Lemoine v. Martineau, Nos. 75-72-M

CourtUnited States State Supreme Court of Rhode Island
Writing for the CourtKELLEHER
Citation342 A.2d 616,115 R.I. 233
Decision Date29 July 1975
Docket NumberNos. 75-72-M
PartiesLinda LEMOINE et al. v. Paul MARTINEAU et al. STATE v. Edward F. CHOINIERE. P., 75-78-M.P.

Page 616

342 A.2d 616
115 R.I. 233
Linda LEMOINE et al.
v.
Paul MARTINEAU et al.
STATE
v.
Edward F. CHOINIERE.
Nos. 75-72-M.P., 75-78-M.P.
Supreme Court of Rhode Island.
July 29, 1975.

Page 618

[115 R.I. 243] Robert M. Brennan, Richard Bruce Feinstein, Providence, for Linda Lemoine.

J. Joseph Nugent, Jr., Providence, for Edward F. Choiniere.

Joseph M. Hall, George M. Vetter, Jr., Jeremy W. Howe, Newport, for R.I. Bar Assn., amicus curiae.

Joseph V. Cavanaugh, James M. Micali, Providence, for Paul Martineau.

Julius C. Michaelson, Atty. Gen., William G. Brody, Special Asst. Atty. Gen., for the State.

OPINION

[115 R.I. 234] KELLEHER, Justice.

We have issued our writ of certiorari in each of the above cases and consolidated them for hearing. The single issue before us is whether the provisions of G.L.1956 (1968 Reenactment) § 22-4-3 constitute an unconstitutional encroachment on Rhode Island's judicial system by the General Assembly. We hold that they do.

In essence § 22-4-3 provides that during the time the [115 R.I. 235] Legislature is in session its members, whether they be litigants, counsel of record, or witnesses, need not appear at the trial of any civil or criminal action then being held in the courts of this state, and that any process served upon the absentee legislator to compel his or her appearance in court is void.

Having cited the pertinent statute, we shall briefly set forth the factual background of each of the cases now before us.

Lemoine seeks damages for personal injuries she sustained as a result of a May 1970 automobile collision. The incident involved two vehicles. Lemoine was a passenger in one of the vehicles. Both drivers have sued each other, and the passenger in the other automobile has sued the driver of the vehicle in which Lemoine was a passenger. In June 1972 all the respective claims were consolidated and assigned to the continuous jury trial calendar. Lemoine's attorneys are members of a Providence law firm. On January 31, 1973, a member of the firm entered his appearance in her behalf. As time progressed,

Page 619

the cases moved up the calendar until they had reached the 'No. 1 ready' position. On February 18, 1975, one of Lemoine's attorneys, who had been elected to the House of Representatives in the November 1974 election, asked that the assignment judge continue the cases until such time as the January 1975 session of the General Assembly had adjourned. In making this request, counsel estimated that the trial would take about 5 or 6 days and he could not 'afford to lose that much time from the General Assembly meetings.' The assignment justice in denying the request ruled that § 22-4-3 was unconstitutional. He did, however, offer to continue the cases to any day within the next 2 weeks that was most convenient for Lemoine's counsel. The legislator suggested a week's continuance, but when it was discovered that the defense [115 R.I. 236] counsel might not be available to that time, the cases were continued 1 month to March 18. Subsequently, on March 17, Lemoine, through her counsel, sought certiorari. We stayed the Superior Court proceedings and issued the writ on March 24. 1

Choiniere is an attorney who has been charged in three separate indictments with embezzling over $13,000 belonging to his clients. The indictments were returned in early March 1974. Subsequently, in April 1974, his counsel filed a series of discovery motions all of which were denied in part and granted in part. Appropriate orders were entered on April 23, 1974.

Almost a year later, in February 1975, the State furnished the necessary information. At this point in time Choiniere's counsel was a member of the House of Representatives, having been elected to that office during the November 1974 general election. On February 14, 1975, counsel received a 21-day notice. 2 A month later he was sent a notice informing him that the indictments would be called for trial on March 20, 1975. On March 20, 1975, Choiniere's counsel appeared before the trial justice to [115 R.I. 237] whom the indictments had been assigned. Counsel first sought a continuance on three grounds: (1) he was not adequately prepared to present a defense because of him misunderstanding as to when his case could actually be ready for trial; (2) pressing legislative duties that demanded his presence in the General Assembly; and (3) his desire to try another case that was ready for trial on the civil calendar.

