crime of moral turpitude, incapacitation, and misfeasance or malfeasance in office. The final two sentences of Section 3 are based upon Article I, Section 3, of the U.S. Constitution—judgment “shall not extend further than to removal from office”—but the person convicted “shall, nevertheless, be liable to indictment, trial and punishment, according to laws.”

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No major officeholder has been impeached and removed according to the provisions of Article XI. The furthest the process has been taken occurred in January 1986, when the House passed a bipartisan resolution of impeachment against Chief Justice Joseph Bevilacqua, a former House Speaker. In the ensuing months it became obvious that Bevilaqua had, among other indiscretions, maintained his ties with organized crime stemming from his days as a criminal defense attorney. During the spectacular hearings the House was even so bold as to subpoena Raymond L. “Junior” Patriarca, the leader of the New England branch of the Mafia. As the evidence piled up and the pressure mounted, Bevilacqua stepped down from office in June 30, 1986, to halt the impeachment inquiry before a vote could be taken. The House embarked upon the impeachment route when a supreme court advisory opinion concluded that the federal Constitution’s ban on state bills of attainder (Article 1, Section 10) prevented Rhode Island Supreme Court justices from being removed by a joint resolution of the two legislative houses. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1327–28 (R.I. 1986). In addition, the January 1986 session was not the organizational session of the assembly—the only session at which a vacancy resolution could be entertained under the version of Article X, Section 4 that was in effect at that time. Ironically, the threat of impeachment also forced the resignation of Bevilacqua’s successor seven years later. On September 14, 1993, the House launched proceedings against Chief Justice Thomas F. Fay for allegedly using his powers to benefit himself, his business partners, and his political associates. On October 8 Fay resigned, thereby aborting the impeachment process and avoiding the long public controversy that had marked his predecessor’s demise. The other cases relating to impeachment are tame by comparison. In 1901 the removal of the chief of police by the aldermen of the city of Central Falls “was not obnoxious” to Section 3 of the impeachment process, since the article was not intended to cover officers elected by municipalities. Lowrey v. Mayor, Etc. of the City of Central Falls, 23 R.I. 354. In 1941 the supreme court ruled that members of local boards of canvassers are not executive officers subject to impeachment under Article XI. Molloy v. Collins, 66 R.I. 251, 18 A.2d 639. That case involved a statute authorizing the mayor to remove members of the board of canvassers for malfeasance. The court ruled that such a law did not violate the impeachment provisions of the constitution because members of the board of canvassers and registration were not “executive officers” within the meaning of the state’s basic law. In Gorham v. Robinson, 57 R.I. 1 (1936), a statute reducing the terms of justices and clerks of district courts from six years to three, thus vacating several positions of more than three years’ duration, was held to be a valid exercise of legislative power that did not violate the impeachment process. The fact that general officers had two-year terms and justices could be removed until recently by whim of the legislature perhaps accounts for the very infrequent use of the impeachment process in Rhode Island. Since 1994, recall (Article IV, Section 1) has been available as an alternative to impeachment.

Article XII Of Education SECTION 1. Duty of the General Assembly to promote public schools and public libraries and to secure opportunities for education. The diffusion of knowledge, as well as of virtue among the people, being essential to the preservation of their rights and liberties, it shall be the duty of the general assembly to promote public schools and public libraries, and to adopt all means which it may deem necessary and proper to secure to the people the advantages and opportunities of education and public library services. SECTION 2. Perpetual school fund. The money which now is or which may hereafter be appropriated by law for the establishment of a permanent fund for the support of public schools, shall be securely invested and remain a perpetual fund for that purpose. SECTION 3. Educational donations. All donations for the support of public schools, or for other purposes of education, which may be received by the general assembly, shall be applied according to the terms prescribed by the donors. SECTION 4. Implementation of this article—Diversion of funds prohibited. The general assembly shall make all necessary provisions by law for carrying this article into effect. It shall not divert said money or fund from the aforesaid uses, nor borrow, appropriate, or use the same, or any part thereof, for any other purpose, under any pretense whatsoever.

New language concerning libraries was added to the constitution by the 1986 Constitutional Convention’s Resolution 86–00098, sponsored by Professor Rodney Driver and six others. The resolution, Ballot Question 11, was approved by the voters

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by a margin of 182,931 (67.6 percent) to 87,494 (32.4 percent) on November 4, 1986. Otherwise the education article remains unchanged from its original form, except the word “They” in the second sentence of Section 4 has been replaced by “It.” Section 1 recognizes and guarantees the people’s right to an education in Rhode Island and has delegated the responsibility “to adopt all means … to secure to the people the advantages and opportunities of education” to the school committees of the various cities and towns. See Exeter-West Greenwich Regional School District v. Teachers’ Association, R.I., 489 A.2d 1010, 1016 (1985) and R.I.G.L. 16–2-2. The court has also ruled that the state exercises supreme responsibility in the area of education; National Education Association of Rhode Island v. Garrahy, 589F. Supp. 1374 (R.I. 1984). In fact, Charles Carroll, the leading historian of public education in Rhode Island, states that the constitution of 1843 “made the General Assembly a state school committee.” Except for the aforementioned inclusion of public libraries as agents in “the diffusion of knowledge,” Article XII has remained intact. To understand the intent of its framers in 1842, given the absence of recorded debate, it is helpful to compare it with the education provisions of the People’s Constitution (which was available to the Law and Order Convention as a model), because the drafter of those clauses, Thomas Wilson Dorr, was arguably Rhode Island’s leading educational reformer in 1842. From his entrance into public life in 1834 as a Whig representative from Providence until his death 20 years later at age 49, Dorr was influential in many major areas of Rhode Island life, and education was no exception. From 1834 until 1842 Dorr served as a member of the Providence School Committee, and from 1838 as its president. In 1834 he was elected to the General Assembly and served until 1837, when the Whig party disowned him for his sponsorship of a statute that closely regulated banks. In these capacities Dorr made a major contribution towards the development of free public education in Rhode Island. As a state legislator he earmarked the famous federal deposit and distribution of 1836 for the permanent school fund (referred to in Section 2). As the leader of the Providence School Committee, he played the principal role in implementing such modern improvements as the appointment of Nathan Bishop as Providence’s first superintendent of schools, the establishment of teacher certification and training programs, the creation of Rhode Island’s first public high school, and the construction of modern schools. Against this backdrop one can better understand the education provisions of the People’s Constitution and ponder the differences between them and those of the present constitution. First and foremost, the People’s Constitution made education a fundamental right. Dorr deemed education so essential that it was mandated not only in a separate article (XII), but also in the declaration of rights that decreed it “an imperative duty of the legislature to promote the establishment of free [not merely public] schools” (Article I, Section 5). The Law and Order Constitution contained no such provision. The financial provisions of the present Article XII are also illuminated by reference to Dorr’s efforts—and in a negative way. In 1836 Representative Dorr seized

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upon the opportunity to strike a major blow for Rhode Island education. President Andrew Jackson’s preference for limited government and reduced federal expenditures produced a surplus of revenue in the national treasury. The national debt was liquidated, and Congress, urged by Henry Clay, voted to distribute the treasury surplus to the several states in loans as part of the federal Deposit Act of 1836. Dorr immediately urged that the state invest this “distribution money” and apply the interest received thereon to the support of public education. He presented this argument in Providence’s Morning Courier on October 25, 1836, and introduced a resolution at the October session of the General Assembly providing that income from this federal deposit fund be applied exclusively to the support of public schools. His resolution passed. Rhode Island’s share of the federal distribution money was $382,335. The income from the investment of this sum produced an annual revenue ranging from $16,307 to $19,296 in the years from 1837 to 1842. This bonanza allowed an increase in the state appropriation to the towns for education from the $10,000per-year level established in 1828, when the legislature also created a permanent school fund with a $5,000 appropriation, to a figure of $25,000, set by statute in 1839. Not only Providence but every town benefited by this two-and-a-half-fold increase, the result of an educational-aid formula for which Dorr was the prime sponsor. Finally, in 1842, Dorr embarked upon an enterprise with which we are all familiar. Because of the refusal of the political establishment to change the state’s antiquated basic law, he and his colleagues bypassed the General Assembly, drafted a People’s Constitution, and attempted, eventually by force of arms, to put that constitution into effect. The People’s Constitution, of which Dorr was the principal draftsman, was more forward-looking in its education clauses than the constitution of 1843, which eventually became the basic law of the state. Dorr’s document contained a declaration in support of free public schools, that is, schools that were fully supported by public funds, with no assessments for books, ink, fuel, maintenance, or other costs that might burden the poorer student. Such assessments were then common in Rhode Island. In advocating completely free schools, Dorr was in advance of another educational pioneer—a contemporary Connecticut lawyer, state legislator, and educational enthusiast like Dorr himself, whose name was Henry Barnard. In addition, Dorr’s constitution attempted to conserve for the exclusive purpose of education not only the permanent school fund established by the School Act of 1828—a fund that increased as a result of Dorr’s efforts in 1839—but also all other moneys appropriated by the authority of the state for public education. This language aimed at the protection of the federal deposit fund, which had been raided for noneducational purposes several times since 1836. Ironically, over $103,000 was withdrawn from the deposit fund in 1842–1843 to suppress Dorr’s movement for constitutional reform. The money he sought to conserve for education was used against him and his cause. Dorr was vanquished, the People’s Constitution was abandoned, and raids on the deposit fund continued, since there was no prohibition against them in the Law and Order Constitution

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that ultimately went into effect in the aftermath of the Dorr Rebellion. Nor did that constitution provide for the establishment of free public schools, which were a generation away. The new document did, however, pave the way for the eventual establishment of a state-regulated system of public schools in place of the town system that had been established by the School Law of 1828. The first step in the direction of effective state regulation came in 1843 with the retention of Henry Barnard as state school agent. He immediately began the now famous school survey of 1843–1845, which led to the notable Rhode Island School Law of 1845 and to Barnard’s appointment as Rhode Island’s first commissioner of public schools. At the time of Barnard’s selection, Dorr was serving a life sentence in state prison for treason against the state. See Conley, “Thomas Dorr: Neglected Educational Reformer,” in Rhode Island in Rhetoric and Reflection (East Providence, 2002), pp. 116–27; and Charles Carroll, Public Education in Rhode Island (Providence, 1918), pp. 84–128. Carroll’s “state school committee” quote is at p. 128. In the landmark decision City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995), Justice Victoria Lederberg, holder of both a law degree and a doctorate in education, used this historical analysis to overturn a superior court ruling that the Rhode Island school finance system violated Article XII and the equal protection clause of the Rhode Island Constitution (Article 1, Section 2). Looking to “the history of the times” and examining “the state of affairs as they existed when the constitution was framed and adopted,” Lederberg concluded that the framers of the 1843 constitution (unlike Dorr) did not make education a fundamental right, nor did they have “an intent to create a system that required equitable school funding or that mandated public schools [to be established] in every town of the state.” It was clear, said the court, that “disparities in funding per pupil were simply not a concern to those who drafted the education provisions of the state’s basic law.” Id. 48–49. Lederberg observed that the 1986 Constitutional Convention considered such mandates and rejected them. The court also deferred to the United States Supreme Court’s decision in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), holding that a right to education is neither explicitly or implicitly afforded protection under the federal Constitution. In an exercise of judicial restraint, the court acknowledged that Article XII had delegated to the legislature “the constitutional authority to assign resources to education and to competing state needs” and such discretion was “unreviewable.” The City of Pawtucket court held that the Rhode Island Constitution confers no fundamental right to receive an education, nor does it guarantee an “equal, adequate, and meaningful education.” The factor of religion has impacted public education at various intervals over the past century and a half. The earliest incident—although not perceived then as a constitutional issue—involved Bible reading in the public schools. This controversy was especially volatile during the 1850s, when a wave of nativism, called the KnowNothing Movement, swept the nation. Anti-Catholicism, a salient aspect of this xenophobia, was very strong in Rhode Island, where education became one area of contention.

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Questions of Bible reading in the public schools and government aid to Catholic schools first became burning issues when confrontational Archbishop John Hughes of New York demanded separate Bibles for Catholic students in public schools and financial aid to church institutions. The spin-off from this New York affair was felt in Rhode Island in 1853, when John Coyle, who taught at St. Patrick’s parochial school in Providence, advanced these demands locally with the support of Bishop Bernard O’Reilly. The question of financial aid, of course, received no hearing, but Elisha R. Potter Jr., state commissioner of education, and the influential Providence Journal agreed that it would be inconsistent with the state’s religious heritage not to allow Catholic school children the use of their own version of the scriptures. Potter, a future associate justice of the supreme court, contended that the reading of the Bible or the conduct of other devotional exercises at the opening or closing of schools is neither forbidden nor commanded by law, but rests with the teacher, who should respect his own conscience and the consciences of his pupils and their parents. This tolerant (and now archaic) view was not held by many, and the majority continued to demand that the Protestant Bible be exclusively retained. Opponents of Catholic education also used the truancy device to combat the growth and influence of parochial schools. In 1853 two bills dealing with truancy were introduced into the General Assembly. The proposed legislation empowered towns and cities to provide by ordinance for the punishment of truant children between the ages of 5 and 15. Under the terms of these measures, successfully opposed by Commissioner Potter, students not attending public schools would be regarded as truants and subjected to disciplinary action. Both bills passed the House but died in the senate. See Patrick T. Conley and Matthew J. Smith, Catholicism in Rhode Island: The Formative Era (Providence, 1976) pp. 76–83. Members of the Jamestown School Committee v. Schmidt, 122 R.I. 185 (1979), is a significant Article XII case with sectarian overtones. It involved a statute providing for busing pupils to nonpublic schools. The court held that such a program did not violate the constitutional provision imposing upon the General Assembly “the duty to promote public schools” and “to adopt all means deemed necessary to secure to the people the advantages and opportunities of education” (Section 1), because this language referred to two separate duties. Nor did the statute violate Section 2, which declared that funds belonging to the permanent school fund must be used solely for the support of public schools, since the questioned law did not mandate utilization of the permanent school fund in order to bus private school children. If it did, however, the statute would be in violation of Section 2, said the court. In effect, the court adopted the “child-benefit” theory of Everson v. Board of Education, 330 U.S. 1 (1947) to buttress its ruling. A learned concurring opinion by Justice Thomas Kelleher, relied upon by Justice Lederberg in Sundlun, examined the origins and status of the permanent school fund. Another, and more direct, ruling involving aid to sectarian education stemmed from an attempt by the General Assembly to supplement the salaries of underpaid teachers in private schools. In DiCenso v. Robinson, 403 U.S. 602 (1971), the U.S. Supreme Court invoked the Establishment Clause of the federal Constitution to

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nullify the effort, stating that the Salary Supplement Act of 1969 fostered “an excessive governmental entanglement with religion” and provided “substantial support for a religious enterprise.” This Rhode Island case has been obscured, because it was joined for decision with the Pennsylvania case of Lemon v. Kurtzman, 403 U.S. 602 (1971), which involved a law authorizing that state’s superintendent of public instruction to reimburse nonpublic schools for teachers’ salaries, textbooks, and instructional materials in secular subjects. Both cases, however, are equally significant as a statement of the Supreme Court’s view of impermissible “entanglement.” In fact, the three-prong test for such entanglement and other rulings usually associated with Lemon actually were part of the DiCenso decision. Dr. William P. Robinson, Jr., was the defendant in the DiCenso case in his capacity as state commissioner of education. His son, William P. Robinson III, is presently an associate justice of the Rhode Island Supreme Court. See Patrick T. Conley and Fernando S. Cunha, “State Aid to Rhode Island’s Private Schools: A Case Study of DiCenso v. Robinson,” The Catholic Lawyer 22 (Autumn 1976): 329–43. A final education case related tangentially to religious belief was rendered in the federal District Court for the District of Rhode Island by Senior District Judge Raymond J. Pettine. He ruled that state statutes restricting the availability of insurance coverage to municipal employees, including teachers, for the performance of induced abortions were unconstitutional because they ran contrary to the precepts of Roe v. Wade, 410 U.S. 113 (1973). See National Education Association of Rhode Island v. Garrahy, 598 F.Supp. 1374 (D.R.I. 1984), aff ’d. 779 F.2d 790 (1st Cir. 1986) (per curiam). Thus, this case illustrates the point that the legislature’s plenary power with respect to education is tempered by the requirement that any legislation must comply with the federal Constitution, as construed by the United States Supreme Court. This article and section expressly reserves to the legislature sole responsibility in the field of education. Chang v. University of Rhode Island, 118 R.I. 631, 375 A.2d 925 (1977). Thus, in Chang, the court held that the governor lacked authority to issue an executive order purporting to give the Commission for Human Rights jurisdiction over the employment practices of the University of Rhode Island, absent any express legislative warrant to do so. Nevertheless, school teachers employed by a municipality are municipal employees who are subject to municipal charter provisions barring them from holding elected office. Cummings v. Godin, 119 R.I. 325, 377, A.2d 1071 (1977). For an excellent exposition of the history of Article XII, consult the concurring opinion of Mr. Justice Kelleher in the case of Members of the Jamestown School Committee v. Schmidt, 122 R.I. 185, 405 A.2d 16 (1979), which relies upon Charles Carroll’s learned 1918 monograph Public Education in Rhode Island.

Article XIII Home Rule for Cities and Towns SECTION 1. Right of self-government in local matters. 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. SECTION 2. Local power to adopt home rule charter in conformity with reserved powers of the General Assembly. 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. SECTION 3. Every city and town shall have a legislative body. Notwithstanding anything contained in this article, every city and town shall have a legislative body composed of one or two branches elected by vote of its qualified electors. SECTION 4. General laws apply to all cities and towns but shall not affect the form of government—Special acts need approval of local electors. The general assembly shall have the power to act in relation to the property, aff airs and government of any city or town by general laws which shall apply alike to all cities or 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

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town qualified to vote upon a proposition to impose a tax or for the expenditure of money. SECTION 5. Local taxing and borrowing power only as authorized by the General Assembly. 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. SECTION 6. Procedures for the adoption of a home rule charter. Every city and town shall have the power to adopt a charter in the following manner: Whenever a petition for the adoption of a charter signed by fifteen percent of the qualified electors of a city, or in a town by fifteen percent, but not less than one hundred in number, of those persons qualified to vote on any proposition to impose a tax or for the expenditure of money shall be filed with the legislative body of any city or town the same shall be referred forthwith to the canvassing authority which shall within ten days after its receipt determine the sufficiency thereof and certify the results to the legislative body of said city or town. Within sixty days thereafter the legislative body of a city shall submit to its qualified electors and the legislative body of a town shall submit to the electors of said town qualified to vote upon a proposition to impose a tax or for the expenditure of money the following question: “Shall a commission be appointed to frame a charter?” and the legislative body of any city or town shall provide by ordinance or resolution a method for the nomination and election of a charter commission to frame a charter consisting in a city of nine qualified electors and in a town of nine electors of said town qualified to vote upon a proposition to impose a tax or for the expenditure of money who shall be elected at large without party or political designation and who shall be listed alphabetically on the ballot used for said election. Such ordinance or resolution shall provide for the submission of the question and the election of the charter commission at the same time. Upon approval of the question submitted the nine candidates who individually receive the greater number of votes shall be declared elected and shall constitute the charter commission. SECTION 7. Vote on charter adoption. 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 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. SECTION 8. Amendments to a home rule charter. 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.

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SECTION 9. Filing of charter petition with the local legislative body. Whenever the legislative body of any city or town consists of more than one branch, a petition for the adoption of a charter as provided in this article may be filed with either branch of said legislative body. SECTION 10. Certification of charter adoption. Duplicate certificates shall be made setting forth the charter adopted and any amendments approved and the same shall be signed by a majority of the canvassing authority; one of such certified copies shall be deposited in the office of the secretary of state and the other after having been recorded in the records of the city or town shall be deposited among the archives of the said city or town and all courts shall take judicial notice thereof. SECTION 11. No diminution of the power of the judiciary. The judicial powers of the state shall not be diminished by the provisions of this article.

Lord James Bryce, in his late nineteenth-century analysis of America’s political institutions, called Rhode Island the American state “which has furnished the most abundant analogies to the Greek republics of antiquity.” Bryce thought Rhode Island merited this lavish praise because of the origins and nature of her institutions of local government. The four original Rhode Island towns—Providence, Portsmouth, Newport, and Warwick—existed as sovereign political entities prior to the formation of the colony of Rhode Island, and in fact the colony was the offspring of their voluntary union. This union was authorized by the parliamentary patent granted Roger Williams of Providence in March 1643/44, initiated by the formation of a federal commonwealth in 1647, and ratified by the issuance of the state’s first constitution, the Royal Charter of 1663. The charter made no explicit change in the relations of the towns to the colony, and each new town formed during the colonial period was admitted on an equal footing with the original four, all with powers of selfgovernment. Rhode Island formed a closer analogy to the federal-state system established in 1787 than did any other state. According to historian Bruce Daniels’s Dissent and Conformity on Narragansett Bay: The Colonial Rhode Island Town (1983), “Rhode Island moved from a formal federalism prior to the Charter of 1663, which had guaranteed powers and duties to both the colony and the towns, to an informal federalism after 1663 when the colony by custom, rather than law, allotted some powers and duties to the towns.” However, concludes Daniels, “the towns did not diminish their propensity for defying colony interference or laws they regarded as unwarranted. Nor did they diminish their belief that they alone should order their local affairs”( pp. 13–16). The point of these comments is to indicate that the “creature doctrine” of state-local relationship was contradicted in early Rhode Island by law and experience. Little by little, however, the power of the colony, and then the state, increased, often with a corresponding diminution of local autonomy. At first the state government was used only to meet common problems and perform general functions.

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Then, during the nineteenth century, as local self-sufficiency waned, intrastate commerce developed, and transportation improved, the state assumed more of the powers of local government. There were numerous reasons for Rhode Island’s abandonment of local selfgovernment, including a belief in the fiscal irresponsibility of her municipalities, the partisan maneuvers of the dominant political party to insure its continued ascendancy, the aforementioned transportation and communication revolution, and the example of her sister states. Sporadic home rule movements, pioneered by attorney Amasa Eaton, appeared on the Rhode Island political scene to counteract this trend from the 1890s onward. During the twentieth century the courts were the battleground in the home rule crusade. In 1932 the devotees of local autonomy met a seeming Waterloo when the state supreme court held in Providence v. Moulton, 52 R.I. 236, that there was no inherent right to local self-government in Rhode Island and that the cities and towns were purely creatures of the legislature. Home rule advocates persisted in their efforts and eventually succeeded in having the question of local self-government included on the eight-point agenda of the Limited Constitutional Convention held in June 1951. Under the leadership of Governor Dennis J. Roberts, the 1951 convention overwhelmingly approved a home rule proposal (Article of Amendment XXVIII), which was subsequently ratified by the electorate on June 28, 1951 by a margin of 48,639 to 7,999. This provision gave every city and town the power to adopt and amend its charter and to enact and amend local laws relating to its “property, affairs and government” not inconsistent with the state constitution or the laws enacted by the General Assembly in accordance with the powers reserved to that body. No language in this article has been altered since the date of adoption. This Home Rule Amendment promised to be a significant advance for cities and towns over the status to which they had been relegated by the Moulton decision. A conservative state supreme court, however, by a series of advisory opinions and decisions, consistently curtailed and narrowed the effect and scope of the amendment during the 1950s and early 1960s. When the subject of home rule was considered by the Commission on Revision of the Rhode Island Constitution (the Edwards Commission) during 1961–1962, that body prepared an updated and integrated basic law but failed to suggest constitutional remedies to counteract the judicial restraints that had been placed on local self-government. The commission rearranged the 1951 amendment but made few substantive innovations. The vulnerable “property, affairs and government” phraseology was retained verbatim in the commission draft, and it was this draft that served as the guide and sourcebook for the delegates to the open constitutional convention that convened in December 1964. The Committee on Local Government, chaired by former Woonsocket mayor Kevin K. Coleman, was one of the convention’s hardest-working groups. After 36 meetings, five draft articles, and consultations with experts from the National Municipal League and elsewhere, Coleman’s committee crafted an article intending to strengthen the powers of local government by embracing the residual powers

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concept advocated by Dean Jefferson Fordham, a nationally recognized authority on home rule. Under this approach, which the committee designated Section 1, cities and towns with home rule charters could exercise all powers not specifically denied to them by a general law that was applicable to all municipalities. According to home rule experts, Section 1 of that proposed local government article giveth and Section 2 taketh away. The broad grant of power provided to cities and towns under the Fordham or residual powers approach in Section 1 was diluted in Section 2, which allowed borrowing by cities and towns to be authorized by special legislation. One authority observed that the dichotomy between Sections 1 and 2 was such that the restrictive borrowing provisions of the latter “may well wreck any real semblance of home rule altogether,” for “it vitiates everything in the section that precedes it.” Home rule advocates feared that giving the General Assembly power to authorize local borrowing by special legislation could lead the legislature to feel no compunction about providing cities and towns with the necessary broad general authority to incur indebtedness, but would induce it to hold the purse strings tightly and require cities and towns to seek special legislation in virtually every important instance. All hopes and fears were quieted when the entire constitution was rejected by the voters in April 1968. See Patrick T. Conley and Jay S. Goodman, “A Clear Dichotomy,” National Civic Review 56 (Sept. 1967): 447–52, 469. The 1973 Constitutional Convention was neither authorized nor inclined to consider the question of home rule, but that topic was a major item of concern for the 1986 Constitutional Convention. That body’s Committee on Local Government, diligently chaired by delegate Kenneth F. McGunagle, Jr., of Cranston, entertained 37 resolutions, held 20 meetings, conducted 9 public hearings, and produced a draft that increased the powers of those cities and towns with home rule charters. It allowed them to tax and borrow, subject to an override by a three-fifths vote of the General Assembly; to have greater control over local business, municipal planning, and the environment; and to be reimbursed for certain state-mandated programs. These and other changes were embodied in Proposal 13, which the voters rejected in November 1986 by a margin of 182,002 opposed versus only 84,757 in favor. As of 2006, 7 of the state’s 8 cities (Warwick excepted) and 28 of the state’s 31 towns (North Providence, Richmond, and Scituate excepted) had adopted home rule charters. These municipalities operate under four different forms of government: (1) mayor-council, (2) council-manager, (3) administrator-council, and (4) town council-town meeting. The most significant difference among these forms of government is the manner by which the chief executive is selected. The chief executive is either appointed by the city or town council or elected by the people. Under the town council-town meeting form, there is no full-time chief executive. Beyond this basic distinction, differences in the municipal charters are not necessarily related to the particular form of government. With the failure of two diligent attempts to alter Article XIII, that provision remains the same as when it was ratified in 1951. Shortly after its effective date the

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justices of the Rhode Island Supreme Court issued an advisory opinion, written by Chief Justice Edmund W. Flynn, that has exerted an authoritative and enduring effect on the Home Rule Amendment (Opinion to the House of Representatives, 79 R.I. 277, 87A.2d 693 [R.I. 1952]). At the outset the justices affirmed the historically debatable creature doctrine by declaring that 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, such city or town retains the same status relative to the General Assembly as that which it had prior to the ratification of the Home Rule Amendment. Being a creature of the General Assembly under its act of incorporation, reasoned the justices, a city or town would continue to derive its authority from the legislature and be subject to statutes that the legislature enacted. The justices further stated that where the qualified electors of a city or town have duly adopted a home rule charter, the status of that city or town relative to the General Assembly becomes changed, and the assembly no longer has right to legislate, even by general act, if the proposed law would change the form of government created by the home rule charter; but the General Assembly retains its exclusive power to legislate by general or special acts in granting to a city or town the authority to levy, assess, and collect taxes or to borrow money When the General Assembly passes a special act, however, pertaining to a particular municipality, the act must be duly approved by a majority of the qualified electors of that city or town voting at a general or special election to be effective. No referendum is required for special acts relating to non-home-rule municipalities. Id. The justices also went on to comment upon a range of actions that they believed were still beyond the power of home rule municipalities. Thus, said the justices, even after the adoption of a home rule charter, the General Assembly may by general act continue to fix the beginning and ending of a fiscal year for all cities and towns, or it may do so by special act for a particular city or town provided such an act is properly submitted to, and approved by, the qualified electors of the city or town voting at a general or special election. In addition, either by a general act or by a special act directed to a particular city or town, but subject to approval by a majority of the qualified electors of the city or town, the General Assembly may validly legislate concerning the tenure of office of employees exercising only local functions. Id. The General Assembly also retains the same exclusive power it always had to legislate with respect to the use of parking-meter devices in any city or town. And even after the adoption of a home rule charter, the assembly still may legislate validly concerning the regulation of parking meters on a highway that is maintained as part of the state highway system. Where a purely local highway is concerned, the General Assembly may legislate validly either by general act applicable to all cities and towns or by a special act that cannot become effective in the city or town involved until it has been approved by majority of the municipality’s qualified electors voting thereon. Finally, said the justices, the General Assembly still may exercise its legislative power to fix the time when town meetings are held, either by general act, because

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this regulation would not affect the form of government of any city or town, or by special act duly approved by a majority of the qualifi ed electors of the town affected. Id. In 1992 the court clarified the issue of general versus special acts relating to cities and towns. According to the justices, the parameters of “local” and “general” legislation may be more clearly discerned with the aid of three variables. 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 dominion 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. Town of E. Greenwich v. O’Neil, 617 A.2d 104 (R.I. 1992). See also Munroe v. Town of East Greenwich, 733 A.2d 703 (R.I. 1999). In the 1992 ruling which related to control over power lines, the court considered the need for uniformity in the area of public utility regulatory policy and the extraterritorial effect of a municipal ordinance regulating the installation of power lines. Such analysis indicated that the town’s ordinance was impermissibly one of statewide character and constituted an action ultra vires of the authority delegated by the town’s home rule charter. Pursuant to these general principles of home rule (or lack thereof), a line of cases has developed in this area, with the rulings in most of them resulting from vain attempts to assert the validity of local government actions. For example, provisions in a home rule charter prescribing nonpartisan nominations and elections, fixing the time for elections, and specifying the number of signatures required on nomination papers were invalid as an invasion of the full power over elections vested in the General Assembly under Article of Amendment XXIX, Section 7. Opinion to House of Representatives, 80 R.I. 288, 96 A.2d 627 (1953); State ex rel. Flynn v. McCaughey, 81 R.I. 143, 99 A.2d 482 (1953). Therefore, since the General Assembly under Section 7 of Article of Amendment XXIX is vested with the full power over the conduct of elections, that body alone must in its enactment fix the date for the holding of municipal elections. This power may not be delegated to cities and towns that have adopted a home rule charter pursuant to the provisions of Article of Amendment XXVIII. Opinion to the Senate, 81 R.I. 258, 101 A.2d 879 (R.I. 1954). The justices further opined to the senate that a statute purporting to delegate to municipalities the authority to prescribe nonpartisan elections for those municipalities, to fix the time of elections, to fix requirements for candidates, or to delegate any other power essential to the conduct and control of municipal elections would constitute an unconstitutional delegation of power vested in the General Assembly. Id. But, a statute authorizing municipalities to choose one of three municipal election codes prescribed by the assembly, provided that such codes set forth all the provisions necessary to hold the elections and set forth the time and type of election, would not be an unconstitutional delegation of power. Id. The justices’ constriction of the power of home rule communities continued when Justice William E. Powers and his colleagues stated that “we are of the

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opinion that a legislative grant of municipal authority to exercise a portion of the state’s sovereignty should be strictly construed. By providing that the right of a municipal tax collector to sue for the collection of taxes … was required to be brought within six years and not thereafter, the General Assembly expressly intended that the remedy should be subject to the limitation prescribed in the state statute.” See Pendleton v. Briggs, 37 R.I. 352, 92 A. 1024; Ramsden v. Ford, 88 R.I. 144, 143 A.2d 697 (R.I. 1958). In a very significant case, the court held that the power to regulate occupations and businesses by licensing provisions and by the imposition of a licensing fee is an attribute of sovereignty, not an incident of municipal administration, and may not be exercised by municipalities, except when it is lawfully delegated to them in particular instances expressly or by necessary implication. Newport Amusement Co. v. Maher, 92 R.I. 51, 166 A.2d 216 (1960). The Home Rule Amendment does not, either expressly or by necessary implication, vest municipalities with such power. Id. It clearly states that the intent thereof is to grant the right of selfgovernment in local matters only, and the power to license is definitely not a local matter. Id. In addition, a school committee’s exercise of its powers cannot be regulated by local legislation, whether by ordinance or charter (Royal v. Barry, 91 R.I. 24, 160 A.2d 572 [1960]); and no provision affecting education contained within a home rule charter can effectively regulate the conduct of school committees as agents of the state unless expressly validated by an act of the General Assembly. Coventry Sch. Comm. v. Richtarik, 122 R.I. 707, 411 A.2d 912 (1980). The court has also held that the sovereignty of the state in the exercise of the police power was not transferred to home rule cities or towns. State v. Krzak, 97 R.I. 156, 196 A.2d 417 (1964). Therefore, a home rule charter that permits the imposition of greater penalties than those provided by law was an unconstitutional and invalid attempt to diminish the legislative power of the General Assembly. Id. Neither does the Home Rule Amendment confer on cities and towns the power to grant exclusive franchises for community antenna television service, because this action constitutes the licensing of a business and the exercise of a power that has been reserved to the state. Nugent ex rel. Hurd v. City of E. Providence, 103 R.I. 518, 238 A.2d 758 (1968). East Providence’s home rule charter gave a discharged employee a right of appeal to a court of competent jurisdiction for a trial de novo. In rejecting this procedure, the supreme court ruled that the legislative power in home rule charters does not allow a municipality the right to prescribe the jurisdiction of the courts. That right is vested solely in the General Assembly. Pitassi v. Personnel Hearing Bd., 116 R.I. 116, 352 A.2d 658 (1976). The thorniest personnel issues involving the Home Rule Article have related to the safety services. In the late 1970s the court’s rulings in several key cases went against local control. The Fire Fighters’ Act, making promotion a negotiable issue in collective bargaining, is general in nature, said the justices; it applies equally to all cities and towns and supersedes a controverting home rule charter provision. City of Cranston v. Hall, 116 R.I. 183, 354 A.2d 415 (1976).

