Bailey v. Burns
| Decision Date | 21 June 1977 |
| Docket Number | No. 77-19-M,77-19-M |
| Citation | 118 R.I. 428,375 A.2d 203 |
| Court | Rhode Island Supreme Court |
| Parties | William H. BAILEY et al. v. Robert F. BURNS, Secretary of State. P. |
This petition for a writ of mandamus seeks to compel the respondent, in his capacity as Secretary of State, to forthwith give the oath of office to the petitioner William H. Bailey as representative of the 19th Representative District. The respondent filed an answer and memorandum of law in opposition to the petition. We assigned the matter for oral argument on February 11, 1977. See Bailey v. Burns, R.I., 368 A.2d 583 (1977). After that hearing we entered an order granting the petition, directing the alternative writ to issue forthwith, and assigning the case for oral argument on the merits on March 11, 1977. See Bailey v. Burns, R.I., 370 A.2d 247 (1977). The alternative writ ordered the respondent to administer the oath of office to the petitioner Bailey, as prayed for or, in the alternative, to show cause why he should deny the petitioner the oath of office. McCoy v. Nolan ex rel. Providence Journal Co., 74 R.I. 464, 62 A.2d 330 (1948); Nolan v. McCoy, 77 R.I. 96, 73 A.2d 693 (1950).
The petitioner Bailey's version of the facts, as set forth in his petition for mandamus, is in substance as follows. In June 1976, pursuant to state law 1 and the rules and regulations of the Providence Board of Canvassers, Mr. Bailey filed nomination papers for the office of state representative for the 19th district. No objection to those papers were filed under the applicable statute, 2 nor did Mr. Bailey file to withdraw his nomination. Following the September primary, a certificate of nomination as the Democratic candidate was issued to him by the Board of Canvassers. On November 2, 1976, Mr. Bailey received a plurality of the votes cast for 19th district representative.
Mr. Bailey's name appeared throughout this time on the voting lists as a qualified elector in his district; no formal objection to his qualifications was made to the Board of Canvassers, Board of Elections or House of Representatives by any qualified elector of the 19th Representative District. However, allegations concerning Mr. Bailey's qualifications were contained in a letter to the Board of Elections from Colonel Walter E. Stone of the State Police, and the board held a hearing on these allegations. The board unanimously decided it had no jurisdiction to question his qualifications as an elector and subsequently certified Mr. Bailey's name as a duly elected representative from the 19th district to the Secretary of State.
On January 2, 1977, a special informal meeting was held by prospective members of the House. At this meeting, Mr. Bailey and the other members-elect were informed that an objection might be made to his qualifications by prospective house members on the ground that he might possibly be in violation of art. XXXVIII of amendments to the Constitution of this state "in that an act he allegedly committed in 1962 was or might be in violation of this 1973 Amendment." On the following day, two prospective members filed such objections.
Mr. Bailey further alleges that on January 4, 1977, the Secretary of State refused to perform his ministerial duty under art IX, § 5 3 of the state Constitution by refusing to administer the oath of office to Mr. Bailey.
In his answer and memorandum, respondent admits that by letter dated December 20, 1976, he was informed by the State Board of Elections that, based upon its count and tabulation of the vote cast, one William H. Bailey had been elected to the office of representative in the 19th Representative District in the general election on November 2, 1976. The respondent also admits that on January 4, 1977, he certified to the House of Representatives the information he had received from the Board of Elections pursuant to the requirements of §§ 22-3-1 and 22-3-13. However, respondent states that, contrary to petitioners' allegations, the information received from the Board of Elections did not refer to Mr. Bailey as a "duly elected" representative, nor did the Attorney General or any of his assistants ever recommend to said board that Mr. Bailey be certified as a "duly elected State Representative."
The respondent's answer also contains the following statements. On January 4, 1977, the members present of the House of Representatives took their engagements of office before respondent pursuant to the provisions of art. IX, § 5 of the Rhode Island Constitution and § 22-3-17. 4 The petitioner Bailey did not take an engagement of office nor make any oath or affirmation although he was present in the House chamber at the time. Contrary to Mr. Bailey's allegations, respondent did not refuse to administer any oath of office to Mr. Bailey. The respondent was informed and believes that Mr. Bailey himself voluntarily refrained from taking the engagement of office. Mr. Bailey remained seated at the time that the oath of office was administered to the entire House by respondent. 5
The respondent further asserts that on January 4, 1977, the House of Representatives voted to refer the question of whether to seat Mr. Bailey to a select committee of the House to make factual findings and recommendations. The Select House Committee on Credentials held open hearings on several days commencing January 5, 1977, on the question of Mr. Bailey's qualifications after which it prepared and submitted a final report to the House of Representatives.
In its decision, dated January 17, 1977, the select committee decided that certain "crimes committed by Mr. Bailey in 1961, 1962 and 1963 were infamous as described in Article 24" 6 of our state Constitution and that "Article 24 applied to the crimes committed in" those years. After finding that the crimes committed by Mr. Bailey constituted a "prohibition under Article 24," the select committee recommended "to the House of Representatives that he not be seated."
Additionally, the committee suggested the following alternative "1. The full House can accept the recommendations of the Select Committee and vote not to seat William H. Bailey.
On January 27, 1977, the House of Representatives passed a resolution stating that:
"William H. Bailey is under a constitutional disqualification and, therefore, is not qualified to hold office as a member of this House of Representatives."
The House based its action upon the report of the select committee and was acting under the provisions of art. IV, § 6, which reads as follows:
Organization and proceedings 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; 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."
It was in the context of the foregoing factual background that the instant petition was filed. The narrow issue presented for our determination is whether Mr. Bailey was deprived of his right to have the oath of office administered to him on January 4, 1977, under the provisions of art. IX, § 5, as implemented by the provisions of G.L.1956 (1968 Reenactment) ch. 3 of title 22.
Mr. Bailey argues that he was deprived of his right to be administered the oath of office to which he was entitled by virtue of the certificate transmitted by the State Board of Elections to the Secretary of State on December 20, 1976, declaring that he had been elected to the office of representative in the 19th Representative District. In response to the alternative writ directing him to show cause why he should not administer the oath of office to Mr. Bailey, respondent has advanced certain arguments to which we address ourselves at this time.
We consider initially respondent's contention that this court is without subject matter jurisdiction over the issues raised in this petition. He argues that jurisdiction over this matter rests with the House of Representatives exclusively. The respondent relies on that portion of art. IV, § 6 which provides that "(e)ach house shall be the judge of the elections and qualifications of its members * * *." In support of his argument that art. IV, § 6 grants to each house full jurisdiction over the elections and qualifications of its members, respondent cites Corbett v. Naylor, 25 R.I. 520, 57 A. 303 (1904); McGann v. Board of Elections, 85 R.I. 223, 129 A.2d 341 (1957), and State v. Town Council, 18 R.I. 258, 27 A. 599 (1893). We have no quarrel with the holdings in those cases, but they are of no help to respondent in the case at bar. The basic issue in the instant case concerns the question of whether Mr. Bailey should be sworn in by the Secretary of State and not the question of whether he should be seated as a member of the House of Representatives.
The question of whether the oath of office should be administered to Mr. Bailey presents a justiciable question of constitutional dimensions, namely,...
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State ex rel. Olson v. Bakken, s. 10362
... ... pertaining to recount notwithstanding provision that each house shall be the judge of elections, returns, and qualifications of its members); Bailey v. Burns, 118 R.I. 428, 375 A.2d 203 (1977), and McGann v. Board of Elections, 85 R.I. 223, 129 A.2d 341 (1957) (jurisdiction of Supreme Court to ... ...
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