The trial justice, after listening to counsel's argument, rejected each contention made. The discovery information, he said, had been provided to the defense 5 weeks ago. The trial justice assured counsel that arrangements could be made so that his pending civil cases would be kept in a ready position and they could be tried as soon as the pending indictments had been tried. In referring to counsel's concern about his absence from the Legislature, the trial justice observed that in his years on the criminal calendar, he had never experienced any difficulty in receiving the cooperation of members of the Legislature whose specialty is the practice of criminal law. The exchange of views between defense counsel and the court continued to

Page 620

the point where counsel stated: 'I must exercise formally for the record my privilege under Section 22-4-3.' The trial justice answered that as far as he was concerned the case was ready to begin and defense counsel gave an affirmative reply when asked if his client would be present in the courtroom later that day so that the impanelling of a jury might begin. A recess was taken. The recess developed into a continuance until the following day. On March 21, defense counsel informed the trial court that he had sought certiorari in this court. We issued the writ and stayed the Superior Court proceedings.

Article III of the Rhode Island Constitution provides that 'The powers of the government shall be distributed into three departments: the legislative, executive and [115 R.I. 238] judicial.' Since the adoption of our state's constitution...

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51 practice notes
  • Mello v. Superior Court, No. 76-165-M
    • United States
    • United States State Supreme Court of Rhode Island
    • 18 Febrero 1977
    ...of repetition but somehow evade review. These demand our attention and quite properly come before us for decision. Lemoine v. Martineau, 115 R.I. 233, 342 A.2d 616 (1975); School Comm. v. Westerly Teachers Ass'n, 111 R.I. 96, 299 A.2d 441 (1973); Chernov Enterprises, Inc. v. Scuncio, 107 R.......
  • Kennedy v. Cumberland Engineering Co., Inc., No. 82-95-A
    • United States
    • United States State Supreme Court of Rhode Island
    • 19 Enero 1984
    ...show an intent to give broader, independent meaning and application to the first sentence. In the recent case of Lemoine v. Martineau, 115 R.I. 233, 342 A.2d 616 (1975), this court held that a statute excusing legislators from all court appearances while the Legislature is in session "flies......
  • Zab v. R.I. Dep't of Corrs., 2019-459-Appeal.
    • United States
    • United States State Supreme Court of Rhode Island
    • 2 Marzo 2022
    ...and finding that the statute was unconstitutional because it prevented litigants from effectively pursuing claims); Lemoine v. Martineau, 115 R.I. 233, 239, 342 A.2d 616, 621 (1975) (invalidating a statute that impinged on "art. I, § 5's edict that any person having recourse to the legal pr......
  • State v. Ford, C.A. P2-05-0083A
    • United States
    • Superior Court of Rhode Island
    • 20 Agosto 2012
    ...of a sentence by the hearing justice is an encroachment on or an attempt to subvert the power of the judiciary. Lemoine v. Martineau, 115 R.I. 233, 238, 342 A.2d 616, 620 (1975) (Our Supreme Court has expressly stated that the General Assembly is without authority to alter a judicial decisi......
  • Request a trial to view additional results
51 cases
  • Mello v. Superior Court, No. 76-165-M
    • United States
    • United States State Supreme Court of Rhode Island
    • 18 Febrero 1977
    ...of repetition but somehow evade review. These demand our attention and quite properly come before us for decision. Lemoine v. Martineau, 115 R.I. 233, 342 A.2d 616 (1975); School Comm. v. Westerly Teachers Ass'n, 111 R.I. 96, 299 A.2d 441 (1973); Chernov Enterprises, Inc. v. Scuncio, 107 R.......
  • Kennedy v. Cumberland Engineering Co., Inc., No. 82-95-A
    • United States
    • United States State Supreme Court of Rhode Island
    • 19 Enero 1984
    ...show an intent to give broader, independent meaning and application to the first sentence. In the recent case of Lemoine v. Martineau, 115 R.I. 233, 342 A.2d 616 (1975), this court held that a statute excusing legislators from all court appearances while the Legislature is in session "flies......
  • Zab v. R.I. Dep't of Corrs., 2019-459-Appeal.
    • United States
    • United States State Supreme Court of Rhode Island
    • 2 Marzo 2022
    ...and finding that the statute was unconstitutional because it prevented litigants from effectively pursuing claims); Lemoine v. Martineau, 115 R.I. 233, 239, 342 A.2d 616, 621 (1975) (invalidating a statute that impinged on "art. I, § 5's edict that any person having recourse to the legal pr......
  • State v. Ford, C.A. P2-05-0083A
    • United States
    • Superior Court of Rhode Island
    • 20 Agosto 2012
    ...of a sentence by the hearing justice is an encroachment on or an attempt to subvert the power of the judiciary. Lemoine v. Martineau, 115 R.I. 233, 238, 342 A.2d 616, 620 (1975) (Our Supreme Court has expressly stated that the General Assembly is without authority to alter a judicial decisi......
  • Request a trial to view additional results

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