Bendick v. Cambio

• Decision Date: 10 May 1989
• Docket Number: No. 87-299-M,87-299-M
• Parties: Robert L. BENDICK, Jr., Director, Department of Environmental Management v. Nicholas E. CAMBIO. P.
• Court: Rhode Island Supreme Court

Page 941

558 A.2d 941

Robert L. BENDICK, Jr., Director, Department of Environmental Management v. Nicholas E. CAMBIO.

No. 87-299-M.P.

Supreme Court of Rhode Island.

May 10, 1989.

Howard M. Cohen, Dept. of Environmental Management, for plaintiff.

John B. Webster, Michael A. Kelly, Adler, Pollock & Sheehan, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the petition for certiorari of Nicholas E. Cambio (petitioner) to review a decision of the Superior Court granting the motion of the Department of Environmental Management (respondent) to quash the petitioner's request for a jury trial. For the reasons set forth below, the petition for certiorari is granted in part. The facts of the case insofar as pertinent to this petition are as follows.

The petitioner owns property located south of Route 101 and approximately 1,200 feet east of Bungy Road in the town of Scituate, Rhode Island. In April of 1986, respondent issued a "notice of violation" to petitioner wherein he was ordered, in accordance with G.L.1956 (1976 Reenactment) § 2-1-23 and § 2-1-24(a), as amended by P.L.1980, ch. 406, § 10, to cease and desist from any further alteration of wetlands located on said property, and to restore the site to its condition as of July of 1971, on or before June 5, 1986. The notice of violation charged that petitioner "did accomplish or permit clear cutting, grading, excavation in and within 50 feet of a wooded swamp and destruction of several areas subject to storm flowage." In July of 1986, respondent and petitioner entered into a consent agreement (agreement) whereby the parties stipulated that said agreement constituted "a final administrative decision under the Administrative Procedures Act (Title 42, chapter 35 of the General Laws of Rhode Island)." The agreement also provided that petitioner would pay an administrative fine of $1,000 per month for each month he violated the agreement and that the same was "enforceable by resort to [the] Superior Court." This agreement was amended in November 1986.

On December 29, 1986, respondent filed a three-count complaint and request for injunctive relief in the Superior Court. In count 1, respondent alleged that petitioner had been in violation of the agreement for more than five months and sought an administrative fine of $5,000 and a penalty (pursuant to § 2-1-24(a)) of up to $500 for every day that he violated an order of respondent. Count 2 alleged that petitioner violated the Fresh Water Wetlands Act, §§ 2-1-20 and 2-1-21(a), and sought a fine of $1,000 for each violation thereunder. Count 3 alleged that petitioner violated the Water Pollution Act, G.L.1956 (1980 Reenactment) chapter 12, of title 46, and sought a civil penalty of up to $5,000 for every day that said act was violated in accordance with § 46-12-13, as amended by P.L.1983, ch. 149, § 1. In addition, respondent sought equitable relief in temporarily restraining and permanently enjoining petitioner from altering the site without respondent's prior written approval, or from taking any action that might further pollute state waters. The petitioner in his answer to the complaint requested a trial by jury.

On December 30, 1986, a justice of the Superior Court heard oral argument with respect to respondent's request for a temporary restraining order. The justice granted respondent's request in part and ordered petitioner to make any necessary alterations on his property to prevent the flow of water and sediment onto Route 101 and neighboring properties. In addition, petitioner was ordered "forthwith [to] install stacked hay bales and/or a silt fence at the site conditional upon the [respondent] pointing out to the [petitioner] where the hay bales and fence should be placed." This order embodied the terms of the agreement. On January 12, 1987, this order was continued and modified regarding petitioner's preventive obligations. On February 11, 1987, an order was entered by the Superior Court that consolidated and modified the orders of December 30, 1986, and January 12, 1987. The modification of these orders again pertained to petitioner's preventive obligations regarding his property. However, this order additionally provided for weekly penalties of $750 to be imposed upon petitioner in the event of his violation of the order.

On June 17, 1987, a justice of the Superior Court granted respondent's motions to assign this case to the continuous nonjury trial calendar and to quash petitioner's request for trial by jury. The trial justice denied petitioner's request for a jury trial because he concluded that this action was a suit in equity that was not altered by respondent's seeking monetary penalties. The trial justice declined to extend the right to trial by jury to this type of litigation. On June 24, 1987, the trial justice entered an order to that effect.

In arguing in favor of a right to a jury trial in respect to the imposition of civil penalties, both parties have cited Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987), a recent case decided by the United States Supreme Court. There the Court determined that the Seventh Amendment to the Constitution of the United States required a jury trial in respect to the determination of liability as a condition precedent to the imposition of civil penalties. The Seventh Amendment provides, "[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Although the opinion of the Supreme Court in Tull, would obviously have persuasive value, we must begin by recognizing that the Seventh Amendment to the Federal Constitution is not an inhibition upon state power to determine when jury trials will be afforded in civil cases. Initially, the first eight amendments to the United States Constitution, the Bill of Rights, served only as a limitation upon the power of the federal government and were not applicable to the states at all. Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833).

It was not until 1925 that the Supreme Court in Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138, 1145 (1925), assumed that the First Amendment's freedoms of expression were sufficiently fundamental to be incorporated into the due process clause of the Fourteenth Amendment and thus freed from impairment by the states. Prior to this time in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), the Court had reiterated the familiar principle that the Bill of Rights served solely as a limitation upon federal power. With the exception of the First Amendment, this limitation of applicability to the states continued, and the selective-incorporation doctrine was for the first time clearly enunciated in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and reiterated in Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947). In essence, the selective-incorporation doctrine was described first by Justice Cardozo in Palko, and later by Justice Frankfurter concurring in Adamson, as a process by which fundamental liberties contained in provisions of the Bill of Rights (or even if not therein contained) would be absorbed or incorporated into the due process clause of the Fourteenth Amendment and would thereby constitute a limitation upon state power. It was not until Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), that the right to privacy at the core of the Fourth Amendment was selectively incorporated into the due process clause by reason of its being implicit in the concept of ordered liberty. Twelve years later, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the Court adopted the exclusionary rule in the implementation of the Fourth Amendment guarantee as applicable to the states. Then with relative rapidity the Court selectively incorporated the Eighth Amendment ban on cruel and unusual punishment, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); the Sixth Amendment right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); the Fifth Amendment privilege against self-incrimination, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); the Sixth Amendment right to confrontation, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); the Sixth Amendment right to jury trial in criminal prosecutions, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); and finally the Fifth Amendment ban on double jeopardy, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In addition, the Court held earlier in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), that by implication there was a right of privacy to be found in the penumbras of the Bill of Rights read together with the Ninth Amendment. Thus far, the Supreme Court has not determined that the Seventh Amendment to the United States Constitution is implicit in the concept of ordered liberty and consequently applicable to the states. Indeed it has held specifically to the contrary in Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211, 217, 36 S.Ct. 595, 596, 60 L.Ed. 961, 963 (1916). Thus each state is free to determine by application of its own constitution and common law when, and in what circumstances, the right to a jury trial shall attach in civil cases.

Although Rhode Island is not constrained by the mandate of the Seventh Amendment to the United States Constitution, article 1, section 15, of the constitution of this state guarantees that "[t]he right of trial by jury shall remain inviolate." Briggs Drive, Inc. v. Moorehead, 103 R.I. 555, 557, 239 A.2d 186, 187 (1968); Mathewson v. Ham, 21 R.I. 311, 43 A. 848 (1899). We have been stringent in the application of this imperative in both civil and criminal cases....