Seemann v. Kinch

• Decision Date: 16 April 1992
• Docket Number: No. 91-363-M,91-363-M
• Citation: 606 A.2d 1308
• Parties: Diane L. SEEMANN v. Henry S. KINCH, Jr. P.
• Court: Rhode Island Supreme Court

Page 1308

606 A.2d 1308

Diane L. SEEMANN v. Henry S. KINCH, Jr.

No. 91-363-M.P.

Supreme Court of Rhode Island.

April 16, 1992.

Thomas Liguori & Urso, Westerly, for plaintiff.

Casby Harrison, III, Sheldon Whitehouse, Office of the Governor, for defendant.

OPINION

FAY, Chief Justice.

This is a petition in equity in the nature of quo warranto to determine the rightful holder of title to the office of Superior Court Clerk of Washington County. Diane L. Seemann (petitioner) brought this petition to oust Henry S. Kinch, Jr. (respondent), and recover title to the office, claiming that the Governor did not have the statutory authority to make a proper valid appointment to the clerk position while the Senate was not in session. The petitioner also seeks to have this court reinstate her as rightful holdover until her successor is validly appointed and confirmed. The respondent, appointed by the Governor and having taken the oath of office, maintains that the Governor possessed the authority necessary to appoint him validly to the position of clerk, subject to subsequent confirmation by the Senate once it reconvened. We find that the Governor's appointment of the respondent was valid, and once the respondent qualified, the petitioner no longer had title or a vested interest in the office. The relevant facts are as follows.

On March 7, 1986, petitioner was appointed to and qualified for the office of clerk of the Superior Court of Washington County to serve a five-year term ending on February 1, 1991, in accordance with G.L.1956 (1985 Reenactment) § 8-4-5. As of February 1, 1991, the Governor had not yet named a successor to the position, and petitioner remained as a holdover in office. On May 29, 1991, petitioner was notified by letter from the Governor's office that she would not be reappointed to the position, that a replacement was being named, and that her hold-over term would expire on July 1, 1991. On July 10, 1991, petitioner was notified that her last day of work would be July 12, 1991, and that she would be replaced by respondent. On July 12, 1991, the Governor appointed respondent to the position and administered the oath of office to him. ¹ The bond requirement was satisfied according to the blanket provision in effect for such appointees in office. ²

The respondent took office on that day and has since been acting in that capacity. On July 12, 1991, the Senate was not in session, having adjourned on June 12, 1991. Because no special session was called, respondent was therefore not confirmed with the advice and consent of the Senate at the time he entered office. ³ The petitioner filed a petition in equity in the nature of quo warranto, requesting that this court determine with whom legal right and interest in the office vested when the Senate was not in session and able immediately to confirm or deny the Governor's appointment to the position. The petition contained a request for injunctive relief to prevent respondent from being sworn in to succeed petitioner as clerk. This request was heard on July 12, 1991, and denied on July 24, 1991. The petition on its merits was assigned to the regular calendar for full briefing and argument.

The petitioner asserts that as holdover to the office, she maintains title to the office because no successor was duly appointed and qualified, which she asserts is mandated by statute. The petitioner argues that respondent is therefore not able legally to maintain title to exercise the duties of clerk. Because the appointment and respondent's holding of the position are illegal and void, petitioner contends that she should be confirmed as the rightful holdover until a successor is properly appointed and confirmed. The petitioner maintains that no vacancy in the office occurred and that the Governor cannot make an interim appointment pending Senate confirmation. The petitioner further contends that if the person who is holding over vacates the office, the presiding justice of the Superior Court is statutorily empowered to make the interim appointment. The petitioner asserts that the incumbent holds over in office until the Governor's appointment is confirmed by the Senate. The petitioner maintains that no vacancy existed in the office during the unexpired term of the incumbent, but that if there had been, the Governor would have been entitled to appoint without Senate confirmation for the unexpired term. This situation is different, petitioner argues, because the term has expired and she is merely a holdover. The petitioner maintains that Rhode Island law does not recognize an interim appointment pending Senate confirmation, especially when the Senate is not in session. The respondent and the Governor assert that the appointment of respondent ended petitioner's tenure and right to the office, granting title to the office in the appointee upon his being appointed and qualified. We find that the Legislature intended existing title to the office to cease once an appointee had been appointed and qualified for the position, thereby creating a vacancy. Title vests in the appointee as clerk pro tempore, duly qualified, but during an interim period such title is subject to subsequent confirmation by the Senate. If confirmed, permanent title for the entire statutory five-year term then vests in the respondent-appointee.

When a party who has been ousted challenges the legal entitlement of another to a position in a quo warranto proceeding, the petitioner bears the burden of establishing that he or she was illegally removed. Jackvony v. Berard, 66 R.I. 290, 294, 18 A.2d 889, 891 (1941). See Auge v. Anderson, 112 R.I. 296, 298, 309 A.2d 17, 19 (1973). When questions of fact exist in the petition, this court is to weigh the evidence in resolving these questions. Jackvony, 66 R.I. at 298, 18 A.2d at 893. When the newly appointed party, the respondent in this action, has a certificate of the appointment to the office from the proper appointing power, the petitioner bears the burden of establishing by a fair preponderance of the evidence that the respondent is not entitled to the office and should be ousted and that the petitioner is the rightful holder of the office. McGroarty v. Ferretti, 56 R.I. 152, 161-62, 184 A. 508, 512 (1936). This court has stated:

"[W]here a petitioner seeks permission to file a petition in equity under the statute without the intervention of the attorney general, the primary issue must be the right of the petitioner to the office; and the petitioner in his petition must allege claim to it, and facts in support of such claim, or he will not be heard. In such a proceeding the petitioner can prevail only on the strength of his own title and not on the weakness of that of the respondent." Black v. Cummings, 62 R.I. 361, 372-73, 5 A.2d 858, 863 (1939).

Section 8-4-5 mandates the general process for appointing Superior Court clerks, providing:

"Appointment, terms and salaries of superior court clerks.--In the month of May, 1971, and in the month of January in 1976 and in every fifth year thereafter, the governor, with the advice and consent of the senate, shall appoint a clerk of the superior court for the counties of Providence and Bristol, and a clerk of the superior court for each of the counties of Newport, Washington and Kent. The persons so appointed shall hold office until the first day of February in the fifth year next after their appointment and until their successors are appointed and qualified."

Therefore, an incumbent holds the position for five years and thereafter may continue as a holdover until a successor is both appointed and qualified. Appointing is the executive function of naming a party to the position and is performed by the Governor according to statute. The process of qualification of an appointee as a clerk pro tempore consists of the appointee's taking the oath of office and posting a bond for the position before entering office. Section 8-4-13. The advice and consent of the Senate is not part of the qualification process. According to § 8-4-5 the earlier-appointed person holds office for five years and until the appointed successor meets both requirements. Tenure is for a specified time, expiration of which does not alone create a vacancy. See 63A Am.Jur.2d Public Officers and Employees § 138 (1984). However, once the two requirements of appointment and qualification are satisfied, the person in whom prior title to the office vested has no remaining interest in the position or further rightful claim to the office. This process creates a vacancy, which vacancy is filled by the duly appointed and qualified person. Title vests in the appointee as a clerk pro tempore, and he or she is thereby authorized to perform and execute the duties of the position. Such interim vesting is subject to final vesting for the entire term once the Senate confirms the appointee--or requires another appointment if the Senate denies appointee approval. The Senate has therefore reserved to itself the power...