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Next, the court ruled upon the applicability of the Fire Fighters’ Arbitration Act and the Policemen’s Arbitration Act as these state statutes impacted local government. Nothing in these acts, said the court, prevents an arbitration board from amending the pension plans of policemen and firemen, for even though such power is vested in a city council by a city charter, the board acts pursuant to state legislation and the General Assembly has the overriding power to legislate even on local matters, so long as it does so by a general act affecting all cities and towns alike, without affecting the form of local government. City of E. Providence v. Local 850, Int’l Ass’n of Firefighters, 117 R.I. 329, 366 A.2d 1151 (1976). See also Town of Lincoln v. Lincoln Lodge, 22, 660 A.2d 710 (R.I. 1995). Finally, in a matter involving the city of Pawtucket, the court decided that the Police Officers’ Bill of Rights (R.I.G.L. §§ 42–28.6–1—42–28.6–15) does not violate the Home Rule Article, since police officers, even though appointed by a particular city or town, act for all the inhabitants of the state and not only for the residents of the appointing community. The statute before the court applied to all cities and towns, observed the justices, and did not affect their form of government. Questions about the wisdom of the enactment may arise, but these must be addressed to the legislature and not to the courts. Lynch v. King, 120 R.I. 868, 391 A.2d 117 (1978). Local governments have also been restrained from improper delegations of power. For example, the section of the Cranston municipal code that authorized the chief of police to designate the classes of persons entitled to park in a city lot was an unconstitutional delegation of legislative power, because it provided no standards, criteria, or limitations to govern the chief ’s determinations. DePetrillo v. Coffey, 118 R.I. 519, 376 A.2d 317 (1977). State law has also checked local initiatives in cases involving condemnation, budget regulation, and environmental controls. Where the condemnation provisions of a city charter differed from those set forth in R.I.G.L., Title 24, Chapter 1, the state provisions governed the city’s condemnation actions. O’Neill v. City of E. Providence, 480 A.2d 1375 (R.I. 1984). A state law, R.I.G.L. 45–9-3, which provides uniform regulation in each city or town whose financial instability produces a lowered bond rating that threatens imminent default on debt obligations, does not violate Article XIII, because it applies generally to all cities and towns whose budgetary problems have statewide impact. Marran v. Baird, 635 A.2d 1174 (R.I. 1994). Municipalities have no inherent power to legislate on matters of statewide concern or upon matters specifically reserved to the General Assembly, such as matters relating to taxation and borrowing money. Newport Ct. Club Assocs. v. Town Council of the Town of Middletown, 716 A.2d 787 (R.I. 1998). And because remediating pollution of Narragansett Bay was a matter of statewide concern, legislation that conferred powers on the Narragansett Bay Commission to abate combined sewer overflows from 10 communities into Narragansett Bay did not violate the Home Rule Article by infringing on a municipality’s power to control its local sewage system. Town of Lincoln v. City of Pawtucket, 745 A.2d 139 (R.I. 2000). On occasion towns have violated Article XIII directly. A referendum on an act relating to payment of legal fees by the town of Westerly held as part of a primary

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election was unconstitutional, because the Home Rule Article provides for such approval only at a general or special election. Miller v. State, 451 A.2d 280 (1982). In a few instances local actions have been upheld—but only when they were purely local. Under statutes delegating to city and town councils the power to elect probate judges and making provision, “unless otherwise provided,” for cases of absent or incapacitated judges, the quoted phrase contemplated action by a city or town council and was not a reservation of power to the legislature. Ranalli v. Edwards, 98 R.I. 394, 202 A.2d 516 (R.I. 1964). The court also held that Newport could remove its city manager under the provisions of its city charter, even though the removal proceedings were “quasi-judicial,” and even if the charter did not expressly require that the firing be for cause shown. As to his removal, said the justices, “the provisions of the home rule charter are controlling.” Nugent ex rel. Beck v. Leys, 88 R.I. 446, 149 A.2d 716 (1959). Also, Section 2 of the Home Rule Article, without additional statutory authority, is sufficiently specific to legitimize a provision of the Cranston charter distinguishing between probationary and nonprobationary police officers. Harrington v. Taft, 339 F. Supp. 670 (D.R.I. 1972). Regulation of the city of Providence’s employee pension plan is not a matter of statewide concern in a situation where the plan directly affects only residents of Providence who provide the revenues needed to support the system and receive the benefits garnered from the plan. Bruckshaw v. Paolino, 557 A.2d 1221 (R.I. 1989). See also Westerly Residents v. Brancato, 565 A.2d 1262 (R.I. 1989), wherein the court ruled that the town of Westerly has the inherent power to expand and maintain its sewer system because the power to regulate sewers is not a matter of statewide concern, and because the location of public drains and sewers in the town of Westerly is a purely local concern, as set out in its home rule charter. In McCarthy v. Johnson, 574 A.2d 1229 (R.I. 1990), the justices declared 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, art. XIII, § 4, is such a limitation.” In In re Advisory Opinion to House of Representatives, 628 A.2d 537 (R.I. 1993), the judges opined that the General Assembly retained no authority to enact a local reapportionment plan or to remove locally elected officials from office, as such matters are clearly of local concern. The most recent concession to local autonomy was made by the court in Coastal Recycling, Inc., v. Connors, 854 A.2d 711, 715 (R.I. 2004): 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].

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Early in the home rule charter adoption process several procedural questions were raised, most notably by Cranston attorney Aram Berberian, a legal gadfly who delighted in litigating technical and procedural ambiguities in both statute and constitutional law. In Berberian v. Board of Canvassers, City of Cranston, 91 R.I. 49, 161 A.2d 416 (R.I. 1960), the court described as “self-executing” the provisions of Section 6, providing that whenever a petition for the adoption of a home rule charter is signed by 15 percent of qualified electors and is filed with the municipality’s legislative body, it shall be referred to the canvassing authority, which shall determine within 10 days after its receipt the sufficiency thereof and certify the results to the legislative body. The board of canvassers and registration may adopt reasonable rules of procedure to guide it and the public in giving effect to the mandate thereof, but the board may not adopt rules that restrict or enlarge the substantive rights granted. The court ruled further that whether the person signing a the petition is a qualified elector is determined as of the date of filing of the petition. Finally, said the justices, there is no obligation on those who obtain signatures to prove the date on which the signatures were affixed or to certify that they were affixed in their presence, nor is there any obligation on signatories themselves to indicate the date of their signing or to sign in the presence of an attesting witnesses. The petition could not be denied because of a rule of the board requiring such information. Id. Other decisions relating to the procedures for adopting or amending a home rule charter state that no town may take advantage of the Home Rule Article until a charter is presented and accepted by the town, and that until such action occurs, the municipality continues to be subject to the plenary power of the General Assembly. Capone v. Nunes, 85 R.I. 392, 132 A.2d 80 (1957). The validity of a city charter that allegedly was not submitted to the electorate as required by this section cannot be questioned by a challenge to the jurisdiction of a personnel appeal board established by that charter. Fox v. Personnel Appeal Bd., 99 R.I. 566, 209 A.2d 447, 210 A.2d 50 (1965). Finally, a proposed act of the General Assembly providing for the automatic submission every six years of the proposition “Shall a commission be appointed to amend, alter or revise the charter?” would establish a different method for amending the charter of a municipality than the procedure prescribed in the Home Rule Article, and would therefore be unconstitutional. Opinion to the House of Representatives, 99 R.I. 472, 208 A.2d 522 (1965). One aspect of Article XIII probably has been rendered vestigial by the U.S. Supreme Court and the 1973 Constitutional Convention. Sections 4 and 6 limit the vote in towns to “electors of said town qualified to vote upon a proposition to impose a tax or the expenditure of money.” Section 8 requires that charter “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.” Comprehensive constitutional amendments relating to home rule that deleted this language in 1968 and 1986 failed to pass (though not for this reason). This special procedure for towns has its origins in Article of Amendment VII (the Bourn Amendment) ratified in 1888. It denied the vote to any male citizen in

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“the election of the city council of any city, or upon any proposition to impose a tax, or for the expenditure of money, in any town or city, unless he shall within the year next preceding have paid a tax assessed upon his property therein, valued at least at one hundred and thirty-four dollars.” As we have noted in the historical essay, this restriction was a device to diminish the political power of poorer naturalized citizens, and as a practical matter, it kept city councils Republican into the 1920s, even though elected mayors were generally Democrats. The removal of this property qualification, especially in the cities, was a principal demand of Democratic reformers. In 1928 Article of Amendment XX effected a compromise: the cities got an unrestricted franchise, but the property qualification was retained for the towns. In 1966 the U.S. Supreme Court ruled in Harper v. Virginia State Board of Elections, 383 U.S. 663, that state requirements for fees or taxes that limit the right to vote are unconstitutional violations of the Equal Protection Clause. Responding to Harper, the 1973 Constitutional Convention deleted the town taxpaying requirement from the article on suffrage, but the delegates did not consider the Home Rule Article because of their limited mandate. Thus the language of Articles of Amendment VII and XX survives in the home rule process, although Harper and Article of Amendment XXXVIII, ratified on November 6, 1973, rejected such phraseology. The Rhode Island Supreme Court has not directly addressed the constitutionality of these town voting restrictions, or whether the 1952 advisory opinion is still good law. A recent ruling in Warwick Mall Trust v. State, 684 A.2d 252 (R.I. 1996), did not deal with this question directly; it merely concluded that the legislation in question did not require local approval. In another context, a majority of the court came to this same conclusion in 2002, but without deciding that a town referendum under Section 4 was no longer applicable. In this case a dissent urged adherence. Newport Ct. Club Assocs. v. Town Council of Middletown, 800 A.2d 405, at 418 (R.I. 2002). Because the original motive for this language is constitutionally suspect and the product of a political culture that has long since vanished, the restrictive suffrage provision for the town referendum requirement in Article XIII should be ruled unconstitutional and therefore of no force or effect.

Article XIV Constitutional Amendments and Revisions SECTION 1. Amendment process. The general assembly may propose amendments to the Constitution of the state by a roll call vote of a majority of the members elected to each house. Any amendment thus proposed shall be published in such manner as the general assembly shall direct, and submitted to the electors at the next general election as provided in the resolution of approval; and, if then approved by a majority of the electors voting thereon, it shall become a part of the Constitution SECTION 2. Procedures for the call of a constitutional convention. The general assembly, by a vote of a majority of the members elected to each house, may at any general election submit the question, “Shall there be a convention to amend or revise the Constitution?” to the qualified electors of the state. If the question be not submitted to the people at some time during any period of ten years, the secretary of state shall submit it at the next general election following said period. Prior to a vote by qualified electors on the holding of a convention, the general assembly, or the governor if the general assembly fails to act, shall provide for a bi-partisan preparatory commission to assemble information on constitutional questions for the electors. If a majority of the electors voting at such election on said question shall vote to hold a convention, the general assembly at its next session shall provide by law for the election of delegates to such convention. The number of delegates shall be equal to the number of members of the house of representatives and shall be apportioned in the same manner as the members of the house of representatives. No revision or amendment of this Constitution agreed upon by such convention shall take effect until the same has been submitted to the electors and approved by a majority of those voting thereon.

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From the 1790s, when George R. Burrill spearheaded a demand for a constitutional convention because of the unamendability of the Charter of 1663, the process of constitutional revision has been a central feature of Rhode Island history. A change in the basic law can be accomplished in two ways: via constitutional amendment or by constitutional convention. Formidable obstacles to both existed in Rhode Island until 1973. Not only was the charter unamendable; its successor, the constitution of 1843, was not amenable to amendment. The latter’s conservative framers, fearful of the socioeconomic forces that were transforming Rhode Island in their time, drafted a constitution that was resistant to change. The Law and Order document contained no provisions for the call of a constitutional convention, and its amendment procedure was time-consuming and cumbersome—passage by two successive legislatures with a general election intervening, and then approval by three-fifths of the electors voting thereon. That hurdle became higher on November 7, 1911, when Article of Amendment XVI established biennial elections for general officers and the General Assembly. Because of the slow amendment process, advocates of change resorted to the device of a limited constitutional convention to achieve necessary reforms. Between 1944 and 1973 five such gatherings were held. Even their existence, however, was not achieved without a battle royal. In 1883 the supreme court opined that neither the legislature nor the people had the power to call a convention, because the constitution of 1843 lacked express provisions for such an assemblage (In re Constitutional Convention, 14 R.I. 649). Not until 1935 was this opinion reversed and the way opened for sweeping constitutional reform (In re Opinion to the Governor, 55 R.I. 56). But in 1935 and thereafter, partisanship made prospective change an object of apprehension rather than a source of optimism. This 180-year period of constitutional frustration finally ended with the adoption of the present Article XIV, a product of the 1973 Constitutional Convention. Originating as Proposal 48, sponsored by Professor Patrick T. Conley, it was added to the 1843 Rhode Island Constitution by Article of Amendment XLII, entitled “Constitutional Amendments and Revisions,” which was adopted on November 6, 1973, by a vote of 56,072 to 34,953. Section 3 of Article XLII decreed that the amendment procedures in Section 1 replace the original constitution’s Article XIII, which it annulled. The new amendment process, using the People’s Constitution as a model, requires only approval by a majority of the members elected to each house and a majority vote of the electors voting thereon at the next general election. This simple majority requirement has greatly facilitated major constitutional change in the years since 1973, though most of the recent amendments have passed with comfortable margins. This article also provides a new formula for constitutional revision in addition to a convention authorized by the General Assembly. In its famous 1935 advisory opinion, the Rhode Island Supreme Court recognized the General Assembly as the sole and exclusive originator of a convention call by reference to the legislature’s residual powers. In re Constitutional Convention, 55 RI 56, 178 A 433 (1935). The handiwork of such a convention could be ratified at a special election. Query: Is this method still valid in view of the 2004 repeal of Article VI, Section 10?

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Section 2 of Article XIV, however, provides another method. It allows the people to call a convention by referendum. This popular plebiscite, first proposed in 1898, must be authorized by the General Assembly at some time during any 10-year period, or else the secretary of state must place the question on the ballot at the next general election following the expiration of that period. Section 2 also mandates the creation of a bipartisan preparatory commission to assemble information that will allow the voters to decide whether or not a convention is desirable or necessary. The 1986 Constitutional Convention was a direct by-product of the procedures set forth in Section 2. On November 6, 1984, the voters approved a convention referendum by a margin of 159,801 to 137,096 and chose delegates to the 1986 Constitutional Convention. In 1994, this process was repeated, but the failure of the assembly and the governor to follow the requirements for the preparatory commission, plus the presence of significant amendments on the ballot, resulted in a decisive defeat for the convention referendum. It suffered a similar fate in 2004, when the convention call was overshadowed and rendered less urgent because the separation of powers amendments were on the same ballot. Until 2006, there was no case on the substance of this article, but at the outset there was one relating tangentially to its origins. The 1973 Constitutional Convention adopted a procedure, formulated by Chairman William E. Powers and Secretary Patrick T. Conley, to ignore the restrictions on the convention’s agenda and duration that the legislature had stipulated in the act authorizing the gathering. This strategy ultimately led to the opinion of the Supreme Court in Malinou v. Powers, 114 RI 399, 333 A.2d 420 (1975), stating that the issue of the validity of the limitations on the convention agenda was moot, because the convention had passed and the people had ratified Article of Amendment XLII. In a thinly veiled attempt to evade the limitations of the convention call, Conley had labeled his proposal “Election Requirements for Constitutional Revision,” because one of the four tasks assigned to the delegates was “revision of the election laws.” In 2006 Article XIV indirectly received its first judicial scrutiny in conjunction with a proposed amendment to allow a privately operated Narragansett Indian casino in West Warwick. The governor, who strongly opposed this project, requested an advisory opinion from the justices of the supreme court relative to its constitutionality. The justices, however, declined to do so, informing the governor that in their opinion, he had no role in the constitutional amendment process: because “there is no constitutional duty to be performed by Your Excellency.” The justices opined that they lacked jurisdiction to advise him on this question. In re Advisory Opinion to the Governor (Casino III), 904A. 2d 67 (R.I. 2006). But, it is worth remembering that, notwithstanding their protestations about a lack of jurisdiction, the justices clearly have the power to issue advisory opinions even when their self-imposed requirements for answering such requests are not satisfied. Indeed, on many occasions, the justices have waived their self-imposed limits on issuing advisory opinions because of the perceived public importance of the questions presented. See, for example, In re Advisory Opinion to the Governor (Ethics Commission), 733 A.2d 712 (R.I. 1999); In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1 (R.I. 1992).

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In any event, even if an amendment were to obtain the voters’ approval, the federal district court could intervene if it deems that the proposed amendment contravenes a provision of the United States Constitution. Opponents of a West Warwick casino who supported a rival facility in the town of Johnston sought such federal intervention in October 2006, citing violations of the First Amendment (free speech) and the Equal Protection Clause of the Fourteenth Amendment. The U.S. district court declined to block the scheduled constitutional referendum, but it did not immediately decide the substantive issues. These became moot after the voters rejected the casino amendment in November 2006. Ajax Gaming Ventures, LLC and the Town of Johnston v. Matthew Brown, CA 06–336 (2006). Finally, we must note one constitutional curiosity, not likely to be repeated, that occurred in the 1951 limited convention. Because that body met for only three days (June 1–3, 1951), the delegates voted to substitute certain persons of their own selection to fill eight vacancies created by absent members. The justices of the supreme court recognized the illegality of this action, but they allowed the work of the convention to stand, because “it does not appear from the official records of the convention that the vote of any one of said substitutes was required for the favorable passage of any of the resolutions concerning the proposed amendments.” Opinion to the House of Representatives, 80 R.I. 407, 97 A.2d 587 (R.I. 1953).

Article XV General Transition SECTION 1. What remains in full force and effect. The rights and duties of all public bodies shall remain as if this Constitution had not been adopted with the exception of such changes as are contained in this Constitution. All laws, ordinances, regulations and rules of court not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force, until they shall expire by their own limitation or shall be altered or repealed pursuant to this Constitution. SECTION 2. What continues to be valid. The validity of all public and private bonds, debts and contracts, and of all suits, actions, and rights of action, shall continue as if no change had taken place. SECTION 3. All officers to continue the duties of their office. All officers filling any office by election or appointment shall continue the duties thereof, until the end of the terms to which they were appointed or elected, and until their offices shall have been abolished or their successors elected and qualified in accordance with this Constitution or laws enacted pursuant thereto. SECTION 4. Implementing legislation required. On or before June 1, 1988, the general assembly shall adopt implementing legislation for Article III, Sections 7 and 8, and for Article IV, Section 10.

This transitional article has been implemented. Sections 1, 2, and 3 are relatively standard provisions. Section 4 refers to the Ethics Commission (Article III, Sections 7 and 8) and limitations on campaign contributions (Article IV, Section 10). To implement the former, the legislature enacted Chapter 195 of the Public Laws of 1987, effective June 25, 1987. That statute contained a code of ethics and established

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the nonpartisan 15-member Rhode Island Ethics Commission to enforce it. This agency replaced the Conflict of Interest Commission and assumed all its pending cases. The enabling statute—R.I.G.L. Title 36, Chapter 14—gave administrative, advisory, investigative, and adjudicative powers to the Ethics Commission, as well as the power to remove for cause those state and municipal elected or appointed officials not subject to impeachment. The General Assembly fulfilled its constitutional mandate relative to Article IV, Section 10, by amending the Rhode Island Campaign Contributions and Expenditures Reporting Act to include R.I.G.L. 17–25–10.1, 17–25–18, and 17–25–29 (P.L. 1988, Chapter 420), provisions in conformance to the decision of the U.S. Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), which placed limitations on political campaign contributions, excluding only “the candidate to his or her own campaign.”

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RHODE ISLAND CONSTITUTIONAL HISTORY General Works Patrick T. Conley, Democracy in Decline: Rhode Island’s Constitutional Development, 1776–1841 (Providence, 1977), hereafter cited as Conley, Democracy, is the only extensive survey of Rhode Island’s constitutional history published thus far. This volume, whose scope is much broader than its title, covers the period from 1636 through 1854. It contains abundant footnotes and an exhaustive bibliography. Sidney S. Rider, “The Development of Constitutional Government in Rhode Island …” (manuscript in 27 scrapbooks, Rhode Island Historical Society, ca. 1900), is a major (and neglected) work by a local antiquarian. Excerpts from this study were published by Rider in his periodical Book Notes, and they are cited elsewhere in this essay. Clifford Chesley Hubbard, “Constitutional Development in Rhode Island [1636–1926]” ( doctoral dissertation, Brown University, 1926) is also helpful, especially for the early twentieth century. Charles Carroll, Rhode Island: Three Centuries of Democracy, 4 vols. (New York, 1932), by a prominent lawyer-educator, is the best detailed general history of Rhode Island. Because of Carroll’s legal training, his narrative includes a substantial amount of legal and constitutional history. The final two volumes of this work are biographical and contain profiles of many prominent lawyers and judges of the early twentieth century. Sixteen of the 60 essays in Patrick T. Conley, Rhode Island in Rhetoric and Reflection: Public Addresses and Essays (East Providence, 2002), hereafter cited as Conley, Rhetoric, deal with state constitutional topics, and 21 of the articles in Patrick T. Conley, Liberty and Justice: A History of Law and Lawyers in Rhode

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Island, 1636–1998 (East Providence, 1998), hereafter cited as Conley, Liberty, also touch upon constitutional themes. Other general histories useful in the preparation of this volume include Edward Field, ed., State of Rhode Island and Providence Plantations at the End of the Century: A History, 3 vols. (Boston, 1902), which contains several law-related sections; and Irving B. Richman, Rhode Island: A Study in Separatism (Boston and New York, 1905). See also the Rhode Island General Laws, compilations of 1705, 1719, 1730, 1745, 1767, 1798, 1822, 1844, 1857, 1872, 1895, 1909, 1923, 1938, 1956, and 1969, and Rhode Island Reports, the published opinions of the Rhode Island Supreme Court from 1827 to April 1980, now continued in the Atlantic Reporter under the Westlaw key system. Charters and Legislative Documents Illustrative of Rhode Island History (Providence, 1844) is a convenient compilation of primary material from 1636 through the Dorr Rebellion. The Colonial Era, 1636–1763 The best general survey of colonial Rhode Island is Sydney V. James, Colonial Rhode Island: A History (New York, 1975), but the following older studies are very useful for their constitutional and rights-related focus: Irving Berdine Richman, Rhode Island: Its Making and Its Meaning, 1636–1683, 2nd ed. (New York and London, 1908), with an introduction by Lord James Bryce; Samuel G. Arnold, History of the State of Rhode Island and Providence Plantations, 2 vols. (New York, 1859– 1860); and Charles McLean Andrews, The Colonial Period of American History, 4 vols. (New Haven, 1934–1938), vol. 2. John Russell Bartlett’s compilation of the Records of the Colony of Rhode Island and Providence Plantations in New England [1636–1792], 10 vols. (Providence, 1856–1865), though incomplete, is indispensable for tracing constitutional developments. Bartlett should be supplemented by Schedules [Acts and Resolves] of the [Rhode Island] General Assembly, published at the conclusion of each assembly session and located at the Rhode Island State Archives. Also invaluable are the periodic digests or codifications of Rhode Island law that were published in 1719, 1730, 1745, and 1767. In colonial times these codes were entitled Acts and Laws of His Majesty’s Colony of Rhode Island and Providence Plantations, in America. The first state digest (1798) was styled The Public Laws of the State of Rhode Island and Providence Plantations. Other helpful collections of primary material include Howard M. Chapin, ed., Documentary History of Rhode Island, 2 vols. (Providence, 1916–1919); Horatio Rogers, George M. Carpenter, and Edward Field, eds., The Early Records of the Town of Providence, 21 vols. (Providence, 1892–1951); and William R. Staples, ed., Proceedings of the First General Assembly of the Incorporation of Providence Plantations, and the Code of Laws Adopted by That Assembly in 1647, with Notes Historical and Explanatory (Providence, 1847). Roderick Terry, “The Commission of Governor Coddington and the Early Charters of Rhode Island,” Bulletin of the Newport Historical Society, no. 44 (April 1923): 3–22, discusses and reprints the 1651 parliamentary commission to William Coddington as governor of Aquidneck and Conanicut.

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On the circumstances surrounding the acquisition of the Charter of 1663, consult the general histories previously cited, the studies of Roger Williams listed hereafter under Article I, and Sidney V. James, John Clarke and His Legacies: Religion and Law in Colonial Rhode Island, 1638–1750, edited by Theodore Dwight Bozeman (University Park, Pa., 1999); Thomas Williams Bicknell, Story of Dr. John Clarke (Providence, 1915); Robert C. Black, III, The Younger John Winthrop (New York, 1966); and Richard S. Dunn, “John Winthrop, Jr., and the Narragansett Country,” William and Mary Quarterly, 3rd ser., 13 (Jan. 1956): 68–86. Winthrop, the governor of Connecticut, assisted Clarke in obtaining the Royal Charter. Sidney Smith Rider, “The Meaning of the Phrase ‘The Manor of East Greenwich in Our County of Kent,’ in the Charter of Rhode Island in 1663,” Book Notes 23 (1906): 17–27, and Edward P. Cheyney, “The Manor of East Greenwich in the County of Kent,” American Historical Review 11 (Oct. 1905): 29–35, analyze a curious feature of the charter pertaining to the method of holding title to land. The law of Kent was the law of Gavelkind, whereby real estate descended in equal portions to all male heirs, contrary to the more prevalent rule of primogeniture, under which descent went to the first-born male. John Callender, An Historical Discourse on the Civil and Religious Affairs of the Colony of Rhode Island, edited by Romeo Elton, vol. 4 of the Collections of the Rhode Island Historical Society (Providence, 1838), is the colony’s first history; written in 1739, it is still worth consulting. Sydney V. James, The Colonial Metamorphoses in Rhode Island: A Study of Institutions in Change, edited by Sheila L. Skemp and Bruce C. Daniels (Hanover, N.H., 2000) is a minutely detailed study of the evolution of government in colonial Rhode Island. Patrick T. Conley et al., The State Houses of Rhode Island (Providence, 1988), provides the physical setting for that governmental evolution. Michael G. Hall, Edward Randolph and the American Colonies, 1676–1703 (Chapel Hill, N.C., 1960), describes the disruption of Rhode Island government during the Dominion for New England. For the legal aspects of imperial relations, see Marguerite Appleton, “The Relations of the Corporate Colony of Rhode Island to the British Government” (doctoral dissertation, Brown University, 1928); Raymond Dye Irwin, “Saints, Sinners, and Subjects: Rhode Island and Providence Plantations in Transatlantic Perspective” (doctoral dissertation, Ohio State University, 1996); and Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, Mass., 2004), and “The Origin of Appeal in America [with special reference to Massachusetts and Rhode Island],” Hastings Law Journal 48 (1997): 913–68. The Revolutionary Period, 1764–1790 On the legal and constitutional issues precipitating the move toward independence, consult David S. Lovejoy, Rhode Island Politics and the American Revolution, 1760–1776 (Providence. 1958), and “Equal Rights Imply Equality: The Case against Admiralty Jurisdiction in America, 1764–1776,” William and Mary Quarterly, 3rd ser., 16 (Oct. 1959): 459–84 (these courts were juryless), Mack E.

