Bailey v. Baronian

• Decision Date: 30 June 1978
• Docket Number: No. 77-341-M,77-341-M
• Citation: 394 A.2d 1338,120 R.I. 389
• Parties: William H. BAILEY et al. v. Leo P. BARONIAN et al. P.
• Court: Rhode Island Supreme Court

Page 1338

394 A.2d 1338

120 R.I. 389

William H. BAILEY et al. v. Leo P. BARONIAN et al.

No. 77-341-M.P.

Supreme Court of Rhode Island.

June 30, 1978.

[120 R.I. 401] John A. O'Neill, Jr., Providence, for petitioners.

Carroll, Kelly & Murphy, Joseph A. Kelly, Ronald H. Glantz, Acting City Sol., Gerald G. Norigian, Asst. City Sol., Providence, for respondents.

OPINION

KELLEHER, Justice.

We have treated this petition as one for certiorari seeking review of a decision of the Providence Board of Canvassers and Registration (the board) striking the petitioner's name from the list of qualified voters in the city of Providence instituted pursuant to the provisions of G.L.1956 (1969 Reenactment) § 17-10-12. ¹

The facts culminating in the instant petition have seen set forth previously by this court and need not be extensively reviewed. Bailey v. Burns, R.I., 375 A.2d 203 (1977). At a hearing before the board on August 31, 1977, counsel for petitioner stipulated that Mr. Bailey was "presently serving a term of two to four years in Michigan for the crime of larceny." Mich.Stat.Ann. § 28.592, M.C.L.A. § 750.360 ². Acting pursuant to amendment XXXVIII ³ of the Rhode Island Constitution, the board struck Mr. Bailey's name from the list of qualified voters. Mr. Bailey thereupon filed the instant petition. Section 17-10-12.

The sole issue presented in this facet of the petition is the scope of that portion of amendment XXXVIII which disenfranchises persons "convict(ed) of a felony." Specifically, the question is whether one serving a sentence for a felony in a sister jurisdiction is disqualified by reason of that provision. The petitioner argues that amendment XXXVIII disqualifies only those persons convicted of a felony in the courts of Rhode Island. The board contends that the provision disenfranchises all those convicted of felonies in any of the 50 states, or in the courts of the United States. Both argue in the alternative for a middle position, which would disenfranchise all convicted felons, including those convicted in foreign jurisdictions, if the crime for which they were convicted would also constitute a felony under the laws of the State of Rhode Island. They disagree, however, as to whether the Michigan crime for which petitioner was convicted, larceny from a building, would constitute a felony in Rhode Island.

In construing constitutions, our chief purpose is to give effect to the intent of the makers. In re House of Representatives, 45 R.I. 289, 120 A. 868 (1923). Ordinary words are to be given their usually accepted meaning, and we must presume the language was carefully weighed and that its terms imply a definite meaning. Opinion to the Governor, 62 R.I. 316, 6 A.2d 147 (1939); Blais v. Franklin, 31 R.I. 95, 77 A. 172 (1910). We must look to the history of the time and examine the state of things existing when it was framed and adopted, to ascertain the old law, the mischief and the remedy. State of Rhode Island v. Commonwealth of Massachusetts, 12 Pet. 657, 37 U.S. 657, 9 L.Ed. 1233 (1838).

Although amendment XXXVIII was adopted by the people in 1973, the disenfranchisement of certain criminals has been a permanent fixture in our constitution since it was first adopted in 1842. R.I.Const. art. II, § 4. Despite the longevity of this provision, this court has never had occasion to consider whether the disqualification provision extends to those convicted of crimes in our sister states. Amendment XXXVIII was adopted following a limited constitutional convention convened pursuant to P.L.1973, ch. 98. The 1973 convention was convened to consider amendments to the constitution on four subjects, one of which was the "revision of the election laws." P.L.1973, ch. 98, § 1. The convention referred all matters regarding the revision of the election laws to the Committee on Elections chaired by William T. Murphy, Jr.

In due course the committee submitted "Proposal 19," entitled "Of Suffrage," to the full convention. As originally proposed by the committee, the disenfranchisement provision was virtually identical to the provision which then existed in the constitution in amendment XXIV:

"Nor shall any person convicted of bribery, or of any crime deemed infamous at common law, be permitted to exercise that right, until he be expressly restored thereto by act of the general assembly." ⁴

Transcript of the 1973 Rhode Island Constitutional Convention, 6-47-48 (hereinafter "Transcript").

