Whitehouse v. Moran

• Citation: 808 A.2d 626
• Decision Date: 29 October 2002
• Docket Number: No. 99-343-M.P.,99-343-M.P.
• Parties: Sheldon WHITEHOUSE, in his Capacity as Attorney General for the State of Rhode Island v. Matthew MORAN, individually and in his capacity as a member of the Town of Tiverton Board of Canvassers.
• Court: United States State Supreme Court of Rhode Island

808 A.2d 626

Sheldon WHITEHOUSE, in his Capacity as Attorney General for the State of Rhode Island v. Matthew MORAN, individually and in his capacity as a member of the Town of Tiverton Board of Canvassers.

No. 99-343-M.P.

Supreme Court of Rhode Island.

October 29, 2002.

Present: WILLIAMS, C.J., and LEDERBERG, FLANDERS, and GOLDBERG JJ, and WEISBERGER, C.J. (Ret.).

Thomas A. Palombo, Providence, for plaintiff.

Charles Levesque, Middletown, Thomas S. Moran, for defendant.

OPINION

PER CURIAM.

This case came before the Court for oral argument on September 24, 2002, pursuant to an earlier order that had directed counsel for the parties to file supplemental memoranda and to address additional issues relating to the petition in equity in the nature of quo warranto filed by the Attorney General. This petition was brought originally in this Court to determine the right of Matthew Moran (respondent) to serve as a member of the Board of Canvassers (board) of the Town of Tiverton. The Attorney General (petitioner) challenged the propriety of the respondent's serving on the board on the ground that he was ineligible for such service, pursuant to the provisions of G.L.1956 § 17-8-2, because the respondent has been and is now employed as a public school teacher in the Town of New Shoreham and also is a part-time employee of theDepartment of Environmental Management (DEM) of the State of Rhode Island. He serves as a part-time park ranger.

The case was presented earlier to the Court for oral argument, on April 8, 2002, after which the parties were directed to file supplemental memoranda. The case was then reassigned to September 24 for the parties to show cause why the case should not be summarily decided. After hearing the arguments of counsel and examining the memoranda and the supplemental memoranda filed by the parties, we are of the opinion that cause has not been shown and that the case should be decided at this time. The facts of this case insofar as pertinent to this petition are as follows.

Moran was appointed to the board in July 1994. It is undisputed that he has served in this capacity honorably and effectively since that time. The petitioner does not allege that his service has been marred by any conflict of interest, either actual or potential. It is the contention of petitioner that respondent is ineligible to serve by reason of the provisions of § 17-8-2, which provides in pertinent part as follows:

"No person shall be appointed or serve as a member of the [canvassing] authority who is an officer or employee of the United States or of this state or of any city or town of this state, provided that in any city a member of the authority may act as its clerk."

The petitioner alleges that the terms of this statute are clear and unequivocal and have the effect of precluding the service of respondent or any other employee of this state or of any city or town thereof as a member of a board of canvassers. Consequently, the issue presented to this Court is purely a question of law. There are no disputed issues of fact. The respondent challenges this petition on three grounds, which will be considered in the order of their significance to this opinion.

1. Jurisdiction of this Court

The respondent argues that this case should have been brought in the Superior Court, since that court by statute has concurrent jurisdiction of the prerogative writ of quo warranto and also concurrent jurisdiction of an information in the nature of quo warranto. Both proceedings may be brought in the Superior Court, pursuant to G.L.1956 § 8-2-16.

As we pointed out in Fargnoli v. Cianci, 121 R.I. 153, 397 A.2d 68 (1979), both the writ of quo warranto and an information in the nature of quo warranto may be brought only by the Attorney General on behalf of the public to challenge the right of an individual to hold a public office. In 1891, the General Assembly enacted a statute, which is now codified as G.L.1956 § 10-14-1. This statute authorized the commencement of a petition in equity in the nature of quo warranto. This Court has sole original jurisdiction of such a petition. As we pointed out in Fargnoli, the petition in equity in the nature of quo warranto may be brought by a private individual who not only seeks to oust a purported holder of an office, but also seeks that the petitioner be declared to be the rightful holder of the office. See Fargnoli, 121 R.I. at 162,

397 A.2d at 73.

Although the petition in equity in the nature of quo warranto was authorized to serve the need of a private individual who sought to establish his or her own title to the public office in issue, we see no reason why the Attorney General should not be allowed to institute such a petition on behalf of the public. We implied as much in Nugent ex rel. Logee v. Bristow, 91 R.I. 312, 163 A.2d 41 (1960), when the relator had brought such a petition in this Court and was unable to prove title to the challenged office. We allowed the petition to proceed since we concluded that the case had in effect been brought by the Attorney General in the public interest.

Since this case involves no issue of disputed fact and presents purely a question of law, we see no reason why we should not accept the statutory jurisdiction to determine this controversy as conferred upon us by § 10-14-1. The Attorney General had the choice to utilize any one of three alternative methods to challenge the respondent's right to serve as a member of the board of canvassers. He chose the petition in equity in the nature of quo warranto as the most expeditious of the three. There is no reason to decline jurisdiction in the circumstances of this case.

2. The Applicable Statute

The respondent argues that § 17-8-2 has been superseded by G.L.1956 § 17-1-5.1 Section 17-1-5.1 provides as follows:

"(a) A municipal employee may hold a state elective office or a municipal elective office provided that, except as authorized pursuant to subsection (c) of this section, no municipal employee may hold a municipal elective office in the city or town in which he or she is employed, and a state employee may hold any municipal elective office. Any provision in any state law, municipal ordinance, or city or town charter prohibiting a municipal employee from holding state elective office or municipal elective office other than in the town where he or she is employed or a state employee from holding a municipal elective office is declared null and void.

"(b) The provisions of this section do not apply to school teachers of the individual cities and towns as defined in title 16.

"(c) Notwithstanding the provisions of the first sentence of subsection (a) of this section, a city or town may, by charter or ordinance, permit a municipal employee of that city or town to hold office of school committee person in that city or town."

The foregoing statute would arguably permit respondent to serve in a municipal elective office in the town in which he resides, as long as he is not employed in that particular town. The difficulty with this argument is that § 17-8-2 applies specifically tothe office of a member of a board of canvassers, while § 17-1-5.1 is a general statute applying to a variety of elective offices. Although it is somewhat doubtful that the office of a member of a board of canvassers is an elective office, (members of the board are appointed by the town council, pursuant to G.L.1956 § 17-8-1) ...