Violet v. Voccola, 85-43-M

• Decision Date: 20 August 1985
• Docket Number: No. 85-43-M,85-43-M
• Parties: Arlene VIOLET, Attorney General of the State of Rhode Island v. Joseph VOCCOLA. P.
• Court: Rhode Island Supreme Court

Page 709

497 A.2d 709

Arlene VIOLET, Attorney General of the State of Rhode Island v. Joseph VOCCOLA.

No. 85-43-M.P.

Supreme Court of Rhode Island.

Aug. 20, 1985.

Arlene Violet, Atty. Gen., Thomas M. Dickinson, Sp. Asst. Atty. Gen., for plaintiff.

Keven A. McKenna, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on an original petition for quo warranto filed by the Attorney General in order to determine the right of Joseph Voccola (Voccola) to hold the office of Councilman from the 4th District of the Town of Johnston. The essential facts underlying the petition are undisputed. These facts are set forth in the pleadings and admitted by Voccola in his brief.

On September 5, 1984, Voccola pleaded guilty in the United States District Court to three offenses, each involving the sale in the State of Massachusetts of an automobile with a false odometer statement in violation of the provisions of 15 U.S.C.A. § 1988(b) (West 1982). Pursuant to the plea of guilty, the United States District Court judge sentenced Voccola to imprisonment for one year, followed by a period of probation for three years, and imposed a fine of $25,116. The offense was classified by 18 U.S.C.A. § 1 (West 1969), as a misdemeanor.

On November 4, 1984, subsequent to the entry of the plea of guilty (but prior to the imposition of sentence), Voccola was reelected to the office of Councilman from the 4th District of the Town of Johnston. The term for which he has been elected is a two-year term that will expire on January 12, 1987. Johnston Town Code, art. III, § 3-1 (1982). The Attorney General by her petition challenges the right of Voccola to hold this office since, she claims, he is no longer a qualified elector pursuant to the provisions of article 38 of amendments of the Rhode Island Constitution and, consequently, has been rendered ineligible to hold office by virtue of article 39 of amendments of the Rhode Island Constitution. Article 39 provides that "[n]o person shall hold any civil office unless he be a qualified elector for such office." Article 38 provides in pertinent part:

"Nor shall any person otherwise qualified to vote as provided in this article be permitted to vote while serving a prison sentence on final conviction of a felony nor subsequent to such imprisonment until the franchise shall have been restored by an act of the general assembly."

It is the Attorney General's contention that these two provisions read together disqualify Voccola from serving as councilman. Specifically, the argument is that because Voccola's conviction under the federal statute makes him ineligible to vote, he therefore is ineligible to hold the public office to which he has been elected.

Voccola responds by asserting that this court has no power pursuant to its jurisdiction of the writ of quo warranto to determine that he is ineligible to vote, and further, even if the court had jurisdiction to entertain this petition, Voccola has not been convicted of a felony and therefore is not ineligible under the terms of article 38.

I IS QUO WARRANTO APPLICABLE TO THIS CONTROVERSY?

This court has recognized in Black v. Cummings, 62 R.I. 361, 5 A.2d 858 (1939), that a challenge to the right of a person to hold office in vindication of a public right as opposed to a private right must be brought by the Attorney General and cannot be brought without the intervention of that state official. In so holding, this court applied a principle long recognized by English common law and applied by the Supreme Court of the United States in Newman v. United States, 238 U.S. 537, 35 S.Ct. 881, 59 L.Ed. 1446 (1915). In the latter case, the Supreme Court observed that only the Attorney General or a special prosecutor was authorized to institute quo warranto proceedings against usurpers of public office and that a private citizen was not authorized to institute such proceedings unless such a person claimed a superior title to that office. Voccola does not challenge the right of the Attorney General to institute quo warranto proceedings in order to test the right of an incumbent to hold public office but claims that this proceeding can no longer be initiated by the Office of the Attorney General in view of the provisions of G.L.1956 (1981 Reenactment) § 17-1-3.4, as amended by P.L.1983, ch. 172, § 3, which provide that any elector may challenge the registration of any other voter by filing an affidavit with the local board of canvassers stating that such person is not eligible to vote. Voccola construes this statute to mean that the initial challenge of a right to vote must now be made before the local board of canvassers and cannot be asserted directly before this court. We cannot accept this construction.

In Fargnoli v. Cianci, 121 R.I. 153, 397 A.2d 68 (1979), we noted that the ancient writ of quo warranto has not been issued in this jurisdiction since the adoption of the Rhode Island Constitution in 1842. Generally litigants, even with the intervention of the Attorney General, have chosen relief by way of an information in the nature of quo warranto. In State v. Brown, 5 R.I. 1, 7 (1857), Chief Justice Ames observed that the writ and the information performed the same function. Historically, the writ of quo warranto was

"a civil remedy and issued out of chancery as a matter of course in favor of the crown. The [civil] writ [of quo warranto] fell into disuse and was replaced by [a writ of] information in the nature of quo warranto, a change attributed by Blackstone to the length of a quo warranto proceeding and the finality and conclusiveness of its judgment, even against the crown. With the passage of the Statute of Anne in 1711, 9 Anne, ch. 20, an information proceeding took on criminal overtones because a judgment could be entered calling for the imposition of a fine [as well as the] loss of office." Cianci, 121 R.I. at 161, 397 A.2d at 72.

See Meehan v. Bachelder, 73 N.H. 113, 59 A. 620 (1904). Indeed, in Brown, supra, the court imposed a fine of ten cents upon one whom it determined to be improperly holding the office of major general in the Rhode Island militia. However, although the writ may have fallen into disuse in England as well as in this state, it has not been abolished, and this court has been specifically afforded jurisdiction of the writ by virtue of G.L. 1956 (1969 Reenactment) § 8-1-2.

In our opinion, the Legislature did not intend to reduce the power of the Attorney General to prosecute a common-law writ of quo warranto through its enactment of G.L. 1956 (1981 Reenactment) § 17-1-3.4. Its sole intent was to extend to private parties the right to file a challenge in respect to an elector before the local board of canvassers. This statute should not be construed to reduce in any way the common-law powers of the Attorney General to test the right of a person to hold public office. It is true that some cases have come before us on petition for certiorari from decisions by the State Board of Elections subsequent to a determination by the board of canvassers. See Gelch v. State Board of Elections, --- R.I. ----, 482 A.2d 1204 (1984); Bailey v. Baronian, 120 R.I. 389, 394 A.2d 1338 (1978). However, this does not mean that the route followed by the Attorney General in this case is not equally appropriate since the Attorney General is not limited to filing a challenge pursuant to the provisions of § 17-1-3.4.

In the instant case, all of the essential facts are agreed upon, and therefore, this controversy may be decided as a matter of law. Consequently, this court may decide this petition for quo warranto without the predicate of an evidentiary hearing before any other body or tribunal.

II IS VOCCOLA DISQUALIFIED FROM HOLDING THE OFFICE...