State ex rel. Webb v. Cianci

• Decision Date: 23 May 1991
• Docket Number: Nos. 90-555-M,s. 90-555-M
• Citation: 591 A.2d 1193
• Parties: STATE of Rhode Island ex rel. Floyd Edmund WEBB III v. Vincent A. CIANCI, Jr. In re Eligibility of Vincent A. CIANCI, Jr. P., 90-560-M.P.
• Court: Rhode Island Supreme Court

Page 1193

591 A.2d 1193

STATE of Rhode Island ex rel. Floyd Edmund WEBB III v. Vincent A. CIANCI, Jr In re Eligibility of Vincent A. CIANCI, Jr.

Nos. 90-555-M.P., 90-560-M.P.

Supreme Court of Rhode Island.

May 23, 1991.

Anthony J. Bucci, Jr., Providence, for Rhode Island Bd. of Elections. Frederick G. Cass, Steven E. Snow, Providence, for petitioner.

Patrick T. Conley, Ronald W. DelSesto, William A. Dimitri, Jr., William J. McGair, Providence, for respondent.

Amy R. Tabor, Pawtucket, Deming E. Sherman, Providence, Amicus Curiae.

OPINION

SHEA, Justice.

These matters are before the Supreme Court on two petitions, one a petition for the issuance of a writ of certiorari to review a decision of the Rhode Island State Board of Elections and the other on a petition for leave to file an information in the nature of quo warranto. The ultimate relief sought by both petitions is the prevention of Vincent A. Cianci, Jr., as mayor-elect, from assuming the office of mayor of the city of Providence. We deny both petitions.

The court heard oral argument on behalf of petitioners and respondent and carefully examined the briefs submitted by the parties and by amicus curiae. Following conference thereon, we issued an order on December 20, 1990, denying both petitions. 583 A.2d 880. That order was issued prior to the release of this opinion because of the obvious need of the city of Providence for a resolution of the issues before this court prior to the January 9, 1991 date on which the mayor-elect was scheduled to be inaugurated into office. Our opinion follows.

The events that gave rise to these petitions are well known to the people of this state. On April 23, 1984, Vincent A. Cianci, Jr. (Cianci), who was then the mayor of the city of Providence, entered a plea of nolo contendere in the Superior Court, County of Providence to the felony charge of assault with a dangerous weapon. He was adjudged guilty of the charge and a sentence of five years at the Adult Correctional Institutions was imposed. That sentence was suspended and defendant was placed on five years probation. That probationary period extended until on or about April 23, 1989. Two days after the imposition of sentence, Cianci resigned from the office of mayor because of disqualification provisions in the Home Rule Charter of the city of Providence. The office of mayor was declared vacant, and a special election was called to elect a mayor for the unexpired term.

Cianci declared his intention to become a candidate for election to that unexpired term. A timely challenge was filed to his eligibility to be elected to that unexpired term. That challenge ultimately came before this court. We ruled that Cianci was prohibited from seeking election to serve as mayor for the unexpired term created by his forfeiture of the office. Gelch v. State Board of Elections, 482 A.2d 1204 (R.I.1984). The ruling was based upon sections 202 and 206 of the Home Rule Charter of the city of Providence. In that opinion we noted that "[w]e need not decide whether state law (in particular G.L.1956 (1981 Reenactment) § 13-6-2) prohibits Cianci from holding public office. * * * State law concerning respondent's right to be a candidate in a general election for a full new term is not at issue, and therefore we need not address it." 482 A.2d at 1211 n. 6.

On June 27, 1990, Cianci filed his declaration of candidacy for election as mayor of the city of Providence for the term beginning January 1991. On July 13, 1990, Cianci filed his nomination papers with the Board of Canvassers of the city of Providence (Board of Canvassers). July 16, 1990 was the final date under G.L.1956 (1988 Reenactment) § 17-14-13 for the filing of objections to Cianci's candidacy. No objections were filed.

Eventually three candidates qualified for a place on the ballot for the office of mayor of the city of Providence at the general election for state and local offices in November 1990. Cianci was declared to have received a plurality of the votes cast. On November 9, 1990, the State Board of Elections conducted a recount and determined that Cianci had in fact received a plurality of the votes cast. On that same day, an objection was filed with the Board of Canvassers to the certification of the vote. The Board of Canvassers held an emergency hearing on the objection on November 13, 1990. Sometime prior to the hearing on the objection, however, the original objectors withdrew their objection and were replaced by the Vileno petitioners in the matter before us, who filed their own objection. After a hearing on the objection, the certificate of election was issued to Cianci.