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Thompson, “The Ward-Hopkins Controversy and the American Revolution in Rhode Island: An Interpretation,” William and Mary Quarterly, 3rd ser., 16 (July 1959): 363–75; Walter F. Mullen, “Rhode Island and the Imperial Reorganization of 1763–1766” (doctoral dissertation, Fordham University, 1965); Joel A. Cohen, “Democracy in Revolutionary Rhode Island: A Statistical Analysis,” Rhode Island History 29 (Feb.–May 1970): 3–16; Ernest G. Mayo, “Rhode Island’s Reception of the Common Law,” Suffolk University Law Review 31 (1998): 609–23; and Glenn W. LaFantasie, “Act for All Reasons—Revolutionary Politics and May 4, 1776,” Rhode Island History 35 (May 1976): 39–47, which demonstrates conclusively that Rhode Island merely renounced allegiance to King George III on May 4 and did not declare independence from England. On the Gaspee affair, the standard source is William R. Staples, comp., The Documentary History of the Destruction of the Gaspee, introduced and supplemented by Richard M. Deasy (Providence, 1990). The Gaspee‘s legal importance is also discussed by William R. Leslie, “The Gaspee Affair: A Study of Its Constitutional Significance,” Mississippi Valley Historical Review 39 (Sept. 1952): 233–56; Neil L. York, “The Uses of Law and the Gaspee Affair,” Rhode Island History 50 (Feb. 1992): 3–21; and Helen Hill Miller, The Case for Liberty (Chapel Hill, N.C., 1965), chapter 7, “Trial in the Vicinage”—the Gaspee affair’s main constitutional issue. The best study of Rhode Island in the Confederation era and the state’s reaction to the new United States Constitution is Irwin H. Polishook, Rhode Island and the Union, 1774–1795 (Evanston, Ill., 1969). For constitutional issues it may be supplemented by Patrick T. Conley, “Rhode Island in Disunion, 1787–1790,” Rhode Island History 31 (Nov. 1972): 99–115, and First in War, Last in Peace: Rhode Island and the Constitution, 1786–1790 (Providence, 1987); Frank Greene Bates, Rhode Island and the Formation of the Union (New York, 1898); Hillman Metcalf Bishop, Why Rhode Island Opposed the Federal Constitution (Providence, 1950); John P. Kaminski, “Democracy Run Rampant: Rhode Island in the Confederation,” in James Kirby Martin, ed., The Human Dimensions of Nation Making (Madison, Wis., 1976); and [J. Franklin Jameson, comp.], “The Adjustment of Rhode Island into the Union in 1790,” Publications of the Rhode Island Historical Society, n.s., no. 8 (July 1900): 104–35. The most important published contemporary sources pertaining to Rhode Island and the U.S. Constitution are William R. Staples, ed., Rhode Island in the Continental Congress, with the Journal of the Convention That Adopted the Constitution, 1765–1790 (Providence, 1870), and Robert C. Cotner, ed., Theodore Foster’s Minutes of the Convention Held at South Kingstown, Rhode Island, in March 1790, Which Failed to Adopt the Constitution of the United States (Providence, 1929). On Trevett v. Weeden, consult Patrick T. Conley, “Rhode Island’s Paper Money Issue and Trevett v. Weeden,” Rhode Island History 30 (Aug. 1971): 95–108; Irwin H. Polishook, “Trevett v. Weeden and the Case of the Judges,” Newport History 33 (Apr. 1965): 45–69; Sidney S. Rider, “The Point Actually Decided by the Rhode Island Supreme Court in the Case Trevett vs. Weeden,” Book Notes 22 (1905): 62–63; John Winslow, The Trial of the Rhode Island Judges (Brooklyn, 1887); and, especially, James M. Varnum, The Case, Trevett against Weeden … (Providence, 1787).

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Two of Rhode Island’s most prominent Revolutionary leaders and constitutionalists are the subjects of brief biographical sketches: William E. Foster, Stephen Hopkins, A Rhode Island Statesman: A Study in the Political History of the Eighteenth Century (Providence, 1884); Stephen Hopkins, The Rights of Colonies Examined, introduced and edited by Paul R. Campbell (Providence, 1974); Marguerite Appleton, “Stephen Hopkins: Chief Justice, Governor, Signer,” in Conley, Liberty, pp. 116–31; Conley, “Stephen Hopkins: Statesman and Signer,” Rhetoric, pp. 57–61, a profile written for the Dictionary of National Biography; James M. Varnum, A Sketch of the Life and Public Services of James Mitchell Varnum (Boston, 1906); and Donald A. D’Amato, General James Mitchell Varnum (1748–1789): The Man and His Mansion (East Greenwich, R.I., 1996). Refer also to the brief sketches in Patrick T. Conley, “Founding Lawyers: Doing Justice to the Legal Architects of Rhode Island Statehood,” Rhode Island Bar Journal (Mar.–Apr. 2002): 15–17, 33–35. The Early National Period, 1790–1840 The most detailed analysis of constitutional developments in the period 1790– 1840 is found in Conley, Democracy, pp. 144–289. The demographic and economic transformation of Rhode Island, fueling the demand for constitutional reform, are detailed in Peter J. Coleman, The Transformation of Rhode Island, 1790–1860 (Providence, 1963), which is also excellent on legal issues as they relate to business enterprise; Kurt B. Mayer, Economic Development and Population Growth in Rhode Island (Providence, 1953); Herbert Allen Whitney, “The Narragansett Region: Concentrations of Population, 1635–1885” (doctoral dissertation, University of Michigan, 1962); James L. Marsis, “Agrarian Politics in Rhode Island, 1800–1860,” Rhode Island History 34 (Feb.1975): 13–21; Daniel P. Jones, The Economic and Social Transformation of Rural Rhode Island, 1780–1850 (Boston, 1992); Michael B. Zuckerman, “The Political Economy of Industrial Rhode Island, 1790–1860” (doctoral dissertation, Brown University, 1981); and Brother Joseph Brennan, F.S.C., Social Conditions in Industrial Rhode Island: 1820–1860 (Washington, D.C., 1940). [George R. Burrill], A Few Observations on the Government of the State of Rhode Island (Providence, 1807), and [Thomas W. Dorr et al.], An Address to the People of Rhode Island from the Convention … to Promote the Establishment of a State Constitution (Providence, 1834) are this era’s two most influential calls for constitutional reform. Merrill D. Peterson, ed., Democracy, Liberty, and Property: The State Constitutional Conventions of the 1820s (Indianapolis, 1966), places Rhode Island’s earliest movement for a written constitution in a broader context. The Dorr Rebellion and Its Aftermath, 1841–1854 The Dorr War has long fascinated American historians and students of Rhode Island history. All credible accounts draw, at least in part, upon primary documents. The extensive Dorr Papers and Correspondence, preserved for posterity by Justice Walter S. Burges and Sidney S. Rider, are housed at the John Hay Library of

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Brown University, and many of Dorr’s letters survive in other depositories, especially the Rhode Island Historical Society Library. Arthur May Mowry, The Dorr War (Providence, 1901), the first full-length analysis of the rebellion, is written from the conservative viewpoint and upholds the position of the Law and Order party. Mowry prints the charter, the People’s Constitution, the Freemen’s Constitution, and the constitution of 1843 as appendices. Marvin E. Gettleman, The Dorr Rebellion: A Study in American Radicalism (New York, 1973), interprets the Rhode Island reform movement from a New Left perspective as an episode in American radicalism, and George M. Dennison, The Dorr War: Republicanism on Trial, 1831–1861 (Lexington, Ky., 1976), analyzes the impact of Dorr’s movement on the development of American republican theory. Conley, Democracy, is a detailed and heavily documented study of the coming of Dorr’s rebellion, its course, and its effects. Conley is sympathetic to Dorr’s aims but not his methods. The work contains the most detailed analysis of the events leading up to the Dorr Rebellion. Joyce M. Botelho, ed., Might and Right: The Dorr Rebellion and the Struggle for Equal Rights (Providence, 1992), is a recent, readable, and accurate survey. Two extensive and valuable accounts are unpublished and therefore relatively inaccessible: Anne Mary Newton, “Rebellion in Rhode Island: The Story of the Dorr War” (master’s thesis, Columbia University, 1947), is condescending towards the reformers; Sidney S. Rider, “The Development of Constitutional Government in Rhode Island …,” a manuscript bound in 27 scrapbooks at the Rhode Island Historical Society Library, is meticulously researched, detailed, and sympathetic to the reform cause. Of the comprehensive accounts of the rebellion in general histories, the most useful are “Minorities and Majorities,” in Arthur M. Schlesinger’s Pulitzer Prizewinning The Age of Jackson (New York, 1945), pp. 401–21; “Spirit of the Laws,” in Joseph Brennan, Social Conditions in Industrial Rhode Island, 1820–1860 (Washington, D.C., 1940), pp. 147–78; “The Rhode Island Explosion,” in Chilton Williamson, American Suffrage from Property to Democracy, 1760–1860 (Princeton, N.J., 1960), pp. 242–59; “Society and Politics,” in Peter J. Coleman, The Transformation of Rhode Island, pp. 218–94; “Voting Rights in the PreIntervention Period, 1776–1868,” in Ward E. Y. Elliott, The Rise of Guardian Democracy: The Supreme Court’s Role in Voting Rights Disputes, 1845–1969 (Cambridge, Mass., 1974), pp. 34–54; “The Dorr Rebellion,” in David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829–1861 (Chicago, 2005), chapter 4, part I; and “Domestic Violence” and “Luther v. Borden,” in William M. Wiecek, The Guarantee Clause of the U.S. Constitution (Ithaca, N.Y., 1972), pp. 78–129. Of these studies, Schlesinger, Williamson, Coleman, and Elliott are supportive of the Dorrites, while Wiecek gives an impressive analysis and defense of the Law and Order party’s constitutional theory, which he later supplements in “Popular Sovereignty in the Dorr War—Conservative Counterblast,” Rhode Island History 32 (Spring 1973): 35–51, and “‘A Peculiar Conservatism’ and the Dorr Rebellion: Constitutional Clash in Jacksonian America,” American Journal of Legal History 22 (1978): 237–53.

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Other useful analyses of specific aspects of the controversy are John Bell Rae, “The Issues of the Dorr War,” Rhode Island History 1 (Apr. 1942): 33–44; Chilton Willliamson, “The Disenchantment of Thomas W. Dorr,” Rhode Island History 17 (Oct. 1958): 97–108; Robert L. Ciaburri, “The Dorr Rebellion in Rhode Island: The Moderate Phase,” Rhode Island History 26 (July 1967): 73–87; Ronald Formisano, “The Role of Women in the Dorr Rebellion,” Rhode Island History 51 (Aug. 1993): 89–104; Russell J. DeSimone and Daniel C. Schofield, comps., The Broadsides of the Dorr Rebellion (Providence, 1992); Mark S. Schantz, “A Taste of Civil War,” in Piety in Providence: Class Dimensions of Religious Experience in Antebellum Rhode Island (Ithaca, N.Y., 2000), pp. 197–226, which explores the profound impact of the Dorr War on local churches and their leaders; and Patrick T. Conley, “Rhode Island’s Crisis in Constitutionalism: The Dorr Rebellion and the Origins of the Present State Constitution,” Rhode Island Bar Journal 35 (Oct. 1986): 12–15, 19–22; “The Constitution of 1843: A Sesquicentennial Obituary,” in Rhetoric, pp. 170–81, which discusses the defects in the Law and Order Constitution; and Conley, “No Tempest in a Teapot: The Dorr Rebellion in National Perspective,” Rhode Island History 50 (Aug. 1992): 67–100. Dorr’s support from the laboring class is discussed in Carl Gersuny, “Seth Luther—The Road from Chepachet,” Rhode Island History 33 (May 1974): 47–55; Louis Hartz, “Seth Luther: Working Class Rebel,” New England Quarterly 13 (Sept. 1940): 401–18; and Scott Molloy, Carl Gersuny, and Robert Macieski, eds., Peaceably If We Can; Forcibly If We Must! Writings by and about Seth Luther (Providence, 1998). Dan King, The Life and Times of Thomas Wilson Dorr (Boston, 1859), though partisan and amateurish, is still the only full-length biography. King was Dorr’s ally. See also Amasa M. Eaton, “Thomas Wilson Dorr and the Dorr War,” in William Draper Lewis, ed., Great American Lawyers (Philadelphia, 1908). Eaton was one of the leading constitutional reformers of his era. The debates of the 1841 and 1842 conventions are printed (at least in part) in the major newspapers of the day. The New Age and Constitutional Advocate (Providence), which merged with the Providence Express in 1842, was the reform paper; the Providence Daily Journal and the Rhode Island Republican (Newport) were Whig; and the Republican Herald (Providence) presented a conservative Democratic viewpoint. However, the Journal of the Convention Assembled to Frame a Constitution for the State of Rhode Island at Newport, Sept. 12, 1842 (Providence, 1859) affords a disappointing view of the Law and Order Convention for those seeking the intent of the framers. [Edmund Burke, comp.], Interference of the Executive in the Affairs of Rhode Island, 28th Cong., 1st sess., House Report no. 546 [1844], is a very valuable compendium of source material on the Rhode Island controversy prepared by a Democrat-dominated congressional investigating committee chaired by Edmund Burke of New Hampshire and counseled by Dorr. John Causin, [Minority Report of the Select Committee to Whom Were Referred the Memorial of the Democratic Members of the Rhode Island Legislature], 28th Cong., 1st sess., House Report no. 581 [1844], is the rejoinder to Burke that defends Whig president John Tyler.

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[Thomas W. Dorr, et al.], The Nine Lawyers’ Opinion [on the Right of the People of Rhode Island to Form a Constitution], in vol. 11, 1st series of the Rhode Island Historical Tracts, edited by Sidney S. Rider (Providence, 1880), is a forceful assertion by Dorr, Joseph K. Angell, Thomas Carpenter, and others of the doctrine of popular constituent sovereignty. This volume also contains biographical sketches of three prominent Dorr supporters—Joseph K. Angell, Frances H. (Whipple) McDougall, and Catherine R. Williams. [Frances H. McDougall], Might and Right (Providence, 1844), is a strong, contemporary defense of the People’s movement. The most formidable assertions of the Law and Order position are Elisha R. Potter [Jr.], Considerations on the Questions of the Adoption of a Constitution and Extension of Suffrage in Rhode Island (Boston, 1842), by a U.S. congressman; Francis Wayland, The Affairs of Rhode Island (Providence, 1842), by the president of Brown University; [John Pitman], To the Members of the General Assembly of Rhode Island (Providence, 1842), by a federal district court judge; William Goddard, An Address to the People of Rhode Island … on the Occasion of the Change in the Civil Government of Rhode Island (Providence, 1843); and Dexter Randall, Democracy Vindicated and Dorrism Unveiled (Providence, 1846). Public Laws of the State of Rhode Island and Providence Plantations (Providence, 1844) is the first digest of laws following the effective date of the 1843 constitution and is thus useful in determining the intent of the drafters. It is a maxim of constitutional construction that legislation enacted immediately following the adoption of a constitution is significant in determining the scope of a constitutional provision. Many of the members of the 1844 legislature that enacted this Digest were also delegates to the Law and Order Convention. The legal and constitutional saga can be traced in numerous writings: Joseph Story, Charge of Mr. Justice Story on the Law of Treason Delivered to the Grand Jury of the Circuit Court of the United States Holden at Newport for the Rhode Island District, June 15, 1842 (Providence, 1842); Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (New York, 1970); George Turner and Walter S. Burges, Report of the Trial of Thomas W. Dorr for Treason … (Providence, 1844), a sympathetic account; Joseph H. Pitman, Report of the Trial of Thomas Wilson Dorr for Treason … (Boston, 1884), an unsympathetic rendition; Ex Parte Dorr, 3 Howard 103 (1845); Benjamin F. Hallett, The Right of the People to Establish Forms of Government: Mr. Hallett’s Argument in the Rhode Island Causes, before the Supreme Court of the United States (Boston, 1848), a brilliant statement in defense of popular constituent sovereignty; and Daniel Webster and John Whipple, The Rhode Island Question…. (Washington, D.C., 1848), a persuasive brief to the Supreme Court on behalf of Law and Order. The commentary on Luther v. Borden is extensive: Mahlon Hellerich, “The Luther Cases in the Lower Courts,” Rhode Island History 11 (Apr. 1952): 33–45; Charles O. Lerche, “The Dorr Rebellion and the Federal Constitution,” Rhode Island History 9 (Jan. 1950): 1–10; Michael A. Conron, “Law, Politics, and Chief Justice Taney: A Reconsideration of the Luther v. Borden Decision,” American Journal of Legal History 11 (Oct. 1967): 377–88; Peter C. Magrath, “Optimistic Democrat: Thomas W. Dorr and the Case of Luther vs. Borden,” Rhode Island History 29 (Aug. and Nov. 1970): 94–112; John S. Schuchman, “The Political Background of the Political Question

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Doctrine: The Judges and the Dorr War,” American Journal of Legal History 16 (1972): 111–25, which examines the highly partisan conduct of the Rhode Island and the federal judiciary during and after the rebellion; and Patrick T. Conley, “The Dorr Rebellion and American Constitutional Theory: Popular Constituent Sovereignty, Political Questions, and the Case of Luther v. Borden,” Rhode Island Bar Journal 41 (Nov. 1992): 19–25. Carl B. Swisher, The Taney Period, 1836–64, vol. 5 in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States (New York, 1974), and Charles G. Post, The Supreme Court and Political Questions (Baltimore, 1936), place Luther in a broader context. The Republican Ascendancy, 1854–1935 There is great need for a published political and constitutional history of this fascinating era. Most existing works are either unpublished, highly specialized, or polemical. Mario R. DiNunzio and Jan T. Galkowski, “Political Loyalty in Rhode Island: A Computer Study of the 1850s,” Rhode Island History 36 (Aug. 1977): 93–95, analyzes the origins of the Republican party in the political realignments of the 1850s—shifts caused, in part, by constitutional issues. On this development, see also Larry Anthony Rand, “The Know-Nothing Party in Rhode Island: Religious Bigotry and Political Success,” Rhode Island History 23 (Fall 1964): 102–16. On the reactionary Republican leadership, see William Barrie Thornton, “Henry Bowen Anthony: Journalist, Governor, and Senator” (master’s thesis, University of Rhode Island, 1960); Edward L. Rondeau, “Charles Ray Brayton: A Study in Bossism” (master’s thesis, University of Rhode Island, 1966); Mary Cobb Nelson Tanner, “The Middle Years of the Anthony-Brayton Alliance, or Politics in the Post Office, 1874–1880,” Rhode Island History 22 (July 1963): 65–76; Nathanael W. Stephenson, Nelson W. Aldrich: A Leader in American Politics (New York, 1930); Jerome Sternstein, “Nelson W. Aldrich: The Making of the General Manager of the U.S., 1841–1886” (doctoral dissertation, Brown University, 1968); and Robert C. Power, “Rhode Island Republican Politics in the Gilded Age” (honors thesis, Brown University, 1972). Contemporary statements urging change include Hiram Howard, A Plea for Progress (Providence, 1890); John H. Stiness, Civil Changes in the State [of Rhode Island] (Providence, 1897); Samuel R. Honey, Constitutional Reform (Providence, 1894); and Amasa Eaton, Constitution-Making in Rhode Island (Providence, 1899). Thomas Durfee, Some Thoughts on the Constitution of Rhode Island (Providence, 1884), is a conservative view by the chief justice of the court that handed down the 1883 advisory opinion relative to constitutional conventions, an opinion necessitating the resort to commissions. William P. Sheffield, Random Notes on the Government of Rhode Island (Newport, 1897), also espouses a conservative position. Abraham Payne and William P. Sheffield, “Constitutional Reform in Rhode Island,” North American Review 113 (April 1886): 332–41, debate the issue, with Payne, a former attorney general, advocating change. The reform by commission expedient

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has been studied recently by Richard P. Ironfield, “The Constitutional Reform Movement in Rhode Island from 1895–1905” (doctoral dissertation, Providence College, 2002). For the commission reports and their proposed basic laws, see Report of the Commission to Revise the Constitution Made to the General Assembly … 1898 (Providence, 1898); Report of the Joint Special Committee on Constitutional Amendments … Made to the General Assembly … 1899 (Providence, 1899); and Report of Commission to Consider the Amendment and Revision of the Constitution Presented to the General Assembly … 1915 (Providence, 1915). For the literature of exposé coupled with a strident call for reform, see Lincoln Steffens, “Rhode Island: The Good Old American Stock,” in The Autobiography of Lincoln Steffens (New York, 1931), pp. 464–69. Steffens’s articles stress political corruption in the rural towns: “Rhode Island: A Corrupted People,” in A Struggle for Self Government (New York 1906), pp. 120–60, and most famously “Rhode Island: A State for Sale,” McClure’s Magazine 24 (Feb. 1905): 337–53. Bishop William N. McVickar, A Disclosure of Political Conditions and An Appeal for Their Reform (Providence, [1902]), and James Quayle Dealey, Political Situations in Rhode Island and Suggested Constitutional Changes (Providence, 1928), a reprint of articles from the Providence Journal (1920) and the United League News (1926–28), also urge constitutional reform. Labor’s socioeconomic and ethnocultural battle with the Republican ascendancy and the prevailing constitutional order is eloquently described by Scott Molloy, Trolley Wars: Streetcar Workers on the Line (Washington, D.C., 1996), a work far more expansive than its title suggests. The role of the middle class in the sporadic efforts at reform is well detailed in John S. Gilkeson, Jr., Middle Class Providence, 1820–1940 (Princeton, 1986), especially in chapter 5, “Corporate Greed and Partisan Exigency.” Mary Cobb Nelson, “The Influence of Immigration on Rhode Island Politics, 1865, 1910” (doctoral dissertation, Harvard University, 1954), shows the significance of ethnoreligious factors on the movements for constitutional change. See also Patrick T. Conley, “The Persistence of Political Nativism in Rhode Island, 1893–1915: The A.P.A. and Beyond,” in Rhetoric, pp. 465–73. Evelyn Savidge Sterne, Ballots and Bibles: Ethnic Politics and the Catholic Church in Providence (Ithaca, N.Y., 2004), focuses on the period 1890–1930 and traces the successful struggle by Catholic ethnics to achieve political equality, especially full voting rights, in the face of constitutional impediments. Light is shed on political and constitutional conditions in the early decades of the twentieth century in John D. Buenker, “Urban Liberalism in Rhode Island,” Rhode Island History, 30 (May 1971): 35–51; John D. Buenker, “The Politics of Resistance: The Rural Based Yankee Republican Machines of Connecticut and Rhode Island,” New England Quarterly 47 (June 1974): 212–37; Carl Gersuny, “Uphill Battle: Lucius F. C. Garvin’s Crusade for Political Reform,” Rhode Island History 39 (May 1980): 57–75; Ellen Hartwell, “Political Extremism and the Quest for Absolutes in Rhode Island, 1900–1935” (honors thesis, Brown University, 1980); William H. Edwards, “My Five Senators [1924 filibuster],” Rhode Island Yearbook

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(1970), H179–H181; Jeffrey S. Shinn, “Rhode Island Reform Politics of the 1920s” (honors thesis, Brown University, 1973); Clifford Chesley Hubbard, “The Legislative War in Rhode Island,” National Municipal Review 13 (1924): 477–80; John K. White, “Alfred E. Smith’s Rhode Island Revolution: The Election of 1928,” Rhode Island History 42 (1983): 57–66; and David Patten, Rhode Island Story (Providence, 1954), by the Providence Journal’s political reporter. The Bloodless Revolution and Its Aftermath, 1935–1939 The most informative works on the Bloodless Revolution and the politically turbulent 1930s are Erwin I. Levine, Theodore Francis Green: The Rhode Island Years, 1906–1936 (Providence, 1963); James F. Findlay, “The Great Textile Strike of 1934: Illuminating Rhode Island History in the Thirties,” Rhode Island History 42 (Feb. 1983): 17–29; William J. Jennings, Jr., “The Prince of Pawtucket: A Study of the Politics of Thomas P. McCoy” (doctoral dissertation, Providence College, 1985); Matthew J. Smith, “The Real McCoy in the Bloodless Revolution,” Rhode Island History 32 (Aug. 1973): 67–85; Vernon C. Norton, A Common Man for the Common People: The Life of Thomas P. McCoy (Pawtucket, 1946), which is laudatory but revealing; and Zechariah Chafee, Jr., The Constitutional Convention That Never Met, 2 parts (Providence, 1938–1939), and State House versus Pent House: Legal Aspects of the Rhode Island Race Track Row (Providence, 1937). The Democratic Ascendancy, 1940–1985 For the most part, this era has been the domain of political scientists. Informative accounts are Murray S. Stedman, Jr., and Susan W. Stedman, “The Rise of the Democratic Party of Rhode Island,” New England Quarterly 24 (Sept. 1951): 329– 41; Stefano Luconi, The Italian-American Vote in Providence, Rhode Island, 1916– 1948 (Madison, N.J., 2004); John K. White, “One-Partyism in Rhode Island,” in Josephine F. Milburn and William Doyle, eds., New England Political Parties (Cambridge, Mass., 1983), pp. 243–67; Duane Lockard, New England State Politics (Princeton, N.J., 1959), whose Rhode Island chapter titles are “One Party Facade and Two Party Realty?” and “Politics on the Seamy Side”; Jay S. Goodman, The Democrats and Labor in Rhode Island, 1952–1962 (Providence, 1967); and Matthew J. Smith, “The Long Count and Its Legacy: Rhode Island Political Realignment, 1956–1964,” Rhode Island History 35 (May 1976): 49–61. The debates and proceedings of the five limited conventions of this era have been preserved and published: Proceedings of the Limited Constitutional Convention … 1944 (Providence, 1944); Proceedings of the Limited Constitutional Convention … 1951 (Providence, 1951); Proceedings of the Limited Constitutional Convention … 1955 (Providence, 1955); Proceedings of the Limited Constitutional Convention … 1958 (Providence, 1958); and Patrick T. Conley, comp., Proceedings of the Rhode Island Constitutional Convention of 1973 (Providence, 1973). See also J. Howard McGrath, “The Constitutional Convention of 1944,” Rhode Island History 4 (Jan. 1945): 1–6.

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The papers of the 1968 and 1973 conventions are stored at the Providence College Archives. Consult Matthew J. Smith and Jane M. Jackson, comps., Inventory to the Conley Collection of the Rhode Island Constitutional Convention, 1964–1969 (Providence, 1973). The work of the 1968 open convention has been studied by Elmer J. Cornwell, Jr., and Jay S. Goodman, The Politics of the Rhode Island Constitutional Convention (New York, 1969), and defended by Patrick T. Conley, “A Statement in Defense of the Proposed Rhode Island Constitution,” Rhode Island Bar Journal 16 (Jan.1968): 3, 9–13. The Modern Era, 1986–2006 Mario R. DiNunzio et al., Constitution of the State of Rhode Island and Providence Plantations … 1986: Annotated Edition (Providence, 1988), compiled by the convention’s research staff, is an indispensable reference to the changes made by the 1986 Constitutional Convention and the delegates’ intent. See also Jane M. Jackson, comp., An Inventory of the Papers of the Rhode Island Constitutional Convention, 1986, in the Phillips Memorial Library of Providence College (Providence, 1989), and Patrick T. Conley, “The 1986 State Constitutional Convention: The Salient Issues,” Rhode Island Bar Journal 33 (May 1985): 10–12, a charge to the delegates. Other constitution-related essays include Samuel D. Zurier, “Rhode Island’s Ethics Laws: Constitutional and Policy Issues,” Rhode Island Bar Journal 44 (June– July 1996): 9–12, 49–55, and Conley, “The Constitutional Cavalcade, 1960–2000,” in his book Rhode Island in Rhetoric and Reflection, pp. 182–92, a firsthand account of modern constitutional issues that spans four decades. Most of the written and oral debate on constitutional questions from the late 1990s onward have concentrated on the Public Trust Doctrine, the campaign for separation of powers, or the casino question. These treatises and essays will be cited in conjunction with Article I, Section17 (Public Trust); Article V (Distribution of Powers); or Article VI, Sections 14 and 22 (Lotteries and Gambling).

