Gelch v. State Bd. of Elections, s. 84-320-M
| Citation | 482 A.2d 1204 |
| Decision Date | 19 October 1984 |
| Docket Number | Nos. 84-320-M,s. 84-320-M |
| Parties | Melvyn M. GELCH v. STATE BOARD OF ELECTIONS et al. P., 84-330-M.P. |
| Court | Rhode Island Supreme Court |
This case is before the court following the consolidation of two petitions for writ of certiorari. The petitioner, Melvyn M. Gelch (Gelch), seeks a review of two decisions of the State Board of Elections certifying Vincent A. Cianci, Jr. (Cianci), as a qualified candidate in the special mayoral election. The special election was being held to fill the unexpired term of the office of mayor that was forfeited when Cianci, the incumbent mayor, was convicted of a felony. We hold that according to the Providence Home Rule Charter of 1980 (charter), when the office is vacated because the incumbent is convicted of a felony, the entire four-year term of office must be vacated, thereby prohibiting the incumbent from seeking to fill the unexpired portion of the term.
On April 23, 1984, Cianci was convicted of the felony of assault with a dangerous weapon after pleading nolo contendere in the Superior Court. He was sentenced to five years at the Adult Correctional Institutions (ACI). The execution of the sentence was suspended, and Cianci was placed on probation for five years. On April 25, 1984, Cianci resigned the office of mayor of Providence and the city council declared the office vacant pursuant to § 206(a) of the charter.
Cianci filed with the Providence Board of Canvassers a declaration of his candidacy and his nomination papers for the office of mayor of Providence for the special election to fill the unexpired term from which he resigned. Gelch objected to Cianci's candidacy before the board of canvassers pursuant to G.L. 1956 (1981 Reenactment) § 17-16-16. Gelch's objection was based on G.L. 1956 (1981 Reenactment) § 13-6-2, a state law that deals with the loss of civil rights by persons sentenced to imprisonment for more than one year. The board of canvassers denied the objection and certified Vincent A. Cianci, Jr., a qualified candidate for the special mayoral election. Gelch appealed this decision to the State Board of Elections.
The board of elections affirmed the decision of the board of canvassers. Gelch filed a petition for writ of certiorari with this court, seeking a review of the state board's decision. Gelch subsequently amended his earlier objection with the board of canvassers to include an argument based on the charter.
The board of canvassers declined to rule on the applicability of § 206 of the charter, claiming that it lacked jurisdiction. Gelch then took a second appeal to the board of elections.
The board of elections ruled that Cianci was an eligible candidate under the charter. Gelch filed a second petition for writ of certiorari with this court, requesting a review of the second decision of the board of elections. On June 25, 1984, this court entered an order issuing writs of certiorari, consolidating them for hearing, and staying the special election until July 31, 1984.
After hearing arguments, an order of this court was entered declaring Cianci ineligible to be a candidate in that special election. Gelch v. State Board of Elections, Nos. 84-320-M.P. and 84-330-M.P. (R.I., filed July 6, 1984). We now write to detail our reasoning.
Gelch first claimed that the United States Constitution allows the state to place qualifications on a convicted felon's right to hold public office. He then asserted that Rhode Island's Constitution merely sets minimum qualifications on a person's right to hold public office, thereby allowing the General Assembly to establish further qualifications. Finally, Gelch asserted that the charter requires that the entire four-year term of office be vacated when an incumbent is convicted of a felony, making Cianci an ineligible candidate in the special election being held to fill his unexpired term.
A threshold issue is whether Gelch has standing to object to Cianci's candidacy. He contends that as a qualified elector in the city of Providence he has standing pursuant to § 17-16-16. This statute provides for the filing of "written objections * * * to the eligibility of the candidate * * *." A reasonable interpretation of this statute is that qualified electors of Providence have standing to object to a candidate's eligibility. This conclusion is reached in light of this court's past holdings conferring standing liberally when matters of substantial public interest are involved. Blackstone Valley Chamber of Commerce v. Public Utilities Commission, R.I., 452 A.2d 931, 933 (1982). We conclude that petitioner Gelch has standing to object to Cianci's eligibility as a candidate.