An appeal to the State Board of Elections was taken by objectors to the decision of the Board of Canvassers. The State Board of Elections allowed Cianci to intervene in the proceedings. It granted his motion to dismiss the appeal but retained jurisdiction over the matter in order to conduct an evidentiary hearing to create a record with respect to the newly adopted state constitutional provisions, which were expected to have bearing upon the issues that would be raised before this court.

In due course the petition for an information in the nature of a quo warranto to challenge Cianci's title to the office of mayor was filed in this court by Floyd Edmund Webb III (Webb). Later, the Vileno petitioners filed a petition for the issuance of a common-law writ of certiorari to review the decision of the State Board of Elections. These matters were consolidated for hearing before the court.

We shall first address Webb's request for leave to file an information in the nature of quo warranto (information). This common-law proceeding is used to challenge an individual's title to public office and to oust the individual from the public office if the title is not well founded. Fargnoli v. Cianci, 121 R.I. 153, 162, 397 A.2d 68, 73 (1979); Andrews v. Stiles, 99 R.I. 546, 547-48, 209 A.2d 210, 211 (1965); State v. Kearn, 17 R.I. 391, 396-97, 22 A. 1018, 1020 (1891); State v. Lane, 16 R.I. 620, 626, 18 A. 1035, 1037 (1889); see also State v. Brown, 5 R.I. 1, 11 (1857). The origins of the information are directly linked to the ancient writ of quo warranto. That was a high-prerogative civil writ of right in England, reserved for the use of the Crown to demand by what authority an individual presumed to hold public office. Annot. Right of private person not claiming office to maintain quo warranto proceedings to test title to or existence of public office, 51 A.L.R.2d 1306, 1309 (1957); 65 Am.Jur.2d, Quo Warranto § 2 (1972); 74 C.J.S. Quo Warranto § 1 (1951). The writ became obsolete in England before the Revolutionary War. The obsolescence was said to have resulted in part from the cumbersome nature of the proceeding. Id. The writ was later supplanted by the "information in the nature of quo warranto," which was criminal in nature. It was used not only to fine the usurper but also to remove the usurper from the public office in question. Id. These developments found legislative expression in the English Statute of Anne in 1711, 9 Anne, ch. 20, which, although not considered applicable to the United States, is viewed as the ancestral basis for the quo warranto statutes found in many American jurisdictions today. Annot. 51 A.L.R.2d at 1309. That statute expressly recognized the pre-existence of the information in the nature of quo warranto. Further, the statute conferred jurisdiction upon the courts to employ an information only with respect to the public and political offices that were specifically enumerated in the statute's preamble. Brooks v. State, 26 Del. 1, 79 A. 790, 795 (1911). The information was used in all instances wherein the writ of quo warranto was previously maintained. In the absence of a statute, the information's application in this country has been limited to instances in which the writ of quo warranto would have been granted at common law in England. High, Extraordinary Legal Remedies at 552 (3d ed. 1896). The information in the nature of quo warranto has been recognized in this jurisdiction to perform the same functions as the writ of quo warranto, see Brown, 5 R.I. at 7, and also to have lost all its character as a criminal proceeding in everything but form. See Kearn, 17 R.I. at 401, 22 A. at 1020.

This court has entertained numerous petitions for leave to file an information in the nature of quo warranto. In Brown, the court exercised its discretion to allow the Attorney General to file an information in vindication of a public right to challenge the title of the acting major-general of the Division of the Rhode Island Militia. After reaching the merits of the petition and deciding that the major-general improperly held the public office, the court ousted him and imposed a nominal fine. Brown, 5 R.I. at 11. Later, in Attorney General v. McCaughey, 21 R.I. 341, 43 A. 646 (1899), this court again exercised its discretion to allow the Attorney General to file an information in vindication of a public right to challenge the title of several Pawtucket highway commissioners appointed by the local Board of Aldermen. In that case, however, the court ruled that the highway commissioners were not "public officers" and therefore declined to reach the merits of the petition because quo warranto was an improper method by which to seek the commissioners' ouster. Id. at 348, 43 A. at 649.

These early decisions demonstrate that we have continuously exercised our discretion to hold that an information in the nature of quo warranto that seeks to vindicate a public right cannot be brought in this jurisdiction without the intervention of the Attorney General. ¹ Violet v. Voccola, 497 A.2d 709, 710-11 (R.I.1985); Black v. Cummings, 62 R.I. 361, 367, 5 A.2d 858, 861 (1939); Ney v. Whiteley, 26 R.I. 464, 467, 59 A. 400, 401 (1904); see also O'Brien v. Board of Aldermen of Pawtucket, 18 R.I. 113, 116-17, 25 A. 914, 915 (1892). In complete agreement...