RHODE ISLAND CONSTITUTIONAL COMMENTARY Article I: Declaration of Rights and Principles These works are listed in sectional order. Patrick T. Conley and John P. Kaminski, eds., The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison, Wis., 1992), contains a chapter by Conley entitled “Rhode Island: Laboratory for the ‘Lively Experiment’,” which concentrates on the issues of religious freedom (“soul liberty”), trial by jury, suffrage, abolitionism, and states’ rights. Rhode Island’s Road to Liberty (Providence, 1987), edited by Patrick T. Conley and Albert T. Klyberg, is a collection in facsimile of key Rhode Island documents (1644–1841) relating to the development of freedom and self-government. Kevin Leitao, “Rhode Island’s Forgotten Bill of Rights,” Roger Williams University Law Review 1 (Spring

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1996): 31–61, is well researched and imaginative, but it reaches a faulty conclusion, namely, that the Declaration of Rights drafted and approved by the 1790 state ratifying convention that had been called for the specific and limited purpose of ratifying the federal Constitution was a declaration that acquired the force of law in Rhode Island thereafter. On the modern campaign for the vindication of rights, see Milton Stanzler, Eternally Vigilant: The Rhode Island ACLU Story (Chapel Hill, N.C., 1998). Glenn W. LaFantasie, “Murder of an Indian, 1638: Equal Treatment before the Law,” Rhode Island History 38 (Aug. 1979): 67–76, is an early and interesting application of due process and equal protection. This essay describes Rhode Island’s first major criminal manhunt and sheds light on the status of red men and white in local colonial courts. It may surprise some that in 1638 three whites could be executed for the murder of one Indian, and that Wampanoag Chief Massasoit’s view of felony murder prevailed over Roger Williams’s more restrictive interpretation of the crime. However, such relative equality before the law was not uncommon in early New England, and eventually natives attained the status of jurors. Alden T. Vaughan’s New England Frontier: Puritans and Indians, 1620–1675, rev. ed. (New York, 1979), a leading work on this subject, asserts that “when the Indian came to the Puritan’s courts for civil or criminal cases, he could expect just treatment…. Case by case, the New England court records reveal no apparent discrimination against the Indian. A white plaintiff was not assured of a favorable decision, nor an Indian of an adverse one.” pp. 186–95. Kelly Fracassa, “Constitutional Prospects for Same Sex Marriages in Rhode Island,” Rhode Island Bar Journal 49 (Dec. 2000): 9–13, 28–39, addresses an emerging equal protection issue. Rhode Island’s famed tradition of religious liberty (“free exercise”) and churchstate separation (no establishment of religion) has been the subject of much historical inquiry, especially as it pertains to the “lively experiment” of Roger Williams and the influence of Williams on the First Amendment. The literature on Roger Williams is voluminous and growing. A useful, though dated, introduction to it is LeRoy Moore, Jr., “Roger Williams and the Historians,” Church History 32 (Dec. 1963): 432–51. More recent and more thorough are Wallace Coyle, Roger Williams: A Reference Guide (Boston, 1977); Nancy E. Peace, “Roger Williams—A Historiographical Essay,” Rhode Island History 35 (Nov. 1976): 103–13; and Anthony O. Carliano, “Roger Williams and His Place in History: The Background and the Last Quarter Century,” Rhode Island History 58 (May 2000): 35–71. The Complete Writings of Roger Williams, 7 vols. (New York, 1963), with an introduction by Perry Miller, is the most accessible compilation of Williams’s works. It has been supplemented by Glenn W. LaFantasie et al., comps., The Correspondence of Roger Williams, 2 vols. (Hanover, N.H., 1988), which contains an excellent introductory essay by LaFantasie that is particularly authoritative on Williams’s relations with the Indians. The so-called Progressive historians writing during the second quarter of the twentieth century viewed Williams as primarily a political thinker and the first great hero of the American democratic tradition. They inordinately minimized Williams’s religious thought and erroneously believed that his thirst for religious

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toleration was only a necessary deduction from the major principles of his political theory. Chief among the historians viewing Williams in this romantic light were Vernon L. Parrington, Main Currents in American Thought (New York, 1927), vol. 1, pp. 62–75; James E. Ernst, The Political Thought of Roger Williams (Seattle, 1929); and Samuel H. Brockunier, The Irrepressible Democrat: Roger Williams (New York, 1940). A theological interpretation of Williams’s thought and writings has properly been offered by recent scholars, most notably Mauro Calamandrei, “Neglected Aspects of Roger Williams’ Thought,” Church History 21 (Sept. 1952): 239–59; Perry Miller, Roger Williams: His Contribution to the American Tradition (Indianapolis, 1953); Alan Simpson, “How Democratic Was Roger Williams?” William and Mary Quarterly, 3rd ser., 13 (Jan. 1956): 53–67; Sacvan Bercovitch, “Typology in Puritan New England: The Williams-Cotton Controversy Reassessed,” American Quarterly 19 (Summer 1967): 166–91; Richard M. Reinitz, “Symbolism and Freedom: The Use of Biblical Typology as an Argument for Religious Freedom in Seventeenth Century England and America” (doctoral dissertation, University of Rochester, 1967); Jasper Rosenmeier, “The Teacher and the Witness: John Cotton and Roger Williams,” William and Mary Quarterly, 3rd ser., 25 (July 1968): 408–31; and John Garrett, Roger Williams: Witness Beyond Christendom (New York, 1970). Ola Elizabeth Winslow, Master Roger Williams (New York, 1957), is the most balanced biography of the controversial Williams. The best study of Williams’s ideology is the succinct and penetrating Edmund S. Morgan, Roger Williams: The Church and the State (New York, 1967). Morgan suggests the principal reason for the erroneous identification of Williams as primarily a political theorist: “Williams’ every thought took its rise from religion. But in his writings … Williams was more often concerned with ecclesiastical and political institutions than with theology.” Williams continues to be a source of fascination to historians, a fact attested to by such excellent recent analyses of his life and thought as W. Clark Gilpin, The Millenarian Piety of Roger Williams (Chicago, 1979); Hugh Spurgin, Roger Williams and Puritan Radicalism in the English Separatist Tradition (Lewiston, N.Y., 1989); Daniel C. Felker, “Roger Williams’s Use of Legal Authority: Testing Authority in Early New England,” New England Quarterly 63 (Dec. 1990): 624–48; Edwin S. Gaustad, Liberty of Conscience: Roger Williams in America (Grand Rapids, Mich., 1991); Jimmy D. Neff, “Roger Williams: Pious Puritan and Strict Separationist,” Journal of Church and State 38 (Summer 1996): 529–46; and Edward J. Eberle, “Roger Williams on Liberty of Conscience,” Roger Williams University Law Review 10 (Spring 2005): 289–323; and “Roger Williams’ Gift: Religious Freedom in America,” Roger Williams University Law Review 4 (Spring 1999): 425–86. The issue of Williams’s influence on the framing of the First Amendment has sparked much recent historical debate. Perry Miller regards such influence as negligible, a view he presents in Roger Williams: His Contribution to the American Tradition (Indianapolis, 1953). William G. McLoughlin, the leading student of Baptist history, gives Williams some acknowledgment but believes that lesser-known Baptist preachers, especially Isaac Backus, deserve most of the credit for the acceptance of separationism. McLoughlin’s formidable position is set

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forth in New England Dissent, 1630–1833: The Baptists and the Separation of Church and State, 2 vols. (Cambridge, Mass., 1971), Isaac Backus and the American Pietistic Tradition (Boston, 1967), and Soul Liberty: The Baptists’ Struggle in New England, 1630–1833 (Hanover, N.H., 1991). Philip Hamburger, Separation of Church and State (Cambridge, MA., 2002) is a tour de force that views Williams’s separationism primarily “as part of his relentless quest for religious purity,” and asserts that his anticlerical separationism was different from and much broader than the disestablishment separationism of those who framed the First Amendment, pp. 38–53, 346–57. Despite such scholarly attempts to minimize the influence of Williams, many modern historians of church-state relations regard him as a precursor and shaper of the First Amendment’s religious clauses. Persuasive on this point are the writings of Glenn W. LaFantasie, editor of Williams’s correspondence, and Martin E. Marty, a prolific historian of American religion. The most assertive scholarly statement of this position is Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago, 1965), especially chapter 1, “Federalism and the First Amendment.” Soul Liberty: Rhode Island’s Gift to the Nation (Providence, 1897), by the learned nineteenth-century Rhode Island antiquarian Sidney S. Rider, is another forceful and persuasive claim about Williams’s influence and retains great value for the historian. On the church-state views of Williams’s lesser-known contemporaries, see Sydney V. James, John Clarke and His Legacies: Religion and Law in Colonial Rhode Island, 1638–1750, ed. Theodore Dwight Bozeman (University Park, Pa., 1999); Louis Franklin Asher, John Clarke (1609–1876): Pioneer in American Medicine, Democratic Ideals, and Champion of Religious Liberty (Pittsburgh, 1997); Richard L. Greaves, “A Colonial Fifth Monarchist?: John Clarke of Rhode Island,” Rhode Island History 40 (May 1981): 43–47; Thomas W. Bicknell, Story of Dr. John Clarke (Providence, 1915); Philip F. Gura, “The Radical Ideology of Samuel Gorton: New Light on the Relation of English to American Puritanism,” William and Mary Quarterly, 3rd ser., 36 (Jan. 1979): 78–100; Emily Coddington Williams, William Coddington of Rhode Island (Newport, 1941); Richard B. Morris, “Jezebel before the Judges: Anne Hutchinson Tried for Sedition,” in Fair Trial: Fourteen Who Stood Accused from Anne Hutchinson to Alger Hiss (New York, 1952); Lyle Koehler, “The Case of the American Jezebel: Anne Hutchinson and Female Agitation during the Years of Antinomian Turmoil, 1636–1640,” William and Mary Quarterly, 3rd ser., 31 (Jan. 1974): 55–78; Emily Battis, Saints and Sectaries: Anne Hutchinson and the Antinomian Controversy in the Massachusetts Bay Colony (Chapel Hill, N.C., 1962); and Michael P. Winship, The Times and Trials of Anne Hutchinson (Lawrence, Kans., 2005). There are several popular biographies of Hutchinson, but none are authoritative. The challenge to societal stability posed by these freethinking exiles is analyzed by Theodore Dwight Bozeman, “Religious Liberty and the Problem of Order in Early Rhode Island,” New England Quarterly 45 (Mar. 1972): 44–64; Dennis A. O’Toole, “Democratic Balance—Ideals of Community in Early Portsmouth,” Rhode Island History 32 (Feb. 1973): 3–17; and Robert d’Brunkow, “Love and Order in Roger Williams’ Writings,” Rhode Island History 35 (Nov. 1976), 115–26.

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For the travail of religious and racial minorities despite the guarantees of the Royal Charter of 1663, see David C. Adelman, “Strangers: Civil Rights of Jews in the Colony of Rhode Island,” Rhode Island History 13 (July 1954): 65–77; Sidney S. Rider, An Inquiry concerning the Origin of the Clause in the Laws of Rhode Island (1719–1783) Disfranchising Roman Catholics (Providence, 1889); John Richard Meade, “The Truth Concerning the Disfranchisement of Catholics in Rhode Island,” The American Catholic Quarterly Review 19 (Jan. 1894): 169–77; Robert W. Hayman, Catholicism in Rhode Island and the Diocese of Providence, vol. 1, 1780– 1886, and vol. 2, 1886–1921 (Providence, 1982 and 1995); Patrick T. Conley and Matthew J. Smith, Catholicism in Rhode Island: The Formative Era (Providence, 1976); and Patrick T. Conley, “Civil Rights and Civil Wrongs in Rhode Island: Church, State, and the Constitution, 1636–1986,” Rhode Island Bar Journal 35 (June–July 1987): 14–19, which emphasizes the persistence of political and constitutional nativism, especially against Irish Catholics, into the early twentieth century. Hayman and Sterne, supra, concur. The most virulent aspect of anti-Catholicism in the 1920s is analyzed by Norman Smith, “The Ku Klux Klan in Rhode Island,” Rhode Island History 37 (May 1978): 35–45; Donna Thomas, “The Providence Visitor and Nativist Issues, 1916–1924,” Rhode Island History 38 (May 1979): 50–62; and Joseph W. Sullivan, “Rhode Island’s Invisible Empire: A Demographic Glimpse into the Ku Klux Klan,” Rhode Island History 47 (May 1989): 74–82. William G. McLoughlin, “The Checkered Path of Religious Freedom,” Rhode Island Bar Journal 27 (Dec. 1978): 1, 10–12, is an essay with Rhode Island allusions by the noted historian of American religion and Brown professor. Wayne R. Swanson, The Christ Child Goes to Court (Philadelphia, 1990), analyzes Lynch v. Donnelly, the Pawtucket nativity display case decided by the U.S. Supreme Court in 1984. Rights-related issues as they pertain to Native Americans are the focus of Zachariah Allen, Defense of the Rhode Island System of Treatment of the Indians and of Civil and Religious Liberty (Providence, 1876), an essay that is apologetic and antiquarian but also instructive, and Paul R. Campbell and Glenn W. LaFantasie, “‘Scattered to the Winds of Heaven’—Narragansett Indians, 1676–1880,” Rhode Island History 37 (Aug. 1978): 67–83, an excellent survey of the legal status of the tribe in the two centuries from King Philip’s War to the point of statutory detribalization. On Rhode Island domestic slavery, see William Davis Miller, “The Narragansett Planters,” Proceedings of the American Antiquarian Society 43 (1933): 49–115; William D. Johnston, “Slavery in Rhode Island, 1755–1776,” Publications of the Rhode Island Historical Society 2 (1894): 109–64; Edward Channing, “The Narragansett Planters: A Study of Causes,” John Hopkins University Studies in Political and Social Science (Baltimore, 1886), vol. 4, pp. 105–27; Lorenzo Johnston Greene, The Negro in Colonial New England (New York, 1942); Carl R. Woodward, Plantation in Yankeeland (Chester, Conn., 1971); Irving H. Bartlett, From Slave to Citizen: The Story of the Negro in Rhode Island (Providence, 1954); and Louis P. Masur, “Slavery in Eighteenth-Century Rhode Island: Evidence from the Census of 1774,” Slavery & Abolition 6 (1985): 139–50. The standard account of the foreign slave trade is Jay Coughtry, The Notorious Triangle: Rhode Island and the African Slave Trade, 1700–1807 (Philadelphia,

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1981). For its demise, see Elizabeth Donnan, “Agitation against the Slave Trade in Rhode Island, 1784–1790,” in Persecution and Liberty: Essays in Honor of George Lincoln Burr (New York, 1931). On the movement against the existence of slavery in Rhode Island, consult Arline R. Kiven, Then Why the Negroes: The Nature and Course of the Anti-Slavery Movement in Rhode Island, 1637–1861 (Providence, 1973); James F. Reilly, “The Providence Abolition Society,” Rhode Island History 21 (Apr. 1962): 33-48, and “Moses Brown and the Rhode Island Antislavery Movement” (master’s thesis, Brown University, 1951); David S. Lovejoy, “Samuel Hopkins: Religion, Slavery, and the Revolution,” New England Quarterly 40 (June 1967): 227–43; and Mack Thompson, Moses Brown: Reluctant Reformer (Chapel Hill, N.C., 1962). Little of merit has been written about procedural due process in modern Rhode Island. Some notable exceptions are Andrew Horowitz, “The Right to Counsel in Criminal Cases: The Law and the Reality in Rhode Island District Court,” Roger Williams University Law Review 9 (Spring 2004): 409–53; Milton Stanzler, “A Case of Racial Justice: Quince and Ward v. State of Rhode Island,” Rhode Island Bar Journal 54 (Mar–Apr., 2006): 11–13, a Section 9 case involving the unlawful detainment for six months of purported material witnesses to an alleged murder; Richard S. Humphrey, “Punishment before Conviction—The Effect of Automatic Post-Arrest Incarceration for Drunk Driving,” Rhode Island Bar Journal 41 (May 1993): 13–14, about which the author has published several updates; Edward L. Maggiacomo, “What Price Silence? The Costs Associated with Exercising the Privilege against Self-Incrimination,” Rhode Island Bar Journal 42 (May 1994): 5–10; Deborah M. Kupa, “Erosion of the Confrontation Clause in the Ocean State: Admitting Declarations of a Decedent Made in Good Faith,” Roger Williams University Law Review 1 (1996): 137–82; and William R. Pabst Jr., “What Do SixMember Juries Really Save?” Rhode Island Bar Journal 24 (April 1976): 3–5. Imprisonment for debt in early Rhode Island is analyzed by Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607–1900 (Madison, Wis., 1974), chapter 8, pp. 86–102. Criminal law topics are the subject of Harold A. Phelps, “Frequency of Crime and Punishment [Providence and Bristol Counties, 1897–1927],” Journal of the American Institute of Criminal Law and Criminology 19 (Aug. 1928): 165–80, and Richard J. Maiman, “Constitutionalizing the Juvenile Court: The Impact of In re Gault in Rhode Island” (doctoral dissertation, Brown University, 1972). Rhode Island’s most famous modern criminal trial is analyzed from a constitutional perspective by Alan M. Dershowitz, Reversal of Fortune: Inside the Von Bulow Case (New York, 1986), an irreverent account critical of the state judicial system, and in William Wright, The Von Bulow Affair (New York, 1983). On the death penalty and its abolition, see William Knowles and Edward C. Larned, eds., A Full Report of the Trial of John Gordon and William Gordon Charged with the Murder of Amasa Sprague, 2nd ed. (Providence, 1844); Ralph E. Mackey, “ ‘The Result May Be Glorious’—Anti-Gallows Movement in Rhode Island, 1838– 1852,” Rhode Island History 33 (Feb. 1974): 19–31; Patrick T. Conley, “Death Knell for the Death Penalty: The Gordon Murder Trial and Rhode Island’s Abolition of

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Capital Punishment,” Rhode Island Bar Journal 34 (May 1986): 11–15; and Charles Hoffman and Tess Hoffman, Brotherly Love: Murder and the Politics of Prejudice in Nineteenth Century Rhode Island, a whodunit exonerating John Gordon and suggesting that Senator William Sprague, brother of Amasa, may have been responsible for the murder of his sibling. Section 16 taking issues are discussed by Deborah A. Foppert, “Merger Ordinances [in R.I.]: An Unconstitutional Taking of Property?” Suffolk University Law Review 26 (1992): 365–78; David L. Callies, “Property Rights After Palazzolo: When What You Know Can Hurt You,” Probate & Property, 16 (Mar.–Apr. 2002), 37–41; and Christina M. Senno, “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,” Roger Williams University Law Review, 11 (Spring 2006): 721–56, which urges Rhode Island to depart from the Kelo standard. Rights to the shore and environmental regulations (Section 17) are perceptively analyzed by Mario R. DiNunzio, “The Rights of Fishery in Rhode Island Waters,” Research Staff Report no. 31, Rhode Island Constitutional Convention, 1964–69; Matthew J. Slepkow, “Shoring Up the Limits of Rhode Island’s Public Trust Doctrine: Greater Providence Chamber of Commerce v. State of Rhode Island Makes It Simple as One, Two, Fee,” Roger Williams University Law Review 1 (Spring 1996): 183–212; Michelle A. Ruberto and Kathleen A. Ryan, “The Public Trust Doctrine and Legislative Regulation in Rhode Island: A Legal Framework Providing Greater Access to Coastal Resources in the Ocean State,” Suffolk University Law Review 24 (1990): 351–426; Dennis H. Esposito, “Environmental Protection vs. Landowner Rights: The New Rhode Island Regulatory Structure,” Rhode Island Bar Journal 38 (Mar. 1990): 7–10; Catherine Robinson Hall, “Dockominuims: In Conflict with the Public Trust Doctrine,” Suffolk University Law Review 24 (1990): 331–50; Dennis W. Nixon, “Harborlines, Underwater Lots, and Coastal Development,” Rhode Island Bar Journal 33 (Oct. 1984): 8–14; and “Evolution of Public and Private Rights to Rhode Island’s Shore,” Suffolk University Law Review 24 (1990): 313–29. Free speech is discussed by Kate Russum, “Rhode Island’s Point-Counterpoint: Morality and Free Speech,” Rhode Island Bar Journal 46 (Oct. 1997): 7–9, 32–3, and George Vetter and Christopher C. Roche, “The First Amendment and the Artist,” Rhode Island Bar Journal 44 (Mar. 1996): 7–17, (Apr. 1996): 9–12, 35–50, a broad discussion presented in two parts across two issues with reference to Rhode Island law. Sarah Y. Feldman, “Books Behind Bars: The Rhode Island Commission to Encourage Morality in Youth, 1956-1964,” Rhode Island History, 64 (fall, 2006), 63-81 analyzes Bantam Books v. Sullivan, 372 U. S. 58 (1963), a Rhode Island case in which the U. S. Supreme Court ruled (8 to 1) that the morality commission’s methods constituted an “informal censorship” that violated the First Amendment. On free speech generally, see the biography of noted Rhode Islander Zechariah Chafee, Jr., by Donald Smith: Zechariah Chafee, Jr., Defender of Liberty and Law (Cambridge, Mass., 1986), and Edward D. Re, ed., Freedom’s Prophet (New York and London, 1981), a collection of eulogies and reminiscences of Chafee. John J. Richards, Rhode Island’s Early Defenders and Their Successors [the Militia] (East Greenwich, R.I., 1930), and “History of the Collapse of Compulsory Militia

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Service in Rhode Island, 1836–1842,” manuscript, ca. 1930, Rhode Island Historical Society, illuminate Section 18. George M. Dennison, “Martial Law: The Development of a Theory of Emergency Powers,” American Journal of Legal History 18 (Jan. 1974): 52–79 focuses on the Dorr Rebellion. Claudia J. Matzko, “The Obfuscation of Rhode Island’s Clearly Expressed Constitutional Right to Keep and Bear Arms: Mosby v. Devine,” Roger Williams University Law Review 11 (Spring 2006): 651–75, is sharply critical of the Rhode Island Supreme Court’s ruling in a Section 22 case. Persuasively arguing the need to assert state-based rights rather than simply deferring to federal constitutional standards are Jacob Hagopian and Paul W. Goodale, “State Courts as Guardians of Constitutional Liberties,” Rhode Island Bar Journal 27 (Dec. 1979): 5–12; Michael DiBiase, “Reviving Rhode Island State Constitutional Rights: The Need for a New Approach to Constitutional Questions,” Rhode Island Bar Journal 35 (May 1987): 5–9; and Thomas R. Bender, “For a More Vigorous State Constitutionalism,” Roger Williams University Law Review 10 (Spring 2005): 621–83. Articles II, III, IV: The Election Process Conley, Democracy, is the most detailed analysis of the evolution of voting rights in Rhode Island through the mid-nineteenth century, but useful also are Noah J. Arnold, “The History of Suffrage in Rhode Island,” Narragansett Historical Register 8 (1900): 305–31; Charles E. Gorman, An Historical Statement of the Elective Franchise in Rhode Island (Providence, 1879); Edwin Maxey, “Suffrage Extension in Rhode Island down to 1842,” American Law Review 42 (July–Aug. 1908): 541–77; Sidney Smith Rider, “The Origin, Meaning and Duration of Existence in Rhode Island of the Political Word ‘Prox,’ ” Book Notes 25 (1908): 201–204, and 26 (1909): 1–5, 12– 15; Chilton Williamson, American Suffrage from Property to Democracy, 1760–1860 (Princeton, N.J., 1960), which has a chapter on “The Rhode Island Explosion,” pp. 242–59, and “Rhode Island Suffrage since the Dorr War,” New England Quarterly 28 (Mar. 1955): 34–50; Robert M. Laffey, “The Movement to Achieve Suffrage Reform in Rhode Island, 1829–1888” (master’s seminar paper, Providence College, 1978); and J. Stanley Lemons and Michael A. McKenna, “Re-enfranchisement of Rhode Island Negroes,” Rhode Island History 30 (Winter 1971): 2–13. Tracts urging suffrage reform include Jacob Frieze, A Concise History of the Efforts to Obtain an Extension of the Suffrage in Rhode Island from the Year 1811 to 1842 (Providence, 1842); Seth Luther, An Address on the Right of Free Suffrage (Providence, 1833); and Samuel Jones, A Treatise on the Right of Suffrage (Boston, 1842). The leading advocates of restriction were Benjamin Hazard, Report of the Committee on the Subject of an Extension of Suffrage (Providence, 1829) and Henry Bowen Anthony, “Limited Suffrage in Rhode Island,” North American Review 37 (1883): 413–21; and Defense of Rhode Island, Her Institutions, and Her Right to Representatives in Congress (Providence, 1881), an attempt to ward off a constitutional challenge, mounted in the U.S. Senate by Charles E. Gorman, that invoked the Fourteenth and Fifteenth Amendments to attack Rhode Island’s restrictive, nativistic suffrage laws. The most useful accounts of the woman suffrage effort are John D. Buenker, “The Urban Political Machine and Woman Suffrage: A Study in Political Adaptability,”

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Historian 33 (Spring 1971): 264–79; Sharon Weems, “The Rhode Island Woman’s Suffrage Movement, 1868–1920” (seminar paper, Brown University, 1976); Kathleen E. Egan, “A History of the Rhode Island Woman Suffrage Movement” (master’s research paper, Providence College, 1985); Anna Garlin Spencer, “Rhode Island,” in Elizabeth Stanton et al., History of Woman Suffrage (New York and Rochester, 1881–1922), 4, 907–21; Mary A. Greene, Legal Status of Women in Rhode Island (Providence, 1900); and, especially, Sara M. Algeo, The Story of a Sub-pioneer (Providence, 1925), by a participant in this effort. Rhode Island Board of Elections, Official Count of the Ballots Cast, biennial, is the basic source for election results. The Providence Journal Almanac, 1887–1997, also contains detailed election information. In 1997 it ceased publication after 111 years of presenting a treasure trove of factual and statistical information about Rhode Island politics, elections, and referenda. Article V: Separation of Powers The opening skirmishes of the final campaign to achieve true separation of powers in Rhode Island were waged on intellectual grounds using constitutional theory. The scholarly initiators were Sheldon Whitehouse, “The Impetuous Vortex,” Rhode Island Bar Journal 43 (Apr. 1995): 7–17, and “Appointments by the Legislature under the Rhode Island Separation of Powers Doctrine: The Hazards of the Road Less Traveled,” Roger Williams University Law Review 1 (Spring 1996): 1–29, and Carl T. Bogus et al., “Symposium: Separation of Powers in State Constitutional Law,” Roger Williams University Law Review 4 (Fall 1998): 1–174. Bogus, a law professor at Roger Williams, remained a persistent advocate of reform until its realization in November 2004. Two papers from the Bogus symposium are specific to Rhode Island: Richard A. Hogarty, “When Legislators Become Administrators: The Problem of Plural Office Holding,” Roger Williams University Law Review 4 (Fall 1998): 133– 57, and Robert F. Williams, “Rhode Island’s Distribution of Powers Question of the Century: Reverse Delegation and Implied Limits on Legislative Powers,” Roger Williams University Law Review 4 (Fall 1998): 159–74. Both criticize the practice by Rhode Island legislators of serving on executive boards and commissions. The 1999 Supreme Court advisory opinion on separation of powers sparked further debate and discussion from attorneys and professors of political science and law; for example, Thomas W. Lyons, “The Supreme Court Decides the Balance of Power,” Rhode Island Bar Journal 47 (Nov. 1998): 3–7, 23–39, and Maureen Moakley, “Separation of Powers Debate Is a Struggle for Power,” Providence Journal, July 7, 1998, Commentary, p. B5. Patrick T. Conley, Neither Separate nor Equal: Legislature and Executive in Rhode Island Constitutional History (Providence, 1999), is the outgrowth of an amicus brief presented to the Rhode Island Supreme Court asserting the historic reality of General Assembly power. The debate continued following the 1999 opinions when the Bar Journal devoted an issue—48 (Nov., 1999)—to their analysis. Defending the majority, Conley responded to Professor Bogus, attorney James Marusak, and Professor Matthew

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Harrington, associate dean of the Roger Williams University Law School, all of whom were critical of the majority’s opinion. Then Mel A. Topf, “The Advisory Opinion on Separation of Powers: The Uncertain Contours of Advisory Opinion Jurisprudence in Rhode Island,” Roger Williams University Law Review 5 (May 2000): 385–416, offered a learned analysis of the advisory opinion device. In a commentary entitled “The ‘Elephant Gun’: Governors’ Advisory Referenda,” Rhode Island Lawyers’ Weekly, Aug. 28, 2006, p. 6, Conley attempted to demonstrate that the popular “mandate” for separation had been cleverly manufactured by Republican Governor Lincoln Almond and his advisers for partisan advantage. Articles VI, VII, VIII: The Legislative Process Conley, Neither Separate Nor Equal, is by far the most detailed history of the Rhode Island General Assembly. Sidney S. Rider, “Omnipotence of the General Assembly,” Book Notes 1, no. 6 (1883): 3, and “Legislative History in Rhode Island,” Book Notes 4 (1887): 103–4 are brief observations by a constitutional historian. Elmer E. Cornwell et al., The Rhode Island General Assembly (Providence, 1970), is a more recent assessment by the dean of the state’s political scientists. For a succinct treatment of apportionment, consult Patrick T. Conley, Jr., “One Town, Two Votes; One Man, One Vote: A History of Legislative Apportionment in Rhode Island,” Rhode Island Bar Journal 34 (May 1986): 18–21. Glenn McLoughlin, “The Rhode Island Senate, 1900–1935” (master’s research essay, Providence College, 1976), examines the Rhode Island Senate at the peak of its power. See also Henry E. Fowler and Grace Mabel Sherwood, Officers, Boards, and Commissions of Rhode Island (Providence, 1911), which shows the extent of senate influence under the Brayton Act. Emily Stier Adler and J. Stanley Lemons, The Elect: Rhode Island’s Women Legislators, 1922–1990 (Providence, 1990), is an important and interesting study of the role of women in Rhode Island’s governance. Patrick T. Conley, “Article VI, Section 4: A Case Study in Constitutional Obsolescence,” Rhode Island Bar Journal 53 (Sept.–Oct. 2004): 7–11, analyzes a punitive provision that has been the subject of recent controversy. James P. Marusak, “Article VI, Section 4: Still Alive and Well,” Rhode Island Bar Journal 53 (Nov.–Dec. 2004): 11–15, challenges Conley’s conclusion. On Section 14 (Corporations), see Peter J. Coleman, The Transformation of Rhode Island, 1790–1860 (Providence, 1963), and Edwin Merrick Dodd, “Rhode Island,” in American Business Corporations until 1860, edited by Zechariah Chafee Jr. (Cambridge, Mass., 1954), pp. 428–35. Lotteries (Section 15) are discussed historically by John Russell Bartlett, History of Lotteries and the Lottery System in Rhode Island, edited and introduced by Russell J. DeSimone (Kingston, R.I., 2003), a collection of newspaper articles written in 1856 by Rhode Island’s secretary of state; and Charlotte Lowney, “The Heyday and Death of Lotteries in Rhode Island, 1820–1842” (master’s thesis, Brown University, 1965). Contemporary analyses include James J. Belliveau, “Casino Gambling under the Indian Gaming Regulatory

