Daluz v. Hawksley
| Citation | 351 A.2d 820,116 R.I. 49 |
| Decision Date | 23 February 1976 |
| Docket Number | No. 74-231-A,74-231-A |
| Parties | John A. DALUZ, Jr., et al. v. Raymond H. HAWKSLEY, General Treasurer of the State of Rhode Island, et al. ppeal. |
| Court | United States State Supreme Court of Rhode Island |
This is a civil action instituted in the Superior Court by the plaintiffs, John A. Daluz, Jr., Robert Sauber, and Edward Smith, Jr., as citizens and taxpayers of the ciry of Providence, individually and for and on behalf of others similarly situated including members on the State Retirement System, taxpayers and beneficiaries of other state funds, against Raymond H. Hawksley, in his capacity as General Treasurer of the State of Rhode Island, and members of the State Investment Commission as the defendants.
The plaintiffs seek a writ of mandamus commanding defendants to make available to plaintiffs for their inspection and use certain records and documents concerned with the administration, investment and management of public monies, including trust funds, in the custody of defendants in accordance with the provisions of G.L. 1956 (1969 Reenactment) § 35-10-8. In addition plaintiffs seek an accounting and other relief. The defendants under the provisions of Super.R.Civ.P. 12(b) moved to dismiss the complaint alleging that plaintiffs had failed to join an indispensable party, the Attorney General, and that plaintiffs lacked standing to maintain the action individually. The case is here on plaintiffs' appeal from an order granting the motion and denying and dismissing the complaint.
Subsequent to the appeal being docketed in this court, defendants filed a motion to dismiss the appeal on the ground that the matters alleged in the complaint had become moot. We denied the motion without prejudice to the right of defendants to renew their motion at oral argument. The defendants renewing their argument contend that this is a political case instituted by plaintiffs immediately proir to the general election held on November 5, 1974, for the purpose of obtaining political notoriety and publicity. The defendants point out that plaintiff Daluz was a candidate for the office of General Treasurer contesting for said office against the incumbent, defendant Hawksley. They further point out that all defendants are either elected state officials or political appointees of the Governor. While there may be some merit in defendants' argument, they have not convinced us that the complaint is based entirely on political considerations. The motion to dismiss because of mootness is therefore denied.
The narrow issue before us is whether or not the Superior Court justice was correct in holding that the Attorney General is an indispensable party to this action.
Although an action to obtain a writ of mandamus, heretofore prerogative in character, is now controlled procedurally in the Superior Court by Super.R.Civ.P. 81(d), the legal sufficiency of a complaint seeking such relief is still tested by the same substantive standards which have heretofore prevailed. Demers v. Shehab, 101 R.I. 417, 224 A.2d 380 (1966); Hammond v. Hull, 76 U.S.App.D.C. 301, 131 F.2d 23 (1942); Kay Ferer, Inc. v. Hulen, 160 F.2d 146 (8th Cir. 1947); 7 Moore, Federal Practice (2d ed.) § 81.07.
It is well established that a writ of mandamus will issue only where the petitioners have a clear legal right to have the act done which is sought by the writ; and where the respondents have a ministerial, legal duty to perform such act without discretion to refuse; and where the petitioners have no plain or adequate remedy at law. Demers v. Adamson, 102 R.I. 453, 231 A.2d 484 (1967); Aniello v. Marcello, 91 R.I. 198, 202-03, 162 A.2d 270, 272 (1960); Sun Oil Co. v. Macauley, 72 R.I. 206, 210, 49 A.2d 917, 919 (1946).
In earlier cases we have recognized the common law right of inspection of public records by a proper person or his agent provided he has an interest therein which is such as would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information. Nolan v. McCoy, 77 R.I. 96, 73 A.2d 693 (1950); In re Caswell's Request, 18 R.I. 835, 29 A. 259 (1893).
In O'Brien v. Board of Aldermen, 18 R.I. 113, 25 A. 914 (1892), we established that a private individual can apply for mandamus only where he has some private or particular interest to be pursued or protected, independent of that which he holds in common with the public at large; and that...
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