States have the discretion to establish certain 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). This power of the state, of course, must be exercised within the bounds of the Federal Constitution. It must be free of the discrimination that the United States Constitution condemns.
Limitations on the right of a person who has been convicted of a felony to vote and to hold public office have been explicitly recognized by the United States Supreme Court. Richardson v. Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 2671, 41 L.Ed.2d 551, 571 (1974). The Court in Richardson noted that whereas the equal-protection clause puts many inhibitions on the power of the state to limit the franchise, section 2 of the Fourteenth Amendment to the United States Constitution expressly allows the states the power to disenfranchise convicted felons. 1 The Court held that the disenfranchisement of a convicted felon by the state need not undergo the typical equal-protection analysis that other qualifications on the right to vote and to hold public office must undergo under section 1 of the Fourteenth Amendment because of the express exception contained in section 2. A decision by the state therefore to disenfranchise a person or to disqualify a person who has been convicted of a felony from seeking public office does not violate the equal-protection clause of the Federal Constitution.
Cianci claimed that his First Amendment rights would be violated by denying him access to the ballot, thereby requiring the state to prove a compelling interest to warrant the denial. U.S. Const. amend. I. Although it is clear that the candidacy for public office is one of the rights included within the scope of the First Amendment of the United States Constitution, Cummings v. Godin, 119 R.I. 325, 335, 377 A.2d 1071, 1076 (1977), the disqualification of a convicted felon by a state is specifically allowed under section 2 of the Fourteenth Amendment. The First Amendment, only applicable to the states through the Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138, 1145 (1925), therefore gives Cianci no further protection than that established by the Fourteenth Amendment. We find, therefore, that his claim of a First Amendment violation is without merit.
Cianci contended that Rhode Island's Constitution bars any legislative restriction on the right of a citizen to be a candidate for public office beyond the constitutional requirement that all candidates be qualified electors. This contention cannot be sustained.
Shortly after the turn of the century, this court in Payne & Butler v. Providence Gas Company, 31 R.I. 295, 316-17, 77 A. 145, 154 (1910), pointed out that a state constitution, unlike its federal counterpart, does not constitute a grant of enumerated powers to the State Legislature. Instead, a state constitution merely acts as a limitation "upon the complete power with which the legislative department of the state was vested in its creation." Thus, in dealing with the Federal Constitution, one searches for a grant of legislative power. However, when a state constitution is in issue, the search is centered on the presence, if any, of a constitutional limitation on the legislative power. Such a limitation must be "created and imposed by express words or arise by necessary implication." Id. at 317, 77 A. at 154. Similar sentiments have been expressed in Nugent v. City of East Providence, 103 R.I. 518, 525, 238 A.2d 758, 766 (1968), and Henry v. Cherry & Webb, 30 R.I. 13, 29-30, 73 A. 97, 104 (1909). The relevant constitutional provision in this case is article XXXIX of the amendments to the Rhode Island Constitution, which provides: "No person shall hold any civil office unless he be a qualified elector for such office."
This article of amendment, adopted by the electorate in November 1973, replaced section I of article IX, which had been a part of the state's constitution since its adoption in 1842. Section I had specified that "no person shall be eligible to hold any civil office (except the office of school committee) unless he be a qualified elector for such office." The parenthetical phrase, "except the office of school committee," written prior to women's suffrage, permitted women to hold office only on the school committee. With women's suffrage, this parenthetical phrase became mere surplusage. The phrase was finally eliminated in 1973 with the adoption of article XXXIX.
Article XXXIX of the amendments to the Rhode Island Constitution was adopted following the conclusion of a limited constitutional convention held pursuant to P.L. 1973, ch. 98. In Bailey v. Baronian, 120 R.I. 389, 392-93, 394 A.2d 1338, 1340 (1978), we noted that the 1973 convention dealt with four areas of concern, one of which was the revision of the election laws. I...
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