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Act: Narragansett Tribal Sovereignty versus Rhode Island Gambling Laws,” Suffolk University Law Review 27 (1993): 389–424; Patrick T. Conley, “The Confusion over Lotteries and Casinos in Rhode Island,” Rhode Island Lawyers’ Weekly, Aug. 30, 2004, p. 6, and “Casino Issue Belongs to Rhode Island Voters, Not the Court,” Rhode Island Lawyers’ Weekly, Feb. 13, 2006, pp. 6, 16; and Guy R. Bissonette, “The Current Status of Gambling in Rhode Island: The Abridged Version,” Rhode Island Bar Journal 54 (May–June 2006): 11–17, 37–39. Secretary of State, Manual with Rules and Orders for the Use of the General Assembly [Rhode Island Manual], 1867–1994, and Schedules [Acts and Resolves] of the [Rhode Island] General Assembly, published at the conclusion of each assembly session, are basic research tools. Article IX: The Executive Branch On the governor and his powers, consult Conley, Neither Separate Nor Equal; Jay S. Goodman, “The Development of the Office of Governor in Rhode Island,” Research Report no. 1, Rhode Island Constitutional Convention of 1964–1969, Providence College Archives; and Edward P. Warren, “Executive Leadership in Rhode Island and Nova Scotia: A Comparative Case Study” (doctoral dissertation, Brown University, 1978). Gertrude Selwyn Kimball, ed., The Correspondence of the Colonial Governors of Rhode Island, 1723–1775, 2 vols. (Boston and New York, 1902–3), and Ralph S. Mohr, [Rhode Island] Governors for Three Hundred Years, 1638–1954 (Providence, 1954) are very useful historical accounts. Article X: The Judiciary Courts and justices have elicited more attention from Rhode Island historians than any other legal or constitutional topic. However, in comparison with other original states, Rhode Island has lagged in the organization of its early court records. The recent establishment of the Rhode Island Supreme Court Judicial Records Center in Pawtucket offers great promise for the legal scholar; but until such research is performed, one must rely on administrative and antiquarian accounts of the justice system. Nearly 80 years ago Howard M. Chapin began the publication of Rhode Island’s court documents in the Records of the Court of Trials of the Colony of Providence Plantations (1920–1922), but only two slim volumes of trials, covering the period from 1647 to 1670, were printed. William R. Staples, ed., Proceedings of the First General Assembly … and the Code of Laws Adopted by That Assembly in 1647 … (1847), contains historical and explanatory notes by Staples, a justice of the Supreme Court and a pioneering Rhode Island historian. Other documentary material with explanatory narrative relating to the early Rhode Island justice system can be found in Dorothy S. Towle, ed., Records of the Vice-Admiralty Court of Rhode Island, 1716–1752 (Washington, D.C., 1936), with an historical introduction by Charles McLean Andrews, the premier historian of colonial America; Frederick B. Weiner, “Notes on the Rhode Island Admiralty,

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1727–1790,” Harvard Law Review 46 (Nov. 1932): 44–90; Marguerite Appleton, “Rhode Island’s First Court of Admiralty,” New England Quarterly 5 (Jan. 1932): 148–58; Harold D. Hazetine, “Appeals from Colonial Courts to the King in Council, with Especial Reference to Rhode Island,” in the Annual Report of the American Historical Association for the Year 1894, pp. 299–350; and Zechariah Chafee, Jr., “Records of the Rhode Island Court of Equity, 1741–1743,” Proceedings of the Colonial Society of Massachusetts 35 (1951): 91–118, which covers the brief span of this court’s existence. The early laws of the colony and state are edited with occasional historical annotation by Secretary of State John Russell Bartlett, comp., Records of the Colony of Rhode Island and Providence Plantations in New England, 10 vols. (1856–1865). Older studies of the development of the state court system include Sidney S. Rider, “Origin of the First Three Sections of Article X of the Constitution—On the Judiciary,” Book Notes 19 (1902): 49–53; Amasa M. Eaton, “The Development of the Judicial System in Rhode Island,” Yale Law Journal 14 (1905): 148–70; John T. Farrell, “The Early History of Rhode Island’s Court System,” Rhode Island History 9 (July 1950): 65–71, 103–117, and 10 (Oct. 1951): 14–25; and Francis I. McCanna, “A Study of the History and Jurisdiction of Rhode Island Courts,” Journal of the American Irish Historical Society 22 (1923): 170–95. Four recent studies of early Rhode Island law are scholarly and insightful: Mary Sarah Bilder, “The Origin of Appeal in America,” Hastings Law Journal 48 (July 1997): 913–68, which focuses on the appeal as an equitable remedy using seventeenth-century Rhode Island and Massachusetts as case studies; G. B. Warden, “The Rhode Island Civil Code of 1647,” in Saints and Revolutionaries: Essays on Early American History, ed. David D. Hall et al. (New York, 1984), pp. 142–49; Elaine Forman Crane, “Skirting the Law: Women and the Legal System in Early Rhode Island, Newport History (Spring 1996): 173–84; and Catherine Osborne DeCesare, “Courting Justice: Rhode Island Women and the General Court of Trials, 1671–1729” (doctoral dissertation, Providence College, 2000). Robert A. Coogan, “The Foundations of the Rhode Island Judicial System,” Rhode Island Bar Journal 1 (1964): 1–19, Charles E. Gorman, The Existing Judicial System of Rhode Island (Providence, 1901), and Joseph R. Weisberger, “The Founding of the Superior Court: A New Era in the Rhode Island Judicial System,” Rhode Island Bar Journal 34 (May 1986): 5–9, shed light on the origins of Article of Amendment XII (1903), the end of trial work for the Rhode Island Supreme Court, and the establishment of the superior court by the Court and Practice Act of 1905. Weisberger was both presiding justice of the superior court and chief justice of the supreme court. Crime and punishment in Rhode Island have attracted the attention of several legal historians. A very useful survey of early criminal law was written in the midnineteenth century by Chief Justice William R. Staples. His History of the Criminal Law of Rhode Island (1853) is learned and detailed. Also of interest is Constance D. Sherman, “Curious Crimes in Colonial Newport County,” Rhode Island History 18 (Oct. 1959): 116–18, and William D. Metz, “Thomas Mount,” Rhode Island Historical Society Collections 20 (1927): 53–58, the account of a man executed in

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South Kingstown in 1791 for burglary. A criminal proceeding that sparked the interest of the late Providence Journal critic and historian Bradford E. Swan concerns the trial of a well-endowed seventeenth-century pervert with a penchant for cows: The Case of Richard Chasmore, alias Long Dick (Providence, 1944). Swan also analyzed another early case: his “Frontier Justice in Newport, 1652,” Rhode Island History 33 (Feb. 1974): 3–7, covers the trial, conviction, and execution of Alexander Partridge, vigilante style, for an alleged murder committed in defense of his house. Biographical and autobiographical literature on Rhode Island judges and lawyers is scarce. In addition to the materials cited elsewhere in this essay on Stephen Hopkins, James Mitchell Varnum, and Thomas Wilson Dorr, scholarly works of this genre include Carl Bridenbaugh, Silas Downer: Forgotten Patriot (Providence, 1974), a volume containing the life and writings of a Providence attorney who penned several essays challenging the right of Parliament to legislate for the colonies, and Willliam M. Fowler, William Ellery: A Rhode Island Politico and Lord of the Admiralty (Metuchen, N.J., 1973), a detailed study of the career of a Harvardeducated Newport lawyer who signed the Declaration of Independence and led the fight for ratification of the United States Constitution. Ralph G. Vaccaro, “The Politics of David Howell of Rhode Island in the Period of the Confederation” (master’s thesis, Columbia University, 1947), traces the career of a Providence attorney who represented the state in the Confederation Congress; William E. Foster, “Sketch of the Life and Services of Theodore Foster,” Collections of the Rhode Island Historical Society 7 (1885): 111–34, details the career of the Providence lawyer who became Rhode Island’s first United States senator and the man for whom the town of Foster is named; Elizabeth F. Baker, Henry Wheaton, 1785–1848 (Philadelphia, 1937), is a biography of the Providence lawyer who became the first official reporter for the United States Supreme Court and a leading authority on international law; and Henry L. Bowen, Memoir of Tristam Burges (1835), and Thomas J. Sullivan, “From Federalist to Whig: The Political Career of Tristam Burges” (master’s thesis, University of Rhode Island, 1964), are accounts of a U.S. congressman, chief justice of the Rhode Island Supreme Court, and leader of the Rhode Island bar in the early national period. Thomas Durfee, ed., The Complete Works of Hon. Job Durfee … with a Memoir of the Author (1849), contains a life of Chief Justice Durfee, several of Durfee’s charges to the grand jury, a sketch of Chief Justice Samuel Eddy, and some discourses on local legal history. John H. Stiness, Memorial Address … Walter Snow Burges (1892), is the biography of a prominent Providence attorney and state supreme court justice by a supreme court chief justice. Walter S. Burges was a confidant of Thomas Wilson Dorr. See also Sidney S. Rider, “Joseph K. Angell, Law Writer,” in Conley, Liberty, pp. 286–93, and Peter C. Magrath, “Samuel Ames: The Great Chief Justice of Rhode Island,” Rhode Island History 24 (July 1965): 65–76. For modern members of the bench and bar, consult Walter H. Conser, Jr., “Ethnicity and Politics in Rhode Island: The Career of Frank Licht,” Rhode Island History 44 (1985): 97–107; Ruth E. Morgenthau, Pride without Prejudice: The Life of John O. Pastore (Providence, 1989); and Arlene Violet, Convictions: My Journey

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from the Convent to the Courtroom (New York, 1988). Violet, a former nun, was the first woman in the United States to be elected to the office of attorney general. Alfred H. Joslin, et al., “Justice Thomas F. Kelleher,” Suffolk University Law Review 22 (1988): 255–314, pays tribute to a jurist distinguished by his historically based opinions; Patrick T. Conley, “Joseph R. Weisberger: A Life in Law,” Rhode Island Bar Journal 49 (Feb. 2001): 5–9, 32–42, is an essay written on the occasion of Weisberger’s retirement as chief justice that summarizes his most important decisions; and “Tributes to Chief Justice Joseph R. Weisberger” in the Spring 2001 issue (vol. 6) of the Roger Williams University Law Review is an anthology by prominent members of the legal profession. Among the most informative glimpses into the history of bench and bar, with reference to notable cases, are the anecdotal reminiscences of lawyers and judges. Nineteenth-century Rhode Island legal history has been enriched by several indepth accounts. For the early decades, consult Wilkins Updike, Memoirs of the Rhode Island Bar (Providence, 1842), by a prominent South Kingstown lawyerpolitician. For the period from 1840 through the mid-1880s, Abraham Payne, Reminiscences of the Rhode Island Bar (1885), is a fascinating account. Chief Justice Thomas Durfee, Gleanings from the Judicial History of Rhode Island (1883), updated as The Judicial History of Rhode Island, in William T. Davis, ed., The New England States (1897), vol. 4, pp. 2362–97, combines reminiscence with substantial historical narrative as does the survey of Rhode Island law by Chief Justice Edward C. Stiness, “The Struggle for Judicial Supremacy,” in Edward Field, ed., State of Rhode Island and Providence Plantations at the End of the Century (Boston, 1902), vol. 3, pp. 91–169. The duty of the supreme court to render advisory opinions (Section 3) has generated considerable comment; for example, Fred J. Volpe, “Rhode Island Advisory Opinions, Ghosts That Slay?” Rhode Island Bar Journal 25 (Feb.1977): 2–3, 8, 13, 15–17, 19–21, a history of Supreme court advisory opinions from 1883 to 1974; Mel A. Topf, “The Jurisprudence of the Advisory Opinion Process in Rhode Island,” Roger Williams University Law Review 2 (Spring 1997): 207–56; and Thomas R. Bender, “Rhode Island’s Public Importance Exception for Advisory Opinions: The Unconstitutional Exercise of a Non-Judicial Power,” Roger Williams University Law Review 10 (Fall 2004): 123–63. Barton P. Jenks III, “Rhode Island’s New Judicial Merit Selection Law,” Roger Williams University Law Review 1 (Spring 1996): 63–85, and Michael J. Yelnosky, “Rhode Island’s Judicial Nominating Commission: Can ‘Reform’ Become Reality?” Roger Williams University Law Review 1 (Spring 1996): 87–135, express hopes and reservations concerning the 1994 judicial selection amendment. One-of-a-kind assessments of important Rhode Island judicial and constitutional topics of historical interest include Sidney S. Rider, “History of the Law Books of Rhode Island,” Book Notes 33 (1916): 201–2, 204–7; John R. Robinson, “Rhode Island Reports—1828–1885,” Rhode Island Bar Journal 24 (May 1976): 5– 7; Charles Warren, “Earliest Cases of Judicial Review of State Legislation by Federal Courts,” Yale Law Journal 32 (Nov. 1922), 15–28: placing Champion and Dickason v. Casey (1792) in national context; Patrick T. Conley, Jr., “The First

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Judicial Review of State Legislation: An Analysis of the Rhode Island Case of Champion and Dickason v. Casey (1792),” Rhode Island Bar Journal 36 (Oct. 1987): 5–9; William F. Micarelli, “The Rhode Island Supreme Court and Social Change, 1865–1900” (doctoral dissertation, Catholic University of America, 1969), which concludes that “the court was never so Darwinian as to remove business from the control of law, nor so reformist as to hamper the operations of industry”; and Robert G. Flanders, Jr., “The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents Are Valuable,” Roger Williams University Law Review 4 (Spring 1999): 401–24. Flanders practiced what he preached during his eight-and-a-half-year tenure on the Rhode Island Supreme Court. Article XII: Education Charles Carroll, Public Education in Rhode Island (Providence, 1918), is the classic study of its subject. It is supplemented by Thomas Francis Flaherty, “The History of the Public School Movement in the State of Rhode Island and Providence Plantations from 1827–1857” (doctoral dissertation, Boston College, 1969); and Francis X. Russo, “John Howland: Pioneer in the Free School Movement,” Rhode Island History 37 (Nov. 1978): 111–22. Two notable educational tracts from Rhode Island’s formative era are Henry Barnard, ed., Journal of the Rhode Island Institute of Instruction, 3 vols. (1846–1848), which contains Barnard’s “History and Condition of the Legislation of Rhode Island Respecting Public Schools,” vol. 1, pp. 97–148, and Elisha R. Potter Jr., Report Upon Public Schools and Education in Rhode Island (1854), which contains Potter’s essay on “The Bible and Prayer in Public Schools.” A basic source is the Report of the [Rhode Island] Commissioner of Public Schools (Annual, 1846–1922). It can be supplemented by Edward McEntee, compiler and editor, Laws of Rhode Island Relating to Education (Providence, 1948), and Thomas F. Flaherty, ed., Decisions of the Commissioner of Education, 1963–1972 (Providence, 1973). Rhode Island, Commission on the Legal Structure of Rhode Island Public Education, Report, 2 vols. (1941–1942), and Rhode Island, Special Commission to Study the Entire Field of Education (1967–1969), a series of reports by the “Thibeault Commission” on the status of education in Rhode Island, are welldocumented and detailed state-sponsored analyses. Other illuminating specialized studies include Joel Perlmann, “Schooling of Blacks in a Northern City: Providence, R.I., 1880–1925,” Perspectives in American History, n.s. 2 (1985): 125–82; Thomas A. Manion, “The Effect of External Financial Assistance on the Education Burden of Local Governments in the State of Rhode Island” (doctoral dissertation, Clark University, 1968); Patrick T. Conley and Fernando S. Cunha, “State Aid to Rhode Island’s Private Schools: A Case Study of DiCenso v. Robinson,” Catholic Lawyer 22 (Autumn 1976): 329–43; and Catherine Ann Fisher, “Teacher Union Grievances and Arbitrations in a Rhode Island Public School System from 1966 to 1983: A Historical Analysis of Statutory, Case, and Contractual Law” (doctoral dissertation, Boston College, 1984).

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Article XIII: City and Town Government, Home Rule For municipal affairs generally, see the Bureau of Government Research, University of Rhode Island, Newsletter (1960– ), a monthly publication containing brief notices and articles on Rhode Island government, especially local government. The more substantial articles are cited separately in this bibliography. The Providence Governmental Research Bureau produced approximately 219 specialized publications and reports relating to municipal affairs in the period from 1935 through 1955. See also Rhode Island Towns and Cities: Community Facts, a series of useful pamphlets on each Rhode Island community. Prepared in the late 1950s by the research division of the Rhode Island Development Council, each pamphlet contains essential information relating to the community’s historical, political, and social development. Important historical accounts of town development include Dennis Allen O’Toole, “Exiles, Refugees, and Rogues: The Quest for Civil Order in the Towns and Colony of Providence Plantations, 1636–1654” (doctoral dissertation, Brown University, 1973), and “Democratic Balance—Ideals of Community in Early Portsmouth,” Rhode Island History 32 (Feb. 1973): 3–17; Lawrence Leland Lowther, “Rhode Island Colonial Government, 1732” (doctoral dissertation, University of Washington, 1964), which contains the most detailed analysis available of town government in Rhode Island as it existed during the first third of the eighteenth century; Ruth Wallis Herndon, “Governing the Affairs of the Town: Continuity and Change in Rhode Island, 1750–1800” (doctoral dissertation, American University, 1992); and Bruce C. Daniels, Dissent and Conformity on Narragansett Bay: The Colonial Rhode Island Town (Middletown, Conn., 1983), an important scholarly study which concludes that Rhode Island’s early dissent created towns that differed fundamentally from the rest of New England in several important respects. Counterbalancing the tendency toward uniqueness that derived from the dissenting impulse, says Daniels, was a thrust towards conformity, based upon the common English religious and legal background and the economic and geographic conditions that Rhode Island shared with the orthodox Puritan colonies. Irwin H. Polishook, Rhode Island and the Union, 1774–1795 (Evanston, Ill., 1969), a scholarly study that contains much material on the role of the towns in this formative era, was the first published work to make extensive use of the unpublished town meeting records of the state’s communities. Other valuable town studies include William E. Foster, “Town Government in Rhode Island,” in The John Hopkins University Studies in Political and Social Science, vol. 4 (Baltimore, 1886), pp. 69–104; George G. Wilson, “The Political Development of the Towns,” in Edward Field, ed., State of Rhode Island and Providence Plantations at the End of the Century (Boston, 1902), vol. 3, pp. 1–85, and “Town and City Government in Providence” (doctoral dissertation, Brown University, 1889); and William Michael Ferraro, “Lives of Quiet Desperation: Community and Polity in New England over Four Centuries: The Cases of Portsmouth and Foster, Rhode Island” (doctoral dissertation, Brown University, 1991).

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On Providence, Howard K. Stokes, The Finances and Administration of Providence, extra vol. 25 of the John Hopkins University Studies in Historical and Political Science (Baltimore, 1903), is the best municipal history. Also helpful are Howard P. Chudacoff and Theodore C. Hirt, “Social Turmoil and Governmental Reform in Providence, 1820–1832,” Rhode Island History 31 (Feb. 1972): 21–31, which gives details leading to the granting of Providence’s charter as a city in 1832; David L. Davies, “Impoverished Politics: The New Deal’s Impact on City Government in Providence, Rhode Island,” Rhode Island History 42 (Aug. 1983): 86–100; Norma LaSalle Daoust, “The Perils of Providence: Rhode Island’s Capital City during the Depression and New Deal” (doctoral dissertation, University of Connecticut, 1982); Eugene L. Bishop, “Strengthening Executive Responsibility in Providence: The Strong Mayor Charter of 1940” (master’s thesis, University of Rhode Island, 1961); and John Hutchins Cady, Rhode Island Boundaries, 1636–1936 (Providence, 1936), which depicts the process of town creation by the General Assembly, especially the many changes in the boundaries of Providence for partisan purposes, or what one historian has termed “political mitosis.” More specific works pertaining to Providence are contained in the extensive bibliographical essay in Patrick T. Conley and Paul R. Campbell, Providence: A Pictorial History (Virginia Beach, 1982), pp. 229–35. For the other cities and towns refer to Conley, “An Annotated Bibliography of Works Relating to Local Government in Rhode Island, 1636–1972,” in Robert W. Sutton, Jr., editor, Rhode Island Local Government: Past, Present, and Future (Kingston, R.I., 1974), pp. 153–166. The home rule movement was launched at the turn of the twentieth century. Amasa Eaton et al., “The Right to Local Self-Government,” Harvard Law Review 13 (1899): 441–54, 570–88, 638–58, and 14 (1900): 20–38, 116–38 is the earliest plea for reform by the leading exponent of home rule. After five decades and several setbacks, the people ratified a home rule amendment (XXVIII) in 1951. That achievement and its implementation are examined in “Rhode Island Has Quickie Constitutional Convention,” National Municipal Review 40 (July 1951): 360–62; Robert J. M. O’Hare, “Cities [of Rhode Island] Rush Home Rule Gate,” National Municipal Review 42 (Feb. 1953): 73–77, and “Home Rule in Rhode Island: A Critique,” Municipal Voice 4 (Oct. 1966): 17–18; Patrick T. Conley and Jay S. Goodman, “A Clear Dichotomy” [the local government article of the proposed R.I. constitution], National Civic Review 56 (Sept. 1967): 447–52, 469, an analysis of the efforts of the 1964–1969 Constitutional Convention to strengthen home rule; John O. Stitely, “Some Comments on Local Government in Rhode Island,” URI Bureau of Government Research, Newsletter, Nov. 1966, and “Home Rule in Rhode Island: Twenty Years Later,” URI Bureau of Government Research, Newsletter, Nov. 1972; Joseph E. Coduri, Home Rule Charters in Rhode Island, URI Bureau of Government Research, Local Government Series, no. 2 (1973); and John C. Caruso and Joseph E. Coduri, Home Rule Charters in Rhode Island (Providence, 1995). Terrence P. Haas, “Constitutional Home Rule in Rhode Island,” Roger Williams University Law Review 11 (Spring 2006): 677–719 is the best general survey of its topic. Haas concludes that “Rhode Island’s half-century

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experiment with constitutional home rule has been marked by reluctant but persistent acceptance of local initiative” by the Rhode Island Supreme Court. Other useful works on local government include Robert W. Sutton Jr., editor, Rhode Island Local Government: Past, Present, Future (Kingston, R.I., 1974), which contains several informative essays from URI’s Bureau of Government Research; Bradford Gorham, “The Structure of Local Government in Rhode Island,” Rhode Island Constitutional Convention, 1964–1969, Miscellaneous Report, Providence College Archives; Stephen Aronson, The Legal Powers of Town Councils in Rhode Island, URI Bureau of Government Research, Research Series, no. 10 (1966); Deming E. Sherman, “Removal of City Managers and Other Municipal Employees [in Rhode Island],” Rhode Island Bar Journal 22 (Nov. 1972): 4–7; Patrick T. Conley, “State Restrictions on Local Government Debt with Special Reference to Rhode Island,” and “State Restrictions on Local Government Taxing Power with Special Reference to Rhode Island,” in Sutton, ed., Rhode Island Local Government (Kingston, R.I., 1974), pp. 70–82; and Anwar Syed, The Political Theory of American Local Government (1966), which contains informative references to Rhode Island, especially pp. 22–26. Article XIV: Constitutional Change The history of the long campaign to legitimize the call of constitutional conventions is detailed and supported by former chief justice Charles Smith Bradley, The Methods of Changing the Constitutions of the States, Especially That of Rhode Island (Boston, 1885), former attorney general Abraham Payne, “Constitutional Reform in Rhode Island,” North American Review 113 (Apr. 1886): 332–41, and Amasa Eaton, Constitution-Making in Rhode Island (Providence, 1899). See also Louis W. Cappelli, comp., Advisory Opinion of the Supreme Court of Rhode Island upon Questions Relating to a Constitutional Convention with Affirmative and Negative Briefs Submitted (Providence, 1935), for the debate on that issue. Defending the 1883 advisory opinion of the Rhode Island Supreme Court against the reform movement of their day were William P. Sheffield, The Mode of Altering the Constitution of Rhode Island, and a Reply to C. S. Bradley and Abraham Payne (Newport, 1887), and The Qualification and Duties of an Elector: The Method of Altering a Constitution and of Representation in Legislative Assembly (Newport, 1907); and U.S. district court judge Ira Lloyd Letts, Legal and Practical Considerations Relative to a Constitutional Convention in Rhode Island (Providence, 1924).

Table of Cases

FEDERAL CASES Ajax Gaming Ventures, LLC and the Town of Johnston v. Mathew Brown, CA 2006 WL 2302192 (D.R.I. 2006), 276 Alabama v. Smith, 490 U.S. 794 (1989), 78 Alexander Champion and Thomas Dickason v. Silas Casey unreported (D.R.I. 1792), 156, 303–4 Apodaca v. Oregon, 406 U.S. 404 (1972), 90 Associated Press v. Walker, 388 U.S. 130 (1967), 113 Bantam Books, Inc., v. Sullivan, 372 US 58 (1963), 113, 296 Barker v. Wingo, 407 U.S. 514 (1972), 80 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (U.S. 1971), 56, 58 Blockberger v. United States, 284 U.S. 299 (1932), 72 Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236 (1968), 61 Branzburg v. Hayes, 408 U.S. 465 (1972), 113 Braswell v. United States, 487 U.S. 99 (1988), 86 Breed v. Jones, 421 U.S. 519 (1975), 72 Brown v. Allen, 344 U.S. 443 (1953), 241 Brown v. Thomson, 462 U.S. 835 (1983), 215 Buckley v. Valeo, 424 U.S. 1 (1976), 149, 278 Burbine v. Moran 589 F. Supp. 1245 (D.R.I., 1984), 81 Burbine v. Moran, 753 F.2d 178 (1st Cir., 1985), 81 Clinton v. New York, 524 U.S. 417 (1998), 170 Commerce Oil Refining Corp. v. Miner, 281 F.2d 465 (1st. Cir., 1960), 97 Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211 (1986), 94 Crawford v. Washington, 541 U.S. 36 (2004), 79–80 Curtis Publishing Company v. Butts, 388 U.S. 130 (1967), 113 Davis v. Washington, 126 S.Ct. 2266 (U.S. 2006), 79–80

310

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Di Censo v. Robinson (Lemon v. Kurtzman), 403 U.S. 602 (1971), 63, 259, 304 Dimick v. Schiedt, 293 U.S. 474 (1935), 90 Duncan v. Louisiana, 391 U.S. 145 (1968), 90 Dunn v. Blumstein, 405 U.S. 330 (1972), 122 Everson v. Board of Education, 330 U.S. (1947), 259 Ewing v. California, 538 U.S. 11 (2003), 74 Ex parte Dorr, 44 U.S. 103, 3 How. 103 (1845), 286 Farnham v. Burns, 561 F. Supp. 83 (D.R.I. 1983), 214, 215 Flint v. Mullen, 499 F.2d 100 (1st Cir 1974), 85 Fowler v. Rhode Island, 345 U.S. 67 (1953), 61, 62 Furman v. Georgia, 408 U.S. 238 (1972), 82 Gravel v. United States, 408 U.S. 606 (1972), 178 Harmelin v. Michigan, 501 U.S. 957 (1991), 74 Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), 122, 272 Harrington v. Taft, 339 F. Supp. 670 (D.R.I. 1972), 270 Hudson v. United States, 522 U.S. 93 (1997), 72 In re Gault 387 U.S. 1 (1967), 295 INS v. Chadha, 462 U.S. 919 (1983), 170 Johnson v. Railway Express Agency, 421 U.S. 454 (1975), 68 Jones v. Rhode Island, 724 F. Supp. 25 (D.R.I. 1989), 56 Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005), 95, 96, 200, 296 Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959), 132 League of United Latin American Citizens v. Perry, 126 S.Ct. 2594 (U.S. 2006), 209, 215 Lee v. Weisman, 505 U.S. 577 (1992), 63 Lemon v. Kurtzman (Di Censo v. Robinson), 403 U.S. 602 (1971), 260 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), 97, 101 Luther v. Borden, 48 U.S. 1, 7 Howard. 1 (1849), 23, 24n.20, 111, 155, 164, 238, 286–87 Lynch v. Donnelly, 465 U.S. 688 (1984), 63, 294 Mapp v. Ohio, 367 U.S. 643 (1961), 70 Marston v. Lewis 410 U.S. 679 (1973), 122 Martin v. Lessee of Waddle, 41 U.S. 367 (1842), 108 Metts v. Murphy, 363 F.3d 8 (1st Cir. 2003), 143 Miranda v. Arizona, 384 U.S. 436 (1966), 77, 81, 86 Moran v. Burbine 476 U.S. 412 (1986), 81 Morrison v. Olson, 487 U.S. 654 (1988), 219 National Education Association of Rhode Island v. Garrahy, 589F, Supp. 1347 (R.I. 1984), 256, 260 New England Naturist Association v. Larsen, 692 F. Supp. 75 (D.R.I. 1988), 104 New York Times v. Sullivan 376 U.S. 254 (1964), 113 North Carolina v. Pearce, 395 U.S. 711 (1969), 78 Ohio v. Roberts, 448 U.S. 56 (1980), 79 Palazzolo v. State ex rel Tavares, 531 U.S. 923 (2001), 101 Parker v. Gladden, 385 U.S. 363 (1995), 80 Penn Cent. Transp. Co. v. New York, 438 U.S. 104 (1978), 101, 102 Philadelphia Co. v. Stimson, 223 U.S. 605 (1912), 107 Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), 105, 109 Powell v. McCormack, 395 U.S. 486 (U.S. 1977), 180 Reynolds v. Sims, 377 U.S. 533, 568 (1964), 31, 206, 207, 215 Rhode Island v. Massachusetts (State of Rhode Island v. Com. of Massachusetts), 37 U.S. 657 (1838), 43n.20