Two questions were raised by the delegates regarding this provision. Roderick A. J. Cavanagh noted that the "infamous crimes" language had been in the constitution in one form or another since 1842 and that the law had changed considerably since that time. ⁵ Specifically, he noted that Rhode Island now has many statutory felonies which were not crimes or infamous crimes at common law. Frank Caprio felt that there was a problem with the word "convicted" and its application to one who pleaded Nolo contendere and received a suspended sentence. These two objections were viewed as legal questions and, upon motion by Edward R. MacLaughlin, Jr., Proposal 19 was referred to the Committee on Style and Drafting. Transcript at 6-68.

The Committee on Style and Drafting proposed the following language to eliminate any ambiguity or uncertainty which may have existed under the prior language:

"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 handiwork of the committee was adopted without further debate and is presently found in amendment XXXVIII. No one, insofar as we have been able to discover, indicated by way of statement, question, or objection whether this provision disqualifies a person who is convicted of committing a crime which is considered a felony in one of our sister states.

Although the minutes of the 1973 convention do not directly address the issue with which we are concerned, they do reveal two important interpretive considerations. First, the substitution of the phrase "conviction of a felony" for the prior language regarding crimes "deemed infamous at common law" apparently was viewed by the delegates as simply a stylistic modification of an outmoded provision. Second, the requirement that the voter have served a "prison sentence" before he or she may be disenfranchised was adopted to preserve the franchise of persons who plead Nolo contendere and receive a suspended sentence.

In the absence of any clear indication of the intent of the drafters of our constitution, or of any precedential decisions by this court, it is appropriate for us to look to the cases from other jurisdictions which have interpreted similar provisions. Merlino v. Tax Assessors, 114 R.I. 630, 639, 337 A.2d 796, 802 (1975). However, these criminal disenfranchisement provisions are extremely diverse ⁶ and, therefore, many of the cases from other jurisdictions are simply inapposite. The Georgia constitution, for instance, is rather clear that those convicted elsewhere are to be disqualified if the crime is one of moral turpitude according to the laws of Georgia. Ga.Const. § 2-501; Hulgan v. Thornton, 205 Ga. 753, 55 S.E.2d 115 (1949). Approximately one-third of the states list specific offenses for which criminals can be prohibited from voting frequently including bribery ⁷ and larceny. ⁸ Note, Restoring the Ex-Offender's Right to Vote: Background and Developments, 11 Am.Crim.L.Rev. 721, 727 (1973). In such cases courts generally interpret the constitution or statute as disenfranchising anyone convicted of the specified crime, regardless of where the conviction occurred. In Application of Smith, 8 N.J.Super. 573, 73 A.2d 761 (1950), for instance, the court held that an individual convicted of larceny in Ohio was disenfranchised in New Jersey under a statute which denied the vote to those convicted of larceny. ⁹ While some states disenfranchise those convicted of a "felony" ¹⁰ or a crime involving "moral turpitude," ¹¹ many have some combination of the above provisions. ¹²

As noted above, there is a diversity of judicial opinion when courts have been called upon to interpret these disqualification provisions. Project The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929, 960-66 (1970). Some hold that the provision disqualifies only those convicted in the courts of that jurisdiction. ¹³ The majority apparently hold that a conviction anywhere, whether in the courts of a sister state or the United States, disqualifies an otherwise eligible voter. ¹⁴ A third group adopts what may be called a "middle position," which requires the disenfranchising state to apply its own law to the foreign conviction and determine whether the criminal charge would constitute a felony in the disenfranchising state. ¹⁵

Of the three positions, the middle ground is easiest to reject. While it may be theoretically or conceptually most appealing, it is, as this case demonstrates, practically unworkable. There is no Rhode Island criminal statute directly analogous to Mich.Stat.Ann. § 28.592, M.C.L.A. § 750.360, the crime for which petitioner was convicted. See note 2 Infra. More importantly, we do not have any record of the Michigan proceedings. All we have is a fact sheet from the Michigan Department of Corrections indicating that petitioner was convicted of "larceny from a building," a crime carrying a maximum penalty of 4 years' imprisonment. Counsel for petitioner has alleged that petitioner was prosecuted in Michigan for shoplifting certain records worth under $100, and, therefore, could only be convicted of G.L.1956 (1969 Reenactment) § 11-41-20 (shoplifting), a misdemeanor. Nothing in the record before us supports this allegation. Without any proof as to the value of the property taken by petitioner, it is...