Table of Cases

311

Richardson v. Ramirez, 418 U.S. 24 (1974), 126 Ring v. Arizona, 536 U.S. 584 (2002), 90 Roe v. Wade, 410 U.S. 113 (1973), 54, 63, 260 Roman v. Sincock, 377 U.S. 695 (1964), 207, 214 San Antonio Ind., Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), 258 Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935), 170 Sherbert v. Verner, 374 U.S. 398 (1963), 62 Taylor v. Rhode Island, 101 F.3d 780 (1st Cir 1996), 84 Testa v. Katt, 330 U.S. 386 (1947), 118, 119 Trenton v. New Jersey, 262 U.S. 182 (1923), 120 Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 190 United States v. Halper, 490 U.S. 435 (1989), 72 United States v. Helstoski, 442 U.S. 477 (1979), 178 Wesberry v. Sanders, 376 U.S. 1 (1964), 31 Wilkinson v. Leland, 27 U.S. 627 (1829), 20, 42n.18 Williams v. Florida, 399 U.S. 78 (1970), 90 Wood v. Carpenter, 101 U.S. 135, 139 (1879), 67 Wood v. City of East Providence, 811 F.2d 677 (1st Cir 1987), 202 Woodson v. North Carolina, 428 U.S. 280 (1976), 82

STATE CASES Advisory Opinion to Governor, 109 R.I. 474, 287 A.2d 353 (1972), 221 Advisory Opinion to Governor, 110 R.I. 1, 289 A.2d 430 (1972), 187, 201 Advisory Opinion to the Governor, 437 A.2d 542 (R.I. 1981), 92 Advisory Opinion to the Governor (Appointed Counsel), 666 A.2d 813 (R.I. 1995), 81, 89, 90, 92 Advisory Opinion to House of Representatives, 468 A.2d 258 (R.I. 1983), 246 Advisory Opinion to the Senate, 14 R.I 649 (1883), 26, 43n.23, 244, 274, 307 (see also In re Constitutional convention). Ajootian v. Providence Redevelopment Agency of City of Providence, 80 R.I. 73, 91 A.2d 21 (1952), 157, 192, 199 Allen v. Allen, 19 R.I. 114, 32 A. 166 (1895), 104 Allen v. State Bd. of Veterinarians, 72 R.I. 372, 52 A.2d 131 (1947), 157, 168 Almond v. Rhode Island Lottery Comm’n, 756 A.2d 186 (R.I. 2000), 39n.35, 157, 158, 184, 194 American Bank v. Mumford, 4 R.I. 478 (1857), 56 Anderson v. Salent¸ 38 R.I. 463, 96 A. 425 (1916), 66 Annicelli v. Town of South Kingstown, 463 A.2d 133 (R.I. 1983), 93, 94, 100 Aptt v. City of Warwick Bldg. Dep’t., 463 A.2d 1377 (R.I. 1983), 91 Armour & Co. v. New York, N.H. & H.R. Co., 41 R.I. 361, 103 A. 1031 (1918), 66 Assembly of God Church v. Vallone, 89 R.I. 1, 150 A.2d 11 (1959), 99 Atlantic Refining Co. v. Director of Public Works, 98 R.I. 167, 200 A.2d 580 (1964), 91 Atlantic Refining Co. v. Director of Public Works, 104 R.I. 436, 244 A.2d 853 (1968), 99 Avanzo v. R.I. Dept. of Human Servs., 625 A.2d 208 (R.I. 1993), 57 Bailey v. Baronian, 120 R.I. 389, 394 A.2d 1338 (1978), 121, 126–27, 133 Bailey v. Burns, 118 R.I. 428, 375 A.2d 203 (1977), 131, 134, 180 Bailey v. Laurie, 118 R.I. 184, 373 A.2d 482, 485 (1977), 178 Bandoni v. State of Rhode Island, 715 A.2d 580 (R.I. 1998), 69, 117, 167 Bartlett v. Danti, 503 A.2d 515 (R.I. 1986), 69

312

Table of Cases

Bd. of Purification of Waters v. Town of East Providence, 47 R.I. 431, 133 A. 812 (1926), 55, 83, 95 Beattie v. Fleet Nat’l Bank, 746 A.2d 717 (R.I. 2000), 113 Bendick v. Cambio, 558 A.2d 941 (R.I. 1989), 92 Benoit v. Langlois, 96 R.I. 129, 189 A.2d 805 (1963), 73 Berberian v. Avery, 99 R.I. 77, 205 A.2d 579 (1964), 97 Berberian v. Berberian, 109 R.I. 273, 284 A.2d 72 (1971), 119 Berberian v. Board of Canvassers, City of Cranston, 91 R.I. 49, 161 A.2d 416 (1960), 271 Berberian v. Lussier, 87 R.I. 226, 139 A.2d 869 (1958), 58, 238 Bishop v. Tripp, 15 R.I. 466, 8 A. 692 (1887), 90, 91 Blais v. Franklin, 31 R.I. 95, 77 A. 172 (1910), 169, 196 Boston & Providence Railroad Corp. v. New York & New England Railroad Co., 13 R.I. 260 (1881), 93 Boucher v. Mailloux, 61 R.I. 510, 2 A.2d 63 (1938), 243 Boucher v. McGovern, 639 A.2d 1369 (R.I. 1994), 69 Bourque v. Dettore, 589 A.2d 815, 817 (R.I. 1991), 165, 166, 168 Bowerman v. O’Connor, 104 R.I. 519, 247 A.2d 82 (1968), 61 Bridges v. Superior Court, 121 R.I. 101, 396 A.2d 97 (1978), 77 Briggs Drive, Inc. v. Moorehead, 103 R.I. 555, 239 A.2d 186 (1968), 91 Brown Univ. v. Granger, 19 R.I. 704, 36 A. 720 (1897), 55 Brown v. Sharkey, 106 R.I. 714, 263 A.2d 104 (1970), 225, 226 Bruckshaw v. Paolino, 557 A.2d 1221 (R.I. 1989), 270 Bryer v. Sevigney, 42 R.I. 187, 106 A. 155 (1919), 131 Camara v. City of Warwick, 116 R.I. 395, 358 A.2d 23 (1976), 183 Capital Properties, Inc. v. State, 636 A.2d 319 (R.I. 1994), 99 Capone v. Nunes, 85 R.I. 392, 132 A.2d 80 (1957), 169, 271 Cardarelli v. Providence Journal Co., 33 R.I. 268, 80 A. 583 (1911), 114 Cardi Corp. v. State, 524 A.2d 1092 (R.I. 1987), 186, 187, 188 Carpenter v. Sprague, 119 A. 561, 45 R.I. 29 (1923), 147, 243 Casey v. Willey, 89 R.I. 87, 151 A.2d 369 (1959), 223 Cesaroni v. O’Dowd, 94 R.I. 66, 177 A.2d 777 (1962), 85, 88 Champlin’s Realty Associates, L.P. v. Tillson, 83 A.2d 1162 (R.I. 2003), 109 Chang v. University of Rhode Island 118 R.I. 631, 375 A.2d 925 (1977), 260 Chartier Real Estate Co. v. Chafee, 101 R.I. 544, 225 A.2d 766 (1967), 168, 196 Cherenzia v. Lynch, 847 A.2d 818 (R.I. 2004), 104 Church v. Town of South Kingstown, 22 R.I. 381, 48 A. 3 (1901), 238 Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53 (R.I., 1980), 97 City of Central Falls v. Halloran, 94 R.I. 189, 179 A.2d 570 (1962), 166, 169 City of Cranston v. Hall, 116 R.I. 183, 354 A.2d 415 (1976), 268 City of E. Providence v. Local 850, Int’l Ass’n of Firefighters, 117 R.I. 329, 366 A.2d 1151 (1976), 269 City of Newport v. Horton, 22 R.I. 196, 47 A. 312 (1900), 120, 184 City of Newport v. Newport Water Corp., 57 R.I. 269, 189 A. 843 (1937), 95, 96 City of Pawtucket v. Pawtucket Teachers’ Alliance Local 930, 87 R.I. 364, 141 A.2d 624 (1958), 114 City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995), 51, 55, 258, 259 City of Providence v. Comstock, 27 R.I. 537, 65 A. 307 (1906), 104 City of Providence v. Employee Retirement Bd., 749 A.2d 1088 (R.I. 2000), 156, 157, 239 City of Providence v. Moulton, 52 R.I. 236, 160 A. 75 (1932), 120, 186, 188, 264 City of Providence v. Stephens, 47 R.I. 387, 133 A. 614 (1926), 95

Table of Cases

313

City of Warwick v. Almac’s, Inc., 442 A.2d 1265 (R.I. 1982), 56 Clark v. New York, New Haven & Hartford Railroad Co., 33 R.I. 83, 80 A. 406 (1911), 241 Clarke v. Moran, 451 A.2d 577 (R.I. 1982), 78 Cleveland v. Tripp, 13 R.I. 50 (1880), 54, 55 Coastal Recycling, Inc. v. Connors, 854 A.2d 711 (R.I. 2004), 270 Cohen v. Harrington, 722 A.2d 1191 (R.I. 1999), 56 Conley v. the Providence Journal Co. (R.I. Super. C.A. No. 81–1220) and (R.I. Supreme, 85–105-Appeal), 113 Conley v. Woonsocket Inst. For Sav., 11 R.I. 147 (1874), 68 Corbett v. Naylor, 25 R.I. 520, 57 A. 303 (1904), 179 Coventry Sch. Comm. v. Richtarik, 122 R.I. 707, 411 A.2d 912 (1980), 268 Creditors’ Serv. Corp. v. Cummings, 57 R.I. 291, 190 A. 2 (1937), 83, 157 Cross v. Brown, 19 R.I. 220, 33 A. 147 (1895), 84 Cummings v. Church, 50 R.I. 71, 145 A. 102 (1929), 83 Cummings v. Godin, 119 R.I. 325, 327 A.2d 1071 (1977), 260 D. Corso Excavating, Inc. v. Poulin, 747 A.2d 994 (R.I. 2000), 57 D’Arezzo v. D’Arezzo, 107 R.I. 422, 267 A.2d 683 (1970), 241 Davis v. Hawksley, 119 R.I. 453, 379 A.2d 922 (1977), 136 Davis v. Wood, 427 A.2d 332 (R.I. 1981), 165, 166, 168 DeCecco v. State, 593 A.2d 1342 (R.I. 1991), 221 DePetrillo v. Coffey, 118 R.I. 519, 376 A.2d 317 (1977), 169, 269 DiMasi v. Mullen, 117 R.I. 281, 366 A.2d 1149 (1976), 77 DiPrete v. Morsilli, 635 A.2d 1155 (R.I. 1994), 73 DiPrete v. Vallone, 70 R.I. 286, 38 A.2d 769 (1944), 245 DiTraglia v. Daneker, 83 R.I. 227, 115 A.2d 345 (1955), 157, 238 Douglas v. Bank of New England/Old Colony, N.A., 566 A.2d 939 (R.I. 1989), 73 Dowd v. Rayner, 655 A.2d 679 (R.I. 1995), 58, 68 Dunn v. Petit, 120 R.I. 486, 388 A.2d 809 (1978), 80 Dyer v. Keefe, 97 R.I. 418, 198 A.2d 159 (1964), 91 Dyson v. Rhode Island Co., 25 R.I. 600, 57 A. 771 (1904), 91 E & J, Inc. v. Redevelopment Agency of Woonsocket, 122 R.I. 288, 405 A.2d 1187 (1979), 94 East Shore Land Co. v. Peckham, 33 R.I. 541, 82 A. 487 (1912), 55 Egidio DiPardo & Sons v. Lauzon, 708 A.2d 165 (R.I. 1998), 91 Election of Officers by the Senate, 28 R.I. 607 (1908), 249 Emerson v. Magendantz, 689 A.2d 409 (R.I. 1997), 69 Engs v. Peckham, 11 R.I. 210 (1875),106 Estate of Sherman v. Almeida, 610 A.2d 104 (R.I. 1992), 242 Estate of Sherman v. Almeida, 747 A.2d 470 (R.I. 2000), 67 Ewing v. Tax Assessors of Jamestown, 247 A.2d 850 (R.I. 1968), 189 Ex parte Mariano, 34 R.I. 534, 84 A. 1086 (1912), 76 Ex parte McGrane, 47 R.I. 106, 130 A. 804 (1925), 228 Ex parte Snow, 1 R.I. 360 (1850), 73 Ex parte Werner, 46 R.I. 1, 124 A. 195 (1924), 85 Exeter-West Greenwich Regional School District v. Teachers Association, R.I., 498 A.2d 1010 (1985), 256 Floyd v. Quinn, 24 R.I. 147, 52 A. 880 (1902), 239, 241 Folan v. State, 723 A.2d 287 (R.I. 1999), 56, 58 Fountaine v. Mullen, 117 R.I. 262, 366 A.2d 1138 (1976), 76, 77 Fournier v. Miriam Hospital, 93 R.I. 299, 175 A.2d 298 (1961), 67 Fox v. Personnel Appeal Bd., 99 R.I. 566, 209 A.2d 447, 210 A.2d 50 (1965), 271

314

Table of Cases

Francis v. Baker, 11 R.I. 103, 23 Am.Rep. 424 (1877), 92 Fricke v. Fricke, 491 A.2d 990 (R.I. 1995), 57 FUD’s, Inc. v. State, 727 A.2d 692 (R.I. 1999), 92 Gainer v. Dunn, 29 R.I. 239, 69 A. 851 (1908), 242 Garcia v. Falkenholm, 97 R.I. 450, 198 A.2d 660 (1964), 95 Gelch v. State Board of Elections, 482 A.2d 1204 (R.I. 1984), 132 General Finance Corp. v. Archetto, 93 R.I. 392, 176 A.2d 73 (1961), 54, 62, 95, 183 Giroux v. Superior Ct., 133 A.2d 636 (R.I. 1957), 227 Goldstein v. Zoning Board of Review, 101 R.I. 728, 227 A.2d 195 (1967), 95 Gomes v. Bristol Mfg. Corp., 95 R.I. 126, 184 A.2d 787 (1962), 58 Gorham et al. v Public Building Authority of the City of Providence, 612 A.2d 708 (R.I. 1992), 94 Gorham v. Robinson, 57 R.I. 1, 186 A. 832 (1936), 57, 157, 184, 219, 239, 248, 249, 253 Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995), 109, 110 Greenough v. Bd. of Police Com’rs of Town of Tiverton, 30 R.I. 212, 74 A. 785 (1909), 192 Greenough v. People’s Sav. Bank, 38 R.I. 100, 94 A. 706 (1915), 84 Griffin v. Bendick, 463 A.2d 1340 (R.I. 1983), 201 Grinnell v. Marine Guano & Oil Co., 13 R.I. 135 (1880), 84 Gunn v. Union R. Co., 27 R.I. 320, 62 A. 118 (1905), 91 Hall v. Nascimento, 594 A.2d 874 (R.I. 1991), 109 Hanley v. Langlois, 93 R.I. 309, 175 A.2d 182 (1961), 222 Hareld v. Napolitano, 615 A.2d 1015 (R.I. 1992), 68 Harris v. Town of Lincoln, 668 A.2d 321 (R.I. 1995), 94 Hebert v. Ventetuolo, 480 A.2d 403 (R.I. 1984), 57 Henry v. Cherry & Webb, 30 R.I. 13, 73 A. 97 (1909), 57, 78, 158, 183 Henry v. Earhart, 553 A.2d 124 (R.I. 1989), 57 Hervey v. City of Providence, 47 R.I. 378, 133 A. 618 (1926), 99 Hickey v. Town of Burrillville, 713 A.2d 781 (R.I. 1998), 99 Higgins v. Green, 56 R.I. 330, 185 A. 686 (1936), 198 Higgins v. Tax Assessors of Pawtucket, 27 R.I. 401, 63 A. 34 (1905), 241 Holmes v. Farmer, 475 A.2d 976 (R.I. 1984), 178, 207, 215 Horton v. Old Colony Bill Posting Co., 36 R.I. 507, 90 A. 822, 837 (1914), 94, 238 Hudson v. Geary, 4 R.I. 485 (1857), 68 Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950 (R.I. 1994), 97 Iafrate v. Ramsden, 96 R.I. 216, 190 A.2d 473 (1963), 97 In re Advisory from the Governor, 633 A.2d 664 (R.I. 1993), 247 In re Advisory Opinion (Chief Justice), 507 A.2d 1316 (R.I. 1986), 245, 246, 253 In re Advisory Opinion to Governor, 113 R.I. 586, 324 A.2d 641 (1974), 157, 186, 187 In re Advisory Opinion to Governor, 483 A.2d 1078 (R.I. 1984), 245 In re Advisory Opinion to Governor, 593 A.2d 943 (R.I. 1991), 84 In re Advisory Opinion to Governor, 510 A.2d 941 (R.I. 1986), 55, 187 In re Advisory Opinion to the Governor (Appointment to Fill Vacancy in Office of Lieutenant Governor), 688 A.2d 288 (R.I. 1997), 216, 223 In re Advisory Opinion to Governor (Casino I), 856 A.2d 320 (R.I. 2004), 203, 240 In re Advisory Opinion to Governor (Casino III), 904 A.2d 67 (R.I. 2006), 275 In re Advisory Opinion to Governor (Ethics Commission), 612 A.2d 1 (R.I. 1992), 51, 138, 158, 183, 184, 275 In re Advisory Opinion to Governor: Public Drinking Water Protection Act, 556 A.2d 1000, 1002 (R.I. 1989), 197

Table of Cases

315

In re Advisory Opinion to the Governor (Rhode Island Ethics Commission—Separation of Powers), 732 A.2d 55 (R.I. 1999), 37n.32, 38n.33, 38n.34, 51, 137, 138, 139, 158, 184, 244, 245, 275 In re Advisory Opinion to House of Representatives, 108 R.I. 151, 272 A.2d 925 (1971), 246 In re Advisory Opinion to the House of Representatives, 485 A.2d 550 (R.I. 1984), 172 In re Advisory Opinion to House of Representatives, 628 A.2d 537 (R.I. 1993), 270 In re Advisory Opinion to House of Representatives (Casino II), 885 A.2d 698 (R.I. 2005), 166, 169, 203 In re Advisory Opinion to the House of Representatives (General Obligation Bonds), 599 A.2d 1354 (R.I. 1991), 196 In re Advisory Opinion to the Senate, 273 A.2d 485 (R.I. 1971), 198 In re Advisory Opinion to the Senate, 108 R.I. 551, 277 A.2d 750 (1971), 130 In re Advisory Opinion to the Senate, 108 R.I. 628, 278 A.2d 852 (1971), 90 In re Almeida, 611 A.2d 1375 (R.I. 1992), 74 In re Ballot Marks, 18 R.I. 822 (1893), 144 In re Certain Members of House of Representatives, 58 R.I. 51, 191 A. 269 (1937), 179, 180, 181, 246 In re Comm’n on Judicial Tenure and Discipline, 670 A.2d 1232 (R.I. 1996), 157 In re Condemnation of Certain Land for New State House, 19 R.I. 326, 33 A. 448 (1895), 91 In re Constitutional Convention, 14 R.I. 649 (1883), 26, 43n.23, 244, 274, 307 In re Decision of Justices (Elections by Senate), 28 R.I. 607, 69 A. 555 (1908), 184, 249 In re Delinquent Poll Tax, 21 R.I. 582, 44 A. 805 (1899), 82 In re Dorrance Street, 4 R.I. 230 (1856), 55 In re Election of Sheriff, 41 R.I. 79, 102 A. 802 (1918), 146, 147 In re Harrington, 44 R.I. 288, 117 A. 273 (1922), 130 In re House of Representatives, 575 A.2d 176 (R.I. 1990), 157, 229, 240 In re Incurring State Debts, 19 R.I. 610, 37 A 14 (1896), 48, 103, 195, 197, 198 In re Investigating Comm’n, 16 R.I. 751, 11 A. 429 (1887), 221 In re Legislative Adjournment, 18 R.I. 824, 27 A. 324 (1893), 144, 181, 220, 224 In re Liquors of McSoley, 15 R.I. 608, 10 A. 659 (1887), 89, 92 In re Little, 103 R.I. 301, 237 A.2d 325 (1968), 242 In re McCloud, 110 R.I. 431, 293 A.2d 512 (1972), 79, 91 In re North Smithfield Election, 18 R.I. 817, 27A.597 (1893), 144 In re Nichols, 8 R.I. 50 (1864), 66, 84, 239 In re Nicole G., 577 A.2d 248 (R.I. 1990), 157 In re Opinion to Governor, 23 R.I. 635 (1902), 172, 225 In re Opinion to Governor, 35 R.I. 166, 85 A. 1056 (1913), 172, 181 In re Opinion to the Governor, 41 R.I. 209, 103 A. 513 (1918), 231 In re Opinion to the Governor, 44 R.I. 275, 117 A. 97 (1922), 231 In re Opinion to the Governor, 49 R.I. 324, 142 A. 660 (1928), 55 In re Opinion to the Governor, 54 R.I. 45, 169 A. 748 (1933), 197 In re Opinion to the Governor, 55 R.I. 56, 178 A. 433 (1935), 51, 167, 244, 274, 307 In re Opinion to Governor, 62 R.I. 145, 4 A.2d 369 (1939), 198 In re Opinionto the Governor, 62 R.I. 200, 4 A.2d 487 (1939), 71, 78 In re Opinion to Governor, 62 R.I. 316, 6 A.2d 147 (1939), 126, 169, 245 In re Opinion to the House of Representatives, 62 R.I. 347, 5 A.2d 455 (1939), 246 In re Opinion to House of Representatives, 433 A.2d 944 (R.I. 1981), 246 In re Opinion of Judges, 4 R.I. 583 (1857), 230 In re Opinion of Judges, 39 R.I. 1, 97 A. 21 (1916), 189 In re Opinion of Justices, 65 R.I. 451, 16 A.2d 331 (1940), 126

316

Table of Cases

In re Opinion of the Justices, 45 R.I. 289, 120 A. 868 (1923), 180, 186 In re Opinion of the Justices, 34 R.I. 191, 83 A. 3 (1912), 169 In re Opinion to Senate, 87 R.I. 56, 137 A.2d 527 (1958), 246 In re Opinion to Senate, 108 R.I. 302, 275 A.2d 256 (1971), 84 In re Palmer, 120 R.I. 250, 386 A.2d 1112 (1978), 62 In re Pawtucket & Central Falls Grade Crossing Comm’n, 36 R.I. 200, 89 A. 695 (1914), 192, 243 In re Penniman, 11 R.I. 333 (1877), 84 In re Railroad Commissioner, 28 RI 602, 67 A.802 (1907), 145, 223 In re Request of Senate for an Advisory Opinion (Election of Lieutenant Governor by the General Assembly in Grand Committee), 696 A.2d 277 (R.I. 1997), 223, 226 In re Rhode Island Bar Ass’n, 106 R.I. 752, 263 A.2d 692 (1970), 239 In re Rhode Island Suburban Railway Co., 22 R.I. 457, 48 A. 591 (1901), 96 In re School Comm., 26 R.I. 164, 58 A. 628 (1904), 84 In re Southern New England Railway Co., 38 R.I. 216, 94 A. 738 (1915), 99 In re State Employees’ Unions, 587 A.2d 919 (R.I. 1991), 220 In re State House Construction Loan, 20 R.I. 704, 38 A. 927 (1897), 196 In re Statehouse Bonds, 19 R.I. 393, 33 A. 870 (1896), 198 In re Stone, 21 R.I. 14, 41 A. 658 (1898), 73 In re Sundlun, 585 A.2d 1185 (R.I. 1991), 135, 136 Inn Group Assocs. v. Booth, 593 A.2d 49 (R.I. 1991), 189 J.M. Mills, Inc. v. Murphy, 116 R.I. 54, 352 A.2d 661 (1976), 94, 166, 168 Jackvony v. Powel, 67 R.I. 218, 21 A.2d 554 (1941), 103 Jefferson v. State, 472 A.2d 1200 (R.I. 1984), 229 Jennings v. Exeter-West Greenwich Regional Sch. Dist. Comm., 116 R.I. 90, 352 A.2d 634 (1976), 169 Jones v. Aciz, 109 R.I. 612, 289 A.2d 44 (1972), 68 Joslin Mfg. Co. v. Clarke, 41 R.I. 350, 103 A. 935 (1918), 67 Kalian v. Langton, 96 R.I. 367, 192 A.2d 12 (1963), 55 Kargman v. Jacobs, 113 R.I. 696, 325 A.2d 543 (1974), 189 Kass v. Retirement Bd. of the Employees’ Retirement System of the State of Rhode Island, 567 A.2d 358 (R.I. 1989), 172 Kavanagh v. Stenhouse, 93 R.I. 252, 174 A.2d 560 (1961), 119, 120 Kayrouz v. Rhode Island Depositors Economic Protection Corp. ex rel. Sundlun, 593 A.2d 943 (R.I. 1991), 54, 94, 187, 197 Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996), 57 Kennedy v. Cumberland Eng’g Co., 471 A.2d 195 (R.I. 1984), 67, 68 Kennedy v. State, 654 A.2d 708 (R.I. 1995), 187, 188 Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 734 (R.I. 1992), 57, 58 Lace v. Smith, 34 R.I. 1, 82 A. 268 (1912), 84 Landmark Medical Ctr. v. Gauthier, 635 A.2d 1145 (R.I. 1994), 58 Lapre v. Flanders, 465 A.2d 214 (R.I. 1983), 201 Lemoine v. Martineau, 115 R.I. 233, 342 A.2d 616 (1975), 67, 157, 177, 178 Lerner v. Gill, 463 A.2d 1352 (R.I. 1983), 83 Lewis v. Smith, 21 R.I. 324, 43 A. 542 (1899), 68 Littlefield v. Peckham, 1 R.I. 500 (1851), 91 Lowrey v. Mayor, Etc. of the City of Central Falls, 23 R.I. 354 (1901), 253 Lynch v. King, 120 R.I. 868, 391 A.2d 117 (1978), 269 M. S. Alper & Son, Inc. v. Capaldi, 99 R.I. 242, 206 A.2d 859 (1965), 201 M. S. Alper & Son, Inc. v. Director of Public Works, 98 R.I. 154, 200 A.2d 583 (1964), 99

Table of Cases

317

MacKenzie & Shea v. Rhode Island Hospital Trust Co., 45 R.I. 407, 122 A. 774 (1923), 242 Malinou v. Powers, 114 R.I. 399, 333 A.2d 420 (1975), 35, 275 Mandeville, Brooks & Chaffee v. Fritz, 50 R.I. 513, 149 A. 859 (1930), 91 Manning v. Board of Tax Comm’rs, 46 R.I. 400, 127 A. 865 (1925), 83 Manufacturers’ Mut. Fire Ins. Co. v. Clarke, 41 R.I. 277, 103 A. 931 (1918), 55, 56 Marden v. Champlin, 17 R.I. 423, 22 A. 938 (1891), 250 Marran v. Baird, 635 A.2d 1174 (R.I. 1994), 269 Martin v. Howard, 784 A.2d 291 (R.I. 2001), 62 Mason v. Taft, 23 R.I. 388, 50 A. 648 (1901), 238 Massey v. Mullen, 117 R.I. 272, 366 A.2d 1144 (1976), 77 Mathews v. Tripp, 12 R.I. 256 (1879), 91 Mauran v. Smith, 8 R.I. 192 (1865), 221 McCarthy v. Johnson, 574 A.2d 1229 (R.I. 1990), 270 McCoy v. Cataldo, 88 R.I. 330, 148 A.2d 267 (1959), 242 McKenna v. Williams, 874 A.2d 217 (R.I. 2005), 137, 249 McKinney v. State, 843 A.2d 463 (R.I. 2004), 74 Mello v. Superior Court, 117 R.I. 578, 370 A.2d 1262 (1977), 76 Members of the Jamestown School Committee v. Schmidt, 122 R.I. 185, 405 A.2d 16 (1979), 259, 260 Merrill v. Bowler, 20 R.I. 226, 38 A. 114 (1897), 82, 91 Mexican Petroleum Corp. v. Bliss, 43 R.I. 243, 110 A. 867 (1920), 157, 184, 189 Milardo v. Coastal Resources Management Council of Rhode Island, 434 A2d 266 (R.I. 1981), 100, 166 Miller v. State, 451 A.2d 280 (R.I. 1982), 270 Molloy v. Collins, 66 R.I. 251, 18 A.2d 639 (1941), 69, 253 Moore v. Langton, 92 R.I. 141, 167 A.2d 558 (1961), 69, 166, 179, 188, 189 Morrell v. Lalonde, 44 R.I. 20, 114 A. 178 (1921), 92 Morris v. D’Amario, 416 A.2d 137 (R.I. 1980), 77, 79 Mosby v. Devine, 851 A.2d 1031 (R.I. 2004), 115, 116, 297 Munroe v. Town of East Greenwich, 733 A.2d 703 (R.I. 1999), 267 Narragansett Elec. Lighting Co. v. Sabre, 50 R.I. 288, 146 A. 777 (1929), 67, 84, 95, 96, 238 Narragansett Indian Tribe v. State, 667 A.2d 280 (R.I. 1995), 94 National Velour Corp. v. Durfee, 637 A.2d 375 (R.I. 1994), 91 New Harbor Village, LLC v. Town of New Shoreham Zoning Bd. of Review, 894 A.2d 901 (R.I. 2006), 243 New York, N.H. & H.R. Co. v. Horgan, 25 R.I. 408, 56 A. 179 (1903), 104 Newman v. Mayor of Newport, 73 R.I. 385, 57 A.2d 173 (1948), 94 Newport Amusement Co. v. Maher, 92 R.I. 51, 166 A.2d 216 (1960), 268 Newport Gas Light Co. v. Norberg, 114 R.I. 691 (1975), 189 Newport Ct. Club Assocs. v. Town Council of Middletown, 800 A.2d 405 (R.I. 2002), 272 Newport Ct. Club Assocs. v. Town Council of the Town of Middletown, 716 A.2d 787 (R.I. 1998), 269 Nisenzon v. Sadowski, 689 A.2d 1037, 1048 (R.I. 1997), 57 Nocera Bros. Liquor Mart v. Liquor Control Hearing Bd., 81 R.I. 186, 100 A.2d 652 (1953), 166 Northeastern Corporation v. Zoning Board of Review, 534 A.2d 603 (R.I. 1987), 108 Nugent ex rel. Beck v. Leys, 88 R.I. 446, 149 A.2d 716 (1959), 270 Nugent ex rel. Collins v. Vallone, 91 R.I. 145, 161 A.2d 802 (1960), 104 Nugent ex rel. Hurd v. City of E. Providence, 103 R.I. 518, 238 A.2d 758 (1968), 268 O’Brien v. Waterman, 91 R.I. 374, 163 A.2d 31 (1960), 90

318

Table of Cases

O’Neil v. Demers, 44 R.I. 504, 118 A. 677 (1922), 180 O’Neill v. City of East Providence, 480 A.2d 1375 (R.I. 1984), 95, 96, 200, 269 Opinion to the Governor, 58 R.I. 486, 193 A. 503 (1937), 197 Opinion to the Governor, 76 R.I. 249, 69 A.2d 531 (1949), 192, 199 Opinion to Governor, 83 R.I. 370; 116 A.2d 474 (R.I. 1955), 135, 136 Opinion to Governor, 88 R.I. 202, 145 A.2d 87 (1958), 54, 183, 195 Opinion to the Governor, 88 R.I. 392, 149 A.2d 341 (1959), 172 Opinion to the Governor, 90 R.I. 135, 155 A.2d 602 (1959), 195, 196 Opinion to the Governor, 92 R.I. 489, 170 A.2d 284 (1961), 187 Opinion to the Governor, 93 R.I. 262, 174 A.2d 553 (1961), 245 Opinion to the Governor, 94 R.I. 464, 181 A.2d 618 (1962), 197 Opinion to the Governor, 95 R.I. 88, 183 A.2d 806 (1962), 179, 206 Opinion to the Governor, 95 R.I. 109, 185 A.2d 111 (1962), 183, 206, 207 Opinion to the Governor, 97 R.I. 200, 196 A.2d 829 (1964), 183, 197 Opinion to the Governor, 99 R.I. 351, 208 A.2d 105 (1965), 183, 195, 196 Opinion to the Governor, 100 R.I. 175, 212 A.2d 64 (1965), 196 Opinion to the Governor, 101 R.I. 203, 221 A.2d 799 (1966), 207, 214 Opinion to the Governor, 107 R.I. 651, 270 A.2d 520 (1970), 197 Opinion to the Governor, 109 R.I. 289, 284 A.2d 295 (1971), 245 Opinion to the Governor, 112 R.I. 139, 308 A.2d 802 (1973), 182, 197 Opinion to the House of Representatives, 79 R.I. 277, 87 A.2d 693 (1952), 266 Opinion to the House of Representatives, 80 R.I. 288, 96 A.2d 627 (1953), 267 Opinion to the House of Representatives, 80 R.I. 407, 97 A.2d 587 (1953), 276 Opinion to the House of Representatives, 93 R.I. 463, 176 A.2d 391 (1962), 167, 193 Opinion to the House of Representatives, 99 R.I. 472, 208 A.2d 522 (1965), 271 Opinion to the House of Representatives, 100 R.I. 345, 216 A.2d 124 (1966), 246 Opinion to the Senate and the House of Representatives, 3 R.I. 299 (1854), 156, 158, 175, 183, 230, 236 Opinion to the Senate, 81 R.I. 258, 101 A.2d 879 (1954), 267 Opinion to the Senate, 87 R.I. 37, 137 A.2d 525 (1958), 104 Orabona v. Linscott, 49 R.I. 443, 144 A. 52 (1928), 227, 228 Oster v. Tellier, 544 A.2d 128 (R.I. 1988), 68, 69 Otto Seidner, Inc., v. Ralston Purina Co. 67 R.I. 436, 24 A.2d 902 (1942), 97 Outlet Communications Inc. v. Rhode Island, 588 A.2d 1050 (R.I. 1991), 113 Palazzolo v. State, 2005 WL 1645974 (R.I. Super. 2005), 102 Parella v. Irons, 2003 WL 22389806 (R.I. Super. 2003), 215 Parella v. Montalbano, 899 A.2d 1226 (R.I. 2006), 209, 215, 216 Pelligrino v. State Bd. of Elections, 100 R.I. 71, 211 A.2d 655 (1965), 131 Pendleton v. Briggs, 37 R.I. 352, 92 A. 1024 (1915), 268 People’s Sav. Bank v. Tripp, 13 R.I. 621 (1882), 84 Perce v. Hallett, 13 R.I. 363 (1881), 68 Picerne v. DiPrete, 428 A.2d 1074 (R.I. 1981), aff ’d, 542 A.2d 1101 (R.I. 1988), 56 Pimental v. Department of Transportation, 561 A.2d 1348 (R.I. 1989), 70 Pitassi v. Personnel Hearing Bd., 116 R.I. 116, 352 A.2d 658 (1976), 268 Pitre v. Curhan, 2001 WL 770941 (R.I. Super., July 10, 2001), 114 Powers ex rel. LaBelle v. Monahan, 85 R.I. 398, 132 A.2d 97 (1957), 183 Prata Undertaking Co. v. State Bd. of Embalming & Funeral Directing, 55 R.I. 454, 182 A. 808 (1936), 55, 57, 83 Providence & Worcester R. Co. v. Pine, 729 A.2d 202 (R.I. 1977), 109

Table of Cases

319

Public Utils. Comm’n. v. Rhode Island Co., 42 R.I. 379, 107 A. 871 (1919), 244 Pulawski v. Pulawski, 463 A.2d 151 (R.I. 1983), 86 Quattrocchi v. Langlois, 100 R.I. 741, 219 A.2d 570 (1966), 73, 76 Quince v. Langlois, 88 R.I. 438, 149 A.2d 349 (1959), 78, 295 Quince v. State, 94 R.I. 200, 179 A.2d 485 (1962), 78, 295 Ramsdell v. Langlois, 100 R.I. 468, 217 A.2d 83 (1966), 77 Ramsden v. Ford, 88 R.I. 144, 143 A.2d 697 (1958), 268 Ranalli v. Edwards, 98 R.I. 394, 202 A.2d 516 (1964), 270 Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826 (R.I. 2001), 98 Remington Realty Co. v. City of Providence, 89 R.I. 102, 151 A.2d 376 (1959), 99 Retirement Bd. of Employees’ Retirement System of State of R.I. v. Azar, 721 A.2d 872 (R.I. 1998), 74 Reynolds v. State Board of Public Roads, 59 R.I. 120, 194 A. 535 (1937), 100 Rhode Island Bar Ass’n v. Automobile Service Ass’n, 55 R.I. 122, 179 A. 139 (1935), 184, 239 Rhode Island Economic Development Corp. v. The Parking Company, L.P., 892 A.2d 87 (R.I. 2006), 200 Rhode Island Grand Jury v. Doe, 641 A.2d 1295 (R.I. 1994), 86 Roberts v. Board of Elections, 85 R.I. 203, 129 A2d 330 (1957), 127 Roberts v. Communications Investment Club of Woonsocket, 431 A.2d 1206 (R.I. 1981), 193, 194, 203 Rogers v. Hill, 22 R.I. 496, 48 A. 670 (1901), 228 Rogers v. Rogers, 98 R.I. 263, 201 A.2d 140 (1964), 242 Romeo v. Cranston Redevelopment Agency, 105 R.I. 651, 254 A.2d 426 (1969), 186, 199, 200 Rowe v. Border City Garnetting Co., 40 R.I. 394, 101 A. 223 (1917), 243 Royal v. Barry, 91 R.I. 24, 160 A.2d 572 (1960), 268 Salvail v. Sharkey, 108 R.I. 63, 271 A.2d 814 (1970), 71 Sartor v. Coastal Resources Mgt. Council, 542 A.2d 1077 (R.I. 1988), 238 Schiavulli v. Sch. Cmte. of Town of North Providence, 114 R.I. 443, 334 A.2d 416 (1975), 243 Seidner, Inc., v. Ralston Purina Co. 67 R.I. 436, 24 A.2d 902 (1942), 97 Sepe v. Daneker, 76 RI 160, 68 A.2d 101 (1949), 52, 55 Serzan v. Director of Department of Environmental Management, 692 A.2d 671 (R.I. 1997), 99 Sherman Publishing Co. v. Goldberg, 443 A.2d 1252 (R.I. 1982), 114 Skawanski v. State, 538 A.2d 1006 (R.I. 1988), 83 Smuler, et al. v. Napolitano, 911 A.2d 1035 (R.I. 2006), 68 Smith v. Retirement Bd. of Employees’ Retirement System of State of R.I., 656 A.2d 186 (R.I. 1995), 74 Society for Preservation of New England Antiquities v. Tax Assessors of City of Newport, 62 R.I. 302, 5 A.2d 293 (1939), 55 Spalding v. Bainbridge, 12 R.I. 244 (1879), 68 St. Pius X Parish Corp. v. Murray, 557 A.2d 1214 (R.I. 1989), 62 State Airport Commission v. May, 51 R.I. 110, 152 A. 225 (1930), 95 State Bd. of Health v. Roy, 22 R.I. 538, 48 A. 802 (1901), 91, 239 State ex rel. Costello v. Powers, 80 R.I. 390, 97 A.2d 584 (1953), 130 State ex rel. Cummings v. Crawford, 17 R.I. 292, 21 A. 546 (1891), 130 State ex rel. Egan v. McCrillis, 28 R.I. 165, 66 A. 301 (1907), 55, 95 State ex rel. Flynn v. McCaughey, 81 R.I. 143, 99 A.2d 482 (1953), 267

320

Table of Cases

State ex rel. Goldsworthy v. Aldrich, 14 R.I. 171 (1883), 126, 130 State ex rel. Webb v. Cianci, 591 A.2d 1193 (R.I. 1990), 36n. 31, 133 State ex. rel. Scott v. Berberian, 109 R.I. 309, 284 A.2d 590 (1971), 72 State Terminal Corp. v. General Scrap Iron, Inc., 107 R.I. 24, 264 A.2d 334 (R.I. 1970), 187 State v. A. Capuano Bros., Inc., 120 R.I. 58, 384 A.2d 610 1978), 94 State v. Almonte, 644 A.2d 295 (R.I. 1994), 69, 157 State v. Amado, 424 A.2d 1057 (R.I. 1981), 88 State v. Andrews, 390 A.2d 926 (R.I. 1991), 87 State v. Anthony, 20 R.I. 644, 40 A. 1135 (1898), 62 State v. Anthony, 121 R.I. 299, 397 A.2d 1309 (1979), 82 State v. Austin, 462 A.2d 359 (R.I. 1983), 80 State v. Austin, 731 A.2d 678 (R.I. 1999), 80 State v. Ballard, 699 A.2d 14 (R.I. 1997), 74, 75 State v. Barnes, 559 A.2d 136 (R.I. 1989), 72 State v. Beltre, 764 A.2d 190 (R.I. 2000), 72 State v. Bennett, 430 A.2d 424 (R.I. 1981), 70 State v. Benton, 413 A.2d 104 (R.I. 1980), 86, 87 State v. Berberian, 118 R.I. 413, 374 A.2d 778 (1977), 79 State v. Berker, 120 R.I. 849, 391 A.2d 107 (1978), 70, 119, 120 State v. Bertram, 591 A.2d 14 (R.I. 1991), 87 State v. Beswick, 13 R.I. 211 (1881), 88 State v. Burbine, 451 A.2d 22 (R.I. 1982), 81 State v. Carmello, 83 R.I. 303, 116 A.2d 464 (1955), 83 State v. Carufel, 106 R.I. 739, 263 A.2d 686 (1970), 74 State v. Chavis, 83 R.I. 360, 116 A.2d 453 (1955), 85 State v. Cline, 121 R.I. 299, 397 A.2d 1309 (1979), 82 State v. Coleman, 58 R.I. 6, 190 A. 791 (1937), 243 State v. Costakos, 92 R.I. 415, 169 A.2d 383 (1961), 88, 92 State v. D’Amario, 725 A.2d 276 (R.I. 1999), 69 State v. D’Amico, 110 R.I. 356, 293 A.2d 304 (1972), 119, 120 State v. Davis, 39 R.I. 276, 97 A. 818 (1916), 71 State v. Davis, 105 R.I. 247, 251 A.2d 394 (1969), 70 State v. De Cesare, 68 R.I. 32, 26 A.2d 237 (1942), 85 State v. DeWolfe, 402 A.2d 740 (R.I. 1979), 80 State v. DiStefano, 764 A.2d 1156 (R.I. 2000), 242 State v. District of Narragansett, 16 R.I. 424, 16 A. 901 (1889), 190, 192 State v. Duggan, 15 R.I. 403, 6 A. 787 (1886), 56 State v. Fay, 65 R.I. 304, 14 A.2d 799 (1940), 228 State v. Feist, 115 R.I. 201, 341 A.2d 725 (1975), 82, 83 State v. Feliciano, 901 A.2d 631 (R.I. 2006), 80 State v. Feng, 421 A.2d 1258 (R.I. 1980), 244 State v. Flynn, 16 R.I. 10, 11 A. 170 (1887), 92 State v. Fontaine, 113 R.I. 557, 323 A.2d 571 (1974), 87 State v. Fortes, 114 R.I. 161, 330 A.2d 404 (1975), 242 State v. Foster, 22 R.I. 163, 46 A. 833 (1900), 73 State v. Fowler, 79 R.I. 16, 83 A.2d 67 (1951), 62 State v. Fowler, 80 R.I. 85, 91 A.2d 27 (1952), 62 State v. Freeman, 473 A.2d 1149 (R.I. 1984), 79 State v. Garnetto, 75 R.I. 86, 63 A.2d 777 (1949), 157, 239, 240

Table of Cases State v. Gordon, 508 A.2d 1339 (R.I. 1986), 72 State v. Grabowski, 644 A.2d 1282 (R.I. 1994), 72 State v. Griffith, 612 A.2d 21 (R.I. 1992), 88 State v. Guido, 698 A.2d 729 (R.I. 1997), 71 State v. Harris, 871 A.2d 341 (R.I. 2005), 80 State v. Hartley, 656 A.2d 954 (R.I. 1995), 78, 80 State v. Higgins, 13 R.I. 330 (1881), 88, 89 State v. Holland, 430 A.2d 1263 (R.I. 1981), 81 State v. Holliday, 109 R.I. 93, 280 A.2d 333 (1971), 89, 90, 92 State v. Hudson, 55 R.I. 141, 179 A. 130 (1935), 79 State v. Ibbison, 448 A.2d 728 (R.I. 1982), 103, 108 State v. John and William Gordon (unreported) R.I. (1844), 81–82, 295–96 State v. Kilday, 90 R.I. 91, 155 A.2d 336 (1959), 89 State v. King, 112 R.I. 581, 313 A.2d 640 (1974), 80 State v. Kofines, 33 R.I. 211, 80 A 432 (1911), 48 State v. Krzak, 97 R.I. 156, 196 A.2d 417 (1964), 268 State v. Lake, 16 R.I. 511, 17 A. 552 (1889), 130 State v. Lemme, 244 A.2d 585 (R.I. 1968), 86 State v. Lessard, 754 A.2d 756 (R.I. 2000), 117 State v. Levesque, 694 A.2d 411 (R.I. 1997), 72 State v. Long, 488 A.2d 427 (R.I. 1985), 80 State v. Lorenzo, 72 R.I. 175, 48 A.2d 407 (1946), 85 State v. Malone, 568 A.2d 1378 (R.I. 1990), 88 State v. Manocchio, 497 A.2d 1 (R.I. 1985), 79 State v. Manocchio, 743 A.2d 555 (R.I. 2000), 242 State v. Marshall, 387 A.2d 1046 (R.I. 1978), 70 State v. Martinez, 651 A.2d 1189 (R.I. 1994), 87 State v. Muldoon, 67 R.I. 80, 20 A.2d 687 (1941), 71 State v. Mylod, 20 R.I. 632, 40 A. 753 (1898), 62 State v. Nelson, 31 R.I. 264, 77 A. 170 (1910), 104 State v. Nichols, 27 R.I. 69, 60 A. 763 (1905), 241 State v. One 1990 Chevrolet Corvette, 695 A.2d 502 (R.I. 1997), 72, 78 State v. Ouimette, 479 A.2d 702 (R.I. 1984), 74 State v. Pacheco, 763 A.2d 971 (R.I. 2001), 79 State v. Papa, 32 R.I. 453, 80 A. 12 (1911), 88 State v. Parillo, 480 A.2d 1349 (R.I. 1984), 79 State v. Paul, 5 R.I. 185 (1858), 83 State v. Peloquin, 427 A.2d 1327 (R.I. 1981), 166, 168 State v. Portes, 840 A.2d 1131 (R.I. 2004), 70 State v. Ramsdell, 109 R.I. 320, 285 A.2d 399 (1971), 119, 120 State v. Rhode Island State Police Lodge, 544 A.2d 133 (R.I. 1988), 187 State v. Rosenkrans, 30 R.I. 374, 75 A. 491 (1910), 169 State v. Ryan, 113 R.I. 343, 321 A.2d 92 (1974), 87 State v. Scotti, 104 R.I. 683, 248 A.2d 327 (1968), 194 State v. Settle, 90 R.I. 195, 156 A.2d 921 (1959), 113 State v. Smith, 70 R.I. 500, 41 A.2d 153 (1945), 85 State v. Smyth, 14 R.I. 100 (1883), 89 State v. Smyth, 121 R.I. 188, 397 A.2d 497 (1979), 86 State v. Storms, 112 R.I. 121, 308 A.2d 463 (1973), 116, 119

321

322

Table of Cases

State v. Taylor, 425 A.2d 1231 (R.I. 1981), 87 State v. Thomas, 654 A.2d 327 (R.I. 1995), 72 State v. Torres, 844 A.2d 155 (R.I. 2004), 80 State v. Town Council of South Kingstown, 18 R.I. 258, 27 A. 599 (1893), 144, 179 State v. Travis, 116 R.I. 678, 360 A.2d 548 (1976), 87 State v. Tregaskis, 540 A.2d 1022 (R.I. 1988), 56, 74 State v. Tutalo, 99 R.I. 14, 205 A.2d 137 (1964), 194 State v. Vinagro, 433 A.2d 945 (R.I. 1981), 92 State v. Wallace, 428 A.2d 1070 (R.I. 1981), 86 State v. Wax, 83 R.I. 319, 116 A.2d 468 (1955), 89 State v. Werner, 615 A.2d 1010 (R.I. 1992), 70 State v. Zorillo, 565 A.2d 1259 (R.I. 1989), 89 Stokes v. Rodman, 5 R.I. 405 (1858), 84 Suitor v. Nugent, 98 R.I. 56, 199 A.2d 722 (1964), 229 Surmeian v. Simons, 42 R.I. 334, 107 A. 229 (1919), 242 Sweeney v. Notte, 95 R.I. 68, 183 A.2d 296 (1962), 206, 207 Taber v. New York, Providence & Boston Railroad Co., 28 R.I. 269, 67 A. 9 (1907), 99 Taglianetti v. Fontaine, 105 R.I. 596, 253 A.2d 609 (1969), 76, 77, 89 Talbot v. Town of Little Compton, 52 R.I. 280, 160 A. 466 (1932), 98 Taylor v. Place, 4 R.I. 324 (1856), 25, 25n.21, 31, 37, 152, 156, 158, 175, 183, 236, 237 Tillotson v. City Council of City of Cranston, 61 R.I. 293, 200 A. 767 (1938), 95 Town of Barrington v. Blake, 568 A.2d 1015 (1990), 114 Town of E. Greenwich v. O’Neil, 617 A.2d 104 (R.I. 1992), 267 Town of Lincoln v. City of Pawtucket, 745 A.2d 139 (R.I. 2000), 269 Town of Lincoln v. Lincoln Lodge No. 22, 660 A.2d 710 (R.I. 1995), 138, 269 Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255 (R.I. 1999), 104, 109 Town of West Warwick v. Local 1104, Int’l Ass’n of Firefighters, 745 A.2d 786 (R.I. 2000), 83 Trevett v. Weeden (R.I. (unreported) 1786), 15, 36, 42, 156, 282 Turgeon v. Turgeon, 91 R.I. 433, 164 A.2d 699 (R.I. 1960), 86 Union Co. v. Sprague, 14 R.I. 452 (1884), 192 United States Time Corp. v. Ann & Hope Factory Outlet, Inc., 98 R.I. 503, 205 A.2d 125 (1964), 166 Violet v. Voccola, 497 A.2d 709 (R.I. 1985), 132 Walsh v. Gowing, 494 A.2d 543 (R.I. 1985), 68 Warwick Mall Trust v. State, 684 A.2d 252 (R.I. 1996), 196, 197, 272 Westerly Residents v. Brancato, 565 A.2d 1262 (R.I. 1989), 270 White v. White, 70 R.I. 48, 36 A.2d 661 (1944), 243 Whitman v. Mott, 114 R.I. 530, 336 A.2d 836 (1975), 250 Windsor v. Coggeshall, 54 R.I. 38, 169 A. 326 (1933), 104 Wood v. City of East Providence, 504 A.2d 441 (R.I. 1986), 201 Wood v. Quimby, 20 R.I. 482, 40 A. 161 (1898), 126, 192 Young v. Park, 116 R.I. 568, 359 A.2d 697 (1976), 67, 68

Index

(The text of the state constitution is paginated sequentially in the table of contents, and all court decisions and opinions are indexed in the table of cases.) Abortion, 35, 51–52, 54, 63, 260 Absentee Voting, 32, 122, 127–28, 178 Acts of Trade, 8 Adams, Susan Sharp, 27 Adelman, David C., 60 Administrative Agencies, Commissions, and Boards: appointments, 152, 158, 222–24; Brayton Act, 213; discrimination, 54; education, 169; elections, 127, 253, 267, 271–72; Ethics Comm’n, 8–9, 183, 278; families, 157; law and judiciary, 157, 212, 239, 239–40; lotteries, 38–39, 157, 169–70; medicine, 91, 157, 168–69, 269; natural resources, 93, 95, 104–5; nondelegation doctrine, 165–69, 182; pollution, 55, 83, 91, 169, 269; public safety/law enforcement, 83, 120, 169, 184, 188, 212, 221, 238; railroads, 223; roads, 55; separation of powers, 37, 134–35, 185, 40; state employees, 221, 224, 239; takings, 91, 93–95, 100, 157, 168, 269; taxes, 83, 157, 268; town administration, 130, 132, 212, 269; transportation, 157; undertakers, 55, 83; welfare, 238; zoning, 91, 183

Admiralty, 8, 17 Adopted Citizens’ Association, 123 Adult Correctional Institution, 78, 82 Adverse Possession, 98 African-Americans, 14, 64–66, 125 Agrarian-Debtor Revolt, 15 Agrarianism: colonial, 9, 11–12; postrevolutionary, 15–19, 25, 27, 156, 213 Alcohol, 53, 55–56, 88–89, 91 Aldrich, Nelson W., 25, 27, 43 n.22, 126, 130 Allen, Philip, 19, 24, 155, 229 Almond, Lincoln, 37–39, 44, 157–58, 184, 194, 223, 244 American Civil Liberties Union, 37, 63 American Party. See Know-Nothing Party American Revolution: before, 11–12; state’s role in, 13–15, 20, 60, 65, 112, 145 Ames, Samuel: Taylor v. Place, 25, 37, 152–55, 175, 236, 238; “The Great Chief Justice,” 43, 152, 236; Whig, 155, 163, 238 Andrews, Charles McLean, 5, 41 n.4, 64 Andros, Sir Edmund, 7

324 Angell, Joseph K., 174 Anthony, Henry Bowen, 25, 124–26 Antifederalism, 5, 16 Antinonianism, 3 Aquidneck Island, 4–5, 14, 64 Army Corps of Engineers, 107 Arnold, Samuel G., 227 Articles of Confederation, 15 Asians, 125 Atherton Land Company, 6 Automobiles, 70, 168 Bancroft, George, 7 Banking, 17, 84, 187, 190–91, 233, 256 Banking Crisis of 1991, 35, 54, 84, 187, 233 Barnard, Henry, 257–58 Barrington, 9, 114 Batastini, Mary E., 52 Beaches: adverse possession, 98; protection, 106, 110, 137, 166; Public Trust Doctrine, 104, 107–8, 110, 185, 238; riparian owners, 103, 105–6, 109 Berberian, Aram K., 119, 271 Bevilacqua, Joseph, 35, 248, 252–53 Bicameralism, 8, 165, 184, 212 Binning, Helen I., 27 Bishop Nathan, 256 Black, Hugo, 118 Blackstone Canal, 19 Blackstone River, 17, 169 Blackstone Valley, 208 Block Island. See New Shoreham Blodgett, William W., 176 Bloodless Revolution, 26, 28–29, 31, 36, 40, 120, 213, 231, 249 “Blue Laws ,” 56 Bogus, Carl T., 35, 157–58, 184 Borden, Luther M., 23, 42–43, 111, 155, 164, 238 Boston, 28, 93, 99, 113, 124, 181 Bourn Amendment, 25, 126, 271 Brayton, Charles Ray, 25, 26, 27, 43 n.22, 126 Brayton, George A., 152, 156, 163 Brayton Act, 27, 29, 213, 249 Brennan, Michael, 123

Index Bribery. See Corruption Bridges, 169, 183, 190, 197, 208 Bristol (town), 9, 18–19, 93, 163–64, 169, 171 Bristol County, 9, 171 British Parliament: American Revolution, 14; emulation of, 8, 38, 40, 60, 165, 183–84; Patent of 1644, 4, 6, 263 Brown, D. Russell, 144, 224 Brown, Moses, 17 Brown, Nicholas, 60 Brown University, 43 n.22, 43 n.24, 55, 122 Bryce, James, 263 Bullock, Nathaniel, 163 Burger, Warren, 63 Burnaby, Andrew, 13 Burnside, Ambrose, 123 Burrill, George R., 274 Bush, George W., 137 Carpenter, Thomas F., 23 Carroll, Charles, 43 n.22, 144, 256, 258, 260 Casey, Silas, 156 Casinos, 166, 169–70, 194, 203, 240, 275–76 Catholicism (Roman Catholics): colonial, 8, 59–60; constitution, 25; during American Revolution, 14, 60; immigrants, 23–24, 26, 165, 258; most Catholic state, 62–63; oppression of, 19, 23–24, 82, 123–25, 128–29; politicians, 5, 24, 28, 124–25, 241; publications, 124 Caucasians, 11, 64, 65 Certiorari, 127, 242, 243 Chace, Elizabeth Buffum, 27, 129 Chafee, John H., 33, 168, 196 Chafee, Zechariah, Jr., 30, 43 n.25 Chancery Powers, 20, 154, 175, 237, 240 Charlestown, 15, 18 Chepachet, 22, 111, 152 Child Support, 83 Christian Scientists, 62 Cianci, Vincent A., Jr., 36, 44, 132–33 Citizenship, 24, 60, 111, 164, 185 Civil War, 123, 227 Clarke, John, 42 n.6, 59, 78 Clay, Henry, 155, 164–65, 257 Clifford, Nathan, 43, 111 Coastal Resources Management Council, 93, 100–102, 105, 107–8, 110, 166

Index Coddington, William, 3–6, 64 Coercive Acts, 14 Coleman, Kevin K., 264 Coleman, Peter J., 18, 42 n. 16, 191 Commerce Clause (U.S.), 104 Committee on Citizens Rights, 52, 114, 118 Committee on Foreign Plantations (England), 4 Common Cause, 35, 37, 40 Conanicut. See Jamestown Condon, Francis P., 77, 199 Conflict of Interest Commission, 278 Confrontation Clause (U.S.), 79–80 Conley, Patrick T., 33, 37, 38, 185; 1973 Convention, 34–35, 44, 71, 123, 149, 194, 274–75; 1986 Convention, 36; libel case, 113; legal writings, 17, 44, 137, 151, 156, 165, 171, 191, 194, 208, 220, 258, 259–60, 265 Connecticut, 4, 6, 8, 18, 43, 64, 95, 225, 257 Conservation, 90, 102–3, 110, 196, 257 Constitutional Convention of 1834, 20–22, 29 Constitutional Party, 164, 236 Constitution of 1824, 19, 22, 29 Contract Clause (U.S.), 156 Cooke, Nicholas, 145–46 Coote, Richard (aka Earl of Bellomont), 8–9, 42 n.7 Corporations: alteration, 190, 192; appropriations, 186; creation, 186, 189, 190–92; legislators, 176; officer, 135–36; public corporations, 187, 192, 197, 200–201, 239; records, 86; rights of, 190; takings, 84, 96–97, 101, 187, 190, 238–39; taxes, 55–56, 184, 189 Corruption: in colonial times, 13; Cianci, Vincent, 36; DiPrete, Edward, 35, 158, 184; judges, 35, 67, 158, 184, 240; other officials, 127, 131, 149, 230 Cotner, Robert A., 115 Council of State (England), 5, 6 Council of War, 20, 42 Counties, 8–10, 19, 23, 31, 71, 185, 196, 240 Country Party, 15–16 Court and Practice Act of 1905 (aka Court Reorganization Act of 1905), 31, 241 Court of Assize, 10 Courts of Common Pleas, 236

325 Courts of General Sessions of the Peace, 9 Cozzens, William C., 227 Cranston (city): apportionment, 213; generally, 149, 265, 271; laws & actions of, 81, 95, 169, 186, 268–89, 271 Cranston, Henry Y., 22, 163 Cranston, Samuel, 8 Creditors, 49, 54, 82, 156, 191 Cromwell, Oliver, 6, 60 Cumberland, 9, 17–18, 67 Daniels, Bruce C., 42 n.8, 263 Davis, “Honest” John, 143–44 Davis, Paulina Wright, 27, 129 Davis, Thomas, 124 Dean, Sidney, 124 Death Penalty, 82 Debtors, 15, 49, 82, 84 Declaration of Independence, 14, 50 Delegation of Power. See Administrative Agencies & Boards Del Sesto, Christopher, 127–28, 231 DelSesto, Ronald W., 36 Democracy, 5, 41–43, 144, 151, 191 Democrats: apportionment, 208, 213; becoming part of two-party system, 19, 24, 164; Bloodless Revolution, 26, 28–31, 120, 150; Dorr Democrats (Dorrites), 22–24, 112, 155, 175, 190, 229–30, 236; early success, 19, 24; ethnic minorities, 28; governors, 19, 22, 25, 28–29, 112, 127; mayors, 231, 272; mid20th-century, 30–33; minority party, 24–25, 27–28, 126, 143–44, 156, 181–82; modern, 40, 158; suffrage, 123–25, 272; women, 27–28 Dennison, George, 163 Department of Defense (US), 137 Department of Environmental Management, 92, 99, 168 Department of Natural Resources, 166, 168 Depositors Economic Protection Corporation, 54, 94, 187, 197 DeSisto, Anthony, 138 DiBiase, Michael, 118 Digest of 1719, 8, 59, 60 Diman, Byron, 163 DiPrete, Edward, 35, 56, 73, 158, 245

326 District Courts, 31, 36, 63, 81, 156, 214, 247, 253, 260, 276 Divorce, 31, 154, 175, 237, 243 Dixon, Nathan F., 125 Doris, John F., 32 Dorr, Thomas Wilson: Anti-Dorr sentiment, 25, 152, 161; death of, 24, 229; Dorr Democrats (Dorrites), 22–24, 155, 175, 229–30, 236; and education, 256–57; exile, 22; Luther v. Borden, 23, 112; pardon of, 23, 229–30, 236; reformer, 20–21, 42 n.18, 50, 111, 162, 165, 174, 191; treason conviction, 23, 155–56, 175, 183, 230 Dorr Rebellion: beginning, 21–22; consequences of, 155, 183, 229; Law & Order Party, 22, 42 n. 42, 163, 174, 236, 258; suffrage, 18, 41 n.2, 50, 122, 208 Doyle, Thomas, 124 Driver, Rodney, 255 Drugs, 74–75, 166 Durfee, Job, 155, 163, 164 Durfee, Thomas, 176, 221 Dutch, 60, 64 Easements, 98–99, 107, 201 East Greenwich, 8–9, 18, 23, 63, 171, 267 East Providence, 43, 55, 95–96, 200–2, 258, 268 Eaton, Amasa, 26–27, 241, 264 Edwards, Stephen O., 241 Edwards, William H., 32–33, 264 Eighth Amendment (US), 73–74, 82 Elizer, Isaac, 60 Emergency Price Control Act (US), 118 Enabling Laws, 33–35, 56, 117, 139, 167, 278 Energy, 17, 21, 40, 97, 124 Engineering, 3, 67, 107, 120 England: American Revolution, 13, 17, 212; colonialism, 4–7, 39, 60, 64, 162; House of Lords, 174 English Bill of Rights, 115 Environmental Council, 37 Environmental Protection, 55, 95, 100–2, 106, 166, 168, 269 Equal Rights Movement of the 1880’s, 26, 58, 123

Index Equity, 36, 91, 97, 173, 191, 235, 237, 240–41, 243 Establishment Clause (U.S.), 62–63, 259 Ethics Commission, 35, 37–38, 40, 138, 173, 183, 277–78 Evidence: bail, 72, 77, 89; bribery, 253; circumstantial, 81; conflicting, 242; confrontation rights, 79–80; consent, 98; double jeopardy, 72; gathering of, 80; lack of, 87, 242; libel, 114; medical records, 69; nuisance, 97; prima facie, 88, 92; public records, 180; rules of, 83; search & seizure, 70; self-incrimination, 85; statements, 79, 80, 87–88, 114; takings, 100, 102; voting, 130–31; waivers, 81, 86 Excessive Bail Clause (U.S.), 73 Exclusionary Rule, 70 Exeter, 18, 169, 256 Expanding-static-declining towns, 17–19 Ex Post Facto Laws, 49, 83 Family Court, 31–32, 247 Farmer, Susan, 27 Fay, Thomas, 35, 253 Federalism, 5, 15, 16, 66, 263 Fenner, James, 22, 23 Fifteenth Amendment (U.S.), 31, 124–25, 231 Fifth Amendment (U.S.), 72, 78, 85–87, 93, 95, 107 Filibuster of 1924, 27–29, 181–82 Fire Departments, 83, 120, 130, 190, 192, 268–69 First Amendment (U.S.), 61–62, 113–14, 148, 276 First Circuit Court of Appeals, 81, 202 Fisheries, 7, 61–62, 104–6, 113–14, 276 Flanders, Robert G., Jr., 37–40, 44 n.33, 116–17, 139, 153, 184 Flynn, Edmund W., 29, 31, 199, 266 Flynn, William S., 28, 282 Fogarty, John E., 30 Forand, Aime J., 30 Fordham, Jefferson, 265 Foster, Theodore, 115 Fourteenth Amendment (U.S.), 90, 202, 206, 215, 238

Index Fourth Amendment (U.S.), 56, 70 France, 14, 60 Francis, John Brown, 19 Freedom of Religion: basis for constitution & creation of state, 4, 7–9; in colonial times, 4, 7; constitutionally protected, 58–59, 62; oath, 134; under 1843 Constitution, 61; voting, 125 Free Exercise Clause (U.S.), 59 Freeman’s Constitution, 21, 152, 154, 162, 174, 237 Freeman’s Convention, 21, 162 French, 14, 28, 113, 126, 182 Gale, Edwin, 102 Gambling, 36, 38–39, 166, 170, 193–94, 203 Garvin, Lucius, 27, 43 Gaspee, 13 General Court of Trials, 5, 9–10 Gettleman, Marvin, 42, 163 Glocester, 22 Goddard, Robert H. I., 27 Goldberg, Maureen McKenna, 38 Goodman, Jay S., 44 n.28, 265 Gordon, John, 81, 82 Gorham, Nicholas, 40 Gorman, Charles E., 26–27, 124–26, 241 Gorton, Samuel, 4–5, 64 Grand Convention. See Philadelphia Convention of 1787 Grand Juries, 33–34, 66, 70–71, 79, 86, 164, 240–41 Great Depression, 28 Green, Theodore Francis, 27, 29, 43 n.25, 112, 231 Greene, Nathaniel, 14, 145 Greene, Richard Ward, 156, 175, 236 Guarantee Clause (U.S.), 42, 111–12 Gun Control, 115–16 Habeas Corpus, 49, 75–77, 242, 244 Habitual Offender Statutes, 74 Haile, Levi, 156, 164 Hallett, Benjamin, 111 Harborlines, 106–7, 109–10 Hazard, Benjamin, 20–21 Hazard, Jonathan, 15–16 Higgins, James, 25, 27

327 Homosexuals, 52 Hopkins, Stephen, 12–14, 60 Hopkinton, 18 Hoppin, William W., 24, 228 Horsmanden, Daniel, 13 Hospitals, 67, 222 House of Lords (England), 10, 174 Howe, Daniel Walker, 164 Hutchinson, Anne, 3, 4 Hutchinson, Thomas, 14 Immigration, 18–19, 24, 26, 28, 81, 126, 229 Incorporation Theory, 118 Indigent, 68, 80, 239, 257, 272 Industrial Building Authority, 54 Industry: government support of, 195; industrialization, 16–19, 23, 25, 191–92, 208; manufacturing, 17, 195; regulation of, 95, 187; textiles, 17, 28 Insurance, 57, 92, 170, 190, 260 Intolerable Acts. See Coercive Acts Intoxication, 85, 166 Irish: Democrats, 28, 124, 125, 165, 241; Equal Rights Movement of 1880’s, 26, 58, 123; immigrants, 18–19, 24, 229; oppression of, 19, 23–25, 81–82, 124–25; suffrage, 23–24, 124–26 Islands. See Aquidneck; Jamestown; New Shoreham Italians, 28, 30, 126 Jackson, Andrew, 19, 164–65, 257 Jackson, Charles, 23, 163 Jackvony, Bernard, 223 Jacobites, 60 Jamestown, 5, 64, 208 Jefferson, Thomas, 17, 229, 265 Jehovah’s Witnesses, 62 Jenckes, Thomas A., 125, 163 Jennings, Richard W., 43 n.25, 176 Jennings, William J., Jr., 232 Jews, 8, 60–61 Johnston (town), 18, 21, 132, 163, 208, 276 Jones, William, 20 Justice of the Peace, 9, 10, 212, 250 Kelleher, Thomas, 259–60 Kent, James, 155, 238

328 Kent County, 9, 23, 171 King, Samuel Ward, 21–22, 111, 226 King Charles I , 4 King Charles II , 6, 13, 39 King George III, 13, 14, 146 King James II, 7 King James III, 60 King Philip, 7, 65 King Philip’s War, 7, 65 King’s County (Washington County) Kingston (village), 8, 14, 77, 171 King William’s War, 8 Knight, Nehemiah R., 163 Know-Nothing Party, 19, 24, 156, 229 Labor Unions, 28, 112, 114, 138, 182, 190, 202, 257 Ladd, Herbert W., 143, 144 Larisa, Joseph S., Jr., 39 Law and Order Constitution: convention, 152, 154, 162–63, 165, 174–75, 237–38; generally, 23, 25, 42 n.18, 151, 161, 165, 237, 256, 274; and People’s Constitution, 50, 162, 174–75, 236, 256, 274 Law and Order Party: Dorr Rebellion, 22, 24–25, 50, 152, 174, 236; Luther v. Borden, 111, 164, 238; Taylor v. Place, 152, 154–55 “Laws and Acts” of 1705, 59 Lawton, Edward, 163 Lederberg, Victoria, 258, 259 Lee, Robert, 63 Libel, 113 Liberty, 13, 14 Limited Constitutional Conventions, 31–36, 195, 198–202, 264, 274, 276 Lincoln (town), 39, 94, 138, 193, 269 Little Compton, 9, 98 Little Rest. See Kingston Locke, John, 14, 65 Lopez, Aaron, 60, 61 Lotteries: “dominant factor” test, 193–94, 203; expansion of, 203; legislature, 41, 137, 185, 194, 224; Lottery Commission, 38–39, 157, 171, 184, 193–94; 1973 Convention, 33–34, 194; prohibition of new lotteries, 167, 192–94 Lottery Commission, 38, 39, 157, 184, 193, 194

Index Lovejoy, David, 12, 42 n.9 Luther, Martin, 23, 42 n.20, 43, 111–12, 155, 164, 238 Luther, Seth, 190 Madison, James, 20 Magna Carta, 67, 78 Magrath, C. Peter, 237 Main, Jackson Turner, 12, 42 n.9 Maine, 7, 245 Marijuana, 74 Marshall, John, 16, 165 Martial Law, 30, 110–12, 115, 222 Maryland, 112 Massachusetts: adverse possession, 245; after filibuster of 1924, 2; American Revolution, 141; attempted annexation of Rhode Island, 5; boundary dispute, 9; colonial, 4–5, 7, 9, 13, 124; corporations, 55, Luther v. Borden, 111; politicians, 125; removal McClure’s Magazine, 27, 43 n.24 McCoy, Thomas P., 29, 30, 43 n.25, 112, 231, 232 McGrath, J. Howard, 30 McGunagle, Kenneth F., Jr., 265 McKenna, Keven, 35, 137, 249 McVinney, Russell J., 33 Merchants, 12, 16–17, 61, 127 Metcalf, Jesse H., 28, 182 Middletown, 113, 269, 272 Migliaccio, Helen, 149 Militia: American Revolution, 145; appointments, 137; corporations, 190; counties, 8; Dorr Rebellion, 22, 111, 236; governors, 145, 221; indictments, 70; martial law, 110; officers, 59, 111, 134–36; President of the U.S., 164; regulation, 222; right to bear arms, 115–16; riots, 112; suffrage, 123; under Royal Charter, 7; War of 1812, 20 Minors, 3, 14, 65, 83, 85, 157, 169, 175, 259 Misdemeanors: failure to pay wages, 83; judges, 31; mandatory accident report, 86; non-petty misdemeanors, 133; officers, 142–43, 248; petty misdemeanors, 79–80, 133; voting, 122, 131–33 Moakler, John W., 199

Index Moakley, Maureen, 158 Mohr, Ralph S., 227 Montesqieu, 64 Moshassuck River, 169 Moss, William, 29 Mount Hope Bay, 109 Mowry, Arthur May, 23, 42 n.19, 163 Murphy, William T., Jr., 122 Muslims, 62 Narragansett Bay, 3, 4, 17–18, 101, 106, 185, 263, 269 Narragansett Electric Company, 67, 84, 95–96, 109, 238 Narragansett Park, 30, 112, 193 Narragansetts (tribe), 3–4, 6, 7, 65, 194, 275 National Guard, 112, 136, 222 National Municipal League, 264 Native Americans, 4, 7, 8, 64–65, 115, 154, 194, 203, 275. See also individual groups Naturalization, 23, 25, 60, 123–26, 272 Natural Resources, 95, 102, 110, 166, 168 Navigation Acts, 13 Needham, Thomas, 136 New Deal, 28, 30 New England, 4, 7, 8, 17, 41 n.5, 64–65, 163 New France, 8 New Hampshire, 23, 112, 245 New Haven Colony, 4 Newport: American Revolution, 13–14, 113; apportionment, 6, 208, 212; bridges, 196; as capital of state, 10, 12, 24, 148, 171; decline of, 15, 208; founding of, 3; gambling, 39, 193; industrialism, 18–19; Patent of 1644, 4–5, 64, 263; paper-money plan, 16; police, 120, 184; politicians, 20, 124, 163, 209, 216; population, 9, 15, 60; takings, 96; taxes, 55; tidelands, 106; town government, 270 Newport County, 9, 18–19 New Shoreham, 250 New York City, 13, 124 Niantics, 3 Nineteenth Amendment (U.S.), 27, 129 Ninth Amendment (U.S.), 118, 192 Nipmucks, 3, 7

329 Nixon, Dennis W., 103–7 Nondelegation Doctrine, 165–66, 168–89 North Kingstown, 163, 238 North Providence, 17–18, 124, 179, 208, 243, 265 Nuisance, 97 Oaths, 134, 251 Obscenity, 238 O’Connor, Sandra Day, 74, 81 O’Hara, Walter, 30, 112 O’Neill, Isabelle Florence Ahearn, 28 Operation Clean Government, 35 “Orange Riots ,” 124 O’Reilly, Bernard, 24, 259 O’Shaunessy, George F., 27, 213 Padelford, Seth, 125 Paper-money plan, 15–16 Parks, 62, 200, 201 Patent of 1644, 4, 5, 6, 41, 263 Pawcatuck River, 7 Pawtucket: apportionment, 213; corporations, 192; industrialization, 17; judges, 77, 243; Pawtucket Falls, 17; politicians, 29–30, 112, 231–32; and religion, 61–63; schools, 55, 114; taxes, 241 Pawtuxet River, 17 Pennsylvania, 107, 125, 260 Pensions, 74, 94, 170, 269, 270 People’s Constitution: generally, 21–22, 111, 163–64, 190–91, 208, 257; and Law & Order Constitution, 50, 162, 174–75, 236, 256, 274 People’s Convention, 21, 50 People’s Party, 22–23, 111, 236 Pequots, 3, 64 Pettine, Raymond J., 260 Philadelphia Convention of 1787, 15, 16 Pitman, John, 163, 164 “Plunder Dome ,” 36 Plymouth Colony, 4, 65 Political Question Doctrine (U.S.), 23, 43 n.20, 111 Poll Tax, 32, 82 Popular Constituent Sovereignty, 21, 50, 111, 164 Portsmouth, 3, 4, 5, 6, 64, 109, 113, 208, 212, 263

330 Portsmouth Assembly of 1647, 5 Portugal, 60 Pothier, Aram, 182 Potter, Elisha R., Jr., 123, 259 Potter, Elisha R., Sr., 20, 42 n.18, 123, 259 Powers, William E., 34, 267, 275 Prisons: crime inside, 82; debtors, 82, 84; and Dorr, Thomas, 236, 258; felonies, 157; labor, 66; management of, 221; office-holding, 122, 132; prisoners, 73, 75–77, 222; revolts, 82; voting, 122, 131 Progressive Era, 27 Prohibition Party, 143 Property tax requirement for voting, 11, 23, 26, 123 Protestants, 115 Providence: American Revolution, 13, 113; apportionment, 6, 26–27, 208, 212–13; becoming part of state, 4, 5, 263; as capital city, 14, 22, 25, 170–71; Constitutional Convention, 32, 52; Dorr, Thomas, 20, 22, 152, 256–57; education, 256–57, 259, 263; environs, 12; founding of, 3, 225, 263; governor, 163; industrialization, 15, 17–18, 208; judges, 250; laws, 156, 186, 239, 264, 270; liberty, 5; mayors, 24, 30, 36, 124, 132; police, 18, 120, 188; pollution, 55, 83, 95; population, 15; Public Trust Doctrine, 104, 106, 109–10; recreation, 68; and religion, 24, 33–34, 60, 63; slavery, 64–65; suffrage, 27–28, 124, 129; takings, 67, 94–95, 99, 157, 192, 199; town meetings, 14; voters, 169 Providence County, 8–9 Providence Gas Company, 109 Providence Journal: judiciary, 137; libel, 113–14; politics, 25, 28, 33–34, 40, 113, 123–24, 158, 182, 259 “Proxing ,” 12–13, 42, 148 Public Trust Doctrine, 105, 108–10, 185 Puritans, 3–4 Quakers, 14, 16, 65–66, 134 Quinn, Robert Emmet, 28–30, 112, 181 Quorums, 29, 147–48, 178, 179, 231, 235, 240, 244 Quo Warranto, 36, 137, 242

Index “Race Track War,” 30, 112 Railroads, 17, 93, 97, 99, 145, 190, 223, 241 Randolph, Richard K., 163 Reapportionment Revolution, 158, 208, 214 Red Alert, 35 Regionalism, 12 Rehabilitation Act of 1973 (US), 52 Religious Test, 7, 8, 14, 59 Remini, Robert V., 164 Republicans: apportionment, 208, 213; Bloodless Revolution, 28–30, 213; cities, 208, 272; election challenges, 127, 143–44; ethnic minorities, 24–25, 28; formation of party, 24–25, 192; governors, 24, 40, 112, 120, 125, 127, 158, 182; as majority party, 24–28, 120, 125–26, 181–82; mayors, 124; as minority party, 30–33; separation of powers, 40, 158; women, 27 Revolutionary War. See American Revolution Rhode Island County, 8–9 Rhode Island Suffrage Association, 21 Rhode Island Woman Suffrage Association, 129 Rich, Robert (Earl of Warwick), 4 Richmond, 18, 265 Rider, Sidney S., 42 n.9, 148, 163 Rivers and Harbors Act, 107 Roberts, Dennis J., 30, 32, 33, 127, 128, 135, 136, 264 Roberts, Thomas, 127 Robinson, William P., Jr., 259, 260 Rochambeau (General), 14, 113 Rockefeller, John D., Sr., 25 Roosevelt, Franklin D., 28 Royal Charter of 1663: abolishment of, 13, 21–22, 24, 50; amendments, 49, 50, 274; American Revolution, 13–14, 145, 212; apportionment, 13, 18; Constitutional Convention, 29; copies, 41 n.5, 42 n.6; Dorr, Thomas, 111–12, 152, 156, 164, 174, 208; freedoms under, 7, 49, 59; judiciary, 9; legislature, 7, 9, 159, 161, 212, 226; Lord Bellomont, 8; martial law, 110–11; obtaining of, 6, 174; officers, 6, 7, 10, 37, 111, 143, 154, 158, 212, 237; as original constitution, 6, 41; right to bear arms, 115; separation of

Index powers, 151–52, 154, 165; shoreland, 102–3, 105–6; stability of, 19; suffrage, 6–8, 11–12, 148; suspension of, 7 San Souci, Emery, 112 Sapinsley, Lila, 231 Schlesinger, Arthur, M., Jr., 163 Scituate, 18, 67, 94, 265 Secretary of War (U.S.), 107 Seekonk River, 17 Semonoff, Ralph, 77 Separation of Church and State, 3, 4, 7, 49, 61, 63 Separation of Powers, generally: 1843 Constitution, 151, 165, 236; ethics, 37, 51, 137–39, 157–58, 184, 244; governor, 39, 158, 220; judiciary, 152, 156, 221, 245; legislature, 40, 41, 56, 110, 120, 157, 168, 182, 184–85; Republicans, 158; Royal Charter, 151 Separation of Powers Amendments: approval of, 40; distribution of powers, 151, 220, 248; governor, 110, 151, 220, 222, 226; home rule, 220; implementation, 41; judiciary, 135, 137, 139, 151, 184, 240; legislature, 151, 226; lotteries, 39, 184, 194; movement for, 184, 222, 275; residual powers, 40, 51, 110, 181–82, 185 Servicemen, 32, 122–23, 128 Selya, Bruce, 81 Sessions, Darius, 9, 17–18, 67 Seventh Amendment (U.S.), 90 Shawomet. See Warwick Shearman, Sylvester G., 152, 154, 163, 175, 237 Shoreline, 93, 101–8 Silverstein, Michael, 38 Simmons, James F., 163, 227 Sinnot, Peter A., 123 Sisson, George Lincoln, 93 Sisters of Mercy, 24 Sixth Amendment (U.S.), 78–80, 90 Slater, Samuel, 17 Slavery, 14, 16, 19, 24–25, 54, 64–66 Small Claims, 9, 31 Smith, Alfred E., 28 Smithfield, 17–18, 144 Smith, James Y., 24, 221

331 Smith, Matthew J., 43 n.24, 44 n.28, 44 n.29, 128, 259 Snow, Edwin M., 123 South County. See King’s County; Washington County South Kingstown: Constitutional Convention, 16, 66, 113; decline of, 18; elections, 144, 171, 179; judiciary, 238; politicians, 123, 163; seat of Washington County, 171; takings, 93, 100 Spanish Inquisition, 60 Speech-in-Debate Clause (U.S.), 177–78 Spencer, Anna Garlin, 27 Sprague, Amasa, 81 Sprague, William, 163, 227 Stanton, Joseph, Jr., 15 Stanzler, Milton, 77–78 Staples, William R., 41, 156, 164 State Council of Churches, 37 State Sovereignty: cities, 130, 268; civil rights, 118; Dorr, Thomas, 23, 112; dual office holding, 135; legislature, 20, 47, 158, 268; militia, 20; Public Trust Doctrine, 40; symbols of, 22; taxes, 54 Statutes of Limitations, 57, 67, 97, 98 Stiness, John H., 241 Story, Joseph, 20, 155, 163–64, 190, 238 Strikes, 112, 114, 202, 257 Stuart Dynasty, 6 Sugar Act of 1764, 13 Sundlun, Bruce, 51, 54–55, 94, 135–36, 187, 197, 258–59 Superior Court: attorney general, 227; bail, 73, 76–78; establishment of, 31–32, 73; gambling, 38; judges, 32, 74, 136, 247; preemption of, 137; public information, 33; religion, 60; review of, 174, 243, 258; takings, 94, 102; taxes, 169; trials, 241, 244 Superior Court of Judicature, 10 Supremacy Clause (US), 118–19, 137, 161, 178 Swansea, Massachusetts, 111 Swanson, Wayne S., 63 Swisher, Carl B., 155 Takings Clause (U.S.), 93 Taney, Roger B., 23, 24, 43 n.20, 112, 155–56

332 Third Amendment (U.S.), 112, 171 Tiverton, 9, 163, 192 Topf, Mel A., 244–45 Toupin, Felix, 28, 181, 182 Touro Synagogue, 60–61 Toryism, 15 Town Meetings: Bristol, 169; financial town meetings, 32, 122, 262, 271; as form of city government, 265; Jamestown, 250; meeting times, 266; New Shoreham, 250; participation in, 34, 122; Providence, 14; voting, 12, 122, 145, 148 Transportation, 17, 55, 98, 185, 187, 190, 264 Treason, 177. See also Dorr, Thomas Trevett, John, 15, 36, 42, 156 Trusts, 61, 91, 104, 107, 109, 196–97, 242, 272 Twenty-second Amendment (U.S.), 143 Twenty-sixth Amendment (U.S.), 122 Two-Party System, 12–13, 15–16, 19, 23–24, 27–28, 30 Unenumerated Rights, 117–20 Unicameralism, 32 United States Congress: adjournment, 181; apportionment, 185; congressmen, 27, 30, 124–25, 136–37, 163–64, 180, 213; environment, 107; Political Question Doctrine, 23–24, 112; powers of, 39, 107, 118, 163, 257; slavery, 66, 124; Supremacy Clause, 118, 124 United States Senate, 25, 28, 125, 167, 182, 214, 227, 229 United States Constitution. See name of clause, amendment or other provision United States Supreme Court: advisory opinions, 244–45; apportionment, 31, 207, 213; death penalty, 82; education, 258, 260; Eighth Amendment, 82; elections, 124, 132, 149, 271–72, 278; Fifth Amendment, 72, 81, 87, 95, 97, 101, 105, 200; First Amendment, 61–63, 113–14, 259–60; Fourteenth Amendment, 122, 202, 258; Fourth Amendment, 56, 70; Incorporation Theory, 118; justices, 163, 245, 249; militia, 111; office requirements, 180; Political

Index Question Doctrine, 23, 111, 164; powers of, 163; practice of law, 239; Public Trust Doctrine, 107, 109; ripeness, 101; Sixth Amendment, 79–80; Speech-in Debate Clause, 178; state legislature, 20; Supremacy Clause, 107, 118–19 University of Rhode Island, 43, 103, 158, 260 Updike, Wilkins, 163 Utilities, 95–96, 109 Vanderbilt, William, 30 Vane, Henry, 6 VanZandt, Charles C., 124 Varnum, James Mitchell, 15, 16 Veterans, 32, 124 Wallace, William A., 125 Wampanoags, 3, 4, 7, 65 Wanton, Joseph, 145, 146 Ward, Henry, 145 Ward, Samuel, 12, 13, 16 Wardwell, William, 144 War for Independence. See American Revolution War of 1812, 17, 19–20 Warren (town), 9, 18, 19, 104, 109, 111, 124 Warren, Charles, 156 Warren, Earl, 62 Warwick (city): American Revolution, 13; apportionment, 6, 208, 212–13; “blue laws ,” 56; founding, 5, 263; home rule, 265; industrialization, 17–18, 196–97, 272; politicians, 163, 181; slavery, 64–65; suffrage, 5; zoning, 91, 183 Washington County, 6, 8, 14, 18 Washington, D.C., 16 Washington, George, 16, 50, 61, 113, 245 Webster, Daniel, 20, 111–12, 155, 164, 238 Weeden, John, 15, 36, 42, 156 Weisberger, Joseph R., 37–39, 43 n.26, 81 Weisman, Deborah, 63 Westerly, 8, 18, 101, 108, 269, 270 West Greenwich, 18, 27, 169, 213, 256, West, H. Philip, Sr., 40

Index West Warwick, 18, 32, 83, 194, 213, 275–76 Whigs: British, 60; 1843 Constitution, 37, 154–55, 161–65, 231, 236; industrialization, 19, 42 n.17, 92; judges, 156, 164; Know-Nothing Party, 156, 229; Law and Order Party, 22, 25, 152, 155, 163–65, 236–38; politicians, 19, 21, 152, 155, 163–65, 238, 256; split of, 24; two-party system, 19, 24 Whipple, John, 20, 112, 155, 164, 238 White, Aaron, 23 Whitehouse, Sheldon, 35 Wiecek, William, 42 n.20, 163 Williams, Frank J., 136–37, 249 Williams, Roger: England, 4, 6, 64; founding of state, 3, 13, 41 n.1, 59, 61,

333 64, 225; Patent of 1644, 4, 7, 59, 263; and religion, 3, 7, 59–61; slavery, 65 Williamson, Chilton, 163 Wilson, Henry, 125 Winthrop, John, Jr., 6, 41 n.1 Women’s Rights, 27, 48, 51–52, 129 Woodbury, Levi, 112, 124 Woonsocket, 28, 32, 68, 94, 181, 193, 203, 264 Worker’s Compensation, 62 World War I, 28 World War II, 127 Yates, Elizabeth Upham, 27 Zoning, 91, 93, 95, 104, 107–8, 183, 243

About the Authors PATRICK T. CONLEY was a professor of history and constitutional law at Providence College for 30 years. He has been a practicing attorney in Rhode Island since 1979 and has handled more than 40 supreme court appeals. Conley was a research advisor to the 1964–1969 Constitutional Convention; secretary-delegate to the 1973 Convention, in which he was the draftsman and sponsor of present Article XIV and Article IV, Section 9; and general counsel to the president of the 1986 Convention. He holds a doctorate in history from the University of Notre Dame and a law degree from Suffolk University. This volume is the eighteenth book he has written or coauthored. Sixteen of those works relate to Rhode Island; two others, The Constitution and the States and The Bill of Rights and the States, written with John Kaminski, are prize-winning analyses of the federal Constitution. ROBERT G. FLANDERS, JR., is a former associate justice of the Rhode Island Supreme Court, where he served for eight and one-half years before returning to the private practice of law in 2004. He is now a partner in the Providence-based firm of Hinckley, Allen & Snyder LLP. He also serves as an adjunct professor of public policy at Brown University, where he teaches constitutional law, and as an adjunct professor of law at Roger Williams University School of Law, where he teaches courses on judicial process. Judge Flanders is a graduate of Harvard Law School and Brown University. He has authored or coauthored numerous publications pertaining to Rhode Island law, including most recently a treatise entitled Rhode Island Civil and Appellate Procedure with Commentaries (2006) and The Rhode Island Evidence Manual (2005).